Palm Springs City Council
July 21, 2025

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

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

4.5 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), Item 1R - Page 32

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6 employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).

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

5. INSURANCE

5.1 Types of Insurance. Contractor shall procure and maintain, at its sole cost and expense, the insurance described herein. The insurance shall be for the duration of this Agreement and includes any extensions , unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to City. The insurance shall apply against claims which may arise from the Contractor's performance of Work under this Agreement, including Contractor's 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 Contractor 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. Contractor shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. Except as otherwise authorized below for contract liability (errors and omissions) insurance, all insurance provided under this Agreement shall be on an occurrence basis. The minimum amount of insurance required shall be as follows:

A. Errors and Omissions Insurance. Contractor shall obtain and maintain in full force and effect throughout the term of this Agreement, standard industry form contract 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 ) Contractor shall either: (a) certify in writing to the City that Contractor is unaware of any contract liability claims made against Contractor and is unaware o f any facts which may lead to such a claim against Contractor ; or ( b) if Contractor does not provide the certification under (a), Contractor shall procure from the contract 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 under 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, Contractor shall obtain continuing insurance coverage for the prior acts or omissions of Contractor 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 Item 1R - Page 33

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7 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.

B. Workers’ Compensation Insurance. Contractor shall obtain and maintain, in full force and effect throughout the term of this Agreement, workers’ c ompensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. Contractor 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 subcontractors, if any, to do likewise under their workers’ compensation insurance policies. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.

C. Commercial General Liability Insurance. Contractor 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 contractors, broad form property damage, products and completed operations.

D. Business Automobile Insurance. Contractor 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. Contractor 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 or his/her designee prior to commencing any work or services under this Agreement. Contractor 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 or his/her designee may require evidence of pending claims and claims history as well as evidence of Contractor’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 Contractor under this Agreement:

A. For any claims related to this Agreement, Contractor ’s coverage shall be primary insurance with respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City and its officers, Item 1R - Page 34

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8 council members, officials, employees, agents, and volunteers shall be in excess of Contractor’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, officials, employees, agents, and volunteers.

C. All insurance coverage and limits provided by Contractor 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. No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in this Agreement (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. Contractor 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 Contractor’s obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement.

F. Contractor agrees to ensure that subcontractors, and any other parties involved with the Project who are brought onto or involved in the Project by Contractor, provide the same minimum insurance coverage required of Contractor. Contractor 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. Contractor agrees that upon request, all agreements with subcontractors and others engaged in the Project will be submitted to the City for review.

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

H. Contractor shall provide proof that policies of insurance required in this Agreement, 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, or 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.

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9 J. The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section.

K. Contractor agrees to provide immediate notice to City of any claim or loss against Contractor 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. Contractor agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages resulting from the Contractor’s activities or the activities of any person or person for which the Contractor is otherwise responsible.

5.4 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 such requirements are waived in writing by the City Manager or his designee due to unique circumstances.

5.5 Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies.

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

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

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

C. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.

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10 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.

6. INDEMNIFICATION

6.1 Indemnification and Reimbursement. 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.

6.2 Design Contract 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.

7. REPORTS AND RECORDS

7.1 Accounting 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 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, including the right to inspect, copy, audit, and make records Item 1R - Page 37

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11 and transcripts from such records.

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

7.3 Ownership of Documents. All drawings, specifications, reports, records, documents, memoranda, correspondence, computations , and other materials prepared by Contractor, its employees, subcontractors, 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. Contractor 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. Any use of such completed documents for other projects and/or use of incomplete documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all resulting damages. Contractor may retain copies of such documents for their own use.

Contractor shall have an unrestricted right to use the concepts embodied tin this Agreement.

Contractor shall ensure that all its subcontractors shall provide for assignment to City of any documents or materials prepared by them . I n the event Contractor fails to secure such assignment, Contractor shall indemnify City for all resulting damages.

7.4 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.

All information gained by Contractor in the performance of this Agreement shall be considered confidential and shall not be released by Contractor 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, 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 directl y related to Contractor ’s performance under this Agreement. Contractor shall maintain such books, records, data, and documents in accordance with generally acc epted 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. 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 Item 1R - Page 38

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12 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.

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

A. If the City Manager, or his designee, determines that Contractor is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify Contractor in writing of such default. Contractor shall have ten (10) days, or such longer period as City may designate, to cure the default by rendering satisfactory performance. In the event Contractor 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. Contractor shall be liable for 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 shall limit City’s right to terminate this Agreement without cause under Section 3.2.

B. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 8.3(A), take over the work and prosecute the same to completion by contract or otherwise. The Contractor 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). The City may withhold any payments to the Contractor 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 Contractor shall not limit Contractor’s liability for completion of the Services as provided in this Agreement.

8.4 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.

8.5 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.

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13 8.6 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, remedy or 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.

8.7 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.

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 Contractor, 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 Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.

9.2 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 thi s 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.

9.3 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.

10. MISCELLANEOUS PROVISIONS - Intentionally omitted

10.2 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.

All notices 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. All notices 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 Item 1R - Page 40

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14 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 forms of electronic transmission such as e-mails, text messages, and 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 & City Clerk
3200 E. Tahquitz Canyon Way
Palm springs, California 92262
Telephone: (760) 323-8204
Facsimile: (760) 323-8332

To Contractor: E M D Construction Inc.

Attn.: Jose Portillo, President
68-597 Zurich Ave
Mountain Center, CA 92561
Telephone: (760) 534-0506

10.3 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.

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

10.5 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. 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 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.

10.7 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.

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 Item 1R - Page 41

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15 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.

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 NEXT PAGE]

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16 SIGNATURE PAGE TO CONTRACT SERVICES AGREEMENT BY AND BETWEEN THE CITY

OF PALM SPRINGS AND E M D CONSTRUCTION INC

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

CONTRACTOR:

By: ____________________________ By: ________________________________ Signature Signature
(2nd signature required for Corporations)

Date: Date:

CITY OF PALM SPRINGS:

APPROVED BY CITY COUNCIL:

Date: _______ Item No.

APPROVED AS TO FORM: ATTEST:

By: ___________________________ By: _______________________________ City Attorney City Clerk

APPROVED:

By: _______________________________ Date:

City Manager – over $150,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000

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17 EXHIBIT “A”

SCOPE OF SERVICES

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A. Contractor shall furnish labor, materials, equipment, and supervision to perform HVAC maintenance and installation (Work) on an as-requested basis in city facilities included in this solicitation. The scope of Work shall include, but is not limited to repairs, troubleshooting , testing, inspecting, training, replacement, installation, and maintenance of a wide range of heating, cooling, ventilation, ductwork and mechanical systems. This may include project estimation and budgeting of work.

B. All work shall be performed by and billed to the lowest applicable job class level.

The majority of the Work requested under this contract is to be performed by one (1 ) trade person per job. All service shall be performed by personnel who are journeyman level (or equivalent according to industry norms) as described by industry standards. The Contractor must receive prior written approval from the City before assigning more than one (1) trade person per job. On jobs requiring more than three (3) trade persons, the Contractor shall be required to designate one (1) employee to perform the duties and responsibilities of Foreman, and that person shall receive compensation as such.

C. Response time: The Contractor shall respond to emergency calls for service or repair within twenty-four (24) hours. Emergency responses include weekends , after-hours and holidays. The Contractor shall respond to non-emergency calls for service within two (2) business days and provide proposals for work within 5 business days, unless otherwise agreed upon by the Project Manager.

D. Environmental Considerations: The Contractor shall ensure that all work complies with environmental regulations, including the proper handling and disposal of hazardous materials, refrigerants, and other substances in accordance with local, state, and federal guidelines. The Contractor is responsible for managing refrigerants and other substances in compliance with the Environmental Protection Agency (EPA) regulations. The City encourages the Contractor to employ environmentally friendly practices wherever feasible, particularly in waste disposal, recycling, and material salvage.

E. Accessibility and Accommodation : The Contractor shall ensure that all services performed do not impede the accessibility of the facility, including accessible pathways and entryways. The Contractor shall be responsible for making reasonable accommodat ions for individuals with disabilities as required under the Americans with Disabilities Act (ADA). Any barriers to accessibility must be promptly addressed and resolved during service operations.

F. Contractor's Duty to Inform the City of Changes: The Contractor shall promptly inform the City of any significant changes to staffing, equipment, methods, or other elements of service that could affect the quality, safety, or timing of the work. Any changes that might impact on the execution of the contract must be communicated to the City in writing for prior approval. This includes changes to subcontractors, major equipment or tool modifications, or shifts in operational procedures.

G. Escalation Procedures for Delays: If the Contractor anticipates a delay in meeting a service deadline, they must notify the City in writing as soon as possible. The

(BB&K 2024)
18 Item 1R - Page 45
notice should include the cause of the delay and a proposed plan to remedy the situation. For emergency services , the Contractor must provide regular updates regarding the estimated resolution time . For non-emergency services , the City reserves the right to modify or reduce the scope of work if delays are deemed excessive or if it interferes with facility operations.

H. Correction of work deficiencies : The Contractor shall correct work rejected by the City as failing to conform to the requirements in the project documents within thirty days . The Contractor shall bear the cost of correcting such rejected work , includ ing the costs of uncovering, replacement , and additional testing.

If the Contractor fails to commence correction of nonconforming work within a seven day period after written notice , the city may correct the deficiencies by other means . In such case , the City may exercise rights and remedies as provided in section 9.4 of agreement.

In addition to the Contractor 's other obl igations , the contract sha ll, for a period of one year after substantial completion , correct work not conform ing to the requirements of the work.

I. Comp liance with regulations and permits : Contractor shal l comp ly with or exceed all relevant statutes , codes , rules , and regulations as may be app licable to this contract and shall be responsible for securing any and all permits as required by the governing authority. The City sha ll reimburse the Contractor for only the actual cost of said permits .

J . Equipment and supplies : Contractor is to provide , at no additional cost to the City , all necessary equipment , hand , and power tools and supplies typically used by the job classification and/or assigned trade person . Mechanical or other equipment used for Work must be of a type that is approved by the industry and shall be operated in such a manner as not to cause danger of any nature to employees or other persons or damage to the building structure , fixtures , furnishings , etc . The City , at its sole and absolute discretion , may approve to pay for equ ipment , too ls, or materials it determ ines is not typ ical of that job classification .

Contractor must not store equipment and/or supplies on any City property .

K. General safety requirements: The Contractor shall be responsible for all safety precautions required in connection with their work , including regulations of the Occupational Safety and Hea lth Administrat ion (OSHA) and other governing agenc ies. The City reserves the right to oversee all service work from a safety standpoint and require the Contractor to take appropriate action to ensure safety and code compliance.

L. Damages : Necessary precautions shall be taken at all limes to protect persons , property and equipment from injury or damage. Any damage shal l be reported , reviewed , and discussed with the facility manager.

M. Secur ity: The Contractor is respons ible for ensuring all entries/exits to the work area are secure during the discharge of their duties (doors must not be propped open). The Contractor does not have the authority and shall not grant access to any person request ing entry into the building or spec ific work area .

Any items or articles of apparent value found by the Contractor 's personnel in any areas of the building or site shall be turned over to the facility manager or on­ site Security . Any suspic ious articles that may be found , or persons loiter ing or conducting themselves in a manner to arouse suspicion or possib ly in need of help, sha ll be immediate ly reported to Police .

N. Disposal and salvage of waste material: Contractor must dispose of or salvage all waste material generated by its service operations under the contract in an off-site location , in compliance with all applicable laws and regulations . City encourages Contractor to salvage material in an environmentally friendly manner if possible . City retains the right to retain materials or have another party salvage material , at the discretion and direction of the faci lity manager. 0 . Uniforms and face coverings : The Contractor shall be required to properly uniform its serv ice personne l and they shall present a clean and neat appearance at all times . Day service personnel shall have color-coord inated shirts with company name and/or logo provided by the Contractor. Contractor vehicles must display company logo and name .

(BB&K 2024)
19 Item 1R - Page 46
Special Security Requirements :

A. Special Security Requirements for Palm Springs Police Department: Any personnel of Contracto r assigned to perform services at the Palm Springs Police Department must pass a Criminal History Records Check (CHRC) prior to performing services at this facility . The CHRC(s) will be provided at no charge to Contracto r. Contractor shall coordinate the record checks with the City's Contract Officer. The City will accept as evidence of passing such a test a LiveScan card issued by another government agency .

Pricing:

A. The pricing included in this Contract shall be firm for the first year.

B. The unit prices may be adjusted {decreased or increased) once a year to correspond with the most recent annual change to the Consumer Price Index for All Urban Consumers as published by the U.S. Bureaus of Labor Statistics for the Riverside­ San Bernardino-Ontario Areas.

C. The City will only pay for the items listed on the bid form. Contractor must incorporate all of its costs in its unit bid prices, including but not limited to labor, supervision, project management, overhead , profit, onboarding training, travel, mileage, truck charges , fuel charges, service call charges , parking, delivery, portal­ to-portal charges, environmental fees, shop supp lies and consumab le incidental materials. The City will not pay for subcontractors , rental of equipmenUtools, and purchase of materials/supplies unless the City authorized payment of the applicable items.

Payment :

The resulting contract for these services is an on-call as needed contract. No specific amount of work is guaranteed . The contract value is an estimated value only. All work authorized under the contract will be compensated on a time and material basis.

Contractor will submit an itemized invoice monthly. Billings must reference a purchase order number and shall indicate the unit (contract) price. Contractor will be paid for the actual hours worked at the rates shown in the contract. Parts, materials, equipment , and subcontracto r costs will be compensated at actual cost with receipts required with allowable markup as outline in the contract. Contractor shall break out the line items on the invoice in accordance with the line items on the bid form. Contractor must provide back-up documentat ion for materials, subcontractor , rented equipment, permits, disposal and recycling fees. Invoices that are submitted with incorrect prices may be returned for correct ion before any payments to the contractor are authorized . It shall be the contractor's respons ibility to subm it a correct invoice. The City shall not be respons ible for payment until a correct invoice is received . The invoice shall be accompanied by receipts , dated , and signed by a City Employee , verifying the work was done . Invoices and receipts will be submitted to the Contract Officer for approva l. All invoices are to be sent as one document to: pwbilling@palmspr ingsca .gov

(BB&K 2024)
20 EXHIBIT “B”

SCHEDULE OF COMPENSATION

Item 1R - Page 47

BID FORM
INVITATION FOR BIDS (IFB 25-07)

HVAC MAINTENANCE AND INSTALLATIO N SERVICES
Responding to this IFB for HVAC Maintenance and Installation Services, the undersigned bidder proposes and agrees to provide the services and work in accordance with the specifications. Bidder proposes and agrees to furnish all labor, equipment, materials, supervis ion, and service necessary to complete said Work in accordance with the Specifications of the City of Palm Springs and will accept as full payment therefore , the following unit cost amounts . The City of Palm Springs will not accept any additio nal charges, fees, etc. that are not already included or incorporated in the below unit costs.

ESTIMATED UNIT PRICE SUBTOTAL

ITEM DESCRIPTION UNIT QUANTITY
1 Foreman Regular Billing Rate HR 50 (7:00AM - 5:00PM) $147 . 50 $7,3 75. 00 2 Foreman Overtime Billing Rate HR 5 (5:00PM - 7:00AM) $221. 25 $1, 106 . 25 3 Foreman Holiday Billing Rate HR 5 (Saturday/Sunday/Holiday) $221.25 $1,106 . 25 4 HVAC Technician Regular Billing HR 1500 Rate (7:00AM - 5:00PM) $100. 30 $150, 450.00 5 HVAC Technician Overtime Billing HR 40 $6,018 . 00 Rate (5:00PM - 7:00AM) $150.45 6 HVAC Technician Holiday Billing HR 5 Rate (Saturday/Sunday/Holiday) $150. 45 $752 . 25 7 Journeyman Pipefitter Regular Billing HR 300 Rate (7:00AM - 5:00PM) $107 . 49 $32,2 45.86 8 Journeyman Pipefitter Overtime HR 10 Billino Rate (5:00PM - 7:00AM ) $161. 24 $1,6 12.35 9 Journeyman Pipefitter Holiday Billing HR 5 Rate (Saturday/Sunday/Holiday) $161. 24 $ 806 . 18 10 Welder Regular Billing Rate HR 40 (7:00AM - 5:00PM) $101. 14 $4,045. 51 11 Welder Overtime Billing Rate HR 5 (5:00PM - 7:00AM) $151. 71 $758.56 12 Welder Holiday Billing Rate HR 5 (Saturday/Sunday/Holiday) $151. 71 $758 . 56 13 Journeyman Sheetmetal Worker HR
Regular Billing Rate 60 $112 . 67 $6, 759 . 98
(7:00AM - 5:00PM)
14 Journeyman Sheetmetal Worker HR
Overtime Billing Rate 5 $169 . 00 $845.00
(5:00PM - 7:00AM)
15 Journeyman Sheetmetal Worker HR 5 Holiday Billinq Rate $169.00 $845 . 00

(BB&K 2024)
21 Item 1R - Page 48
(Saturday/Sunday/Holiday)
16 Apprentice Regular Billing Rate HR 80 $58 .60 $4,687.90 (7:00AM - 5:00PM) 17 Apprentice Overtime Billing Rate HR 5 (5:00PM - 7:00AM) $87 . 90 $439 . 49 18 Apprentice Holiday Billing Rate HR 5 (Saturday/Sunday/Holiday) $87 .90 $439 . 49 19 Parts and Materials (% mark-up) %
(Example If 10%, the subtotal =
$82,500 ; If 20%, the subtotal= 40 $75,000.00 30,000.00 $105,000 . 00 $90,000)
20 Equipment Rental (% mark-up) %
(Example If 10%, the subtotal= 40 $8,500.00 $3,400 . 00 $11,900 . 00 $9,350; If 20%, the subtotal= $10,200) 21 Subcontractors(% mark-up) %
(Example If 10%, the subtotal =
$82,500 ; If 20%, the subtotal= 40 $75,000 $30,000 . 00 $105,000.00 $90,000)
TOTAL $442,95 1.64
*Note: This bid form is to determine the lowest bidder and will be used to estab lish the contract unit prices. The contract value will be set at the City budget amount. Total budgeted amount for this contract would be split between primary contract (60%) and secondary contract (40%).

Firm Name: __ _.f~ M_.p_ c_on-s_t~c-11c_t_i_on_ 1_nc _____________ _ DIR Number: _____ P ___ W-__ L ___ R __ - ..... 10 ___ 0 ___ 1...,.13 ___ 3 ___ 6 ___ 93 __________________ _ Signature of Authorized Person: ___ 9 _ _____,,_y:;, __ ..,_~.,._ _________ _ Printed Name: _......,.10..,s ... e_.o .... v_i..,d1.,.· o......._po..,.r_.t...,i """11 .... 0'---------------- Title: President
Date: 06- 27- 2025
(BB&K 2024) 22
EXHIBIT “C”
Item 1R - Page 49
EXECUTIVE ORDER N-6-22 CERTIFICATION
INVITATION FOR BIDS (IFB 25-07)

HVAC MAINTENANCE AND INSTALLATION SERVICES
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 PENAL TY FOR PERJURY, that a) the contractor is not a target of any economic sanctions against Russian and Russian entities and individuals as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to legally bind the Contractor. This certification is made under the laws of the State of California.

Printed Name: E M D Const ructio n Inc
Title: Preside nt
Firm Name: Jose Ovidio Port illo
Date:_ ........ 06.._-.... 2 ..... z-..... 2 .... 0 .... 2 .... s ___________ _

ATTACHMENT C

Item 1R - Page 50
Item 1R - Page 51

1. Name of Entity

PUBLIC INTEGRITY DISCLOSURE

APPLICANT DISCLOSURE FORM

2. Address of Entity (Principal Place of usiness)
'-f 2 f.

3. different than #2)

4. State where Entity is Registered with Secretary of State (4
If other than California, is the Entity also registered in California? D Yes D No

5. Type of Entity
[Kl 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
Ab
Manager
[name]
D Officer D Director D Member D
0General Partner D Limited Partner
Other
-----'=-------.f+-':i.--~-------- D Officer D Director D Member D Manager @'6eneral Partner D Limited Partner
D Other
[name]
C"-.e.f SwJ-)
-------------- Officer D Director D Member D Manager
Item 1R - Page 52
(name] D General Partner D Limited Partner
D 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]
Ali a..f\hi/\, $'co~l 767. Q·,vcB
[name of owner/investor] {percentage of beneficial interest in entity and name of entity]
B. l}
().,~~ ~~t 30/. R~ve-o
[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]

0. [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 t-17-215

ATTACHMENT D

Item 1R - Page 53

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Jose Ovidio Portillo 100% E M D Construction Inc
06-27-2025
Jose Portillo President
Item 1R - Page 55
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CITY COUNCIL STAFF REPORT

DATE: JULY 21, 2025 CONSENT CALENDAR

SUBJECT: A PPROVE CONTRACT SERVICE AGREEMENT S NO. 25B194 AND 25B195 WITH E M D CONSTRUCTION, INC. FOR DOORS AND

WINDOWS INSTALLATION, MAINTENANCE AND REPAIR SERVICES

FROM: Scott C. Stiles, City Manager

BY: David McAbee, Director of Public Works
Harry Barrett Jr., Executive Director of Aviation

SUMMARY:

This action will approve two Service Agreements with E M D Construction, Inc. for on-call doors and windows installation, maintenance and repair services for the Public Works and Aviation Departments, No. 2 5B194 in an amount not to exceed $4 00,000; and Agreement No. 25B195 in an amount not to exceed $180,000.

RECOMMENDATION:

1) Approve Contract Services Agreement 25B 194 ( Attachment A ) with E M D Construction, Inc., to provide doors and windows installation, maintenance and repair services for the Public Works D epartment in an amount not to exceed $400,000 for the initial three-year term beginning July 22, 2025, through July 21, 2028, with two one-year extension options at the City’s sole discretion.

2) Approve Contract Services Agreement 25B 195 ( Attachment B ) with E M D Construction, Inc., to provide doors and windows installation, maintenance and repair services for the Aviation Department in an amount not to exceed $180,000 for the initial three-year term beginning July 22, 2025, through July 21, 2028, with two one-year extension options at the City’s sole discretion.

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

BUSINESS PRINCIPAL DISCLOSURE:

According to the Public Integrity Disclosure form (Attachment C) submitted on June 12, 2025, E M D Construction, Inc. is registered in the state of California.

Item 1S - Page 1
City Council Staff Report
July 21, 2025 -- Page 2
Award Doors and Windows Installation, Maintenance and Repair Services Contracts

BACKGROUND:

City staff is recommending the award of a contract for on- call doors and windows installation, maintenance, and repair services to support City -owned facilities under the Public Works and Aviation D epartments for a three- year term beginning July 2 2, 2025.

This agreement will help ensure that the City’s diverse portfolio of buildings —including historic and high-profile civic facilities—remain safe, accessible, and well-maintained.

Doors and windows play a critical role in access control, building security, and energy efficiency. The on-call nature of this contract will allow staff to respond quickly to repair needs, minimize disruptions to City operations, and extend the useful life of key assets throughout Palm Springs.

The Airport’s 940-acre property has approximately 57 buildings. The buildings are a mix of older and newer buildings which includes the historic Wexler terminal building that was completed in 1966. The Airport’s buildings are exposed to various weather ele ments which over time have resulted in the wear and tear of the buildings, and the conditions of the Airport’s buildings require various maintenance, repairs, and improvements to maintain the buildings structural integrity, safety, and appearance. The services of an on- call doors and windows installation contractor will ensure a well-maintained environment at the Airport which enhances the passenger experience and leaves a favorable impression on both the airlines and the passengers, and an on- call agreement will allow staff to promptly address door and window issues which will m inimize disruptions to Airport operations.

STAFF ANALYSIS:

The contracts with E M D Construction, Inc., are on-call, as-needed type contracts. The bids were used to determine the lowest, responsive, responsible bidder s and to set the unit rates for the contracts; however, the actual amount of the contract s is based on the budgeted amount set by the Departments and will therefore not match the bid amounts.

An Invitation for Bids (IFB 25-06) was initiated by the City’s Procurement and Contracting Department on May 19, 2025, based on the Department of Public Works specifications.

Bids were solicited directly via the City’s procurement vendor portal, PlanetBids. In addition, the IFB was advertised in The Desert Sun. E M D Construction Inc was the only firm that submitted a bid by the June 12, 2025, deadline as follows:

Vendor Bid
E M D Construction Inc – Mountain Center, CA $429,638.46

Since only one bid was received, the pricing was analyzed by the Director of Public Works and was found to be fair and reasonable for the City. Twenty vendors were notified via PlanetBids, and 13 bidders downloaded the files. In the last three years , staff have solicited for on -call glass installation, maintenance and repairs services without being Item 1S - Page 2
City Council Staff Report
July 21, 2025 -- Page 3
Award Doors and Windows Installation, Maintenance and Repair Services Contracts

successful in obtaining a bid. During the solicitation of IFB 25- 06, Airport staff notified Procurement of their continued need to secure on-call services for glass door and window services and requested to enter into a contract should a bid(s) be received.

The unit pricing is fixed for the initial 3 years and subject to CPI increase for the additional years. Staff r ecommends approval of Contract Services Agreement No. 25B 194 with E M D Construction, Inc. in the amount not to exceed $4 00,000 for the Public Works Department; and Contract Services Agreement No. 25B 195 with E M D Construction in the amount not to exceed $ 180,000 for Aviation D epartment effective July 22 , 2025, through July 21, 2028, subject to two one-year optional renewals at the sole discretion of the City.

ENVIRONMENTAL ASSESSMENT
:

The requested City Council action does not constitute a “Project” under the California Environmental Quality Act (CEQA). As defined in Section 15378(a), a “Project” refers to an activity that may cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change. The approval of on- call contracts for routine doors and windows maintenance, repair, and installation services does not meet this definition. Pursuant to Section 15378(b)(5), this action is considered a ge neral administrative activity of government that will not result in direct or indirect physical changes in the environment and is therefore not subject to CEQA.

ALIGNMENT WITH STRATEGIC PLANNING:

Approval of this action supports City Council strategic plan to provide quality, well maintained infrastructure and facilities , and it also supports the Airport’s 2025- 2029 Strategic Plan’s Strategic Priorities for Operational Excellence.

FISCAL IMPACT:

For the Public Works agreement, funds are budgeted and available in the current Fiscal Year 2025-2026 budget and will be budgeted in subsequent fiscal years under Public Works Contractual Services and Deferred Maintenance accounts: 5206570 – 40105 and 5206570-50119 as well as Measure J account: 2603080-80000.

For the Aviation agreement, $60,000 is budgeted in the Department of Aviation, Terminal Building Operations Account 4157050- 40105 in Fiscal Year 2025- 2026 and $60,000 is budgeted in the Department of Aviation, Terminal Building Operations Account 4157050- 40105 in Fiscal Year 2026- 2027. The remaining amount for Fiscal Year 2027- 2028 will be budgeted in future fiscal years.

Item 1S - Page 3
City Council Staff Report
July 21, 2025 -- Page 4
Award Doors and Windows Installation, Maintenance and Repair Services Contracts

REVIEWED BY:

Assistant Director of Public Works: Daniel Martinez
Director of Public Works: David McAbee
Procurement and Contracting Specialist: Anil Cholakkara Executive Director of Aviation: Harry Barrett Jr.

Assistant City Manager: Teresa Gallavan
City Manager: Scott Stiles

ATTACHMENTS:

A. Contract Services Agreement No. 25B194
B. Contract Services Agreement No. 25B195
C. Public Integrity Disclosure – E M D Construction Inc Item 1S - Page 4

ATTACHMENT A
Item 1S - Page 5
(BB&K 2024) 1
CONTRACT SERVICES AGREEMENT 25B194

DOORS AND WINDOWS INSTALLATION, MAINTENANCE

AND REPAIR SERVICES
This
Contract Services Agreement (“Agreement”) is made and entered into this 21 day of July 2025, (“Effective Date”), by and between the City of Palm Springs, a California charter city and municipal corporation (“City”), and E M D Construction Inc , a California Corporation , (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.

RECITALS
A. City requires the services of a Contractor, for Doors and Windows Installation, M
aintenance and Repair Services for City facilities (“Project”).

B. Contractor has s ubmitted to City a proposal to provi de Doors and Windows Installation, Maintenance and Repair Services, to City under the terms of this Agreement.

C. Contractor 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 in this Agreement.

D. City
desires to retain Contractor to provide such contract 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:

AGREEMENT

1. SER VIC

ES OF CONTRACTOR

1.1 Scope of
Services. In compliance with all terms and conditions of this Agreement, Contractor agrees to perform the contract services set forth in the Scope of Services described in Exhibit “A” (the “Services” or “Work”), which is attached and incorporated herein by this reference. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and contract services and that Contractor is experienced in performing the Work contemplated and, in light of such status and experience, Contractor covenants that it shall perform the 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. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern.

1.2 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; and, (4) the Contractor ’s signed, original proposal submitted to the City (“ Contractor’s Proposal”), (collectively referred to as the “Contract Documents”). The City’s Request for Proposals and the Contractor’s Schedule of Compensation, which is attached as Exhibits “B” is incorporated herein Item 1S - Page 6

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2 by this reference and are made a part of this Agreement. The Scope of Services shall include the Contractor’s Proposal. All provisions of the Scope of Services, the City’s Request for Proposals and the Contractor’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: (1 st) the provisions of the Scope of Services (Exhibit “A”); (2 nd) the provisions of the City’s Request for Proposal; (3 rd) the terms of this Agreement; and, (4 th) the provisions of the Contractor’s Proposal.

1.3 Compliance with Law. Contractor warrants that all Services rendered shall be performed in accordance with all applicable federal, state, and local laws, statutes , ordinances lawful orders, rules, and regulations. Contractor 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. Contractor 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 and Services required by this Agreement. Contractor represents and warrants to City that Contractor 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 Contractor to perform the Work and Services under this Agreement.

1.5 Familiarity with Work. By executing this Agreement, Contractor warrants that Contractor (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, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of any Services . Should the Contractor discover any latent or unknown conditions that will materially affect the performance of the Services, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor 's risk until written instructions are received from the City.

2. COMPENSATION

2.1 Maximum Contract Amount. For the Services rendered under this Agreement, Contractor shall be compensated by City in accordance with the Schedule of Compensation, which is attached as Exhibit “B” and incorporated in this Agreement by reference. Compensation shall not exceed the maximum contract amount of four hundred thousand dollars ($400,000.00) ("Maximum Contract Amount"), except as may be provided under Section 2.3. The method of compensation shall be as set forth in Exhibit “B.” The method of compensation shall be as set forth in Exhibit “B.” C ompensation for necessary expenditures must be approved in advance by the Contract Officer designated under Section 4.2.

2.2. Method of Payment . Un less another method of payment is specified in the Schedule of Compensation (Exhibit “ B”), in any month in which Contractor wishes to receive payment, Contractor shall submit to the City an invoice for services rendered prior to the date of the invoice. The invoice shall be in a form approved by the City’s Finance Director and must be submitted no later than the tenth (10) working day of such month. Such requests shall be based upon the amount and value of the services performed by Contractor and accompanied by such Item 1S - Page 7
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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 Contractor within forty-five (45) days after receipt of the invoice or as soon as is reasonably practical. There shall be a maximum of one payment per month.

2.3 C hanges in Scope.

In the event any change or changes in the Scope of 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.

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

3. S

CHEDULE

OF PERFORMANCE

3.1 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 3 years, commencing on July 22 , 2025, and ending on July 21, 2028, 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 two (2) additional one (1) year terms

3.2 Termination Prior to Expiration of Term. The 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. Contractor may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.

3.3 Schedule of P erformance. INTENTIONALLY OMMITTED

3.4 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 Item 1S - Page 8

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4 the issuance of permits or approvals by governmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay, and extend the time for performing 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. COORDINATION OF WORK

4.1 Representative of Contractor. The following principal of Contractor is designated as being the principal and representative of Contractor authorized to act in its behalf and make all decisions with respect to the Services to be performed under this Agreement: Jose Portillo 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 Contractor and devoting sufficient time to personally supervise the Services performed hereunder. The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer.

4.2 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.

4.3 Prohibition Against Subcontracting or Assignments. 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, 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. All persons engaged in the Work will be considered employees of Contractor. City will deal directly with and will make all payments to Contractor. In addition, neither this Agreement nor any interest in this Agreement 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. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release Contractor or any surety of Contractor from any liability under this Agreement without the express written consent of City.

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5 4.4 Independent Contractor. The legal relationship between the Parties is that of an independent contractor, and nothing shall be deemed to make Contractor a City employee.

A. During the performance of this Agreement, Contractor and its officers, employees, and agents shall act in an independent capacity and shall not act or represent themselves as City officers or employees. The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Contractor or any of its officers, employees, or agents, except as set forth in this Agreement. Contractor, its officers, employees, or agents shall not maintain an office or any other type of fixed business location at City’s offices. City shall have no voice in the selection, discharge, supervision, or control of Contractor ’s employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Contractor 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 Contractor in its business or otherwise a joint venturer or a member of any joint enterprise with Contractor.

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

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

4.5 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, whi ch 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).

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

5. INSURANCE

5.1 Types of Insurance. Contractor shall procure and maintain, at its sole cost and expense, the insurance described herein. The insurance shall be for the duration of this Agreement and includes any extensions , unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to City. The insurance shall apply against claims which may arise from the Contractor's performance of Work under this Agreement, including Contractor's 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 Contractor 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. Contractor shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. Except as otherwise authorized below for contract liability (errors and omissions) insurance, all insurance provided under this Agreement shall be on an occurrence basis. The minimum amount of insurance required shall be as follows:

A. Errors and Omissions Insurance. Contractor shall obtain and maintain in full force and effect throughout the term of this Agreement, standard industry form contract 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 ) Contractor shall either: (a) certify in writing to the City that Contractor is unaware of any contract liability claims made against Contractor and is unaware o f any facts which may lead to such a claim against Contractor ; or ( b) if Contractor does not provide the certification under (a), Contractor shall procure from the contract 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 under 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, Contractor shall obtain continuing insurance coverage for the prior acts or omissions of Contractor 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, Item 1S - Page 11

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7 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.

B. Workers’ Compensation Insurance. Contractor shall obtain and maintain, in full force and effect throughout the term of this Agreement, workers’ c ompensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. Contractor 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 subcontractors, if any, to do likewise under their workers’ compensation insurance policies. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.

C. Commercial General Liability Insurance. Contractor 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 contractors, broad form property damage, products and completed operations.

D. Business Automobile Insurance. Contractor 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. Contractor 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 or his/her designee prior to commencing any work or services under this Agreement. Contractor 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 or his/her designee may require evidence of pending claims and claims history as well as evidence of Contractor’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 Contractor under this Agreement:

A. For any claims related to this Agreement, Contractor ’s coverage shall be primary insurance with respect to the 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 Contractor’s insurance and shall not contribute with it.

B. Any failure to comply with reporting or other provisions of the policies, Item 1S - Page 12

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8 including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials, employees, agents, and volunteers.

C. All insurance coverage and limits provided by Contractor 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. No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in this Agreement (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. Contractor 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 Contractor’s obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement.

F. Contractor agrees to ensure that subcontractors, and any other parties involved with the Project who are brought onto or involved in the Project by Contractor, provide the same minimum insurance coverage required of Contractor. Contractor 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. Contractor agrees that upon request, all agreements with subcontractors and others engaged in the Project will be submitted to the City for review.

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

H. Contractor shall provide proof that policies of insurance required in this Agreement, 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, or 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 Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section.

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9 K. Contractor agrees to provide immediate notice to City of any claim or loss against Contractor 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. Contractor agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages resulting from the Contractor’s activities or the activities of any person or person for which the Contractor is otherwise responsible.

5.4 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 such requirements are waived in writing by the City Manager or his designee due to unique circumstances.

5.5 Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies.

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

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

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

C. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.

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.

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10 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.

6. INDEMNIFICATION

6.1 Indemnification and Reimbursement. 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.

6.2 Design Contract 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.

7. REPORTS AND RECORDS

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

7.2 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement, or as the Item 1S - Page 15

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11 Contract Officer shall require. Contractor acknowledges that the City is greatly concerned about the cost of the Work to be performed under this Agreement. For this reason, Contractor agrees that Contractor shall promptly notify the Contract Officer the estimated increased or decreased cost if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services . If Contractor is providing design services, Contractor shall promptly notify the Contract Officer the estimated increased or decreased cost for the project being designed if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the design services.

7.3 Ownership of Documents. All drawings, specifications, reports, records, documents, memoranda, correspondence, computations , and other materials prepared by Contractor, its employees, subcontractors, 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. Contractor 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. Any use of such completed documents for other projects and/or use of incomplete documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all resulting damages. Contractor may retain copies of such documents for their own use.

Contractor shall have an unrestricted right to use the concepts embodied tin this Agreement.

Contractor shall ensure that all its subcontractors shall provide for assignment to City of any documents or materials prepared by them . I n the event Contractor fails to secure such assignment, Contractor shall indemnify City for all resulting damages.

7.4 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.

All information gained by Contractor in the performance of this Agreement shall be considered confidential and shall not be released by Contractor 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, 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 directl y related to Contractor ’s performance under this Agreement. Contractor shall maintain such books, records, data, and documents in accordance with generally acc epted 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. 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.

8.2 Interpretation. This Agreement shall be construed as a whole according to its fair Item 1S - Page 16

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12 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 Default of Contractor. Contractor’s failure to comply with any provision of this Agreement shall constitute a default.

A. If the City Manager, or his designee, determines that Contractor is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify Contractor in writing of such default. Contractor shall have ten (10) days, or such longer period as City may designate, to cure the default by rendering satisfactory performance. In the event Contractor 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. Contractor shall be liable for 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 shall limit City’s right to terminate this Agreement without cause under Section 3.2.

B. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 8.3(A), take over the work and prosecute the same to completion by contract or otherwise. The Contractor 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). The City may withhold any payments to the Contractor 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 Contractor shall not limit Contractor’s liability for completion of the Services as provided in this Agreement.

8.4 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.

8.5 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.

8.6 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, remedy or recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to Item 1S - Page 17

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13 obtain any other remedy consistent with the purposes of this Agreement.

8.7 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.

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 Contractor, 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 Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.

9.2 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 thi s 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.

9.3 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.

10. MISCELLANEOUS PROVISIONS

INTENTIONALLY OMMITTED

10.1 Patent and Copyright Infringement. To the fullest extent permissible under law, and in lieu of any other warranty by City or Contractor against patent or copyright infringement, statutory or otherwise:

A. I t is agreed that Contractor 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 arising out of the performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright and Contractor shall pay all costs and damages finally Item 1S - Page 18

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14 awarded in any such suit or claim, provided that Contractor is promptly notified in writing of the suit or claim and given authority, information and assistance at Contractor ’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 Contractor . However, Contractor 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 Contractor when it is such use in combination which infringes upon an existing U.S. letters patent or copyright.

B. Contractor shall have sole control of the defense of any such claim or suit and all negotiations for settlement in the event City fails to cooperate in the defense of any suit or claim, provided, however, that such defense shall be at Contractor ’s expense. Contractor shall not be obligated to indemnify City under any settlement that is made without Contractor’s consent, which shall not be unreasonably withheld. If the use or sale of such item is enjoined as a result of the suit or claim, Contractor, 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 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.

All notices 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. All notices 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 forms of electronic transmission such as e-mails, text messages, and 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 & City Clerk
3200 E. Tahquitz Canyon Way
Palm springs, California 92262
Telephone: (760) 323-8204
Facsimile: (760) 323-8332

To Contractor: E M D Construction Inc.

Attn.: Jose Portillo, President
68-597 Zurich Ave
Mountain Center, CA 92561

10.3 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.

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

Item 1S - Page 19

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15 10.5 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. 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 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.

10.7 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.

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.

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 NEXT PAGE]

Item 1S - Page 20

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16 SIGNATURE PAGE TO CONTRACT SERVICES AGREEMENT BY AND BETWEEN THE CITY

OF PALM SPRINGS AND E M D CONSTRUCTION INC

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

CONTRACTOR:

By: ____________________________ By: ________________________________ Signature Signature
(2nd signature required for Corporations)

Date: Date:

CITY OF PALM SPRINGS:

APPROVED BY CITY COUNCIL:

Date: _______ Item No.

APPROVED AS TO FORM: ATTEST:

By: ___________________________ By: _______________________________ City Attorney City Clerk

APPROVED:

By: _______________________________ Date:

City Manager – over $150,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000

Item 1S - Page 21

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17 EXHIBIT “A”

SCOPE OF SERVICES

Item 1S - Page 22
Sco;pe,:

The seleded C-ontracto shall pmvide all labor, mater ials, equipment, tools, superviision, transpor tation , and incidentals necessary to perfo l'm on-call repa·rs, maintenance , rest.oration, inspection, installlation, and upgrades of door, window , storei ont, screen , an.di access control systems at City-owned buHdlings an.di facilities. Services may ind ude, but are not limited to, the foHowing:

A. Door Systems and Assem blies

11. Repair, replacement., restor.afon , and upgrade of manua l, mechanical , and electronic door systems , including both h[sto:ric and modern door types .

2. lnstarnaUon and mat tenance of automatic door operators , in.eluding sliding and swiinging doors .

3. Emerg,ency 11epair andl board-up :serviices for comprom is,ed door access points ..

4. lnstarnation and rep.air of sto11m doors, :sec1J1rl y grilles , and v,entilation screens .

5. !=ab icati:on and installafon of door systems require speo.ialty mater 'als such as at11 min um, steel, o:r composle panels .

IB. Wiindow and $1,orefro nt Sys·tems

11. Repair, replacement., and mstoration of window systems and associated components , in.duding screens and :storm windows .

2. Emerg:ency board-up, services in resIponse to, broken or compromised windows .

3. !=ab ication and installation of compete storefront systems , includrng glaz ing and structural frami ng1 usi n.9I glass, a tumin um, steel, and composi te· materia 1,s.

4. Installation of ballistic- and blast-resistant g'laziing assemb ies using pr,e­ manufactured mate ials.

C. Access C,ontro l and Securi ty llnteg 1ratiio:n

11. lnstarnation, upgrade , and mainten1ance of electronic and mechanical access contml systems , inciuding card read,ers, keypads , ,elect11ic str"kes, and maglocks .

2. l ow-vo ltage wiring and integration of access control systems with existing building infrastruc ture, inctu:ding ADA-comp liant door access equipment

3. Traub esh.ooting and maintenance of door sensors, .automatic operators ., and o,ther entry control deViices.

4. Integration o' securl y systems into door and storefront assemb lies where applicable .

ID. G.ene1ral !Requirements

11. Fiel!d assessment and documentation of site ,oond itions.

2. Preparation of detailed cost estimates and written proposa ls for individual task orders or ass.ignments.

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18 Item 1S - Page 23

3. Coordination with City personnel and adherence to applicable local, state, and federal regulations related to construction, security systems. and accessibility standards.

4. The Contractor shall respond to non-emergency calls for service within two (2) business days and provide proposals for work within 5 business days, unless otherwise agreed upon by the Projec t Manager.

5. Environmental Considerations: The Contractor shall ensure that all work complies with environmental regulations, including the proper handling and disposal cf hazardous materials, and other substances in accordance with local, state, and federal guidelines. The Contractor is responsible for managing substances in compliance with the E nvironmental Protection Agency (EPA) regulations. The C ity e ncourages the Contractor to employ environmentally friendly practices wherever feasible, particuarly in waste disposal, recycling, and material salvage.

6. Accessibility and Accommodation: The Contractor shall ensure that all services performed do not impede the accessibility of the facility, including accessible pathways and entryways. The Contractor shall be responsible for making reasonab le accommodat ions for individua ls with disab ilities as required under the Americans with Disabilities Act (ADA). Any barriers to accessibility must be promptly addressed and resolved during service operations.

7. Contractor's Duty to Inform the City of Changes: The Contractor shall promptly inform the City of any significant changes to staffing, equipment, methods, or other elements of service that could affect the quality, safety, or timing of t he work. Any changes that might impact the execution of the contract musi be communicated to the City in writing for prior approval. This includes changes to subcontractors, major equipment or tool modifications, or shifts in operational procedures.

8. Escalation Procedures for Delays: If the Contractor anticipates a delay in meeting a service deadline, they must notify the City in writing as soon as possible. The notice shou ld include the cause of the delay and a proposed plan to remedy the situation. For emergency services, the Contractor must provide regular updates regarding the estimated resolution time. For non-emergency services, the City reserves the right to modify or reduce the scope of work if delays are deemed excessive or if it interferes with facility operations.

9. Equipment and supplies: Contractor is to provide, at no additional cost to the City, all necessary equipment, hand, and power tools and supplies typically used by the job classification and/or assigned trade person. Mechanical or other equipment used for Work must be of a type that is approved by the industry and shall be operated in s uch a manner as not to cause danger of any nature to employees or other persons or damage to the building structure, fixtures, furnishings, etc.

10. Gene ral sarety requ irements: The Contrac tor shall be respons ible ror all sarety precautions required in connection with t heir work, i ncluding regulations of the Occupational Safety and Health Administration (OSHA) and other governing agencies. The City reserves the right to oversee all service work from a safety standpoint and require the Contractor to take appropriate action to ensure safety and code compliance.

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19 Payment

Item 1S - Page 24

11. Damages: Necessary precautions shall be taken at all times to protect persons. property and equipment from injury or damage. Any damage shall be reported, reviewed, and discussed with the project manager.

12. Disposal and salvage of waste material: Contractor must dispose of or salvage all waste material generated by its service operations under the contract in an off-site location, in compliance with all applicable laws and regulations. City encourages Contractor to salvage material in an environmentally friendly manner if possible. City retains the right to retain materials or have another party salvage material. at the discretion and direction of the facility manager.

The resulting contract for these services is an on-call as needed contract. No specific amount of work is guaranteed. The contract value is an estimated value on ly. All work authorized under the contract will be compensated on a t ime and material basis as outlined in the Invoicing Section.

Contractor will submit an itemized invoice monthly. Billings must reference a purchase order number and shall indicate the unit (contract) price. Contractor will be pa id for the actual hours worked at the rates shown in the contract. Parts, materials. equipment. and subcontractor costs will be compensated at actual cost with receipts required with allowable markup as outline in the contract. Contractor shall break out the line items on the invoice in accordance with the line items on the bid form. Contractor must provide back-up documentation for materials, subcontractor, rented equipment, permits, disposal and recycling fees. Invoices that are submitted with incorrect prices may be returned for correction before any payments to the contractor are authorized. It shall be the contractor's responsibility to submit a correct invoice. The City shall not be responsible for payment until a correct invoice is received. The invoice shall be accompanied by receipts. dated, and signed by a C ity Employee, verifying the work was done. Invoices and receipts will be submitted to the Contract Officer for approval. All invoices are to be sent as one document, per month to: [email protected]

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20 EXHIBIT “B”

SCHEDULE OF COMPENSATION

Item 1S - Page 25

ATTAC HMENT G

BID FORM
INVITATION FOR BIDS (IFB 25-06)

DOORS AND WINDOWS INSTALLA TION, MAINTENANCE AND REPAIR SERVICES Respond ing to this IFB for Doors and Windows Installation, Maintenance and Repair Services, the undersigned bidder proposes and agrees to provide the services and work in accordance with the specificat ions . Bidder proposes and agrees to furnish all labor, equipment, materials, supervision, and service necessary to complete said Work in accordance with the Specifications of the City of Palm Springs and will accept as full payment therefore, the following unit cost amounts . The City of Palm Springs will not accept any additional charges, fees, etc. that are not already included or incorporated in the below unit costs.

For the initial three years of the Agreement term, the Unit Prioing shall remain fixed. For optional years 4 and 5, Contractor may request a price adjustment not to exceed the Bureau of Labor Statistic's Consumer Price Index (CPI) for the Riverside/San Bernadina/Ontario region for the prior 12 month period effective on the anniversary date. Optional renewal years 4 and 5, and any associated CPI increase , are at the mutual consent of the City and the Contracto r.

ITEM DESCRIPTION UNIT Q UANTITY UNIT PRICE SUBTOTAL
1 Journeyman Carpenter HR
(Doors/Frames) Regular Billing 1200
Rate (7:00AM - 5:00PM) $118 . 00 $ 141 , 600 . 00
2 Journeyman Carpenter Overtime HR
Billing Rate (5:00PM - 7:00AM) 40 $ 177 , 00 $ 7,080 . 00 3 Journeyma n Carpenter Holiday HR
Billing Rate (Saturday/ 10
Sunday/Holidays). $1 77 , 00 $ 1 ,770 . 00
4 Journeyman Glazier HR
(Windows /Storefronts ) Regular 500
Billing Rate (7:00AM - 5:00PM) $ 106 . 20 $5 3 ,100 . 00 5 Journeyman Glazier Overtime HR
Billing Rate (5:00PM - 7:00AM) 20 $ 159 . 30 $3,186 . 00 6 Journeyman Glazier Holiday Billing HR
Rate (Saturday /Sunday/Holidays) 10
$159 , 30 $ 1 ,593 . 00
7 Access Control Technician HR
Overtime Billing Rate 400
(5:00PM - 7:00AM)
$91.83 $36,73 1.04
8 Access Control Technic ian HR
Overtime Billing Rate 15 (5:00PM - 7:00AM)
$121,50 $1,822 , 57

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21 Item 1S - Page 26
9 Access Contro l Technician Holida} HR
Billing Rate (Saturday/ Sunday/ 5
Holidays) $151. 17 $755 . 85
10 Parts and Materials(% mark-up) %
(Example : If 10%, the subtotal= $80,000
$88,000) $24,000 . 00 $104,000 , 00
11 Equipment Rental( % mark-up) %
(Example: If 10%, the subtotal= $10,000 $3 ,000 . 00 $13 ,000 . 00 $11,000) 12 Subcont ractors (% mark-up) %
(Example : If 10%, the subtotal= $50,000 $15,000 . 00 $65,000 . 00 $55,000)
TOTAL $429,638 . 46
*NOTE : This bid form is to detemiine the lowest bidder and will be used to establi sh the contract unit prices. The contract will be set at the City budget amount. Total budgeted amount for this contract would be split between primary contract (60%) and secondary contract (40%).

Firm Name: E M O CONSTRUCTI ON I NC
DIR Number : PW- LR- 1001133693
Signature of Autho rized Person: __ ..,.(J _ __,_~-~"'-'--lt\'if __________ _ I r=-
Printed Name: __ Jo_s_e_ ov_i_d_io_ P_o_r t_i_l _l o ______________ _ Title: _ _,_P.,,.,re=s,.,.i""de...,,n,..,,t _____________________ _ Date: -~0~6--0=2~-~2=02=5 _____________________ _

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22 Item 1S - Page 27
ATTACHMENT "F"
EXECUTIVE ORDER N-6-22 CERTIFICATION
INVITATION FOR BIDS (IFB 25-06)

DOORS AND WINDOWS INSTALLAT ION, MAINTENANCE AND REPA IR SERVICES Executive Order N-6-22 issued by Governo r 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 Californ ia 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 PENAL TY FOR PERJURY, that a) the contracto r is not a target of any economic sanctions against Russian and Russian entities and individuals as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to legally bind the Contractor. Th is certification is made under the laws of the State of California.

Signature:. ___ -+Y-.,._/-~~-_,--,~piF--'~------
Printed Name: ___ E _M_ D_C_o_ns_t_r_u_ct_i_o_n _I_n_c __ _ Title: Preside nt
Firm Name: Jose Ovidio Por t i llo
Date: 06- 02- 202s

ATTACHMENT B
Item 1S - Page 28
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CONTRACT SERVICES AGREEMENT 25B195

DOORS AND WINDOWS INSTALLATION, MAINTENANCE AND REPAIR

SERVICES FOR PALM SPRINGS INTERNATIONAL AIRPORT
This
Contract Services Agreement (“Agreement”) is made and entered into this 21 day of July 2025, (“Effective Date”), by and between the City of Palm Springs, a California charter city and municipal corporation (“City”), and E M D Construction Inc, a California Corporation , (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.

RECITALS
A. City requires the services of a Contractor, for Doors and Windows Install ation, Maintenance and Repair Services for Palm Springs International Airport (“Project”).

B. Contractor has s ubmitted to City a proposal to provi de Doors and Windows Installation, Maintenance and Repair Services, to City under the terms of this Agreement.

C. Contractor 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 in this Agreement.

D. City
desires to retain Contractor to provide such contract 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:

AGREEMENT

1. SER VIC

ES OF CONTRACTOR

1.1 Scope of
Services. In compliance with all terms and conditions of this Agreement, Contractor agrees to perform the contract services set forth in the Scope of Services described in Exhibit “A” (the “Services” or “Work”), which is attached and incorporated herein by this reference. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and contract services and that Contractor is experienced in performing the Work contemplated and, in light of such status and experience, Contractor covenants that it shall perform the 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. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern.

1.2 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; and, (4) the Contractor ’s signed, original proposal submitted to the City (“ Contractor’s Proposal”), (collectively referred to as the “Contract Documents”). The City’s Request for Proposals and the Contractor’s Schedule of Compensation, which is attached as Exhibits “B” is incorporated herein by this reference and are made a part of this Agreement. The Sc ope of Services shall include Item 1S - Page 29

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2 the Contractor’s Proposal. All provisions of the Scope of Services, the City’s Request for Proposals and the Contractor’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: (1 st) the provisions of the Scope of Services (Exhibit “A”); (2 nd) the provisions of the City’s Request for Proposal; (3 rd) the terms of this Agreement; and, (4 th) the provisions of the Contractor’s Proposal.

1.3 Compliance with Law. Contractor warrants that all Services rendered shall be performed in accordance with all applicable federal, state, and local laws, statutes , ordinances lawful orders, rules, and regulations. Contractor 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. Contractor 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 and Services required by this Agreement. Contractor represents and warrants to City that Contractor 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 Contractor to perform the Work and Services under this Agreement.

1.5 Familiarity with Work. By executing this Agreement, Contractor warrants that Contractor (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, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of any Services . Should the Contractor discover any latent or unknown conditions that will materially affect the performance of the Services, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor 's risk until written instructions are received from the City.

2. COMPENSATION

2.1 Maximum Contract Amount. For the Services rendered under this Agreement, Contractor shall be compensated by City in accordance with the Schedule of Compensation, which is attached as Exhibit “B” and incorporated in this Agreement by reference. Compensation shall not exceed the maximum contract amount of one hundred eighty thousand dollars ($180,000.00) ("Maximum Contract Amount"), except as may be provided under Section 2.3. The method of compensation shall be as set forth in Exhibit “B.” The method of compensation shall be as set forth in Exhibit “ B.” C ompensation for necessary expenditures must be approved in advance by the Contract Officer designated under Section 4.2.

2.2. Method of Payment . Un less another method of payment is specified in the Schedule of Compensation (Exhibit “ B”), in any month in which Contractor wishes to receive payment, Contractor shall submit to the City an invoice for services rendered prior to the date of the invoice. The invoice shall be in a form approved by the City’s Finance Director and must be submitted no later than the tenth (10) working day of such month. Such requests shall be based upon the amount and value of the services performed by Contractor and accompanied by such reporting data including an itemized breakdown of all costs incurred and tasks performed during Item 1S - Page 30
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the period covered by the invoice, as may be required by the City. City shall use reasonable efforts to make payments to Contractor within forty-five (45) days after receipt of the invoice or as soon as is reasonably practical. There shall be a maximum of one payment per month.

2.3 C hanges in Scope.

In the event any change or changes in the Scope of 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.

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

3. S

CHEDULE

OF PERFORMANCE

3.1 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 3 years, commencing on July 22 , 2025, and ending on July 21, 2028, 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 two (2) additional one (1) year terms

3.2 Termination Prior to Expiration of Term. The 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. Contractor may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.

3.3 Schedule of P erformance. INTENTIONALLY OMMITTED

3.4 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); Item 1S - Page 31

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4 and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay, and extend the time for performing the 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. COORDINATION OF WORK

4.1 Representative of Contractor. The following principal of Contractor is designated as being the principal and representative of Contractor authorized to act in its behalf and make all decisions with respect to the Services to be performed under this Agreement: Jose Portillo 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 Contractor and devoting sufficient time to personally supervise the Services performed hereunder. The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer.

4.2 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.

4.3 Prohibition Against Subcontracting or Assignments. 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, 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. All persons engaged in the Work will be considered employees of Contractor. City will deal directly with and will make all payments to Contractor. In addition, neither this Agreement nor any interest in this Agreement 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. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release Contractor or any surety of Contractor from any liability under this Agreement without the express written consent of City.

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5 4.4 Independent Contractor. The legal relationship between the Parties is that of an independent contractor, and nothing shall be deemed to make Contractor a City employee.

A. During the performance of this Agreement, Contractor and its officers, employees, and agents shall act in an independent capacity and shall not act or represent themselves as City officers or employees. The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Contractor or any of its officers, employees, or agents, except as set forth in this Agreement. Contractor, its officers, employees, or agents shall not maintain an office or any other type of fixed business location at City’s offices. City shall have no voice in the selection, discharge, supervision, or control of Contractor ’s employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Contractor 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 Contractor in its business or otherwise a joint venturer or a member of any joint enterprise with Contractor.

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

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

4.5 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).

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

5. INSURANCE

5.1 Types of Insurance. Contractor shall procure and maintain, at its sole cost and expense, the insurance described herein. The insurance shall be for the duration of this Agreement and includes any extensions , unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to City. The insurance shall apply against claims which may arise from the Contractor's performance of Work under this Agreement, including Contractor's 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 Contractor 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. Contractor shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. Except as otherwise authorized below for contract liability (errors and omissions) insurance, all insurance provided under this Agreement shall be on an occurrence basis. The minimum amount of insurance required shall be as follows:

A. Errors and Omissions Insurance. Contractor shall obtain and maintain in full force and effect throughout the term of this Agreement, standard industry form contract 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 ) Contractor shall either: (a) certify in writing to the City that Contractor is unaware of any contract liability claims made against Contractor and is unaware o f any facts which may lead to such a claim against Contractor ; or ( b) if Contractor does not provide the certification under (a), Contractor shall procure from the contract 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 under 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, Contractor shall obtain continuing insurance coverage for the prior acts or omissions of Contractor 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, Item 1S - Page 34

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7 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.

B. Workers’ Compensation Insurance. Contractor shall obtain and maintain, in full force and effect throughout the term of this Agreement, workers’ c ompensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. Contractor 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 subcontractors, if any, to do likewise under their workers’ compensation insurance policies. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.

C. Commercial General Liability Insurance. Contractor 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 contractors, broad form property damage, products and completed operations.

D. Business Automobile Insurance. Contractor 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. Contractor 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 or his/her designee prior to commencing any work or services under this Agreement. Contractor 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 or his/her designee may require evidence of pending claims and claims history as well as evidence of Contractor’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 Contractor under this Agreement:

A. For any claims related to this Agreement, Contractor ’s coverage shall be primary insurance with respect to the 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 Contractor’s insurance and shall not contribute with it.

B. Any failure to comply with reporting or other provisions of the policies, Item 1S - Page 35

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8 including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials, employees, agents, and volunteers.

C. All insurance coverage and limits provided by Contractor 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. No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in this Agreement (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. Contractor 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 Contractor’s obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement.

F. Contractor agrees to ensure that subcontractors, and any other parties involved with the Project who are brought onto or involved in the Project by Contractor, provide the same minimum insurance coverage required of Contractor. Contractor 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. Contractor agrees that upon request, all agreements with subcontractors and others engaged in the Project will be submitted to the City for review.

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

H. Contractor shall provide proof that policies of insurance required in this Agreement, 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, or 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 Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section.

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9 K. Contractor agrees to provide immediate notice to City of any claim or loss against Contractor 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. Contractor agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages resulting from the Contractor’s activities or the activities of any person or person for which the Contractor is otherwise responsible.

5.4 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 such requirements are waived in writing by the City Manager or his designee due to unique circumstances.

5.5 Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies.

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

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

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

C. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.

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.

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10 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.

6. INDEMNIFICATION

6.1 Indemnification and Reimbursement. 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.

6.2 Design Contract 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.

7. REPORTS AND RECORDS

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

7.2 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement, or as the Item 1S - Page 38

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11 Contract Officer shall require. Contractor acknowledges that the City is greatly concerned about the cost of the Work to be performed under this Agreement. For this reason, Contractor agrees that Contractor shall promptly notify the Contract Officer the estimated increased or decreased cost if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services . If Contractor is providing design services, Contractor shall promptly notify the Contract Officer the estimated increased or decreased cost for the project being designed if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the design services.

7.3 Ownership of Documents. All drawings, specifications, reports, records, documents, memoranda, correspondence, computations , and other materials prepared by Contractor, its employees, subcontractors, 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. Contractor 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. Any use of such completed documents for other projects and/or use of incomplete documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all resulting damages. Contractor may retain copies of such documents for their own use.

Contractor shall have an unrestricted right to use the concepts embodied tin this Agreement.

Contractor shall ensure that all its subcontractors shall provide for assignment to City of any documents or materials prepared by them . I n the event Contractor fails to secure such assignment, Contractor shall indemnify City for all resulting damages.

7.4 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.

All information gained by Contractor in the performance of this Agreement shall be considered confidential and shall not be released by Contractor 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, 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 directl y related to Contractor ’s performance under this Agreement. Contractor shall maintain such books, records, data, and documents in accordance with generally acc epted 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. 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.

8.2 Interpretation. This Agreement shall be construed as a whole according to its fair Item 1S - Page 39

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12 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 Default of Contractor. Contractor’s failure to comply with any provision of this Agreement shall constitute a default.

A. If the City Manager, or his designee, determines that Contractor is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify Contractor in writing of such default. Contractor shall have ten (10) days, or such longer period as City may designate, to cure the default by rendering satisfactory performance. In the event Contractor 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. Contractor shall be liable for 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 shall limit City’s right to terminate this Agreement without cause under Section 3.2.

B. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 8.3(A), take over the work and prosecute the same to completion by contract or otherwise. The Contractor 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). The City may withhold any payments to the Contractor 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 Contractor shall not limit Contractor’s liability for completion of the Services as provided in this Agreement.

8.4 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.

8.5 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.

8.6 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, remedy or recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to Item 1S - Page 40

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13 obtain any other remedy consistent with the purposes of this Agreement.

8.7 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.

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 Contractor, 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 Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.

9.2 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 thi s 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.

9.3 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.

10. MISCELLANEOUS PROVISIONS

INTENTIONALLY OMMITTED

10.1 Patent and Copyright Infringement. To the fullest extent permissible under law, and in lieu of any other warranty by City or Contractor against patent or copyright infringement, statutory or otherwise:

A. I t is agreed that Contractor 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 arising out of the performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright and Contractor shall pay all costs and damages finally Item 1S - Page 41

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14 awarded in any such suit or claim, provided that Contractor is promptly notified in writing of the suit or claim and given authority, information and assistance at Contractor ’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 Contractor . However, Contractor 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 Contractor when it is such use in combination which infringes upon an existing U.S. letters patent or copyright.

B. Contractor shall have sole control of the defense of any such claim or suit and all negotiations for settlement in the event City fails to cooperate in the defense of any suit or claim, provided, however, that such defense shall be at Contractor ’s expense. Contractor shall not be obligated to indemnify City under any settlement that is made without Contractor’s consent, which shall not be unreasonably withheld. If the use or sale of such item is enjoined as a result of the suit or claim, Contractor, 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 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.

All notices 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. All notices 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 forms of electronic transmission such as e-mails, text messages, and 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 & City Clerk
3200 E. Tahquitz Canyon Way
Palm springs, California 92262
Telephone: (760) 323-8204
Facsimile: (760) 323-8332

To Contractor: E M D Construction Inc.

Attn.: Jose Portillo, President
68-597 Zurich Ave
Mountain Center, CA 92561

10.3 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.

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

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15 10.5 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. 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 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.

10.7 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.

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.

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 NEXT PAGE]

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16 SIGNATURE PAGE TO CONTRACT SERVICES AGREEMENT BY AND BETWEEN THE CITY

OF PALM SPRINGS AND E M D CONSTRUCTION INC

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

CONTRACTOR:

By: ____________________________ By: ________________________________ Signature Signature
(2nd signature required for Corporations)

Date: Date:

CITY OF PALM SPRINGS:

APPROVED BY CITY COUNCIL:

Date: _______ Item No.

APPROVED AS TO FORM: ATTEST:

By: ___________________________ By: _______________________________ City Attorney City Clerk

APPROVED:

By: _______________________________ Date:

City Manager – over $150,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000

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17 EXHIBIT “A”

SCOPE OF SERVICES

Item 1S - Page 45
Sco;pe,:

The seleded C-ontracto shall pmvide all labor, mater ials, equipment, tools, superviision, transpor tation , and incidentals necessary to perfo l'm on-call repa·rs, maintenance , rest.oration, inspection, installlation, and upgrades of door, window , storei ont, screen , an.di access control systems at City-owned buHdlings an.di facilities. Services may ind ude, but are not limited to, the foHowing:

A. Door Systems and Assem blies

11. Repair, replacement., restor.afon , and upgrade of manua l, mechanical , and electronic door systems , including both h[sto:ric and modern door types .

2. lnstarnaUon and mat tenance of automatic door operators , in.eluding sliding and swiinging doors .

3. Emerg,ency 11epair andl board-up :serviices for comprom is,ed door access points ..

4. lnstarnation and rep.air of sto11m doors, :sec1J1rl y grilles , and v,entilation screens .

5. !=ab icati:on and installafon of door systems require speo.ialty mater 'als such as at11 min um, steel, o:r composle panels .

IB. Wiindow and $1,orefro nt Sys·tems

11. Repair, replacement., and mstoration of window systems and associated components , in.duding screens and :storm windows .

2. Emerg:ency board-up, services in resIponse to, broken or compromised windows .

3. !=ab ication and installation of compete storefront systems , includrng glaz ing and structural frami ng1 usi n.9I glass, a tumin um, steel, and composi te· materia 1,s.

4. Installation of ballistic- and blast-resistant g'laziing assemb ies using pr,e­ manufactured mate ials.

C. Access C,ontro l and Securi ty llnteg 1ratiio:n

11. lnstarnation, upgrade , and mainten1ance of electronic and mechanical access contml systems , inciuding card read,ers, keypads , ,elect11ic str"kes, and maglocks .

2. l ow-vo ltage wiring and integration of access control systems with existing building infrastruc ture, inctu:ding ADA-comp liant door access equipment

3. Traub esh.ooting and maintenance of door sensors, .automatic operators ., and o,ther entry control deViices.

4. Integration o' securl y systems into door and storefront assemb lies where applicable .

ID. G.ene1ral !Requirements

11. Fiel!d assessment and documentation of site ,oond itions.

2. Preparation of detailed cost estimates and written proposa ls for individual task orders or ass.ignments.

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18 Item 1S - Page 46

3. Coordination with City personnel and adherence to applicable local, state, and federal regulations related to construction, security systems. and accessibility standards.

4. The Contractor shall respond to non-emergency calls for service within two (2) business days and provide proposals for work within 5 business days, unless otherwise agreed upon by the Projec t Manager.

5. Environmental Considerations: The Contractor shall ensure that all work complies with environmental regulations, including the proper handling and disposal cf hazardous materials, and other substances in accordance with local, state, and federal guidelines. The Contractor is responsible for managing substances in compliance with the E nvironmental Protection Agency (EPA) regulations. The C ity e ncourages the Contractor to employ environmentally friendly practices wherever feasible, particuarly in waste disposal, recycling, and material salvage.

6. Accessibility and Accommodation: The Contractor shall ensure that all services performed do not impede the accessibility of the facility, including accessible pathways and entryways. The Contractor shall be responsible for making reasonab le accommodat ions for individua ls with disab ilities as required under the Americans with Disabilities Act (ADA). Any barriers to accessibility must be promptly addressed and resolved during service operations.

7. Contractor's Duty to Inform the City of Changes: The Contractor shall promptly inform the City of any significant changes to staffing, equipment, methods, or other elements of service that could affect the quality, safety, or timing of t he work. Any changes that might impact the execution of the contract musi be communicated to the City in writing for prior approval. This includes changes to subcontractors, major equipment or tool modifications, or shifts in operational procedures.

8. Escalation Procedures for Delays: If the Contractor anticipates a delay in meeting a service deadline, they must notify the City in writing as soon as possible. The notice shou ld include the cause of the delay and a proposed plan to remedy the situation. For emergency services, the Contractor must provide regular updates regarding the estimated resolution time. For non-emergency services, the City reserves the right to modify or reduce the scope of work if delays are deemed excessive or if it interferes with facility operations.

9. Equipment and supplies: Contractor is to provide, at no additional cost to the City, all necessary equipment, hand, and power tools and supplies typically used by the job classification and/or assigned trade person. Mechanical or other equipment used for Work must be of a type that is approved by the industry and shall be operated in s uch a manner as not to cause danger of any nature to employees or other persons or damage to the building structure, fixtures, furnishings, etc.

10. Gene ral sarety requ irements: The Contrac tor shall be respons ible ror all sarety precautions required in connection with t heir work, i ncluding regulations of the Occupational Safety and Health Administration (OSHA) and other governing agencies. The City reserves the right to oversee all service work from a safety standpoint and require the Contractor to take appropriate action to ensure safety and code compliance.

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19 Payment

Item 1S - Page 47

11. Damages: Necessary precautions shall be taken at all times to protect persons. property and equipment from injury or damage. Any damage shall be reported, reviewed, and discussed with the project manager.

12. Disposal and salvage of waste material: Contractor must dispose of or salvage all waste material generated by its service operations under the contract in an off-site location, in compliance with all applicable laws and regulations. City encourages Contractor to salvage material in an environmentally friendly manner if possible. City retains the right to retain materials or have another party salvage material. at the discretion and direction of the facility manager.

The resulting contract for these services is an on-call as needed contract. No specific amount of work is guaranteed. The contract value is an estimated value on ly. All work authorized under the contract will be compensated on a t ime and material basis as outlined in the Invoicing Section.

Contractor will submit an itemized invoice monthly. Billings must reference a purchase order number and shall indicate the unit (contract) price. Contractor will be pa id for the actual hours worked at the rates shown in the contract. Parts, materials. equipment. and subcontractor costs will be compensated at actual cost with receipts required with allowable markup as outline in the contract. Contractor shall break out the line items on the invoice in accordance with the line items on the bid form. Contractor must provide back-up documentation for materials, subcontractor, rented equipment, permits, disposal and recycling fees. Invoices that are submitted with incorrect prices may be returned for correction before any payments to the contractor are authorized. It shall be the contractor's responsibility to submit a correct invoice. The City shall not be responsible for payment until a correct invoice is received. The invoice shall be accompanied by receipts. dated, and signed by a C ity Employee, verifying the work was done. Invoices and receipts will be submitted to the Contract Officer for approval. All invoices are to be sent as one document, per month to: [email protected]

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20 EXHIBIT “B”

SCHEDULE OF COMPENSATION

Item 1S - Page 48

ATTAC HMENT G

BID FORM
INVITATION FOR BIDS (IFB 25-06)

DOORS AND WINDOWS INSTALLA TION, MAINTENANCE AND REPAIR SERVICES Respond ing to this IFB for Doors and Windows Installation, Maintenance and Repair Services, the undersigned bidder proposes and agrees to provide the services and work in accordance with the specificat ions . Bidder proposes and agrees to furnish all labor, equipment, materials, supervision, and service necessary to complete said Work in accordance with the Specifications of the City of Palm Springs and will accept as full payment therefore, the following unit cost amounts . The City of Palm Springs will not accept any additional charges, fees, etc. that are not already included or incorporated in the below unit costs.

For the initial three years of the Agreement term, the Unit Prioing shall remain fixed. For optional years 4 and 5, Contractor may request a price adjustment not to exceed the Bureau of Labor Statistic's Consumer Price Index (CPI) for the Riverside/San Bernadina/Ontario region for the prior 12 month period effective on the anniversary date. Optional renewal years 4 and 5, and any associated CPI increase , are at the mutual consent of the City and the Contracto r.

ITEM DESCRIPTION UNIT Q UANTITY UNIT PRICE SUBTOTAL
1 Journeyman Carpenter HR
(Doors/Frames) Regular Billing 1200
Rate (7:00AM - 5:00PM) $118 . 00 $ 141 , 600 . 00
2 Journeyman Carpenter Overtime HR
Billing Rate (5:00PM - 7:00AM) 40 $ 177 , 00 $ 7,080 . 00 3 Journeyma n Carpenter Holiday HR
Billing Rate (Saturday/ 10
Sunday/Holidays). $1 77 , 00 $ 1 ,770 . 00
4 Journeyman Glazier HR
(Windows /Storefronts ) Regular 500
Billing Rate (7:00AM - 5:00PM) $ 106 . 20 $5 3 ,100 . 00 5 Journeyman Glazier Overtime HR
Billing Rate (5:00PM - 7:00AM) 20 $ 159 . 30 $3,186 . 00 6 Journeyman Glazier Holiday Billing HR
Rate (Saturday /Sunday/Holidays) 10
$159 , 30 $ 1 ,593 . 00
7 Access Control Technician HR
Overtime Billing Rate 400
(5:00PM - 7:00AM)
$91.83 $36,73 1.04
8 Access Control Technic ian HR
Overtime Billing Rate 15 (5:00PM - 7:00AM)
$121,50 $1,822 , 57

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21 Item 1S - Page 49
9 Access Contro l Technician Holida} HR
Billing Rate (Saturday/ Sunday/ 5
Holidays) $151. 17 $755 . 85
10 Parts and Materials(% mark-up) %
(Example : If 10%, the subtotal= $80,000
$88,000) $24,000 . 00 $104,000 , 00
11 Equipment Rental( % mark-up) %
(Example: If 10%, the subtotal= $10,000 $3 ,000 . 00 $13 ,000 . 00 $11,000) 12 Subcont ractors (% mark-up) %
(Example : If 10%, the subtotal= $50,000 $15,000 . 00 $65,000 . 00 $55,000)
TOTAL $429,638 . 46
*NOTE : This bid form is to detemiine the lowest bidder and will be used to establi sh the contract unit prices. The contract will be set at the City budget amount. Total budgeted amount for this contract would be split between primary contract (60%) and secondary contract (40%).

Firm Name: E M O CONSTRUCTI ON I NC
DIR Number : PW- LR- 1001133693
Signature of Autho rized Person: __ ..,.(J _ __,_~-~"'-'--lt\'if __________ _ I r=-
Printed Name: __ Jo_s_e_ ov_i_d_io_ P_o_r t_i_l _l o ______________ _ Title: _ _,_P.,,.,re=s,.,.i""de...,,n,..,,t _____________________ _ Date: -~0~6--0=2~-~2=02=5 _____________________ _

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22 Item 1S - Page 50
ATTACHMENT "F"
EXECUTIVE ORDER N-6-22 CERTIFICATION
INVITATION FOR BIDS (IFB 25-06)

DOORS AND WINDOWS INSTALLAT ION, MAINTENANCE AND REPA IR SERVICES Executive Order N-6-22 issued by Governo r 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 Californ ia 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 PENAL TY FOR PERJURY, that a) the contracto r is not a target of any economic sanctions against Russian and Russian entities and individuals as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to legally bind the Contractor. Th is certification is made under the laws of the State of California.

Signature:. ___ -+Y-.,._/-~~-_,--,~piF--'~------
Printed Name: ___ E _M_ D_C_o_ns_t_r_u_ct_i_o_n _I_n_c __ _ Title: Preside nt
Firm Name: Jose Ovidio Por t i llo
Date: 06- 02- 202s

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23 EXHIBIT “D”

FEDERAL AVIATION ADMINISTRATION – FEDERAL PROVISIONS

Item 1S - Page 51

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24 EXHIBIT “D”

FEDERAL AVIATION ADMINISTRATION – FEDERAL PROVISIONS

Provision
Reference Provision Description
Page
No.

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

*Solicitation Clause also

Item 1S - Page 52

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25 FAA - 01 Access to Records and Reports

APPLICABILITY – pertains to all contracts.

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

Reference: 2 CFR § 200.334, 2 CFR § 200.337, FAA Order 5100.38

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26 FAA - 02 Affirmative Action Requirement

Not applicable.

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27 FAA – 03 Breach of Contract

APPLICABILITY – required for all contracts that exceed the simplified acquisition threshold as stated in 2 CFR Part 200, Appendix II (A). This threshold is occasionally adjusted for inflation and is $250,000.

REQUIREMENT -

See Section 4.5 of the Agreement.

Reference: 2 CFR § 200 Appendix II(A)

Item 1S - Page 55

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28 FAA – 04 Buy American Preferences

APPLICABILITY – required for contracts defined as follows:
• Construction Projects involving the replacement, rehabilitation, reconstruction of airfield surfaces such as on runways, taxiways, taxilanes, aprons, roadways, parking lots, etc. – Insert the Certificate of compliance to FAA Buy American Preference based on Construction Projects.
• Equipment and Buildings Projects involving and including the acquisition of equipment such as snow removal equipment, navigational aids, wind cones, and the construction of buildings such as hangars, terminal development, lighting vaults, aircraft rescue & firefighting buildings, etc. - Insert the Certificate of Compliance with FAA Buy American Preference Based on Equipment/Building Projects.

REQUIREMENT -

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

Reference: Title 49 USC § 50101

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29 FAA – 05 Civil Rights General

APPLICABILITY – required for all contracts regardless of funding source.

REQUIREMENT -

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

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

Reference: 49 USC § 47123

Item 1S - Page 57

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30 FAA – 06 Civil Rights – Title VI Assurances

APPLICABILITY – required for all contracts.

REQUIREMENT -

Title VI List of Pertinent Nondiscrimination Acts and Authorities

During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “Contractor”) agrees to comply with the following non- discrimination statutes and authorities; including but not limited to:

• Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin);

• 49 CFR part 21 (Non-discrimination in Federally -Assisted programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act of 1964);

• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 USC § 4601) (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);

• Section 504 of the Rehabilitation Act of 1973 (29 USC § 794 et seq.), as amended (prohibits discrimination on the basis of disability); and 49 CFR part 27 (Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance);

• The Age Discrimination Act of 1975, as amended (42 USC § 6101 et seq.) (prohibits discrimination on the basis of age);

• Airport and Airway Improvement Act of 1982 (49 USC § 47123), as amended (prohibits discrimination based on race, creed, color, national origin, or sex);

• The Civil Rights Restoration Act of 1987 (PL 100-259) (broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);

• Titles II and III of the Americans with Disabilities Act of 1990 (42 USC § 12101, et seq) (prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities) as implemented by U.S. Department of Transportation regulations at 49 CFR parts 37 and 38;

• The Federal Aviation Administration’s Nondiscrimination statute (49 USC § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);

• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations (ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations);

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31 • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs [70 Fed.

Reg. 74087 (2005)];

• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 USC § 1681, et seq).

Compliance with Nondiscrimination Requirements:

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

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

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

3. Solicitations for Subcontracts, including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Contractor of the Contractor’s obligations under this contract and the Nondiscrimination Acts and Authorities on the grounds of race, color, or national origin.

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

5. Sanctions for Noncompliance: In the event of a Contractor’s noncompliance with the non- discrimination provisions of this contract, the City will impose such contract sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to:

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32 a. Withholding payments to the Contractor under the contract until the Contractor complies; and/or

b. Cancelling, terminating, or suspending a contract, in whole or in part.

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

Reference: 49 USC § 47123, FAA Order 1400.11

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33 FAA – 07 Clean Air/Water Pollution Control

APPLICABILITY – This provision is required for all contracts and lower tier contracts that exceed $150,000.

REQUIREMENT -

If the Agreement exceeds $150,000, Contractor agrees to comply with all applicable standards, orders, and regulations issued pursuant to the Clean Air Act (42 USC § 7401-7671q) and the Federal Water Pollution Control Act as amended (33 USC § 1251-1387). The Contractor agrees to report any violation to the City immediately upon discovery. The City assumes responsibility for notifying the Environmental Protection Agency (EPA) and the Federal Aviation Administration.

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

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

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34 FAA – 08 Contract Work Hours and Safety Standards

APPLICABILITY – This provision is required for contracts as follows:

Contract Work Hours and Safety Standards Act Requirements (CWHSSA) (40 USC §§ 3702 & 3704) requires contractors and subcontractors on covered contracts to pay laborers and mechanics employed in the performance of the contracts not less than one and one-half times their basic rate of pay for all hours worked over 40 in a workweek. CWHSSA prohibits unsanitary, hazardous, or dangerous working conditions on federally-assisted projects. The Wage and Hour Division (WHD) within the U.S. Department of Labor (DOL) enforces the compensation requirements of this Act, while DOL’s Occupational Safety and Health Administration (OSHA) enforces the safety and health requirements.

Contract Types –

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

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

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

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

CONTRACT WORKHOURS AND SAFETY STANDARDS ACT REQUIREMENTS

1. Overtime Requirements.

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

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

In the event of any violation of the clause set forth in paragraph (1) of this clause, the Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be Item 1S - Page 62

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35 computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this clause, in the sum of $29 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this clause.

3. Withholding for Unpaid Wages and Liquidated Damages.

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

4. Subcontractors.

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

Reference: 2 CFR Part 200, Appendix II(E); 2 CFR § 5.5(b); 40 USC § 3702; 40 USC § 3704

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36 FAA – 09 Copeland Anti-Kickback

APPLICABILITY -

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

Contract Types –

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

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

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

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

REQUIREMENT -

Contractor must comply with the requirements of the Copeland “Anti-Kickback” Act (18 USC 874 and 40 USC 3145), as supplemented by Department of Labor regulation 29 CFR part

3. Contractor and subcontractors are prohibited from inducing, by any means, any person employed on the project to give up any part of the compensation to which the employee is entitled. The Contractor and each Subcontractor must submit to the City, a weekly statement on the wages paid to each employee performing on covered work during the prior week. City must report any violations of the Act to the Federal Aviation Administration.

Reference: 2 CFR Part 200, Appendix II(D); 29 CFR Parts 3 and 5

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37 FAA – 10 Davis Bacon Requirements

APPLICABILITY -

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

Contract Types –

Construction – all construction contracts and subcontracts that exceed $2,000 and include funding from the AIP.

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

Professional Services – The emergence of different project delivery methods has created situations where Professional Service Agreements (PSAs) includes tasks that meet the definition of construction, alteration, or repair as defined in 29 CFR Part 5. If such tasks result in work that qualifies as construction, alteration, or repair and it exceeds $2,000, the PSA must incorporate this clause.

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

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

DAVIS-BACON REQUIREMENTS

1. Minimum Wages.

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

Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and Item 1S - Page 65

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38 mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR § 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein:

Provided, that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under (1)(ii) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can easily be seen by the workers.

(ii)(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:

(1) The work to be performed by the classification requested is not performed by a classification in the wage determination;

(2) The classification is utilized in the area by the construction industry; and

(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.

(B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.

(C) In the event the Contractor, the laborers, or mechanics to be employed in the classification, or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.

(D) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(ii) (B) or (C) of this paragraph, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.

(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.

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39 (iv) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.

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

3. Payrolls and Basic Records.

(i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker; his or her correct classification; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 1(b)(2)(B) of the Davis-Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the Contractor shall maintain records that show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual costs incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.

(ii)(A) The Contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit the payrolls to the applicant, the City, or Owner, as the case may be, for transmission to the Federal Aviation Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR § 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee’s social security number). The required weekly payroll information may be submitted in Item 1S - Page 67

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40 any form desired. Optional Form WH –347 is available for this purpose from the Wage and Hour Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors.

Contractors and subcontractors shall maintain the full social security number and current address of each covered worker and shall provide them upon request to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit them to the applicant, the City, or Owner, as the case may be, for transmission to the Federal Aviation Administration, the Contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the sponsoring government agency (or the applicant, City, or Owner).

(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:

(1) That the payroll for the payroll period contains the information required to be provided under 29 CFR § 5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR § 5.5 (a)(3)(i), and that such information is correct and complete;

(2) That each laborer and mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR Part 3;

(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.

(C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph (3)(ii)(B) of this section.

(D) The falsification of any of the above certifications may subject the Contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code.

(iii) The Contractor or subcontractor shall make the records required under paragraph (3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the City, the Federal Aviation Administration, or the Department of Labor and shall permit such representatives to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the Contractor, the City, applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds.

Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR § 5.12.

4. Apprentices and Trainees.

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41 (i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman’s hourly rate) specified in the Contractor’s or subcontractor’s registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice’s level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

(ii) Trainees. Except as provided in 29 CFR § 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee’s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination.

Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination that provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate that is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Item 1S - Page 69

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42 Training Administration withdraws approval of a training program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

(iii) Equal Employment Opportunity. The utilization of apprentices, trainees, and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.

5. Compliance with Copeland Act Requirements.

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

6. Subcontracts.

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

7. Contract Termination: Debarment.

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

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

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

9. Disputes Concerning Labor Standards.

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

10. Certification of Eligibility.

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

5.12(a)(1).

(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR § 5.12(a)(1).

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43 (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 USC § 1001.

Reference: 2 CFR Part 200, Appendix II(D); 29 CFR Part 5; 49 USC § 47112(b); 40 USC §§ 3141- 3144, 3146, and 3147

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44 FAA – 11 Debarment and Suspension

APPLICABILITY - This requirement applies to covered transactions, which are defined in 2 CFR part 180 (Subpart B). AIP funded contracts are non-procurement transactions, as defined by 2 CFR § 180.970. Covered transactions include any AIP-funded contract, regardless of tier, that is awarded by a contractor, subcontractor, supplier, consultant, or its agent or representative in any transaction, if the amount of the contract is expected to equal or exceed $25,000. This includes contracts associated with land acquisition projects.

REQUIREMENT -

A11.3.1 Bidder or Offeror Certification
By submitting a bid/proposal under the solicitation for this contract, the Contractor must have certified that neither it nor its principals are presently debarred or suspended by any Federal department or agency from participation in this transaction.

A11.3.2 Lower Tier Contract Certification

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

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

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

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

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

Reference: 2 CFR part 180 (Subpart B), 2 CFR part 200 Appendix II(H), 2 CFR Part 1200, DOT Order 4200.5; Executive Orders 12549 and 12689

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45 FAA – 12 Disadvantaged Business Enterprise

APPLICABILITY – all contracts with Airports that have a DBE program on file with the FAA.

Contract Assurance (§ 26.13) –

The Contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The Contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of Department of Transportation-assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the City deems appropriate, which may include, but is not limited to:

1) Withholding monthly progress payments;
2) Assessing sanctions;
3) Liquidated damages; and/or
4) Disqualifying the Contractor from future bidding as non-responsible.

Prompt Payment (§26.29) – The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than [10 days] days from the receipt of each payment the prime contractor receives from [the City]. The prime contractor agrees further to return retainage payments to each subcontractor within [30 days] days after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the [City]. This clause applies to both DBE and non-DBE subcontractors.

Termination of DBE Subcontracts (49 CFR § 26.53(f)) –

The prime Contractor must not terminate a DBE subcontractor listed in response to the solicitation (or an approved substitute DBE firm) without prior written consent of the City. This includes, but is not limited to, instances in which the prime contractor seeks to perform work originally designated for a DBE subcontractor with its own forces or those of an affiliate, a non -DBE firm, or with another DBE firm.

The prime Contractor shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless the Contractor obtains written consent of the City. Unless City consent is provided, the prime Contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE.

The City may provide such written consent only if the City agrees, for reasons stated in the concurrence document, that the prime Contractor has good cause to terminate the DBE firm. For purposes of this paragraph, good cause includes the circumstances listed in 49 CFR §26.53.

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

The prime contractor must give the DBE five days to respond to the prime contractor's notice and advise the City and the Contractor of the reasons, if any, why it objects to the proposed termination of its subcontract and why the City should not approve the prime Contractor's action. If required in a particular case as a matter of public necessity (e.g., safety), the City may provide a response period shorter than five days.

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

Reference: 49 CFR part 26

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47 FAA – 13 Distracted Driving

APPLICABILITY - contracts that exceed the micro-purchase threshold of 2 CFR § 200.320 (currently set at $10,000).

REQUIREMENT -

TEXTING WHEN DRIVING

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

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

Reference: Executive Order 13513, DOT Order 3902.10

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48 FAA – 14 Prohibition on Certain Telecommunications and Video Surveillance Services and Equipment

APPLICABILITY - all AIP funded contracts and lower-tier contracts.

REQUIREMENT -

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

Reference: 2 CFR § 200, Appendix II(K); 2 CFR § 200.216

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49 FAA – 15 Drug Free Workplace Requirements

APPLICABILITY - This provision applies to all AIP funded projects, but not to the contracts between the City and a contractor, subcontractors, suppliers, or subgrantees.

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

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

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50 FAA – 16 Equal Employment Opportunity

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

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

Contract Types –

Construction – all construction contracts and subcontracts as required above.

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

Professional Services – all professional service agreements as required above.

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

REQUIREMENT -

A16.3.1 EEO Contract Clause

During the performance of this contract, the Contractor agrees as follows:

(1) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identify, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff, or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.

(2) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such Item 1S - Page 78

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51 employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.

(4) The Contractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers’ representative of the Contractor’s commitments under this section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

(5) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

(7) In the event of the Contractor’s noncompliance with the nondiscrimination clauses of this contract or with any such rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.

(8) The Contractor will include the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions, including sanctions for noncompliance:

Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.

A16.3.2 EEO Specification

STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY

CONSTRUCTION CONTRACT SPECIFICATIONS

a. “Covered area” means the geographical area described in the solicitation from which this contract resulted;

b. “Director” means Director, Office of Federal Contract Compliance Programs (OFCCP), U.S.

Department of Labor, or any person to whom the Director delegates authority; c. “Employer identification number” means the Federal social security number used on the Employer’s Quarterly Federal Tax Return, U.S. Treasury Department Form 941; d. “Minority” includes:

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52 (1) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin);
(2) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race);
(3) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and (4) American Indian or Alaskan native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification).

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

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

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

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

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

7. The Contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the Contractor’s compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The Contractor shall Item 1S - Page 80

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53 document these efforts fully, and shall implement affirmative action steps at least as extensive as the following:
a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites, and in all facilities at which the Contractor’s employees are assigned to work. The Contractor, where possible, will assign two or more women to each construction project. The Contractor shall specifically ensure that all foremen, superintendents, and other onsite supervisory personnel are aware of and carry out the Contractor’s obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities.

b. Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contractor or its unions have employment opportunities available, and maintain a record of the organizations’ responses.

c. Maintain a current file of the names, addresses, and telephone numbers of each minority and female off-the-street applicant and minority or female referral from a union, a recruitment source, or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the union or, if referred, not employed by the Contractor, this shall be documented in the file with the reason therefor, along with whatever additional actions the Contractor may have taken.

d. Provide immediate written notification to the Director when the union or unions with which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or woman sent by the Contractor, or when the Contractor has other information that the union referral process has impeded the Contractor’s efforts to meet its obligations.

e. Develop on-the-job training opportunities and/or participate in training programs for the area which expressly include minorities and women, including upgrading programs and apprenticeship and trainee programs relevant to the Contractor’s employment needs, especially those programs funded or approved by the Department of Labor. The Contractor shall provide notice of these programs to the sources compiled under 7b above.

f. Disseminate the Contractor’s EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each location where construction work is performed.

g. Review, at least annually, the company’s EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, layoff, termination, or other employment decisions including specific review of these items with onsite supervisory personnel such superintendents, general foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter.

h. Disseminate the Contractor’s EEO policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and discussing the Contractor’s EEO policy with other contractors and subcontractors with whom the Contractor does or anticipates doing business.

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54 i. Direct its recruitment efforts, both oral and written, to minority, female, and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the Contractor’s recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the Contractor shall send written notification to organizations such as the above, describing the openings, screening procedures, and tests to be used in the selection process.

j. Encourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer, and vacation employment to minority and female youth both on the site and in other areas of a contractor’s work force.
k. Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR part 60-3.

l. Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel, for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities.

m. Ensure that seniority practices, job classifications, work assignments, and other personnel practices do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the EEO policy and the Contractor’s obligations under these specifications are being carried out.

n. Ensure that all facilities and company activities are nonsegregated except that separate or single-user toilet and necessary changing facilities shall be provided to assure privacy between the sexes.

o. Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations.

p. Conduct a review, at least annually, of all supervisor’s adherence to and performance under the Contractor’s EEO policies and affirmative action obligations.

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

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

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

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

12. The Contractor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination, and cancellation of existing subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any contractor who fails to carry out such sanctions and penalties shall be in violation of these specifications and Executive Order 11246, as amended.

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

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

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

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

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56 FAA – 17 Federal Fair Labor Standards Act

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

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

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

REQUIREMENT -

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

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

Reference: 29 USC § 201, et seq; 2 CFR § 200.430

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57 FAA – 18 Lobbying and Influencing Federal Employees

APPLICABILITY- all contracts exceeding $100,000.

REQUIREMENT -

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

For an award over $100,00, the bidder or offeror certifies by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:

1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the bidder or offeror, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.

3. The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans, and cooperative agreements) and that all sub- recipients shall certify and disclose accordingly.

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

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

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58 FAA – 19 Prohibition of Segregated Facilities

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

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

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

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

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

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

REQUIREMENT –

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

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

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59 FAA – 20 Occupational Safety and Health Act

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

REQUIREMENT -

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

Reference: 29 CFR part 1910

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60 FAA – 21 Procurement of Recovered Materials

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

Construction and Equipment – all construction and equipment projects.

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

REQUIREMENT -

Contractor and subcontractor agree to comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, and the regulatory provisions of 40 CFR Part 247. In the performance of this contract and to the extent practicable, the Contractor and subcontractors are to use products containing the highest percentage of recovered materials for items designated by the Environmental Protection Agency (EPA) under 40 CFR Part 247 whenever:

1) The contract requires procurement of $10,000 or more of a designated item during the fiscal year; or

2) The contractor has procured $10,000 or more of a designated item using Federal funding during the previous fiscal year.

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

Section 6002(c) establishes exceptions to the preference for recovery of EPA -designated products if the contractor can demonstrate the item is:

a) Not reasonably available within a timeframe providing for compliance with the contract performance schedule;

b) Fails to meet reasonable contract performance requirements; or c) Is only available at an unreasonable price.

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

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61 FAA – 22 Rights to Inventions

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

REQUIREMENT -

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

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

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62 FAA - 23 Seismic Safety

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

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

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

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

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

REQUIREMENT -

A23.3.1 Professional Service Agreements for Design

SEISMIC SAFETY

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

A23.3.2 Construction Contracts

SEISMIC SAFETY

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

Reference: 49 CFR Part 41

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63 FAA – 24 Tax Delinquency and Felony Conviction

APPLICABILITY – This provision applies to all contracts funded in whole or part with AIP.

REQUIREMENT -

The Contractor must have certified under the procurement process that resulted in the award of this contract that:

• Contractor has not been convicted of a Federal felony within the last 24 months; or • Contractor does not have any outstanding tax liability for which all judicial and administrative remedies have lapsed or been exhausted.

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

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

Item 1S - Page 91

(BB&K 2024)
64 FAA – 25 Termination of Contract

APPLICABILITY – All contracts and subcontracts in excess of $10,000.

REQUIREMENT -

See Section 3.2 of the Agreement.

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

Item 1S - Page 92

(BB&K 2024)
65 FAA – 26 Foreign Trade Restriction

APPLICABILITY – all AIP funded projects.

REQUIREMENT -

TRADE RESTRICTION CERTIFICATION

By accepting this contract the Contractor certifies the following statements are true –

1) is not owned or controlled by one or more citizens of a foreign country included in the list of countries that discriminate against U.S. firms as published by the Office of the United States Trade Representative (USTR);

2) has not knowingly entered into any contract or subcontract for this project with a person that is a citizen or national of a foreign country included on the list of countries that discriminate against U.S. firms as published by the USTR; and

3) has not entered into any subcontract for any product to be used on the Federal project that is produced in a foreign country included on the list of countries that discriminate against U.S. firms published by the USTR.

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

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

Unless the restrictions of this clause are waived by the Secretary of Transportation in accordance with 49 CFR 30.17, no contract shall be awarded to an Offeror or subcontractor:

1) who is owned or controlled by one or more citizens or nationals of a foreign country included on the list of countries that discriminate against U.S. firms published by the USTR or

2) whose subcontractors are owned or controlled by one or more citizens or nationals of a foreign country on such USTR list or
3) who incorporates in the public works project any product of a foreign country on such USTR list.

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

The Contractor agrees it will incorporate this provision for certification without modification in all lower tier subcontracts. The Contractor may rely on the certification of a prospective subcontractor that it is not a firm from a foreign country included on the list of countries that discriminate against U.S. firms as published by USTR, unless the Contractor has knowledge that the certification is erroneous.

Item 1S - Page 93

(BB&K 2024)
66 This certification is a material representation of fact upon which reliance was placed when making an award. If it is later determined that the Contractor or subcontractor knowingly rendered an erroneous certification, the Federal Aviation Administration (FAA) may direct through the City cancellation of the contract or subcontract for default at no cost to the City or the FAA.

Reference: 49 USC § 50104, 49 CFR part 30

Item 1S - Page 94

(BB&K 2024)
67 FAA – 27 Veteran’s Preference

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

REQUIREMENT -

In the employment of labor (excluding executive, administrative, and supervisory positions), the Contractor and all sub-tier contractors must give preference to covered veterans as defined within Title 49 United States Code Section 47112. Covered veterans include Vietnam-era veterans, Persian Gulf veterans, Afghanistan -Iraq war veterans, disabled veterans, and small business concerns (as defined by 15 USC 632) owned and controlled by disabled veterans. This preference only applies when there are covered veterans readily available and qualified to perform the work to which the employment relates.

Reference: 49 USC § 47112(c)

Item 1S - Page 95

ATTACHMENT C
Item 1S - Page 96

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Jose O Portillo 100%,E M D Construction Inc
Item 1S - Page 98

CITY COUNCIL STAFF REPORT

DATE: JULY 21, 2025 CONSENT CALENDAR

SUBJECT: AWARD OF A CONSTRUCTION CONTRACT TO DEARK E&C INC., A CALIFORNIA CORPORATION , IN THE AMOUNT OF $ 5,105,219.70;

APPROVAL OF A TASK ORDER UNDER A N ON-CALL AGREEMENT

FOR CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES
WITH DUDEK & ASSOCIATES, INC. IN AN AMOUNT OF $292,000; AND

APPROVAL OF A TASK ORDER UNDER AN ON-CALL AGREEMENT

FOR COMMUNITY WORKFORCE AGREEMENT ADMINISTRATION
WITH TSG ENTERPRISE S, INC., DBA THE SOLIS GROUP, IN AN AMOUNT OF $17,200 FOR THE DEMUTH PARK PICKLEBALL COURT
EXPANSION, CITY PROJECT 22-24

FROM: Scott C. Stiles, City Manager

BY: Engineering Services Department

SUMMARY:

Upon awarding this contract and approval of the task orders, the City will be authorized to proceed with the construction of the Demuth Park Pickleball Court Expansion, City Project 22-24.

RECOMMENDATION:

1) Award a construction contract to Deark E&C, Inc., in the amount of $5,105,219.70 for the De muth Park Pickleball Court Expansion, City Project No. 22- 24 (“the Project”);

2) Delegate authority to the City Manager or designee to approve and execute construction contract change orders up to a total amount of $1 60,000 with all change orders reported and filed to the City Council;

3) Authorize the City Manager to approve a task order for project management and inspection services with Dudek & Associates, in an amount of $292,000;

4) Authorize the City Manager to approve a task order for Community Workforce Agreement administration services from an on- call CWA firm, TSG Enterprises, Inc., The Solis Group, in an amount of $17,200; and

5) Authorize the City Manager or his designee to execute all necessary documents.

Item 1T - Page 1
BUSINESS PRINCIPAL DISCLOSURE:

The Public Integrity Disclosure forms for Deark E&C , Inc. (Deark), Dudek & Associates (Dudek), and The Solis Group (TSG) are included as Attachment A.

BACKGROUND:

The City’s twelve (12) existing pickleball courts are located at Demuth Park at 4375 E.

Mesquite Avenue as shown in Figure 1 below. The courts are highly utilized year-round and provide a free health and wellness recreational amenity for the community. The Parks & Recreation Commission and members of the pickleball community mutually agreed that there was a need to increase the number of courts available in Palm Springs to better meet the high demands of players in the growing pickleball community, as well as to create a cohesive design and better-functioning recreational amenity.

Figure 1 – Site Vicinity Map

On May 3, 2023, the City issued a request for proposals (RFP) to solicit proposals from qualified design firms to prepare conceptual design plans, specifications, and estimates (PS&E) to increase the number of pickleball courts at Demuth Park and develop an optimized court configuration with a lighting system.

Item 1T - Page 2
On July 24, 2023, City Council awarded a Professional Services Agreement (Agreement 23P173) to Kimley -Horn in the amount of $161,395 for design services needed for the Project. Approximately nine months later, the Parks & Recreation Commission approved the Project Conceptual Plans.

On June 27, 2024, City Council approved Amendment No. 1 with Kimley -Horn in the amount of $100,000, for a new not -to-exceed amount of $261,395 for the Project. This amendment was for the increase of community meetings requested by the City, presentations, and additional civil engineering design needed for the Project.

On July 25, 2024, City Council approved the project funding (Measure J and Quimby) for an amount of six (6) million dollars. Note, the capacity existed for the City to fund the budget gap of approximately $4.5 million using $2.5 million available from the Quimby fund and $2 million from the Measure J fund. No additional General Funds would be used.

On February 13, 2025, the City Council approved the plans, specifications, and engineer’s estimate for the Project and authorized Staff to advertise and solicit bids. Amendment No. 2 with Kimley -Horn in the amount of $146,800, for a new not -to-exceed amount of $408,195, was also approved. This amendment covered the additional civil engineering services, construction administration services, project meetings, and utility coordination.

On May 28, 2025, the City Council approved Staff’s recommendation to reject all bids and rebid the Project. The construction costs exceeded the available budget and Staff, along with Kimley -Horn, conducted value engineering and split the P roject into five (5) Bid Schedules (A, B, C, D, and E) so that select items could either remain or be removed, while still maintaining the goal of the Project. Bid Schedule A is the Primary Bid Schedule and includes 22 courts instead of 24 and eliminates certain lighting and shade structures.

The following is the breakdown of the Additive Bid Schedules:

• Additive Bid Schedule B adds back 2 additional courts along with the required lighting.
• Additive Bid Schedule C adds back 3 complete lighting systems for 3 courts removed in Bid Schedule A.
• Additive Bid Schedule D adds back 12 additional shade structures removed with Bid Schedule A.
• Additive Bid Schedule E adds back cameras and wireless access points removed from Bid Schedule A.

STAFF ANALYSIS:

On July 9, 2025, the Engineering Services Department received seven (7) construction bids for the Project. Table 1 on the following page lists the contractors along with the total amount of all five (5) bid schedules.

Item 1T - Page 3
Table 1
No Company Location Bid Amount
1 RG General Engineering, Inc. Norco, CA $6,174,143.00
2 Urban Habitat Palm Desert, CA $6,412,186.03
3 Deark E&C, Inc. Fullerton, CA $6,452,956.10
4 Aster Construction Services Los Angeles, CA $6,608,895.19 5 Riverside Construction Company, Inc. Riverside, CA $6,688,796.45 6 Westcon Construction Indio, CA $7,067,139.32
7 RE Chaffee Construction, Inc. Wrightwood, CA $7,067,139.32 • Note, the costs above show the total costs of all Bid Schedules combined, sorted by increasing amounts per contractor.

On July 10, 2025, Engineering Staff met with the Director of Parks & Recreation, Nicholas Gonzalez, and the Director of Finance & Treasury, Kristopher Mooney, to review all possible combinations of the Bid Schedules that would stay within the allotted budget as well as meet the intended purpose of the Project. The group decided to move forward with Primary Bid Schedule A to stay within the existing available budget. Table 2 shows the revised cost table as well as the lowest responsive bidder.

Table 2
No Company Location Bid Amount
3 Deark E&C, Inc. Fullerton, CA $5,105,219.70
1 RG General Engineering, Inc. Norco, CA $5,161,658.20 2 Urban Habitat Palm Desert, CA $5,172,724.38
4 Aster Construction Services Los Angeles, CA $5,600,374.79 5 Riverside Construction Company, Inc. Riverside, CA $5,718,592.25 6 Westcon Construction Indio, CA $5,747,963.30
7 RE Chaffee Construction, Inc. Wrightwood, CA $6,025,021.15 • Note, the costs above show only Bid Schedule A costs, sorted by increasing amounts per contractor.

Bid Schedule A differs from the conceptual plan shown in Figure 2 below by reducing the number of courts from 24 to 22, with the area being replaced with grass, and reducing shade structures from 22 to 11, and a reduction in court lighting from 24 to 19. Figure 3 on the following pages shows the revised pickleball court layout.

The following is the range of costs for the Additive Bid Schedule:

• Additive Bid Schedule B costs range between $261,865 and $554,945. • Additive Bid Schedule C costs range between $159,739 and $431,700. • Additive Bid Schedule D costs range between $200,596 and $406,140. • Additive Bid Schedule E costs range between $177,000 and $342,966.

Item 1T - Page 4

Figure 2 – Concept Plans

Figure 3 – Bid Schedule A Layout

Item 1T - Page 5
Scope of Project

The Project comprises demolishing the existing pickleball courts, tennis courts, picnic areas and surrounding park space. Once demolition and grading are completed, construction of a new pickleball complex with seating areas, planters, drinking fountains, courts, lighting, drainage retention area, shade structures throughout, and new electrical service upgrade will be installed. All work must be completed within 180 working days, or 9 months, from an approved notice to proceed signed by the City.

Bid Analysis

Staff reviewed all bid documents submitted by the apparent low bidder and determined that Deark (“the Contractor”) complies with the instructions to bidders and has submitted the lowest responsive and responsible bid, in the amount of $5,105,219.70. Staff recommends that City Council approve the bid submitted by the C ontractor. A proposed agreement is included as Attachment B.

Request for Proposals for Construction Management Services

The Staff sent a Request for Proposals (RFP) for Construction Management (CM) and Inspection services to its on- call consultants. The RFP outlined specific requirements to ensure that the selected firm possesses a proven track record and the capacity to deliver construction management and inspection services to municipal government agencies similar to those required by the City.

The general scope of work for the Construction Management i ncludes a full-time on-site individual who represents the City, generates construction documents, manages document control, coordination with stakeholders and utility companies, coordinates meetings, schedules building inspections, performs special inspections, conducts project administration, verifies quantities for invoicing, verifies change order requests, conducts independent cost analysis, and assists with project close out. There will also be a Quality Control construction manager assigned to the project.

On March 04, 2025, the RFP was published and made available through PlanetBids ™.

The City received proposals from three (3) construction management services providers shown in Table 3 below:

Table 3
Company Location Budget
Berg & Associates, Inc. San Pedro CA $496,551.02
Dudek Encinitas, CA $292,000.00
Southstar Engineering & Consulting, Inc. Riverside, CA $322,467.00

Staff evaluated and scored each propos al. While each proposal complied with the requirements of the RFP, Dudek ranked the highest. Staff recommends the City Council Item 1T - Page 6
approve a task order in the amount of $292,000.00 under an On-Call Agreement for CM services with Dudek.

Project Labor Agreement (PLA)

This Project is subject to the City’s Community Workforce (CWA) Agreement dated August 31, 2021, which is on file with the C ity Clerk. The Contractor and all Subcontractors of any tier are to include contractual provisions in all contracts they enter for the performance of the work requiring the Contractor and all Subcontractors to comply with the provisions of the CWA prior to the commencement of work.

Under this agreement, the City is required to designate a CWA administrator. During an RFP for on-calls, the City awarded an on-call contract with TSG Enterprises, Inc. dba The Solis Group (TSG) for CWA administration. Staff recommends the City Council approve a task order in the amount of $17,200.00 under an On- Call Agreement for CWA Administration with TSG.

Local Business Preference Compliance

Section 7.09.030 of the Palm Springs Municipal Code (“PSMC”), “Local Business Preference Program”, requires prime contractors to use good faith efforts to sub-contract the supply of materials and equipment to local business enterprises and to sub- contract services to businesses whose workforce resides within the Coachella Valley. Deark is not considered a local business but has demonstrated sufficient evidence of good faith efforts to subcontract the supply of materials to local businesses.

ENVIRONMENTAL ASSESSMENT
:

In accordance with the California Environmental Quality Act (“CEQA”) Guidelines Section 15301 “Existing Facilities”, Class 1 projects consist of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public structures, facilities, mechanical equipment or topographical features involving negligible or no expansion of existing or former use. Therefore, Staff has determined that the Demuth Park Pickleball Court Expansion Project, City Project No. 22-24, is considered categorically exempt from CEQA.

ALIGNMENT WITH STRATEGIC PLANNING:

This action aligns with City Council’s Broad Goal s of Infrastructure and Facilities as well as Public Safety and Community Services – providing services that support a high quality of life.

Item 1T - Page 7
FISCAL IMPACT:

The total remaining budget available for this Project is $5,605,000, which is comprised of both Measure J and Quimby Funds. There is sufficient funding available to award a construction contract, both task orders, and contingency in the total amount of $5,574,419.70.

REVIEWED BY:

City Engineer: Joel Montalvo
Director of Parks & Recreation: Nicholas S. Gonzalez
Director of Finance & Treasury: Kristopher J. Mooney
Deputy City Manager: Flinn Fagg
Assistant City Manager: Teresa Gallavan
City Manager: Scott Stiles

ATTACHMENTS:

A. Public Integrity Disclosures
B. Construction Agreement
Item 1T - Page 8

Attachment A
Item 1T - Page 9
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/104 /105 /106 /107 /108 /109 /107 /110 /i255 /112 /92 /i255 /113 /90 /113 /114 Item 1T - Page 11
Item 1T - Page 12
Item 1T - Page 13

PUBLIC INTEGRITY DISCLOSURE

APPLICANT DISCLOSURE FORM

1. Name of Entity

2. Address of Entity (Principal Place of Business)

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

5. Type of Entity
 Corporation  Limited Liability Company  Partnership  Trust  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 fo r the member, manager, trust, or other entity
 Officer  Director  Member  Manager
[name]  General Partner  Limited Partner
Other
 Officer  Director  Member  Manager
[name]  General Partner  Limited Partner
 Other
 Officer  Director  Member  Manager
[name]  General Partner  Limited Partner
 Other
D udek
6 05 Third Street, Encinitas, CA 92024
California
Joseph Monaco, President and CEO
Eric Wilson, COO
Helder Guimaraes, CFO/Treasurer
Michael McGrattan, CIO
Amy Paul, General COunsel, Secretary

3. Local or California Address (if different than #2)
78-075 Main Street, Suite G-203, La Quinta, CA 92253

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

EXAMPLE

JANE DOE

[name of owner/investor]

50%, ABC COMPANY, Inc.

[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 100%
ESOP
Joseph Monaco, President and CEO
April 22, 2025
Item 1T - Page 15
Attachment B
Item 1T - Page 16
Revised 8.9.23 Page 1 of 5

CONSTRUCTION AGREEMENT [***INSERT CONTRACT NUMBER***]
DEARK E & C, INC.

THIS AGREEMENT made this 21 st day of July, 2025 (“Effective Date”) by and between the City of Palm Sp
rings, a charter city, organized and existing in the County of Riverside, under and by virtue of the laws of the State of California, hereinafter designated as the City, and Deark E & C, Inc., a California corporation, hereinafter designated as the Contractor.

The City and the Contractor, in consideration of the mutual covenants hereinafter set forth, agree as follows:

1. THE WORK
Fo
r and in consideration of the payments and agreements to be made and performed by City, Contractor agrees to furnish all materials and perform all work required to complete the Work as specified in the Contract Documents, and as generally indicated under the Bid Schedule(s) for the Project entitled:

DEMUTH PARK PICKLEBALL COURTY EXPANSION, CITY PROJECT 22-24

The Work comprises of demolishing existing Pickleball Courts, Tennis Court, picnic areas and surrounding pa
rk space. Construction of a new court Pickleball Complex with seating areas, planters, drinking fountains, courts, lighting, drainage retention area, shade structures throughout, and new electrical service upgrade. All work must be completed within 180 working days

2. COMMENCEMENT AND COMPLETION
Th
e Work to be performed under this Contract shall commence on the date specified in the Notice to Proceed by the City, and the Work shall be fully completed within the time specified in the Notice to Proceed.

The City and the Contractor recognize that time is of the essence of this Agreement, and that the City will su
ffer financial loss if the Work is not completed within the time specified in Article 2, herein, plus any extensions thereof allowed in accordance with applicable provisions of the Standard Specifications, as modified herein. The parties also recognize the delays, expense, and difficulties involved in proving in a legal proceeding the actual loss suffered by the City if the Work is not completed on time. Accordingly, instead of requiring any such proof, the City and the Contractor agree that as liquidated damages or delay (but not as a penalty), the Contractor shall pay the City the sum specified in Section 6-9 of the Special Provisions for each calendar day that expires after the time specified in Article 2, herein. In executing the Agreement, the Contractor acknowledges it has reviewed the provisions of the Standard Specifications, as modified herein, related to liquidated damages, and has made itself aware of the actual loss incurred by the City due to the inability to complete the Work within the time specified in the Notice to Proceed. This Section does not exclude recovery of other damages specified in the Contract Documents. Liquidated damages may be deducted from progress payments due Contractor, Project retention or may be collected directly from Contractor, or from Contractor's surety. These provisions for liquidated damages shall not prevent the City, in case of Contractor's default, from terminating the Contractor.

3. CONTRACT PRICE
Th
e City shall pay the Contractor for the completion of the Work, in accordance with the Contract Documents, in current funds the Contract Price(s) named in the Contractor's Bid Proposal and Bid Schedule(s), and any duly authorized Construction Contract Change Orders approved by the City. The amount of the initial contract award in accordance with the Contractor’s Bid Proposal is five million one hundred five thousand two hundred nineteen dollars and seventy cents ($5,105,219.70).

Contractor agrees to receive and accept the prices set forth herein, as full compensation for furnishing all ma
terials, performing all work, and fulfilling all obligations hereunder. Said compensation shall cover all expenses, losses, damages, and consequences arising out of the nature of the Work during its progress or prior to its acceptance including those for well and faithfully completing the Work and the whole thereof in Item 1T - Page 17
Revised 8.9.23 Page 2 of 5

the manner and time specified in the Contract Documents; and, also including those arising from actions of the elements, unforeseen difficulties or obstructions encountered in the prosecution of the Work, suspension of discontinuance of the Work, and all other unknowns or risks of any description connected with the Work.

4. CONTRACT DOCUMENTS
Th
e Contract Documents consist of the Notice Inviting Bids, Instructions to Bidders, the prevailing rate of per diem wages as determined by the Director of the California Department of Industrial Relations, the accepted Bid and Bid Schedule(s), List of Subcontractors, Local Business Preference Program – Good Faith Efforts, Non- Discrimination Certification, Non-Collusion Declaration, Bidder's General Information, Bid Security or Bid Bond, this Agreement, Worker's Compensation Certificate, Performance Bond, Payment Bond, Standard Specifications, Special Provisions, the Drawings, Addenda numbers 1 to 2, inclusive, and all Construction Contract Change Orders and Work Change Directives which may be delivered or issued after the Effective Date of the Agreement and are not attached hereto.

5. MUTUAL OBLIGATIONS
Fo
r and in consideration of the payments and agreements to be made and performed by the City, the Contractor agrees to furnish all materials and perform all work required for the above stated project, and to fulfill all other obligations as set forth in the aforesaid Contract Documents.

City hereby agrees to employ, and does hereby employ, Contractor to provide the materials, complete the Wo
rk, and fulfill the obligations according to the terms and conditions herein contained and referred to, for the Contract Price herein identified, and hereby contracts to pay the same at the time, in the manner, and upon the conditions set forth in the Contract Documents.

6. PAYMENT PROCEDURES
Th
e Contractor shall submit Applications for Payment in accordance with the Standard Specifications as amended by the Special Provisions. Applications for Payment will be processed by the City Engineer as provided in the Contract Documents.

7. NOTICES
Al
l notices shall be in writing and either served by personal delivery or mailed to the other party. Written notice to the Contractor shall be addressed to Contractor’s principal place of business unless Contractor designates another address in writing for service of notice. Notice to the City shall be addressed to the City as designated in the Notice Inviting Bids unless the City designates another address in writing for service of notice. Notice shall be effective upon receipt or five (5) calendar days after being sent by first class mail, whichever is earlier. Notice given by facsimile shall not be effective unless acknowledged in writing by the receiving party.

8. INDEMNIFICATION
Co
ntractor shall provide indemnification and defense as set forth in Section 7-15 “Indemnification,” of the Special Provisions.

9. PREVAILING WAGES
Co
ntractor agrees to fully comply with all applicable federal and state labor laws including, without limitation California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq. ("Prevailing Wage Laws"). Contractor shall bear all risks of payment or non-payment of prevailing wages under California law, and Contractor hereby agrees to defend, indemnify, and hold the City, its officials, officers, employees, agents and volunteers, free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.

Contractor specifically acknowledges and agrees to be bound by the Wage Rates and Labor Code re
quirements specified in the Contract Documents, including the requirement to furnish electronic certified payroll records directly to the Labor Commissioner (via the Division of Labor Standards Enforcement), and shall pay the general prevailing rate of per diem wages as determined by the Director of the Department of Industrial Relations of the State of California.

Item 1T - Page 18
Revised 8.9.23 Page 3 of 5

10. 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.

11. NON-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.

12 MISCELLANEOUS
Te
rms used in this Agreement which are defined in the Standard Specifications and the Special Provisions will have the meanings indicated in said Standard Specifications and the Special Provisions. No assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound; and specifically, but without limitation, monies that may become due and monies that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents.

The City and the Contractor each binds itself, its partners, successors, assigns, and legal representatives, to
the other party hereto, its partners, successors, assigns, and legal representatives, in respect of all covenants, agreements, and obligations contained in the Contract Documents. Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Work.

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 “A” (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 1T - Page 19
Revised 8.9.23 Page 4 of 5

SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND DEARK E & C, INC.

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

CONTRACTOR:

By Date
Signature

By

Date

Signature
(2nd signature required for Corporations)

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 $150,000
De
puty/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000

Item 1T - Page 20
Revised 8.9.23 Page 5 of 5

EXHIBIT “A”
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 N-6-22 and b) the person signing below is duly authorized to legally bind the Contractor.

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

Signature:

Printed Name:

Title:

Firm Name:

Date:

Item 1T - Page 21

CITY COUNCIL STAFF REPORT
DATE: JULY 21, 2025 CONSENT CALENDAR
SU
BJECT: CONDUCT A SECOND READING AND ADOPT ORDINANCE NO. 2114, AN ORDINANCE ENTITLED, “AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING CHAPTER 5.92 OF THE PALM

SPRINGS MUNICIPAL CODE, STRICTLY REGULATING CO -OWNED

HOUSING UNITS, AND DETERMINING SUCH ACTION TO BE EXEMPT

FROM FURTHER ENVIRONMENTAL REVIEW PURSUANT TO THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)”
F
ROM: Scott C. Stiles, City Manager
BY: S
pecial Program Compliance
SUMMARY:

O
n Ju ly 9 , 2025, the City Council conducted a first reading (introduction) of an ordinance that makes several modifications to the July 2024 managed co- owned housing ordinance. This agenda item provides the City Council with the opportunity to conduct a second reading of the ordinance, including these modifications, and thereby adopts the ordinance. If the Council adopts the ordinance, it would go into effect 30 days thereafter.

RECOMMENDATION:

Conduct a second reading and adopt Ordinance No. 2114, an ordinance entitled:
"AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AMENDING CHAPTER 5.92 OF THE PALM

SPRINGS MUNICIPAL CODE, STRICTLY REGULATING

CO-OWNED HOUSING UNITS, AND DETERMINING SUCH

ACTION TO BE EX EMPT FROM FURTHER

ENVIRONMENTAL REVIEW PURSUANT TO THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT"
STAFF ANALYSIS:

O
n July 9, 2025, Ordinance No. 2114 was introduced by first reading, with the following vote:

Item 1U - Page 1
AYES: Mayor deHarte; Mayor Pro Tem Soto; Councilmember Bernstein; Councilmember Garner; Councilmember Ready

No further direction or changes were given to City staff at the first reading; therefore, staff recommend the City Council conduct a second reading, thereby adopting the accompanying ordinance. If the Council adopts the ordinance, it would go into effect 30 days thereafter.

ENVIRONMENTAL ASSESSMENT:

This Ordinance is not subject to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) pursuant to Section 15060(c)(2) and 15060(c)(3) of the State Guidelines, because this Ordinance will not result in a direct or reasonably foreseeable indirect physical change in the environment and is not a “project” as that term is defined in Section 15378 of the State Guidelines. In addition, this Ordinance consists of regulations intended to ensure that co- managed owned property use of residential property, with the strict regulations implemented by the subject ordinance, remains consistent with other residential uses of property within the City and thereby preserves the residential character of the City’s residential neighborhoods as identified in the City’s adopted General Plan, and its concomitant Environmental Impact Report.

Thus, to the extent there is any environmental impact for the adoption of this Ordinance, the Environmental Impact Report for the adopted General Plan is the controlling environmental document.

ALIGNMENT WITH STRATEGIC PLANNING:

This agenda item aligns with the City Council’s goal of focusing on items that impact quality of life, by ensuring that residential properties that are co- owned by multiple owners do not become a nuisance to neighbors or unduly impact affordability of homes within the City.

FISCAL IMPACT:

Any regulatory approach would be accompanied by a regulatory fee that would be collected by the City to appropriately offset the costs of administering the regulatory program.

REVIEWED BY:

Assistant Department Director: Patrick Clifford
Assistant City Manager: Teresa Gallavan
City Attorney: Jeffrey Ballinger
City Manager: Scott Stiles

ATTACHMENTS:

A. Ordinance
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ATTAC

HMENT A
Item 1U - Page 3
ORDINANCE NO. 2114

AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AMENDING CHAPTER 5.92 OF THE PALM

SPRINGS MUNICIPAL CODE, STRICTLY REGULATING

CO-OWNED HOUSING UNITS, AND DETERMINING SUCH

ACTION TO BE EXEMPT FROM FURTHER

ENVIRONMENTAL REVIEW PURSUANT TO THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)

City Attorney’s Summary

This Ordinance amends Chapter 5.92 of the City’s existing Municipal Code provisions related to the strict regulation of certain managed co-owned housing units.

WHEREAS, on July 25, 2024, the City Council adopted Ordinance No. 2100, enacting Palm Springs Municipal Code Chapter 5.92, strictly regulating co-owned housing units; and

WHEREAS, at the time of such ordinance adoption, the City Council directed City staff to bring back an ordinance at a later date, amending certain sections of Ordinance 2100, in accordance with the direction provided by the City Council.

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

SECTION 1. Findings. That the findings and determinations reflected above are true and correct, and are incorporated by this reference herein as the cause and foundation for the action taken by and through this Ordinance.

SECTION 2. Code Amendment. Chapter 5.92 of the Palm Springs Municipal Code (Co- Owned Managed Housing) is hereby adopted, amended and replaced in its entirety, as set forth in Exhibit “A”, attached hereto and incorporated herein by this reference.

SECTION 3. CEQA. The City Council finds and determines that this Ordinance is not subject to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) pursuant to Section 15060(c)(2) and 15060(c)(3) of the State Guidelines, because this Ordinance will not result in a direct or reasonably foreseeable indirect physical change in the environment and is not a “project” as that term is defined in Section 15378 of the State Guidelines. In addition, the City Council also determines that this Ordinance consists of regulations intended to ensure that co- managed owned property use of residential property, with the strict regulations implemented by the subject ordinance, remains consistent with other residential uses of property within the City and thereby preserves the residential character of the City’s residential neighborhoods as identified in the City’s adopted General Plan, and its concomitant Environmental Impact Report. Thus, to the extent there is any environmental impact for the adoption of this Item 1U - Page 4
Ordinance No. 2114