Palm Springs City Council
July 25, 2024

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 schedule 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 Party 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 $273,000.

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 schedule of fees 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.

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 Services 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 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 Item 1D - Page 5

and the extent of any necessary delay, and extend the time for performing the 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 Parties 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 shall continue in full force and effect for a period of eighteen months, commencing on August 1, 2024, and ending on January 31, 2026, unless extended by mutual written agreement of the Parties. In addition, the term may be extended at the sole discretion of the City upon written notice to the Contractor, for one (1) additional one (1) 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. Where 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 termination, 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 Services 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.

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 principal and representative of Contractor authorized to act and make all decisions in its behalf with respect to the specified Services: Marcus Johnson, Project Manager / Director of Southern California Operations. 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 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 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 Services. 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 Contractor, 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 Services 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 provisions 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, Item 1D - Page 6

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.

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:

Marcus Johnson Project Manager/Director of Southern California Operation Peter Lim Southern California Inspection Manager
Craig Tole Vice President, Development Services
Thomas Cervantes Fire Prevention Inspector
Kenneth King Fire Prevention Inspector/Fire Marshal
Robert Salgado Fire Prevention Inspector

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 Services 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, penalties, 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 Item 1D - Page 7

applicable. This Agreement may also be subject to compliance 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
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 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 from 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 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 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 Claims 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 Services 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 Services 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 times, 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 Item 1D - Page 8

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 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 nondefaulting 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 Party 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 Party 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.

Item 1D - Page 9

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

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 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: 4LEAF, Inc.

Attention: Marcus Johnson
424 E. Vanderbilt Way, Suite A
San Bernardino, CA 92408

Item 1D - Page 10

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 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 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.

11.8 Authority. The persons executing this Agreement on behalf of the Parties 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.

11.10 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. [SIGNATURES ON NEXT PAGE]
Item 1D - Page 11

SIGNATURE PAGE TO CONTRACT SERVICES AGREEMENT
BY AND BETWEEN THE CITY OF PALM SPRINGS AND 4LEAF, 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 Corporation)
Date: ___________________________ Date: ___________________________ CITY OF PALM SPRINGS:

APPROVED BY CITY COUNCIL:

Date: _______________ Item No. _______________ Agreement No. 24P147 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 1D - Page 12

EXHIBIT “A”

SCOPE OF SERVICES/WORK
Including,
Schedule of Fees
And
Schedule of Performance
Item 1D - Page 13

1.1 Background:

The City of Palm Springs Fire Department is in need of a Fire Prevention Inspection Service agreement. The Fire Prevention Inspector(s) will perform fire prevention field inspections of City’s high fire area and other mandated inspections in accordance with legal requirements.

1.2 Scope:

A. Contractor shall provide fire inspection services for the City of Palm Springs Fire Department.

B. Contractor will perform fire prevention field inspections of City’s very high fire area, new business licensing, and state mandated inspections to confirm compliance with applicable codes with amendments and City specifications as adopted by the City of Palm Springs.

C. Contractor will perform all necessary liaisons with applicants, business owners/representatives, City Staff, Fire Marshal, or designee.

D. Contractor will log fire prevention activities into fire department records management system.

E. Contractor will complete fire prevention activity reports.

F. Contractor will regularly meet with Fire Marshal or designee.

G. Contractor will attend meetings related to fire inspections and with customers and City Staff as requested by the Fire Marshal or designee.

H. Contractor will perform extra work as needed when requested by the Fire Marshal or designee.

I. The City will establish a schedule for conducting fire inspections.

J. The City will provide inspection and plan review activity report.

1.3 Schedule:

Work will commence upon issuance of notice to proceed and all work shall be completed by end of contract term.

1.4 Compensation:

Work will be compensated on an hourly basis. Contract pricing includes all labor, expenses, and incidentals to complete the work outlined in the contract scope. The Contractor may request monthly payments based on the percentage of work completed for the previous month as long as a detailed progress report is provided to support the amount requested. No additional compensation will be due by the City unless the contract is modified for additional work requested by the City.

Item 1D - Page 14

Item 1D - Page 15
.A.TTACIHMENT "G"
COS,T PRO'P.0SAJL
REQUESlS FOR PROPOSALS '(IR.lhP 104-24)
IRIRE PREVEIHII0N INSPIEClll0N SERVl:0ES
THIS FO'RiM MUST BE C0MPLElED ANO Sl!JB!MIITTED IN SEP.AIRATIE ELECTIR0N C PILIE#2 Cost Proposal", NOTwiitlh Blectmnic File #11, Teoh'11icallWod Proposal"} ITEM DESCRIPTION Unit of Estimated Rate SUBTOTAL Measure Quantity 1 Fire prevention
inspec,tion selWic:es Hourty: 1,950 $"140 $273,000
per scope
TOTAL $273,000
Finn Name: 4LEAF Inc.

Sigl'lla.ture of AIIJlihorized PelrSOO: - ~./. •:,_. · -~ m::t·-~• ~-- -Lz4,1.rft:.· ==::::::==------ Printed Name: IKevin . Duggan
Tole: Piresidlent
Date: 06/04.$24

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 1D - Page 16

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 Agreement.

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 shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers.

2. Minimum Scope of Insurance. The minimum amount of insurance required 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 contribution it may have against City, its elected officials, officers, employees, agents, and volunteers.

4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Contractor provides claims made professional 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.

Item 1D - Page 17

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, effecting 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 selfinsurance 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.

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 1D - Page 18

EXHIBIT “C”
Item 1D - Page 19
ATTACIHMENT "F"
EX!EClJlllrVIE ORDER N1
_i6-22 CEIRJI ACATl:O:N
REQUESJS, fOR PIROPOSAlS ,(IRIRP 04-241)
HRiE PIREVENTIIONI IINSPEClllON SEIRVl:CES
Executive Order N-6-22 issued by Governor Gavin ewsom on March 4, 2022, directs all agencies arid depanmerlifs that am subject to the ,Q:wemor's authority to (a:) leffilinate any ,oontracts with any individuals arr entities that are detennined to be a target of ecooo:mic sanctions against Russia and Russiari entires aoo indi1idwls; and (b) refrain from ootering into any new oonbacts 'iAiith such individuals or entities while the aforementioned sancitions are in effect
Executive Order N-6-22 so requires that any contracitor that: (1) ,curre1111fy has a contract with the Cityiof Pam Springs funded lhliough grantfun:ols provided by the State of California; and/or (2) su'b:mits a bid o · proposal or ofueirwise proposes to or enter into or renew a ioontract with the Oity of Palm Splings with Stale of California grant funds, certify tna· the person is not the ~arget of any emnomic sanctions agai11St Russia and Russian entities and individuals_
The contractor hereby certifies, SUBJECT TO PENAL TY FO:R PiE1RJlmY; that a) th:e ,oontractor is not a target ,of any econo:mic sanotions against Russian and Russian entit-es and individuals as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to !egally b:in d 1he Contraoto _ This cerlification is made under the laws of the State ,of California_
~u,,,,____. Signature:_--'C.., "---_ 'b---++----------- Printed Name: Kevin J_ Duggan
Tit e: President
Firm Name: 4LEAF, nc_
Date: 06104124

ATTACHMENT B
Item 1D - Page 20
Item 1D - Page 21

1. 2.

3. 4.

5. Name of Entity
4LEAF, Inc.

PUBLIC INTEGRITY DISCLOSURE

APPLICANT DISCLOSURE FORM
Address of Entity (Principal Place of Business)
2126 Rheem Drive, Pleasanton, CA 94588
Local or California Address (if different than #2)
424 E. Vanderbilt Way, Suite A, San Bernardino, CA 92408 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
J;2j 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
Kevin J. Duggan 1K] Officer D Director D Member D
Manager
~.
[name] D General Partner D Limited Partner
• Other
i11rGene Barrv. PE IX] Officer D Director D Member D Manager [name] D General Partner D Limited Partner
~
• Other -
7 Bert Gross, P E IX] Officer D Director D Member D Manager Item 1D - Page 22
[name] D General Partner D Limited Partner
• Other

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.
[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 PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.

Signature of Disclosing Party, Printed Name, Title Date ,,

CITY COUNCIL STAFF REPORT
DATE: JULY 25, 2024 CONSENT CALENDAR
SUBJECT: SECOND READING AND ADOPTION OF ORDINANCE NO. 2099, ENTITLED “AN ORDINANCE OF THE CITY OF PALM SPRINGS,

CALIFORNIA, AMENDING THE PALM SPRINGS MUNICIPAL CODE,

RELATING TO REGULATING ENCAMPMENTS AND SLEEPING ON

PUBLIC PROPERTY, AND DETERMINING SUCH ORDINANCE TO BE

EXEMPT FROM FURTHER ENVIRONMENTAL REVIEW UNDER THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT.”
FROM: Scott C. Stiles, City Manager
BY: Andrew Mills, Police Department
Jeffrey Ballinger, City Attorney
SUMMARY:

On July 9, 2024, the City Council considered and introduced an ordinance regulating the sleeping and camping on certain portions of public property. The ordinance also codifies the process for abating encampments on public property. As discussed in more detail below, the City Council incorporated several changes to the ordinance at first reading, which changes were incorporated and are provided in the accompanying ordinance. This agenda item provides the City Council with the opportunity to conduct a second reading (adoption) of the ordinance.

RECOMMENDATION:

Conduct a second reading by title only and adopt an ordinance entitled:

AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING

THE PALM SPRINGS MUNICIPAL CODE, RELATING TO REGULATING

ENCAMPMENTS AND SLEEPING ON PUBLIC PROPERTY, AND

DETERMINING SUCH ORDINANCE TO BE EXEMPT FROM FURTHER

ENVIRONMENTAL REVIEW UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT.

BACKGROUND:

On July 9, 2024, Ordinance No.2099 was introduced for first reading, as noted below:

Item 1E - Page 1
City Council Staff Report
July 25, 2024 -- Page 2
Safe Camping Ordinance (Second Reading)

AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING

THE PALM SPRINGS MUNICIPAL CODE, RELATING TO REGULATING

ENCAMPMENTS AND SLEEPING ON PUBLIC PROPERTY, AND

DETERMINING SUCH ORDINANCE TO BE EXEMPT FROM FURTHER

ENVIRONMENTAL REVIEW UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT.

Vote:

AYES: Mayor Bernstein; Mayor Pro Tem deHarte; Councilmember Middleton
NOES: Councilmember Garner
ABSTAIN: Councilmember Holstege
STAFF ANALYSIS:

At the July 9, 2024 Council meeting, the Council considered and introduced an ordinance regulating the sleeping and camping on certain portions of public property. The ordinance also codifies the process for abating encampments on public property. At the time of the first reading, the Council also incorporated the following modifications to the ordinance:
• Removed the following sentence from the definition of “waste” -- Waste also includes abandoned or unidentified personal property that is left unattended on public sidewalks and rights-of-way or other Public Property. • Requires notices to also be provided in Spanish.
• Requires the City Manager and Police Chief to issue implementing regulations, in order to implement the ordinance, and post those regulations on the City’s Police Department website.
• Changed the minimum notice period, prior to abatement of encampments, from 24 hours to 72 hours.

These modifications are shown in “redline” format in the accompanying ordinance.

At the July 9 Council meeting, the Council also directed City staff to explore the following issues:
• Ensuring an adequate process for City Police Officers to determine whether and how many shelter beds are available at any given time.
• Working with Martha’s Village about possibly expanding the number of shelter beds that are reserved for individuals brought in by Police Department personnel.

This item provides the opportunity for the City Council to waive further reading and adopt the ordinance. If adopted, the ordinance would be effective on the thirtieth day from and after its final passage, or on the date the second phase of the City’s Navigation Center is Item 1E - Page 2
City Council Staff Report
July 25, 2024 -- Page 3
Safe Camping Ordinance (Second Reading)
open for use, whichever is later.

ENVIRONMENTAL ASSESSMENT:

It can be seen with certainty that the proposed ordinance will not have an impact on the environment. As such, pursuant to the California, Environmental Quality Act, Cal. Pub.

Res. Code 21000 et seq. (“CEQA”), City staff will file a Notice of Exemption within five (5) days following adoption of the proposed ordinance.

ALIGNMENT WITH STRATEGIC PLANNING:

This ordinance aligns with the City Council’s Strategic Planning Goal 1A – Reducing Homelessness.

FISCAL IMPACT:

The proposed ordinance is not expected to have any significant financial impact to the City.

REVIEWED BY:

Police Chief: Andrew G. Mills
City Attorney: Jeffrey S. Ballinger
City Manager: Scott Stiles
ATTACHMENTS:

A. Ordinance No. 2099
Item 1E - Page 3

ATTACHMENT A
Item 1E - Page 4
ORDINANCE NO. 2099

AN ORDINANCE OF THE CITY OF PALM SPRINGS,

CALIFORNIA, AMENDING THE PALM SPRINGS

MUNICIPAL CODE, RELATING TO REGULATING

ENCAMPMENTS AND SLEEPING ON PUBLIC PROPERTY,

AND DETERMINING SUCH ORDINANCE TO BE EXEMPT

FROM FURTHER ENVIRONMENTAL REVIEW UNDER THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT.

City Attorney’s Summary
This ordinance updates the City’s existing Municipal Code provisions relating to camping and sleeping on public
property.

WHEREAS, the City of Palm Springs is committed to protecting the life, health, and safety of its residents and all people within the geographical boundaries of the City; and
WHEREAS, the Council finds that certain public lands within the City’s geographical boundaries pose significant health and safety hazards to people who make shelter or stay overnight in these areas; and
WHEREAS, the Council finds that some of these public lands are environmentally sensitive and may be significantly damaged by unregulated human activity; and WHEREAS, the Council is committed to protecting the rights of individuals who cannot obtain shelter and to treating their personal property with respect and consideration and therefore updates the Municipal Code to conform to and address the impacts of the Ninth Circuit Court of Appeals decision in Martin v. City of Boise; and WHEREAS, the City currently provides 50, and will soon provide 80, shelter beds for people experiencing homelessness, which offer a place to sleep and supportive services including job programs, housing support, treatment for mental health conditions or substance abuse, and security; and
WHEREAS, the City engages in significant outreach work to build relationships with people experiencing homelessness, using a person-centered, compassionate approach to provide services tailored to each person’s specific needs; and WHEREAS, the City provides housing stability support, eviction protection, transitional housing, and supportive and permanent housing solutions to assist people with ending their homelessness; and
Item 1E - Page 5
WHEREAS, the 2023 Point-in-Time Count administered by the County of Riverside Continuum of Care reported 239 people were experiencing unsheltered homelessness within the City, which represents a 7.7 percent increase from the prior year; and WHEREAS, City streets, sidewalks, and parks are intended for safe and sanitary shared use by a diverse community of users including businesses, government, and the general public for gathering, recreating, movement of people, maintenance, and cleaning, and are frequently used by people relying on a variety of mobility devices; and WHEREAS, the Council finds that certain public lands in the City pose a greater danger to the health and safety of people who may stay in those areas overnight and to the general public if used for sheltering, including near schools, shelters, in open space and City waterways, transit hubs, trolley platforms, and in certain City parks; and WHEREAS, this activity has forced students to walk in the street to pass encampments blocking City sidewalks on their way to school and puts students at risk of injury or death from vehicular traffic; and
WHEREAS, there are significant adverse impacts caused by encampment activity concentrated around shelters provided to individuals and families experiencing homelessness, including predatory behavior and drug dealing that undermines the community’s efforts to provide meaningful assistance and long-term solutions for people seeking assistance; and
WHEREAS, people experiencing homelessness on the City’s streets and in transit hubs have been involved in serious and deadly accidents involving cars, buses, or the trolley; and
WHEREAS, people experiencing homelessness on City streets, in City parks, and in transit hubs have been exposed to illicit fentanyl leading to exponential increases in the accidental deaths by overdose among people experiencing homelessness; and WHEREAS, the sustained presence of people in the City’s open space and waterways within the City has created unsafe, unsanitary, unhealthy, and dangerous conditions including water pollution and frequent uncontained fires that threaten people living or using these areas, first responders, and the general public; and WHEREAS, Palm Springs Fire-Rescue indicates that fire crews responded to 54 vegetation fires in the City’s open space areas and 89 rubbish fires last year, which were all suspected to have resulted from human activity in these areas; and WHEREAS, the City annually experiences extended periods of high temperatures with little or no precipitation and strong seasonal dry winds from the east (i.e., Santa Ana winds) that can significantly increase the danger and spread of wildfires, adding to the severity of fires when they start; and
Item 1E - Page 6
WHEREAS, due to the high wildfire risk in Riverside County, Palm Springs FireRescue responds to a vegetation fire with at least two fire engines and eight first responders and these fires are frequently elevated to a First Alarm fire necessitating additional support including brush engines, battalion chiefs and helicopters; and WHEREAS, people sheltering along riverbeds and flood control channels within the City are at risk of experiencing flooding, vector-related disease and other health issues and these areas often contain sensitive environments at risk of significant damage by unregulated human activity; and
WHEREAS, the City counted approximately 200 encampments along the riverbed in 2023 and collected over 150 tons of trash; and
WHEREAS, the City is obligated to protect public health and safety and its natural resources by maintaining clean, safe, and accessible City properties for all residents to enjoy, including parks, open space, and the public right of way; and WHEREAS, to mitigate risks to the health and safety of its citizens and potential damage to environmentally sensitive lands, the Council desires to adopt regulations establishing locations where camping and the maintenance of an encampment is prohibited, regardless of the availability of shelter, due to the significant health and safety risk to those engaged in that activity, the general public, and the environment; and WHEREAS, outside of these specific locations, the prohibition on camping, sleeping, and maintaining an encampment will not be enforced when there are no available shelter beds; and
WHEREAS, it is the intent of this Ordinance to prohibit camping, sleeping, and maintenance of encampments within the City while encouraging people experiencing homelessness to use available low barrier shelters and access a variety of services available from the City and its partners; and
WHEREAS, when abating any encampment, the City will provide written notice in advance of the cleared that explains when the encampment will be cleaned up and how an individual can reclaim items stored during the process; and WHEREAS, the City will store any personal property that may belong to a person, has apparently utility in its current condition and can be safely retrieved from the site, but will not store property that is hazardous, practically un-storable, contraband, or listed on the City’s current list of common items regularly abandoned during the abatement process.

Item 1E - Page 7

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES ORDAIN AS FOLLOWS:

SECTION 1. Chapter 11.40 of the Palm Springs Municipal Code (Camping on Public or Private Property) is hereby amended in its entirety to read as follows:
“Chapter 11.40 ENCAMPMENTS ON PUBLIC PROPERTY
§11.40.010 Purpose
§11.40.020 Definitions
§11.40.030 Protection of Waterways
§11.40.040 Unauthorized Encampments or Sleeping on Public Property §11.40.050 Abatement of Encampments
§11.40.060 Abandoned Personal Property
§11.40.070 Enforcement Administrative Regulations
§11.40.010 Purpose
The Council finds that the City is committed to protecting the life, health, and safety of all people in the City and finds that certain public lands within the geographical boundaries of the City pose significant health and safety hazards to the people who make shelter or stay overnight in these areas.

Additionally, the Council finds that some of these public lands are environmentally sensitive and may be significantly damaged by unregulated human activity. The Council is committed to protecting the rights of individuals related to their personal property and to treating such property with respect and consideration. It is the purpose of this Chapter to set standards for the preservation and protection of human life, health, and safety, to further the preservation and protection of sensitive public lands to prevent destruction of these assets, and to establish a process for the collection, storage, and disposal, recycling, or reuse of personal property found in encampments on public property.
§11.40.020 Definitions
For purposes of this Chapter, the following definitions apply in this Chapter:

Abatement means the process of documenting and collecting eligible items for storage, and removing and disposing of, recycling, or reusing of waste at an encampment according to the process in section 11.40.050 (Abatement of Encampments).

Camp means to pitch, erect, or occupy an encampment, or to use camp paraphernalia or both, for the purpose of, or in a way that facilitates outdoor sheltering for living accommodation purposes or for remaining outdoors overnight.

Camp paraphernalia means personal property used to facilitate occupancy of an area and includes personal property typically associated with camping such as tarps, cots, beds, sleeping bags, hammocks, bedding, camp Item 1E - Page 8
stoves, cooking equipment, buckets, and similar equipment, mattresses, couches, dressers, or other furniture.

City Manager means the City Manager, or the City Manager’s designee.

Encampment means one or more temporary, makeshift, or hand-built structures not intended for long-term continuous occupancy, including tents, that are used to shelter one or more persons or their belongings and that are not authorized by the property owner. Encampment includes any camp paraphernalia and personal property associated with or located in or around the structures or tents.

Open space means any undeveloped public property either primarily in its natural state, including canyons, bluffs, and unimproved waterways, or that is held out by the City or used by the public for passive recreational purposes, conservation, habitat preservation, or that maintains or enhances the conservation of natural or scenic resources.

Park means any public property, whether developed or undeveloped, held out by the City or used by the public for active or passive park and recreation uses, including adjacent buffer lands and natural areas and any adjacent parking lots and perimeter sidewalks.

Shelter means any City-funded shelter or shelter provided by the City for shelter placements where individuals or families experiencing homelessness can access beds and other services or an area designated by the City Manager for use by individuals or families experiencing homelessness.

Waste means any rubbish, solid waste, liquid waste, infectious waste, or medical waste. Waste does not include compost piles, composting or Recyclable Material properly contained and disposed of in a timely fashion.

Waterway means all the portions of the Whitewater River, Tahquitz Creek, Tahquitz Creek Channel, or any flood control channel located within the boundaries of the City of Palm Springs.
§11.40.030 Protection of Waterways
(a) It is unlawful for any person to do any of the following:
(1) build or erect a structure of any type along the banks of any waterway, or drive a nail or other object into any tree or other natural area vegetation for the purpose of building an encampment or any other structure, or to affix an object to any tree or other natural vegetation,
(2) move boulders or large rocks, destroy vegetation, paved roads or paths created by the City, or otherwise reconfigure the natural landscape in the waters of or along the banks of a waterway, (3) drive, park, or bring any vehicle along the banks of a waterway, except in places specifically provided and designated for vehicular use,
(4) dig on the banks of a waterway, or
(5) discharge or store waste, including garbage, refuse, or human or animal waste, along the banks or into the waters of a waterway.

Item 1E - Page 9
(b) Nothing in this section 11.40.030 is intended to prohibit the activities of an owner of private property or other lawful user of private property that are normally associated with and incidental to the lawful and authorized use of private property; and nothing is intended to prohibit the activities of a lawful user if such activities are expressly authorized by the City Manager or by any law, regulation, permit, order or other directive from a regulatory authority.
§11.40.040 Unauthorized Encampments or Sleeping on Public Property (a) It is unlawful for any person to camp or to maintain an encampment in or upon any public property, including in any street, sidewalk, park, open space, waterway, and banks of a waterway, unless specifically authorized by the City Manager.
(b) No person may sleep on public sidewalk, street, alleyway, median, parkway or right of way, or in any pedestrian or vehicular entrance to public or private property abutting a public sidewalk, at any time as a matter of individual and public safety.
(c) At all times, regardless of the availability of shelter space or beds, it is unlawful for any person to camp maintain an encampment, or sleep, where such activity poses:
(1) an immediate threat or an unreasonable risk of harm to any natural person,
(2) an immediate threat or an unreasonable risk of harm to public health or safety, or
(3) disruption to any business, store, religious institution, educational facility, or government services.
(d) At all times, regardless of the availability of shelter space or beds, it is unlawful for any person to camp, maintain an encampment, or sleep, in the following locations:
(1) within two blocks of a school that offers instruction on those courses of study required by the California Education Code or that is maintained pursuant to standards set by the State Board of Education provided that signs are posted prohibiting camping that are clearly visible to pedestrians. School for purposes of this section

11.40.040(c) does not include a vocational or professional institution of higher education, including a community or junior college, college, or university;
(2) within two blocks of any shelter provided that signs are posted prohibiting camping that are clearly visible to pedestrians; (3) in any open space, waterway, or banks of a waterway; (4) within any transit hub or bus shelter, or along any rail tracks provided that signs are posted prohibiting camping that are clearly visible to pedestrians; and
(5) in any park where the City Manager determines there is a substantial public health and safety risk and provided that signs are posted prohibiting camping that are clearly visible to pedestrians. For Item 1E - Page 10
purposes of this section 11.40.040(c)(5), the definition of park does not include open space, as defined in section 11.40.020. §11.40.050 Abatement of Encampments
The City Manager may remove personal property, camping paraphernalia, and all other property, contraband, litter, and waste found at an encampment or at a location where a person is engaged in unlawful camping in compliance with the following procedures:
(a) Written Notice Required Prior to Abatement
(1) A written Notice of Clean-Up, in English and Spanish, will be posted on each tent or structure and in any other distinct areas of the encampment providing notice of the date of clean-up and giving a minimum of 72 hours for persons to remove their personal property.

The written notice shall also include the following statement, which may be updated by the City Manager to provide accurate and current information:

You must remove your belongings from the site within 72 hours. You should not leave behind any belongings you want to keep. All belongings left behind will be removed by the City.

The City will post an Impound Notice, in English and Spanish, if belongings are stored during the clean-up process.

If you wish to minimize the risk of losing valued belongings, you should try to keep those belongings on your person at all times, in a storage facility, or in visible, sanitary, and safely accessible bags or bins.

If you think your belongings were stored, you can claim them by following the directions on the Impound Notice after the clean-up is complete. Information about how to claim your belongings is also available on the City’s website. You may retrieve any stored belongings without being asked about your criminal background or outstanding warrants.

You may access shelter or services, including access to storage for your personal belongings, through the City of Palm Springs’s website or by calling 2-1-1 Palm Springs.
(2) After 72 hours, the City Manager shall be authorized to conduct abatement of the site on the date posted on the Notice of Clean-Up.

If abatement is delayed or rescheduled, the City Manager may conduct abatement within 72 hours of the posted Notice of Clean-Up without reposting a new Notice of Clean-Up. If abatement is delayed longer, the City Manager shall repost a Notice of Clean-Up with a new date.
(b) The City Manager shall follow these additional procedures when persons are present at an encampment during abatement:
(1) When shelter is available, the City Manager shall provide any person at an encampment with shelter and service information and direct them to remove their belongings from the site. The City Manager Item 1E - Page 11
shall evaluate reasonable requests for additional time or assistance to remove items and may accommodate those requests to the extent practicable.
(2) Any person who returns to an encampment during abatement shall be allowed to remove their personal property from the site. Personal property left behind will be deemed abandoned.
(3) Any person arrested for a criminal offense or an outstanding warrant shall not be required to abandon personal property they identify as their own. Unless the person requests the personal property be discarded or entrusted to another, all personal property of apparent value will be taken to the Palm Springs Police Department for impoundment in accordance with existing policy and procedure.

Where the owner of the items cannot be readily identified or discovered, the City Manager shall follow the abatement process in this Chapter.
(c) The City Manager shall document the abatement process as follows:
(1) photograph or video record the site before any abatement begins, (2) open backpacks, purses, suitcases, and other small storage containers to determine whether they contain items eligible for storage,
(3) set out items contained in bags or suitcases, and photograph the items,
(4) photograph or video record all items to be stored,
(5) photograph or video record the cleanup process, and (6) photograph or video record the site after abatement has concluded. (d) Unclaimed items found in abatement shall be eligible for storage if:
(1) circumstances indicate that the item belongs to a person, (2) the item has apparent utility in its current condition and circumstances, and
(3) the item can be safely retrieved from the site.

Examples of items potentially eligible for storage include identification and associated paperwork, medication stored in medication bottles with identifying information, art, art supplies, musical instruments, and items that reasonably appear to have sentimental value in their current condition. An item need not be in a new or perfect condition to have apparent utility.
(e) An eligible item found during an abatement shall be put into storage, unless it meets one the following disqualifying conditions:
(1) hazardous, including items contaminated with human waste or bodily fluid, soiled items likely to expose others to disease, animal waste, or bugs, explosives, weapons, liquids, drug paraphernalia, or mold; (2) likely to become hazardous in storage, including perishables, wet materials that might become moldy, and items covered in mud; (3) practically un-storable, due to large size, weight, or other similar characteristic;
(4) contraband or stolen; or
Item 1E - Page 12
(5) is on the City Manager’s current list of common types of items that, in the experience of City staff, individuals regularly abandon during abatement, and there is no contrary indication as to the specific item. (f) The City Manager shall record each eligible item to be stored, including the location it was found and the date of storage. Any stored items shall be kept in storage at least 90 calendar days and then may be disposed of, recycled, or reused following the process in Palm Springs Municipal Code section 11.40.060 (Abandoned Personal Property).
(g) After abatement has concluded and when eligible items are collected and will be placed in storage, the City Manager shall post notices, in English and Spanish, at the location of the abatement that includes information how a person can claim stored items. Information about retrieval of stored items shall also be available on the City’s website. A person may retrieve stored items based on a description with sufficient specificity to demonstrate ownership. A person may retrieve stored items without inquiry into the person’s criminal background or outstanding warrants.
(h) Expedited Abatement
(1) In an expedited abatement, the City Manager shall follow the same abatement and storage procedures in section 11.40.050 (Abatement of Encampments), but shall post a Notice of Clean-Up, in English and Spanish, giving a minimum of three (3) hours for all persons to remove their personal property.
(2) The City Manager shall prioritize and expedite the removal of an encampment if:
(A) the City receives direction from County of Riverside or other governmental authority that abatement of the
encampment is necessary to preserve public health or safety, including to address known or suspected outbreaks of
diseases; or
(B) the City Manager observes or reasonably suspects the encampment creates a condition that presents a significant risk of property damage, bodily injury or death.
§11.40.060 Abandoned Personal Property
(a) Any personal property or possessions located on Public Property that are unattended and whose owner cannot be readily identified are presumed to be abandoned and, pursuant to Civil Code section 2080.7, the provisions of Municipal Code section 7.07.020 (Disposition of Surplus Property) do not apply. Enforcement Officials shall make a reasonable effort to ascertain whether the unattended personal property or possessions have been abandoned and, if so, to thereafter cause their removal. Any personal property or possessions found during the abatement process in Municipal Code section 11.40.050 shall first be stored as required by that section. (b) Unattended personal property or possessions that are unsanitary, soiled or verminous may be summarily abated and destroyed. Unattended personal property or possessions that are not summarily abated or destroyed under Item 1E - Page 13
this section may be disposed of or recycled by the City Manager or donated for reuse.
§11.40.070 Enforcement & Administrative Regulations
(a) Violations of this Chapter may be prosecuted as misdemeanors subject to the fines and custody provisions in Palm Springs Municipal Code section

1.01.160.
(b) Law enforcement officers shall not enforce a violation of subsections

11.40.040(a) or 11.40.040(b), or both, between the hours of 9:00 p.m. and 6:00 a.m. or when the person is on public property at a time when there is no available shelter. For purposes of this Section, available shelter means the shelter is reasonably available to that specific person at the time the proposed enforcement is taking place, taking into consideration any disability or other specific circumstances applicable to that person. (c) Sections 11.40.030 and 11.40.040 (c) and (d) are enforceable at all times regardless of shelter availability.
(d) The City Manager and Police Chief shall each have the authority to, and shall, issue administrative regulations in order to implement the administration and enforcement of this Chapter. Such regulations shall include, but not be limited to, processes for the provision of information regarding housing and other social services prior to citation or arrest of individuals, as well as a process for determining whether and how many shelter beds are available at a given time. Such regulations shall be posted and maintained on the City’s Police Department website. City staff shall bring back to City Council, as a receive and file agenda item, any such administrative regulations, and any amendments thereto.” Section 6. That this Ordinance shall take effect and be in force on the thirtieth day from and after its final passage or on the date the second phase of the City’s Navigation Center is open for use, whichever is later.

PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY
COUNCIL THIS _____ DAY OF ______________, 2024.

JEFFREY BERNSTEIN
MAYOR
ATTEST:

BRENDA PREE, MMC

CITY CLERK
Item 1E - Page 14

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 introduced at a regular meeting of the Palm Springs City Council on _________ and adopted at a regular meeting of the City Council held on __________ 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 ______________, 2024.

BRENDA PREE, MMC

CITY CLERK
Item 1E - Page 15

CITY COUNCIL STAFF REPORT
DATE: JULY 25, 2024 CONSENT CALENDAR
SUBJECT: APPROVAL OF THREE (3) PROFESSIONAL SERVICES AGREEMENTS WITH ALBERT A. WEBB ASSOCIATES, A CALIFORNIA CORPORATION, KIMLEY-HORN AND ASSOCIATES, INC., A NORTH CAROLINA
CORPORATION, AND TJKM, A CALIFORNIA CORPORATION, FOR ONCALL TRAFFIC ENGINEERING SERVICES FROM: Scott C. Stiles, City Manager
BY: Engineering Services Department
SUMMARY:

Approval of this item will allow the Engineering Services Department to enter into fiveyear professional services agreements to provide Traffic Engineering Services for a variety of public works projects.

RECOMMENDATION:

1. Approve Professional Services Agreement No. _____ with Albert A. Webb Associates, a California corporation, to provide “on-call” Traffic Engineering services for an initial three (3) year term, subject to two (2) additional one (1) year extensions approved at the discretion of the City Manager for an amount not to exceed $5,000,000; and

2. Approve Professional Services Agreement No. _____ with Kimley-Horn and Associates, Inc., a North Carolina corporation, to provide “on-call” Traffic Engineering services for an initial three (3) year term, subject to two (2) additional one (1) year extensions approved at the discretion of the City Manager for an amount not to exceed $5,000,000; and

3. Approve Professional Services Agreement No. _____ with TJKM, a California corporation, to provide “on-call” Traffic Engineering services for an initial three (3) year term, subject to two (2) additional one (1) year extensions approved at the discretion of the City Manager for an amount not to exceed $5,000,000; and

4. Authorize the City Manager or designee to execute all necessary Agreements and execute all task orders that fall under the Agreement value.

BUSINESS PRINCIPAL DISCLOSURE:

Copies of the Public Integrity Disclosure form for the awarded firms are included as Attachment A.

Item 1F - Page 1
City Council Staff Report
July 25, 2024 -- Page 2
On-Call Traffic Engineering Agreements
BACKGROUND:

The City of Palm Springs Engineering Services Department requires as-needed “On-Call” Traffic Engineering Services for a variety of future capital improvement projects. The full extent of required testing services is not known at the present time; however, generally the Department anticipates the need for traffic engineering services for various budgeted projects.

In order to adequately prepare for the variety of projects that the City may undertake in the years to follow, it is important that the City have resources available to quickly provide the professional traffic engineering services related to those projects. Currently, the City has two on-call traffic engineering firms available to perform services for the City’s various projects:
• Albert A. Webb Associates (Webb)
• Kimley-Horn and Associates (Kimley-Horn)
These firms have provided services to the City for past projects since 2019; however, their existing contracts have the following term limits: an initial term of three years, with two one-year extensions upon approval of the City Manager and mutual consent of the above Consultants, for a total maximum term of five years.

Since Webb and Kimley-Horn are in the final months of their contracts with the City, Staff solicited a Request for Qualifications (RFQ) under TE RFQ #20-24, for “On-Call” Traffic Engineering Services. By requesting RFQ’s periodically, the City positions itself to work with the most qualified firms and use of competitive pricing. The RFQ was written to ensure that the selected firms have demonstrated successful experience and capacity to provide traffic engineering services to a municipal government agency for these types of projects anticipated to be undertaken in the years to come.

STAFF ANALYSIS:

On May 29, 2024, the RFQ for “On-Call” Traffic Engineering Services was published in the Desert Sun and posted through the City’s on-line bid management system PlanetBidsTM . By the June 26, 2024 deadline, a total of five (5) proposals were received:

Firm Location
Advantec Consulting Engineers Irvine
Albert A. Webb Associates Riverside
Kimley-Horn & Associates Los Angeles
LLG Irvine
TJKM Pleasanton
Following a review of the proposals by a selection committee, the top three ranking firms, Albert A. Webb Associates, Kimley-Horn & Associates Inc., and TJKM were selected.

Item 1F - Page 2
City Council Staff Report
July 25, 2024 -- Page 3
On-Call Traffic Engineering Agreements
Staff recommends that the City Council approve Professional Services Agreements with each of these firms to provide the requested services for the City. A copy of the Agreement is included as Attachment B. The important points for City Council consideration related to these Agreements include:
• Contract Sum: Section 2.1 “Maximum Contract Amount” reflects the on-call nature of the Agreement, in that there is no defined cost other than the consultant’s schedule of hourly rates and fees identified in Exhibit “D” of the agreements. This fact is reflected in Section 2.1 of the Agreement, which states:

City and Consultant hereby acknowledge and agree that the Services required by this Agreement will vary dependent upon the number, type, and extent of the Services the Consultant shall provide; and no guarantee of the extent or the type of Services required of Consultant under the terms of this Agreement is made by the City. Consultant shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the fee schedule set forth in Exhibit “D”. The total amount of Compensation for the duration of the term of this agreement, as defined in Section 3.4, shall not exceed $ 5,000,000. The annual level of services required by this Agreement is unknown and may significantly increase or decrease from year to year. In acknowledgement of the fact that the number and type of projects requiring the Consultant’s Services has not been identified for this Agreement, City and Consultant hereby acknowledge and agree that a specific “Maximum Contract Amount” shall be imposed on each separate project that the City may assign Consultant as provided in Section

1.8 and in this Section 2.1.

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. According to Section 15378(b), 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:

This Project aligns with City Council Priority 2B – Five (5) year Capital Improvement Projects with specific actions.

Item 1F - Page 3
City Council Staff Report
July 25, 2024 -- Page 4
On-Call Traffic Engineering Agreements
FISCAL IMPACT:

The proposed agreements provide services to the City as on-call agreements and have no specific contract sum. The scope of services required by these agreements will vary, dependent upon the number and type of projects assigned to the various firms. The annual level of on-call services required by these agreements is unknown and may significantly increase or decrease from year to year.

Expenditures for individual “Task Orders” approved for specific assignments associated with capital projects will be encumbered from funding previously budgeted and appropriated for that capital project.

REVIEWED BY:

City Engineer Joel Montalvo
Deputy City Manager: Flinn Fagg
City Manager: Scott Stiles
ATTACHMENTS:

A. Public Integrity Disclosure Forms
B. Sample Agreement
Item 1F - Page 4
Attachment A
Item 1F - Page 5
Kimley-Horn and Associates, Inc.
660 S. Figueroa St., Suite. 2050 Los Angeles, CA 90017
North Carolina
421 Fayetteville Street, Suite 600 Raleigh, NC 27601
Please see attached list of principals
and officers.

Item 1F - Page 6

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

EXAMPLE

JANE DOE
50%, ABC COMPANY, Inc.
[percentage of beneficial interest in entity and
[name of owner/investor] name of entity]
A.
[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 PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.

Signature of Disclosing Party, Printed Name, litle Date

Jean B. Fares, PE, Senior Vice President
June 24, 2024
Please see statement in
the attachment.

Item 1F - Page 7
Please see the following list of KH Principal Officers and Directors, which has been updated as of April 14, 2024.

PRINCIPAL OFFICERS:

Names/Titles Business Address
Barry L. Barber, Chairman 421 Fayetteville Street, Suite 600, Raleigh, NC 27601
Steven E. Lefton, President, CEO 11400 Commerce Park Drive, Suite 400, Reston, VA 20191
Aaron W. Nathan, Chief Operating Officer, Executive
Vice President
801 Cherry Street, Unit 1, Suite 301
Fort Worth, TX 76102
Richard N. Cook, Secretary, Senior Vice President 421 Fayetteville Street, Suite 600, Raleigh, NC 27601
Tammy L. Flanagan, CFO, Executive Vice President 421 Fayetteville Street, Suite 600, Raleigh, NC 27601
David L. McEntee, Senior Vice President, Treasurer 421 Fayetteville Street, Suite 600, Raleigh, NC 27601
DIRECTORS:

Names/Titles Business Address
Barry L. Barber, Chairman 421 Fayetteville Street, Suite 600, Raleigh, NC 27601
Stephen W. Blakley, Jr., Senior Vice President 200 South Tryon Street, Suite 200, Charlotte, NC 28202
Scott W. Colvin, Executive Vice President 4582 South Ulster Street, Suite 1500, Denver, CO 80237
Bill Dvorak, Jr., Executive Vice President 111 West Jackson Boulevard, Suite 1320, Chicago, IL 60604
Tammy L. Flanagan, Executive Vice President 421 Fayetteville Street, Suite 600, Raleigh, NC 27601
Ashley M. Frysinger, Senior Vice President 11700 Katy Freeway, Suite 800, Houston, TX 77079
Brian A. Good, Senior Vice President 445 24th Street, Vero Beach, FL 32960 Jennifer L. Harry, Senior Vice President 401 B Street, Suite 600, San Diego, CA 92101 Joseph D. Kaltsas, Executive Vice President 401 B. Street, Suite 600, San Diego, CA 92101 Steven E. Lefton, President, CEO 11400 Commerce Park Drive, Suite 400, Reston, VA 20191
Brent H. Mutti, Executive Vice President 1001 West Southern Avenue, Suite 131, Mesa, AZ 85210
Aaron W. Nathan, Executive Vice President,
Chief Operating Officer
13455 Noel Road, Suite 700, Dallas, TX 75240
Kevin M. Schanen, Senior Vice President 1920 Wekiva Way, Suite 200, West Palm Beach, FL 33411
Kimley-Horn and Associates, Inc. is wholly owned by Associates Group Services, Inc., which is wholly owned by APHC, Inc., which is owned by over 800 Kimley-Horn employees, none of which own 2% or more of the outstanding shares.

Item 1F - Page 8
27 Albert A. Webb Associates
3788 McCray Street, Riverside, CA 92506
California
X
Item 1F - Page 9
28 Matt Webb
Scott Webb
Steve Webb
34%, Albert A. Webb Associates
33%, Albert A. Webb Associates
33%, Albert A. Webb Associates
Dilesh Sheth, Vice President
6/26/24
Item 1F - Page 10
California
x
x
Ruta Jariwala x
Nayan Amin
4305 Hacienda Drive, Suite 550, Pleasanton, CA 94588
4305 Hacienda Drive, Suite 550, Pleasanton, CA 94588

T J K M
Item 1F - Page 11
50% ,T J K M
50%, T J K M
5%
Nayan Amin
Ruta Jariwala
Nayan Amin, President 6/24/24
Item 1F - Page 12
Attachment B
Item 1F - Page 13

CITY OF PALM SPRINGS

PROFESSIONAL SERVICES AGREEMENT
ON-CALL xxxxxxxxxxxxxx SERVICES
(SAMPLE AGREEMENT – INTENTIONALLY INCOMPLETE)
THIS PROFESSIONAL SERVICES AGREEMENT (hereinafter “Agreement”) is made and entered into, to be effective this _____ day of _____________, 2024, by and between the CITY OF PALM SPRINGS, a California charter city and municipal corporation, (hereinafter referred to as “City”) and xxxxxxxxxxxxx , (hereinafter referred to as “Consultant”). City and Consultant are sometimes hereinafter individually referred to as “Party” and are hereinafter collectively referred to as the “Parties.”

RECITALS
A. City has determined that there is a need for As-Needed, “On-Call” xxxxxxxxxx Services for a variety of future xxxxxxxxxxx projects, (hereinafter the “Project”).

B. Consultant has submitted to City a proposal to provide As-Needed, “On-Call” xxxxxxxxxxxxxx Services for a variety of future xxxxxxxxxxxx projects to City pursuant to the terms of this Agreement.

C. Consultant is qualified by virtue of its experience, training, education, reputation, and expertise to provide these services and has agreed to provide such services as provided herein.

D. City desires to retain Consultant to provide such professional services.

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:

1.0 SERVICES OF CONSULTANT

1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant agrees to perform the professional services set forth in the Scope of Services described in Exhibit “A,” which is attached hereto and is incorporated herein by reference (hereinafter referred to as the “Services” or “Work”). The Services shall be more particularly described in the individual Task Order issued by the City. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that this Agreement requires specialized skills and abilities and is consistent with this understanding, Consultant is a provider of first class work and professional services and that Consultant is experienced in performing the Work contemplated herein and, in light of such status and experience, Consultant covenants that it shall perform the Work 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.

1.2 Contract Documents. The Agreement between the Parties shall consist of the following: (1) this Agreement; (2) the Scope of Services; (3) the City’s Request for Proposals (4) the Consultant’s signed, original proposal submitted to the City (“Consultant’s Proposal”); (5) Fee Schedule; and (5) the Task Order (as defined herein) (collectively referred to as the “Contract Item 1F - Page 14

Documents”). The City’s Request for Proposals and the Consultant’s Proposal, which is attached as Exhibits “B” and “C” respectively, is incorporated by reference and are made a part of this Agreement.

The Scope of Services shall include the Consultant’s Proposal. All provisions of the Scope of Services, Task Order, the City’s Request for Proposals and the Consultant’s Proposal shall be binding on the Parties. Should any conflict or inconsistency exist in the Contract Documents, the conflict or inconsistency shall be resolved by applying the provisions in the highest priority document, which shall be determined in the following order of priority: (1st) the terms of this Agreement; (2nd) the provisions of the Task Order; (3rd) Scope of Services (Exhibit “A”), as may be amended from time to time; (4th) the provisions of the City’s Request for Qualifications (Exhibit “B”); and (5th) the provisions of the Consultant’s Proposal.

1.3 Compliance with Law. Consultant warrants that all Services rendered hereunder shall be performed in accordance with all applicable federal, state, and local laws, statutes, and ordinances and all lawful orders, rules, and regulations promulgated thereunder, including without limitation all applicable Cal/OSHA requirements. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.

1.4 Licenses, Permits, Fees and Assessments. Consultant represents and warrants to City that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession and perform the Work required by this Agreement. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, qualification, or approval that is legally required for Consultant to perform the Work under this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant's performance of the Work required by this Agreement, and shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes penalties, or interest levied, assessed, or imposed against City hereunder.

1.5 Familiarity with Work. By executing this Agreement, Consultant warrants that Consultant (a) has thoroughly investigated and considered the Scope of Services to be performed, (b) has carefully considered how the Services should be performed, and (c) fully understands the facilities, difficulties, and restrictions attending performance of the Services under this Agreement. If the Services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of any Services hereunder. Should the Consultant discover any latent or unknown conditions that will materially affect the performance of the Services hereunder, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the City.

1.6 Care of Work. Consultant shall adopt reasonable methods during the term of the Agreement to furnish continuous protection to the Work and the equipment, materials, papers, documents, plans, studies, and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Work by the City, except such losses or damages as may be caused by City's own negligence.

Item 1F - Page 15

1.7 Further Responsibilities of Parties. Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement.

1.8 Performance of Services. City Manager or Director of Engineering/City Engineer, as provided in Section 2.1 of this Agreement, shall have the right at any time during the term of this Agreement to order the performance of services as generally described in the Scope of Services to perform extra or additional work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from such Work. No Work may be undertaken unless a written order is first given by the City Manager or the Director of Engineering/City Engineer to the Consultant, incorporating therein the identification and description of the Work to be performed, a maximum or not to exceed amount for such Work, and the time to perform the Work.

1.9 Unauthorized Aliens. Consultant hereby represents and warrants that it will comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of any Work under this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to reimburse City for any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, or penalties which arise out of or are related to such employment, together with any and all costs, including attorneys' fees, incurred by City.

2.0 COMPENSATION

2.1 Maximum Contract Amount. City and Consultant hereby acknowledge and agree that the Services required by this Agreement will vary dependent upon the number, type, and extent of the Services the Consultant shall provide; and no guarantee of the extent or the type of Services required of Consultant under the terms of this Agreement is made by the City. Consultant shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the fee schedule set forth in Exhibit “D”. The total amount of Compensation for the duration of the term of this agreement, as defined in Section 3.4, shall not exceed $ 5,000,000.

The annual level of services required by this Agreement is unknown and may significantly increase or decrease from year to year. In acknowledgement of the fact that the number and type of projects requiring the Consultant’s Services has not been identified for this Agreement, City and Consultant hereby acknowledge and agree that a specific “Maximum Contract Amount” shall be imposed on each separate project that the City may assign Consultant as provided in Section 1.8 and in this Section 2.1.

Each such separate project shall be identified as a Task Order authorized by the Signatory Entity as provided in this Section 2.1. The signatory entity and signing limits are as follows:
 City Manager – over $50,000
 Deputy/Assistant City Manager – up to $50,000
 Director – up to $25,000
 Manager – up to $5,000
Item 1F - Page 16

The method of compensation for each separate City authorized Task Order may include: (i) a lump sum payment upon completion, (ii) payment for time and materials based upon the Consultant's Schedule of Hourly Billing Rates (Fee Schedule) as shown on Exhibit “D”, or (iii) such other methods as may be specified in the Schedule of Compensation. Compensation shall include reimbursement for actual and necessary expenditures for reproduction costs, telephone expense, transportation expense, and all other necessary expenditures required to perform the professional services under this Agreement.

Compensation shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City; Consultant shall not be entitled to any additional compensation for attending said meetings. Consultant hereby acknowledges that it accepts the risk that the Services to be provided pursuant to the Scope of Services may be more costly or time consuming than Consultant anticipates, and that Consultant shall not be entitled to additional compensation, therefore.

It is expressly agreed that the maximum contract amount of this Agreement is undefined and is subject to the number and type of projects requiring the Consultant’s Services throughout the duration of the term of this Agreement, if any. Consultant’s compensation shall be limited to the Maximum Contract Amount identified on each separate, individually authorized Task Order corresponding to a project requiring the services of the Consultant.

By approval of this Agreement, the City Council hereby authorizes the subsequent approval of individual Task Orders (Purchase Orders) in those amounts sufficient to cover the cost of required Services necessary for the projects.

2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation (Exhibit “D”), in any month in which Consultant wishes to receive payment, no later than the tenth (10) working day of such month, Consultant shall submit to the City, in a form approved by the City’s Finance Director, an invoice for Services rendered prior to the date of the invoice. Such requests shall be based upon the amount and value of the Services performed by Consultant and accompanied by such reporting data including an itemized breakdown of all costs incurred and tasks performed during the period covered by the invoice, as may be required by the City. City shall use reasonable efforts to make payments to Consultant within forty-five (45) days after receipt of the invoice or a soon thereafter as is reasonably practical. There shall be a maximum of one payment per month.

2.3 Changes in Scope. In the event any change or changes in the Scope of Services is requested by the City, the Parties shall execute a written amendment to this Agreement, setting forth with particularity all terms of such amendment, including, but not limited to, any additional professional fees. An amendment may be entered into: (a) to provide for revisions or modifications to documents or other work product or work when documents or other work product or work is required by the enactment or revision of law subsequent to the preparation of any documents, other work product, or work; and/or (b) to provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant’s profession.

2.4 Appropriations. This Agreement is subject to and contingent upon funds being appropriated therefore by the Palm Springs City Council for each fiscal year covered by the Agreement.

If such appropriations are not made, the City Manager may terminate this Agreement as provided in Section 8.3 of this Agreement; otherwise, there shall be no funding for any Services and Consultant shall not be entitled to payment for any Services that Consultant may provide.

Item 1F - Page 17

3. SCHEDULE OF PERFORMANCE

3.1 Time of Essence. Time is of the essence in the performance of this Agreement. The time for completion of the Services to be performed by Consultant is an essential condition of this Agreement. Consultant shall prosecute regularly and diligently the Work of this Agreement according to the agreed upon Schedule of Performance for each Task Order. 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 Consultant to any additional compensation regardless of the Party responsible for the delay.

3.2 Schedule of Performance. Consultant shall commence the Services pursuant to this Agreement upon receipt of a written Task Order and shall perform all Services within the time period(s) established in the Schedule of Performance. When requested by Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer, but such extensions shall not exceed one hundred eighty (180) days cumulatively; however, the City shall not be obligated to grant such an extension.

3.3 Force Majeure. The time for performance of Services to be rendered under each Task Order may be extended because of any delays due to a Force Majeure Event, if Consultant 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 Consultant’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 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 Consultant notification, the Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing the 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 Parties to this Agreement. The Consultant 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.

3.4 Term. Unless earlier terminated under the terms of this Agreement, this Agreement shall continue in full force and effect for three (3) years from the effective date of this Agreement. At the sole discretion of the City Manager, upon written notice to Consultant and mutual agreement, the term of this Agreement may be extended for two (2) additional one (1) year terms.

4. COORDINATION OF WORK

4.1 Representative of Consultant. The following principal of Consultant is hereby designated as being the principal and representative of Consultant authorized to act in its behalf with Item 1F - Page 18

respect to the Services to be performed under this Agreement and make all decisions in connection therewith: xxxxxxxxxxxxx. It is expressly understood that the experience, knowledge, education, capability, expertise, 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 Consultant and devoting sufficient time to personally supervise the services performed hereunder. The foregoing principal may not be changed by Consultant without prior written approval of the Contract Officer.

4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City and is subject to change by the City Manager. It shall be the Consultant's responsibility to ensure that the Contract Officer is kept fully informed of the progress of the performance of the Services, and the Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.

4.3 Prohibition Against Subcontracting or Assignments. The experience, knowledge, education, capability, and reputation of Consultant, its principals and employees, were a substantial inducement for City to enter into this Agreement. Consultant shall not contract with any other individual or entity to perform any Services 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 Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to City for the acts and omissions of its subconsultant(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subconsultant and City. All persons engaged in the Work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written consent of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release Consultant or any surety of Consultant from any liability hereunder without the express written consent of City.

4.4 Independent Consultant.

A. The legal relationship between the Parties is that of an independent Consultant, and nothing herein shall be deemed to make Consultant a City employee. During the performance of this Agreement, Consultant and its officers, employees, and agents shall act in an independent capacity and shall not act as City officers or employees. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of its officers, employees, or agents, except as set forth in this Agreement.

Consultant, its officers, employees, or agents shall not maintain an office or any other type of fixed Item 1F - Page 19

business location at City’s offices. City shall have no voice in the selection, discharge, supervision, or control of Consultant’s employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Consultant shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, including but not limited to social security income tax withholding, unemployment compensation, workers’ compensation, and other similar matters. City shall not in any way or for any purpose be deemed to be a partner of Consultant in its business or otherwise a joint ventures or a member of any joint enterprise with Consultant.

B. Consultant shall not incur or have the power to incur any debt, obligation, or liability against City, or bind City in any manner.

C. No City benefits shall be available to Consultant, its officers, employees, or agents in connection with any performance under this Agreement. Except for professional fees paid to Consultant as provided for in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for the performance of Services under this Agreement. City shall not be liable for compensation or indemnification to Consultant, its officers, employees, or agents, for injury or sickness arising out of performing Services hereunder. If for any reason any court or governmental agency determines that the City has financial obligations, other than pursuant to Section 2 and Subsection 1.8 herein, of any nature relating to salary, taxes, or benefits of Consultant’s officers, employees, servants, representatives, subconsultants, or agents, Consultant shall indemnify City for all such financial obligations.

4.5 California Labor Code Requirements.

A. Consultant 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 Services 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, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, 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 mandatory upon the Consultant 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 Consultant and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Consultant 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 Item 1F - Page 20

shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements.

5. INSURANCE

5.1 Types of Insurance. Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, the insurance described herein for the duration of this Agreement, including any extension thereof, or as otherwise specified herein, against claims which may arise from or in connection with the performance of the Work hereunder by Consultant, its agents, representatives, or employees. In the event the City Manager determines that the Work or Services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the City Manager or his designee. Consultant shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified herein. Except as otherwise authorized below for professional liability (errors and omissions) insurance, all insurance provided pursuant to this Agreement shall be on an occurrence basis. The minimum amount of insurance required hereunder shall be as follows:

A. Errors and Omissions Insurance. Consultant shall obtain and maintain in full force and effect throughout the term of this Agreement, standard industry form professional liability (errors and omissions) insurance coverage in an amount of not less than one million dollars ($1,000,000.00) per occurrence and two-million dollars ($2,000,000.00) annual aggregate, in accordance with the provisions of this section.
(1) Consultant shall either: (a) certify in writing to the City that Consultant is unaware of any professional liability claims made against Consultant and is unaware of any facts which may lead to such a claim against Consultant; or (b) if Consultant does not provide the certification pursuant to (a), Consultant shall procure from the professional liability insurer an endorsement providing that the required limits of the policy shall apply separately to claims arising from errors and omissions in the rendition of services pursuant to this Agreement.
(2) If the policy of insurance is written on a “claims made” basis, the policy shall be continued in full force and effect at all times during the term of this Agreement, and for a period of three (3) years from the date of the completion of the Services provided hereunder. In the event of termination of the policy during this period, Consultant shall obtain continuing insurance coverage for the prior acts or omissions of Consultant during the course of performing Services under the terms of this Agreement. The coverage shall be evidenced by either a new policy evidencing no gap in coverage, or by obtaining separate extended “tail” coverage with the present or new carrier or other insurance arrangements providing for complete coverage, either of which shall be subject to the written approval by the City Manager.
(3) In the event the policy of insurance is written on an “occurrence” basis, the policy shall be continued in full force and effect during the term of this Agreement, or until completion of the Services provided for in this Agreement, whichever is later. In the event of termination of the policy during this period, new coverage shall immediately be obtained to ensure coverage during the entire course of performing the Services under the terms of this Agreement.

Item 1F - Page 21

B. Workers’ Compensation Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, workers’ compensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. Consultant agrees to waive and obtain endorsements from its workers’ compensation insurer waiving subrogation rights under its workers’ compensation insurance policy against the City and to require each of its subconsultants, if any, to do likewise under their workers’ compensation insurance policies. If Consultant has no employees, Consultant shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.

C. Commercial General Liability Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least one million dollars ($1,000,000.00) and two million dollars ($2,000,000.00) general aggregate for bodily injury and property damage including coverages for contractual liability, personal injury, independent Consultants, broad form property damage, products and completed operations.

D. Business Automobile Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of one million dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for owned, non-owned, leased, and hired cars.

E. Employer Liability Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of employer liability insurance written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease.

5.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City Manager prior to commencing any work or services under this Agreement. Consultant guarantees payment of all deductibles and self-insured retentions. City reserves the right to reject deductibles or self-insured retentions in excess of $10,000, and the City Manager may require evidence of pending claims and claims history as well as evidence of Consultant’s ability to pay claims for all deductible amounts and self-insured retentions proposed in excess of $10,000.

5.3 Other Insurance Requirements. The following provisions shall apply to the insurance policies required of Consultant pursuant to this Agreement:

A. For any claims related to this Agreement, Consultant’s coverage shall be primary insurance as respects City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of Consultant’s insurance and shall not contribute with it.

B. Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and its officers, council members, Item 1F - Page 22

officials, employees, agents, and volunteers.

C. All insurance coverage and limits provided by Consultant and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made, or suit is brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage.

D. None of the insurance coverages required herein will be in compliance with these requirements if they include any limiting endorsement which substantially impairs the coverages set forth herein (e.g., elimination of contractual liability or reduction of discovery period), unless the endorsement has first been submitted to the City Manager and approved in writing.

E. Consultant agrees to require its insurer to modify insurance endorsements to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, and submittal of certificates without required endorsements may delay commencement of the Project. It is Consultant’s obligation to ensure timely compliance with all insurance submittal requirements as provided herein.

F. Consultant agrees to ensure that subconsultants, and any other parties involved with the Project who are brought onto or involved in the Project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with subconsultants and others engaged in the Project will be submitted to the City for review.

G. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights hereunder in this or any other regard.

H. Consultant shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration.

Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration of the lapsing coverage.

I. Requirements of specific insurance coverage features, or limits contained in this section are not intended as limitations on coverage, limits, or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be limiting or all-inclusive.

J. The requirements in this section supersede all other sections and provisions of this Item 1F - Page 23

Agreement to the extent that any other section or provision conflicts with or impairs the provisions of this section.

K. Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising out of the Work performed under this Agreement and for any other claim or loss which may reduce the insurance available to pay claims arising out of this Agreement. City assumes no obligation or liability by such notice but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to reduce or dilute insurance available for payment of potential claims.

L. Consultant agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages resulting from the Consultant’s activities or the activities of any person or person for which the Consultant is otherwise responsible.

5.4 Sufficiency of Insurers. Insurance required herein 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 such requirements are waived in writing by the City Manager or his designee due to unique circumstances.

5.5 Verification of Coverage. Consultant 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 Consultant’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 1F - Page 24

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 Consultant’s obligation to provide them.

6. INDEMNIFICATION

6.1 To the fullest extent permitted by law, Consultant shall defend (at Consultant’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 from injuries to or death of persons (Consultant’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 Consultant, its officers, employees, representatives, and agents, that arise out of or relate to Consultant’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 Consultant’s indemnification obligation or other liability under this Agreement. Consultant’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.

6.2 If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’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, Consultant’s indemnification obligation shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant in the performance of the Services or this Agreement, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.

7. REPORTS AND RECORDS

7.1 Accounting Records. Consultant shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Consultant shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and to 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 times, Item 1F - Page 25

including the right to inspect, copy, audit, and make records and transcripts from such records.

7.2 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of the Work to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Work contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Officer of such fact, circumstance, technique, or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.

7.3 Ownership of Documents. All drawings, specifications, reports, records, documents, memoranda, correspondence, computations, and other materials prepared by Consultant, its employees, subconsultants, and agents in the performance of this Agreement shall be the property of City and shall be promptly delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder.

Any use of such completed documents for other projects and/or use of incomplete documents without specific written authorization by the Consultant will be at the City's sole risk and without liability to Consultant, and the City shall indemnify the Consultant for all damages resulting therefrom. Consultant may retain copies of such documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. Consultant shall ensure that all its subconsultants shall provide for assignment to City of any documents or materials prepared by them, and in the event, Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom.

7.4 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Consultant in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. All information gained by Consultant in the performance of this Agreement shall be considered confidential and shall not be released by Consultant without City’s prior written authorization.

7.5 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, Consultant shall provide City, or other agents of City, such access to Consultant’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 Consultant’s performance under this Agreement. Consultant 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.

8. ENFORCEMENT OF AGREEMENT

8.1 California Law and Venue. This Agreement shall be construed and interpreted both as to validity and as to performance of the Parties in accordance with the laws of the State of California.

Item 1F - Page 26

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 Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.

8.2 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.

8.3 Termination. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant. Where termination is due to the fault of Consultant 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 termination, Consultant shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all Services 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. Consultant shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. Consultant may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.

8.4 Default of Consultant.

A. Consultant’s failure to comply with any provision of this Agreement shall constitute a default.

B. If the City Manager, or his designee, determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify Consultant in writing of such default. Consultant shall have ten (10) days, or such longer period as City may designate, to cure the default by rendering satisfactory performance. In the event Consultant fails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. Consultant shall be liable for any and all reasonable costs incurred by City as a result of such default. Compliance with the provisions of this section shall not constitute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City’s right to terminate this Agreement without cause pursuant to Section 8.3.

C. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 8.4.B, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the Maximum Contract Amount (provided that the City shall use reasonable efforts to mitigate such damages), and Item 1F - Page 27

City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated. The withholding or failure to withhold payments to Consultant shall not limit Consultant’s liability for completion of the Services as provided herein.

8.5 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition, or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default or breach, nor shall failure by the Parties to require exact, full, and complete compliance with any of the covenants, conditions, or terms contained in this Agreement be construed as changing the terms of this Agreement in any manner or preventing the Parties from enforcing the full provisions hereof.

8.6 Rights and Remedies 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 and the exercise by either Party 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.

8.7 Legal Action. In addition to any other rights or remedies, either Party 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 declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.

8.8 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, including but not limited to reasonable attorney fees, expert consultant fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding.

9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION

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

9.2 Conflict of Interest. Consultant acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement, nor shall Consultant enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. Consultant warrants that Consultant 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.

9.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Consultant 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 Item 1F - Page 28

orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Consultant 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 enter this Agreement, and in executing this Agreement, Consultant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Consultant 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 Consultant 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.

10. MISCELLANEOUS PROVISIONS

10.1 Patent and Copyright Infringement.

A. To the fullest extent permissible under law, and in lieu of any other warranty by City or Consultant against patent or copyright infringement, statutory or otherwise, it is agreed that Consultant shall defend at its expense any claim or suit against City on account of any allegation that any item furnished under this Agreement, or the normal use or sale thereof arising out of the performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright and Consultant shall pay all costs and damages finally awarded in any such suit or claim, provided that Consultant is promptly notified in writing of the suit or claim and given authority, information and assistance at Consultant’s expense for the defense of same, and provided such suit or claim arises out of, pertains to, or is related to the negligence, recklessness or willful misconduct of Consultant. However, Consultant will not indemnify City if the suit or claim results from: (1) City's alteration of a deliverable, such that City’s alteration of such deliverable created the infringement upon any presently existing U.S. letters patent or copyright; or (2) the use of a deliverable in combination with other material not provided by Consultant when it is such use in combination which infringes upon an existing U.S. letters patent or copyright.

B. Consultant shall have sole control of the defense of any such claim or suit and all negotiations for settlement thereof, Consultant shall not be obligated to indemnify City under any settlement made without Consultant’s consent or in the event City fails to cooperate in the defense of any suit or claim, provided, however, that such defense shall be at Consultant’s expense. If the use or sale of such item is enjoined as a result of the suit or claim, Consultant, at no expense to City, shall obtain for City the right to use and sell the item, or shall substitute an equivalent item acceptable to City and extend this patent and copyright indemnity thereto.

10.2 Notices. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered, sent by pre-paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with attached evidence of completed transmission, and shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) five (5) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by facsimile. Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other Item 1F - Page 29

forms of electronic transmission such as e-mails, text messages, instant messages are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows:

To City: City of Palm Springs
Attention: City Manager
3200 E. Tahquitz Canyon Way
Palm springs, California92262
Telephone: (760) 323-8204
Facsimile: (760) 323-8332

To Consultant: xxxxxxxxxxxxxxxxxxxxxxx

10.3 Entire 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 hereof. No amendments or other modifications of this Agreement shall be binding unless executed in writing by both Parties hereto, or their respective successors, assigns, or grantees.

10.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be determined to be invalid by a final judgment or decree of a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the reminder of that provision, or the remaining provisions of this Agreement unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.

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

10.6 Third Party Beneficiary. Except as may be expressly provided for herein, 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 hereto.

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

10.8. Corporate Authority. Each of the undersigned represents and warrants that (i) the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which the Party for which he or she is signing is bound.

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

Item 1F - Page 30

10.10 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.
[SIGNATURES ON FOLLOWING PAGE]
Item 1F - Page 31

SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND [***INSERT NAME***]
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
Item 1F - Page 32

EXHIBIT “A”

SCOPE OF SERVICES

Item 1F - Page 33

EXHIBIT “B”

REQUEST FOR QUALIFICATIONS

Item 1F - Page 34

EXHIBIT “C”

CONSULTANT SIGNED PROPOSAL
Item 1F - Page 35

EXHIBIT “D”

FEE SCHEDULE

Item 1F - Page 36

EXHIBIT “E”
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 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 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 N6-22 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 1F - Page 37

CITY COUNCIL STAFF REPORT
DATE: JULY 25, 2024 CONSENT CALENDAR
SUBJECT: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM

SPRINGS, CALIFORNIA, APPOINTING AN INTERIM RETIRED

ANNUITANT TO THE VACANCY POSITION OF DIRECTOR OF PARKS

AND RECREATION FOR THE CITY OF PALM SPRINGS UNDER
GOVERNMENT CODE SECTION 21221(H) EFFECTIVE JULY 29, 2024 FROM: Scott C. Stiles, City Manager
BY: Stephanie George, Director of Human Resources
SUMMARY:

The City’s Director of Parks and Recreation position became vacant as of July 11, 2024 and the recruitment to fill this vacancy is underway. To maintain services and to provide the critical function of Director of Parks and Recreation, it is imperative to have management and day-to-day oversight of the department during the recruitment process to fill this position. After careful consideration of viable options, it was determined that special qualifications were needed to specifically address planning, directing and coordinating the services and projects for recreation, leisure and cultural programs, parades and events, and provide highly responsible, complex administrative support to City Management as required of a Director of Parks and Recreation. Lauri Aylaian, a former City Manager of the City of Palm Desert, has the necessary special qualifications to provide the day-to-day management and oversight of the Department during the recruitment process and until the position is filled.

Under the provisions of California Government Code section 21221(h), the appointment of a retired CalPERS annuitant to a vacant position requires approval of the City Council.

RECOMMENDATION:

1. Adopt Resolution No. _____, “A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF PALM SPRINGS, CALIFORNIA, APPOINTING AN INTERIM RETIRED

ANNUITANT TO THE VACANCY POSITION OF DIRECTOR OF PARKS AND

RECREATION FOR THE CITY OF PALM SPRINGS UNDER GOVERNMENT CODE SECTION 21221(H) EFFECTIVE JULY 29, 2024.”

2. Authorize the City Manager to execute any documents necessary to effectuate the above actions.

Item 1G - Page 1
Council Staff Report
July 25, 2024 -- Page 2
Interim Director of Parks and Recreation
STAFF ANALYSIS:

With the vacancy of the City’s Director of Parks and Recreation as of July 11, 2024, it is imperative to maintain department services during the recruitment process to fill this position. Government Code section 21221(h) states in part that an interim assignment of a retired annuitant with specialized skill may be made to fill the position while the City actively recruits the fill.
“Government Code section 21221, subdivision (h) provides that a governing body may appoint a retiree to a vacant position in an interim capacity while the agency is actively recruiting to fill the vacancy. The retired annuitant must have specialized skills necessary for the position or be employed in an emergency to prevent the stoppage of business.

The appointment shall not exceed a combined total of 960 hours each fiscal year for all CalPERS employers for whom the retiree performs work. The compensation for the interim appointment shall not exceed the maximum monthly base salary paid to other employees performing comparable duties as listed on a publicly available pay schedule for the vacant position divided by 173.333 to equal an hourly rate. The retired annuitant may not receive any benefits, incentives, compensation in lieu of benefits, or any other forms of compensation in addition to the hourly rate. The retired annuitant must not have received unemployment insurance benefits arising out of post-retirement work for a CalPERS employer within the twelve months preceding the appointment.” Lauri Aylaian, a former City Manager of the City of Palm Desert, has the necessary special qualifications related to the City’s Parks and Recreation Department as well as extensive knowledge of overall City codes, policies, and processes. Lauri Aylaian will provide dayto-day management and oversight of the Department and act as the City Parks and Recreation Director during the recruitment process and until the position is filled.

ENVIRONMENTAL IMPACT
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 exempt from CEQA pursuant to Section 15378(b)(5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.

FISCAL IMPACT
There is no additional fiscal impact due to salary and benefit savings.

Item 1G - Page 2
Council Staff Report
July 25, 2024 -- Page 3
Interim Director of Parks and Recreation
REVIEWED BY:

Department Director: Stephanie George
Assistant City Manager: Teresa Gallavan
City Manager: Scott Stiles
ATTACHMENTS:

A. Offer Letter
B. Resolution
Item 1G - Page 3

ATTACHMENT A

Item 1G - Page 4

City of Palm Springs
Department of Human Resources
3200 East Tahquitz Canyon Way • Palm Springs, CA 92262
Tel: 760-323-8215 • Fax: 760-322-8287 • TDD (760)864-9527 July 25, 2024
Lauri Aylaian
Dear Lauri:

We are pleased to extend an offer of temporary employment for the position of Interim Director of Parks & Recreation commencing on July 29, 2024, with an hourly pay rate of $83.43. This position will be as a retired annuitant and assigned to work in the interim capacity while the City is actively recruiting to fill the vacancy.  As a California Public Employees’ Retirement System (CalPERS) retiree, your appointment to this position is made pursuant to California Government Code Sections 7522.56 and 21221(h).  The basic requirements of such an appointment include, but are not limited to:
 The appointment is limited to 960 working hours in any one fiscal year, including other post‐retirement work for other CalPERS employers; you will be required to track your time and ensure that this limit is not exceeded.  The appointee shall only perform work of limited duration; you can be hired only as an interim or acting appointment during the period of recruitment; and you cannot work in a permanent capacity or for an indefinite period of time.  The appointment is limited to a Single Appointment, and you can be appointed only once to the vacant position.  The appointee must have not received unemployment insurance payments for prior retired annuitant work for any CalPERS employer within 12 months prior to the appointment date.  The appointee will not receive any benefits, incentive, or compensation in lieu of benefits.

Additionally, you must re‐verify satisfactory identification and work eligibility documents required by the Immigration Act of 1986.  Please consult the list of acceptable documents on the enclosed I‐9 Form.  Pursuant to CalPERS Government Code and City rules this position is not eligible for City benefits and may end at any time, but in no case no later than June 30, 2025, for any reason with or without cause.

To indicate acceptance of this offer, please sign and return this letter by July 26, 2024.  Should you have any questions please contact us at 760‐323‐8215.  We look forward to your contributions and having you onboard as a productive member of the City Team.

Sincerely,
Stephanie George
Director of Human Resources

ACCEPTANCE OF CONDITIONAL OFFER
I understand this is an offer of limited‐term Retired Annuitant appointment to an Interim position with the City of Palm Springs and accept the terms and conditions as set forth above.  Additionally, I understand that this position is subject to California Government Code Section 7522.56.
__________________________________________________
Signature             Date
Item 1G - Page 5

ATTACHMENT B
Item 1G - Page 6
RESOLUTION NO. _____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

PALM SPRINGS, CALIFORNIA, APPOINTING AN INTERIM

RETIRED ANNUITANT TO THE VACANT POSITION OF

DIRECTOR OF PARKS AND RECREATION FOR THE CITY

OF PALM SPRINGS UNDER GOVERNMENT CODE
SECTION 21221(H) EFFECTIVE JULY 29, 2024
WHEREAS, Government Code section 21221(h) of the Public Employees’ Retirement Law permits the governing body to appoint a CalPERS retiree to a vacant position requiring specialized skills during recruitment for a permanent appointment, and provides that such appointment will not subject the retired person to reinstatement from retirement or loss of benefits so long as it is a single appointment that does not exceed 960 hours in a fiscal year; and
WHEREAS, the City Council desires to appoint Lauri Aylaian, a retired annuitant, as an interim appointment to the vacant position of Director of Parks and Recreation under Government Code sections 21221(h) and 7522.56, effective July 29, 2024; and WHEREAS, an appointment under Gov. Code section 21221(h) requires the retiree is appointed into the interim appointment during recruitment for a permanent appointment; and
WHEREAS, the recruitment for a permanent replacement for this position is active and publicly posted; and
WHEREAS, Lauri Aylaian possesses the required specialized skills to perform the duties of Interim Director of Parks and Recreation; and
WHEREAS, the appointment shall end on June 30, 2025, or when a permanent Director of Parks and Recreation is hired, whichever comes first; and WHEREAS, this section 21221(h) appointment shall only be made once; and WHEREAS, the appointment letter between Lauri Aylaian and the City has been reviewed by this body and is attached; and
WHEREAS, the employment shall be limited to 960 hours per fiscal year; and WHEREAS, the compensation paid to a retired annuitant cannot be less than the minimum nor exceed the maximum base salary paid to other employees performing comparable duties; and
Item 1G - Page 7
WHEREAS, the fiscal year 2024-2025 minimum monthly base salary for this position is $12,476 and the hourly equivalent is $71.98, and the maximum monthly base salary for this position is $16,772 and the hourly equivalent is $96.76; and

WHEREAS, the hourly rate paid to Lauri Aylaian will be $83.43; and WHEREAS, Lauri Aylaian has not and will not receive any other benefit, incentive, compensation in lieu of benefit or other form of compensation in addition to this hourly pay rate.

THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS:

RESOLVED, that the governing body of the City of Palm Springs hereby certifies the nature of the appointment of Lauri Aylaian as described herein and in the attached appointment letter, and that this appointment is necessary to fill the critically needed position of Director of Parks and Recreation for the City of Palm Springs effective July 29, 2024 in order to provide additional leadership and continuity of the services and programs of the Department while the City is engaged in active recruitment to permanently fill the position.

ADOPTED THIS 25 DAY OF JULY 2024

Scott C. Stiles, City Manager
ATTEST:

Brenda Pree, City Clerk

CERTIFICATION

STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.

Item 1G - Page 8

CITY OF PALM SPRINGS )
I, BRENDA PREE, City Clerk of the City of Palm Springs, hereby certify that Resolution No. ____ is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on this 25th day of July 2024, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

Brenda Pree, City Clerk
City of Palm Springs, California
Item 1G - Page 9

CITY COUNCIL STAFF REPORT
DATE: JULY 25, 2024 CONSENT CALENDAR
SUBJECT: REQUEST BY THE MONUMENT BOARD, A SUBCOMMITTEE OF PALM

SPRINGS PRIDE, TO LOCATE A PRIDE MONUMENT IN FRANCES

STEVENS PARK
FROM: Scott C. Stiles, City Manager
BY: Flinn Fagg, Deputy City Manager
SUMMARY:

This is a request by the Monument Board, which is a subcommittee of Palm Springs Pride organization, to install a permanent sculpture at the southeast corner of Frances Stevens Park, which is located at 538 N. Palm Canyon Drive. The proposed monument will be 7- 1/2 feet tall and will be placed on a concrete base with a pathway accessed from the existing sidewalk along Alejo Road.

RECOMMENDATION:

Approve the proposed request and authorize the City Manager to execute any necessary documents.

BUSINESS PRINCIPAL DISCLOSURE:

Palm Springs Pride is a 501(C)(3) nonprofit community enhancement organization. A list of the Board of Directors for the organization is included as Attachment D to this staff report.

BACKGROUND:

Related Relevant City Actions
06/06/24
The Public Arts Commission reviewed the proposal to place a sculpture in Frances Stevens Park and voted 4 to 0 to approve the request.
07/02/24
The Historic Site Preservation Board (HSPB) voted 6 to 0 to approve a Certificate of Appropriateness for the proposed sculpture at Frances Stevens Park.

Item 1H - Page 1
City Council Staff Report
July 25, 2024 -- Page 2
Pride Monument
Staff reviewed the proposal with the Public Arts Commission, although no Public Art Funds have been requested for the sculpture. The purpose for the review was to consult the commission on the location and positioning of the sculpture; the commission unanimously recommended approval of the proposed request to the City Council. A copy of the action minutes from the meeting are included as Attachment B.

In addition, the application was reviewed by the Historic Site Preservation Board (HSPB), as the Frances Stevens School and Park is a Class 1 Historic Site and any modifications to the site require that a Certificate of Appropriateness pursuant to Palm Springs Municipal Code (PSMC) Chapter 8.05. The board determined that the proposed location of the monument will not materially impact the character-defining features of the historic site and approved the Certificate of Appropriateness. Installation of the monument will be subject to the conditions of approval imposed as part of the approval of the application.

A copy of the staff report that was presented to the HSPB and the action minutes from the meeting are included as Attachment C to this report.

A copy of the informational materials that were provided to both the Public Arts Commission and the HSPB is included as Attachment A to this staff report.

STAFF ANALYSIS:

The Pride Art Board of Directors has approached City staff regarding the installation of a LGBTQ+ monument on public property. The purpose of the monument is described as follows:
• The installation will be a visible and lasting tribute to the LGBTQ+ community’s contributions to the City of Palm Springs and the greater Coachella Valley. • The monument will serve as a beacon of hope and inspiration for future generations.
• It will be an educational tool to raise awareness of the LGBTQ+ community’s rich history and culture.
• The monument will create a sense of unity and pride for the LGBTQ+ community. • The installation will be a place where LGBTQ+ people can come together to celebrate their identity and culture, and to feel a sense of pride and belonging with family and friends.

Working with City staff, a site at the southeast corner of Frances Stevens Park was selected (see Figure 1 following). The proposed location is highly visible and accessible from the adjacent streets, while still leaving a large expanse of park area available for programming of events. The monument will be placed on a concrete pad, with an accessible pathway leading from the public sidewalk on Alejo Road to the monument pad.

Item 1H - Page 2
City Council Staff Report
July 25, 2024 -- Page 3
Pride Monument
FIGURE 1: LOCATION OF PROPOSED SCULPTURE AT FRANCES STEVENS PARK The design of the monument has been created under the auspices of the Monument Board of the Palm Springs Pride organization. The Monument Board invited artists to submit proposals between September 2023 and December 2023. A jury was assembled by the Monument Board to review the proposals; in addition to board members, members of the jury included representatives of the Palm Springs Art Museum, the Parks and Recreation Commission, the Human Rights Commission, and current and former members of the Public Arts Commission. A total of 45 artists from around the world submitted proposals, with the jury selecting a winning design in January 2024.

The selected proposal is from Jim Isermann, a long-time resident of Palm Springs. The design features a concrete base in the shape of the lambda symbol, which is symbol of gay significance. The monument itself is to be constructed from five-sided blocks that will be stacked on internal stainless-steel rods, with the blocks in the eight original Pride colors and the addition of brown and black blocks. The block surfaces will be coated with a faderesistant urethane color and sealed with a graffiti-resistant clear coat. The monument will be 7-1/2 feet high; an image of the monument is shown in Figure 2.

The Monument Board is in the process of raising private funds for the monument. It is intended that the fundraising efforts will continue through the end of the year, with construction to begin in January 2025. Construction is intended to be completed by October 2025, so that the monument can be unveiled and dedicated for the 40th anniversary of Pride celebrations in Palm Springs.

Item 1H - Page 3
City Council Staff Report
July 25, 2024 -- Page 4
Pride Monument
FIGURE 2: IMAGE OF PROPOSED SCULPTURE
While the monument will be privately funded, its proposed placement in a public park requires approval by the City. If the placement in Frances Stevens Park is approved by City Council, staff will begin working with the City Attorney in preparing the necessary agreements to allow the construction and installation of the monument.

ENVIRONMENTAL ASSESSMENT:

Type here.

ALIGNMENT WITH STRATEGIC PLANNING:

Type here.

FISCAL IMPACT:

No City funds have been requested for the design, construction, or installation of the monument.

REVIEWED BY:

Deputy City Manager: Flinn Fagg
City Manager: Scott Stiles
Item 1H - Page 4
City Council Staff Report
July 25, 2024 -- Page 5
Pride Monument
ATTACHMENTS:

A. Presentation/Background Materials.

B. Public Arts Commission Minutes – 06/06/24.

C. HSPB Staff Report and Minutes – 07/02/24.

D. Palm Springs Pride Organization – List of Board of Directors.

Item 1H - Page 5

ATTACHMENT A
Item 1H - Page 6
Permanent art installation in the City of Palm Springs, California Permanent art installation in the City of Palm Springs, California Item 1H - Page 7
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● April 2022 LGBTQ Monument Board of Directors met. ● September - December 2023 - Artists were invited to submit proposals for a permanent art installation to commemorate, honor, and celebrate our LGBTQ+ community members and allies. o 45 artists around the world submitted 53 design proposals based on a RFP issued under the aegis
of Call for Entry and Application Management for the Arts (CaFE) and the Western States Arts Federation. ● January 17, 2024 jury selected winning design ● January 18, 2024 project presented to first community group o The Community Leadership Council o Presentations will be made to community and business groups through 2024. o Construction begins by January 2025 for October completion in celebration of the 40th Anniversary of Pride in Palm Springs.

Finland
Spain
U.K.

Argentina
Pacific Palisades
Cerritos
Pasadena
Palm Springs
Oregon
Florida
New York
Colorado
Michigan
Wisconsin
Washington
Arizona
Vermont
Oklahoma
Idaho
Hawaii
Item 1H - Page 8
● The installation will be a visible and lasting tribute to our LGBTQ+ community's contributions to the City of Palm Springs and the greater Coachella Valley.
● Serve as a beacon of hope and inspiration for future generations. ● It will be a powerful educational tool, helping to raise awareness of our LGBTQ+ community's rich history and culture.
● Create a sense of unity and Pride for our LGBTQ+ community. ● The installation will be a place where LGBTQ+ people can come together to celebrate their identity and culture, and to feel a sense of Pride and belonging with family and friends.

Item 1H - Page 9
The basis for the art monument: The Triangle
● Started with a triangle: one of the symbols most associated with the LGBTQ people ● Symbol began in 1933 with Nazis used downward pointing pink triangle as a literal label sewn to the prison uniforms of gay men and women. ● In 1972, activist group Homosexualle Aktion Westberlin was the first queer organization to reclaim the triangle as a symbol of liberation. ● In 1986 the ACT UP working group Gran Fury reutilized the pink triangle as a battle cry in the fight for HIV/AIDS treatment, creating the now iconic Silence = Death emblem
o Gran Fury mistakenly inverted the triangle – point it up. o New power in the triangle, making it a lasting symbol that communicates strength, resilience, and community.

Item 1H - Page 10
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Jim Isermann
● Jim Isermann, a longtime Palm Springs resident, has
over many years built an artistic practice that
encompasses painting, drawing, sculpture, sitespecific installation, and product design. ● Artwork has focused on post-war industrial design
and architecture.
● Pattern, color, geometry, and repetition are the
cornerstones and the generators of his work in all
mediums.
● Work has a strong mathematical base, often a single,
seemingly simple module that through its change in
orientation creates a complex repetition or pattern.
“An artist with a queer sensibility.”
Item 1H - Page 11
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● One color spectrum for the entire monument ● Adopt the original 8-color flag plus brown and black. ▪ Hot Pink ▪ Red ▪ Orange ▪ Yellow ▪ Green ▪ Turquoise ▪ Indigo ▪ Violet ▪ Black ▪ Brown Item 1H - Page 12
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concrete lambda shaped
footprint/foundation. ● The Greek letter lambda is a
symbol of gay significance ● It stands for change and kinetic potential ● The Lambda was one of the
first coded symbols for Gay
Liberation when shortly after
the Stonewall Riots in 1969, the
Gay Activists Alliance adopted
it as their logo.

Item 1H - Page 13
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Item 1H - Page 14
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The artist developed a five-sided block form whose two ends are perfect equilateral triangles The block modules are then stackable in a textured wall assembly. Hundreds of triangles coming together to make a monument.

Item 1H - Page 15
I
Dimensions
● Circular area is 20 feet in diameter
● Height: 7 ½ Feet
●
wheelchairs or mobility scooters
people with disabilities have access, e.g.,
Cement foundation and pathway to ensure
(subject to modification as project moves forward)
●
monument
prevent people from climbing the
Concave diamond design will help
●
resistant clear coat.
resistant urethane color and graffiti
Surfaces are coated with a fade
Design Considerations
Item 1H - Page 16
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- 1 SCALEASN:~: I I A01 I PALM SPRINGS PRIDE ART INSTALLATION PALM SPRINGS. CA I ftp 1 I FOR REVIEW I I~ METALABJ FOR JIM ISERMANN ,. . ...,_ ~T•usn® 71]421-..0 --~- --- ● How will the material color hold up in the desert sun? A 3 part industrial urethane system that has a clear topcoat with a 10 year color warranty along with a graffiti and UV resistant topcoat is used. The topcoat can be reapplied easily with spray or roller and in doing so the color layer will be further protected.
● How many years before it fades?
With a re-application of the clear UV resistant topcoat every 8-10 years, the color will not fade. It is a water based urethane paint and topcoat and does not require extensive preparation or tenting when recoated in the future.
● Examples of this type of metalwork exposed to the elements for long periods of time? METALAB Public Art is the metalwork vendor on this project and has completed dozens of projects across the country including Scottsdale, El Paso, and Denver. They have moved toward this paint system due to its durability, color fastness, warranty, and most importantly its ease in touch up and reapplication of the top coat.

Sun and Heat Design Considerations
Item 1H - Page 17
Item 1H - Page 18
Wall of Monument Founding Board of Directors (*Currently Serving) The Pride Art Installation Board of Directors, in conjunction with representatives from the Palm Springs Parks and Recreation Commission, the Palm Springs Human Rights Commission, former members of the Palm Springs Public Arts Commission, and the Palm Springs Art Museum, selected one artist to create an installation designed to commemorate, honor, and celebrate local LGBTQ+ community members and allies.

About the Jury
Fiscal Sponsor
Greater Palm Springs Pride
329 W Mariscal Rd., Palm Springs, CA 92262
Tax Id # 33-0745940
Officers Board
Members/Committee Chairs
President (Al Jones*) Design/Installation (Ann Sheffer) Vice President (Bob Iles*) Fundraising (Lindell Campbell*) Secretary (Elisha Kaskiw) Publicity (Jeff Hocker)
Treasurer (Tom Becktold*) Member (Hugo Loyola *)
Special Advisory (Sue Burnside) Member (Gary Armstrong) Students (Roman Lopez & Lilly Hanner)
Item 1H - Page 19
Item 1H - Page 20

ATTACHMENT B

Item 1H - Page 21
Item 1H - Page 22

PUBLIC ARTS COMMISSION MEETING MINUTES

CITY OF PALM SPRINGS, CALIFORNIA
June 6, 2024
Palm Springs City Hall
3200 E. Tahquitz Canyon Way
Large Conference Room
A. CALL TO ORDER:

A regular meeting of the Palm Springs Public Arts Commission was called to order by Chair Gary Armstrong on Thursday, June 6, 2024, at 5:30 p.m. 8 . ROLL CALL:

Present: Commissioners Tom Burns, Carlos Silveira, Vice Chair Newkirk and Chair Armstrong. Not present: Commissioners Shawnda Thomas Faveau, and Christopher Ramirez.

City Staff: Director, Jay Virata
C. PRESENT AT IONS:

D. ACCEPTANCE OF AGENDA:

MOTION BY COMMISSIONER SILVEIRA, SECONDED BY CHAIR ARMSTRONG, CARRIED 4-0 TO ACCEPT THE AGENDA.

E. PUBLIC COMMENTS:

NO COMMENTS
F. REMARKS FROM THE CHAIR:

Chair Armstrong provided condolences on the passing of Richard Wyatt, Jr., the artist behind the mural at James 0 . Jessie Center. Moving forward negotiations for the repair of the mural will take place with his estate to get permission to move forward with repairing the mural.

G. ITEMS FOR DISCUSSION/APPROVAL:

1. Consider Old Las Palmas Neighborhood Organization Request for Funding for Creature Alley.

Chair Armstrong explained how this is a continuation of the Red Dragon project. John Williams presented the request from Old Las Palmas Neighborhood Organization for a contribution of $50,000 for the two sculptures.

Item 1H - Page 23
Public Arts Commission Meeting
Action Summary June 6, 2024

MOTION TO APPROVE MADE BY VICE CHAIR NEWKIRK, SECOND BY COMMISSIONER SILVEIRA, CARRIED 4-0 TO APPROVE $50,000 FOR OLD LAS

PALMAS NEIGHBORHOOD ORGANIZATION FOR TWO SCULTURES, PRINCE AND BLUE BELLY CRAB FOR CREATURE ALLEY.

2. Consider Pride Monument proposal for permanent art installation in the City of Palm Springs.

MOTION TO APPROVE MADE BY COMMISSIONER BURNS, SECOND BY COMMISSIONER SILVEIRA, CARRIED 4-0 TO MOVE THE PRIDE MONUMENT PROPOSAL TO CITY COUNCIL.

3. Discuss, review, and select artist for Asphalt Art project.

ITEM TABLED DUE TO LACK OF QUORUM. VICE CHAIR NEWKIRK RECUSED HIMSELF DUE TO A POTENTIAL CONFLICT.

H. PROJECT UPDATES:

1. AIDS Memorial - Chair Armstrong reported that th is project will have to come back to the Public Arts Commission us to present their concept and request funding .

2. Eco-Artwalk/Taming of Horses - Chair Armstrong provided an update on the efforts involved with installing this project
I. REPORT FROM DIRECTOR/STAFF:

Director Virata reported on having Mister Alek to have the George Floyd Mural installed.

It is anticipated Mister Alek will be able to restore the mural in July. OirectorVirata also reported on the Airport Mural. Artist Logan Adair is still reviewing the agreement.

ADJOURNMENT: The Public Arts Commission will adjourn to a meeting on August 1, 2024, at 5:30 P.M. in the Large Conference Room of Palm Springs City Hall located at 3200 E. Tahquitz Canyon Way.

MOTION BY CHAIR ARMSTRONG, SECONDED BY VICE CHAIR NEWKIRK CARRIED 4-0 TO ADJOURN at 6:43 PM TO A REGULAR MEETING ON AUGUST 1, 2024, AT 5:30 PM IN THE LARGE CONFERENCE ROOM OF CITY HALL LOCATED AT 3200 E. TAHQUITZ CANYON WAY.

Respectfully submitted,
, Director
ng & Community Development Department

ATTACHMENT C

Item 1H - Page 24

HISTORIC SITE PRESERVATION BOARD

STAFF REPORT
DATE: July 2, 2024 NEW BUSINESS
SUBJECT: APPLICATON BY PALM SPRINGS PRIDE FOR A CERTIFICATE OF APPROPRIATENESS – MINOR TO INSTALL THE “PRIDE MONUMENT” AT THE FRANCES STEVENS PARK, A CLASS 1 SITE LOCATED AT 538 NORTH PALM CANYON DRIVE (APN #505-325-003), HSPB #7 / CASE CAMI 2024-0005 (SY).

FROM: Department of Planning Services

SUMMARY
This request is to install a permanent sculpture at the southeast corner of Frances Stevens Park. This property, also known as the Frances Stevens School and Park, is a City-owned Class 1 (Landmark) site that contains two historic buildings and a designated landscape design. The proposed sculpture is 7’-10” tall and will be placed on a circular concrete base with a pathway accessed from the existing sidewalk.

RECOMMENDATION:

Grant the Certificate of Appropriateness – Minor to install the proposed sculpture with the following conditions:
- During installation, all existing landscape features, including but not limited to the trees and rolling berms, must be properly protected.
- The sculpture and all associated features including the concrete pad, pathway and light fixtures are to be regularly serviced and maintained.

BACKGROUND AND SETTING:

The Frances Steven School and Park occupies an entire city block between Alejo Road and Granvia Valmonte. The school was first built on this site in 1927 while the surrounding landscape evolved with the needs of the community. In 1972, landscape architect David Hamilton was hired to design the park with the intent to create an open and pleasant feeling in this part of downtown.1 The layout of the two historic buildings created courtyard-like spaces in between the structures, while the large open lawn to the south was visually unobstructed with integrated pathways providing access to the space from the street. Class 1 designation of the property identified the structures as well as the park. 1 Frances Stevens School & Park Report by Steven Keylon, 2018.

Item 1H - Page 25
Historic Site Preservation Board Staff Report July 2, 2024 HSPB 7 / Case CAMI 2024-0005 – Certificate of Appropriateness

BELOW AN AERIAL VIEW OF THE SUBJECT PARCEL

BELOW A CONCEPTUAL RENDERING OF THE PROPOSED

SCULPTURE IN THE REQUESTED LOCATION ON SITE
Relevant and Recent Past Actions
November 7, 1984 Frances Stevens School & Park designated by City Council 1999 Installation of the “Rainmaker” in the southwest corner of Frances Stevens Park
2018 Historic Landscape Design Report and assessment
Item 1H - Page 26
Historic Site Preservation Board Staff Report July 2, 2024 HSPB 7 / Case CAMI 2024-0005 – Certificate of Appropriateness

ANALYSIS:

Pursuant to Municipal Code Section 8.05.110 (Alterations of Class 1 and Class 2 Historic Resources – Certificate of Appropriateness), HSPB shall evaluate the proposal for compatibility and mitigate any adverse impacts to character-defining features of the historic resource by reviewing it for compliance with the four criteria:

Certificates of Appropriateness (“C of A’s”) are processed pursuant to Municipal Code Section 8.05.110 as follows:

Criteria and Findings for alterations to Class 1 sites:

The HSPB shall approve the C of A’s if the following findings can be met

1. That the proposed alteration does not significantly impact or materially impair the character-defining features of the historic resource as listed in the resolution for historic designation, or, where a character-defining feature may be impacted, the proposed alteration minimizes that impact as much as possible.

The proposed sculpture will be installed on a concrete pad near the edge of the site and will not impact the existing trees and vegetation. The sculpture is approximately 7’-10” in height and spans 14’ along the pedestrian sidewalk. It is roughly 140’ from the historic structures and proposed in a location of the park that was intended to be inviting and open. The “Rainmaker” is another art piece that was installed in 1999 in the southwest corner of the property. The proposed location co-locates the art pieces on the southerly side of the park and does not materially impair the character-defining features of the historic buildings or the landscape design. The project conforms to this finding.

2. That the proposed alteration will assist in restoring the historic resource to its original appearance where applicable, or will substantially aid its preservation or enhancement as a historic resource;
The proposed installation does not directly assist in restoring the historic buildings or landscape features, but it is consistent with the design intent of the site. With the installation of public art in the proposed location, the open lawn is further enhanced as a communal space for engagement with a pleasant feeling which was one of the intended goals for employing David Hamilton as the landscape architect. The existing landscape features like the trees are intended to remain in place. The project conforms to this finding.

3. That any additions to the historic resource are consistent with the massing, proportions, materials, and finishes of the existing historic resource, and: (i) can be distinguished from the existing historic resource as may be appropriate; or (ii) are indistinguishable from the historic resource as may be appropriate, and where such alterations are clearly documented in the City’s archival file for the historic resource as being non-original to the historic resource;
Item 1H - Page 27
Historic Site Preservation Board Staff Report July 2, 2024 HSPB 7 / Case CAMI 2024-0005 – Certificate of Appropriateness

While the sculpture may not fit the exact definition of an addition, the compatibility of the art piece with the surrounding context is important to consider because the historic resource and its character-defining features must remain the focal point of the site. The proposed sculpture is pedestrian in scale and will not overshadow the historic structures and will likely be subordinate to the mature trees, which will remain. The material finishes and colors for the piece are clearly distinguishable from the historic resource eliminating any confusion between what is considered historic and non-historic material. The proposed project conforms to this finding.

4. That, in cases where Federal funds are to be utilized in financing the proposed alterations, the alterations are consistent with the Standards for the Treatment of Historic Properties, as put forth by the U.S.

Secretary of the Interior.

No federal funds are involved in the proposed project.

ENVIRONMENTAL ASSESSMENT:

The proposed alteration is considered a project pursuant to the guidelines of the California Environmental Quality Act (“CEQA”). Staff has evaluated the proposal relative to the CEQA Guidelines and determined the project to Categorically Exempt from further evaluation under CEQA as a Class 31 because the project proposes rehabilitation of the historic site that is consistent with the Secretary of the Interior Standards. The proposed scope of work does not radically change, obscure or destroy character-defining features of the buildings or the surrounding landscape.

CONCLUSION:

As proposed, the installation of the sculpture in this location maintains the existing landscape design and does not materially impair or diminish the site’s historic significance. The location is adequately distanced from the historic structures and does not alter any significant features of the existing landscape. The necessary criteria for the issuance of a Certificate of Appropriateness are met, and staff recommends approval with the condition as listed above in the recommendations.

PREPARED BY: Sarah Yoon, Associate Planner/Historic Preservation Officer REVIEWED BY: David Newell, Assistant Director of Planning Services Attachments:

A. Vicinity Map.

B. Application, related background materials, photos.

C. City Council Resolution for Designation.

D. Historic Landscape Design Report and Analysis (Case #3.1074).

Item 1H - Page 28

HISTORIC SITE PRESERVATION BOARD

CITY OF PALM SPRINGS, CALIFORNIA
Action Summary
Regular Meeting of July 2, 2024
3200 East Tahquitz Canyon Way, Palm Springs, California 92262 Large Conference Room
CALL TO ORDER:

The Chair called the regular meeting to order at 5:30 p.m.

ROLL CALL:

Present: Vice Chair Nelson, Rosenow, Hansen, Bachman, Moruzzi, Maschka Hitchcock.

Absent: Herr.

Staff Present: David Newell, Assistant Director of Planning Services, Sarah Yoon, Historic Preservation Officer & Associate Planner
REPORT OF THE POSTING OF AGENDA: The Agenda was available for public access at the City Hall exterior bulletin board (west side of Council Chamber) by 6:00 pm on Thursday June 27, 2024, and posted on the City’s website as required by established policies and procedures.

ACCEPTANCE OF THE AGENDA:

Motion by Member Rosenow, seconded by Member Hansen to accept the agenda.

AYES: Nelson, Rosenow, Hansen, Bachman, Moruzzi, Maschka Hitchcock.

NOES: None.

ABSENT: Herr.

PUBLIC COMMENT: None.

ELECTION OF OFFICERS:

Jade Nelson voted Chair of HSPB: 6-0
Eric Rosenow voted Vice Chair of HSPB: 6-0
Motion by Member Moruzzi, seconded by Member Hansen to elect Jade Nelson as Chair and Eric Rosenow as Vice Chair.

AYES: Nelson, Rosenow, Hansen, Bachman, Moruzzi, Maschka Hitchcock.

NOES: None.

ABSENT: Herr.

1. CONSENT CALENDAR:

1.A. APPROVAL OF MINUTES: June 4, 2024 HSPB MEETING.

RECOMMENDATION: Approve.

Item 1H - Page 29
Historic Site Preservation Board Action Summary
July 2, 2024

1.B. A REQUEST BY THE DURHAM FAMILY TRUST FOR APPROVAL OF A MAJOR ALTERATION TO A CLASS 3 SITE LOCATED AT 1077 NORTH ROSE

AVENUE, AND ASSOCIATED REVIEW FOR POTENTIAL RE-DESIGNATION OF A CLASS 3 SITE TO A CLASS 1 OR 2 HISTORIC RESOURCE (APN #505- 091-005), CASE HDEMO 2024-0009.

RECOMMENDATION: Take no action, allow the processing of the major alteration, and determine pursuant to CEQA that this action is not a project.

Motion by Member Hansen, seconded by Member Moruzzi to approve all items on the consent calendar.

AYES: Nelson, Hansen, Bachman, Moruzzi, Rosenow, Maschka Hitchcock.

NOES: None.

ABSENT: Herr.

2. PUBLIC HEARINGS:

2.A. APPLICATION BY THE CITY OF PALM SPRINGS FOR HISTORIC SITE DESIGNATION OF “THE GAS COMPANY BUILDING” LOCATED AT 211 NORTH SUNRISE WAY, (APN 508-070-016) CASE HSPB #158 (SY).

Motion by Vice Chair Rosenow, seconded by Member Moruzzi to adopt the findings and recommend that the City Council designate the “Gas Company Building” (HSPB 158) as a Class 1 historic landmark site, subject to conditions.

AYES: Nelson, Hansen, Bachman, Moruzzi, Rosenow, Maschka Hitchcock.

NOES: None.

ABSENT: Herr.

3. UNFINISHED BUSINESS: None.

4. NEW BUSINESS:

4.A. APPLICATION BY PALM SPRINGS PRIDE FOR A CERTIFICATE OF APPRORIATENESS - MINOR TO INSTALL THE “PRIDE MONUMENT” AT THE FRANCES STEVENS PARK, A CLASS 1 SITE, LOCATED AT 538 NORTH PALM CANYON DRIVE (APN #505-325-003), HSPB #7 / CASE CAMI 2024- 0005 (SY).

Motion by Member Hansen, seconded by Vice Chair Rosenow to approve the Certificate of Appropriateness – Minor and determine pursuant to CEQA Section 15331 that this action is exempt.

AYES: Nelson, Hansen, Bachman, Moruzzi, Rosenow, Maschka Hitchcock.

NOES: None.

ABSENT: Herr.

Item 1H - Page 30
Historic Site Preservation Board Action Summary
July 2, 2024

4.B. APPLICATION BY SMOKE TREE, INC FOR APPROVAL TO DEMOLISH A CLASS 4 SITE LOCATED AT 1801 EAST PALM CANYON DRIVE AND ASSOCIATED REVIEW FOR POTENTIAL RE-DESIGNATION OF A CLASS 4 SITE TO A CLASS 1 OR 2 HISTORIC RESOURCE (APN 510-020-049), CASE HDEMO 2024-0011 (SY).

Motion by Vice Chair Rosenow, seconded by Member Hansen to take no action, and allow the processing of the demolition, and determine pursuant to CEQA that this action is not a project.

AYES: Nelson, Rosenow, Hansen, Bachman, Moruzzi, Maschka Hitchcock.

NOES: None.

ABSENT: Herr.

5. DISCUSSIONS: None.

BOARD MEMBER COMMENTS:

STAFF COMMENTS:
- Amended HPO approval for the Certificate of Appropriateness addressing the east elevation of the PS Airport due to building safety requirements. - Expected Applications:
o Certificate of Appropriateness for the PS Airport baggage claim expansion: HSPB Review
o Minor Alteration to a Class 3 Site for the PS Library project: HPO Review - Information and clarification about the recent City-initiated Section 14 Historic Context Study
ADJOURNMENT: The Historic Site Preservation Board adjourned at 7:41 p.m. to its regularly scheduled meeting on Tuesday, September 3, 2024 at 5:30 PM, in-person in the Large Conference Room at City Hall.

Item 1H - Page 31

ATTACHMENT D
Item 1H - Page 32
Greater Palm Springs Pride Board of Directors
Position Name
President and CEO: Ron deHarte
Treasurer: Rabbi Dr. Jules King
Secretary: Bill Wheeler
Director at Large: Paulina Angel
Director at Large: Tom Davis
About Palm Springs Pride:

Palm Springs Pride is a 501(C)(3) nonprofit community enhancement organization. We serve as a catalyst for celebrating the strength in our diversity; we stand united for the equal rights of all Americans, and we foster Pride in and respect for al LGBTQ communities locally and globally.

Item 1H - Page 33

CITY COUNCIL STAFF REPORT
DATE: JULY 25, 2024 CONSENT CALENDAR
SUBJECT: AMENDMENT NO. 6 TO ASSEMBLY BILL 2766 MEMORANDUM OF

UNDERSTANDING BETWEEN THE COACHELLA VALLEY

ASSOCIATION OF GOVERNMENTS AND MEMBER JURISDICTIONS TO
PROVIDE SUSTAINABLE FUNDING OF THE REGIONAL PM10 STREET

SWEEPING PROGRAM
FROM: Scott C. Stiles, City Manager
BY: Engineering Services Department
SUMMARY:

This item will approve Amendment No. 6 to the Memorandum of Understanding between the Coachella Valley Association of Governments and the City of Palm Springs allowing for the continuation of funding to the Regional PM10 Street Sweeping Program through AB 2766, South Coast Air Quality Management District, and the Riverside County.

RECOMMENDATION:

1. Approve Amendment No. 6 to AB 2766 Memorandum of Understanding (MOU) between the Coachella Valley Association of Governments (CVAG) and Member Jurisdictions to maintain contributions from the cities and the County at 75% to provide Sustainable Funding of the Regional PM10 Street Sweeping Program, through June 30, 2026.

2. Authorize the City Manager to execute Amendment No. 6 to the AB 2766 Memorandum of Understanding (MOU).

BACKGROUND:

Coachella Valley and the Salton Sea Air Basin are designated non-attainment areas for PM10, or air particulate matter less than 10 microns. The primary source of PM10 is dustgenerating activities like vehicles traveling over paved or unpaved streets and through construction zones. Since the early 1990s, CVAG and its member agencies have cooperated on a Regional PM10 Street Sweeping Program – one of the most significant air quality control measures that can be taken to reduce PM10 throughout our region.

Item 1I - Page 1
City Council Staff Report
July 25, 2024 -- Page 2
Amendment No. 6 to AB 2766 MOU
This program has the added benefit of keeping all major streets in the Coachella Valley clean at a low per-mile cost due to economies of scale.

STAFF ANALYSIS:

The street sweeping program is currently funded by three main sources:
(1) Reallocation of a portion of AB 2766 funds dispersed to individual jurisdictions based on vehicle license plate renewals;
(2) Grant funding from the South Coast Air Quality Management District (SCAQMD); and
(3) The Coachella Valley Air Quality Enhancement Fund managed by Riverside County, also known as Colmac funds.

The SCAQMD grant in the amount of $1,150,000 provides approximately $220,000 for each of five years for the street sweeping program. While the first year of funding was guaranteed, the remaining four years are pending a study of the street sweeping program’s efficiency and effectiveness, also funded by the grant. The grant was initially awarded to make up for a funding shortfall after funding from SCAQMD’s Mobile Aire Source Pollution Reduction Review Committee ended in 2018. The Colmac funds received by the County are associated with mitigating air pollution impacts from a power plant. Since July 2010, the County has set aside $150,000 each year for the regional street sweeping program. The current term runs through June of 2024, and CVAG has requested an additional five-year extension.

The remaining AB 2766 funding sent to cities and counties by the SCAQMD is generated by a surcharge on annual DMV fees and must be used to reduce air pollution generated by motor vehicles. In previous years when funding from other sources tended to fluctuate, AB 2766 contributions from CVAG member jurisdictions also ranged from 33% to 100%.

In 2020, the fifth amendment to the MOU for this reallocation requested that 75% of AB 2766 funds be directed toward the regional street sweeping program. The term of the fifth amendment expired on June 30, 2024. With this sixth amendment, CVAG requests that the jurisdictional contribution level remains at 75% for the next two years, through June 30, 2026. One hundred percent of all funding goes toward the street sweeping program Amendment No. 6 to the MOU was approved by the CVAG Executive Committee on April 29, 2024.

FISCAL IMPACT:

Adequate funding for the Regional PM-10 Street Sweeping Program is dependent upon all three funding streams – AB 2766, South Coast AQMD grant, and the Colmac allocation.

Item 1I - Page 2
City Council Staff Report
July 25, 2024 -- Page 3
Amendment No. 6 to AB 2766 MOU
REVIEWED BY:

City Engineer Joel Montalvo
Deputy City Manager: Flinn Fagg
City Manager: Scott Stiles
ATTACHMENTS:

A. Amendment No. 6 AB 2766 Memorandum of Understanding
Item 1I - Page 3
Attachment A
Item 1I - Page 4
Item 1I - Page 5

AMENDMENT SIX
TO
AB 2766 MEMORANDUM OF UNDERSTANDING (MOU)

BETWEEN

COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS
AND

CVAG MEMBER JURISDICTIONS
JULY 1, 2024
The AB 2766 Memorandum of Understanding (MOU) is made and entered into by and between the Coachella Valley Association of Governments (CVAG) and the CVAG member jurisdictions. The parties acknowledge that this Amendment shall be for the period starting July 1, 2024, and shall bind the parties hereunder for the entire term of the two-year amendment; through June 30, 2026.

The AB 2766 MOU is hereby amended through this Amendment Six as follows:
1) At their April 29, 2024, meeting, the Executive Committee approved to maintain CVAG's AB 2766 formula at 75% to provide sustainable funding of the Regional PM 10 Street Sweeping Program and related activities starting July 1, 2024 through June 30, 2026;
2) All other terms and conditions shall remain the same.

SSOCIATION OF GOVERNMENTS
By:

Title: Scott Matas, CVAG Chair
Date: April 29, 2024

CITY OF PALM SPRINGS
By:

Title: Jeffrey Bernstein, Mayor
Date:

CITY COUNCIL STAFF REPORT
DATE: JULY 25, 2024 CONSENT CALENDAR
SUBJECT: EXTEND THE SERVICES AGREEMENT WITH NEOGOV FOR ONE

YEAR TO PROVIDE TALENT MANAGEMENT AND PAYROLL

SOFTWARE SERVICES
FROM: Scott C. Stiles, City Manager
BY: Information Technology Department
SUMMARY:

This action will allow for the Service Agreement with Neogov to auto renew for one additional year to provide HR management and payroll software services for fiscal year 24/25.

RECOMMENDATION:

Allow the Service Agreement (Attachment A) with Neogov to auto renew for one additional year to provide talent management and payroll software services in the amount of $106,608.

BUSINESS PRINCIPAL DISCLOSURE:

According to its Certificate of Status, Revised Bylaws, and Statement of Information, Governmentjobs.com, Inc. doing business as NeoGov, is a California Corporation (Attachment B).

BACKGROUND:

The City started using NeoGov in 2007 to streamline Human Resources processes and increase employee productivity and engagement. In May 2019, the City entered into a three-year agreement to replace the existing Highline system that Neogov had acquired adding HR Management, Payroll and Time and Attendance services. Over the next two years, staff began converting from the legacy system. In July of 2022, Council renewed Neogov for an additional year of service in a last attempt to achieve the efficiencies originally promised. In January 2023, City Council approved the acquisition, and implementation of Tyler Technologies Payroll and HR system to replace Neogov.

Item 1J - Page 1
City Council Staff Report
July 25, 2024-- Page 2
Extend Service Agreement – Neogov
STAFF ANALYSIS:

Staff kicked off the implementation project with Tyler Technologies in April 2023 with an aggressive go-live date of January 1, 2024. Shortly after project kick off, staffing challenges with the City and Tyler caused the implementation to pause so that processing of live payroll for the City could occur. The implementation is back on track, and staff will go live with the core functionality of the new system on January 1, 2025. Once the system is live, staff will continue to work with Tyler Technologies to implement additional features and functions through the year. During this process the current Neogov system still needs to be in place to process payroll and perform HR management processes. Neogov will also need to be in place for FY 24/25, and potentially FY 25/26 to validate annual process and generate long term reporting exports.

Since the Service Agreement with Neogov included an auto renewal clause, staff recommends allowing the current agreement with Neogov to renew for one additional year to provide talent management and payroll software services for fiscal year 24/25.

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:

This action aligns with the City Council major theme/principle of Good Governance.

FISCAL IMPACT:

Sufficient funds are budgeted and available in the current fiscal year in Information Technology Department Account 1001025 50034 and will be budgeted in future fiscal years.

Item 1J - Page 2
City Council Staff Report
July 25, 2024-- Page 3
Extend Service Agreement – Neogov
REVIEWED BY:

Department Director: Larry Klingaman
Finance Director: Kristopher J. Mooney
Deputy City Manager: Jeremy Hammond
City Manager: Scott Stiles
ATTACHMENTS:

A. Service Agreement
B. Business Disclosure Form
C. One Year Renewal Quote

Item 1J - Page 3

ATTACHMENT A

Item 1J - Page 4

SERVICES AGREEMENT
V032122
You agree that by placing an order through a NEOGOV standard ordering document entitled an “Order Form”, “Service Order,” or “SOW” (each, an “Order Form” for purposes of this Agreement) you agree to follow and be bound by the terms and conditions set forth herein. “Governmentjobs.com”, “NEOGOV”, “we”, and “our” means Governmentjobs.com, Inc. (D/B/A/ NEOGOV), for and on behalf of itself and its subsidiaries PowerDMS, Inc., Cuehit, Inc., Ragnasoft LLC (D/B/A/ PlanIT Schedule), and Design PD, LLC (D/B/A Agency360) (collectively, “NEOGOV” and, where applicable, its other affiliates; “Customer”, “you”, “your” means the NEOGOV client, customer, or subscriber identified in the Order Form).

If you are placing an order on behalf of a legal entity, you represent that you have the authority to bind such entity to the terms and conditions of the Order Form and these terms and, in such event, “you” and “your” as used in these agreement terms shall refer to such entity. “Agreement” shall be used to collectively refer to this NEOGOV Services Agreement (the “Services Agreement” or the “Agreement”), documents incorporated herein including the applicable Order Form, Exhibits, Schedule(s), and Special Conditions (if any). “Special Conditions” means individually negotiated variations, amendments and/or additions to this Service Agreement of which are either drafted, or incorporated by reference, into the Order Form.

1. Provision of Services. Subject to the terms of this Agreement NEOGOV hereby agrees to provide Customer with access to its SaaS Applications and Professional Services (each defined below) included or ordered by Customer in the applicable Order Form (collectively referred to as the “Services”). Customer hereby acknowledges and agrees that NEOGOV’s provision and performance of, and Customer’s access to, the Services is dependent and conditioned upon Customer’s full performance of its duties, obligations and responsibilities hereunder. This Agreement entered into as of the date of your signature on an applicable Order Form or use of the Services commences (the “Effective Date”). The Agreement supersedes any prior and contemporaneous discussions, agreements or representations and warranties.

2. SaaS Subscription.
a) Subscription Grant. “SaaS Applications” means each proprietary NEOGOV web-based software-as-a-service application that may be set forth on an Order Form and subsequently made available by NEOGOV to Customer, and associated components as described in any written service specifications made available to Customer by NEOGOV (the “Service Specifications”). Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, NEOGOV hereby grants to Customer a limited, non-exclusive, non-transferable, and non-sublicensable right to (a) onboard, access and use, and to permit Authorized Users to onboard, access and use, the SaaS Applications specified in the Order Form solely for Customer’s internal, non-commercial purposes; (b) generate, print, and download Customer Data as may result from any access to or use of the SaaS Applications; and (c) train Authorized Users in uses of the SaaS Applications permitted hereunder (these rights shall collectively be referred to as the “SaaS Subscription”). “Authorized Users” means (i) Customer employees, agents, contractors, consultants (“Personnel”) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Services Agreement and (ii) for whom access to the Services has been purchased hereunder. You may not access the SaaS Applications if you are a direct competitor of NEOGOV or its affiliates. In addition, you may not access the SaaS Applications for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes. You shall be responsible for each Authorized User’s access to and use of the SaaS Applications and compliance with applicable terms and conditions of this Agreement.
b) Subscription Term. Unless otherwise specified in an applicable Order Form, SaaS Subscriptions shall commence on the Effective Date and remain in effect for twelve (12) consecutive months, unless terminated earlier in accordance with this Agreement (the “Initial Term”). Thereafter, SaaS Subscriptions shall automatically renew for successive twelve (12) month terms (each a “Renewal Term” and together with the Initial Term, collectively, the “Term”) unless a party delivers to the other party, at least thirty (30) days prior to the expiration of the Initial Term or the applicable Renewal Term, written notice of such party’s intention to not renew this Agreement, or unless terminated earlier in accordance with this Agreement. The Term for the Services is a continuous and non-divisible commitment for the full duration regardless of any invoice schedule. The purchase of any Service is separate from any other order for any other Service. Customer may purchase certain Services independently of other Services. Your obligation to pay for any Service is not contingent on performance of any other Service or delivery of any other Service.

3. Customer Responsibilities. Customer will not, and will ensure its Authorized Users do not (a) make any of the Services available to anyone other than Authorized Users or use any Services for the benefit of anyone other than Customer and its 1 Item 1K - Page 4 Item 1J - Page 5
NEOGOV P<.!>werDMS
Digital Management Software
A NEOGOV Company
Authorized Users, unless otherwise agreed in writing by the parties, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any of the Services, or include any of the Services in a service bureau or outsourcing offering, unless otherwise agreed in writing by the parties, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of the privacy rights, publicity rights, copyright rights, or other rights of any person or entity, (d) use the Services to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, (e) interfere with or disrupt the integrity or performance of the Services (including, without limitation, activities such as security penetration tests, stress tests, and spamming activity), (f) attempt to gain unauthorized access to the Services or its related systems or networks, (g) disassemble, reverse engineer, or decompile the Services, or modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof, (h) remove the copyright, trademark, or any other proprietary rights or notices included within NEOGOV Intellectual Property and on and in any documentation or training materials, or (i) use the Services in a manner which violates the terms of this Agreement, any Order Form or any applicable laws.

4. Professional Services. “Professional Services” shall mean consulting, training services purchased by Customer in an applicable Order Form or detailed in a NEOGOV Scope of Work (SOW) relating to assistance, training, deployment, usage, customizations, accessory data processing, and best practices of and concerning the SaaS Applications. Professional Services may be ordered by Customer pursuant to a SOW and Service Specifications describing the work to be performed, fees, and any applicable milestones, dependencies, and other technical specifications or related information. Order Forms or SOWs must be signed by Customer before NEOGOV shall commence work. If Customer does not execute a separate SOW, the Services shall be provided as stated on the Order Form and this Agreement and documents incorporated herein shall control. All Professional Services purchased by Customer must be utilized within twelve (12) months of the date of the applicable Order Form or SOW.

5. Payment Terms.
a) Fees. Unless otherwise stated in an Order Form, Customer shall pay all Subscription, Onboarding and Set-Up fees (“Subscription Fees”) and Professional Service fees (“Professional Service Fees”, collectively the “Fees”) within thirty (30) days of Customer’s receipt of NEOGOV’s invoice. Fees shall be invoiced annually in advance and in a single invoice for each Term. Invoices shall be delivered to the stated “Bill To” party on the Order Form. Unless explicitly provided otherwise, once placed the Order Form is non-cancellable and sums paid nonrefundable. Any invoiced amount that is not received by NEOGOV when due as set forth in an Order Form will be subject to a late payment fee of 1.5% per month or the maximum rate permitted by law, whichever is lower. If any amount owing by Customer is more than 30 days overdue, NEOGOV may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full. Subscription Fees are based upon the Authorized User count unless otherwise stated in an Order Form and Customer shall owe NEOGOV supplemental Subscription Fees to the extent Customer exceeds the number of Authorized Users set forth in the Order Form. Except as otherwise specifically stated in the Order Form, NEOGOV may change the charges for the Services with effect from the start of each Renewal Term by providing Customer with a new Order Form at least thirty (30) day notice prior to commencement of a Renewal Term. The new Order Form shall be deemed to be effective if Customer (a) returns the executed Order Form to NEOGOV, (b) remits payment to NEOGOV of the fees set forth in the invoice referencing the Order Form, or (c) the Customer or any of its Authorized Users access or use the Services after the expiration of the previous Term. b) Taxes. Customer will pay all taxes, duties and levies imposed by all federal, state, and local authorities (including, without limitation, export, sales, use, excise, and value-added taxes) based on the transactions or payments under this Agreement, except those taxes imposed or based on NEOGOV’s net income or those exempt by applicable state law.

Customer shall provide NEOGOV with a certificate or other evidence of such exemption within ten (10) days of NEOGOV’s request therefor.
c) Customer Purchase Orders. Except as otherwise specified in an Order Form, Customer will not require any purchase order to pay fees due or otherwise to perform its obligations with respect to any Order Form. Any reference to a purchase order in an Order Form or any associated invoice is solely for Customer's convenience in record keeping, and no such reference or any delivery of services to Customer following receipt of any purchase order shall be deemed an acknowledgement of or an agreement to any terms or conditions referenced or included in any such purchase order. If a purchase order is delivered by Customer in connection with the purchase of Services, none of the terms and conditions contained in such purchase order shall modify or supersede the terms and conditions of this Agreement. NEOGOV’s failure to object to terms contained in any such purchase order shall not be a waiver of the terms set forth in this provision or in this Agreement.

6. Term and Termination.
2 Item 1K - Page 5 Item 1J - Page 6
NEOGOV™ P<!>werDMS
Digital Management Software
A NEOGOV Company
a) Term. Unless otherwise specified in an applicable Order Form, this Agreement shall commence on the Effective Date.

This Agreement shall remain in effect until all SaaS Subscriptions have expired and/or both parties have achieved full performance of Professional Services or other services detailed in a SOW, unless it is terminated earlier in accordance with this Agreement.
b) Termination for Cause; Effect of Termination. Either Party may terminate this Agreement immediately if the other is in material breach of this Agreement and such breach is not cured within thirty (30) days following non-breaching party’s written specification of the breach. NEOGOV may suspend the Services or terminate this Agreement immediately in the event the Services or Customer’s use of the Services provided hereunder pose a security risk to the Services, NEOGOV or any third party, or become illegal or contrary to any applicable law, rule, regulation, or public policy.

Upon expiration or any termination of this Agreement, Customer shall cease all use and refrain from all further use of the Services and other NEOGOV Intellectual Property. Additionally, Customer shall be obligated to pay, as of the effective date of such expiration or termination, all amounts due and unpaid to NEOGOV under this Agreement. Unless otherwise specified, after expiration or termination of this Agreement NEOGOV may remove Customer Data from NEOGOV Services and without Customer consent or notice.

7. Audit Rights. Upon reasonable notice, NEOGOV or its agent shall have the right to audit Customer’s records relating to its compliance with this Agreement. Customer shall cooperate fully with this audit. If any audit conducted under this Section indicates that any amount due to NEOGOV was underpaid, Customer shall within three (3) business days pay to NEOGOV the amount due. All expenses associated with any such audit shall be paid by NEOGOV unless the audit reveals underpayment in excess of five percent (5%), in which case Customer shall pay such expenses as well as any amount due to NEOGOV.

8. Maintenance; Modifications; Support Services.
a) Maintenance, Updates, Upgrades. NEOGOV maintains NEOGOV’s hardware and software infrastructure for the Services and is responsible for maintaining the NEOGOV server operation and NEOGOV database security. NEOGOV may in its sole discretion, periodically modify, Update, and Upgrade the features, components, and functionality of the Services during the Term. “Update” means any update, bug fix, patch or correction of the Services or underlying NEOGOV software that NEOGOV makes generally available to its customers of the same module, excluding Upgrades. Updates are automatic and available upon Customer’s next login to the Services following an Update at no additional cost to Customer. “Upgrade” means any update of the Services or underlying NEOGOV software such as platform updates, and major product enhancements and/or new features that NEOGOV makes commercially available.

NEOGOV shall have no obligation to provide Upgrades to customers and retains the right to offer Upgrades free of cost or on a per customer basis at additional cost. NEOGOV shall have no liability for, or any obligations to, investments in, or modifications to Customer’s hardware, systems or other software which may be necessary to use or access the Services due to a modification, Update, or Upgrade of the Services. b) Program Documentation; Training Materials. “Program Documentation” shall mean all user guides, training, and implementation material, and Service descriptions provided by NEOGOV to Customer in connection with the Services.

NEOGOV hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use, print, and distribute internally via non-public platforms, the Program Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services. Primary training of NEOGOV Services is conducted by self-review of online materials. NEOGOV’s pre-built, online training consists of a series of tutorials to introduce the standard features and functions (the “Training Materials”). The Training Materials may be used as reference material by Customer Personnel conducting day-to-day activities. c) Implementation. For Services requiring implementation, NEOGOV implementation supplements the Training Materials and is conducted off-site unless otherwise agreed in the Order Form. NEOGOV personnel will provide consultation on best practices for setting up the Services, answer Customer questions during the implementation period, and use commercially reasonable efforts to ensure Authorized User Admins grasp the system. The length of the implementation time is dependent on the type of Service and the Customer’s responsiveness. NEOGOV is not responsible or liable for any delay or failure to perform implementation caused in whole or in part by Customer's delay in performing it obligations hereunder and, in the event of any such delay, NEOGOV may, in its sole discretion, extend all performance dates as NEOGOV deems reasonably necessary.
d) Support. Phone support for the Services is available to Customer Monday through Friday, excluding NEOGOV holidays. Customer may submit a request for online support for the Services 24 hours a day, seven days a week, and the 3 Item 1K - Page 6 Item 1J - Page 7
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NEOGOV support desk will acknowledge receipt of the request within a reasonable time. The length of time for a resolution of any problem is dependent on the type of case. e) Limitations. Unless otherwise specified in the Order Form, this Agreement does not obligate NEOGOV to render any maintenance or support services that are not expressly provided herein, including, but not limited to data uploads, manual data entry, migration services, data conversion, refinement, purification, reformatting, SQL dump, or process consultation.

9. NEOGOV Intellectual Property. NEOGOV shall exclusively own all right, title and interest in and to all pre-existing and future intellectual property developed or delivered by NEOGOV including all Services, products, systems, software (including any source code or object code) or Service Specifications related thereto, Updates or Upgrades, trademarks, service marks, logos and other distinctive brand features of NEOGOV and all proprietary rights embodied therein (collectively, the “NEOGOV Intellectual Property”). This Agreement does not convey or transfer title or ownership of the NEOGOV Intellectual Property to Customer or any of its users. All rights not expressly granted herein are reserved by NEOGOV. Other than recommendation use or as required by law, all use of NEOGOV trademarks must be pre-approved by NEOGOV prior to use. Trademarks shall include any word, name, symbol, color, designation or device, or any combination thereof that functions as a source identifier, including any trademark, trade dress, service mark, trade name, logo, design mark, or domain name, whether or not registered.

10. Data Processing and Privacy.
a) Customer Data. “Customer Data” shall mean all data that is owned or developed by Customer, whether provided to NEOGOV by Customer or provided by a third party to NEOGOV in connection with NEOGOV’s provision of Services to Customer, including Personnel data collected, loaded into, or located in Customer data files maintained by NEOGOV. NEOGOV Intellectual Property, including but not limited to the Services and all derivative works thereof, NEOGOV Confidential Information, and Platform Data do not fall within the meaning of the term “Customer Data”.

Customer exclusively owns all right, title, and interest in and to all Customer Data. Customer grants NEOGOV a license to host, use, process, display, create non-personal derivative works of, and transmit Customer Data to provide the Services. NEOGOV reserves the right to delete or disable Customer Data stored, transmitted or published by Customer using the Services upon receipt of a bona fide notification that such content infringes upon the Intellectual Property Rights of others, or if NEOGOV otherwise reasonably believes any such content is in violation of this Agreement.
b) Platform Data. “Platform Data” shall mean any anonymized data reflecting the access or use of the Services by or on behalf of Customer or any user, including statistical or other analysis and performance information related to the provision and operation of the Services including any end user visit, session, impression, clickthrough or click stream data, as well as log, device, transaction data, or other analysis, information, or data based on or derived from any of the foregoing. NEOGOV shall exclusively own all right, title and interest in and to all Platform Data. Customer acknowledges NEOGOV may compile Platform Data based on Customer Data input into the Services. Customer agrees that NEOGOV may use Platform Data to the extent and in the manner permitted under applicable law. c) Data Processing Agreement. To the extent Customer uses the Services to target and collect personal information from users located in the European Union, European Economic Area, or Switzerland (the “EU”) or the United Kingdom (“UK”), or has Authorized Users accessing the Services from the EU or UK, the following NEOGOV Data Processing Addendum (“DPA”) is incorporated herein by reference:
https://www.neogov.com/hubfs/Legal%20Documents/Customer%20Data%20Processing%20Addendum-signed.pdf. d) Data Responsibilities.
i) NEOGOV will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by NEOGOV personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by applicable law, or (c) as Customer expressly permits in writing. Customer acknowledges and agrees that it is commercially reasonable for NEOGOV to rely upon the security processes and measures utilized by NEOGOV’s cloud infrastructure providers.
ii) Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Data.

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data into the Services. Customer shall be solely responsible for and shall comply with all applicable laws and regulations relating to (i) the accuracy and completeness of all information input, submitted, or uploaded to the Services, (ii) the privacy of users of the Services, including, without limitation, providing appropriate notices to and obtaining appropriate consents from any individuals to whom Customer Data relates; and (iii) the collection, use, modification, alteration, extraction, retention, copying, external storage, disclosure, transfer, disposal, and other processing of any Customer Data. NEOGOV is not responsible for lost data caused by the action or inaction of Customer or Authorized Users. Unless otherwise mutually agreed in writing, Customer shall not maintain any financial, health, payment card, or similarly sensitive data that imposes specific data security or data protection obligations within the Services.
e) Breach Notice. NEOGOV will notify Customer of unauthorized access to, or unauthorized use, loss or disclosure of Customer Data within its custody and control (a “Security Breach”) within 72 hours of NEOGOV’s confirmation of the nature and extent of the same or when required by applicable law, whichever is earlier. Each party will reasonably cooperate with the other with respect to the investigation and resolution of any Security Breach. If applicable law or Customer’s policies require notification of its Authorized Users or others of the Security Breach, Customer shall be responsible for such notification.
f) Data Export, Retention and Destruction. Customer may export or delete Customer Data from the Services at any time during a Subscription Term, using the existing features and functionality of the Services. Customer is solely responsible for its data retention obligations with respect to Customer Data. If and to the extent Customer cannot export or delete Customer Data stored on NEOGOV’s systems using the then existing features and functionality of the Services, NEOGOV will, upon Customer's written request, make the Customer Data available for export by Customer or destroy the Customer Data. If Customer requires the Customer Data to be exported in a different format than provided by NEOGOV, such additional services will be subject to a separate agreement on a time and materials basis. Except as otherwise required by applicable law, NEOGOV will have no obligation to maintain or provide any Customer Data more than ninety (90) days after the expiration or termination of this Agreement.

11. Third Party Services. The Services may permit Customer and its Authorized Users to access services or content provided by third parties through the Services (“Third Party Services”). Customer agrees that NEOGOV is not the original source and shall not be liable for any inaccuracies contained in any content provided in any of the Third Party Services. NEOGOV makes no representations, warranties or guarantees with respect to the Third Party Services or any content contained therein.

NEOGOV may discontinue access to any Third Party Services through the Services if the relevant agreement with the applicable third party no longer permits NEOGOV to provide such access. If loss of access to any Third Party Services (to which Customer has a subscription under this Agreement) occurs during a Subscription Term, NEOGOV will refund to Customer any prepaid fees for such Third Party Services covering the remainder of the Subscription Term.

12. Nondisclosure.
a) Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer's Confidential Information includes its Customer Data. NEOGOV Confidential Information includes the NEOGOV Intellectual Property and the Services. The Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
b) Obligations. The Receiving Party will: (i) use the same degree of care it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (iii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not less protective of the Confidential Information than those herein.
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NEOGOV™ P<!>werDMS
Digital Management Software
A NEOGOV Company
c) Exceptions. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
d) Equitable Relief. The parties recognize and agree there is no adequate remedy at law for breach of the provisions of the confidentiality obligations set forth in this Section 12, that such a breach would irreparably harm the Disclosing Party and the Disclosing Party is entitled to seek equitable relief (including, without limitation, an injunction) with respect to any such breach or potential breach in addition to any other remedies available to it at law or in equity.

13. Representations, Warranties, and Disclaimers.
a) Mutual Representations. Each party represents and warrants to the other party that (i) it has full power and authority under all relevant laws and regulations and is duly authorized to enter into this Agreement; and (ii) to its knowledge, the execution, delivery and performance of this Agreement by such party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it. b) Service Performance Warranty. NEOGOV warrants that it provides the Services using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND NEOGOV STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD PARTY SERVICES. c) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS WARRANTY SECTION, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK. NEOGOV DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS

AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF

MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEOGOV

DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, OR THAT ANY ERROR WILL BE CORRECTED. d) Disclaimer of Actions Caused by and/or Under the Control of Third Parties. NEOGOV DOES NOT AND CANNOT

CONTROL THE FLOW OF DATA TO OR FROM THE NEOGOV SYSTEM AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH NEOGOV WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL

ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, NEOGOV CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, NEOGOV DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.

14. Indemnification.
a) Customer Indemnity. To the extent permitted by applicable law, Customer will defend and indemnify NEOGOV from and against claim, demand, suit or proceeding made or brought against NEOGOV (a) by a third party alleging that any Customer Data infringes or misappropriates such third party's intellectual property rights, (b) in connection with Customer’s violation of any applicable laws, or (c) any claim or allegation by any third party resulting from or related to Customer’s or any of its Authorized User’s breach of Section 3 of this Agreement, in each case provided that Customer is promptly notified of any and all such claims, demands, suits or proceedings and given reasonable assistance and the opportunity to assume sole control over defense and settlement. b) NEOGOV Indemnity. Subject to subsections 14(b)(i) through 14(b)(iii) of this Section, if a third party makes a claim against Customer that any NEOGOV intellectual property furnished by NEOGOV and used by Customer infringes a third party’s intellectual property rights, NEOGOV will defend the Customer against the claim and indemnify the Customer from the damages and liabilities awarded by the court to the third-party claiming infringement or the settlement agreed to by NEOGOV, provided that NEOGOV is promptly notified of any and all such claims, demands, suits or proceedings and given reasonable assistance and the opportunity to assume sole control over defense and settlement.
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Digital Management Software
A NEOGOV Company
i) Alternative Resolution. If NEOGOV believes or it is determined that any of the Services may have violated a third party’s intellectual property rights, NEOGOV may choose to either modify the Services to be non-infringing or obtain a license to allow for continued use. If these alternatives are not commercially reasonable, NEOGOV may end the subscription or license for the Services and refund a pro-rata portion of any fees covering the whole months that would have remained, absent such early termination, following the effective date of such early termination.
ii) No Duty to Indemnify. NEOGOV will not indemnify Customer if Customer alters the Service or Service Specifications, or uses it outside the scope of use or if Customer uses a version of the Service or Service Specifications which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Services or Service Specifications which was provided to Customer, or if the Customer continues to use the infringing material after the subscription expires. NEOGOV will not indemnify the Customer to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by NEOGOV. NEOGOV will not indemnify Customer for any portion of an infringement claim that is based upon the combination of Service or Service Specifications with any products or services not provided by NEOGOV. NEOGOV will not indemnify Customer for infringement caused by Customer’s actions against any third party if the Services as delivered to Customer and used in accordance with the terms of the Agreement would not otherwise infringe any third-party intellectual property rights.
iii) Exclusive Remedy. This Section provides the exclusive remedy for any intellectual property infringement claims or damages against NEOGOV.

15. Limitations of Liability.
a) EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO

EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS

SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY OR PROFIT, OR LOSS OF REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY,

SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE

ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE

OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
a) CAP ON MONETARY LIABILITY. EXCEPT FOR DAMAGES ARISING OUT OF LIABILITY WHICH CANNOT BE LAWFULLY EXCLUDED OR LIMITED, CUSTOMER’S OBLIGATIONS TO MAKE PAYMENT

UNDER THIS AGREEMENT, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF NEOGOV

INTELLECTUAL PROPERTY RIGHTS, THE TOTAL LIABILITY OF EITHER PARTY FOR ANY AND ALL

CLAIMS AGAINST THE OTHER PARTY UNDER THIS AGREEMENT, WHETHER ARISING UNDER OR

RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY

OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED THE AMOUNT OF ALL PAYMENTS

ACTUALLY RECEIVED BY NEOGOV FROM CUSTOMER IN CONNECTION WITH THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE DATE OF THE EVENT INITIALLY GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL PAYMENTS FOR

CLAIMS OR DAMAGES IN CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF

LIABILITY IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES

AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

16. Text Message Communications. NEOGOV may offer Personnel the opportunity to receive text messages regarding job application or hiring process reminders, applicant status updates, or other human resource related notices. Since these text message services depend on the functionality of third-party providers, there may be technical delays on the part of those 7 Item 1K - Page 10 Item 1J - Page 11
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A NEOGOV Company
providers. NEOGOV may make commercially reasonable efforts to provide alerts in a timely manner with accurate information, but cannot guarantee the delivery, timeliness, or accuracy of the content of any alert. NEOGOV shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert. NEOGOV cannot vouch for the technical capabilities of any third parties to receive such text messages. To the extent you utilize text messaging features, NEOGOV shall not be responsible for your use of such features, and you shall indemnify NEOGOV with respect to any damages resulting from your use including but not limited any violations of applicable law. NEOGOV MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY, OR IMPLIED AS TO: (i) THE AVAILABILITY OF TELECOMMUNICATION SERVICES; (ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS, OR SETTINGS CONNECTED WITH THE SERVICES.

17. Publicity. Unless otherwise provided in the applicable Order Form, NEOGOV may identify Customer as one of its customers and use Customer’s logo for such purposes, subject to any trademark usage requirements specified by Customer.

18. Force Majeure. Except for Customer’s payment obligations to NEOGOV, neither party shall be liable for any damages, costs, expenses or other consequences incurred by the other party or by any other person or entity for any act, circumstance, event, impediment or occurrence beyond such party’s reasonable control, including, without limitation: (a) acts of God; (b) changes in or in the interpretation of any law, rule, regulation or ordinance; (c) strikes, lockouts or other labor problems; (d) transportation delays; (e) unavailability of supplies or materials; (f) fire or explosion; (g) riot, pandemic, military action or usurped power; (h) actions or failures to act on the part of a governmental authority; (i) internet service interruptions or slowdowns, vandalism or cyber-attacks, or (j) any other cause beyond the reasonable control of such party.

19. Independent Contractor; No Third Party Beneficiary; Fulfillment Partners. The relationship of the parties shall be deemed to be that of an independent contractor and nothing contained herein shall be deemed to constitute a partnership between or a joint venture by the parties hereto or constitute either party the employee or agent of the other. Customer acknowledges that nothing in this Agreement gives Customer the right to bind or commit NEOGOV to any agreements with any third parties.

This Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any such party whether referred to herein or not. NEOGOV may designate any third-party affiliate, or other agent or subcontractor (each a “Fulfillment Partner”), without notice to, or the consent of, Customer, to perform such tasks and functions to complete any Services.

20. Entire Agreement; Amendment. This Services Agreement, the Exhibits hereto and documents incorporated herein, the applicable Order Form, and Special Conditions (if any) constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior or contemporaneous oral and written statements of any kind whatsoever made by the parties with respect to such subject matter. Any Customer proposal for additional or different terms, or Customer attempt to vary in any degree any of the terms of this Agreement is hereby objected to and rejected but such proposal shall not operate as a rejection of this Service Agreement and Order Form unless such variances are in the terms of the description, quantity, or price but shall be deemed a material alteration thereof, and this Service Agreement and the applicable Order Form shall be deemed accepted by the Customer without said additional or different terms. It is expressly agreed that the terms of this Agreement and any NEOGOV Order Form shall supersede the terms in any non-NEOGOV purchase order or other ordering document. Notwithstanding the foregoing, any conflict of terms shall be resolved by giving priority in accordance with the following order: 1) Special Conditions (if any), 2) NEOGOV Order Form, 3) the NEOGOV Services Agreement, and 4) incorporated documents. This Agreement supersedes the terms and conditions of any clickthrough agreement associated with the Services. This Agreement may not be modified or amended (and no rights hereunder may be waived) except through a written instrument signed by the parties to be bound.

21. General. This Agreement shall be governed by and construed in accordance with the laws of the state of California, without giving effect to conflict of law rules. Any legal action or proceeding relating to this Agreement shall be instituted only in any state or federal court in Los Angeles, California. If any provision of this Agreement is held to be illegal or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that the remainder of this Agreement will continue in full force and effect. Provisions that survive termination or expiration are those relating to, without limitation, accrued rights to payment, acknowledgements and reservations of proprietary rights, confidentiality obligations, warranty disclaimers, and limitations of liability, and others which by their nature are intended to survive. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given either when personally delivered, one (1) business day following delivery by recognized overnight courier or electronic mail, or three (3) business days following deposit in the U.S. mail, registered or certified, postage prepaid, return receipt requested. All such communications shall be sent to (i) Customer at the address set forth in the Order Form and (ii) NEOGOV at the address specified in the applicable Order Form. The waiver, express or implied, by either party of any 8 Item 1K - Page 11 Item 1J - Page 12
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A NEOGOV Company
breach of this Agreement by the other party will not waive any subsequent breach by such party of the same or a different kind. Delivery of a copy of this Agreement or an Order Form bearing an original signature by facsimile transmission, by electronic mail or by any other electronic means will have the same effect as physical delivery of the paper document bearing the original signature. Customer may not assign this Agreement without the express written approval of NEOGOV and any attempt at assignment in violation of this Section shall be null and void. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. 9 Item 1K - Page 12 Item 1J - Page 13
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Digital Management Software
A NEOGOV Company
Exhibit A
Government Customer Addendum
If Customer is a Government Customer, the following Government Customer Addendum (“Government Addendum”) forms part of the Services Agreement, and in the case of any conflict or inconsistency between the terms and provisions of this Addendum and any other provision of the Services Agreement, the terms of this Government Addendum shall control. For purposes hereof, a “Government Customer” means a Customer which is a (a) U.S. Federal agency, (b) state government, agency, department, or political subdivision (including a city, county or municipal corporation), or (c) instrumentality of any of the foregoing (including a municipal hospital or municipal hospital district, police or fire department, public library, park district, state college or university, Indian tribal economic development organization, or port authority).

1. Applicability. The provisions of this Addendum shall apply only if Customer is a Government Customer under the Services Agreement.

2. Termination for Non-Appropriation of Funds. If Customer is subject to federal, state or local law which makes Customer’s financial obligations under this Services Agreement contingent upon sufficient appropriation of funds by the applicable legislature (or other appropriate governmental body), and if such funds are not forthcoming or are insufficient due to failure of such appropriation, then Customer will have the right to terminate the Services Agreement at no additional cost and with no penalty by giving prior written notice documenting the lack of funding. Customer will provide at least thirty (30) days advance written notice of such termination. Customer will use reasonable efforts to ensure appropriated funds are available. If Customer terminates the Services Agreement under this Section 2, Customer agrees not to replace the Services with functionally similar products or services for a period of one year after the termination of the Services Agreement.

3. Indemnification. If Customer is prohibited by federal, state or local law from agreeing to hold harmless or indemnify third parties, Section 14(a) of the Services Agreement shall not apply to Customer, to the extent disallowed by applicable law.

4. Open Records. If the Customer is subject to federal or state public records laws, including laws styled as open records, freedom of information, or sunshine laws (“Open Records Laws”) the confidentiality requirements of Section 12 of the Services Agreement apply only to the extent permitted by Open Records Laws applicable to the Customer. This Section is not intended to be a waiver of any of the provisions of the applicable Open Records Laws, including, without limitation, the requirement for the Customer to provide notice and opportunity for NEOGOV to assert an exception to disclosure requirements in accordance with the applicable Open Records laws.

5. Cooperative Purchasing. If Customer is a Government Customer, but is not a U.S. Federal Agency or subdivision thereof, NEOGOV agrees to allow any other state agency, department, political subdivision or instrumentality of the state but in all cases located in the same state as the Customer (“Related Agency”) to purchase Services under the terms of the Services Agreement, at the Related Agency’s discretion with the following requirements, exceptions and limitations: (a) any purchases made by a Related Agency shall be transactions between the Related Agency and NEOGOV; for clarity, Customer shall not be responsible for any transactions between the Related Agency and NEOGOV, (b) the terms (including pricing) specified in the Order Forms entered into between NEOGOV and Customer shall not be incorporated into the transactions between the Related Agency and NEOGOV, and (c) the Related Agency will confirm in writing it has the authority to use the Services Agreement for the purchase and that the use of the Services Agreement for the purchase is not prohibited by law or procurement regulations or standards applicable to the Related Agency.
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NEOGOV™ P<!>werDMS
Digital Management Software
A NEOGOV Company
Exhibit B
PowerEngage Platform Addendum
If Customer is purchasing the PowerEngage Platform pursuant to an Order Form, the following terms are hereby incorporated into the Services Agreement (“PowerEngage Addendum”). This PowerEngage Platform Addendum forms part of the Services Agreement, and in the case of any conflict or inconsistency between the terms and provisions of this PowerEngage Addendum and any other provision of the Services Agreement, the terms of this PowerEngage Addendum shall control.

1. Applicability. The provisions of this PowerEngage Addendum shall apply only if Customer has purchased the PowerEngage Platform pursuant to an Order Form.

2. CAD/RMS Assumptions. The parties agree that the fees specified with respect to the PowerEngage Platform on the applicable Order Form do not include any additional fees that the Customer’s CAD or RMS vendor may charge, if any. The Services Agreement and this Exhibit B is entered into with the mutual assumption that the PowerEngage Platform will be able to make a connection to Customer’s CAD or RMS replicated or reporting database directly or will be able to read from a file produced for such a purpose.

3. CAD/RMS Provisions. The definition of Confidential Information in Section 12 of the Services Agreement shall also include any Customer CAD and/or RMS data made available to NEOGOV in connection with the provision of the PowerEngage Platform.

4. SOW. NEOGOV agrees to provide the training, configuration and support services with respect to the PowerEngage Platform, and Customer acknowledges that its cooperation is required for efficient and timely implementation of the PowerEngage Platform, in accordance with the following:

PowerEngage Software
NEOGOV will be used to survey citizens that have interacted with Customer, send messages to citizens or other stakeholders and gather and report on data. Customer will be able to configure the surveys and rules based on data received from the Computer Aided Dispatch System. The results of the surveys will be stored within PowerEngage and available for display in a Feedback Board and within the analytics component called Measure. Other rules and messages can be built to be triggered to send on certain events as driven by the rules engine.

NEOGOV and Customer Responsibilities
The bullet points below outline when NEOGOV, Customer, or both NEOGOV and Customer have responsibility with respect to a particular deliverable.

1. NEOGOV will configure a tenant and telephone number group for the Customer

2. NEOGOV will schedule a 90-minute kickoff call with the Customer to review the objectives, timeline and mutual deliverables ● Configure Customer administrator account - NEOGOV
● Walk Customer through the survey builder - NEOGOV
● Walk Customer through the rules builder - NEOGOV
● Walk Customer through the Feedback Board- NEOGOV
● Walk Customer through Activity /Survey tools- NEOGOV
● Walk Customer through the CueHit CAD Data Agent and what is needed for the connection to CAD - NEOGOV

3. Customer will gather information needed for Surveys, Rules, Tasks and CAD/RMS Data – Customer

4. NEOGOV will coordinate a CAD/RMS Connection Workshop with Customer ● Configure PowerEngage CAD/RMS agent- NEOGOV and Customer ● Connect to Customer CAD/RMS Data – Customer
● Test data – NEOGOV and Customer

5. NEOGOV will coordinate a 2-hour Survey Workshop with Customer ● Consult on the questions to ask in a satisfaction survey (maximum of 3 to 5 questions) = NEOGOV and Customer ● Configure the questions in the survey tool = NEOGOV and Customer 11 Item 1K - Page 14 Item 1J - Page 15
NEOGOV™ P<!>werDMS
Digital Management Software
A NEOGOV Company
● Configure the acceptable responses in the survey tool = NEOGOV and Customer ● Configure additional criteria (Follow Up question only) = NEOGOV and Customer ● Send sample survey to Customer on text message = NEOGOV and Customer ● Review in Feedback Board and Activity Screens= NEOGOV and Customer

6. NEOGOV will coordinate a 2- 4 hour Rules Workshop with Customer to jointly ● Consult on the rules for surveys and automatic text notifications = NEOGOV and Customer ● Configure the rules and texts = NEOGOV and Customer
● Send example encounters to test rules = NEOGOV and Customer ● Review in Activity= NEOGOV and Customer

7. NEOGOV will coordinate a 2 Hour Task Creation and Notification Workshop with Customer to jointly:
● Configure Tasks and Task Assignments
● Identify Personnel information needed for notifications and digest emails ● Import Personnel information for receiving messages and emails from Customer provided .xls or .csv

8. NEOGOV will schedule a 2-hour Analytics Workshop with the Customer to review the ideas for the Dashboards to reflect the results of the surveys.
● NEOGOV will review standard visualizations and data in the dashboard ● NEOGOV will request from the Customer, input on the data and visualization to be presented in the Measure Tool ● Once agreed, a maximum of 1 custom visualizations will be created by NEOGOV and deployed to the Customer’s environment

9. NEOGOV will train the Customer Administrators on the use of the PowerEngage configuration tools, Measure tools and Activity logs.

Support Services
Telephone Assistance. Customer will be given the telephone number for a support line and will be entitled to contact the support line during normal operating hours, (between 7:30am and 5:30pm Central Time) on regular business days, excluding NEOGOV holidays, to consult with NEOGOV technical support staff concerning problem resolution, bug reporting, documentation clarification, and general technical guidance. Assistance may include remote connectivity, modem, or electronic bulletin board.

Software Problem Reporting. Customer may submit requests to NEOGOV identifying potential problems in the PowerEngage software. Requests should be in writing and directed to NEOGOV by e-mail, or through the NEOGOV support website.

NEOGOV retains the right to determine in the final disposition of all requests and will inform Customer of the disposition of each request. If NEOGOV acts upon a request, it will do so by providing a bug fix.

Scheduled Maintenance. Software may be unavailable periodically for system maintenance. Regular system maintenance includes installation of the software updates, operating system updates/patches and updates to other third-party applications as needed. Customers are notified of maintenance periods via an email message or via a banner on the main page of the PowerEngage Platform.

Exclusions from Technical Support Services:

NEOGOV shall have no support obligations with respect to any third-party hardware or software product. 12 Item 1K - Page 15 Item 1J - Page 16
NEOGOV™ P<!>werDMS
Digital Management Software
A NEOGOV Company
Exhibit C
HRIS Addendum
The following terms govern the use of the HRIS Services (the “HRIS Addendum”) as they relate to specific HRIS Services ordered by Customer in an Order Form. “HRIS Services” refers to the following SaaS Applications or any Add-Ons (defined below) or Professional Services related to such SaaS Applications: NEOGOV Core HR, NEOGOV Payroll, and NEOGOV Time and Attendance. If any provision within the HRIS Addendum directly conflicts with any other provision of the Services Agreement, the terms of this Addendum shall control.

Implementation; Add-Ons; and Configuration Limitation. Implementation of HRIS Services as detailed in the standard statement of work (“SOW”) and the mutually agreed-upon scope document (“Scope”) will proceed in accordance with the estimated implementation schedule provided by NEOGOV and as further detailed in the SOW and Scope. Implementation services not included in the SOW and Scope may be subject to additional fees. Customer acknowledges that the timeline for the implementation schedule is an estimate only and dependent on a number of variables, including but not limited to Customer’s responsiveness to NEOGOV’s requests during the implementation process and Customer’s obligation to fill out the “Implementation Workbook” to facilitate the implementation process. In the event that Customer does not order the full suite of HRIS services offered, NEOGOV may be required to generate custom feeds for Customer for an additional fee. During implementation, Customer may elect optional add-on services that supplement the SaaS Applications (the “Add-Ons”). After completion of implementation, any subsequent changes Customer requests to the configuration of the HRIS Services will be at cost.

NEOGOV will have no responsibility for nor any duty to review, verify, correct or otherwise perform any investigation as to the completeness, accuracy or sufficiency of any data or information input into the HRIS system by or on behalf of the Customer. Customer is solely responsible for ensuring that all data entered into and stored in the HRIS system is accurate and complete, and for correcting any errors or discrepancies in such data.

CORE HR and Benefits – Additional Terms
The following terms shall apply to the extent that Customer orders the NEOGOV Core HR, and HRIS Services involving benefits administration (the “Benefits Module”):

1. Benefits Module Representative. Customer shall designate one or more persons who shall serve as NEOGOV’s designated contact for the Benefits Module (the “Benefits Representative”). Customer represents and warrants to NEOGOV that the Benefits Representative has, and shall at all times have, the requisite authority to transmit information, directions and instructions on behalf of Customer, each “plan administrator” defined in Section 3(16)(A) of the ERISA and Section 414(g) of the Code and, if applicable, each “fiduciary” (as defined in Section 3(21) of ERISA) of each separate employee benefit plan covered by the Benefits Module (each, a “Benefit Plan”). The Benefits Representative also shall be deemed to have authority to issue, execute, grant, or provide any approvals, requests, notices, or other communications required or permitted under the Services Agreement or requested by NEOGOV in connection with the Benefits Module.

2. Use of the Benefits Module.
a) HR Users. Customer shall authorize an administrator to input information and access certain information relating to (i) the benefits offered by Customer and (ii) Customer’s employees/plan participants and their benefit options and elections as well as view certain personal and company information regarding company employees. The Benefits Module permits Customer’s employees/plan participants to make various benefits elections and to view and update certain personal and company information. It is Customer’s responsibility to submit instructions and information relating to the Benefits Module and to verify the accuracy and completeness of all such instructions and information submitted by Customer, employees, and plan participants. b) NEOGOV Not Fiduciary Advisor. Customer acknowledges and agrees that, in making the Benefits Module available, NEOGOV is not acting as an investment advisor, broker-dealer, insurance agent, tax advisor, attorney or intermediary or a financial or benefit planner. NEOGOV is not providing any benefits, tax advice, or any information related thereto; Customer is responsible for making available all benefits and information related thereto referenced or included in the Benefits Module.
13 Item 1K - Page 16 Item 1J - Page 17
NEOGOV™ P<!>werDMS
Digital Management Software
A NEOGOV Company
c) NEOGOV’s Health Care Clearinghouse Status. Customer expressly acknowledges and agrees that NEOGOV is not a “Health Care Clearinghouse”, a “Covered Entity” or a “Business Associate” within the meaning of HIPAA, and Customer shall not request or otherwise require NEOGOV to act as such. To the extent that NEOGOV is required to enter into any additional agreement as a result of Customer’s use of the Benefits module, Customer shall be responsible for any liability incurred by NEOGOV thereunder.

3. Additional Termination Rights. NEOGOV may terminate Core HR, the Benefits Module, or this Services Agreement immediately upon written notice to the Customer upon (a) the failure of Customer to maintain its Benefit Plan(s) in compliance with ERISA or other applicable laws or regulations or (b) NEOGOV’s determination that the exercise of any of the rights granted hereunder or the continued performance by NEOGOV of its obligations under this Services Agreement would cause NEOGOV to violate any applicable international, federal, state or local law(s) and/or regulation(s).

4. ERISA. The terms of this Section only shall apply to the extent Customer uses services governed, in whole or in part, by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) a) NEOGOV’s Non-Fiduciary Status. Customer expressly acknowledges and agrees that NEOGOV is not an “Administrator”, “Plan Sponsor,” or a “Plan Administrator” as defined in Section 3(16)(A) of ERISA, and Section 414(g) of the Internal Revenue Code of 1986, as amended (the “Code”), respectively, nor is NEOGOV a “fiduciary” within the meaning of ERISA Section 3(21), and Customer shall not request or otherwise require NEOGOV to act as such. NEOGOV shall not exercise any discretionary authority or control respecting management of any of Customer’s benefit or welfare plans (“Plan” or “Plans”) or management or disposition of any of Customer’s benefit or welfare Plan assets. NEOGOV shall not render investment advice for a fee or other compensation, direct or indirect, with respect to any monies or other property of any Plan, nor does NEOGOV have any authority or responsibility to do so. NEOGOV has no discretionary authority or discretionary responsibility in the administration of the Plan(s).
b) Use of NEOGOV’S Name. Customer or the Plan Administrator must obtain the prior written consent of NEOGOV to insert any references to NEOGOV or its affiliates, or to NEOGOV Services, with respect to any communication or document pertaining to a Plan prepared by Customer, or on behalf of Customer (other than documents prepared by NEOGOV), unless the reference only identifies NEOGOV as a service provider or the reference is required in a filing or document required by ERISA or any other applicable law. Without limiting the foregoing, in no event may Customer or the Plan Administrator identify or refer to NEOGOV as “administrator”, “plan administrator”, “third-party administrator”, “plan sponsor”, “fiduciary”, “plan fiduciary” or similar title.

5. Direct to Carrier Services. Customer may elect direct to insurance carrier services (each a “Carrier Link”) at its option, each for an additional cost. Reconfiguration of existing Carrier Links, establishing new Carrier Links, and additional elections are available for an additional fee and may be completed by NEOGOV at NEOGOV’s then current rates.

Customer may access and use the NEOGOV HRIS Services to electronically transmit employee data, including employee benefits enrollment data, to Customer’s carriers or other third parties authorized by Customer. NEOGOV’s ability to transmit data is subject to the provision of a current functional interface between HRIS Services and the carriers’ systems. NEOGOV will not be obligated to transmit Customer’s data to carriers if at any time Customer’s carriers fail to provide the proper interface as solely determined by NEOGOV. If Customer requires development of any special or customized interfaces to transmit such data, all work performed by NEOGOV to create such interfaces will be at NEOGOV’s then current fees for such services. NEOGOV makes no warranty that each carrier’s specifications will conform with NEOGOV’s current functional interfaces. In the event a carrier provides formats or specifications not supported by the NEOGOV HRIS Services, Customer will be solely responsible for transmitting the data to such carrier using an alternative system to be determined solely by Customer. Customer shall be responsible for promptly reviewing all records of transmissions to carriers and other reports prepared by NEOGOV for validity and accuracy according to Customer’s records, and Customer will notify NEOGOV of any discrepancies promptly after receipt thereof.

Payroll Services – Additional Terms
The following terms shall apply to the extent that Customer orders the NEOGOV Payroll Services module:

1. Payroll Processing and Tax Filing. NEOGOV will deliver (i) payroll administrative services to Customer through NEOGOV’s payroll software as a service (the “Payroll Module”), (ii) at Customer’s election, direct deposit administration to those employees electing such service via ACH processing (collectively referred to as the “Payroll Services”), remit payroll taxes on Customer’s behalf to those federal, state, and local taxing jurisdictions designated by 14 Item 1K - Page 17 Item 1J - Page 18
NEOGOV™ P<!>werDMS
Digital Management Software
A NEOGOV Company
Customer, and file related tax returns (such remitting of payroll taxes and filing of related tax returns, the “Tax Services”). At NEOGOV’s then current fees, NEOGOV may also process calendar year-end W-2 forms for Customer’s employees and Forms 1099-MISC. NEOGOV will, and Customer hereby authorizes NEOGOV and Fulfillment Partners to, initiate debits or reverse wire transfers prior to each paydate for Customer’s payroll (“Paydate”) and credit the bank accounts of Customer’s employees and others to be paid by Customer by direct deposit payment on Paydate (a “Payee”), all in compliance with the operating rules of the National Automated Clearing House Association and the terms and conditions hereof. For purpose of clarity, the parties understand and agree that NEOGOV does not print and/or send paychecks for or on behalf of Customer.

2. Documentation and Required Information.
a) Authorization Forms; Proof of Name. Customer will be required to complete and submit the following documents in order to use the payroll processing components of Payroll Module: (i) power of attorney forms for each jurisdiction in which Customer will use the HRIS Services (the “POA”), (ii) Authorization to Debit/Credit Bank Account(s)/Obtain Bank Account Information (the “Authorization Form”), (iii) an IRS proof of legal name/FEIN and (iv) any authorization form for Fulfillment Partner authorizing debiting and crediting Customer’s bank account. b) Proof of Existence. Customer will provide NEOGOV, and authorize NEOGOV to provide to Fulfillment Partner, Customer’s (i) legal name, and “doing business as” name if applicable, (ii) physical street address (not a PO Box or PMB), (iii) phone number, (iv) Primary Business Activity (Nature of Business), (v) Duns Number (if one exists), (vi) Tax ID Number, (vii) estimated transaction count and dollar volume, (viii) number of employees, and (ix) supporting evidence via (A) either certified Articles of Incorporation, IRS EIN Letter, unexpired government issued business license, trust instrument or other government-issued evidence showing legal existence, and (B) either a voided business check, copy of utility bill, other evidence of legal name, physical address, DBA Name, or Tax ID. c) Permitted Disclosure Authorization. Customer hereby authorizes NEOGOV to (i) provide Customer’s data to Fulfillment Partner for the purposes of performing the Payroll and Tax Services, and (ii) take such action as is necessary to perform the Payroll and Tax Services.
d) Time and Attendance Information. Prior to commencement of Time and Attendance Services, Customer shall provide to NEOGOV all necessary information and guidance relating to its time and attendance policies and guidelines and coordinate with NEOGOV to establish standards for NEOGOV in its execution of the Time and Attendance Services. Customer agrees to promptly comply with NEOGOV’s request for such additional documentation and understands that Payroll or Tax Services may be impaired or delayed if Customer does not comply with such request.

3. Customer Obligations, Representations, and Warranties. Customer acknowledges that NEOGOV's obligation to perform the HRIS Services is subject to Customer’s obligations, representations, and warranties. Customer represents and warrants the following:
a) Processing Authorization. Customer authorizes NEOGOV to process payroll entries on behalf of Customer.

Customer acknowledges that NEOGOV is acting solely in the capacity of data processing agent and is not a source of funds for Customer. Customer shall be liable for each payroll related transaction initiated by NEOGOV on behalf of Customer, whether by electronic entry or wire transfer. NEOGOV, or its Fulfillment Partners, electronically transmit employee data, including employee payroll data, to designated third parties, and Customer authorizes NEOGOV and its Fulfillment Partners, to provide such transmission on Customer’s behalf. Customer agrees that NEOGOV maintains specific Fulfillment Partner(s) for NEOGOV Payroll and Tax Services fulfillment during the term of and in accordance with this Services Agreement and that Customer shall not, directly or indirectly, supplement, substitute, or otherwise modify the provision of such Payroll and Tax Services without terminating this Services Agreement.
b) Information Accuracy; Reliance; Change Notice. Customer shall input, maintain, and verify the accuracy of any and all information, including payroll and tax information, and Customer shall continually ensure that such information is kept complete, accurate, delivered on time, and up to date at all times. Customer acknowledges that NEOGOV and NEOGOV Fulfillment Partners will rely on the accuracy of this information as it performs its requested functions. NEOGOV shall not be responsible for any delays or inaccuracies in Customer’s delivery of data to NEOGOV. Customer will notify NEOGOV immediately of any change in the processing information, including the Authorization Form. Customer will also obtain a voluntary written authorization from any Payee prior to the initiation of the first credit to the account of such Payee and shall provide upon demand a copy of such written authorization to NEOGOV.
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NEOGOV™ P<!>werDMS
Digital Management Software
A NEOGOV Company
c) Processing Deadlines. Unless otherwise agreed to by the Parties, Customer will: (a) complete and execute all required documentation so that NEOGOV or Fulfillment Partner may withdraw funds from Customer’s account to process direct deposit payrolls, (b) input or report all relevant payroll data for ACH transmissions to NEOGOV no later than 2:00 p.m. Pacific Standard Time (PST) three (3) banking days prior to each Paydate, (c) input or report all other relevant payroll data to NEOGOV no later than 2:00 p.m. Pacific Standard Time (PST) two banking days prior to each Paydate, (d) have available in Customer’s bank account good, collectable funds in a sufficient amount to cover funding disbursements, checks, direct deposits, tax payments, or recurring payments to third parties no later than the opening of business (i) two banking days prior to each Paydate for debits by electronic entry, and (ii) two banking days prior to each Paydate for funding by wire transfer, and (e) compare all reports on credits or debits initiated by Customer to NEOGOV’s records and promptly notify NEOGOV of any discrepancies. In the event Customer does not meet the deadlines specified herein, NEOGOV shall make reasonable efforts to complete processing prior to the Paydate; however, NEOGOV makes no representation or warranty that payroll will process by the Paydate where Customer fails to provide all required documentation by the deadline. Additional Fees may apply for expedited processing.
d) Customer Review. Within seven (7) business days after receipt from NEOGOV, Customer will promptly conduct a detailed review of all payroll and tax registers produced by NEOGOV or Fulfillment Partners for accuracy, validity and conformity with Customer’s records. Customer will promptly notify NEOGOV of any error or omission discovered by Customer in any payroll registers, disbursement records, payroll or tax reports and documents produced by NEOGOV or Fulfillment Partners, or any discrepancy between the information provided by NEOGOV or Fulfillment Partners, and Customer’s records. Customer will not rely on any record, report or document containing any discovered error, omission or discrepancy until such error, omission or discrepancy, has been corrected. Customer will be responsible for any consequences resulting from instructions Customer may give to NEOGOV or Fulfillment Partners with regard to HRIS Services or any payroll registers, disbursement records, reports and documents prepared by NEOGOV based on information provided by Customer. e) Document Retention. Customer will retain copies of all information entered into or generated by the HRIS Services and Customer shall be solely responsible for maintaining such data, and all tax records, in accordance with any legal obligations.
f) Special Processing. Customer understands and acknowledges that administering processing dates beyond standard payroll dates, and correcting, amending, or cancelling payroll entries or mistaken reversals (collectively “Special Processing”), are complicated, highly manual, and may result in additional expenses, tax consequences, and penalties. Therefore, Special Processing may be subject to additional NEOGOV Fees. g) Recovery Cooperation. Customer agrees to undertake reasonable efforts to cooperate with NEOGOV and any other parties involved in processing any transactions hereunder to recover funds credited to any employee as a result of an error made by Customer, NEOGOV, or Fulfillment Partners, or any other loss recovery efforts and in connection with any actions that the relevant party NEOGOV may be obligated to defend or elects to pursue against any third-party.
h) Compliance with Laws. Customer acknowledges that, in order to put into effect the Payroll Services which include ACH transactions, Customer will be the Originator of the ACH transactions and will follow and be bound by the rules for ACH Originators as adopted from time to time by the NACHA. Customer agrees that it has assumed the responsibilities of an Originator under the ACH Rules and acknowledges that entries may not be initiated in violation of the laws of the United States. Customer agrees to be compliant with laws. Customer will comply with all laws including, but not limited to, the U.S. Patriot Act, the Unlawful Internet Gambling Enforcement Act, the Bank Secrecy Act, and Anti Money Laundering laws.

4. Effect of Failed Funds. If Customer fails to pay the taxes, direct deposits, employee payments or other charges, including fees, then Customer agrees to pay NEOGOV for all costs of collection, including reasonable attorney fees, which may be associated with collection of the amounts due. NEOGOV also may, at its sole option, terminate this Services Agreement and withhold or suspend any work in progress. This is in addition to any other rights NEOGOV may have under this contract or under law. NEOGOV also reserves the rights to reverse employee transactions and /or tax payments for which funds have not been received from Customer.

5. Rejection of Entries. NEOGOV shall reject any file or entry that does not comply with the requirements of this Services Agreement, the NACHA Rules, or uses an improper SEC Code, or if NEOGOV suspects fraud or illegal or improper activity. NEOGOV shall have no liability.
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NEOGOV™ P<!>werDMS
Digital Management Software
A NEOGOV Company

6. Resolution of Error Exceptions. For the purposes of this Section, the term “error exception(s)” shall mean any data requirements within the HRIS Services that, based on Customer’s configuration, have been assigned a severity level designation of “error”; such designation shall create a requirement for an operational task to be completed by Customer in order to proceed with Customer’s processing, including processing of Customer payroll for the designated period.

Failure to resolve an error exception will prevent Customer’s payroll from being processed as scheduled. NEOGOV is not obligated to clear any such error on behalf of Customer.

7. NEOGOV Errors and Omissions Warranty. NEOGOV warrants it will use commercially reasonable efforts to properly transmit the appropriate reports, data, or filings based on the information provided in Customer’s HRIS Services. In addition, NEOGOV will use commercially reasonable efforts to rectify any Customer report, data, or filing error, including any deposit, corrected or reversal debit or credit entry, for which NEOGOV is solely responsible; provided that, in each case Customer advises NEOGOV no later than ten (10) business days after the occurrence of such errors or omissions. This is Customer’s sole remedy in the event of a breach of the foregoing warranty. Notwithstanding the foregoing, Customer will be solely responsible for payment of all tax penalties, interest, and additional NEOGOV fees if: (i) the penalty is the result of incorrect, inaccurate, or incomplete information Customer provides to NEOGOV, (ii) Customer has insufficient funds in Customer’s designated bank account to process HRIS Services, or (iii) a party other than NEOGOV, or a NEOGOV Fulfillment Partner, fails to perform services in a timely manner.

8. Additional Liability and Warranty Limitations. NEOGOV, ITS PROVIDERS, AND FULFILLMENT PARTNERS, AND

THE OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS OF EACH WILL NOT BE LIABLE UNDER ANY

CIRCUMSTANCES OR UNDER ANY THEORY OF RECOVERY (WHETHER IN CONTRACT OR TORT OR OTHERWISE) FOR (i) ANY FEES, COSTS, CHARGES, OR ANY DAMAGES CAUSED BY LOST SHIPMENT OR

TRANSMISSION OF CHECKS OR ANY FORM OF DISBURSEMENT INCLUDING, BUT NOT LIMITED TO,

STOP PAYMENT FEES, REPRINTING OR RETRANSMISSION COSTS, SHIPPING CHARGES, OR CONSEQUENTIAL EXPENSES AND DAMAGE, (ii) ANY CHARGES, FEES, OR EXPENSES INCURRED BY CUSTOMER, CUSTOMER’S AGENTS, OR EMPLOYEES WHICH ARE DUE TO LATE PAYCHECKS,

REGARDLESS OF WHETHER SUCH PAYCHECKS ARE TO BE PREPARED AND DELIVERED BY NEOGOV, FULFILLMENT PARTNERS, OR BY CUSTOMER, (iii) NON‐PERFORMANCE OF HRIS SERVICES WHICH

HAVE BEEN SUSPENDED DUE TO FAILURE OR DELAY IN PAYMENT OF FEES OWED UNDER THIS

SERVICES AGREEMENT, AND (IV) FOR ANY DAMAGES TO CUSTOMER ARISING FROM OR IN

CONNECTION WITH A DECISION BY NEOGOV TO SUBMIT FILES FOR PROCESSING AFTER CUSTOMER HAS FAILED TO CLEAR OUTSTANDING ERROR EXCEPTIONS WITHIN THE SPECIFIED DEADLINE.

9. Additional Termination Rights.
a) Termination for Default. Customer’s breach of the NACHA Rules, violation of any applicable federal or state regulation, or failure to maintain account funding as required by this Services Agreement (and as a result any debit to Customer’s account is returned), shall each constitute a default. Upon default, NEOGOV may suspend the HRIS Services or terminate this Services Agreement in a manner that permits NEOGOV to comply with the NACHA Rules. Termination is effective immediately upon written notice of such termination to Customer. The right to suspend the HRIS Services and/or terminate this Services Agreement is in addition to any other rights and remedies provided under this Services Agreement or otherwise under law. b) Effect of Termination. No termination of this Services Agreement shall release Customer from any obligation to pay NEOGOV any amount that has accrued or becomes payable at or prior to the date of termination. No suspension of HRIS Services shall release Customer from any obligation to pay NEOGOV any amounts due under this Services Agreement. Customer shall not be entitled to any refund of any amounts paid to NEOGOV as a result of a termination based on Customer’s default. Notwithstanding the termination of this Services Agreement, the parties shall continue to comply with the NACHA Rules with respect to transmissions pursuant to this Services Agreement.
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NEOGOV™ P<!>werDMS
Digital Management Software
A NEOGOV Company
Exhibit D
Integration Terms Addendum
NEOGOV offers integrations and platform APIs for integrations to third party systems (“Integration Services”). Customer may use only those Integration Services purchased or subscribed to as listed within the NEOGOV Order Form. The following terms (the “Integration Terms Addendum”) shall apply to the extent that Customer utilizes a system integration between the Services and either: (a) an affiliated integrated service, including those found at https://api.neogov.com/connect/marketplace.html and/or https://apidocs.powerdms.com (“Affiliated API”) or to the extent that Customer utilizes a system integration between the Services and an unaffiliated third-party service (“Customer Application”) integrated using NEOGOV’s open API (“Open API”). Integration Services are not available for HRIS Services and this Exhibit D shall not apply to HRIS Services.

1. Provision of Integrations. Subject to and conditioned on compliance with all terms and conditions set forth in this Agreement, NEOGOV hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the applicable Term to use and/or access the Affiliated API as described in this Agreement, or the Open API for communication between Customer’s human resource related third application(s) that will interoperate with NEOGOV Services (collectively these uses shall be referred to as the “API” or “Integration”).

Customer acknowledges there are no implied licenses granted under this Agreement. NEOGOV reserves all rights that are not expressly granted. Customer may not use the API for any other purpose without our prior written consent.

Customer may not share the API with any third party, must keep the API and all log-in information secure, and must use the API key as Customer sole means of accessing the API.

2. Integration Intellectual Property. All right, title, and interest in the API and any and all information, data, documents, materials, inventions, technologies, know-how, descriptions, requirements, plans, reports, works, intellectual property, software, hardware, systems, methods, processes, and inventions, customizations, enhancements, improvements and other modifications based on or derived from the API are and will remain, as appropriate, with NEOGOV. All right, title, and interest in and to the third-party materials, including all intellectual property rights therein, are and will remain with their respective third-party rights holders subject to the terms and conditions of the applicable third-party license agreements. Customer has no right or license with respect to any third-party materials except as expressly licensed under such third-party license agreements.

3. Integration Terms of Use. Except as expressly authorized under this Agreement, you may not remove any proprietary notices from the API; use the API in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; combine or integrate the API with any software, technology, services, or materials not authorized by NEOGOV; design or permit Customer Application(s) to disable, override, or otherwise interfere with any NEOGOV-implemented communications to end users, consent screens, user settings, alerts, warning, or the like; use the API in any of Customer Application(s) to replicate or attempt to replace the user experience of the Services; or attempt to cloak or conceal Customer identity or the identity of Customer Application(s) when requesting authorization to use the API.

4. Customer Integration Responsibilities. Customer, Customer developed web or other software services or applications, and Customer third-party vendors that integrate with the API (collectively the “Customer Applications”), shall comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on https://api.neogov.com/connect/index.html and/or https://apidocs.powerdms.com from time to time. In addition, Customer will not use the API in connection with or to promote any products, services, or materials that constitute, promote, or are used primarily for the purpose of dealing in spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email (“spam”), multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive, or otherwise offensive content, stolen products, and items used for theft, hazardous materials, or any illegal activities.

5. Cooperation. If applicable, Customer shall timely provide such cooperation, assistance, and information as NEOGOV reasonably requests to enable the API. NEOGOV is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement. NEOGOV will provide Customer maintenance and support services for API issues arising from the information technology designed, developed, and under then current control of NEOGOV. NEOGOV shall have no obligation to provide maintenance or support for issues arising from the inaction or action of Customer or third parties of which are outside NEOGOV control.

6. Provision of Open API. In the event license fees or other payments are not due in exchange for the right to use and 18 Item 1K - Page 21 Item 1J - Page 22
NEOGOV™ P<!>werDMS
Digital Management Software
A NEOGOV Company
access the Open API, you acknowledge and agree that this arrangement is made in consideration of the mutual covenants set forth in this Agreement, including, without limitation, the disclaimers, exclusions, and limitations of liability set forth herein. Notwithstanding the foregoing, NEOGOV reserves the right to change for access with effect from the start of each Renewal Term by giving Customer at least ninety (90) day notice prior to commencement of a Renewal Term.

7. API Key. In order to use and access the Open API, you must obtain an Open API key through the registration process.

Customer agrees to monitor Customer Applications for any activity that violates applicable laws, rules and regulation, or any terms and conditions of this Agreement, including any fraudulent, inappropriate, or potentially harmful behavior. This Agreement does not entitle Customer to any support for the Open API. You acknowledge that NEOGOV may update or modify the Open API from time to time and at our sole discretion and may require you to obtain and use the most recent version(s). You are required to make any such changes to Customer Applications that are required for integration as a result of such Update at Customer sole cost and expense. Updates may adversely affect how Customer Applications communicate with the Services.

8. Efficient Processing. You must use efficient programming, which will not cause an overwhelming number of requests to be made in too short a period of time, as-determined solely by NEOGOV. If this occurs, NEOGOV reserves the right to throttle your API connections, or suspend or terminate your access to the Open API. NEOGOV shall use reasonable efforts to provide Customer notice and reasonable time to cure prior to taking such actions.

9. Open API Limitations. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT

WILL NEOGOV BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT,

NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, LOST

PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF

BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE OPEN API; OR ANY DAMAGES, IN THE

AGGREGATE, IN EXCESS OF FIFTY DOLLARS, EVEN IF NEOGOV HAS BEEN ADVISED OF THE

POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE OR NEOGOV WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY CLAIM

YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM.

10. Open API Termination. Notwithstanding the additional Termination rights herein, NEOGOV may immediately terminate or suspend Customer access to Open APIs in our sole discretion at any time and for any reason, with or without notice or cause. In addition, your Open API subscription will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. 19 Item 1K - Page 22 Item 1J - Page 23
NEOGOV™ P<!>werDMS
Digital Management Software
A NEOGOV Company

ATTACHMENT B

Item 1J - Page 24
CITY OF PALM SPRINGS – PUBLIC INTEGRITY DISCLOSURE

APPLICANT DISCLOSURE FORM