Kimley-Horn and Associates, Inc.
421 Fayetteville Street, Suite 600, Raleigh NC 27601
State of California
X
X
Steven E. Lefton X
X CEO, President
John C. Atz
X Chairman
Richard N. Cook
X Sr. Vice President
45-25 Manitou Drive, Suite 11, Indian Wells, CA 92210
Item 1L - Page 5
PUBLIC INTEGRITY DISCLOSURE FORM
PUBLIC INTEGRITY DISCLOSURE APPLICANT DISCLOSURE FORM
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity A.
[name of owner/investor] [name of official with whom owner/investor has material financial relationship]
FOR RELATIONSHIP A, EXPLANATION OF THE RELATIONSHIP:
B.
[name of owner/investor] [name of official with whom owner/investor has material financial relationship]
FOR RELATIONSHIP B, EXPLANATION OF THE RELATIONSHIP:
C.
[name of owner/investor] [name of official with whom owner/investor has material financial relationship]
FOR RELATIONSHIP C, EXPLANATION OF THE RELATIONSHIP:
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
CITY OF PALM SPRINGS – PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
Date
Signature of Disclosing Party, Printed Name, Title
Associates Group Services, Inc. 100% Kimley-Horn and Associates, Inc.
APHC, Inc.
100% Associates Group Services, Inc.
APHC, Inc. Has no owners/investors with
5% beneficial interest.
Jean B. Fares, P.E., Sr. Vice President 9.24.2020
Parent Company of Kimley-Horn
Parent Company of Kimley-Horn's parent company and other affiliated companies Item 1L - Page 6
Kimley-Horn and Associates, Inc. Principal Officers and Directors PRINCIPAL OFFICERS:
Names/Titles
John C. Atz, Chairman
Steven E. Lefton, CEO, President
Richard N. Cook,
Senior Vice President, Secretary
Tammy L. Flanagan,
CFO, Senior Vice President
David L. McEntee, Vice President,
Treasurer, Assistant Secretary
DIRECTORS:
Names
John C. Atz
Chairman
Barry L. Barber
Executive Vice President
Stephen W. Blakley
Senior Vice President
Paul B. Danielson
Senior Vice President
William E. Dvorak, Jr.
Senior Vice President
James R. Hall
Senior Vice President
Steven E. Lefton
CEO, President
Emmeline F. Montanye
Senior Vice President
Brent H. Mutti
Senior Vice President
Brooks H. Peed
Chairman Emeritus
Michael G. Schiller
Executive Vice President
G. Bradbury Tribble
Senior Vice President
Ownership: Kimley-Horn and Associates, Inc. is wholly owned by Associates Group Services, Inc., which is wholly owned by APHC, Inc., which is owned by over 500 Kimley-Horn employees, none of which own 5% or more of the outstanding shares.
Item 1L - Page 7
Attachment B
Item 1L - Page 8
kimley-horn.com 73700 Dinah Shore Dr, Palm Desert, CA 92211 213-261-4040
April 3, 2023
Mr. Joel Montalvo, MPA, PE
City Engineer
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
RE: Proposal for Traffic Signal Communication System Support
Dear Mr. Montalvo:
Kimley-Horn and Associates, Inc. (Kimley-Horn or “the Consultant”) is pleased to submit this letter agreement (the “Agreement”) to the City of Palm Springs (the “Client”) to provide Traffic Signal Communication System Support for the City of Palm Springs.
The proposed project team for Kimley-Horn has extensive experience in Traffic Management Center (TMC) systems design and implementation, communications systems design, implementation and integration, and the development of base traffic signal timings and coordinated signal timings. We take pride in our ability to cover the full range of technical services from planning through design through hands on integration and troubleshooting.
Kimley-Horn has performed re-timing of over 600 BI-Trans signals for numerous municipalities in Southern California, including the City of Rancho Mirage, the City of Palm Desert, OCTA, and the City of Santa Monica. Kimley-Horn has also completed the detailed design, implementation, configuration and testing of wired and wireless communication systems for numerous clients throughout California, including a recent regional configuration for SANDAG.
Our project understanding, scope of services and fee to perform these services are included below.
Project Understanding
In 2020, Kimley-Horn began a problem identification and troubleshooting process to understand the issues present in the City’s traffic signal communication network. Kimley- Horn staff performed a field investigation to determine any issues present in the network. A report outlining the issues and recommendations was provided to the City. In 2021, Kimley- Horn provided a table of recommendations, bid list, and technical specifications to the City.
In late 2022, Kimley Horn performed an updated problem identification process, including field investigation. Several components of the traffic signal communication network had Item 1L - Page 9
kimley-horn.com 73700 Dinah Shore Dr, Palm Desert, CA 92211 213-261-4040
changed due to minor changes and the CVAG CV Sync project along Ramon Rd. Kimley- Horn will formalize the recommendations and support the City and its contractors as it attempts to repair the system.
Scope of Services
Task 1 - P roject Management
The Kimley-Horn team will provide the following services for commencement and administration of the project.
Task 1.1 – Project Kick-Off Meeting
Kimley-Horn will develop an agenda for a kick-off meeting with City staff to discuss the goals of the project, the role of the Kimley-Horn team and stakeholders, communication protocol, meeting frequency, progress reporting, scheduling and invoicing, key milestones, and what defines success for this project. A summary of the meeting will be provided with key action items identified.
Task 1.2 – Project Team Meetings
Project Team (PT) status meetings will be conducted to maintain a regular and consistent communication on upcoming tasks, identifying potential risks and challenges to success.
Participation in the Project Team meetings is anticipated to include the City Project Manager, the Kimley-Horn team Project Manager, and Task Leads as needed.
Kimley-Horn will hold virtual project team meetings every two weeks. The Kimley-Horn team will develop the agenda and prepare a summary of the Project Team meeting notes. The meeting notes will include a list of decisions, actions, and responsible party.
Deliverables:
• Kick-off Meeting Attendance and Notes
• Project Team Status Meeting and Meeting Notes
Task 2 – U
pdate of Recommendations, Technical Specifications, and Bid List
Task 2.1 – Update of Recommendations, Technical Specifications, and Bid List
Kimley-Horn will update the previously submitted table of recommendations based on the field work that was completed in December 2022. Kimley-Horn will also update the recommendations based on a review of the HSIP Cycle 7, HSIP Cycle 8, HSIP Cycle 9, HSIP Cycle 11, and CVAG Sync Phase I and Phase II plans. The recommendations will outline work to be completed at each location, led by St. Francis Electric with Kimley-Horn support. A bid list and technical specifications will also be submitted to provide details on any materials needed at each location.
Item 1L - Page 10
kimley-horn.com 73700 Dinah Shore Dr, Palm Desert, CA 92211 213-261-4040
Deliverables
• Updated Table of Recommendations
• Updated Technical Specifications
• Updated Bid List
Task 3 – Communication System Repair Support
Task 3.1 – Communication System Repair Support
Kimley-Horn will provide support to St. Francis as they perform repair and troubleshooting tasks such as: procuring communication equipment, replacing communication equipment in cabinets and in other locations replacing or reconfiguring radios or antennas that require equipment such a bucket trucks, creating new connections or reassignments of interconnect tables, or replacing power supplies or radios. Kimley-Horn will attend field work with St.
Francis Electric during the troubleshooting. Kimley-Horn, in partnership with St. Francis Electric, will develop a list of any equipment that needs to be replaced. We will provide support to St. Francis Electric during the equipment procurement process, including cost verification. It is assumed that St. Francis Electric will procure all equipment and any ancillary materials.
Deliverables
• Communication System Repair Support
Task 4
- Communication System Testing Support and Verification
Task 4.1 – Communication System Testing and Verification
Following the repair, Kimley-Horn will support St. Francis Electric as they test the traffic signal communication system. The testing results will be validated by Kimley-Horn. Any potential issues will be noted and repaired by St. Francis Electric with Kimley-Horn support.
Task 4.2 – Traffic Controller Support
Following the repair, Kimley-Horn will support St. Francis Electric as they work to bring all traffic controllers online. In these efforts, Kimley-Horn will support St. Francis to verify each controller reaches the Traffic Management Center (TMC) and that they can receive signals from the TMC.
Task 4.3 – Traffic Management Center (TMC) Support
Kimley-Horn will provide support to the City while it integrates the repaired traffic signal communication system with the City’s TMC. Currently, the City’s TMC has a QuicNet system (which connects with McCain traffic controllers) and a MaxView system (which connects with Intelight controllers). Kimley-Horn will work to integrate the system so that the TMC can communicate will all traffic signal controllers Citywide.
Deliverables:
Item 1L - Page 11
kimley-horn.com 73700 Dinah Shore Dr, Palm Desert, CA 92211 213-261-4040
• Communication System Testing and Verification
• Traffic Controller Support
• TMC Support
Schedule
We are prepared to begin work upon receipt of authorization to proceed and will endeavor complete the scope of work within 4 months. This timeline is contingent upon timely procurement of equipment. The schedule can be found below.
Additional Services
Any services not specifically described in the above scope, as well as any changes in the scope the Client requests, will be considered Additional Services and will be performed at our then-current hourly rates.
Fee and Billing
Kimley-Horn will perform the services described in the Scope of Services for a lump sum fee of $135,250. All permitting, application, and similar project fees will be paid directly by the Applicant. Individual task amounts are provided for budgeting purposes only. Kimley-Horn reserves the right, as approved by the City, to reallocate amounts among tasks as necessary. A breakdown of the fee is below:
Ta sk 1 Project Management
1.1 Project Ki ckoff Meeti ng
1.2 Project Team Meeti ngs
Task 2 Update of Recommendations, Technical
Specifications, and Bid List
2.1 Update of Recommendations, Technical Specifications, and Bid List
Ta sk 3 Communication System Repair Support
3.1 Communication System Repair Support
Ta sk 4 Communication System Testing Support and
Verification
4.1 Communication System Testing and Verification
4.2 Traffic Controller Support
4.3 Traffic Management Center (TMC) Support
Kimley-Horn Effort
City Review
Month 2TASK Month 1 Month 3 Month 4
Item 1L - Page 12
kimley-horn.com 73700 Dinah Shore Dr, Palm Desert, CA 92211 213-261-4040
TASK COST
Task 1 - Project Management $13,000
Task 2 – Update of Recommendations, Technical Specifications, and Bid List $16,750
Task 3 – Communication System Repair Support $74,750
Task 4 - Communication System Repair Testing $20,750
As Needed Services $10,000
Total Fee $135,250
Fees and expenses will be invoiced monthly based, as applicable, upon the percentage of services completed or actual services performed and expenses incurred as of the invoice date. Payment will be due within 30 days of the date of the invoice.
Closure
In addition to the matters set forth herein, our Agreement shall include and be subject to, and only to, our signed, executed contract dated July 1, 2019.
If you concur in all the foregoing and wish to direct us to proceed with the services, pleas e have authorized persons execute this Agreement in the spaces provided below, and return a copy to us via email or mail. We will commence services once we are in receipt of the executed Agreement.
We appreciate the opportunity to provide these services to you. Please feel free to contact me at (818) 970-2048 or [email protected] i
f you have any questions or if you need
additional information.
Sincerely,
K
imley-Horn and Associates, Inc.
Jean Fares, P.E. (#TR 2097)
Project Manager
Agreed to this ________________ day of ___________________________, 2023
Item 1L - Page 13
kimley-horn.com 73700 Dinah Shore Dr, Palm Desert, CA 92211 213-261-4040
City of Palm Springs
By:
Title:
_______________________________________
(Date)
Item 1L - Page 14
CITY COUNCIL STAFF REPORT
05/11/2023
SUBJECT:
APPROPRIATE FUNDING AND APPROVAL EXPENDITURE IN THE AMOUNT OF $40,500 FOR A ONE-YEAR INSTALLATION, FROM JULY 1, 2023, TO JUNE 30, 2024, OF THE ARTWORK “THE ONLY OTHER THING IS NOTHING” BY ARTIST
MICHAEL BIRNBERG (AKA MIDABI) FOR PLACEMENT AT THE SOUTHEAST
CORNER OF MUSEUM WAY AT MUSEUM DRIVE
RECOMMENDATION:
Appropriate Public Art Funds (Fund 150) in the amount of $40,500 to account #1502550-60030.
1. Approve the expenditure of Public Art Funds in the amount of $$40,500 for the “The Only Other Thing is Nothing” Art Project.
2. Approve placement of the artwork “The Only Other Thing is Nothing” at the southeast corner of Museum Way at Museum Drive.
3. Authorize the City Manager to execute all necessary documents to facilitate the temporary installation of the artwork “The Only Other Thing is Nothing.”
4. Attachments
Item 1M
CITY COUNCIL STAFF REPORT
D
ATE: MAY 11, 2023 CONSENT CALENDAR
SU
BJECT: APPROPRIATE FUNDING AND APPROVE EXPENDITURE IN THE AMOUNT OF $ 40,500 FOR A ONE-YEAR INSTALLATION, FROM JULY 1, 2023 TO JUNE 30, 2024, OF THE ARTWORK “THE ONLY OTHER THING IS NOTHING ” BY ARTIST MICHAEL BIRNBERG (AKA MIDABI)
FOR PLACEMENT AT THE SOUTHEA ST CORNER OF MUSEUM WAY
AT MUSEUM DRIVE
F
ROM: Scott C. Stiles, City Manager
BY: C
ommunity & Economic Development Department
SUMMARY:
T
he Public Arts Commission is requesting approval of a temporary installation, from July 1, 2023 to June 30, 2024, of the artwork “The Only Other Thing is Nothing” (Artwork) by artist Michael Birnberg, AKA Midabi (Artist) in the amount of $40,500 with Public Art Funds. As proposed, the sculpture will be placed at the southeast corner of Museum Way at Museum Drive, also known as Block H2.
RECOMMENDATION:
1. A
ppropriate Public Art Funds (Fund 150) in the amount of $40,500 to account #1502550-60030.
2. A
pprove expenditure of Public Art Funds in the amount of $ $40,500 for the “The Only Other Thing is Nothing” Art Project.
3. A
pprove placement of the artwork “ The Only Other Thing is Nothing ” at the southeast corner of Museum Way at Museum Drive.
4. A
uthorize the City Manager to execute all necessary documents to facilitate the temporary installation of the artwork “The Only Other Thing is Nothing.” BACKGROUND:
A
t the April 19, 2023 Public Arts Commission meeting, the Commission voted unanimously to recommend using $40,500 of Public Arts Funds for a temporary Item 1M - Page 1
City Council Staff Report
May 11, 2023 -- Page 2
Nothing Public Art Project
installation, from July 1, 2023 to June 30, 2024, of the artwork “The Only Other Thing is Nothing” by artist Michael Birnberg, AKA Midabi.
STAFF ANALYSIS:
The Artwork is 10 feet tall, 20 feet long, weighs 8,000 pounds, and is supported by steel plates creating a flat base. It is engineered to withstand wind speeds of 100 miles per hour. The Artwork is described in the attached Project Description (Attachment A).
The Public Arts Commission proposes the Artwork be installed on Block H2, the southeast corner of Museum Way at Museum Drive (Site, Attachment B). The Artwork will serve as another addition complementing the Downtown Park.
A rendering of the Artwork is provided below in Image 1:
Image 1
“The Only Other Thing is Nothing” Rendering
The Artwork will be painted with acrylic, silver-iridescent paint.
ENVIRONMENTAL ASSESSMENT
:
Section 21084 of the California Public Resources Code requires Guidelines for Implementation of the California Environmental Quality Act ("CEQA"). The Guidelines are Item 1M - Page 2
City Council Staff Report
May 11, 2023 -- Page 3
Nothing Public Art Project
required to include a list of classes of projects which have been determined not to have a significant effect on the environment and which are exempt from the provisions of CEQA.
In response to that mandate, the Secretary for Resources identified classes of projects that do not have a significant effect on the environment and are declared to be categorically exempt from the requirement for the preparation of environmental documents. In accordance with Section 15304 "Minor Alterations to Land," Class 4 projects consist of "minor public or private alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees except for forestry and agricultural purposes" and approval of this item is considered categorically exempt from CEQA.
ALIGNMENT WITH STRATEGIC PLANNING:
Section 2.24.050 of the Palm Springs Municipal Code requires the Public Arts Commission to, “Be responsible for a Palm Springs public arts program including policies and guidelines, oversight of development of art projects and maintenance of art collection.”
FISCAL IMPACT
:
Approval of this action will require appropriat ing $40,500 of Public Arts Funds from the Public Arts Fund Balance and allocate these funds to account 1502550- 40105, Contractual Services. The $40,500 fee includes:
Item
Material Prep (restoration) $2,000
Insurance 1,500
Reengineering 1,500
Transportation 5,500
Installation 2,500
Removal 2,500
1 Year Lease (artist fee) 25,000
Total Project $40,500
REVIEWED BY:
Department Director: Jay Virata
Deputy City Manager: Flinn Fagg
City Manager: Scott Stiles
ATTACHMENTS:
A. Project Description
B. Site Map
Item 1M - Page 3
Item 1M - Page 4
Item 1M - Page 5
Large-scale Public Sculptural Text
10 feet tall
20 feet long
Two 5/8” steel plates & acrylic, silver-iridescent paint
8,000 lbs
Freestanding/anchor-less
Engineered to 100 mph
Item 1M - Page 6
MIDABI, a label taken from the first two letters of each name, Michael Daniel Birnberg, was born at home, in the second floor corner apartment, at 120 Thompson Street, in SoHo, NYC.
Growing up in a family of art, meditation, and philosophy had a profound effect on forming the art and ideas he shares today.
Beginning with small sculptures at music festivals, MIDABI has grown to exhibit in major locations like Palm Springs CA, New York City, and Burning Man.
About the Artist
Early in my life I established a deep commitment to divergent acts in hopes of attaining uncommon insight into the nature of reality. I utilize the power of text and compose my findings into an artistic practice as a means of sharing information; philosophical public intervention.
The works are monolithic, monumental sculptures and murals that utilize scale and bold design. They agitate ideas and emotions within an observer, germinating and radicalizing into an actionable change in that life and the ethos of a community.
Artist Statement
MIDABI has created works in NYC, Miami, and sites in Southern California, as a means of public sociocultural intervention. His work brings novel concepts and thought provoking opportunities to the public forum.
Item 1M - Page 7
Deepak Chopra was so
moved by the piece in Union
Square Park, he posted it to
his 2.7mil IG followers.
MIDABI & Deepak spoke on a
panel together at Basel 2021
about this piece and the
importance of creativity.
MIDABI & Deepak are
currently collaborating in the
metaverse.
Item 1M - Page 8
What is, is what is; the only other thing is nothing.
As you take steps to expand your awareness, I want to dissuade you from using language and perspective that conforms to the hierarchical paradigm.
You are not on a journey to go from somewhere lesser to somewhere greater. Reality exists on a horizontal plane, not a vertical one. All parts of creation are equally valid and relevant. The information that you seek is not on some fantastical plane existing in some OTHER place. You’re not reaching outward, through an empty space, you are pressing inward, within denser space. There is no other anything to know. There is only becoming more familiar and intimate with what is.
There is no “other” thing.
Nature does not know a lie.
Nature knows no such thing as illusion.
Nature (meaning all of creation) knows only itself as itself.
Nature only is as it is; fully represented as itself at all time; incapable of being any other way.
Lie and illusion in nature are literally impossible. Lies and illusions occur only in our minds.
A misidentification of what is.
Sometimes based on desire.
Sometimes fear.
Always only seen as a part, and never as whole.
To see things as they are is to see the totality of a thing’s existence.
The revelatory connection between a thing’s truth and the illusion existing in your personal viewpoint is revealed when your eye is in alignment with nature.
Thus humanity seeks revelation from illusion within “other” places, distant lands, magical states of being.
Your current being is fully magical.
You once knew this clearly, then became habituated to it. The magical became mundane, and wholeness of nature was divided between near and distant parts, desirable and undesirable states.
And so the search for the wholeness of nature began and illusion was born.
There is no other place.
No absence of truth.
There is only a more intimate and unfiltered relationship with what is.
Meaning of the work
Item 1M - Page 9
Budget
Material Prep (restoration) 2000
Insurance 1500
Reengineering 1500
Transportation 5500
Installation 2500
Removal 2500
1yr Lease (artist fee) 25000
——————————————————————————
Total 40500
Item 1M - Page 10
Item 1M - Page 11
Item 1M - Page 12
Michael Daniel Birnberg
—
917-727-2713
—
Eastern Lion LLC
18 Stuyvesant Oval
Suite - 6A
New York, NY 10009
-
- www.midabi.art
@midabi
Item 1M - Page 13
ATTACHMENT B
THE ONLY OTHER THING IS NOTHING SITE MAP
X
Item 1M - Page 14
CITY COUNCIL STAFF REPORT
05/11/2023
SUBJECT:
REPORT ON CITY COUNCIL STRATEGIC VISIONING SESSION
RECOMMENDATION:
Receive and file.
Attachments
Item 1N
CITY COUNCIL STAFF REPORT
D
ATE: MAY 11, 2023 CONSENT CALENDAR
SU
BJECT: REPORT ON CITY COUNCIL STRATEGIC VISIONING SESSION F
ROM: Scott C. Stiles, City Manager
BY: T
eresa Gallavan, Assistant City Manager
SUMMARY:
T
his agenda item provides a report on the City Council Strategic Visioning Session of April 3, 2023.
RECOMMENDATION:
R
eceive and file.
BACKGROUND:
T
he City Council held a Strategic Visioning Session on April 3, 2023, to establish priorities for the next two years at a high conceptual level. Priority setting is the primary means by which City Council identifies the most important programs and projects that need to be accomplished and sets the direction of the City Manager and Staff. The session was held in closed session because Council priorities are key expectations set for the City Manager and will be used as tools to evaluate City Manager performance. The City report s out Council priorities as a public agenda item and incorporates them in the budget process to obtain stakeholder input.
I
deally, the priority -setting process will be part of each budget cycle, staff will develop workplans and budget requests to reflect council priorities, and regular progress reports will be provided to Council.
T
he City Council held Visioning Sessions prior to the adoption of the Fiscal Year 2022-23 budget. That process identified four priority areas: Quality of Life, Environmental Stewardship, Community Infrastructure and Good Governance. Within the four categories, 15 goals and 50 objectives were identified ranging from Improving Homelessness and building a Navigation Center to Enhancing Service Levels and creating training programs.
Item 1N - Page 1
City Council Staff Report
May 11, 2023 – Page 2
Report on April 3, 2023 City Council Visioning Session
STAFF ANALYSIS:
During this year’s Visioning Session, Council moved to a two- year Strategic Plan to coincide with the City’s new biennial budget format. Council also focused the purpose of the Strategic Plan on the Council’s highest priorities as policymakers and differentiated between Council and Staff goals and objectives. Goals and objectives in the categories of Environmental Stewardship and Good Governance were recognized as staff objectives and part of the essential operations and service levels overseen by the City Manager. To reflect this , these staff goals and objectives were removed from the Council priority section and incorporated into one of the City’s Major Themes and Principles. The following Theme and Principle was updated from:
Social equity and sustainability underpin all priorities, programs, and projects
to:
Social equity, environmental stewardship, and forward-thinking governance underpin all priorities, programs, and projects
Based on Council direction, its strategic priorities now focus on two major categories, Quality of Life and Community Infrastructure, with seven goals:
Quality of Life
• Improve Homelessness
• Crime Reduction
• Affordable Housing
• Economic Development
Community Infrastructure
• Improve City Facilities
• 5- Year Capital Improvement Plan
• Community Design
Within the goals are 22 objectives ranging from completing the Navigation Center t o Continuing Advocacy for the West Valley College of the Desert Campus. The updated Strategic Plan is provided as Attachment A.
The goals and objectives are not meant to be all inclusive or to exclude work that does not fall directly in these categories. Rather, these priorities are meant to act more like a compass, keeping the organization focused and moving in the same direction toward the most important outcomes. Similarly, many of these priorities, like improving homelessness and reducing crime, are very large in scale. Establishing these priorities is not meant to convey problems in these areas will be solved within a particular timeframe.
These large-scale priorities could remain important for many years, with the task -level strategies and workplans changing over time.
Item 1N - Page 2
City Council Staff Report
May 11, 2023 – Page 3
Report on April 3, 2023 City Council Visioning Session
Staff recommends Council affirm its priorities have been accurately reflected in the attached plan and receive and file the report so it may guide staff in budgeting and planning work for the next two-year budget cycle.
FISCAL IMPACT
:
None.
REVIEWED BY:
Assistant City Manager: Teresa Gallavan
City Manager: Scott Stiles
ATTACHMENTS:
A. FY 2023-25 Strategic Plan
Item 1N - Page 3
City of Palm Springs, CA
2023/25 Strategic Plan
The following Strategic Plan will guide high-priority work for the next two years. While these priorities are comprehensive, they are not exhaustive. Priorities are captured at a high conceptual level. More detailed work plans will be created to help turn high-level priorities into operational-level plans.
Mission:
Palm Springs is an inclusive, world class city dedicated to providing excellent and responsive public services to enhance the quality of life for current and future generations
Major Themes/ Principles:
Optimize basic services and facilities
Focus on issues that most impact quality of life
Narrow priorities to focus on the most critical problems first Priorities should be integrated, when possible, to maximize the impact Social equity, environmental stewardship, and forward-thinking governance underpin all priorities, programs, and projects
Item 1N - Page 4
1 – Quality of Life
1A - Improve Homelessness
- Complete navigation center
- Integrative Services
- Partner with homelessness
providers for enhanced services
1B – Crime Reduction
- Focus on crime
- Drugs and mental health
1C – Affordable Housing
- Action for affordable housing
development
- Examples to explore land
banking, acquire new land, and
financing programs
1D - Economic Development
- Continue advocacy for West Valley
College of the Desert Campus
- Evaluate existing cannabis program
- Strategic Planning for Economic
Development
- Business development initiatives
- Study development opportunities
RE land north of I-10
2 – Community Infrastructure
2A - Improve City Facilities
- Master Plan for Parks and Recreation
- Contract for the two parks
- Prioritize deferred maintenance
2B – 5-Year Capital Improvement Plan
- Expand walking/ biking infrastructure
- 5-year CIP with specific actions
- Identify high-priority facilities
- Mid-year CIP update
2C - Community Design
- Complete General Plan update
- Update zoning code
- Streamline City customer services
Item 1N - Page 5
CITY COUNCIL STAFF REPORT
05/11/2023
SUBJECT:
APPROVE SERVICE AGREEMENT NO. 23B079 WITH WEST AVIATION
SERVICES-SAN DIEGO DBA SIERRA AVIATION GROUP FOR BAGGAGE
RELOCATION SERVICES
RECOMMENDATION:
Approve Contract Services Agreement No. 23B079 with West Aviation Services-San Diego DBA Sierra Aviation Group for baggage relocation and wayfinding services in an amount not to exceed $2,000,000 for the initial three-year term beginning June 1, 2023, through May 31, 2026, with two one-year extension options at the City’s sole discretion.
1. Authorize the City Manager or his designee to execute all necessary documents.2.
Attachments
Item 1O
CITY COUNCIL STAFF REPORT
D
ATE: MAY 11, 2023 CONSENT CALENDAR
SU
BJECT: A PPROVE SERVICE AGREEMENT NO. 23B079 WITH WEST AVIATION
SERVICES-SAN DIEGO DBA SIERRA AVIATION GROUP FOR
BAGGAGE RELOCATION SERVICES
F
ROM: Scott C. Stiles, City Manager
BY: D
epartment of Aviation
SUMMARY:
T
his action will approve a three- year agreement with two one-year options with West Aviation Services -San Diego dba Sierra Aviation Group in an amount not to exceed $2,000,000 for baggage relocation and wayfinding services at the Palm Springs International Airport (Airport).
RECOMMENDATION:
1. A
pprove Contract Services A greement No. 23B079 ( Attachment A ) with West Aviation Services-San Diego dba Sierra Aviation Group for baggage relocation and wayfinding services in an amount not to exceed $2 ,000,000 for the initial three - year term beginning June 1, 2023 through May 31, 2026, with two one -year extension options at the City’s sole discretion; and
2. A
uthorize the City Manager or his designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
A
ccording to the Public Integrity Disclosure form ( Attachment B) submitted on April 6, 2023, West Aviation Services-San Diego is registered in the State of California.
BACKGROUND:
I
n August 2021, the Airport ticket wing expansion was completed which included a new baggage handling system (BHS). The baggage handling system intended to optimize throughput capacity and efficiency, including curbside bag drop- off, and conveys all luggage to a single consolidated screening center. During Fiscal Year 2021- 2022, the Airport experienced a 112% increase in passenger traffic when compared to Fiscal Year Item 1O - Page 1
City Council Staff Report
May 11, 2023 -- Page 2
Award of Baggage Relocation Services Contract
2018-2019, the highest passenger traffic year before the COVID-19 pandemic. Although growth had been factored into the design of the BHS, it was not factored in that Southwest Airlines would be coming into the market with a significant increase of daily flight operations, and that the existing airlines would also be increasing their routes from previous years. T he significant increases caused the BHS to experience major delays during peak hours which delayed passenger luggage from being loaded onto the aircraft and a pile up of luggage behind the airline ticket counters.
On September 1, 2022, City Council approved an Amendment No. 1 to the Contract Services Agreement No. A9081 in order to provide a short -term solution to alleviate the potential delay issues caused by this unanticipated growth. That contract expires on May 31, 2023, which necessitated an evaluation for a longer-term solution.
Upon further evaluation of these issues, it was determined that the Airport will require continuous assistance with the manual relocation of passenger luggage from ticketing/curbside baggage check-in to the Explosive Detection Systems (EDS) screening room, and from the queuing area in the EDS screening room onto the feed belts for the EDS machines, and from the output of the EDS machines to the Luggage Carousels during specific peak hours. Generally, peak hours are from 0900 to 1400 daily, though this can vary depending upon flight schedules and during non-standard operations.
In addition to the BHS delays, the baggage claim area often gets overcrowded with passengers waiting in line at the rental car counters and passengers waiting to claim their luggage after deplaning during peak hours. To reduce passenger confusion, the Airport is coordinating with Sierra Aviation Group to staff an attendant during peak hours to provide directional services to instruct passengers to the baggage carousels to retrieve their luggage, to clear the walkways, and to guide them to the correct car rental counters.
The Airport sees a benefit with directing passengers to increase the passenger experience and to eliminate congestion in the baggage claim area.
STAFF ANALYSIS:
The contract with West Aviation Services-San Diego dba Sierra Aviation Group is an on- call, as-needed type contract. The bids were used to determine the lowest, responsive, responsible bidder and to set the unit rates for the contract; however, the actual amount of the contract is based on the budgeted amount set by the Department and will therefore not match the bid amounts.
An Invitation for Bids (IFB 23-23 ) was initiated by the C ity’s Procurement & Contracting Department on March 14, 2023, based on the Department of Aviation specifications. Bids were solicited directly via the City’s procurement vendor portal, PlanetBids. In addition, the IFB was advertised in The Desert Sun. Two bids were received by the April 6, 2023, deadline as follows:
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City Council Staff Report
May 11, 2023 -- Page 3
Award of Baggage Relocation Services Contract
Vendor Bid
West Aviation Services $1,302,000.00
E-Logic, Inc. $7,552,410.00
The contract is for three years with two one- year options to renewal. The unit pricing is fixed for the first year and subject to a CPI increase in the following years . Staff recommends approval of a Contract Services Agreement No. 23B079 with West Aviation Services-San Diego dba Sierra Aviation Group for the initial three-year term in the amount not to exceed $ 2,000,000 effective June 1, 2023 through May 31, 2026, subject to two one-year optional renewals at the sole discretion of the City.
ENVIRONMENTAL ASSESSMENT
:
The requested City Council action is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The requested action is to approve contracts for the above- mentioned services, and is exempt from CEQA pursuant to Section 15378(b), in that a “Project” does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
ALIGNMENT WITH STRATEGIC PLANNING:
Approval of this action supports City Council priority 3A, Community Infrastructure – Improve City Facilities.
FISCAL IMPACT:
Funds for this Contract Services Agreement have been budgeted in Airport Account 4157052.40105 in fiscal year 2023-24 and will be budgeted for each subsequent fiscal year based on the contract fees.
REVIEWED BY:
Department Director: Harry Barrett, Jr.
Procurement Manager: Kim Baker
City Attorney: Geremy Holm
City Manager: Scott Stiles
ATTACHMENTS:
A. Contract Services Agreement No. 23B079
B. Public Integrity Disclosure
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ATTACHMENT A
AGREEMENT NO. 23B079
WITH WEST AVIATION
DBA SIERRA AVIATION GROUP
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CONT
RACT SERVICES AGREEMENT 23B079
BAGGAGE RELOCATION AND WAYFINDING SERVICES
THI
S AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into on June 1, 2023, by and between the City of Palm Springs , a California charter city and municipal corporation (“City”), and WEST AVIATION SERVICES – SAN DIEGO dba Sierra Aviation Group, a California corporation, (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.
RECITALS
A. Ci
ty requires the services of a licensed and qualified contractor to provide the City with baggage relocation and wayfinding services at the Palm Springs International Airport (PSP), (“Project”).
B. Cont
ractor has submitted to City a proposal to provide baggage relocation and wayfinding services at the Palm Springs International Airport (PSP) , to City under the terms of this Agreement.
C. Bas
ed on its experience, education, training, and reputation, Contractor is qualified and desires to provide the necessary services to City for the Project.
D. Ci
ty desires to retain the services of Contractor for the Project.
NOW,
THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGRE
EMENT
1. CONTRACTOR SERVICES
1.1 Scope of Services . In compliance with all terms and conditions of this Agreement, Contractor shall provide services to City as described in the Scope of Services/Work attached to this Agreement as Exhibit “A” and incorporated herein by reference (the “Services” or “Work”). Exhibit "A" includes the agreed upon schedule of performance and the schedule of fees. Contractor warrants that the Services shall be performed in a competent, professional, and satisfactory manner consistent with th e level of care and skill ordinarily exercised by high quality, experienced, and well qualified members of the profession currently practicing under similar conditions. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern.
1.2 Compliance with Law . Contractor shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.
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1.3 Licenses and Permits . Contractor shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the Services required by this Agreement.
1.4 Familiarity with Wo rk. By executing this Agreement, Contractor warrants that it has carefully considered how the Work should be performed and fully understands the facilities, difficulties, and restrictions attending performance of the Work under this Agreement.
2. TIME FOR COMPLETION
The time for completion of the Services to be performed by Contractor is an essential condition of this Agreement. Contractor shall prosecute regularly and diligently the work of this Agreement according to the agreed upon schedule of performance set forth in Exhibit “A .” Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non -performing Party. Delays shall not entitle Contractor to any additional compensation regardless of the Party responsible for the delay.
3. COMPENSATION OF CONTRACTOR
3.1 Compensation of Contractor. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $2,000,000.00.
3.2 Method of Payment . In any month in which Contractor wishes to receive payment, Contractor shall submit to City an invoice for Services rendered prior to the date of the invoice, no later than the first working day of such month, in the form approved by City’s finance director. Payments shall be based on the hourly rates set forth in Exhibit “A” for authorized services performed. City shall pay Contractor for all expenses stated in the invoice that are approved by City and consistent with this Agreement, within thirty (30) days of receipt of Contractor’s invoice.
3.3 Changes. In the event any change or changes in the Services is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entere d into:
A. To provide for revisions or modifications to documents , work product, or Work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession.
3.4 Appropriations. This Agreement is subject to , and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City.
4. PERFORMANCE SCHEDULE
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4.1 Time of Essence. Time is of the essence in the performance of this Agreement.
4.2 Schedule of Performance. All Services rendered under this Agreement shall be performed under the agreed upon schedule of performance set forth in Exhibit “A .” Any time period extension must be approved in writing by the Contract Officer.
4.3 Force Majeure. The time for performance of Services to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event , if Contractor notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Contractor’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety , and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing the Services for the period of the enforced delay when and if , in the Contract Officer’s judgment, such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. The Contractor will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
4.4 Term. Unless earlier terminated in accordance with Section 4.5 of t his Agreement, this Agreement shall continue in full force and effect for a period of three years , commencing on issuance of Notice to Proceed, 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.
4.5 Termination Prior to Expiration of Term . City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor . W here termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Contractor shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Contractor sha ll be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor, who shall be liable for the full cost of the City's corrective action.
Contractor may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.
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5. COORDINATION OF WORK
5.1 Representative of Contractor. The following principal of Contractor is designated as being the principal and representative of Contractor authorized to act and make all decisions in its behalf with respect to the specified Services : James Mog (name), P resident (title). It is expressly understood that the experience, knowledge, education, capability, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the Services under this Agreement. The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer.
5.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Contractor shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the Services . Contractor shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer.
5.3 Prohibition Against Subcontracting or Assignment . The experience, knowledge, education, capability, and reputation of Contractor , its principals and employees, were a substantial inducement for City to enter into this Ag reement. 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 provision making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City.
5.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Contractor , its agents or employees, perform the Services required, except as otherwise specified . Contractor shall perform all required Services as an independent contractor of City and shall not be an employee of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role; however, City shall have the right to review Contractor ’s work product, result, and advice. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Contractor shall pay all wages, salaries, and other amounts due personnel in connection with their performance under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance. Contractor shall not have any authority to bind City in any manner.
5.5 Personnel. Contractor agrees to assign the following individuals to perform the services in this Agreement. Contractor shall not alter the assignment of the following personnel Item 1O - Page 8
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thout the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted right to order the removal of any personnel assigned by Contractor by providing written notice to Contractor.
Name: T itle:
James Mog P resident
5.6 California Labor Code Requirements.
A. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the S ervices are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for cons truction, 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 cla ims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
B. If the Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements.
6. INSURANCE
Contractor s hall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference.
7. INDEMNIFICATION.
7.1 Indemnification. To the fullest extent permitted by law, Contractor shall defend (at Contractor ’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the “Inde mnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses Item 1O - Page 9
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cluding 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 f or such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.
7.2 Design Professional Services Indemnification and Reimbursement. If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be limited to the extent which the C laims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor in the performance of the Services or this Agreement , and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction, Contractor’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.
8. RECORDS AND REPORTS
8.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer reports concerning the performance of the Services required by this Agreement, or as the Contract Officer shall require.
8.2 Records. Contractor shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Contractor shall keep such books and records as shall be necessary to properly perform the Se rvices required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records.
8.3 Ownership of Documents . All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of this Agreement shall be the property of City. Contractor shall deliver all above-referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. Contractor may retain copies of such documents for Contractor's own use. Contractor shall have an unrestricted right to use the concepts embodied in such documents.
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8.4 Release of Documents . All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contra ct Officer.
8.5 Audit and Inspection of Records . After receipt of reasonable notice and during the regular business hours of City, Contractor shall provide City, or other agents of City, such access to Contractor’s books, records, payroll documents, and f acilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Contractor’s performance under this Agreement. Contractor shall maintain such books, records, da ta, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder.
9. ENFORCEMENT OF AGREEMENT
9.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerni ng any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside , State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
9.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties.
Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs.
9.3 Waiver . No delay or omission in the exercise of any right or remedy of a non- defaulting Party on any default shall impair such right or remedy or be construed as a waiver.
No consent or approval of City shall be deemed to waive or render unnecessary City’s consent to or approval of any subsequent act of Contractor . Any waiver by either Party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement.
9.4 Rights and Remedies are Cumulative . Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumu lative. 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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9.5 Legal Action. In addition to any other right s or remedies, either Party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement.
9.6 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non- judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding.
10. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
10.1 Non-Liability of City Officers and Employees . No officer or employee of City shall be personally liable to t he Contractor, or any successor -in-interest, in the event of any default or breach by City or for any amount which may become due to the Contractor or its successor, or for breach of any obligation of the terms of this Agreement.
10.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement, nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.
10.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contract or 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 transf er; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non- discrimination in city contracting.
11. MISCELLANEOUS PROVISIONS
11.1 Notice. Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person shall be in Item 1O - Page 12
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iting and either served personally or sent by pre -paid, first-class mail to the addre ss set forth below. Notice shall be deemed communicated seventy -two (72) hours from the time of mailing if mailed as provided in this Section. Either Party may change its address by notifying the other Party of the change of address in writing.
To City: City of Palm Springs
Attention: City Manager/ City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
To C
ontractor: West Aviation Services-San Diego dba
Sierra Aviation Group
Attention: James Mog
9247 Archibald Avenue
Rancho Cucamonga, CA 91730
11.2 Integrated Agreement . This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement.
11.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement signed by all Parties.
11.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the Parties.
11.5 Successors in Interest . This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees.
11.6 Third Party Beneficiary . Except as may b e expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement.
11.7 Recitals. The above -referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same.
11.8 Authority. The persons executing this Agreement on behalf of the P arties warrant that they are duly authorized to execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement.
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11.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
12. COMPLIANCE WITH ECONOMIC SANCTIONS IN RESPONSE TO RUSSIA’ S
ACTIONS IN UKRAINEL
When funding for the services is provided, in whole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive Order N-6-22 (“Russian Sanctions Program”). As part of this compliance process, Consultant shall also certify compliance with the Russian Sanctions Program by completing the form located in Exhibit “C” (Russian Sanctions Certification), attached hereto and incorporated herein by reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section.
13. FEDERAL PROVISIONS
Since funding for the Services is provided, in whole or in part, by the Federal Aviation Administration, Supplier shall also fully and adequately comply with the provisions included in Exhibit “D” attached hereto and incorporated herein by reference (“Federal Provisions”). With respect to any conflict between such Federal Provisions and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control. [S
IGNATURES ON NEXT PAGE]
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SI
GNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND WEST AVIATION SERVICES – SAN DIEGO
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:
APP
ROVED BY CITY COUNCIL:
Da
te: _____________ Item No. ______
APP
ROVED AS TO FORM: ATTEST:
By:
___________________________ By: _______________________________ City Attorney City Clerk
APP
ROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
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EXHIBIT “A”
SCOPE OF SERVICES/WORK
Incl
uding,
Sc
hedule of Fees
And
Sc
hedule of Performance
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1.1 Background:
The Palm Springs International Airport requires assistance with the manual relocation of passenger luggage from ticketing/curbside baggage check -in to the EDS screening room, from the queuing area in the EDS screening room onto the feed belts for the EDS machines, and from the output of the EDS machines to the Luggage Carousels during specific peak hours. Generally, peak hours are from 0900 to 1400 daily, though this can vary depending upon flight schedules and during non- standard operations. The Airport also requires additional staff for assistance with passenger assistance and monitoring of secure access points.
1.2 Scope:
A. Contractor shall furnish labor to perform baggage relocation services (Work) on an as-requested basis at the Palm Springs International Airport (PSP)..
B. Baggage Relocation Services:
a. Contractor will provide bag relocation from ticketing to baggage screening or other designated location.
b. Contractor will load bags onto conveyors for the baggage screening process.
c. Contractor will move un- foreseen luggage as requested by airport operations.
d. Contractor must have the ability to repeatedly lift 50 pounds.
C. Wayfinding / Baggage Claim Assistance:
a. Contractor will provide wayfinding for passengers.
b. Contractor will provide passenger decongestion assistance. c. Contractor will provide secure access point monitoring services.
1.3 Adjustment of Services:
The City reserves the right to reduce or increase, or otherwise adjust the scope of services.
1.4 Pricing:
1. The pricing included in this Contract shall be firm for the first year.
2. The unit prices may be adjusted (decreased or increased) once a year to correspond with the most recent annual change to the Consumer Price Index for All Urban Consumers as published by the U.S. Bureaus of Labor S tatistics for the Riverside - San Bernardino-Ontario Areas.
3. 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, travel, mileage, truck charges, fuel charges, service call charges, parking delivery, portal -to portal charges, environmental fees, shop supplies and consumable incidental materials. The City will not pay for subcontractors, rental of equipment/tools, and purchase of materials/supplies unless the City authorized payment of the applicable items.
1.5 Payment:
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The resulting contract for these services is an on- call as needed contract. No specific amount of work is guaranteed. The contract value is an estimated value only. All work authorized under the contract will be compensated on a time and material basis as outlined in the Invoicing Section.
1.6 Invoicing:
Contractor will submit an itemized invoice monthly. Billings must reference a purchase order number and shall indicate the unit (contract) price. Contractor will be paid for the actual hours worked at the rates 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 City Employee, verifying the work was done. Invoices and receipts will be submitted to the Contract Officer for approval.
1.7 Special Security Requirements – Palm Springs International Airport:
1. AIRPORT SECURED ACCESS TO WORK AREAS:
a. Criminal history Records Check (CHRC) and TSA Security Threat Assessment (STA) – The Contractor will be required to submit the City, pr ior to the commencement of services, an Authorized Signatory Authority Letter authorizing specific Contractor representatives to approve the issuance of Airport Identification badges and the processing of a fingerprint CHRC and STAs. Electronic links to this letter and the Fingerprint/Badge application can be found on the Airport’s website at http://www.palm-springs.ca.gov b. Under certain circumstances, and out of the control of the City, security measures may change on short notice. No deviations from any security measure shall be allowed at any time.
c. Restricted Area Access – All Contractor personnel who require unescorted access to the restricted areas of the Airport, prior to the issuance of an Airport Identification Badge, must successfully complete a fingerprint based CHRC and Security Threat Assessment (STA). In accordance with CFR 49 1542.209, the CHRC must disclose that the applicant has not been convicted, or found not guilty by reason of insanity, of any of the disqualifying crimes listed below or as stated in 49 CFR 1542.209, during the 10 years before the date of the individual’s application for unescorted access authority, or while the individual has unescorted access authority. The disqualifying criminal offenses are as follows:
1) Forgery of certificates, false making of aircraft, and other registration violations; 49 U.S.C. 46306.
2) Interference with air navigation; 49 U.S.C. 46308.
3) Improper transportation of a hazardous material; 49 U.S.C. 46312. 4) Aircraft piracy; 49 U.S.C. 46502.
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5) Interference with flight crew members or flight attendants; 49 U.S.C. 46504.
6) Commission of certain crimes aboard aircraft in flight; 46506. 7) Carrying a weapon or explosive aboard aircraft; 49 U.S.C. 46506. 8) Conveying false information and threats; 49 U.S.C. 46507. 9) Aircraft piracy outside the special aircraft jurisdiction of the United States; 49 U.S.C. 46502(b).
10) Lighting violations involving transporting controlled substances; 49 U.S.C. 46315.
11) Unlawful entry into an aircraft or airport area that serves air carriers or foreign air carriers contrary to established security requirements; 49 U.S.C. 46314.
12) Destruction of an aircraft or aircraft facility; 18 U.S.C. 32. 13) Murder.
14) Assault with intent to murder.
15) Espionage.
16) Sedition.
17) Kidnapping or hostage taking.
18) Treason.
19) Rape or aggravated sexual abuse.
20) Unlawful possession, use, sale, distribution, or manufacture of an explosive or weapon.
21) Extortion.
22) Armed or felony unarmed robbery.
23) Distribution of, or intent to distribute, a controlled substance. 24) Felony arson.
25) Felony involving a threat.
26) Felony involving:
i) Willful destruction of property;
ii) Importation or manufacture of a controlled substance; iii) Burglary;
iv) Theft;
v) Dishonesty, fraud, or misrepresentation;
vi) Possession or distribution of stolen property;
vii) Aggravated assault;
viii) Bribery; or
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ix) Illegal possession of a controlled substance punishable by a maximum term of imprisonment of more than 1 year.
27) Violence at international airports; 18 U.S.C. 37.
28) Conspiracy or attempt to commit any of the criminal acts listed.
2. Employee Security Badges – All Employees, Agents, Vendors, Invitees, Etc. of the Contractor, or Subcontractors requiring access to the work site shall, in accordance with the PSP Airport Security Plan, be required to display airport issued identification or be under the escort by properly badged personnel.
Supervisors shall be badged with a Palm Springs International Airport Photo Badge. These badges will be identified numerically and issued to individual employees with a permanent record maintained on each individual to whom a badge is issued. At the completion of the contract, all badges will be returned to airport, or a charge of $60 per badge (subject to change) will be assessed for all badges not returned. As part of the badge application process, each applicant will be fingerprinted for use in an FBI Criminal Records search. Any person whose criminal record reveals offenses listed by the FAA as disqualifying offenses will be denied a badge and will be prohibited from unescorted access to the project site.
All required paperwork and ID badge applications shall be submitted a minimum of two weeks before issuance of any badge. The Contractor and its staff are responsible for attending SIDA training and completing security badge application.
Attendance of the video- based class and issuance of the badge may take in excess of 3 hours. There will be a $50 charge (subject to change) for the FBI background check and fingerprinting process, and a $50 charge (subject to change) for the badge for a total of $100.00.
3. Violations – All violations of Airport security are also violations of the City of Palm Springs Municipal Title 16, California Vehicle code and/or the Code of Federal Regulations. Any such violation may result in arrest, the issuance of a citation and/or the immediate revocation of access privileges.
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EXHIBIT “B”
INSUR
ANCE PROVISIONS
Including
Ve
rification of Coverage,
Suffi
ciency of Insurers,
Errors
and Omissions Coverage,
Mi
nimum Scope of Insurance,
Ded
uctibles and Self-Insured Retentions, and
Se
verability of Interests (Separation of Insureds)
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INSURANCE
1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Contractor ’s performance under this Agreement.
Contractor shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agreement.
Contractor shall also carry workers’ compensation insurance in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers.
2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows:
1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate;
2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence;
3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is:
_________ required
___X____ is not required;
4. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.
3. Primary Insurance. For any claims related to this Agreement, Contractor ’s insurance coverage shall be primary with respect to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self -insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and Item 1O - Page 23
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cont
ribution it may have against City, its elected officials, officers, employees, agents, and volunteers.
4. Errors and Omissions Coverage . If Errors & Omissions Insurance is r equired, and if Contractor provides claims made professional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completio n of Contractor ’s services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor ’s services under this Agreement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy.
5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City.
6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, cer tified 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. " Thi
s 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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D. Bot
h the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected of ficials, officers, employees, agents, and volunteers.
In a
ddition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies.
Al
l certificates of insurance and endorsements are to be received and appr oved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter.
Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them.
7. Deductibles and Self -Insured Retentions . Any deductibles or self -insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
Certificates of Insurance must include evidence of the amount of any deductible or self -insured retention under the policy. Contractor guarantees payment of all deductibles and self -insured retentions.
8. Sev erability of Interests (Separation of Insureds) . This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability.
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Exhibit C
EXECUTIVE ORDER N-6-22 CERTIFICATION
Exe
cutive 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:
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Exhibit D
FEDERAL AVIATION ADMINISTRATION
FEDERAL PROVISIONS
Provision
Reference Provision Description
Page
No.
FAA - 01 Access to Records and Reports 2
FAA - 02 Affirmative Action Requirement * 3
FAA – 03 Breach of Contract Terms 5
FAA – 04 Buy American Preference * 6
FAA – 05 Civil Rights General 7
FAA – 06 Civil Rights – Title VI Assurances * 8
FAA – 07 Clean Air and Water Pollution Control 11
FAA – 08 Contract Work Hours and Safety Standards Act Requirements 12 FAA – 09 Copeland Anti-Kickback Act 14
FAA – 10 Davis Bacon Requirements 15
FAA – 11 Debarment and Suspension * 22
FAA – 12 Disadvantaged Business Enterprise * 23
FAA – 13 Distracted Driving 25
FAA – 14 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment
26 FAA – 15 Drug Free Workplace Requirements (not applicable to Contractors)
27 FAA – 16 Equal Employment Opportunity 28
FAA – 17 Federal Fair Labor Standards Act * 36
FAA – 18 Lobbying and Influencing Federal Employees 37
FAA – 19 Prohibition of Segregated Facilities 38
FAA – 20 Occupational Safety and Health Act of 1970 39
FAA – 21 Procurement of Recovered Materials * 40
FAA – 22 Right to Inventions 41
FAA – 23 Seismic Safety 42
FAA – 24 Tax Delinquency and Felony Convictions* 43
FAA – 25 Termination of Contract 44
FAA – 26 Trade Restriction Certification (Foreign) * 45 FAA – 27 Veteran’s Preference 47
FAA – 28 Domestic Preferences for Procurements * 48
*Solicitation Clause also
Updated 2.8.2023
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FAA - 01 Access to Records and Reports
APPLICABILITY – pertains to all contracts.
The Contractor must maintain an acceptable cost accounting system. The Contractor agrees to provide the City, the Federal Aviation Administration and the Comptroller General of the United States or any of their duly authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to the specific contract for the purpose of making audit, examination, excerpts and transcriptions. The Contractor agrees to maintain all books, records and reports required under this contract for a period of not less than three years after final payment is made and all pending matters are closed.
Reference: 2 CFR § 200.334, 2 CFR § 200.337, FAA Order 5100.38 Item 1O - Page 28
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FAA - 02 Affirmative Action Requirement
NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO
ENSURE EQUAL EMPLOYMENT OPPORTUNITY
APPLICABILITY – pertains to all contracts over $10,000 as follows:
Construction – AIP funded construction work contracts and subcontracts that exceed $10,000.
Construction work means construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection and other onsite functions incidental to the actual construction.
Equipment – any equipment project exceeding $10,000 that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at a manufacturer’s plant (e.g., firefighting and snow removal vehicles).
Professional Services – any professional service agreement if the professional serv ices agreement includes tasks that meet the definition of construction work [as defined by the U.S.
Department of Labor (DOL)] and exceeds $10,000. Examples include installation of monitoring systems (e.g., noise, environmental, etc.).
Property/Land – any agreement associated with land acquisition if the agreement includes construction work (defined above) that exceeds $10,000. Examples include demolition of structures or installation of boundary fencing.
REQUIREMENTS -
1. The Contractor’s attention is called to the “Equal Opportunity Clause” and the “Standard Federal Equal Employment Opportunity Construction Contract Specifications” set forth herein.
2. The goals and timetables for minority and female participation, expressed in percentage terms for the Contractor’s aggregate workforce in each trade on all construction work in the covered area, are as follows:
Timetables
Goals for minority participation for each trade: [the City must insert established goal] Goals for female participation in each trade: 6.9%
These goals are applicable to all of the Contractor’s construction work (whether or not it is Federal or federally assisted) performed in the covered area. If the Contractor performs construction work in a geographical area located outside of the covered area, it shall apply the goals established for such geographical area where the work is actually performed. With regard to this second area, the Contractor also is subject to the goals for both its federally involved and nonfederally involved construction.
The Contractor’s compliance with the Executive Order and the regulations in 41 CFR Part 60-4 shall be based on its implementation of the Equal Opportunity Clause, specific affirmative action obligations required by the specifications set forth in 41 CFR 60- 4.3(a) and its efforts to meet the goals. The hours of minority and female employment and training must be Item 1O - Page 29
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substantially uniform throughout the length of the contract, and in each trade, and the Contractor shall make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from Contractor to Contractor or from project to project for the sole purpose of meeting the Contractor’s goals shall be a violation of the contract, the Executive Order and the regulations in 41 CFR Part 60-
4. Compliance with the goals will be measured against the total work hours performed.
3. The Contractor shall provide written notification to the Director of the Office of Federal Contract Compliance Programs (OFCCP) within 10 working days of award of any construction subcontract in excess of $10,000 at any tier for construction work under the contract resulting from this solicitation. The notification shall list the name, address, and telephone number of the subcontractor; employer identification number of the subcontractor; estimated dollar amount of the subcontract; estimated starting and completion dates of the subcontract; and the geographical area in which the subcontract is to be performed.
4. As used in this notice and in the contract resulting from this solicitation, the “covered area” is California, Riverside County, Palm Springs.
Ref
erence: 41 CFR Part 60-4
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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)
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FAA – 04 Buy American Preferences
APPLICABILITY – required for contracts defined as follows:
• Construction Projects involving the replacement, rehabilitation, reconstruction of airfield surfaces such as on runways, taxiways, taxilanes, apr ons, 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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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
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FAA – 06 Civil Rights – Title VI Assurances
APPLICABILITY – required for all contracts.
REQUIREMENT -
Title VI List of Pertinent Nondiscrimination Acts and Authorities During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “Contractor”) agrees to comply with the following non- discrimination statutes and authorities; including but not limited to:
• Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin); • 49 CFR part 21 (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); Item 1O - Page 34
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• 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. Nondiscrimi nation: 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 solicitatio ns, 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 o f 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 as certain 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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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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FAA – 07 Clean Air/Water Pollution Control
APPLICABILITY – This provision is required for all contracts and lower tier contracts that exceed $150,000.
REQUIREMENT -
If the Agreement exceeds $150,000, Contractor agrees to comply with all applicable standards, orders, and regulations issued pursuant to the Clean Air Act (42 USC § 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 USC § 1251-1387). The Contractor agrees to report any violation to the City immediately upon discovery. The City assumes responsibility for notifying the Environmental Protection Agency (EPA) and the Federal Aviation Administration.
Contractor must include this requirement in all subcontracts that exceeds $150,000.
Reference: 2 CFR § 200, Appendix II(G); 42 USC § 7401; 33 USC § 1251 Item 1O - Page 37
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FAA – 08 Contract Work Hours and Safety Standards
APPLICABILITY – This provision is required for contracts as follows:
Contract Work Hours and Safety Standards Act Requirements (CWHSSA) (40 USC §§ 3702 & 3704) requires contractors and subcontractors on covered contracts to pay laborers and mechanics employed in the performance of the contracts not less than one and one- half times their basic rate of pay for all hours worked over 40 in a workweek.
CWHSSA prohibits unsanitary, hazardous, or dangerous working conditions on federally - assisted projects. The Wage and Hour Division (WHD) within the U.S. Department of Labor (DOL) enforces the compensation requirements of this Act, while DOL’s Occupational Safety and Health Administration (OSHA) enforces the safety and health requirements.
Contract Types –
Construction – This provision applies to all contracts and lower tier contracts that exceed $100,000, and employ laborers, mechanics, watchmen, and guards.
Equipment – This provision applies to any equipment project exceeding $100,000 that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at the vendor plant (e.g., ARFF and SRE vehicles).
Professional Services – This provision applies to professional service agreements that exceed $100,000 and employs laborers, mechanics, watchmen, and guards. This includes members of survey crews and exploratory drilling operations.
Property – While most land transactions do not involve employment of laborers, mechanics, watchmen, and guards, under certain circumstances, a property acquisition project could require such employment. Examples include the installation of property fencing or testing for environmental contamination
CONTRACT WORKHOURS AND SAFETY STANDARDS ACT REQUIREMENTS
1. Overtime Requirements.
No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic, including watchmen and guards, in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
2. Violation; Liability for Unpaid Wages; Liquidated Damages.
In the event of any violation of the clause set forth in paragraph (1) of this clause, the Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this clause, in the sum of $29 for each calendar day on which such individual was required 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.
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3. Withholding for Unpaid Wages and Liquidated Damages.
The Federal Aviation Administration (FAA) or the City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such contract or any other Federal contract with the same pr ime 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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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 publ ic works, financed in whole or in part by the United States, to give up any part of the compensation to which that person is entitled under a contract of employment. The Copeland Act also requires each contractor and subcontractor to furnish weekly a statement of compliance with respect to the wages paid each employee during the preceding week.
Contract Types –
Construction – This provision applies to all construction contracts and subcontracts financed under the AIP that exceed $2,000.
Equipment – This provision applies to all equipment installation projects (e.g., electrical vault improvements) financed under the AIP that exceed $2,000. This provision does not apply to equipment acquisitions where the equipment is manufactured at the vendor’s plant (e.g., SRE and ARFF vehicles).
Professional Services –The emergence of different project delivery methods has created situations where Professional Service Agreements (PSAs) include tasks that meet the definition of construction, alteration, or repair as defined in 29 CFR Part 5. If such tasks result in work that qualifies as construction, alteration, or repair and it exceeds $2,000, the PSA must incorporate the Copeland Anti-kickback provision.
Property –Ordinarily, land acquisition projects would not involve employment of laborers or mechanics and thus the Copeland Anti-Kickback provision would not apply. However, land projects that involve installation of boundary fencing and demolition of structures would involve laborers and mechanics. The City must include this provision if the land acquisition project involves employment of laborers or mechanics for a contract exceeding $2,000.
REQUIREMENT -
Contractor must comply with the requirements of the Copeland “Anti -Kickback” Act (18 USC 874 and 40 USC 3145), as supplemented by Department of Labor regulation 29 CFR part 3. Contractor and subcontractors are prohibited from inducing, by any means, any person employed on the project to give up any part of the compensation to which the employee is entitled. The Contractor and each Subcontractor must submit to the City, a weekly statement on the wages paid to each employee performing on covered work during the prior week. City must report any violations of the Act to the Federal Aviation Administration.
Reference: 2 CFR Part 200, Appendix II(D); 29 CFR Parts 3 and 5 Item 1O - Page 40
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FAA – 10 Davis Bacon Requirements
APPLICABILITY -
The Davis -Bacon Act (40 USC §§ 3141- 3144, 3146, and 3147) ensures that laborers and mechanics employed under the contract receive pay no less than the locally prevailing wages and fringe benefits as determined by the Department of Labor.
Contract Types –
Construction – all construction contracts and subcontracts that exceed $2,000 and include funding from the AIP.
Equipment – This provision applies to all equipment installation projects (e.g., electrical vault improvements) financed under the AIP that exceed $ 2,000. This provision does not apply to equipment acquisitions where the equipment is manufactured at the vendor’s plant (e.g., SRE and ARFF vehicles)
Professional Services – The emergence of different project delivery methods has created situations where Professional Service Agreements (PSAs) includes tasks that meet the definition of construction, alteration, or repair as defined in 29 CFR Part 5. If such tasks result in work that qualifies as construction, alteration, or repair and it exceeds $2,000, the PSA must incorporate this clause.
Property – Ordinarily, land acquisition projects would not involve employment of laborers or mechanics and thus the provision would not apply. However, land projects that involve installation of boundary fencing and demolition of structures would involve laborers and mechanics. The City must include this provision if the land acquisition project involves employment of laborers or mechanics for a contract exceeding $2,000.
Fencing Projects – Fencing projects that exceed $2,000 must include this provision.
DAVIS-BACON REQUIREMENTS
1. Minimum Wages.
(i) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalent thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage Item 1O - Page 41
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determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR § 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under (1)(ii) of this section) and the Davis-Bacon poster (WH -1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can easily be seen by the workers.
(ii)(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage determination;
(2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (C) In the event the Contractor, the laborers, or mechanics to be employed in the classification, or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(ii) (B) or (C) of this paragraph, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.
(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor Item 1O - Page 42
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shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
(iv) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.
2. Withholding. The Federal Aviation Administration or the CIty shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this contract or any other Federal contract with the same prime contractor, or any other federally -assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the Federal Aviation Administration may, after written notice to the Contractor, City, Applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.
3. Payrolls and Basic Records.
(i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker; his or her correct classification; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 1(b)(2)(B) of the Davis -Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, the Contractor shall maintain records that show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual costs incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii)(A) The Contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit the payrolls to the applicant, the City, or Owner, as the case may be, for transmission to the Federal Aviation Item 1O - Page 43
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Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR § 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee’s social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH–347 is available for this purpose from the Wage and Hour Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker and shall provide them upon request to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit them to the applicant, the City, or Owner, as the case may be, for transmission to the Federal Aviation Administration, the Contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the sponsoring government agency (or the applicant, City, or Owner).
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under 29 CFR § 5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR § 5.5 (a)(3)(i), and that such information is correct and complete; (2) That each laborer and mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR Part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph (3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the Contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code.
(iii) The Contractor or subcontractor shall make the records required under paragraph (3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the City, the Federal Aviation Administration, or the Department of Labor and shall permit such representatives to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit the required records or to make them available, the Federal agency Item 1O - Page 44
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may, after writte n notice to the Contractor, the City, applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR § 5.12.
4. Apprentices and Trainees.
(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Off ice of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman’s hourly rate) specified in the Contractor’s or subcontractor’s registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice’s level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an appr enticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees. Except as provided in 29 CFR § 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee’s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the Item 1O - Page 45
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trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination that provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate that is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal Employment Opportunity. The utilization of apprentices, trainees, and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.
5. Compliance with Copeland Act Requirements.
The Contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference in this contract.
6. Subcontracts.
The Contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR §§ 5.5(a)(1) through (10) and such other clauses as the Federal Aviation Administration may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR § 5.5.
7. Contract Termination: Debarment.
A breach of the contract clauses in paragraph 1 through 10 of this section may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR § 5.12.
8. Compliance with Davis-Bacon and Related Act Requirements.
All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract.
9. Disputes Concerning Labor Standards.
Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the Contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.
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10 . Certification of Eligibility.
(i) By entering into this contract, the Contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor’s firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR §
5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR § 5.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 USC § 1001.
Reference: 2 CFR Part 200, Appendix II(D); 29 CFR Part 5; 49 USC § 47112(b); 40 USC §§ 3141-3144, 3146, and 3147
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FAA – 11 Debarment and Suspension
APPLICABILITY - This requirement applies to covered transactions, which are defined in 2 CFR part 180 (Subpart B). AIP funded contracts are non- procurement transactions, as defined by 2 CFR § 180.970. Covered transactions include any AIP -funded contract, regardless of tier, that is awarded by a contractor, subcontractor, supplier, consultant, or its agent or representative in any transaction, if the amount of the contract is expected to equal or exceed $25,000. This includes contracts associated with land acquisition projects.
REQUIREMENT -
A11.3.1 Bidder or Offeror Certification
By submitting a bid/proposal under the solicitation for this contract, the Contractor mus t have certified that neither it nor its principals are presently debarred or suspended by any Federal department or agency from participation in this transaction.
A11.3.2 Lower Tier Contract Certification
CERTIFICATION OF LOWER TIER CONTRACTORS REGARDING DEBARMENT The Contractor, by administering each lower tier subcontract that exceeds $25,000 as a “covered transaction”, must verify each lower tier participant of a “covered transaction” under the project is not presently debarred or otherwise disqualified from participation in this federally assisted project. The Contractor will accomplish this by:
1. Checking the System for Award Management at website: http://www.sam.gov.
2. Collecting a certification statement similar to the Certification of Offerer /Bidder Regarding Debarment, above.
3. Inserting a clause or condition in the covered transaction with the lower tier contract.
If the Federal Aviation Administration later determines that a lower tier participant failed to disclose to a higher tier participant that it was excluded or disqualified at the time it entered the covered transaction, the FAA may pursue any available remedies, including suspension and debarment of the non-compliant participant.
Reference: 2 CFR part 180 (Subpart B), 2 CFR part 200 Appendix II(H), 2 CFR Part 1200, DOT Order 4200.5; Executive Orders 12549 and 12689
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FAA – 12 Disadvantaged Business Enterprise
APPLICABILITY – all contracts with Airports that have a DBE program on file with the FAA.
Contract Assurance (§ 26.13) –
The Contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The Contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of Department of Transportation-assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the City deems appropriate, which may include, but is not limited to:
1) Withholding monthly progress payments;
2) Assessing sanctions;
3) Liquidated damages; and/or
4) Disqualifying the Contractor from future bidding as non-responsible.
Prompt Payment (§26.29) – The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than [10 days] days from the receipt of each payment the prime contractor receives from [the City]. The prime contractor agrees further to return r etainage payments to each subcontractor within [30 days] days after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the [City]. This clause applies to both DBE and non-DBE subcontractors.
Termination of DBE Subcontracts (49 CFR § 26.53(f)) –
The prime Contractor must not terminate a DBE subcontractor listed in response to the solicitation (or an approved substitute DBE firm) without prior written consent of the City. This includes, but is not limited to, instances in which the prime contractor seeks to perform work originally designated for a DBE subcontractor with its own forces or those of an affiliate, a non - DBE firm, or with another DBE firm.
The prime Contractor shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless the Contractor obtains written consent of the City.
Unless City consent is 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 Item 1O - Page 49
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termination of its subcontract and why the City should not approve the prime Contractor's action. If required in a particular case as a matter of public necessity (e.g., safety), the City may provide a response period shorter than five days.
In addition to post-award terminations, the provisions of this section apply to preaward deletions of or substitutions for DBE firms put forward by offerors in negotiated procurements.
Reference: 49 CFR part 26
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FAA – 13 Distracted Driving
APPLICABILITY - contracts that exceed the micro-purchase threshold of 2 CFR § 200.320 (currently set at $10,000).
REQUIREMENT -
TEXTING WHEN DRIVING
In accordance with Executive Order 13513, “Federal Leadership on Reducing Text Messaging While Driving”, (10/1/2009) and DOT Order 3902.10, “Text Messaging While Driving”, (12/30/2009), the Federal Aviation Administration encourages recipients of Federal grant funds to adopt and enforce safety policies that decrease crashes by distracted drivers, including policies to ban text messaging while driving when performing work related to a grant or subgrant.
In support of this initiative, the City encourages the Contractor to promote policies and initiatives for its employees and other work personnel that decrease crashes by distracted drivers, including policies that ban text messaging while driving motor vehicles while performing work activities associated with the project. The Contractor must include the substance of this clause in all sub-tier contracts exceeding $10,000 that involve driving a motor vehicle in performance of work activities associated with the project.
Reference: Executive Order 13513, DOT Order 3902.10
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FAA – 14 Prohibition on Certain Telecommunications and Video Surveillance Services and Equipment
APPLICABILITY - all AIP funded contracts and lower-tier contracts.
REQUIREMENT -
Contractor and Subcontractor agree to comply with mandatory standards and policies relating to use and procurement of certain telecommunications and video surveillance services or equipment in compliance with the National Defense Authorization Act [Public Law 115- 232 § 889(f)(1)].
Reference: 2 CFR § 200, Appendix II(K); 2 CFR § 200.216 Item 1O - Page 52
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FAA – 15 Drug Free Workplace Requirements
APPLICABILITY - This provision applies to all AIP funded projects, but not to the contracts between the City and a contractor, subcontractors, suppliers, or subgrantees.
The Drug -Free Workplace Act of 1988 requires some Federal contractors and all Federal grantees to agree that they will provide drug -free workplaces as a condition of receiving a contract or grant from a Federal agency. The Act does not apply to contractors, subcontractors, or subgrantees, although the Federal grantees workplace may be where the contractors, subcontractors, or subgrantees are working.
Reference: 49 CFR part 32, Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq., as amended)
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FAA – 16 Equal Employment Opportunity
APPLICABILITY – The purpose of this provision is to provide equal opportunity for all persons, without regard to race, color, religion, sex, or national origin who are employed or seeking employment with contractors performing under a federally-assisted construction contract. There are two provisions ― a construction clause and a specification clause.
The equal opportunity contract clause applies to any contract or subcontract when the amount exceeds $10,000. Once the equal opportunity clause is determined to be applicable, the contract or subcontract must include the clause for the remainder of the year, regardless of the amount or the contract.
Contract Types –
Construction – all construction contracts and subcontracts as required above.
Equipment – all equipment contracts as required above that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisiti on projects where the manufacture of the equipment takes place offsite at the vendor plant (e.g., ARFF and SRE vehicles).
Professional Services – all professional service agreements as required above.
Property – all land acquisition projects that include work that qualifies as construction work as defined by 41 CFR part 60 as required above. An example is installation of boundary fencing.
REQUIREMENT -
A16.3.1 EEO Contract Clause
During the performance of this contract, the Contractor agrees as follows:
(1) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.
The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identify, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff, or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has Item 1O - Page 54
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access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information. (4) The Contractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers’ representative of the Contractor’s commitments under this section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the Contractor’s noncompliance with the nondiscrimination clauses of this contract or with any such rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (8) The Contractor will include the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.
A16.3.2 EEO Specification
STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY
CONSTRUCTION CONTRACT SPECIFICATIONS
a. “Covered area” means the geographical area described in the solicitation from which this contract resulted;
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b. “Director” means Director, Office of Federal Contract Compliance Programs (OFCCP), U.S.
Department of Labor, or any person to whom the Director delegates authority; c. “Employer identification number” means the Federal social security number used on the Employer’s Quarterly Federal Tax Return, U.S. Treasury Department Form 941; d. “Minority” includes:
(1) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin);
(2) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race);
(3) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and (4) American Indian or Alaskan native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification).
2. Whenever the Contractor, or any subcontractor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions of these specifications and the Notice which contains the applicable goals for minority and female participation and which is set forth in the solicitations from which this contract resulted.
3. If the Contractor is participating (pursuant to 41 CFR part 60 -4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors must be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each contractor or subcontractor participating in an approved plan is individually required to comply with its obligations under the EEO clause and to make a good faith effort to achieve each goal under the Plan in each trade in which it has employees. The overall good faith performance by other contractors or subcontractors toward a goal in an approved Plan does not excuse any covered contractor’s or subcontractor’s failure to take good faith efforts to achieve the Plan goals and timetables.
4. The Contractor shall implement the specific affirmative action standards provided in paragraphs 7a through 7p of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and female utilization the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. Covered construction contractors performing construction work in a geographical areas where they do not have a Federal or federally assisted construction contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the Federal Register in notice form, and such notices may be obtained from any Office of Federal Contract Compliance Programs office or from Federal procurement contracting officers.
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The Contractor is expected to make substantially uniform progress in meeting its goals in each craft during the period specified.
5. Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the Contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the Contractor’s obligations under these specifications, Executive Order 11246, or the regulations promulgated pursuant thereto.
6. In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees must be employed by the Contractor during the training period, and the Contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor.
7. The Contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the Contractor’s compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The Contractor shall document these efforts fully, and shall implement affirmative action steps at least as extensive as the following:
a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites, and in all facilities at which the Contractor’s employees are assigned to work. The Contractor, where possible, will assign two or more women to each construction project. The Contractor shall specifically ensure that all foremen, superintendents, and other onsite supervisory personnel are aware of and carry out the Contractor’s obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities. b. Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contractor or its unions have employment opportunities available, and maintain a record of the organizations’ responses. c. Maintain a current file of the names, addresses, and telephone numbers of each minority and female off -the-street applicant and minority or female referral from a union, a recruitment source, or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the union or, if referred, not employed by the Contractor, this shall be documented in the file with the reason therefor, along with whatever additional actions the Contractor may have taken. d. Provide immediate written notification to the Director when the union or unions with which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or woman sent by the Contractor, or when the Contractor has other information that the union referral process has impeded the Contractor’s efforts to meet its obligations.
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and apprenticeship and trainee programs relevant to the Contractor’s employment needs, especially those programs funded or approved by the Department of Labor.
The Contractor shall provide notice of these programs to the sources compiled under 7b above.
f. Disseminate the Contractor’s EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each location where construction work is performed.
g. Review, at least annually, the company’s EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, layoff, termination, or other employment decisions including specific review of these items with onsite supervisory personnel such superintendents, general foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter. h. Disseminate the Contractor’s EEO policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and discussing the Contractor’s EEO policy with other contractors and subcontractors with whom the Contractor does or anticipates doing business. i. Direct its recruitment efforts, both oral and written, to minority, female, and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the Contractor’s recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the Contractor shall send written notification to organizations such as the above, describing the openings, screening procedures, and tests to be used in the selection process.
j. Encourage present min ority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer, and vacation employment to minority and female youth both on the site and in other areas of a contractor’s work force.
k. Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR part 60-3.
l. Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel, for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities. m. Ensure that seniority practices, job classifications, work assignments, and other personnel practices do not have a discriminatory effect by continually monitoring all Item 1O - Page 58
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personnel and employment related activities to ensure that the EEO policy and the Contractor’s obligations under these specifications are being carried out. n. Ensure that all facilities and company activities are nonsegregated exc ept that separate or single- user toilet and necessary changing facilities shall be provided to assure privacy between the sexes.
o. Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations.
p. Conduct a review, at least annually, of all supervisor’s adherence to and performance under the Contractor’s EEO policies and affirmative action obligations.
8. Contractors are encouraged to participate in voluntary associations, which assist in fulfilling one or more of their affirmative action obligations (7a through 7p). The efforts of a contractor association, joint contractor -union, contractor-community, or other similar group of which the Contractor is a member and participant may be asserted as fulfilling any one or more of its obligations under 7a through 7p of these specifications provided that the Contractor actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the Contractor’s minority and female workforce participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the Contractor. The obligation to comply, however, is the Contractor’s and failure of such a group to fulfill an obligation shall not be a defense for the Contractor’s noncompliance.
9. A single goal for minorities and a separate single goal for women have been established.
The Contractor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and non- minority. Consequently, the Contractor may be in violation of the Executive Order if a particular group is employed in a substantially disparate manner (for example, even though the Contractor has achieved its goals for women generally, the Contractor may be in violation of the Executive Order if a specific minority group of women is underutilized).
10. The Contractor shall not use the goals and timetables or affirmative action standards to discriminate against any person because of race, color, religion, sex, sexual orientation, gender identity, or national origin.
11. The Contractor shall not enter into any subcontract with any person or firm debarred from Government contracts pursuant to Executive Order 11246.
12. The Contractor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination, and cancellation of existing subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any contractor who fails to carry out such sanctions and Item 1O - Page 59
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penalties shall be in violation of these specifications and Executive Order 11246, as amended.
13. The Contractor, in fulfilling its obligations under these specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in paragraph 7 of these specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the Contractor fails to comply with the requirements of the Executive Order, the implementing regulations, or these specifications, the Director shall proceed in accordance with 41 CFR part 60-4.8.
14. The Contractor shall designate a responsible official to monitor all employment related activity t o ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the Government, and to keep records. Records shall at least include for each employee, the name, address, telephone numbers, construction trade, union affiliation if any, employee identification number when assigned, social security number, race, sex, status (e.g., mechanic, apprentice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, contractors shall not be required to maintain separate records.
15. Nothing herein provided shall be construed as a limitation upon the application of other laws which establish different standards of compliance or upon the application of requirements for the hiring of local or other area residents (e.g. those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program).
Reference: 2 CFR 200, Appendix II(C), 41 CFR § 60- 1.4, 41 CFR § 60- 4.3, Executive Order 11246
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FAA – 17 Federal Fair Labor Standards Act
APPLICABILITY – Contract Types – Per the Department of Labor, all employees of certain enterprises having workers engaged in interstate commerce; producing goods for interstate commerce; or handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any person are covered by the FLSA.
All consultants, sub-consultants, contractors, and subcontractors employed under this federally assisted project must comply with the FLSA.
Professional Services – 29 CFR § 213 exempts employees in a bona fide executive, administrative or professional capacity. Because professional firms employ individuals that are not covered by this exemption, the agreement with a professional services firm must include the FLSA provision.
REQUIREMENT -
The provisions of 29 CFR part 201, the Federal Fair Labor Standards Act (FLSA), are incorporated by reference with the same force and effect as if given in full text. The FLSA sets minimum wage, overtime pay, recordkeeping, and child labor standards for full and part -time workers.
The Contractor has full responsibility to monitor compliance to the referenced statute or regulation. The Contractor must address any claims or disputes that arise from this requirement directly with the U.S. Department of Labor – Wage and Hour Division.
Reference: 29 USC § 201, et seq; 2 CFR § 200.430
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FAA – 18 Lobbying and Influencing Federal Employees
APPLICABILITY- all contracts exceeding $100,000.
REQUIREMENT -
Consultants and contractors that apply or bid for an award of $100,000 or more must have certified that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency , a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or another award covered by 31 USC §1352. Each tier must also disclose any lobbying with non -Federal funds that takes place in connection with obtaining any Federal award.
For an award over $100,00, the bidder or offeror certifies by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
• No Federal appropriated funds have been paid or will be paid, by or on behalf of the bidder or offeror, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. • If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
• The undersigned shall require that the language of this certification be included in the award documents for all sub- awards at all tiers (including subcontracts, sub -grants, and contracts under grants, loans, and cooperative agreements) and that all sub- recipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
Reference: 31 USC § 1352 – Byrd Anti-Lobbying Amendment, 2 CFR part 200, Appendix II(I), 49 CFR part 20, Appendix A
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FAA – 19 Prohibition of Segregated Facilities
APPLICABILITY - The Contractor must comply with the requirements of the EEO clause by ensuring that facilities they provide for employees are free of segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. This clause must be included in all contracts that include the equal opportunity clause, regardless of the amount of the contract.
Contract Types – any contract containing the Equal Employment Opportunity clause of 41 CFR § 60-1.4. This obligation flows down to 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 nois e monitoring equipment.
Property/Land – Land acquisition contracts that include tasks that qualify as construction work as defined by 41 CFR part 60- 1. Examples include demolition of structures or installation of boundary fencing.
REQUIREMENT -
(a) The Contractor agrees that it does not and will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it does not and will not permit its employees to perform their services at any location under its control where segregated facilities are maintained. The Contractor agrees that a breach of this clause is a violation of the Equal Employment Opportunity clause in this contract. (b) “Segregated facilities,” as used in this clause, means any waiting rooms, work areas, 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 Item 1O - Page 63
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FAA – 20 Occupational Safety and Health Act
APPLICABILITY – Contract Types – All contracts and subcontracts must comply with the Occupational Safety and Health Act of 1970 (OSH). The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) oversees the workplace health and safety standards wage provisions from OSH.
REQUIREMENT -
All contracts and subcontracts that result from this solicitation incorporate by 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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FAA – 21 Procurement of Recovered Materials
APPLICABILITY – Contract Types – This provisi on applies to any contracts that include procurement of products designated in subpart B of 40 CFR part 247 where the purchase price of the item exceeds $10,000 or the value of the quantity acquired by the preceding fiscal year exceeded $10,000.
Construction and Equipment – all construction and equipment projects.
Professional Services and Property – if the agreement includes procurement of a product that exceeds $10,000.
REQUIREMENT -
Contractor and subcontractor agree to comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, and the regulatory provisions of 40 CFR Part 247. In the performance of this contract and to the extent practicable, the Contractor and subcontractors are to use products containing the highest percentage of recovered materials for items designated by the Environmental Protection Agency (EPA) under 40 CFR Part 247 whenever:
1) The contract requires procurement of $10,000 or more of a designated item during the fiscal year; or
2) The contractor has procured $10,000 or more of a designated item using Federal funding during the previous fiscal year.
The list of EPA -designated items is available at www.epa.gov/smm/comprehensive - procurement-guidelines-construction-products.
Section 6002(c) establishes exceptions to the preference for recovery of EPA -designated products if the contractor can demonstrate the item is:
a) Not reasonably available within a timeframe providing for compliance with the contract performance schedule;
b) Fails to meet reasonable contract performance requirements; or c) Is only available at an unreasonable price.
Reference: 2 CFR § 200.323, 2 CFR Part 200, Appendix II (J); 40 CFR part 247, 42 USC § 6901, et seq (Resource Conservation and Recovery Act)
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FAA – 22 Rights to Inventions
APPLICABILITY – Contract Types – This provision applies to all contracts and subcontracts with small business firms or nonprofit organizations that include performance of experimental, developmental, or research work. This clause is not applicable to construction, equipment, or professional service contracts unless the contract includes experimental, developmental, or research work.
REQUIREMENT -
Contracts or agreements that include the performance of experimental, developmental, or research work must provide for the rights of the Federal Government and the City in any resulting invention as established by 37 CFR part 401, Rights to Inventions Made by Non- profit Organizations and Small Business Firms under Government Grants, Contracts, and Cooperative Agreements. This contract incorporates by reference the patent and inventions rights as specified within 37 CFR §401.14. Contractor must include this requirement in all sub- tier contracts involving experimental, developmental, or research work.
Reference: 2 CFR § 200, Appendix II(F), 37 CFR 401
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FAA - 23 Seismic Safety
APPLICABILITY – Contract Types – This provision applies to construction of new bui ldings and additions to existing buildings financed in whole or in part through the Airport Improvement Program.
Professional Services– any contract involved in the construction of new buildings or structural addition to existing buildings.
Construction – any contract involved in the construction of new buildings or structural addition to existing buildings.
Equipment – if the project involves construction or structural addition to a building such as an electrical vault project to accommodate or install equipment.
Land – This provision will not typically apply to a property/land project.
REQUIREMENT -
A23.3.1 Professional Service Agreements for Design
SEISMIC SAFETY
In the performance of design services, the Consultant agrees to furnish a building design and associated construction specification that conform to a building code standard that provides a level of seismic safety substantially equivalent to standards as established by the National Earthquake Hazards Reduction Program (NEHRP). Local building codes that model their building code after the current version of the International Building Code (IBC) meet the NEHRP equivalency level for seismic safety. At the conclusion of the design services, the Consultant agrees to furnish the Owner a “certification of compliance” that attests conformance of the building design and the construction specifications with the seismic standards of NEHRP or an equivalent building code.
A23.3.2 Construction Contracts
SEISMIC SAFETY
The Contractor agrees to ensure that all work performed under this contract, including work performed by subcontractors, conforms to a building code standard that provides a level of seismic safety substantially equivalent to standards established by the National Earthquake Hazards Reduction Program (NEHRP). Local building codes that model their code after the current version of the International Building Code (IBC) meet the NEHRP equivalency level for seismic safety.
Reference: 49 CFR Part 41
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FAA – 24 Tax Delinquency and Felony Conviction
APPLICABILITY – This provision applies to all contracts funded in whole or part with AIP.
REQUIREMENT -
The Contractor must have certified under the procurement process that resulted in the award of this contract that:
• Contractor has not been convicted of a Federal felony within the last 24 months; or • Contractor does not have any outstanding tax liability for which all judicial and administrative remedies have lapsed or been exhausted.
Reference: Sections 8113 of the Consolidated Appropriations Act, 2022 (Public Law 117-103), and similar provisions in subsequent appropriations acts.
DOT Order 4200.6 – Appropriations Act Requirements for Procurement and Non-Procurement Regarding Tax Delinquency and Felony Convictions
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FAA – 25 Termination of Contract
APPLICABILITY – All contracts and subcontracts in excess of $10,000.
REQUIREMENT -
See Section 4.5 of the Agreement.
Reference: 2 CFR § 200 Appendix II(B), FAA Advisory Circular 150/5370-10, Section 80-09 Item 1O - Page 69
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FAA – 26 Foreign Trade Restriction
APPLICABILITY – all AIP funded projects.
REQUIREMENT -
TRADE RESTRICTION CERTIFICATION
By accepting this contract the Contractor certifies the following statements are true – 1) is not owned or controlled by one or more citizens of a foreign country included in the list of countries that discriminate against U.S. firms as published by the Office of the United States Trade Representative (USTR);
2) has not knowingly entered into any contract or subcontract for this project with a person that is a citizen or national of a foreign country included on the list of countries that discriminate against U.S. firms as published by the USTR; and 3) has not entered into any subcontract for any product to be used on the Federal project that is produced in a foreign country included on the list of countries that discriminate against U.S. firms published by the USTR.
This certification concerns a matter within the jurisdiction of an agency of the United States of America and the making of a false, fictitious, or fraudulent certification may render the maker subject to prosecution under Title 18 USC Section 1001.
The Contractor must provide immediate written notice to the City if the Contractor learns that its certification or that of a subcontractor was erroneous when submitted or has become erroneous by reason of changed circumstances. The Contractor must require subcontractors provide immediate written notice to the Contractor if at any time it learns that its certification was erroneous by reason of changed circumstances.
Unless the restrictions of this clause are waived by the Secretary of Transportation in accordance with 49 CFR 30.17, no contract shall be awarded to an Offeror or subcontractor:
1) who is owned or controlled by one or more citizens or nationals of a foreign country included on the list of countries that discriminate against U.S. firms published by the USTR or
2) whose subcontractors are owned or controlled by one or more citizens or nationals of a foreign country on such USTR list or
3) who incorporates in the public works project any product of a foreign country on such USTR list.
Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by this provision. The knowledge and information of a contractor is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
The Contractor agrees it will incorporate this provision for certification without modification in all lower tier subcontracts. The Contractor may rely on the certification of a prospective subcontractor that it is not a firm from a foreign country included on the list of countries that Item 1O - Page 70
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discriminate against U.S. firms as published by USTR, unless the Contractor has knowledge that the certification is erroneous.
This certification is a material representation of fact upon which reliance was placed when making an award. If it is later determined that the Contractor or subcontractor knowingly rendered an erroneous certification, the Federal Aviation Administration (FAA) may direct through the City cancellation of the contract or subcontract for default at no cost to the City or the FAA.
Reference: 49 USC § 50104, 49 CFR part 30
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FAA – 27 Veteran’s Preference
APPLICABILITY – This provision applies to all AIP funded projects that involve labor to carry out the project. This preference, which excludes executive, administrative, and supervisory positions, applies to covered veterans [as defined under § 47112(c)] only when they are readily available and qualified to accomplish the work required by the project.
REQUIREMENT -
In the employment of labor (excluding executive, administrative, and supervisory positions), the Contractor and all sub- tier contractors must give preference to covered veterans as defined within Title 49 United States Code Section 47112. Covered veterans include Vietnam -era veterans, Persian Gulf veterans, Afghanistan -Iraq war veterans, disabled veterans, and small business concerns (as defined by 15 USC 632) owned and controlled by disabled veterans.
This preference only applies when there are covered veterans readily available and qualified to perform the work to which the employment relates.
Reference: 49 USC § 47112(c)
Item 1O - Page 72
Revised 2.8.23
FAA – 28 Domestic Preferences for Procurements
APPLICABILITY – all contracts and Purchase orders for work or products under the grant.
REQUIREMENT -
The Contractor certifies by signing and submitting its bid or proposal that, to the greatest extent practicable, the Contractor has provided a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including, but not limited to, iron, aluminum, steel, cement, and other manufactured products) in compliance with 2 CFR § 200.322.
Reference: 2 CFR § 200.322; 2 CFR Part 200, Appendix II(L) Item 1O - Page 73
ATTACHMENT B
PUBLIC INTEGRITY BUSINESS DISCLOSURE
Item 1O - Page 74
Item 1O - Page 75
Item 1O - Page 76
CITY COUNCIL STAFF REPORT
05/11/2023
SUBJECT:
ACCEPT A GRANT AWARD FROM THE CALIFORNIA PUBLIC UTILITIES COMMISSION IN THE AMOUNT OF $80,546 FOR BROADBAND ADOPTION
SERVICES AT THE PALM SPRINGS PUBLIC LIBRARY
RECOMMENDATION:
Accept a grant award from the California Public Utilities Commission in the amount of $80,546 for broadband adoption services at the Palm Springs Public Library.
1. Attachments
Item 1P
CITY COUNCIL STAFF REPORT
D
ATE: MAY 11, 2023 CONSENT CALENDAR
SU
BJECT: ACCEPT A GRANT AWARD FROM THE CALIFORNIA PUBLIC UTILITIES COMMISSION IN THE AMOUNT OF $ 80,546 FOR BROADBAND
ADOPTION SERVICES AT THE PALM SPRINGS PUBLIC LIBRARY
F
ROM: Scott C. Stiles, City Manager
BY: I
nformation Technology Department
SUMMARY:
T
his action will accept a grant award from the California Public Utilities Commission to provide broadband adoption services at the Palm Springs Public Library.
RECOMMENDATION:
1) A
ccept a grant award from the California Public Utilities Commission in the amount of $80,546 for broadband adoption services at the Palm Springs Public Library (Attachment A).
BUSINESS PRINCIPAL DISCLOSURE:
N
ot applicable.
BACKGROUND:
T
he Library offers public computer terminals and wireless Internet access to patrons of the Library who use these computers for a variety of needs, such as job searching, homework help, research, reading and sending emails, printing airline boarding passes, and watching videos for educational or entertainment purposes. Computing tas ks such as resume writing, letter writing, and any other general computing needs are available at no charge to the patrons, except for printing services. There are 29 computers available for adults, four computers for teens, and four for children.
T
he public computer area was created from a space that was designed in the 1970s for research and reference materials. The computer furniture and configuration were created at least 20 years ago when personal computing and the Internet became viable for public use. Built -in countertops and freestanding tables were installed to match existing Item 1P - Page 1
City Council Staff Report
May 11, 2023-- Page 2
Accept CPUC Grant
electrical and data cable port access. Modern c omputers can now access our network through Wi-Fi so they can be reorganized to improve the layout and social distancing.
STAFF ANALYSIS:
Staff worked with the City’s grant consultant to identify opportunities to improve the patron environment in the Library and identified the California Advanced Services Fund (CASF) Broadband Adoption Grant. The CASF grant is designed to increase publicly available or after-school broadband access.
Staff designed a solution that would update the existing environment at the Library to provide an enhanced experience for patrons by partially reconfiguring the adult computer stations. The upgrades include new furniture, wireless connectivity, and funding for fifteen new public Internet computers. Staff worked with vendor partners to obtain quotes for the relevant furniture, computers, and networking equipment.
After receiving the quotes, staff worked with the grant consultant to apply for the Broadband Adoption Grant on January 3, 2023. On April 3, 2023, the City was awarded a grant in the amount of $80, 546. The grant requires matching funding in the amount of $13,581 which staff has already budgeted in the current fiscal year for computer replacement expenses.
Staff is recommending acceptance of grant funds in the amount of $80,546.
ENVIRONMENTAL ASSESSMENT
:
The requested City Council action is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The requested action is to approve contracts for t he above- mentioned services, and is exempt from CEQA pursuant to Section 15378(b), in that a “Project” does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
ALIGNMENT WITH STRATEGIC PLANNING:
The requested action aligns with the City Council Priority 3A – Improve City Facilities.
FISCAL IMPACT
:
Sufficient funds to satisfy the grant matching requirements are budgeted and available in the current fiscal year in Information Technology Department Account 1001025 40105.
Item 1P - Page 2
City Council Staff Report
May 11, 2023-- Page 3
Accept CPUC Grant
REVIEWED BY:
Department Director: Larry Klingaman
Procurement & Contracting Manager: Kim Baker
Deputy City Manager: Jeremy Hammond
City Manager: Scott Stiles
ATTACHMENTS:
A. Grant Award
Item 1P - Page 3
ATTACHMENT A
Item 1P - Page 4
April 3, 2023
Larry Klingaman
[email protected]
City of Palm Springs
3200 E Tahquitz Canyon Way
Palm Springs, CA 92262
SUBJECT: CASF ADOPTION ACCOUNT GRANT AWARD FOR BROADBAND ACCESS
This letter serves to inform you that the California Public Utilities Commission (CPUC) C
ommunications Division (CD) approves California Advanced Services Fund (CASF) Broadband Adoption Account (Adoption Account) grant funding to City of Palm Springs of up to $80,546 for the Palm Springs Public Library BA project (award number 22ADT086).
Budget: Grant funding is approved for this project as described below.
Requirements
The grant award is predicated on City of Palm Springs’s commitment to provide adoption services as expressed in its application and consistent with the Ministerial Review criteria that City of Palm Springs agreed and/or attested to in its application which includes meeting all
1 This includes items and activities listed in the grantees’ application and eligible for reimbursement per Decision (D.) 22-05-029, Adoption Account Guidelines. (See website - https://www.cpuc.ca.gov/industries-and- topics/internet-and-phone/california-advanced-services-fund/casf-adoption-account).
CASF Broadband Adoption Grant Funding
Category Approved Grant
In-Classroom Computing Devices $10,750
Hotspots $0
General Program Implementation1 $69,796
Total Grant Award $80,546
Funding per participant (exclusive of in-person and take- home computer or hot spot funding, if applicable)
$25.85
Item 1P - Page 5
milestones and goals for each project(s) as well as fulfilling the requirements per D.22-05-029.
Key requirements include, among others:
• Grantee will provide free broadband access as described in its application. • Grantee has identified a designated space for broadband access or provided detailed information on how such a space will be obtained.
• Grantee has at least one year’s experience conducting broadband access projects or has completed at least one broadband access project.
• Grantee must provide technical support, either by phone or in person, within 24 hours. • Grantee agrees that reimbursement for computing devices used in community training rooms or other public space is capped at $11,250 and limited to $750 per device. • Grantee must make broadband access available within six months of being selected for a CASF grant.
• Grantee agrees that the project costs $42 per participant or less.
• Grantee must complete the project within a 24-month timeframe or earlier.
City of Palm Springs must provide broadband access to 2,700 participants and aspires to subscribe 0 participants to broadband internet services.
Reporting
The grant award is also contingent upon fulfilling the reporting requirements per D.22-05-029, Appendix 2. These reports include a Ramp-up period report (if applicable), a Year 1 Progress Report and a Year 2 Completion Report. If applicable, City of Palm Springs must fulfill the monthly reporting requirements set forth in Public Utilities Code, § 281(l)(1) if it is using a licensed contractor or subcontractor to undertake a contract or subcontract in excess of twenty-five thousand dollars ($25,000) to perform work on the project funded or financed by CASF. Reporting templates are available in the Administrative Manual posted on the Adoption Account website.
City of Palm Springs must maintain files, invoices, and other related documentation for three years after final payment. City of Palm Springs shall make these records available to the CPUC upon request and agree that these records are subject to audit and review by the CPUC at any time within three years after City of Palm Springs has incurred the expense being audited to ensure that CASF funds are spent in accordance with the terms of approval the CPUC grants.
Payment
All reimbursements are contingent upon City of Palm Springs fulfilling its obligation to provide digital literacy training as described in its application. City of Palm Springs may Item 1P - Page 6
submit up to three payment requests throughout the project period. Payment requests may accompany the Ramp-up or Year 1 reports or be submitted separately; Year 2 Completion Report must be submitted with a final payment request. Payment will be based upon receipt and approval of invoices and other supporting documents showing that expenditures incurred for the project are in accordance with their approved application and budget. Ramp-up period payment requests may not exceed 25% of grant amount and no more than 90% of the grant amount will be reimbursed before the completion report and final payment request.
Completion Reports must be submitted no later than three months post project completion.
Payment request templates are available in the Administrative Manual posted on the Adoption Account website.
Execution and Performance
City of Palm Springs must begin the project within six months from the date that City of Palm Springs accepted the terms stated in the award letter and must complete the project within 24-months. City of Palm Springs must complete all performance under the award on or before the termination date of the award.
By receiving a CASF grant, City of Palm Springs agrees to comply with the terms, conditions, and requirements of the grant award, and submit to the jurisdiction of the CPUC regarding disbursement and administration of the grant and the CPUC’s enforcement authority under Pub. Util. Code, §§ 2108 and 2111. City of Palm Springs must notify the Director of Communications Division as soon as it becomes aware that they may not be able to meet project deadlines. The CPUC may withhold, reduce or terminate grant payments if City of Palm Springs does not comply with any of the requirements set forth in its application and compliance with the CASF. In the event City of Palm Springs fails to complete the project in accordance with the terms of the approval granted by the CPUC as set forth in D. 22-05-029
and this award letter, City of Palm Springs must reimburse some or all the CASF funds it has received.
City of Palm Springs must notify CD regarding modifications to budget line items or milestone/activity timelines set forth in D.22-05-029, Appendix 2, Section XV. City of Palm Springs must also report any material changes in the entries for the application, by letter to the California Public Utilities Commission, Director of the Communications Division, 505 Van Ness Avenue, San Francisco, CA 94102 and [email protected].
Award Acceptance
Grantees must sign the Consent Form (Attachment 1) and the Payee Record Form (Attachment 2) and email both within 30 days from the date of this award letter to Item 1P - Page 7
[email protected]. If City of Palm Springs does not submit the Consent Form within 30 calendar days from the date of the award, the CPUC will deem the Grant or award to be null and void.
If you have any questions, please contact [email protected].
Sincerely,
/s/ Robert Osborn
Robert Osborn, Director
Communications Division
Item 1P - Page 8
ATTACHMENT 1
Consent Form and Acknowledgement and Acceptance of the
California Advanced Services Fund Broadband Adoption Grant Award
Name of Grantee: _______________________________________________
Grantee identified above hereby acknowledges receipt of the letter approving the California Advanced Services Fund Broadband Adoption Grant for the Palm Springs Public Library BA project (award number 22ADT086). The grantee agrees to comply with all grant terms, conditions, and requirements set forth in the letter dated April 3, 2023, as well as all CASF rules, including those in the Broadband Adoption Account Requirements, Guidelines and Application Materials. Grantee also agrees to fulfill the goals it identified in the application and agrees that all payment requests will be subject to meeting those goals.
Undersigned representative of ____________________________________ [Name of Grantee] is duly authorized to execute this Agreement Form on behalf of the Grantee and to bind the Grantee to the terms, conditions, and requirements set forth by the California Public Utilities Commission in the letter referenced above.
Dated this _____ day of __________, 20___.
Signature _______________________
Printed Name_______________________
Title _______________________________
Organization or Name of Company ______________________________
Business Address (include street address, suite/apt. number, city, state, and ZIP Code)
______________________________________________________________________________
Item 1P - Page 9
ATTACHMENT 2
Payee Record Form
Item 1P - Page 10
CITY COUNCIL STAFF REPORT
05/11/2023
SUBJECT:
APPROVE COOPERATIVE AGREEMENT WITH CODE 3 TECHNOLOGY FOR THE
PURCHASE, INSTALLATION AND EXTENDED WARRANTY COVERAGE OF
GETAC MOBILE COMPUTERS FOR THE POLICE AND FIRE DEPARTMENTS RECOMMENDATION:
Approve Contract Service Agreement 23C105 with Code 3 Technology for the purchase, installation, and extended warranty coverage of ruggedized Getac computers for use by the Police and Fire Departments, in an amount not to exceed $590,508.35.
1. Authorize the City Manager or their designee to execute all necessary documents.
2. Attachments
Item 1Q
CITY COUNCIL STAFF REPORT
D
ATE: MAY 11, 2023 CONSENT CALENDAR
SU
BJECT: A PPROVE COOPERATIVE AGREEMENT WITH CODE 3 TECHNOLOGY
FOR THE PURCHAS E, INSTALLATION AND EXTENDED WARRANTY
COVERAGE OF GETAC MOBILE COMPUTERS FOR THE POLICE AND
FIRE DEPARTMENTS
F
ROM: Scott C. Stiles, City Manager
BY: P
olice Department
Fire Department
SUMMARY:
Thi
s action will approve a cooperative 5-year agreement with Code 3 Technology in an amount not to exceed $590,508.35 for the purchase, installation, and extended warranty coverage of ruggedized mobile computers for use by the Police and Fire Departments.
RECOMMENDATION:
1. Approve Contract Service Agreement 23C105 ( Attachment A ) with Code 3 Technology for the purchase, installation, and extended warranty coverage of ruggedized Getac computers for use by the Police and Fire Departments , in an amount not to exceed $590,508.35; and
2. Authorize the City Manager or their designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
A
ccording to the Public Integrity Disclosure form ( Attachment B) submitted on April 12, 2022, Code 3 Technology is an Arizona based Limited Liability Company owned by Clay Jeppsen.
BACKGROUND:
P
olice Department employees working in a patrol, administrative or investigative function use laptops or tablets on a routine basis as part of their job function. Using these computers, officers can communicate directly with the Dispatch Center , access a wide variety of databases, upload photographic evidence, and draft and submit crime reports.
Item 1Q - Page 1
City Council Staff Report
May 11, 2023 -- Page 2
Getac Agreement
The computers used by patrol staff are affixed to a docking station installed in a vehicle , providing officers with access to the information and tools they need to effectively respond to and document incidents while remaining available for additional calls for service.
Like the Police Department, the Fire Department uses computers to receive and document incident details . The computers are equipped with response information, incident mapping, navigation, hydrant display, preplans, and live automated vehicle locator (AVL), ensuring efficient City-wide responses with minimal delays.
The mobile computers currently being used by the Police and Fire Departments operate with antiquated technology and are reaching end of life. Both Departments need to replace existing equipment. The Police Department has identified the Getac K120 tablet as the device that would best suit their needs. The Fire Department has identified the Getac A140 tablet as the best solution for their mobile computer needs. Both t he Getac K120 and A140 table ts are easy to deploy and manage and are cost-effective, as they require no external components. The Information Technology Department can remotely maintain and update the K120 and A140 tablets, streamlining management of the devices. Both Getac models have been designed to withstand the harsh desert conditions and the rigorous demands of use in public safety environments.
STAFF ANALYSIS:
Pursuant to the provisions of the Procurement Ordinance, section 7.09.010, the City Council may authorize the acquisition of computer equipment, installation and warranty through a joint powers or other cooperative purchasing program. Further, the pricing available through the cooperative purchasing power of this contract is likely less than what the City can obtain independently with its own bid solicitation.
The City’s Procurement and Contracting Manager reviewed Sourcewell Cooperative Contract #090122 and confirmed the quotes supplied by Code 3 Technology for the purchase Getac products are compliant.
The Police Department has identified a need for seventy -five (75) mobile computers for its sworn and civilian law enforcement personnel including Community Service and Animal Control Officers. Seventy ( 70) computer docking stations will be installed in marked and unmarked police vehicles. The Fire Department has identified a need for 8 mobile computers, with 7 installed in fire apparatus. The purchase and associated installation of Getac K120 and A140 tablets will ensure both the Police and Fire Departments are able to effectively respond to and manage a wide variety of public safety incidents.
Staff recommends approval of Contract Services Agreement No. 23C105 with Code 3 Technology for a 5-year term in the amount not to exceed $590,508.35 beginning on the issuance of a notice to proceed.
Item 1Q - Page 2
City Council Staff Report
May 11, 2023 -- Page 3
Getac Agreement
ENVIRONMENTAL ASSESSMENT:
The requested City Council action is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The requested action is to approve contracts for the above- mentioned services, and is exempt from CEQA pursuant to Section 15378(b), in that a “Project” does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
FISCAL IMPACT
:
Approval of this action will appropriate $590,508.35 in the Fiscal Year 2023- 24 budget from the General Fund to Police Department Other Equipment Account No. 1 005000- 60015.
REVIEWED BY:
Department Director: Andrew G. Mills
Department Director: Paul Alvarado
Procurement and Contracting Manager: Kim Baker
City Manager: Scott Stiles
ATTACHMENTS:
A. Agreement 23C105
B. Public Integrity Disclosure – Code 3 Technology
Item 1Q - Page 3
ATTACHMENT "A"
Item 1Q - Page 4
4.13.2023
COOPERATIVE PURCHASE FOR PURCHASE, INSTALLATION AND
EXTENDED WARRANTY COVERAGE OF GETAC MOBILE COMPUTERS
FOR THE POLICE AND FIRE DEPARTMENTS AGREEMENT NO. 23C105 This Cooperative Purchase of Getac Mobile Computers (“Agreement”) is entered into by and between the City of Palm Springs, a California charter city and municipal corporation (“City”) and CODE 3 Technologies, an Arizona Limited Liability Partnership (“Contractor”). City and Contractor are sometimes individually referred to as “Party” or collectively as “Parties” in this Agreement.
1. Background.
a. This Agreement is made and entered into in reference to the competitively solicited Sourcewell Contract No. 090122 with Getac Inc. (“Cooperative Agreement”). b. The City desires to obtain 75 new G etac computers and equipment for emergency vehicles including installation and warranties attached hereto as Attachment “A”, the content of which is incorporated by reference t o this Agreement as if fully set out her in its entirety.
c. Contractor desires to perform said services on the terms and conditions set forth in this Agreement.
2. Term. The term of this Agreement is 5 years beginning on the date provided in the Notice to Proceed for the City’s Procurement and Contracting Department
3. Compensation and Payment. This Agreement is for an amount not to exceed $590,508.35, subject to approved amendments and changes. All pric ing must be in accordance with the attached Quote, as shown as Attachment “B”, the content of which is incorporated by reference into this Agreement as if fully set out here in its entirety.
4. Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City.
5. Insurance. Contractor shall procure and maintain, at it s sole cost and expense, policies of insurance as set forth in the attached Attachment "C", incorporated herein by reference. If no insurance is required Attachment “C” will reflect that there are no requirements.
6. Indemnification. To the fullest extent pe rmitted 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 a nd 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 Item 1Q - Page 5
4.13.2023
officers, employees, representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnificat ion clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.
7. Notice. Any notice required under this Agreement must be given by fax, hand delivery, or certified mail, postage prepaid, and is deemed received on the day faxed, or hand delivered or on the third day after postmark if sent by certified mail. Notice must be sent as follows:
IF TO THE CITY: IF TO THE CONTRACTOR:
City of Palm Springs CODE 3 Technology
Attn: Scott Stiles Attn: Clayton S. Jeppsen
Title: City Manager Title: President
Address: 3200 E. Tahquitz Canyon Way Address: 9588 E. Southern Ave Palm Springs, CA 92262 Mesa, AZ 85209
Phone: 760-323-8299 Phone: 480-8886401
Fax: 760-322-8332
8. Compliance with Law. Contractor shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with this Agreement.
9. Changes. In the event any change or changes in the work is requested by City, Parties shall execute a written amendment to this Agreement, specif ying 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 work not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession.
10. Termination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor. Where termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Contractor shall immediately cease all Services Item 1Q - Page 6
4.13.2023
except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein.
Contractor shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to c orrect Contractor's deficiencies and charge the cost thereof to Contractor, who shall be liable for the full cost of the City's corrective action. Contractor may not terminate this Agreement except for cause, upon 30 days written notice to City.
11. Covenant A gainst 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, n ational 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”). Contr actor 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, Co ntractor 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. 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 Attachment “D” (Russian Sanctions Certification), attached hereto and incorporated herein by reference. Consultant shall also requi re any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section.
13. Entire Agreement. This Agreement, along with the Co operative Agreement constitutes the entire agreement between the parties concerning th e subject matter of this Agreement and supersedes all prior negotiations, arrangements, agreements and understandings, either oral or written between the parties. In the event of conflict or inconsistency between this Agreement and the Cooperative Agreement, this terms and conditions in this Agreement shall prevail.
[Signature Page Follows]
Item 1Q - Page 7
4.13.2023
SIGNATURE PAGE TO COOPERATIVE PURCHASE OF GETAC MOBILE COMPUTERS
AND INSTALLATIONM FOR THE POLICE AND FIRE DEPARTMENTS AGREEMENT NO. 23C105 AGREEMENT BETWEEN THE CITY OF PALM SPRINGS
AND HD SUPPLY FACILITIES MAINTENANCE, LTD.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _____________________________ By: _____________________________ Signature Signature
(2nd signature required for Corporation)
Date: ___________________________ Date: ___________________________
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No. ________
APPROVED AS TO FORM: ATTEST:
By: _____________________________ By: _____________________________ Jeffrey S. Ballinger, Monique Lomeli
City Attorney Interim City Clerk
APPROVED:
By: _____________________________ Date: ____________________________ City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
Item 1Q - Page 8
4.13.2023
ATTACHMENT A
SCOPE OF WORK
Police ha ve identified Seventy-five ( 75) mobile computers for its sworn and civilian law enforcement personnel including Community Service and Animal Control Officers. Seventy (70) computer docking stations will be installed in marked and unmarked police vehicles. The Fire Department has identified a need for 8 mobile computers, with 7 installed in fire apparatus.
Getac K120 an A140 tablets computers used by patrol staff are affixed to a docking station installed in a vehicle , providing Officers and Emergency Responders with access to the information and tools they need to effectively respond to and document incidents while remaining available for additional calls for service. Computers are equipped with response information, incident mapping, navigation, hydrant display, preplans, and live AVL.
Item 1Q - Page 9
4.13.2023
ATTACHMENT B
QUOTE / PRICING
Item 1Q - Page 10
4.13.2023
Item 1Q - Page 11
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ATTACHMENT C
INSURANCE REQUIREMENTS
1. Procurement and Maintenance of Insurance. Consultant shall procure and maintain public liability and property damage insurance against all cla ims fo r inju ries against persons or damag es to proper ty resulting from Consultant’s performance under this Agreeme nt.
Consultant shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of th is Agreement.
Consultant shall also carry workers ’ compensation insuranc e in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insured s by original e ndorsement shall be del ivered to and approved by City prior to commencement of Services. The procuring of such insuran ce and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Consultant’s obligation to indemni fy City, its elected officials, officers, agents, employees, and volunteers.
2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows:
A. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate;
B. Automobile liability i nsurance with limits of at least one million dolla rs ($1,000,000.00) per occurrence;
C. Professional liability (errors and omissions) insurance with limits of at least one million do llars ($1,000,000.00) per occurre nce and two million dollars ($2,000,000) annual aggregate is:
_________ required
_____X____ is not required;
D. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Consultant has no employees, C onsultant shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.
3. Primary Insurance. For any claims related to this Agre ement, Consultant’s insurance coverage sh all be prima ry with respect to the City and its re spective elected officials, officers, employees, agents, and volunteers. Any insurance or self -insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Consultant’s insurance and shall not contribu te with it . For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all right s of subrogation and Item 1Q - Page 12
4.13.2023
contribution it may have against City, its elected off icials, offi cers, employees, agents, and volunteers.
4. Errors and O missions Coverage. If Errors & Omissions Insurance is required, and if Consultant provides claims made professional liability insurance, Consultant shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Consultant’s Services under this Agreement, or (2) t o maintain professional liability insurance coverage with the same carrier in the amoun t required by this Agreement for at least three years after completion of Consultant’s Services under this Agreement. Consultant shall also be required to provide evide nce to City of the purchase of the required tail insurance or continuation of the professional liability policy.
5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City.
6. Verification of Coverage. Consultant shall furnish City with b oth certificates of insurance and endorsements, including additional insure d endorsemen ts, effecting all of the coverages required by this Agreement. Th e certificates and endorsements are to be signed by a person authorized by that insurer to bind coverag e on its behalf. All proof of ins urance is to be received and approved by the City bef ore work commences. City reserves the right to require Consultant’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are no t required for Errors and Omissions and W orkers’ Compensation policies.
Verification of Insurance coverage may be provi ded by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Ins urance Coverage with an appro ved Addition al Insured Endorsement with the following endorsements stated on the certificate:
A. "The City of Palm Springs, its officials, e mployees, and agents are named as an additional insured…” ("as respects C ity 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 issuin g company will mail 30 days writte n notice to the Certificate Holder named. " Language s uch as, “endeavor to” mail and "but fa ilure to mail such notice sh all impos e 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 an d Employers' Liability policies shall contain the insurer's waiver of subrogat ion in fa vor of City, its elected officials, officers, employees, agents, and volunteers.
Item 1Q - Page 13
4.13.2023
In addition to the endorsements listed above, the Ci ty of Palm Springs shall be named t he 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 insura nce must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Consultant’s obligation to provide them.
7. Deductibles and S elf-Insured Retentions . Any deduct ibles or sel f-insured retentions must be declared to and approved by the City prior to commencing any work or Services under this Agreement. At the option of the City, either (1) t he insurer shall reduce or elimina te such deductibles or self-insured retentions with respect to the City, its elec ted officials, officers, employees, agents, and volunteers; or (2) Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administrat ion, and defense expenses. Certificates o f Insurance must include evidence of the amount of any deductible or self-insured retention under the policy. Consultant guarantees payment of all deductibles and self-insured retentions.
8. Severability of Intere sts (S eparation of Insureds) . This insur ance applies separately to each insured against wh om claim is made or suit is brought except with respect to the limits of the insurer’s liability.
Item 1Q - Page 14
4.13.2023
ATTACHMENT D
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 1Q - Page 15
ATTACHMENT "B"
Item 1Q - Page 16
L
1. Name of Entity
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
2. Address of Entity (Principle Place of Business)
3. Local or California Address (ff different than #2)
CA. 9 I �
State where Entity is Registered with Secretary of State
5. Type of Entity
isteted in Califomia? Yes No
0 Corporation O Limited Liability Company O Partnership O Trust O Other (please specify)
6. Officers, Dire ctors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural pe� please identify all officers, directors, members, managers and other fiduciaries for the member, manager; trust or other entity ---=C=--LA_y ___ \.J_c!:_P_P._�_e_r-J _____ □Officer □ Director � Member □ Manag er[name] D General Partner D Limited Partner
□Other ___________ _
________________ □ Officer □ Director □ Member □ Manager (name] 0 General Partner O Limited Partner
□ other ___________ _
---------=---------- D Officer D Director D Member D Manager [name) D General Partner D Limited Partner
□ Other ___________ _
CllY OF PALM SPRINGS- PUBLIC INTEGRllY DISCLOSURE
APPLICANT DISCLOSURE FORM
Scanned with CamScanner
x
Item 1Q - Page 17
Item 1Q - Page 18
CITY COUNCIL STAFF REPORT
05/11/2023
SUBJECT:
A REQUEST BY SELENE PALM SPRINGS, LLC, FOR AN AMENDMENT TO THE
PREVIOUSLY APPROVED FINAL DEVELOPMENT PLANS AND TENTATIVE TRACT MAP FOR THE DREAM HOTEL TO INCLUDE THE ADDITION OF 24 CONDOMINIUM UNITS TO THE SOUTHEAST SECTION OF THE SITE; RECONFIGURATION OF THE 12 CONDOMINIUM UNITS AT THE NORTHWEST AREA OF THE SITE; AND AN INCREASE IN THE NUMBER OF TOWER CONDOMINIUM UNITS FROM 28 TO 29 UNITS AND MODIFICATIONS TO THE
FINAL LANDSCAPE PLANS FOR THE DEVELOPMENT LOCATED AT THE
NORTHWEST CORNER OF AVENIDA CABALLEROS AND AMADO ROAD, ZONE PDD 333, SECTION 14 (CASE 5.1132-PD 333/TTM 35236), AND CONSIDERATION
OF A SETTLEMENT AND DEVELOPMENT AGREEMENT TO FACILITATE THE
COMPLETION OF THE PROJECT
RECOMMENDATION:
Open the public hearing and receive public testimony.1.
Close the public hearing and adopt a Resolution entitled, “A RESOLUTION OF
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA,
APPROVING A PROPOSED AMENDMENT TO THE FINAL DEVELOPMENT
PLANS OF A PREVIOUSLY APPROVED FINAL PDD TO INCLUDE THE ADDITION OF TWENTY-FOUR RESIDENTIAL UNITS; ELIMINATING THE EVENT CENTER AT THE SOUTHEAST SECTION OF THE SITE;
RECONFIGURATION OF TWELVE CONDOMINIUM UNITS AT THE
NORTHWEST SECTION OF THE SITE; AMENDING THE RESIDENTIAL
TOWER BY ADDING ONE MORE UNIT TO INCREASE THE NUMBER OF CONDO UNITS FROM 40 UNITS TO 65 UNITS; AND MINOR MODIFICATIONS
TO THE FINAL LANDSCAPE PLANS OF THE DREAM HOTEL LOCATED AT 450 NORTH CALLE ALVARADO ROAD, ZONE PDD 333, SECTION 14.”
2. Adopt a Resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF PALM SPRINGS, CALIFORNIA, APPROVING THE SETTLEMENT
AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF PALM
SPRINGS AND SELENE PALM SPRINGS LLC RELATED TO THE
DEVELOPMENT OF THE DREAM HOTEL PROJECT.”
3. Approve and authorize the City Manager to execute the Settlement and Development Agreement, attached hereto in substantially final form and subject to minor modifications as approved by the City Manager and City Attorney, and to take all necessary actions to achieve the intent of this Agreement.
4. Attachments
Item 2A Revised 5.10.23
Item 2A Staff Memo
CITY COUNCIL STAFF REPORT
DATE: May 11, 2023 PUBLIC HEARING
SUBJECT: A REQUEST BY SELENE PALM SPRINGS, LLC, FOR AN AMENDMENT
TO THE PREVIOUSLY APPROVED FINAL DEVELOPMENT PLANS
AND TENTATIVE TRACT MAP FOR THE DREAM HOTEL TO INCLUDE
THE ADDITION OF 24 CONDOMINIUM UNITS TO THE SOUTHEAST
SECTION OF THE SITE; RECONFIGURATION OF THE 12
CONDOMINIUM UNITS AT THE NORTHWEST AREA OF THE SITE ;
AND AN INCREASE IN THE NUMBER OF TOWER CONDOMINIUM
UNITS FROM 28 TO 29 UNITS AND MODIFICATIONS TO THE FINAL
LANDSCAPE PLANS FOR THE DEVELOPMENT LOCATED AT THE
NORTHWEST CORNER OF AVENIDA CABALLEROS AND AMADO
ROAD, ZONE PDD 333, SECTION 14 (CASE 5.1132 -PD 333 /TTM 35236), AND CONSIDERATION OF A SETTLEMENT AND
DEVELOPMENT AGREEMENT TO FACILITATE THE COMPLETION OF
THE PROJECT.
FROM: Scott Stiles, City Manager
BY: Department of Planning Services
SUMMARY:
This is a request to amend the previously approved final development plans of the Dream Hotel that was last approved in 2019 by the City Council. The proposed amendment will include the addition of 24 condominium units to the southern portion of the site, an adjustment of the residential tower condominium units increasing from 28 units to 29 units, and reconfiguration of the 12 condominium units at the northeast area of the site. The hotel tower remains unchanged, and the overall size of the project will remain unchanged. Specifically, the proposed amendment will include the following:
• Addition of 24 condominium units at the southeast section of the site and elimination of the farmhouse/event space previously located there. • Reconfiguration of the 12 condominium units at the northwest section of the site and the residential swimming pools.
• Adjustment to the residential tower by increasing the condo units from 28 to 29 units.
These modifications to the Project and the passage of time require the City and Selene to either enter in a 12
th Amendment to the Purchase and Sale Agreement (A6329) or enter into a new agreement to address the development of the project as it is proposed today. As many of the provisions in the Purchase and Sale Agreement have either been Item 2A - Page 1
REVISED City Council Staff Report
May 11, 2023 -- Page 2
Amendments to Final Development Plan for Dream Hotel
complied with or are no longer applicable to the Project, the Parties have negotiated a new Settlement and Development Agreement to govern the ongoing development of the site and the responsibilities of the Parties.
RECOMMENDATION:
1. Open
the public hearing and receive public testimony.
2. Close the public hearing and adopt Resolution No._____, “ A RESOLUTION OF
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS APPROVING A
PROPOSED AMENDMENT TO THE FINAL DEVELOPMENT PLANS OF A
PREVIOUSLY APPROVED FINAL PDD TO INCLUDE THE ADDITION OF TWENTY-FOUR RESIDENTIAL UNITS; ELIMINATING THE EVENT CENTER AT THE SOUT HEAST SECTION OF THE SITE; RECONFIGURATION OF
TWELVE CONDOMINIUM UNITS AT THE NORTHWEST SECTION OF THE SITE; AMENDING THE RESIDENTIAL TOWER BY ADDING ONE MORE UNIT TO INCREASE THE NUMBER OF CONDO UNITS FROM 40 UNITS TO 65 UNITS; AND MINOR MODIFICATIONS TO THE FINAL LANDSCAPE PLANS OF THE DREAM HOTEL LOCATED AT 450 NORTH CALLE ALVARADO
ROAD, ZONE PDD 333, SECTION 14.”
3. Adopt Resolution No.____, “ A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF PALM SPRINGS, CALIFORNIA, APPROVING THE SETTLEMENT
AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF PALM
SPRINGS AND SELENE PALM SPRINGS LLC RELATED TO THE
DEVELOPMENT OF THE DREAM HOTEL PROJECT.”
4. Approve and authorize the City Manager to execute the Settlement and Development Agreement, attached hereto in substantially final form and subject to minor modifications as approved by the City Manager and City Attorney, and to take all necessary actions to achieve the intent of this Agreement.
BUSINESS PRINCIPAL DISCLOSURE:
The s
ubject property is owned by Selene Palm Springs, LLC, a California Limited Liability Company. The completed Public Integrity Disclosure Form, as required by Section 2.60.050 of the Municipal Code, is included as an attachment to this report.
BACKGROUND:
On J
uly 18, 2007, the City Council approved a Planned Development District (PD 333) and Tentative Tract Map 35236 to facilitate a 200-room hotel and 143-unit condominium development on the subject site. The property is L- shaped and is bounded on three sides by City streets: Avenida Caballeros on the east, Amado Road on the south, and Calle Alvarado on the west. The northern portion of the L- shaped parcel is bounded by Item 2A - Page 2
REVISED City Council Staff Report
May 11, 2023 -- Page 3
Amendments to Final Development Plan for Dream Hotel
undeveloped land and on the east by existing residential development. The subject site is within the Section 14 Specific Plan Area.
The project has been amended on two occasions in 2017 and again on July 10, 2019, when the City Council approved amendments that resulted in a planned 156-room hotel, 40 residential units, and associated parking on the 7.8 acres of land. The current request proposes further changes to the residential component by adding twenty -four (24) condominium units to the southeast portion of the site. To make space for the condominium units, the event space will be relocated and incorporated within various areas throughout the site and hotel. The amended project will also include the reconfiguration of the twelve (12) condominium units located at the northwest section of the site. Finally, there will be minor adjustment to the residential tower by increasing the number of condominium units from 28 to 29 units. In total, the proposed amendment will increase the number of residential units from 40 to 65 units while the hotel units will remain unchanged at 156. The proposed changes to the southeast section of the site will require minor modifications to the landscape design and changes to the architectural character of the space. The project remains as an urban resort with indoor and outdoor event spaces, residential use, a restaurant, and swimming pools.
Comparisons between Current Approval and Proposed Amendment Project Data Existing PDD 333 Proposed Amendment
Hotel Units 156 156
North Residential Units (North Villas) 12 Condo Units 12 Condo Units South Residential Units (South Villas) Event Space 24 Condo Units Condominium Units at Hotel Tower 28 Units 29 Units
Total Hotel Rooms & Condo Units 196 221
Development
Standard
2019 Approved
Project
Proposed PD-333
Amendment
Approved by
Planning
Commission
Coverage 38% 41% 41%
Residential/Tower
Units 64,000 square feet No Change No Change
Hotel Tower Height 46 feet / 4 stories No Change No Change Condo Tower Height 56 feet / 5 stories No Change No Change 5 Condo Bldgs Up to 37.9 feet / 3
stories 52 feet / 5 stories 46.2 feet / 4
stories
Farmhouse/Event
Space 24 feet / 2 stories 44 feet / 4 stories 38.2 feet / 3 stories
Hotel Units 156 No Change No Change
Residential/Condo
Units 40 65 65
Total Parking Spaces 289 327 327
Common Open Space 61.7% excluding
patios & balconies 59.8% 59.8%
Item 2A - Page 3
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REVISED City Council Staff Report
May 11, 2023 -- Page 4
Amendments to Final Development Plan for Dream Hotel
Related Relevant City Actions
07/18/07
The City Council approved a Planned Development District (PDD 333) for a 200-room hotel, a 143-unit condominium development and Tentative Tract Map 35236.
06/07/17
The City Council approved an amended project consisting of 170 - room hotel, 35 residential units and associated parking on an undeveloped 7.8-acre parcel of land.
07/10/19
The City Council approved an amended project to reconfigure portions of the site plan, increasing number of condo units from 35 to 40 units and decreasing hotel units from 170 to 156 units. 09/28/22
The Planning Commission voted to recommend approval of the proposed amendment, as revised, by the City Council with an additional c ondition requiring additional landscape screening along the property line shared with Center Court Condominiums. 10/05/22
The City Council voted unanimously to continue the hearing to a date certain of February 21, 2023, to allow the Purchase and Sale Agreement by and between the City of Palm Springs and Selene Palm Springs, LLC, to be considered at the same hearing.
STAFF ANALYSIS:
The proposed amended project remains largely consistent with what has been previously entitled. The most notable change in the current request is the elimination of the event center/farmhouse located at the southeast area of the site. The event center/farmhouse will be replaced by residential structures known as the South Villas , and the applicant indicates that other spaces within the hotel and amenity areas will be able to accommodate event spaces . The additional 24-unit condominium complex will be three stories with a maximum height of 38.2 feet which is taller than the event space which had been proposed at two (2) stories/24 feet, however a prior amendment had allowed a 50-unit residential structure with a maximum height of 50 feet at the same location. The South Villas will have a dedicated swimming pool, a clubhouse with a kitchen and rooftop deck for the units.
The residential section to the north formerly known as “The Plateau” will be redesigned to include individual parking garages with access to each unit by an elevator and will now be known as the North Villas. The unit count remains the same at twelve (12) units but will now be four (4) stories with a maximum height of 46.2 feet as opposed to three (3) stories and 37.9 feet high as previously approved. Additionally, an 8-foot landscape hedge will be planted along the perimeter with Center Court, which was a condition added by the Planning Commission in response to concerns from those residents.
The main hotel building will stay the same while a minor interior change to the residential tower will increase the number of units by one for a total of 29 units in that location. The amended project will require minor changes to the development standards of the PDD that are largely consistent with th e previous approval and complies with the requirements of Section 14 Specific Plan design requirements. If approved by the City Council, the revised plans will be reviewed by the Architectural Review Committee (ARC) for final approval of the architectural and landscape details.
Item 2A - Page 4
REVISED City Council Staff Report
May 11, 2023 -- Page 5
Amendments to Final Development Plan for Dream Hotel
2019 AMENDED PROJECT
2022 PROPOSED AMENDED SITE PLAN
Location of 5
Residential Buildings
Farmhouse/
Event Space
Reconfigured 12
Condo Units
Proposed 24
Condominium Units
Item 2A - Page 5
CENTER COURT CLUB
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REVISED City Council Staff Report
May 11, 2023 -- Page 6
Amendments to Final Development Plan for Dream Hotel
In terms of the use of the condominium units, the applicant is proposing the following:
• 29 condominium units – Hotel Tower: Short-term rental eligible. • 12 condominium units – North Villas: Not short-term rental eligible. • 24 condominium units – South Villas: Not short-term rental eligible.
FINDINGS – PLANNED DEVELOPMENT DISTRICT 5.1132 – PDD 333:
Section 94.03.00(E) of the Palm Springs Zoning Code (PSZC) requires that seven findings be made relative approval of the Development Plans. Staff’s analysis of the of the request against the seven conditions is provided below.
Criteria and Findings PSZC 94.03.00(E)
1. The uses, density and intensity of the proposed preliminary development plan is in conformance to the general plan land use designation for the site; The proposed amendment to Planned Development District 333 is consistent with the High -Density Residential designation of the General Plan and the Section 14 Specific Plan designation of High Residential , as amended. The addition of 24 condo units to the southeast section of the site, and the addition of one more unit to the residential tower brings the overall residential units at the development to 65 units and t he total number of hotel rooms remains at 156 which is consistent with the General Plan and Section 14 Specific Plan.
2. The uses permitted under the proposed development plan are in conformance to the requirements listed in Section 94.03.00(D)(1), and are not detrimental to adjacent properties or residents;
The amended project consists of a hotel, residential and restaurant uses which are consistent with the originally approved project, as well as the General Plan and Section 14 Specific Plan. The 7.8- acre site is physically suitable and appropriate for the amended project. Given the proximity of the site to the Convention Center and the downtown area, the addition of residential uses will not be detrimental to adjacent properties or residents. The location provides sufficient access points for all uses proposed.
3. The preliminary development plan is in conformance to the property development standards listed in Section 94.03.00(D)(2); The proposed amendments are relative to site reconfiguration and the elimination of the event center/farmhouse to be replaced with condominium buildings. The proposed residential buildings comply with the development standards of PDD 333 in terms of density, setbacks, and height limitations. The project is below the maximum 100- foot height permitted by the Section 14 Specific Plan. The project is also in compliance with parking requirements as listed in Section 93.06.00 of the Zoning Ordinance.
Item 2A - Page 6
REVISED City Council Staff Report
May 11, 2023 -- Page 7
Amendments to Final Development Plan for Dream Hotel
4. The site is adequate in size and shape to accommodate the density and/or intensity of the proposed development;
The project site is 7.8 acres and large enough to accommodate the hotel development and the residential uses. The Amended Planned Development District made modifications to the development while maintaining the original intent and purpose envisioned for th e site. All development standards such as setbacks, sidewalks, walls, and fences are consistent with the development standards established by PDD 333 and more specifically, the Section 14 Specific Plan.
5. The site for the proposed preliminary development plan has adequate access to streets and highways properly designed and improved to carry the type and quantity of traffic to be generated by the proposed use, and the design for the site enhances or continues the city’s existing grid in accorda nce with the
Circulation Plan of the City of Palm Springs General Plan; The project proposes primary vehicular access to existing public streets from North Calle Alvarado. There will be an additional access point from Avenida Caballero for service vehicles only , and an additional Fire access on East Amado Road. The site is also within a walking to distance to the downtown and uptown areas of the city . Traffic and circulation within and around the development were analyzed in the previously adopted Mitigated Negative Declaration and incorporated into the current document. The ad dition of 25 residential units to the project site is consistent with density standards anticipated in Section 14 and will not result in significant traffic impacts.
6. The public benefit provided by the development mitigates any waivers or exceptions requested as part of the preliminary development plan; and This project was originally approved in 2007 prior to the adoption of public benefit policy, and the applicant is not requesting any new relief or deviation from the Code or the previously established development standards with this amendment. The applicant will not be required to provide public benefit to the amended project.
7. That the conditions imposed and shown on the approved preliminary development plan are necessary to protect the public health, safety, and general welfare.
The City Council previously approved conditions for the development which remain valid. Amended conditions from the original entitlement and Mitigation Measures from the adopted Mitigated Negative Declaration will also continue to apply to the amended proj ect. Therefore, it has been determined that all the conditions imposed on the development are deemed necessary to protect the public health, safety, and general welfare.
FINDINGS – TENTATIVE TRACT MAP 35236:
In addition, pursuant to Section 66474 of the Subdivision Map Act, the following findings must be made relative to the proposed map:
Item 2A - Page 7
REVISED City Council Staff Report
May 11, 2023 -- Page 8
Amendments to Final Development Plan for Dream Hotel
Criteria and Findings Section 66474 of the Subdivision Map Act
1. The proposed Tentative Tract Map or Tentative Parcel Map is consistent with all applicable general and specific plans.
The previously approved tentative tract map was for a two-parcel condominium map and three lettered lots for the 7.8- acre parcel. The applicant is now proposing to modify the condominium map that will make a 3- parcel map with three lettered lots (Lots A, B, & C) for street purposes only. The amended map will contain the hotel building in Lot 1; the north villas residential/condominium building will be in Lot 2; and the south villas condominium buildings will be in
Lot 3. In terms of required lot sizes and availability of public infrastructure, the map is consistent with the City’s General Plan and the Section 14 Specific Plan respectively.
2. The design and improvements of the proposed Tentative Tract Map or Tentative Parcel Map is consistent with the zone in which the property is located.
The design of the map is consistent with the allowable uses under the Planned Development District for this property and is consistent with the development standards of the Section 14 Specific Plan. The required public improvements include sanitary sewer, water, gas, and electricity and are consistent with Chapter 4 of the Section 14 Specific Plan.
3. The site is physically suited for this type of development.
As a flat in -fill property, the 7.8-acre site is physically suited for the amended project. Construction activities at the site commenced in 2018, however, construction work ha d been stalled due to issues unrelated to the physical suitability of the site. The on- going construction of the hotel building and residences on the site is appropriate at this location, as planned by Section 14 Specific Plan and the 2007 adopted General Plan. The project site is surrounded by existing residential development, the convention center and City streets.
4. The site is physically suited for the proposed density of development.
The site can accommodate the 156-room hotel and the 65-unit residential uses as proposed which are within density limits of the General Plan and the Section 14 Specific Plan The approximately 7.8-
acre site is physically suited for the
size, scope and density of the hotel and residential uses.
5. The design of the subdivision is not likely to cause environmental damage or substantially and avoidably injure fish, wildlife, or their habitats.
The Amended Tentative Tract Map and associated Planned Development District have been reviewed under the California Environmental Quality Act, and a Mitigated Negative Declaration has been adopted by the City Council.
Mitigation measures have been included which will reduce potential impacts to less than significant levels. The site was previously disturbed and developed as a parking lot for many years and does not include any natural habitat. The project will therefore not damage or injure fish, wildlife, or their habitats.
Item 2A - Page 8
REVISED City Council Staff Report
May 11, 2023 -- Page 9
Amendments to Final Development Plan for Dream Hotel
Criteria and Findings Section 66474 of the Subdivision Map Act
6. The design of the subdivision or type of improvements is not likely to cause serious public health problems.
The subdivision is designed to meet or exceed City standards, and will include utility improvements such as sanitary sewer, water, gas, and electricity. The development of the hotel and residential uses will be required to meet or exceed City building codes. The project will not cause public health problems.
7. The design of the subdivision or type of improvements will not conflict with easements, acquired by the public at large, for access through or use of the property within the proposed subdivision.
There are no known public easements or access across the subject property, therefore the design of the subdivision will not conflict with easements for access through the property. Any utility easements can be accommodated within the project design.
PLANNING COMMISSION ACTION:
On September 14 , 2022, the Planning Commission reviewed the proposed amendments at a public hearing and after hearing from members of the public, continued the item to allow the applicant to respond to concerns about the height of the proposed condominiums. On September 28, 2022, the Planning Commission reviewed revised plans proposing slightly reduced building heights (as presented in this report) and voted 3-2-2 to recommend approval of the application to the City Council with the addition of a condition requiring additional landscape buffering along the property boundary shared with the adjacent Center Court Condominium development.
ENVIRONMENTAL ASSESSMENT:
On July 18, 2007, the City Council adopted Mitigated Negative Declaration (MND) No. 2006109032 for the previously approved project. In 2017, in accordance with California Environmental Quality Act (CEQA) Guidelines Section 15162, the City prepared a Subsequent Initial Study/Mitigated Negative Declaration (IS/MND) for the amended project and appropriate mitigation measures were incorporated to ensure that the amended project would have a less than significant impact on the environment. In addition to the mitigation measures included in the MND, conditions of approval have been included in support of the Mitigated Negative Declaration. Given the scope of the current proposed changes, further environmental review is not required.
SETTLEMENT AND DEVELOPMENT AGREEMENT:
On March 6, 2013, the City and Selene Palm Springs LLC (“Developer”) entered into a Purchase and Sale Agreement (“PSA”) and a related Services Agreement (“SA”) for the purpose of developing and maintaining the Dolce Hotel Project (“Hotel”), a First -Class Superior Hotel (Four+ stars) on a 7.8- acre parcel owned by the City and located at the northeast corner of Calle Alvarado and East Amado Road (“Property”). The PSA Item 2A - Page 9
REVISED City Council Staff Report
May 11, 2023 -- Page 10
Amendments to Final Development Plan for Dream Hotel
identified the terms and conditions for the City’s conveyance of the Property to the Developer, including a performance schedule that identified deadlines for: (1) entitlements; (2) close of escrow; (3) start of construction; and (4) opening date of the Hotel. The PSA has been amended eleven times over the past 10 years. The amendments have modified numerous terms and conditions of the sale, the development schedule, and other matters. The 11
th Amendment was entered into
February 2020 just prior to the start of the Covid 19 Pandemic. That Amendment extended the schedule of performance to provide the Developer with a brief period to finalize revisions to the proposed project. Shortly after entering into that Amendment the pandemic interrupted the ongoing course of business and, as a force majeure event, tolled the timeframes under the existing amended PSA.
Over the ensuing two years the Developer has put forth the project before the Council and the Parties have negotiated a new agreement to govern the ongoing development of the property. The Settlement and Development Agreement (SDA) is included as Attachment J to this report.
SDA Terms:
• The Parties enter into a general release of all claims against each other related to the PSA.
• Developer may only transfer the property prior to the completion of the project with the consent of the City.
• With 60 days of the Effective Date of the Agreement, Developer shall provide evidence of financing for all civil work to be completed on site. • Within 120 days of receiving a “ready to issue” building permits for a particular portion of the project the Developer will provide evidence of financing for that portion.
• Developer shall construct the project consistent with the Schedule of Performance attached to the SDA.
• Developer covenants to maintain the property on the tax rolls and to pay the City a predetermined amount to replace sales and TOT tax that would be lost by the City if the project does not open on time.
• Developer covenants to maintain the property including:
o maintenance of the perimeter fence;
o maintenance of a decorative fence cover upon completion of the site work; o installation of temporary sensor lighting upon completion of the site work and installation of electricity to the site;
o installation of CCTV cameras and monitoring on the site, completion of the site work and installation of electricity on the site and o explore the feasibility and constructability of landscaping the area immediately in front of the fence on East Amado Road.
• Developer has also agreed to indemnify the City and defend the SDA i n case of legal challenge.
• City maintains the right to repurchase the property if the Developer is found to be in default of the SDA.
Item 2A - Page 10
REVISED City Council Staff Report
May 11, 2023 -- Page 11
Amendments to Final Development Plan for Dream Hotel
With proposed amendments to the Project and the passage of time, many of the provisions in the PSA were no longer applicable to the Project. To clarify the obligations of the Parties, including but not limited to the schedule for the development, the City and Developer negotiated the SDA to facilitate the development of the Project.
Regarding the Schedule of Performance, the developer has provided a schedul e for permitting, construction, and completion of the project. Section 3.3.2 of the SDA establishes that failure to complete each Phase of the development per the approved timeline, barring any Unavoidable Delays as defined, shall constitute a default under the agreement. The general construction timeline is proposed as follows:
• August 2023 – commencement of site grading and civil construction • September 2024 – commencement of Dream Hotel superstructure construction • November 2024 – commencement of North Villas construction • January 2025 – commencement of South Villas construction • February 2025 – Dream Hotel construction (exterior enclosure of structure and commencement of interior work)
• December 2026 – completion of North Villas, Dream Hotel, and South Villas
FISCAL IMPACT:
None.
REVIEWED B
Y:
Department Director: Christopher Hadwin
Deputy City Manager: Flinn Fagg
City Manager: Scott Stiles
ATTACHMENTS:
A. Vicinity Map
B. Draft Resolutions
C. Conditions of Approval
D. Excerpts of Minutes of Planning Commission 9-14-22 & 9-28-22 Meetings E. Justification Letter
F. Public Integrity Disclosure Form
G. Site Photographs
H. Revised Plans
I. TTM 35236
J. Settlement and Development Agreement
Item 2A - Page 11
ATTACHMENT A
Item 2A - Page 12
Department of Planning Services
Vicinity Map
CITY OF PALM SPRINGS
5.1132
Calle Alvarado & Amado Road
Item 2A - Page 13
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Item 2A - Page 14
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS, CALIFORNIA, APPROVING A PROPOSED AMENDMENT
TO THE FINAL DEVELOPMENT PLANS OF A PREVIOUSLY
APPROVED FINAL PDD TO INCLUDE ADDITION OF TWENTY-FOUR
RESIDENTIAL UNITS; ELIMINATING EVENT CENTER AT THE
SOUTHEAST SECTION OF THE SITE; RECONFIGURATION OF
TWELVE CONDOMINIUM UNITS ON THE NORTHWEST SECTION
OF THE SITE ; AMENDING THE RESIDENTIAL TOWER BY ADDING
ONE MORE UNIT TO INCREASE THE NUMBER OF CONDO UNITS
FROM 40 UNITS TO 65 UNITS; AND MINOR MODIFICATIONS TO
THE FINAL LANDSCAPE PLANS OF THE DREAM HOTEL LOCATED
AT 450 NORTH CALLE ALVARA DO ROAD, ZONE PDD 333,
SECTION 14
THE CITY COUNCIL FINDS AND DETERMINES AS FOLLOWS:
A. Selene Palm Springs, LLC, (the “Applicant”) has filed an application with the City to amend the previously approved Planned Development District 333 and Tentative Parcel Map 35236 pursuant to the provisions of Section 94.02.00 ( B) of t he Palm Springs Zoning Code.
B. T he City Council of the City of Palm Springs last approved Planned Development District 333 (PDD 333), on June 19, 201 9, for a 156-room hotel and a 40 -unit condominium complex (“Amended Project”).
C. T he project applicant timely submitted a request for an extension of the Initial Project and applied for amendments to the PDD 333 and Tentative Parcel Map 35236 (TPM 35236) (collectively the “Amended Project”).
D. On September 14, 20 22, The Planning Commission held a duly noticed public hearing on the Amended Project in accordance with applicable law and voted to continue the hearing to a date certain of September 28, 2022.
E. On September 28, 2022, the Planning Commission held a duly noticed public hearing on the Amended Project in accordance with applicable law where they reviewed the Amended Project and voted 3-2- 2 (absent, Ervin, Roberts) to recommend approval of the amended Planned Development District 333 and Tentative Tract Map 35236.
F. The Amended Project is considered a “project” pursuant to the terms of the California Environmental Quality Act (“CEQA”), and a Subsequent Mitigated Negative Declaration has been prepared for the Amended Project and was distributed for public review and comments in accordance with CEQA.
G. A S ubsequent Mitigated Negative Declaration was prepared pursuant to CEQA guidelines and was adopted by the City Council on June 7, 2017.
Item 2A - Page 15
Resolution No. 5.1132-PD 333 AMND
H. On May 11 , 202 3, the City Council held a duly noticed public hearing on the Amended Project in accordance with applicable law. The City Council has carefully reviewed and considered all the evidence presented in connection with the meeting on the Amended Project, including but not limited to the staff report, the Mitigated Negative Declaration and the final Addendum, and all written and oral testimony presented.
I. P ursuant to Section 66412.3 of the Subdivision Map Act, the City Council has considered the effect of the proposed project on the housing needs of the region and has balanced these needs against the public service needs of residents and available fiscal and environmental resources.
THE CITY COUNCIL HEREBY FINDS AS FOLLOWS:
Pursuant to Section 94.03.00( E) of the Palm Springs Zoning Code, the City Council finds as follows:
1. The uses, density and intensity of the proposed preliminary development plan are in conformance to the general plan land use designation for the site;
The proposed amendment to Planned Development District 333 is consistent with the High-Density Residential designation of the General Plan and the Section 14 Specific Plan designation of High Residential as amended, which represents the General Plan and Zoning for the property on which the project is located. The hotel, residential and restaurant uses are all in conformance to the general plan and Specific Plan land use designation of the site. The site is 7.8 acres in size allowing a maximum of up to 336 units. The addition of 24 condo units to the southeast section of the site, and the addition of one more unit to the residential tower, for a total of 29 tower unit, brings the overall residential units at the development to 65. The total number of hotel rooms remains at 156. According to the Land Use Element of the General Plan, t ypical development in the High-Density Residential designation would include duplexes, townhomes, and apartments. Hotels and motels are also permitted up to 43 rooms per net acre (up to 86 rooms per net acre permitted on Indian Land) as long as they are consistent with the design and character of the surrounding neighborhoods and do not create significant design, parking, or traffic impacts to the surrounding residential neighborhood. The Dream Hotel and its residential components met all the above stated requirements of the general plan.
2. The uses permitted under the proposed development plan are in conformance to the requirements listed in Section 94.03.00(D)(1), and are not detrimental to adjacent properties or residents;
The amended project consists of a hotel, residential and restaurant uses; the uses are consistent with the originally approved project at the site. As planned, designed, and conditioned, is consistent with the Section 14 Specific Plan and the City of Palm Springs Item 2A - Page 16
Resolution No. 5.1132-PD 333 AMND
vision of the area for the future. The density and the overall size and scope of the project are still in keeping with the planned development district; furthermore, the 7.8- acre site is physically suitable and appropriate for the amended project with the 24-unit condominium project. Given the close proximity of the site to the Convention Center and the downtown area, the addition of residential uses will not be detrimental to adjacent properties or residents . The location provides sufficient access points for all uses proposed.
3. The preliminary development plan is in conformance to the property development standards listed in Section 94.03.00(D)(2);
The proposed amended project is not seeking any relief or deviations from the previously approved development and design standards of Planned Development District 333. The proposed amendments are relative to site reconfiguration and the elimination of the event center/farmhouse to be replaced with condominium buildings.
The proposed residential buildings are in compliance with all the development standards of PDD 333 in terms of density, setbacks, and hei ght limitations. The project site is located within the boundaries of the Section 14 Master Plan; per Section 6.2. of Section 14 Specific Plan, “the maximum height of high- rise buildings shall be 100 feet not including all appurtenances on the buildings, as measured from any point of natural elevation of the ground at the building line, before grading, to the maximum projection on top of the building above the same point” . The maximum height of the hotel is 56 feet; the maximum height of the condominium bui lding to the northwest is 52 feet and the maximum height of the condominium building to the southeast is 44 feet. The project is also in compliance with parking requirements as listed in Section 93.06.00 of the Zoning Ordinance.
4. The site is adequate in size and shape to accommodate the density and/or intensity of the proposed development;
The project site is 7.8 acres and large enough to accommodate the hotel development and the residential uses . The Amended Planned Development District made modifications to the development while maintaining the original intent and purposed envisioned for the site. All development standards such as setbacks, sidewalks, walls, and fences are consistent with the development standards established by PDD 333 and more specifically, the Section 14 Specific Plan.
5. The site for the proposed preliminary development plan has adequate access to streets and highways properly designed and improved to carry the type and quantity of traffic to be generated by the proposed use, and the design for the site enhances or cont inues the city’s existing grid in accordance with the Circulation Plan of the City of Palm Springs General Plan;
The project proposes primary vehicular access to existing public streets from North Calle Alvarado. There is another entry on the easterly portion of the development from Item 2A - Page 17
Resolution No. 5.1132-PD 333 AMND
Avenida Caballero for service vehicles only and an additional Fire access on East Amado Road, therefore the development will relate to existing streets and highways such as North Indian Canyon Drive which is a major thoroughfare. The site is also within a walking to distance to the downtown and uptown areas of the City. Also, traffic and circulation within and around the development were analyzed in the previously adopted Mitigated Negative Declaration and incorporated into the current document. The addition of 25 residential units to the project site is consistent with density standards anticipated in Section 14 and will not result in significant traffic impacts.
6. The public benefit provided by the development is mitigates any waivers or exceptions requested as part of the preliminary development plan; and
This project was originally approved in 200 7 prior to the adoption of public benefit policy, moreover, the applicant is not requesting for any new relief or deviations from the Code or the previously established development standards with this amendment.
According to the application, the amended project will include the addition of twenty-four (24) condominium units to the southeast section of the site, reconfiguration of the previously approved twelve (12) unit condominium building at the northwest portion of the site and amending the residential tower condo units to have one more unit. These changes will not affect the established development standards of the project; therefore, the applicant will not be required to provide public benefit to the amended project.
7 . That the conditions to be imposed and shown on the approved preliminary development plan are necessary to protect the public health, safety and general welfare.
The City Council previously approved conditions for the development; these conditions from different departments of the City which include Planning, Building, Fire and Public Works will remain valid and in effect for the project since the circumstances surrounding the development have not changed significantly. Also, revised conditions from the original entitlement and Mitigation Measures from the adopted M itigated Negative Declaration will continue to apply to the amended project. Therefore, it has been determined that all the conditions imposed on the development are deemed necessary to protect the public health, safety, and general welfare.
Pursuant to Municipal Code Chapter 9.64 and the State of California Subd ivision Map Act Section 66474, the City Council finds as follows:
1. The proposed Tentative Tract Map is consistent with all applicable general and specific plans.
The previously approved tentative tract map was for a two- parcel condominium map and three lettered lots for the 7.8- acre parcel. The applicant is now proposing to modify the condominium map that will make a 3-parcel map with three lettered lots (Lots A, B, & C) for street purposes only. The amended map will contain the hotel building in Lot 1 ; the north villas residential/condominium building will be in Lot 2; and the south villas condominium buildings will Lot 3. In terms of required lot sizes and availability of public Item 2A - Page 18
Resolution No. 5.1132-PD 333 AMND
infrastructure, the map is consistent with the City’s General Plan and the Section 14 Specific Plan respectively.
2. The design and improvements of the proposed Vesting Tentative Tract Map are consistent with the zone in which the property is located.
The design of the map is consistent with the allowable uses under the Planned Development District for this property and is consistent with the development standards of the Section 14 Specific Plan. The required public improvements include sanitary sewer, water, gas, and electricity and are consistent with Chapter 4 of the Section 14 Specific Plan.
3. The site is physically suited for this type of development.
As a flat in -fill property, t he 7.8-acre site is physically suited for the amended project.
Construction activities at the site commenced in 2018, however, construction work have been stalled for over three years due to issues not relating to the physical suitability of the site. The on-going construction of the hotel building and residences on the site is appropriate at this location, as planned by Section 14 Specific Plan and the 2007 adopted General Plan. The project site is surrounded by existing residential development, the convention center and City streets.
4. The site is physically suited for the proposed density of development.
The site can accommodate the 156- room hotel and the 65- unit residential uses as proposed which are within density limits of the General Plan and the Section 14 Specific Plan The approximately 7.8-acre site is physically suited for the size, scope and density of the hotel and residential uses.
5. The design of the subdivision is not likely to cause environmental damage or substantially and avoidably injure fish, wildlife, or their habitats.
The Amended Tentative Tract Map and associated Planned Development District have been reviewed under the California Environmental Quality Act, and a Mitigated Negative Declaration has been adopted by the City Council . Mitigation measures have been included which will reduce potential impacts to less than significant levels. The site was previously disturbed and developed as a parking lot for many years and does not include any natural habitat. The project will therefore not damage or injure fish, wildlife, or their habitats.
6. The design of the subdivision or type of improvements is not likely to cause serious public health problems.
The subdivision is designed to meet or exceed City standards , and will include utility improvements such as sanitary sewer, water, gas, and electricity. The development of the hotel and residential uses will be required to meet or exceed City building codes.
The project will not cause public health problems.
Item 2A - Page 19
Resolution No. 5.1132-PD 333 AMND
7. The design of the subdivision or type of improvements will not conflict with easements, acquired by the public at large, for access through or use of the property within the proposed subdivision.
There are no known public easements or access across the subject property, therefore the design of the subdivision will not conflict with easements for access through the property. Any utility easements can be accommodated within the project design.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS RESOLVES AS FOLLOWS:
SECTION 1.
That the foregoing Recitals are true and correct and are incorporated herein by this reference.
SECTION 2.
The Amended Project is considered a “project” pursuant to the terms of the California Environmental Quality Act (“CEQA”), and a Subsequent Mitigate d Negative Declaration has been prepared pursuant to CEQA guidelines and was adopted by the City Council on June 7, 2017.
SECTION 3.
The City Council hereby approves the amended Planned Development District and amended Tentative Parcel Map 35236 for the Dream Hotel located at the northwest corner of Avenida Caballeros and Amado Road subject to the Conditions of Approval attached hereto as Exhibit A.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, RESOLVES AS FOLLOWS:
ADOPTED this 11th day of May, 2023.
SCOTT STILES
CITY MANAGER
ATTEST:
BRENDA PREE, MMC
CITY CLERK
Item 2A - Page 20
Resolution No. 5.1132-PD 333 AMND
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, BRENDA PREE, City Clerk of the City of Palm Springs, hereby certify that Resolution No. ____ is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF , I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this ______ day of ______________, _________.
BRENDA PREE, MMC
CITY CLERK
Item 2A - Page 21
RESOLUTION NO. _____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, APPROVING THE
SETTLEMENT AND DEVELOPMENT AGREEMENT BY
AND BETWEEN THE CITY OF PALM SPRINGS AND
SELENE PALM SPRINGS LLC RELATED TO THE
DEVELOPMENT OF THE DREAM HOTEL PROJECT
WHEREAS, On March 6, 2013, the City and Selene Palm Springs LLC (“Developer”) entered into a Purchase and Sale Agreement (“PSA”) and a related Services Agreement (“SA”) for the purpose of developing and maintaining the Dolce Hotel Project (“Hotel”); and
WHEREAS, the PSA identified the terms and conditions for the City’s conveyance of the Property to the Developer, including a performance schedule that identified deadlines for: (1) entitlements; (2) close of escrow; (3) start of construction; and (4) opening date of the Hotel; and
WHEREAS. the PSA has been amended eleven times over the past 10 years and the amendment s have modified numerous terms and conditions of the sale, the development schedule, and other matters; and
WHEREAS, the 11th Amendment was entered into February 2020 just prior to the start of the Covid 19 Pandemic; and
WHEREAS, the 11
th Amendment extended the schedule of performance to provide the Developer with a brief period to finalize revisions to the proposed project. Shortly after entering into that Amendment the pandemic interrupted the ongoing course of business and, as a force majeure event, tolled the timeframes under the existing amended PSA ; and
WHEREAS, over the ensuing two years the Developer has put forth the project before the Council for consideration at this public meeting; and
WHEREAS, with amendments to the Project and the passage of time, many of the provisions in the PSA were no longer applicable to the Project so to clarify the obligations of the Parties, including but not limited to the schedule for the development, the City and Developer negotiated the S ettlement and Development Agreement to facilit ate the development of the Project.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS , CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1.
T hat the foregoing Recitals are true and correct and are incorporated herein by this reference.
SECTION 2. The Settlement and Development Agreement is approved in Item 2A - Page 22
Resolution No. _____
substantially final form, subject to minor modifications approved by the City Manager and City Attorney, and the City Manager is authorized to execute said Agreement.
SECTION 3. CEQA. On July 18, 2007, the City Council adopted Mitigated Negative Declaration (MND) No. 2006109032 for the previously approved project. In 2017, in accordance with California Environmental Quality Act (CEQA) Guidelines Section 15162, the City prepared a Subsequent Initial Study/Mitigated Negative Declaration (IS/MND) for the amended project and appropriate mitigation measures were incorporated to ensure that the amended project would have a less than significant impact on the environment. In addition to the mitigation measures included in the MND, conditions of approval have been included in support of the Mitigated Negative Declaration. Given the scope of the current proposed changes to the Project , further environmental review is not required.
ADOPTED THIS ___TH DAY OF ________________, _________
.
SCOTT C. STILES
CITY MANAGER
ATTEST:
BRENDA PREE
CITY CLERK
Item 2A - Page 23
Resolution No. _____
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, BRENDA PREE , City Clerk of the City of Palm Springs, h ereby certify that Resolution No. ____ is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this ______ day of ______________, _________.
Brenda Pree, City Clerk
City of Palm Springs, California
Item 2A - Page 24
ATTACHMENT C
Item 2A - Page 25
EXHIBIT A
Case No. 5.1132 – PD 333 AMND & Tentative Parcel Map 35236 Selene Palm Springs, LLC
Northwest corner of Avenida Caballeros and Amado Road
(The Dream Hotel Palm Springs)
CONDITIONS OF APPROVAL
May 11, 2023
Before final acceptance of the project, all conditions listed below shall be completed to the satisfaction of the City Engineer, the Director of Planning Services, the Chief of Police, the Fire Chief or their designee, depending on which department recommended the condition.
Any agreements, easements or covenants required to be entered into shall be in a form approved by the City Attorney.
ADMINISTRATIVE CONDITIONS:
ADM 1. Project Description
. This approval is for the project described per Case
5.1132-PDD 333 & TTM 35236; except as modified with the approved Mitigation Monitoring Program and the conditions below; ADM 2. Reference Documents . The site shall be developed and maintained in accordance with the approved plans, date stamped June 30, 2022, including site plans, architectural elevations, exterior materials and colors, landscaping, and grading on file in the Planning Department except as modified by the approved Mitigation Measures and conditions below.
ADM 3. Conform to all Codes and Regulations . The project shall conform to the conditions contained herein, all applicable regulations of the Palm Springs Zoning Ordinance, Municipal Code, and any other City County, State and Federal Codes, ordinances, resolutions and laws that may apply.
ADM 4. Minor Deviations. The Director of Planning or designee may approve minor deviations to the project description and approved plans in accordance with the provisions of the Palm Springs Zoning Code.
ADM 5. Indemnification. The owner shall defend, indemnify, and hold harm less the City of Palm Springs, its agents, officers, and employees from any claim, action, or proceeding against the City of Palm Springs or its agents, officers or employees to attach, set aside, void or annul, an approval of the City of Palm Springs, its legislative body, advisory agencies, or administrative officers concerning Case 5.1132-PDD 333 & TTM 35236. The City of Palm Springs will promptly notify the applicant of any such claim, action, or Item 2A - Page 26
Conditions of Approval Case No. 5.1132-PD 333 AMND / TTM 35236
proceeding against the City of Palm Springs and the appli cant will either undertake defense of the matter and pay the City's associated legal costs or will advance funds to pay for defense of the matter by the City Attorney. If the City of Palm Springs fails to promptly notify the applicant of any such claim, action or proceeding or fails to cooperate fully in the defense, the applicant shall not, thereafter, be responsible to defend, indemnify, or hold harmless the City of Palm Springs . Notwithstanding the foregoing, the City retains the right to settle or abandon the matter without the applicant's consent, but should it do so, the City shall waive the indemnification herein, except, the City's decision to settle or abandon a matter following an adverse judgment or failure to appeal, shall not cause a waiver of the indemnification rights herein.
ADM 6. Maintenance and Repair
. The property owner(s) and successors and
assignees in interest shall maintain and repair the improvements including and without limitation all structures, sidewalks, bikeways, parking areas, landscape, irrigation, lighting, signs, walls, and fences between the curb and property line, including sidewalk or bikeway easement areas that extend onto private property, in a first class condition, free from waste and debris, and in accordance with all applicable law, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction at the property owner’s sole expense. This condition shall be included in the recorded covenant agreement for the property if required by the City.
ADM 7. Time Limit on Approval. Approval of the Amended Project shall be valid for a period of two (2) years from the effective date of the approval. Extensions of time may be granted by the Planning Commission upon demonstration of good cause.
ADM 8. Right to Appeal . Decisions of an administrative officer or agency of the City of Palm Springs may be appealed in accordance with Municipal Code Chapter 2.05.00. Permits will not be issued until the appeal period has concluded.
ADM 9. Public Art Fees . This project shall be subject to Chapters 2.24 and 3.37 of the Municipal Code regarding public art. The project shall either provide public art or payment of an in -lieu fee. In the case of the in- lieu fee, the fee shall be based upon the total building permit valuation as calculated pursuant to the valuation table in the Uniform Building Code, the fee being 1/2% for commercial projects or 1/4% for residential projects with first $100,000 of total building permit valuation for individual single -family units exempt. Should the public art be located on the project site, said location shall be reviewed and approved by the Director of Planning and Zoning and the Public Arts Commission, and the property owner shall enter into a recorded agreement to maintain the artwork and protect the public rights of access and viewing.
ADM 10. Tribal Fees Require d. As the property is Indian reservation land, fees as required by the Agua Caliente Band of Cahuilla Indians Tribal Council, Item 2A - Page 27
Conditions of Approval Case No. 5.1132-PD 333 AMND / TTM 35236
including any applicable habitat conservation plan fees shall be paid prior to consideration of this project by the Planning Commission.
ADM 11. CC&R’s The applicant prior to issuance of building permits shall submit a draft declaration of covenants, conditions and restrictions (“CC&R’s”) to the Director of Planning for approval in a format to be approved by the City Attorney. These CC&R’s may be enforceable by the City, shall not be amended without City approval, and shall require maintenance of all property in a good condition and in accordance with all ordinances
ADM 12. CC&R’s. Prior to recordation of a Final Map or issuance of building permits, the applicant shall submit a draft declaration of covenants, conditions and restrictions ("CC&R's") to the Director of Planning for approval in a format to be approved by the City Attorney. The draft CC&R package shall include:
a. The document to convey title
b. Deed restrictions, easements, of Covenant Conditions and Restrictions to be recorded.
c. Provisions for joint access to the proposed parcels, and any open space restrictions.
d. A provision, which provides that the CC&R’s may not be terminated or substantially amended without the consent of the City and the developer’s successor-in-interest.
Approved CC&R’s are to be recorded following approval of the final map.
The CC&R's may be enforceable by the City, shall not be amended without City approval, and shall require maintenance of all property in a good condition and in accordance with all ordinances,
ADM 13. CC&R’s Deposits & Fees
. The applicant shall submit to the City of Palm
Springs, a deposit in the amount of $3,640, for the review of the CC&R's by the City Attorney. A $ 1,165 filing fee shall also be paid to the City Planning Department for administrative review purposes.
ENVIRONMENTAL ASSESSMENT CONDITIONS:
ENV 1. All the Mitigation Measures contained in the adopted Mitigated Negative Declaration (MND) shall be part of the conditions of approval.
ENV 2.
Coachella Valley Multiple -Species Habitat Conservation Plan (CVMSHCP) Local Development Mitigation Fee (LDMF) required . All projects within the City of Palm Springs, not within the Agua Caliente Band of Cahuilla Indians reservation are subject to payment of the CVMSHCP LDMF prior to the issuance of certificate of occupancy.
ENV 3. California Fish & Game Fees Required . The project is required to pay a fish and game impact fee as defined in Section 711.4 of the California Fish and Item 2A - Page 28
Conditions of Approval Case No. 5.1132-PD 333 AMND / TTM 35236
Game Code. This CFG impact fee plus an administrative fee for filing the action with the County Recorder shall be submitted by the applicant to the City in the form of a money order or a cashier's check payable to the Riverside County Clerk prior to the final City action on the project (either Planning Commission or City Council determination). This fee shall be submitted by the City to the County Clerk with the Notice of Determination.
Action on this application shall not be final until such fee is paid. The project may be eligible for exemption or refund of this fee by the California Department of Fish & Game. Applicants may apply for a refund by the CFG at
www.dfg.ca.gov for more information.
ENV 4. Mitigation Monitoring. The mitigation measures of the environmental assessment shall apply. The applicant shall submit a signed agreement that the mitigation measures outlined as part of the MND will be included in the plans prior to issuance of building permits.
ENV 5. Cultural Resource Survey Required. Prior to any ground disturbing activity, including clearing and grubbing, installation of utilities, and/or any construction related excavation, an Archaeologist qualified according to the Secretary of the Interior’s Standards and Guidelines, shall be employed to survey the area for the presence of cultural resources identifiable on the ground surface.
ENV 6. Cultural Resource Site Monitoring. There is a possibility of buried cultural or Native American tribal resources on the site. A Native American Monitor shall be present during all ground-disturbing activities.
a). A Native American Monitor(s) shall be present during all ground disturbing activities including clearing and grubbing, excavation, burial of utilities, planting of rooted plants, etc. Contact the Agua Caliente Band of Cahuilla Indian Cultural Office for additional information on the use and availability of Cultural Resource Monitors. Should buried cultural deposits be encountered, the Monitor shall contact the Director of Planning. After consultation the Director shall have the authority to halt destructive construction and shall notify a Qualified Archaeologist to further investigate the site. If necessary, the Qualified Archaeologist shall prepare a treatment plan for sub mission to the State Historic Preservation Officer and Agua Caliente Cultural Resource Coordinator for approval.
b). Two copies of any cultural resource documentation generated in connection with this project, including reports of investigations, record search results and site records/updates shall be forwarded to the Tribal Planning, Building, and Engineering Department and one copy to the City Planning Department prior to final inspection.
Item 2A - Page 29
Conditions of Approval Case No. 5.1132-PD 333 AMND / TTM 35236
PLANNING DEPARTMENT CONDITIONS:
PLN 1. Outdoor Lighting Conformance. Exterior lighting plans, including a photometric site plan showing the project’s conformance with Section
93.21.00 Outdoor Lighting Standards of the Palm Springs Zoning ordinance, shall be submitted for approval by the Department of Planning prior to issuance of a building permit. Manufacturer's cut sheets of all exterior lighting on the building and in the landscaping shall be included. If lights are proposed to be mounted on buildings, down- lights shall be utilized. No lighting of hillsides is permitted.
PLN 2. Water Efficient Landscaping Conformance. The project is subject to the Water Efficient Landscape Ordinance (Chapter 8.60.00) of the Palm Springs Municipal Code and all other water efficient landscape ordinances. The applicant shall submit a landscape and irrigation plan to the Director of Planning for review and approval prior to the issuance of a building permit.
Landscape plans shall be wet stamped and approved by the Riverside County Agricultural Commissioner's Office prior to submittal. Prior to submittal to the City, landscape plans shall also be certified by the local water agency that they are in conformance with the water agency’s and the State’s Water Efficient Landscape Ordinances.
PLN 3. Sign Applications Required. No signs are approved by this action. Separate approval and permits shall be required for all signs in accordance with Zoning Ordinance Section 93.20.00.
PLN 4. Flat Roof Requirements. Roof materials on flat roofs (less than 2:12) must conform to California Title 24 thermal standards for “Cool Roofs”. Such roofs must have a minimum initial thermal emittance of 0.75 or a minimum SRI of 64 and a three- year aged solar reflectance of 0.55 or greater. Only matte (non-specular) roofing is allowed in colors such as beige or tan.
PLN 5. Screen Roof -mounted Equipment . All roof mounted mechanical equipment shall be screened per the requirements of Section 93.03.00 of the Zoning Ordinance.
PLN 6. Surface Mounted Downspouts Prohibited. No exterior downspouts shall be permitted on any facade on the proposed building(s) that are visible from adjacent streets or residential and commercial areas.
PLN 7. Pool Enclosure Approval Required. Details of fencing or walls around pools (material and color) and pool equipment areas shall be submitted for approval by the Planning Department prior to issuance of Building Permits.
PLN 8. Provide ‘smart controllers’ for all irrigation systems.
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Conditions of Approval Case No. 5.1132-PD 333 AMND / TTM 35236