KYTC_RFP 4_Attachment 07_ Draft Project Agreement_v10_20260428.pdf

Attachment 7 – Project Agreement

1. Project Schedule.

Developer shall undertake and complete the Project in accordance with the Project Schedule, as approved by KYTC, and will be submitted as required in Exhibit B - Scope of Work.

Developer shall strictly adhere to mandatory deadlines for the submission of required documents to KYTC and the completion of all milestones as set forth in more detail in the Project Schedule and Exhibit B – Scope of Work. For the avoidance of doubt, Developer’s failure to satisfy any such deadline or milestone, absent written approval by KYTC, may be deemed to constitute a breach of this PA under Section 12 (Breach of Contract; Termination).

2. Total Obligation.

The total obligation of the State for all capital reimbursements to Developer under this PA will not exceed $[ ] or [ ] percent of the total incurred eligible capital costs.

The total obligation of the State for all O&M reimbursements to Developer under this PA will not exceed $[ ] or [ ] percent of the total incurred eligible O&M costs.

(a) Matching Funds. Developer shall provide the Proposer Cost Share in Attachment 5 to the Request for Proposal for the Project issued by KYTC on May 29, 2026 (the “RFP”), which shall be no less than 20 percent of the total Project Costs. Developer is responsible for all costs that exceed the Total Obligation.

(b) Eligible Costs. Developer shall be reimbursed for eligible costs as set forth in Section 4.4 of the RFP, and are deemed eligible in accordance with 23 C.F.R. 680 and federal, state, and local laws.

(c) Ineligible Costs. Consistent with Section 4.5 of the RFP, Developer shall not be reimbursed for costs incurred prior to the execution of this PA, including costs that:

(i) are deemed ineligible in accordance with 23 C.F.R. 680;

(ii) are deemed ineligible in accordance with federal, state and local laws, as applicable;

(iii) exceed the Total Obligation; or

(iv) are incurred for work that that does not meet the requirements of this PA, determined in KYTC’s sole and exclusive discretion

(d) Withholding and Deductions. KYTC shall withhold 20 percent of the actual costs incurred for the maximum total capital reimbursement claimed. Of this withholding, 20 percent will be released on an annual basis at the time of Annual O&M Payments, if all performance requirements and obligations are satisfied as set forth here in this PA.

O&M shall have the meaning set forth hereinbelow in Section 7.

KYTC may deduct from each payment any of the following applicable to the Work:

(i) Any KYTC or third-party losses for which Developer is responsible hereunder and which are not covered by insurance proceeds, except in the case where the underlying claim against Developer is the subject of a legitimate dispute; or

(ii) Any liquidated damages that have accrued as of the date of the invoice for payment.

The failure by KYTC to deduct any of the sums set forth herein shall not constitute a waiver of KYTC’s right to such sums. If the amount of any remaining monies due to Developer hereunder are insufficient to cover such liquidated damages, then Developer or its performance guarantees as required under the terms of the PA shall pay the amount of any liquidated damages that are assessed within thirty (30) days of invoice from KYTC.

(e) Performance Deductions. Developer’s failure to achieve 97 percent uptime required under the terms of the RFP and this PA will result in performance deductions being subtracted from that year’s O&M payment: $1,000.00 will be deducted for every percentage point or fraction thereof, that the 97 percent uptime is not met on a per port basis in accordance with 23 C.F.R. 680. In the event there is no remaining O&M payment for the deduction to be subtracted from, then in that case the appropriate amount will be deducted from the remaining withholding. Once a performance deduction occurs, such funds cannot then be recouped by Developer and are considered permanently subtracted from the Total Obligation.

(f) Project Income. Revenue from the operation of the EVSE shall be used for, under the terms of this PA, as follows:

(i) Debt service with respect to the Project, including funding of reasonable reserves and debt service on refinancing;

(ii) A Reasonable Return on Investment of any private person financing the EVSE station Project, as determined by the Commonwealth or other direct recipient;

(iii) Any costs necessary for the improvement and proper operations and maintenance of the Project, including reconstruction, resurfacing, restoration, and rehabilitation;

or

(iv) Any other purpose for which Federal funds may be obligated under Title 23 USC.

(g) Reasonable Return on Investment. Developer shall not make more than a Reasonable Return on Investment on the charging station (Project) as outlined in the RFP.

3. Scope of Work; Notices to Proceed.

Exhibit B - Scope of Work, attached hereto, sets forth the scope of work whereby the Developer must commence and complete certain tasks upon KYTC’s issuance of notices to proceed (NTP). In the event of a conflict affecting the commencement or completion of a task, between this PA and the RFP, Exhibit B shall control, as enumerated in Section 25 of this PA (Contract Components and Order of Precedence). For the avoidance of any doubt, Exhibit B to the RFP is binding on the Developer, such that the Developer’s failure to adhere to the scope of work implicates Section 12 of this PA (Breach of Contract; Termination).

4. NEVI and Federal Requirements; Applicable Law.

(a) This is a Federal-Aid Project, and Developer shall comply and require with all Federal Requirements, including without limitation those requirements set forth in Exhibit C attached hereto. In the event of any conflict between any applicable Federal Requirements and the other requirements set forth in this PA, the Federal Requirements shall prevail, take precedence, and be in force over and against any such conflicting provisions.

(b) Those requirements of the NEVI Program set forth in 23 CFR 680, including any supplements thereto, shall be incorporated by reference into this PA; provided, further, that the Developer shall adhere to NEVI Requirements and other federal requirements that may become effective after execution of this PA and remain in effect up to and including Final Completion. A copy of Developer’s Title VI Assurances Certification is included within Exhibit A (Developer’s Proposal) attached hereto and made a part hereof.

(c) Developer shall comply with all applicable laws, regulations, and ordinances of all federal, state, and local governments in which work under this PA is performed.

5. Administration and Inspection of Work. Subject to Exhibit B - Scope of Work in general, Developer shall be responsible for all aspects of administration, testing, and inspection to ensure the materials and work meet applicable specifications. This shall include, without limitation, providing on-site inspection of any work activities by third parties and the prompt processing of required paperwork associated with any contract to perform the work.

6. Software; Data. Subject to Exhibit B - Scope of Work in general, Developer must maintain, and as requested by KYTC, demonstrate sound IT security and data retention policies, and comprehensive data recovery and back up plans to prevent unauthorized access or destruction of data.

7. General Maintenance Obligation. Subject to Exhibit B - Scope of Work in general, Developer, its successors, subsidiaries, and assigns, shall maintain the real property and facilities improved pursuant to and in connection with the Project in a condition suitable for functioning of the Project as a service to the public for the term of this PA. Pursuant to 2 CFR 200.313, Developer shall provide annual reports on the condition of the EVSE until the earlier of (1) the date that is five (5) years from commencement of use of the EVSE, or (2) the date on which the value of the EVSE falls below $10,000. If the former, Developer shall provide a plan for the remainder of the useful life of the EVSE within (60) days prior to the expiration of this PA. If Developer transfers or sells all or part of the EVSE under this PA, causing the EVSE to no longer be used for purposes of the NEVI Formula Program, before the EVSE has reached the end of its useful life, Developer shall remit to KYTC within thirty (30) days the proceeds from such transfer or sale in proportion to the share of the total cost of the Project funded with federal funds.

8. EVSE Vendor; EVSE Model. Developer has identified an EVSE vendor and model in its Proposal attached hereto as Exhibit A - Developer’s Proposal. Developer may propose a substitute EVSE vendor or model subject to KYTC’s approval in its sole discretion; provided further that any EVSE vendor or model substitution shall not result in an adjustment to compensation to the Developer, an adjustment to the Project Schedule, or any other modification to this PA.

9. Payment. Except as expressly agreed in writing by KYTC:

(a) The Commonwealth’s payment obligations are limited to those set forth in Section 1 of this PA hereinabove.

(b) The reimbursable Project costs allowed by this PA shall be those eligible costs described in Section 4 of the RFP that are reasonable and supported by appropriate documentation as required by the RFP, and where applicable, Exhibit B - Scope of Work attached hereto.

(c) Invoices. Developer will submit invoices for payment after successful completion of Task 3, Construction and Commissioning, as well as after each successful year of O&M, Task

4. KYTC will provide an invoice template prior to completion of Task 3. KYTC will review each invoice against the approved Exhibit F, Cost Proposal; expenditures to-date, including proof of expenditures; and the required report before approving payment.

(d) Payments. KYTC will make payment within thirty (30) working days of receipt of Developer’s invoice or of acceptance of goods and/or services in accordance with KRS

45.453 and KRS 45.454. Payments are predicated upon successful completion and acceptance of the described work, services, supplies, or commodities, and delivery of the required documentation. Invoices for payment shall be submitted to the agency contact person or his or her representative.

(e) Unexpended Funds. Any funds that remain at the end of the Project shall remain with KYTC’s NEVI Formula Funding Program.

(f) Repayment of Funds. Developer shall repay any and all funds received as a result of this PA in the event of Developer’s default or unlawful use of funds provided that Developer has failed to cure the default per the terms of Section 12 hereof. KYTC may request for the repayment of funds from the Developer, or KYTC may make a claim against the Letter of Credit provided to KYTC, at KYTC’s sole reasonable discretion, but only to the extent the Developer failed to cure the default per the terms of Section 12 hereof.

10. Project Duration, Execution, and Effective Date; Liquidated Damages.

The effective date of this PA shall be the date signed by the Secretary, and the termination date shall be the date that is the five (5) year anniversary after the date upon which Notice to Proceed to Task 4, O&M is issued.

Developer shall be liable for and pay to KYTC liquidated damages with respect to any failure to achieve NTP to Task 4 of the Project, as the same may be extended pursuant to this PA.

Liquidated Damages will be assessed even when seasonal or temperature limitations prohibit the Developer from proceeding with the work set forth in Exhibit B - Scope of Work attached hereto.

The amount of such Liquidated Damages shall be $100 for each business day that NTP to Task 4 is delayed beyond the date that is identified in the Developer’s Project Schedule, Exhibit G.

Developer Agrees and Acknowledges that:

(a) As of the effective date of this PA, the amounts of liquidated damages under this Section 10 represent good faith estimates and evaluations by the Parties as to the actual potential damages that KYTC would incur as a result of late NTP to Task 4 of the Project, as applicable, and do not constitute a penalty;

(b) KYTC and Developer have agreed to liquidated damages under this Section 10 to fix and limit Developer’s costs and to avoid later disputes over what amounts of damages are properly chargeable to Developer;

(c) Such liquidated damages are not intended to, and do not, liquidate Developer’s liability under the indemnification provision of Section 23, even though third-party claims against Indemnified Parties may arise out of the same event, breach or failure that gives rise to the liquidated damages; and

(d) KYTC will have the right to deduct and offset liquidated damages from any amounts owing to Developer. KYTC also shall have the right to draw on any bond, certificate of deposit, Letter of Credit or other security provided by Developer pursuant to this PA to satisfy liquidated damages not paid when due.

11. Reporting. Subject to Exhibit B - Scope of Work to this PA in general, Developer must submit to KYTC or its authorized representatives, as may be designated from time to time in writing by KYTC, one-time, quarterly, annual, and other reports and updates as KYTC may require complying with 23 CFR 680.112 or any other federal, state, or local statute or regulation.

12. Breach of Contract; Termination. If Developer fails to perform any one of its obligations under this PA it will be in breach of contract. If Developer’s breach is unable to be cured (to the extent it is curable) within a reasonable time as may be designated by KYTC, KYTC may terminate this PA by written notice to Developer with no further obligation to the Developer.

Reasons for termination may also include the non-renewal of Developer’s Letter of Credit without notice to KYTC; Developer bankruptcy; violations of local, state or federal laws;

subcontractor material breach; failure to pay for materials or suppliers; failure to maintain licensures; and use of unapproved products. KYTC may pursue any remedy available at law, including termination of all payments under this PA and the immediate return of funds already paid to Developer.

13. Insurance. Developer shall obtain and maintain insurance policies consistent with the requirements set forth in the RFP and Exhibit E – Insurance Schedule attached hereto.

14. Performance Guarantees.

(a) Letter of Credit. As a condition precedent to the execution of this PA, Developer shall provide KYTC a Letter of Credit in the form attached hereto as Exhibit H - Form of Letter of Credit. The Letter of Credit shall be in the amount of 60 percent of the Maximum Total Project Reimbursement. After achieving NTP to Task 4, KYTC shall, on an annual basis, review the O&M services and reasonably determine if O&M requirements have been achieved. On the date of any such annual performance review of such services performed by Developer, KYTC shall issue a written letter to Developer’s financial institution issuing the Letter of Credit requesting that the outstanding credit amount be lowered by 20 percent. In the event that Developer’s financial institution provides notice of non-renewal or proposed cancellation of the Letter of Credit prior to the expiration of this PA, Developer shall, within 20 days prior to the expiration of the Letter of Credit, provide to KYTC a renewed Letter of Credit in the then-current outstanding amount of credit. If Developer fails to timely provide a renewed Letter of Credit, this shall be considered a default under the terms of this PA upon which KYTC reserves the right without limitation to enforce a claim and draw on the Letter of Credit.

(b) Bonding. As a condition precedent to the execution of the PA, Developer shall obtain and cause to remain in effect for the duration of construction a payment bond in the form attached to this PA as Exhibit D - Form of Contract Bond.

15. Site Host Agreement. As a condition precedent to the execution of the PA, to the extent applicable, Developer shall submit to KYTC a final Site Host Agreement prior to the execution of this PA as outlined in Section 7.2.1 of the RFP.

16. Force Majeure. Except for certain reporting and up time requirements, if KYTC or Developer is unable to perform any part of its obligations under this PA by reason of force majeure, the party will be excused from its obligations to the extent that its performance is prevented by force majeure, for the duration of the event. The party must remedy with all reasonable speed the cause preventing it from carrying out its obligations under this PA. The term “force majeure” means without limitation: acts of God; emerging epidemics; direct lightning;

earthquakes; fires; storms; hurricanes; tornadoes; floods; washouts; droughts; any other severe weather; explosions; restraint of government and people; war; labor strikes; and other like events. Force majeure shall not include events that are caused in whole or in part by Developer.

17. Audit and Inspection; Availability of Data and Records.

(a) Audits. Developer shall (and shall cause Site Host) permit KYTC or its authorized representatives, which shall include without limitation KYTC’s NEVI inspection contractors, to conduct field reviews, to interview any officer or employee, and to inspect and audit all phases of the Project. For the avoidance of doubt, the preceding sentence is meant to exclude Developer’s business operations located outside of the Project. Developer agrees (and shall cause Site Host) to allow KYTC or its authorized representatives access to the Site, any books, documents, papers, records, or other evidence (including emails and other forms of documentation), which are directly pertinent to this PA for the purpose of financial audit or program review as outlined in this PA. Each contract and subcontract shall specifically require this permission.

(b) Post-Audit Fund Reimbursement. If an audit finds that Developer failed to meet its obligations under this PA, upon written notification by KYTC, Developer shall promptly reimburse KYTC the funds for unallowable expenditures.

(c) Records Retention. All checks, invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to the Project shall be clearly identified, readily accessible, and to the extent feasible, kept separate and apart from all other such documents. Developer shall maintain all Project records for five (5) years after the termination of this PA.

(d) Prohibited Interest. Developer agrees to be bound by and shall comply with the requirements of the Executive Branch Code of Ethics KRS Chapter 11A and KRS 45A.340 in its dealings with any member, officer, employee, or agent of KYTC during his or her tenure and for one year thereafter.

(e) Access to Records. Developer certifies that it is in compliance with the provisions of KRS 45A.695, “Access to contractor’s books, documents, papers, records, or other evidence directly pertinent to the contract.” This shall include all data and records KYTC may request in connection with compliance with the NEVI Requirements. Developer is a Contractor, as defined in KRS 45A.030, and as such agrees that KYTC, the Finance and Administration Cabinet, the Auditor of Public Accounts, and the Legislative Research Commission, or their duly authorized representatives, shall have access to any books, documents, papers, records, or other evidence, which are directly pertinent to this PA for the purpose of financial audit or program review. Records confidentially disclosed as part of the Proposal process shall not be deemed as directly pertinent to this PA and shall be exempt from disclosure as provided in KRS 61.878(1)I. Developer also recognizes that any books, documents, papers, records, or other evidence, received during a financial audit or program review, or otherwise, shall be subject to the Kentucky Open Records Act, KRS 61.870 to 61.884.

18. Independent Contractor. It is fully understood and agreed that Developer is an independent contractor and is not an agent, servant, or employee of the Commonwealth. Developer must declare that it is engaged as an independent business and has complied with all applicable federal, state, and local laws regarding permits and licenses of any kind, including but not limited to any insurance coverage, workers’ compensation, or unemployment compensation that is required in the normal course of business and will assume all responsibility for any federal, state, municipal or other tax liabilities. Additionally, Developer understands that as an independent contractor, it is not a public employee and is not entitled to contributions from the Commonwealth to any public employee retirement system.

19. Subcontractor. Developer is permitted to make subcontract(s) with any other party for furnishing any of the work or services herein. Any proposed replacement of or modification to subcontractor(s) not identified in the Developer’s Proposal or proposed to be added after NTP1 shall be communicated and requested by Developer (no less than ten (10) days before such change is anticipated to become effective) and approved by KYTC. Developer may not enter into any such replacement subcontract without KYTC’s express written approval. As a precondition to KYTC’s approval, the Developer must ensure that its proposed subcontractor is equal to or better than the subcontractor it is replacing, which is to say, at a minimum, that the proposed subcontractor has the same qualifications and capabilities as its predecessor. Subcontracts for furnishing any of the work or services herein are subject to compliance with applicable requirements under this PA. Developer shall be solely responsible for performance under the entire agreement, whether or not subcontractors are used. The Commonwealth shall not be involved in the relationship between the prime Contractor (i.e. Developer) and the subcontractor. Any issues that arise as a result of this relationship shall be resolved by Developer. All references to “Developer” or “Contractor” shall be construed to encompass both Developer and any subcontractors of the Developer.

Subcontractors referenced in Proposals that are selected for Award are deemed approved by KYTC. All payments will be made directly to the contracted vendor (i.e. Developer). It is

Developer’s responsibility to make payment to the subcontractor. No payments will be made to the subcontractor by the Commonwealth. Subcontractors having nonpayment issues that could not be resolved with Developer, should report in detail these incidents to the Division of Purchases as set forth in Section 23 of this PA (Notices). Developer shall ensure that all contractors or subcontractors comply with all applicable federal, state, and local laws, regulation, mandates, and terms of this PA.

20. Contracting Requirements. All contracts, subcontracts, and agreements between Developer and third parties must contain all applicable provisions of this PA, and copies shall be provided to KYTC upon request. No portion of a contract let through KYTC shall be sublet, assigned, or otherwise disposed of, except with KYTC’s written authorization. Where a subcontract has been authorized, the subcontractor shall be responsible to complete that portion of the contract with its own organization. On contracts involving federal aid, the agreement between the Developer and subcontractor shall be in writing, and Form FHWA 1273 and the most recent Kentucky predetermined wage rates shall be physically attached to each such agreement.

21. Severability. If any provision of this PA or Proposal of any such provision shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions shall remain in full force and effect.

22. Payroll.

(a) Payrolls and basic records relating thereto shall be maintained by the Developer during the course of the work and preserved for a period of three (3) 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 section 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 Developer shall maintain records which 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 cost incurred in providing such benefits. Developers 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.

(b) Upon invoice submissions, Developer shall submit therewith a copy of all payrolls to KYTC (i.e. the contracting agency) on TC 14-308 form or WH-347 form. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead, the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH–347 is available for this purpose from the Wage and Hour Division website at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh347.pdf or its successor site.

The prime Contractor (i.e. Developer) is responsible for the submission of copies of payrolls by all subcontractors. Developers and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to KYTC for transmission to the FHWA or the Wage and Hour Division of the Cabinet 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 KYTC.

(c) Each payroll submitted shall be accompanied by a “Statement of Compliance,” signed by the Developer 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:

(i) That the payroll for the payroll period contains the information required to be provided under §5.5 (a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under §5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete;

(ii) That each laborer or 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;

(iii) 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.

(d) 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 sub-paragraph b(2) of this Section 22.

(e) The falsification of any of the above certifications may subject the Developer or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code.

(f) The Developer or subcontractor shall make the records required under paragraph (a) of this section available for inspection, copying, or transcription by authorized representatives of KYTC, the FHWA, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the Developer or subcontractor fails to submit the required records or to make them available, the FHWA may, after written notice to the Developer or KYTC, 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 https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh347.pdf upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.

23. Indemnification. Developer shall indemnify and hold harmless the Commonwealth, including KYTC and FHWA, all of its officers, agents, contractors and employees from all suits, actions, or claims of any character arising from any injuries, payments or damages received or claimed by any person, persons, entities, agencies, or property in connection with its work on, and completion and operations and maintenance of the Project.

Developer must require any successor or assignee of Developer with respect to this PA provide such indemnification.

24. Notices. All communications are to be made to the Commonwealth and between the Commonwealth and Developer, as follows:

Laura Hagan, NIGP-CPP, CPPO, CPPB Kentucky Transportation Cabinet Division of Purchases 200 Mero Street Frankfort, KY 40601

(502) 782-3980 Laura.Hagan@ky.gov with a copy to:

Justin Harrod Kentucky Transportation Cabinet Electric Vehicle Project Manager Division of Planning 200 Mero Street, 4th Floor West Frankfort, KY 40622

(502) 782 5059 Justin.Harrod@ky.gov and to Developer:

[NAME]

[TITLE]

[DEVELOPER]

[ADDRESS]

[CITY/STATE/ZIP]

[PHONE]

[EMAIL]

25. Contract Components and Order of Precedence. KYTC’s acceptance of Developer’s Proposal in response to the RFP, indicated by the execution of this PA by KYTC, shall create a valid Contract between the parties consisting of the following:

(a) Procurement Statutes, Regulations and Policies

(b) This PA and Exhibits attached;

(c) Any Addenda to the RFP;

(d) The RFP and all attachments, Exhibit I – RFP 4, attached hereto;

(e) Any clarifications concerning Developer’s proposal in response to the RFP.

mailto:Laura.Hagan@ky.gov mailto:Justin.Harrod@ky.gov

In the event of any conflict between or among the provisions contained in any of the above documents, the Order of Precedence shall be as enumerated above.

26. Final Agreement. This PA, together with the Exhibits attached hereto, represents the entire agreement between Developer and KYTC with respect to the subject matter hereof. Prior negotiations, representations, or agreements, either written or oral, between the parties hereto relating to the subject matter hereof shall be subject to the Order of Precedence set forth in Section 25, above, as applicable, or otherwise be of no effect upon this PA.

27. Project Agreement Provisions. If any provision of this PA (including items incorporated by reference) is declared or found to be illegal, unenforceable, or void, then both KYTC and the Developer shall be relieved of all obligations arising under such provision. If the remainder of this PA is capable of performance, it shall not be affected by such declaration or finding and shall be fully performed.

28. Substitution of Items or Services. Should Developer wish to substitute suppliers and/or equipment from those indicated in its Proposal for equal or higher quality providers or products during the term of this PA, which shall be at Developer’s sole cost and expense, Developer shall notify the KYTC in writing and provide a detailed explanation prior to making such substitution, and any such substitution shall be subject to KYTC’s approval. Any such change is further subject to “Changes and Extra Work” under 23 CFR 635.120 and KYTC Standard Specification 108.07 with respect to schedule modifications.

29. Changes and Modifications to the Project Agreement. Pursuant to KRS 45A.210(1), 200 KAR 5:311, KYTC Standard Specification 108.07 with respect to schedule modifications, and 23 CFR 635.120, no modification or change of any provision in this PA shall be made, or construed to have been made, unless such modification is mutually agreed to in writing by Developer and KYTC, and incorporated as a written amendment to this PA and processed through the Division of Purchases. Services prior to the effective date of such modification or change pursuant to KRS 45A.210(1),200 KAR 5:311, KYTC Standard Specification 108.07 with respect to schedule modifications, and 23 CFR 635.120, memorandums of understanding, written clarification, and/or correspondence shall not be construed as amendments to this PA. If Developer finds at any time that existing conditions made modification of this PA necessary, Developer must notify (in writing) KYTC within ten (10) calendar days of the date that the Developer knew of or should have known of the conditions for consideration and decision. Developer shall bear all costs in connection with or arising out of any changes or modifications to this PA as agreed pursuant to this paragraph.

30. Contract Conformance. If KYTC determines that deliverables due under this PA are not in conformance with the terms and conditions of this PA, KYTC may request Developer to deliver assurances in the form of additional Developer resources and to demonstrate that other major schedules will not be affected. KYTC or its designee shall determine the quantity and quality of such additional resources. Failure to comply shall constitute default by Developer.

31. Performance and Evaluation. KYTC may complete one or more Performance Evaluations (PE) of the Developer with respect to the Project throughout the life of the PA. PE documents will be entered into the Commonwealth’s electronic financial system (eMARS). Developer acknowledges and understands that poor performance documented in a PE may be considered when evaluating responses to future KYTC solicitations in connection with the NEVI program, and that a copy of the PE documents completed for the PA may be obtained by contacting the Commonwealth.

32. Assignment. This PA shall not be assigned in whole or in part without the prior written consent of KYTC.

33. Developer Affiliation. "Affiliate" shall mean a branch, division or subsidiary that is effectively controlled by another party. If any affiliate of Developer shall take any action that, if done by Developer, would constitute a breach of this PA, the same shall be deemed a breach by such party with like legal effect.

34. Confidential Information. The Developer shall comply with the provisions of the Privacy Act of 1974 and instruct its employees to use the same degree of care as it uses with its own data to keep confidential information concerning client data, the business of the Commonwealth, its financial affairs, its relations with its citizens and its employees, as well as any other information which may be specifically classified as confidential by the Commonwealth or KYTC in writing to Developer. All federal and state regulations and statutes related to confidentiality shall be applicable to Developer. Developer shall have an appropriate agreement with its employees, and any subcontractor employees, to that effect, provided however, that the foregoing will not apply to:

(a) Information which the Commonwealth or KYTC has released in writing from being maintained in confidence;

(b) Information which at the time of disclosure is in the public domain by having been printed and published and available to the public in libraries or other public places where such data is usually collected; or

(c) Information, which, after disclosure, becomes part of the public domain as defined above, through no act of the Developer.

35. Advertising Award. Developer shall not refer to the award of a Contract in commercial advertising in such a manner as to state or imply that the firm or its services are endorsed or preferred by KYTC without the expressed written consent of KYTC.

36. Patent or Copyright Infringement. Developer shall report to KYTC promptly and in reasonable written detail, each notice of claim of patent or copyright infringement based on the performance of this PA of which Developer has knowledge. KYTC agrees to notify Developer promptly, in writing, of any such claim, suit or proceeding, and at Developer's expense to give Developer proper and full information needed to settle and/or defend any such claim, suit or proceeding. If, in Developer’s opinion, the equipment, materials, or information mentioned in the paragraphs above is likely to or does become the subject of a claim or infringement of a United States patent or copyright, then without diminishing Developer’s obligation to satisfy any final award, Developer may, with KYTC’s written consent, substitute other equally suitable equipment, materials, and information, or at the Developer’s option and expense, obtain the right for KYTC to continue the use of such equipment, materials, and information. KYTC agrees that Developer has the right to defend, or at its option, to settle, and Developer agrees to defend at its own expense, or at its option to settle, any claim, suit or proceeding brought against KYTC on the issue of infringement of any United States patent or copyright or any product, or any part thereof, supplied by Developer to KYTC under this PA. Developer agrees to pay any final judgment entered against KYTC on such issue in any suit or proceeding defended by Developer. If principles of governmental or public law are involved, KYTC may participate in the defense of any such action, but no costs or expenses shall be incurred for the account of Developer without Developer’s written consent.

37. Project Permits and Licenses. Developer shall procure all applicable permits and licenses for the achievement of Project requirements set forth in the RFP.

38. EEO Requirements. The Equal Employment Opportunity Act (the Act) of 1978 applies to all government projects in the Commonwealth with an estimated value exceeding $500,000. The Developer shall comply with all terms and conditions of the Act (https://finance.ky.gov/eProcurement/Pages/doing-business-with-the-commonwealth.aspx).

A copy of Developer’s Employment Opportunity Certification is included within Exhibit A (Developer’s Proposal) attached hereto and made a part hereof.

39. Bankruptcy. In the event Developer becomes the subject debtor in a case pending under the Federal Bankruptcy Code, the Commonwealth’s or KYTC’s right to terminate this PA may be subject to the rights of a trustee in bankruptcy to assume or assign this PA. The trustee shall not have the right to assume or assign this PA unless the trustee (a) promptly cures all defaults under this PA; (b) promptly compensates the Commonwealth for the monetary damages incurred as a result of such default, and (c) provides adequate assurance of future performance, as determined by the Commonwealth or KYTC.

40. Conformance with Commonwealth & Federal Laws/Regulations. This PA shall be governed by and construed in accordance with the laws of the Commonwealth, and the Developer shall adhere to all applicable federal laws and regulations, including, without limitation, those laws and regulations identified in Exhibit C (Laws and Regulations) attached hereto. KYTC retains the right to request additional documentation from the Developer, beyond that which may be required by those laws and regulations enumerated in Exhibit C.

KYTC shall provide instructions for the Developer’s submission of such documentation, so that the Developer can respond in reasonable time and in a format acceptable to KYTC. This PA shall not be deemed to create a “public private partnership” pursuant to KRS Chapter 175B.

41. Developer Representations and Warranties.

(a) Developer has evaluated the feasibility of performing the work within the deadlines set forth in Exhibit B - Scope of Work, accounting for constraints affecting the Project, and has concluded that such performance is feasible and practicable.

(b) Developer has familiarized itself with the requirements of any and all applicable laws and the conditions of any required governmental approvals prior to entering into this PA.

(c) Developer shall obtain and maintain each and every governmental approval in due course so as to enable the work to proceed in accordance with the terms of this PA.

https://finance.ky.gov/eProcurement/Pages/doing-business-with-the-commonwealth.aspx

(d) Permits and Licenses. Developer represents and warrants that, as to its knowledge after appropriate due diligence, it has obtained or will be able to obtain all applicable permits and licenses required to meet its Project Schedule provided in Task 1.

(e) Commonwealth Registration. Developer shall maintain, and cause subcontractors to maintain, certification of authority to conduct business in the Commonwealth of Kentucky during the term of this PA. Developer’s proof of registration to conduct business in the Commonwealth shall be a condition precedent to execution of the PA.

(f) Taxation. Developer shall pay any sales, use, and personal property taxes arising out of this PA and the transaction contemplated hereby. Any other taxes levied in connection with this PA, the transaction, or the equipment or services delivered pursuant hereto shall be borne by Developer.

(g) Conflicts of Interest. In accordance with KRS 45A.340, Developer represents and warrants, and the Commonwealth or KYTC relies upon such representation and warranty, that it presently has no ownership interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its services.

Developer further represents and warrants that in the performance of this PA, no person, including any subcontractor has no ownership direct or indirect ownership interest which would conflict in any manner or degree with the performance of its services. In accordance with KRS 45A.340 and KRS 11A.040 (4), Developer agrees that it shall not knowingly allow any official or employee of KYTC or the Commonwealth who exercises any function or responsibility in the review or approval of the undertaking or carrying out of this PA to voluntarily acquire any ownership interest, direct or indirect, in the Contract prior to the completion of all of its obligations under this PA.

(h) Boycott Provisions. If applicable, Developer represents that, pursuant to KRS 45A.607, it is not currently engaged in, and will not for the duration of this PA engage in, the boycott of a person or an entity based in or doing business with a jurisdiction with which the Commonwealth can enjoy open trade. Note: The term Boycott does not include actions taken for bona fide business or economic reasons, or actions specifically required by federal or state law. If applicable, Developer verifies that, pursuant to KRS 41.480, it does not engage in, and will not for the duration of this PA engage in, in energy company boycotts as defined by KRS 41.472.

(i) Lobbying Prohibitions. Developer represents that it, and any subcontractor performing work under this PA, has not violated the agency restrictions contained in KRS 11A.236 during the previous ten (10) years, and pledges to abide by the restrictions set forth in such statute for the duration of the Contract awarded. Developer further represents that, pursuant to KRS 45A.328, it has not procured an original, subsequent, or similar contract while employing an executive agency lobbyist who was convicted of a crime related to the original, subsequent, or similar contract within five (5) years of the conviction of the lobbyist.

(j) Authority to Bind. The undersigned signatory to this PA, on behalf of Developer, represents and warrants that he/she has been fully authorized by Developer to execute this PA on its behalf, and that the execution of this PA is within the scope of his/her authority to bind Developer to the obligations and terms herein. KYTC reserves the right in its sole https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=50541 https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=52935 discretion to request from Developer proof of such authority identified in this Section 41, including but not limited to a corporate resolution or board authorization.

(k) Accessibility. Developer hereby warrants that the products or services to be provided under this PA comply with the accessibility requirements of Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794d), and its implementing regulations set forth at Title 36, Code of Federal Regulations, part 1194. Developer further warrants that the products or services to be provided under this PA comply with existing federal standards established under Section 255 of the Federal Telecommunications Act of 1996 (47 U.S.C. § 255), and its implementing regulations set forth at Title 36, Code of Federal Regulations, part 1193, to the extent the Developer’s products or services may be covered by that act. Developer agrees to promptly respond to and resolve any complaint regarding accessibility of its products or services which is brought to its attention.

(l) Bidder, Offeror, or Contractor Mandatory Representations Compliance with Commonwealth Law. Developer represents that, pursuant to KRS 45A.485, it and any subcontractor performing work under this PA will be in continuous compliance with the KRS chapters listed below and have revealed to the Commonwealth or KYTC any violation determinations within the previous five (5) years:

i. KRS Chapter 136 (CORPORATION AND UTILITY TAXES)

ii. KRS Chapter 139 (SALES AND USE TAXES)

iii. KRS Chapter 141 (INCOME TAXES)

iv. KRS Chapter 337 (WAGES AND HOURS)

v. KRS Chapter 338 (OCCUPATIONAL SAFETY AND HEALTH OF EMPLOYEES)

vi. KRS Chapter 341 (UNEMPLOYMENT COMPENSATION)

vii. KRS Chapter 342 (WORKERS' COMPENSATION)

(m) Pending Actions. As of the effective date, there is no action, suit, proceeding, investigation or litigation pending and served or of which Developer is otherwise aware, against Developer which challenges Developer’s authority to execute this PA or the Subcontracts to which Developer is a party.

(n) Warranties. Developer represents and warrants that it shall acquire and maintain all warranties in connection with the design and operation of EVSE and the electric charging site to which it becomes a fixture.

(o) Funding. Developer acknowledges that this PA shall be subject to available funding, and nothing in this PA shall bind KYTC or the Commonwealth to expenditures in excess of funds appropriated or otherwise allotted for the purposes outlined in this PA.

Developer’s representations and warranties contained herein in this Section 41 shall survive expiration or early termination of this PA.

42. KYTC Representations and Warranties https://apps.legislature.ky.gov/law/statutes/chapter.aspx?id=37644 https://apps.legislature.ky.gov/law/statutes/chapter.aspx?id=37663 https://apps.legislature.ky.gov/law/statutes/chapter.aspx?id=37674 https://apps.legislature.ky.gov/law/statutes/chapter.aspx?id=38890 https://apps.legislature.ky.gov/law/statutes/chapter.aspx?id=38899 https://apps.legislature.ky.gov/law/statutes/chapter.aspx?id=38902 https://apps.legislature.ky.gov/law/statutes/chapter.aspx?id=38914

(a) As of the effective date set forth in Section 10 hereinabove, KYTC has full power, right, and authority to execute, deliver, and perform its obligations under, in accordance with and subject to the terms and conditions of this PA.

(b) Each Person executing this PA on behalf of KYTC, has been or at the time of execution will be duly authorized to execute each such document on behalf of KYTC.

KYTC’s representations and warranties contained herein in this Section 42 shall survive expiration or early termination of this PA.

43. No Contingent Fees. No person or selling agency shall be employed or retained or given anything of monetary value to solicit or secure this PA, excepting bona fide employees of the offeror or bona fide established commercial or selling agencies maintained by the offeror for the purpose of securing business. For breach or violation of this provision, KYTC shall have the right to terminate this PA without liability.

44. Limitation of Liability. The liability of the Commonwealth related to contractual damages is set forth in KRS 45A.245.

45. Business Day. “Business Day” shall be defined to mean any day that is not a Saturday, a Sunday, or any of the public holidays observed by the Commonwealth from time to time.

46. Venue. This Contract shall be governed by and construed in accordance with the laws of the Commonwealth of Kentucky and any litigation with respect to this Contract shall be brought in state or federal court in Franklin County, Kentucky in accordance with KRS 45A.

47. Artificial Intelligence (AI). Developer agrees to adhere to CIO-126 Artificial Intelligence Policy.pdf, which includes but is not limited to, the required written disclosure, in advance, of every use of generative AI and/or integrations with generative AI system. Developer agrees to disclose all parts of contracted work that is expected to be or will be performed with the assistance of AI.