b. Appearance of Parklet – Operating Hours. The parklet area shall be set up with tables and chairs and ready to receive customers during all hours that the principal business is open to the public.
c. Appearance of Parklet – Non-Operational Hours. Tables, chairs and umbrellas may remain in the parklet area when the principal business is closed to the public. Chairs may be stacked within the parklet area for periods of twelve (12) hours or less. As an alternative, all furnishings and equipment may be removed from parklet and stored in an indoor location. d. Waiver. Any closure or suspension of use of the parklet for periods of greater than fourteen (14) days shall require approval of the City Manager.
In submitting the request, the permittee shall provide a plan for addressing the appearance and maintenance of the parklet during the suspension period.
3. Storage. No items, other than dining items (tables, chairs, and umbrellas), may be stored within the parklet area. All other equipment or furnishings, including heaters, host/hostess stands, and similar items must be stored indoors when not in use.
4. Music. Music in the parklet area shall be permitted pursuant to Chapter 92 of the Palm Springs Zoning Code (PSZC). No exceptions to the Noise Ordinance are permitted.
Item 1H - Page 17
CITY COUNCIL STAFF REPORT
10/26/2023
SUBJECT:
APPROVE CONTRACT SERVICES AGREEMENT NO. 23P227 WITH CITYGATE
ASSOCIATES, LLC FOR AN ORGANIZATION ANALYSIS, COMMUNITY RISK
ASSESSMENT, STANDARD OF COVERAGE, AND FIVE-YEAR STRATEGIC PLAN RECOMMENDATION:
Approve Contract Services Agreement No. 23P227 with Citygate Associates, LLC to provide Fire Department organizational analysis, community risk assessment, the standard of coverage, and 5-year strategic plan for a six-month term in an amount not to exceed $177,809 beginning November 1, 2023, through April 30, 2024, with one one-year extension option at the City’s sole discretion; and
1. Authorize the City Manager or designee to execute all necessary documents.2.
Attachments
Item 1I
CITY COUNCIL STAFF REPORT
DATE: OCTOBER 26, 2023 CONSENT CALENDAR
SUBJECT: APPROVE CONTRACT SERVICES AGREEMENT NO. 23P227 WITH
CITYGATE ASSOCIATES, LLC FOR AN ORGANIZATION AN ALYSIS,
COMMUNITY RISK ASSESSMENT, STANDARD OF COVERAGE, AND
FIVE-YEAR STRATEGIC PLAN
FROM: Scott C. Stiles, City Manager
BY: Fire Department
SUMMARY:
Award a contract services agreement with Citygate Associates LLC in an amount not to exceed $177,809. The scope of work consists of providing the Palm Springs Fire Department with an Organizational Analysis, Community Risk Assessment, Standard of Coverage, 5-year Strategic Plan, and a recommendation for a new Fire Station 1 location and optimal service delivery, as well as best Fire Department use of existing Fire Station
1. RECOMMENDATION:
1. Approve Contract Services Agreement No. 23P227 (Attachment A) with Citygate Associates, LLC to provide F ire Department organizational analysis, community risk assessment, standard of coverage, and 5- year strategic plan for a six -month term in an amount not to exceed $177,809 beginning November 1, 2023 through April 30, 2024, with one one-year extension option at the City’s sole discretion; and
2. Authorize the City Manager or designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure form ( Attachment B) submitted on August 31, 2023, Citygate Associates, LLC is registered in the State of California.
BACKGROUND:
The Fire Department provides fire suppression, prevention, and emergency medical services. The Palm Springs Fire Department currently has five fire stations that protect Item 1I - Page 1
City Council Staff Report
October 26, 2023 – Page 2
Award Agreement with Citygate Associates LLC
96 square miles with an overall staff of 90 FTEs. Palm Springs Firefighters responded to 12,032 calls for service in 2021.
The Contractor will provide a Palm Springs Fire Department Organizational Analysis, Community Risk Analysis, Standard of Cover age, 5 -year Strategic Plan, and provide recommendations for a new Fire Station 1 location and optimal service delivery as well as best Fire Department use of existing Fire Station 1.
STAFF ANALYSIS:
The Fire Department worked with the Procurement and Contracting Department to issue a Request for Proposals (RFP) to find a contractor for the needed services. The RFP was advertised in the local newspaper and published on the PlanetBids website. Five proposals were received by the deadline of August 31, 2023 as follows:
• Center for Public Safety Management, LLC (CPSM), Washington, DC • Citygate Associates, LLC, Folsom, CA
• Emergency Management Group International, Powell, OH
• Matrix Consulting Group, San Mateo, CA
• MGT of America Consulting, LLC (MGT), Sacramento, CA
The evaluation team made up of City staff from the Fire and Police department s and an outside evaluator from another fire department evaluated the proposals received against published criteria that included the firms experience, the staff experience, the understanding of the scope of work, local preference and price.
Citygate Associates, LLC was ranked the highest by the evaluation team and is being recommended for award of the contract.
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 2B, Community Infrastructure – 5- Year Capital Improvement Plan.
Item 1I - Page 2
City Council Staff Report
October 26, 2023 – Page 3
Award Agreement with Citygate Associates LLC
FISCAL IMPACT:
Sufficient funds are budgeted and available in the current Fiscal Year 2023-24.
REVIEWED BY:
Department Director: Paul Alvarado, Fire Chief
Procurement and Contracting Director: Kim Baker
City Manager: Scott Stiles
ATTACHMENTS:
A. Agreement No. 23P227
B. Public Integrity Disclosure
Item 1I - Page 3
ATTACHMENT A
Item 1I - Page 4
Revised 4.13.23 Page 1 of 21
CONTRACT SERVICES AGREEMENT 23P227
FIRE DEPARTMENT ORGANIZATIONAL ANALYSIS, COMMUNITY
RISK ASSESSMENT, STANDARD OF COVERAGE, AND 5-YEAR
STRATEGIC PLAN
THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into on November 1, 2023, by and between the City of Palm Springs , a California charter city and municipal corporation (“City”), and CITYGATE ASSOCIATES, LLC , a California Limited Liability Company, (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.
RECITALS
A. City requires the services of a licensed and qualified firm to provide a Palm Springs Fire Department Organizational A nalysis, Community Risk Assessment, Standard of Coverage, 5 -year Strategic Plan, and pro vide recommendation for new Fire Station 1 location and optimal service delivery as well as best Fire Department use of existing Fire Station 1 , (“Project”).
B. Contractor has submitted to City a proposal to provide a Palm Springs Fire Department Organizatio nal Analysis, Community Risk Assessment, Standard of Coverage, 5- year Strategic Plan, and provide recommendation for new Fire Station 1 location and optimal service delivery as well as best Fire Department use of existing Fire Station 1 , to City under the terms of this Agreement.
C. Based on its experience, education, training, and reputation, Contractor is qualified and desires to provide the necessary services to City for the Project.
D. City desires to retain the services of Contractor for the Project.
NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consider ation, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. C ONTRACTOR SERVICES
1.1 Scope of Services . In compliance with all terms and conditions of this Agreement, Contractor shall provide services to City as described in the Scope of Services/Work attached to this Agreement as Exhibit “A” and incorporated herein by reference (the “Services ” or “Work”). Exhibit "A" includes the agreed upon schedule of performance and the schedule of fees. Contractor warrants that the S ervices shall be performed in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced, and well qualified members of the profession currently pract icing under similar conditions. In the event of any inconsistency between the terms contained in the Scope Item 1I - Page 5
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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 . Contract or sha ll 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.
1.3 Licenses and Permits . Contractor shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the S ervices required by this Agreement.
1.4 Familiarity with Work. By executing this Agreement, Contractor warrants that it has carefully considered how the Work should be performed and fully understands the facilities, difficulties, and restrictions attending performance of the Work under this Agreement.
2. TIME FOR COMPLETION
The time for completion of the Services to be performed by Contractor is an essential condition of this Agreement. Contractor shall prosecute regularly and diligently the work of this Agreement according to the agreed upon s chedule of performance set forth in Exhibit “A .” Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non -performing Party. Delays shall not entitle Contractor to any additional compensation regardless of the P arty responsible for the delay.
3. COMPENSATION OF CONTRACTOR
3.1 Compensation of Contractor. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance wi th the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $177,809.00.
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 Ag reement, within thirty (30) days of receipt of Contractor’s invoice.
3.3 Changes . In the event any change or changes in the Services is reque sted by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into:
A. To provide for revisions or modifications to docum ents, work product, or Work, when required by the enactment or revision of any subsequent law; or Item 1I - Page 6
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B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession.
3.4 Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City.
4. PERFORMANCE SCHEDULE
4.1 Time of Essence. Time is of the essence in the performance of this Agreement.
4.2 Schedule of Performance. All Services rendered under this Agreement shall be performed under the agreed upon schedule of perform ance set forth in Exhibit “A .” Any time period extension must be approved in writing by the Contract Officer.
4.3 Force Majeure. The time for performance of S ervices to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event, if Contractor notifies the Contract Officer within ten (10) days of the commencement of the Force Majeur e 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 W ork); and (4) pandemics, epidemics or quaranti ne restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and or ders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing the S ervices for the period of the enforced delay when and if , in the Contract Officer’s judgment, such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the P arties to this Agreement. The Contractor will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement s hall continue in full force a nd effect for a period of six months , commencing on November 1, 2023, and ending on April 30, 2024, unless ext ended by mutual written agreement of the P arties. In addition, the term may be extended at the sole discretion of the City upon written notice to the Contractor, for one (1) additional one (1) year term.
4.5 Termination Prior to Expiration of Term . City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor . W here termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of terminati on, Contractor shall immediately ce ase all Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all S ervices rendered prior to receipt of the notice of termination Item 1I - Page 7
Revised 4.13.23 Page 4 of 21
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 S ervices 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 c orrective action.
Contractor may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.
5. COORDINATION OF WORK
5.1 Representative of Contractor. The following principal of Contractor is designated as being the principal and representative of Contractor authorized to act and make all decisions in its behalf with respect to the specified Services: Chief Stewart Gary, MP A, Public Safety Principal / Project Manager . It is expressly understood that the experience, knowledge, education, capability, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the S ervices under this Agreement. The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer.
5.2 Contract Officer. The Contract Officer shall be the City M anager or his/her designee ("Contract Officer"). Contractor shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the S ervices. Contractor shall refer any decisions that must be made by City to the Contract Officer. Unless 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 , it s pr incipals and employees, were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other individual or entity to perform any S ervices required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisio ns sti pulated 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 i ts subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City.
5.4 Independent Contractor. Ne ither City nor any of its e mployees 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 ind ependent 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 Item 1I - Page 8
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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’ compens ation 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 foll owing personnel without the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted right to order the removal of any personnel assigned by Contractor by providing written notice to Contractor.
N ame: Title:
Chief Stewart Gary Public Safety Principal / Project Manager Chief Samuel Mazza Senior Fire and EMS Specialist
Chi ef Michael Dyer Fire and EMS Specialist
Chief Landon Stallings Fire and EMS Specialist
Chief Dave Badgett Seni or Aviation Emergency Services Specialist Michael D. Fay Statistical Specialist
David C. DeRoos Citygate President
5.6 California Labor Code Requirements.
A. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates a nd the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the S ervices are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemni fy and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upo n t he Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified p ayroll records (Labor Code 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 , Item 1I - Page 9
Revised 4.13.23 Page 6 of 21
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 shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference.
7. INDEMNIFICATION.
7.1 Indemnification. To the fullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (colle ctively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney f ees (collectively “Claims”), includin g 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 Agreemen t. This indemnification clause excludes Claims arising from the primary negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this A greement be construed to limit Contra ctor’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 Inde mnified Parties for such matters inde mnified 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 lim ited to the extent which the C laims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor in the performance of the Services or this Agreement , and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction, Contractor ’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.
8. RECORDS AND REPORTS
8.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer reports concerning the performance of the S ervices required by this Agreement, or as the Contract Officer shall require.
8.2 Records. Contr actor shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Contractor Item 1I - Page 10
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shall keep such books and records as shall be necessary to properly perform the S ervices required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit , and make records and transcripts from such records.
8.3 Ownership of Documents . All drawings, s pecifications, reports, records, documents, and other materials prepared by Contractor in the performance of this Agreement shall be the property of City. Contractor s hall deliver all above-referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. Contractor may retain copies of such documents for Contractor's own use. Contractor shall have an unrestricted right to use the concepts embodied in such documents.
8.4 Release of Documents . All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer.
8.5 Audit and Inspection of Records. After receipt of reasonable notice and during the regular busines s hours of City, Contractor shall provide City, or other agents of City, such access to Contractor’s books, records, payroll documents, and facilities as City deems nec essary to examine, copy, audit, and inspect all accounting books, records, work data, docum ents, and activities directly related to Contractor’s performance under this Agreement. Contractor shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make s uch 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 inte rpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim , or m atter arising out of or in relation to this Agreement shall be instituted in the Superio r Cour t of the County of Riverside , State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
9.2 Interpretation. This Agreemen t 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 ar e contractual and the result of negotiation between the Parties.
Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the var ious sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs.
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9.3 Waiver . No delay or omission in the exercis e of a ny right or remedy of a non- defaulting Party on any default shall impair such right or remedy or be construed as a waiver.
No consent or approval of City shall be deemed to waive or render unnecessary City’s consent to or approval of any subsequent act of Contractor. Any waiver by either Party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement.
9.4 Rights and Remedies are Cumulative . Except with resp ect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative . The exercise by either P arty of one or more of such rights or remedies shall not preclude the exercise by it, at the sam e or d ifferent times, of any other rights or remedies for the same default or any other default by the other Party.
9.5 Legal Action. In addition to any other rights or remedies, either P arty may take legal action, in law or in equity, to cure, correct , or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement.
9.6 Attorney Fees. In 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 ad dition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding.
10. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
10.1 Non-Liability of City Officers and Employees . No officer or employee of City shall be personally liable to the Contractor , or any successor -in-interest, in the event of any default or breach by City or for any amount which may become due to the Contractor or its successor, or for breach of any obligation of the terms of this Agreement.
10.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any dir ect or indirect financial interest in this Agreement, nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.
10.3 Covenant Against Discriminat ion. In connection with its performance under this Agreement, Contractor shall not dis criminate 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 ethn icity), 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 Item 1I - Page 12
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to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitm ent or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non- discrimination in city contracting.
11. MISCELLANEOUS PROVISIONS
11.1 Notice. Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person shall be in writing and either served personally or sent by pre -paid, first-class mail to the address set forth below. Notice shall be deemed communicated seventy- two (72) hours from the time of mailing if mailed as provided in this Section. Either Party may change its address by notifying the other Party of the change of address in writing.
To City: City of Palm Springs
Attention: City Manager/ City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
To Contractor: Citygate Associates, LLC
Attention: David C. DeRoos
600 Coolidge Drive, Suite 150
Folsom, CA 95630
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 s hall b e interpreted in such a manner as to be effective and valid under applicable law. In t he 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 unenforcea bility 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.
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11.6 Third Party Beneficiary . Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as co nferring, 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. T he persons executing this Agreement on behalf of the P arties warrant that they are duly authorized to execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement.
11.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
11.10 Compliance with Economic Sanctions in R esponse to Russia's Actions in Ukraine. When funding for the services is provided, in whole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive Order N -6-22 (“Russian Sanctions Program”). As part of this compliance process, Consultant shall also certify compliance with the Russian Sanctions Program by completing the form located in Exhibit “C ” (Russian Sanct ions Certification), attached hereto and incorporated herein by reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section. [SIGNATURES ON NEXT PAGE]
Item 1I - Page 14
Revised 4.13.23 Page 11 of 21
SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM
SPRINGS AND CITYGATE ASSOCIATES, LLC
IN WITNESS WHEREOF, t he Parties have executed this Agreement as of the dates st ated below.
CONTRACTOR:
By: _______________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _____________________ Item No. _____________________
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
Item 1I - Page 15
Revised 4.13.23 Page 12 of 21
EXHIBIT “A”
SCOPE OF SERVICES/WORK
Including,
Schedule of Fees
And
Schedule of Performance
Item 1I - Page 16
Revised 4.13.23 Page 13 of 21
1.1 Background:
Nestled at the base of the San Jacinto Mountains, the City of Palm Springs is known for its crystal- blue skies, year -round sunshine, stunning landscape, and starry nights. Palm Springs’ rich history and gorgeous weather make it an ideal place to live and a preferred destination of over six million annual travelers from all over the world. The city maintains the charm of a small town while offering the amenities of an urban center.
Palm Springs lies on th e western edge of the Coachella Valley approximately 107 miles east of Los Angeles within the ecological area known as the Colorado Desert. The permanent population is approximately 45,500 with a substantial increase of weekend population during peak seasons. The city is known for valuing and celebrating its diverse neighborhoods and communities. Residents of Palm Springs have access to shopping, galleries, restaurants, parks, recreational facilities, hiking trails, bike routes, and horseback riding as well as the scenic Palm Springs Aerial Tramway up Mt. San Jacinto.
As the City enjoys virtually 350 days of sunshine per year, Palm Springs’ community has year-round enjoyment of the outdoors. Palm Springs is host to many parades and festivals, including the f amed Palm Springs International Film Festival. Residents of Palm Springs find that the city is an ideal community to call home.
The City of Palm Springs is a full- service city providing residents and visitors with the following services: general governance , and administrative management, police, fire, emergency management service, engineering, maintenance of public facilities, streets, recreation, airport, public improvements, planning and zoning, community and economic development including CDBG, animal shelter , sustainability and recycling, convention center, tourism, and library services. As you walk, bike or drive through our various neighborhoods, you are surrounded by a sense of community. There are a variety of architectural styles throughout Palm Spr ings, from mid-century modern and more. Since 1994, Palm Springs has been governed as a charter city, and operates under a Council[1]Manager form of government. Council Members are elected by district and serve four-year staggered terms, with the position of Ma yor rotating annually. The City Council appoints the City Manager and the City Attorney. The City of Palm Springs has a FY2022-2023 revised budget of $466 million with 575.5 full[1]time equivalent allocated positions.
The Fire Department provides fire suppression, prevention, emergency medical services.
The Palm Springs Fire Department currently has five fire stations that protect 96 square miles with an overall staff of 90 FTEs. Palm Springs Firefighter’s responded to 12,032 calls for service in 2021.
The Contractor will provide a Palm Springs Fire Department Organizational Analysis, Community Risk Analysis, Standard of Cover, 5-year Strategic Plan, and provide recommendation for New Fire Sta tion 1 location and optimal service delivery as well as best Fire Department use of existing Fire Station 1.
1.2 Scope:
A. The scope of work consists of providing the Palm Springs Fire Depa rtment with an Organizational Analysis, Community Risk Assessment, Standard of Coverage, 5-year Strategic Plan, and a recommenda tion for a New Fire Station 1 location and optimal service delivery as well as best Fire Department use of existing Fire Station 1.
Item 1I - Page 17
Revised 4.13.23 Page 14 of 21
B. The Contractors scope of work will include:
a. A community risk analysis of Palm Springs with a 5 to 10 year projection. b. Evaluating existing aircraft rescue and firefighting operations in Palm Springs as compared to other airports with ARFF service.
c. Response time analysis for both Fire and /EMS calls under City and County coverage models.
d. Determining the optimal locations for fire s tations, identifying response time targets for both fire and EMS calls, evaluating resource allocation, and assessing operational efficiency.
e. Comparing dispatch center call processing and transfer times. f. Evaluating the existing Fire Department deployment m odel and assess its strengths and weaknesses. Identify areas for improvement and provide recommendations for optimizing resource allocation and operational efficiency. g. Conducting scenario analysis by simulating different deployment strategies and evaluating their potential impacts on response time performance, resource utilization, and operational effectiveness. This may include evaluating the impacts of station closures, relocation of resources, or changes in response protocols. h. Analyzing demographic proje ctions t o determine its impact on fire EMS calls moving forward, considering the additional development if senior housing projects and other planned development.
i. Reviewing of current facilities, equipment, and logistics. j. Preparing a comprehensive report su mmarizing the findings of the analysis, including recommendations for improving the Fire Department deploym ent strategy. The report may include maps, charts, and other visualizations to effectively communicate the results to stakeholders.
k. P resenting the fi ndings and recommendations to the Fire Department leadership, stakeholders, and other relevant parties. F acilitate discussions to addre ss questions, concerns, and feedback from stakeholders including community, neighborhood groups, and the Agua Caliente Band of Ca huilla Indians, incorporate any necessary revisions to the analysis based on their input. l. Developing an implementation plan that outlines the steps, timeline, and resources required to implement the recommended changes to the Fire Depa rtment deployment str ategy. This may include identifying potential barriers and challenges and developing strategies to address them.
m. Establishing a plan for monitoring and evaluating the effectiveness of the recommended changes to the Fire Department deployment strategy over time.
This may include ongoing data collection, analysis, and reporting to ensure that the changes are achieving the desired outcomes and making continuous improvements as needed.
Item 1I - Page 18
Revised 4.13.23 Page 15 of 21
n. Evaluate fee schedule for service and cost recovery, i.e., EMS, community risk reduction service, etc. ( The Palm Springs Fire Department is requesting an opinion as to whether the charges and fees assess ed by the department are in a reasonable range.)
1.3 Schedule:
Work will commence on issuance of notice to proceed, and all work shall be completed within 6 months, unless otherwise specified by mutual agreement in writing.
1.4 Compensation:
Wo
rk will be compensated on a lumpsum basis. Contract pricing includes all labor, expenses, and incidentals to complete the work outlined in the contract scope. The Contractor may request monthly payments based on the percentage of work completed for the previous month as long as a detailed progress report is provided to support the amount requested. No additional compensation will be due by the City unless the contract is
modified for additional work requested by the City.
Item 1I - Page 19
Revised 4.13.23 Page 16 of 21
Item 1I - Page 20
ITEM
1 ATTACHMENT "G"
COST PROPOSAL
REQUEST FOR PROPOSAL (RFP 38-23)
FIRE DEPARTMENT ORGANIZATIONAL ANALYSIS, COMMUNITY RISK ASSESSMENT, STANDARD OF COVERAGE, AND 5-YEAR STRATEGIC PLAN
THIS FORM MUST BE COMPLETED AND SUBMITTED IN SEPARATE ELECTRONIC FILE #2 "Cost Proposal", NOTwith Electronic File-#1, Technical/Work Proposal") DESCRIPTION Unit of TOTAL
Measure
Organizational Analysis. Community Risk Assessment. LUMP SUM Standard of Coverage, 5-year Strategic Plan, and a
recommendation for a New Fire Station 1 location and $177,809 optimal service delivery as well as best Fire Department use of existing Fire Station 1 per scope
TOTAL $177,809
Fim1 Name: Citygate Associates. LLC
Signature of Authorized Person: __ _,J'="'(f-""~= f.,_-·...,C~-'_,_M{'.-=.,,./2-"2=· · ____ _ , " !
Printed Name: David C. OeRoos
Title: President
Date: 8/31/23
Revised 4.13.23 Page 17 of 21
EXHIBIT “B”
INSURANCE PROVISIONS
Including
Verification of Coverage,
Sufficiency of Insurers,
Errors and Omissions Coverage,
Minimum Scope of Insurance,
Deductibles and Self-Insured Retentions, and
Severability of Interests (Separation of Insureds)
Item 1I - Page 21
Revised 4.13.23 Page 18 of 21
INSURANCE
1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries agains t persons or damages to propert y resulting from Contra ctor’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 concurre ntly with its execution of this Agreement .
Contractor shall also carry workers’ compensation insurance in accordance with Californ ia workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement , incl uding any extensions. Such insurance shall not be c ancelable 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, officer s, 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 endorse ments evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers.
2. M inimum Scope of Insurance . The minimum amount of insurance requir ed under this Agreement shall be as follows:
1. Comprehe nsive 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 l iability (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 i nsurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one mil lion dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.
3. Primary Insurance. For any claims related to this Agreement, Contr actor’s insurance coverage shall be primar y with res pect to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self -insurance maintained by City and its respective elected officials, officers, empl oyees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensat ion and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and Item 1I - Page 22
Revised 4.13.23 Page 19 of 21
contribution it may have again st City, its elected officials, offic ers, employees, agents, and volunteers.
4. Errors and Omissions Coverage . If Errors & Omissions Insurance is required, and if Contractor provides claims made profes sional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made withi n three years of the completion of Contractor ’s services under this Agreement, or (2) to maintain professional liability insurance coverag e with the same carrier in the amount required by this Agree ment for at least three years after completion of Contract or’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, inc luding additional insured endorsement s, affecting all of the coverages required by this Agreement. The certificates and endors ements 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. Cit y reserves the right to require Contractor’s insurers to p rovide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required f or Errors a nd Omissions and Workers’ Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved G eneral and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Ins urance Coverage with an approved Additiona l Insured Endorsement w ith the following endorsements stated on the certificate:
A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
B. " This in surance 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 C ertificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.
Item 1I - Page 23
Revised 4.13.23 Page 20 of 21
D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies.
All certificates of insurance and endorsements are to be receiv ed and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter.
Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them.
7. Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunt eers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and def ense expenses.
Certificates of Insurance m ust include evidence of the amount of any deductible or self -insured retention under the p olicy. Contractor guarantees payment of all deductibles and self -insured retentions.
8. Severability of Interests (Separat ion of Insu reds). This insurance applies separately to each insured against whom claim is made or suit is brought except w ith respect to the limits of the insurer’s liability.
Item 1I - Page 24
Revised 4.13.23 Page 21 of 21
EXHIBIT “C”
EXECUTIVE ORDER N-6-22 CERTIFICATION
Executive Order N -6-22 issued by Governor Gavin Newsom on March 4, 2022, directs all agencies and departments that are subject to the Governor’s authority to ( a) terminate any contracts with any individuals or entities that are determined to be a target of economic sanctions against Russia and Russian entities and individuals; and (b) refrain from 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 1I - Page 25
ATTACHMENT B
Item 1I - Page 26
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
1. Name of Entity
2. Address of Entity (Principal Place of Business)
3. Local or California Address (if different than #2)
4. State where Entity is Registered with Secretary of State If other
than California, is the Entity also registered in California? Yes No
5. Type of Entity
Corporation Limited Liability Company Partnership Trust Other (please specify)
6. Officers, Directors, Membe rs, Managers, Tru stees, Other F iduciaries (please specify) Note: If any response is not a natural person, please identify all off icers, directors, members, managers and other fiduciaries for the member, manager, trust, or other entity
________________________ Officer Director Member Manager [name] General Partner Limited Partner
Other ___________________________
_______________________________ Officer Director Member Manager [name] General Partner Limited Partner
Other __________________________
________________________________
Officer Director Member Manager
[name] General Partner Limited Partner
Othe r __________________________
David, C. DeRoos
Citygate Associates, LLC
600 Coolidge Drive, Folsom, CA 95630
Chad Jackson
California
Item 1I - Page 27
X
X X X
X
7. O wners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity
EXAMPLE
JANE
DOE
[name of owner/i nvestor]
50% , A BC CO
MPANY, Inc.
[percentage of beneficial interest in entity and
name of entity]
A.
[name of ow ner/investor] [percentage of beneficial interest in entity and name of entity]
B.
[name of owne r/investor] [percentage of beneficial interest in entity and name of entity]
C.
[name of owner/i nvestor] [percentage of beneficial interest in entity and name of entity]
D.
[name of owner/investor] [p ercentage of beneficial interest in entity and name of entity]
E.
[name of owner/investor] [percentage of beneficial interest i n entity and name of entity]
I DECLA RE UNDER PENALTY OF PERJURY UNDER T HE LAWS OF T HE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
Signature of Disclosing Party, Printed Name, Title Date David, C. DeRoos 100%
8/31/23
David C. DeRoos, President
Item 1I - Page 28K.fc.~d
✓ - l
CITY COUNCIL STAFF REPORT
10/26/2023
SUBJECT:
ADOPT A RESOLUTION ADOPTING A FLAG DISPLAY POLICY AND
AUTHORIZING THE DISPLAY OF THE PRIDE FLAG AT CITY FACILITIES
ANNUALLY IN THE MONTH OF NOVEMBER
RECOMMENDATION:
Adopt a Resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF PALM SPRINGS, CALIFORNIA, ADOPTING A FLAG DISPLAY POLICY AND
AUTHORIZING THE DISPLAY OF THE PRIDE FLAG AT CITY-OWNED FACILITIES ANNUALLY IN THE MONTH OF NOVEMBER.”
Attachments
Item 1J
CITY COUNCIL STAFF REPORT
DATE: OCTOBER 26, 2023 CONSENT CALENDAR
SUBJECT: ADOPT A RESOLUTION ADOPTING A FLAG DISPLAY POLICY AND
AUTHORIZING THE DISPLAY OF THE PRIDE FLAG AT CITY FACILITIES
ANNUALLY IN THE MONTH OF NOVEMBER
FROM: Scott C. Stiles, City Manager
BY: Department of Maintenance & Facilities
SUMMARY:
Adoption of this resolution will adopt a policy to address which flags may be flown at City- owned facilities, and the procedures applicable to the display of such flags, including authorizing the display of the Pride flag at City facilities annually in the month of November.
RECOMMENDATION:
Adopt Resolution No. _____, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF PALM SPRINGS, CALIFORNIA , ADOPTING A FLAG DISPLAY POLICY AND
AUTHORIZING THE DISPLAY OF THE PRIDE FLAG AT CITY -OWNED FACILITIES ANNUALLY IN THE MONTH OF NOVEMBER.”
BACKGROUND:
Pride Month is an annual month- long celebration of the LGBTQ+ community, currently observed in the month of November in Palm Springs. The purpose of the commemorative month is to recognize the impact that lesbian, gay, bisexual, transgender and queer individuals have had on local, national, and international history, society and culture. This resolution will allow the City to show support to the LGBTQ+ community by flying the Rainbow Flag at City-owned facilities annually during the month of November.
STAFF ANALYSIS:
The City of Palm Springs has historically displayed the United States Flag and the California State Flag at City Hall and other City facilities. However, the City does not have a Council-adopted policy regarding the display of commemorative flags, such as the Pride Flag. Staff has prepared a Flag Display Policy relating to the display of the Pride Flag and Item 1J - Page 1
City Council Staff Report
October 26, 2023 -- Page 2
Adopt a Resolution Adopting a Flag Display Policy
a resolution for its adoption for Council’s consideration. The Flag Display Policy o utlines the procedures and standards for the display at City facilities. Staff recommends that the City Council approve the proposed policy to recognize the impact that lesbian, gay, bisexual, transgender, and queer individuals have had on history, society and culture locally, nationally, and internationally.
This flag policy has been reviewed by the City Attorney’s Office, in order to ensure that it complies with existing law, including the U.S. Supreme Court case, Shurtfleff v. City of
Boston (2021). That case stands for the proposition that the City is able to decide what to say and what not to say when it states an opinion, speaks for the community, formulates policies, or implements programs, including when deciding which commemorative flags to display (or not to display) at City facilities.
ALIGNMENT WITH STRATEGIC PLANNING:
This item aligns with the City Council identified major theme/principle of Forward-Thinking Governance, as well as Priority 1, Quality of Life.
FISCAL IMPACT
:
There is no fiscal impact associated with this resolution.
REVIEWED BY:
Acting Assistant Director of Maintenance & Facilities: Daniel Martinez Acting Public Works Director: Lauri Aylaian
Assistant City Manager: Teresa Gallavan
City Manager: Scott Stiles
ATTACHMENTS:
A. Resolution
B. Flag Policy
Item 1J - Page 2
ATTACHMENT A
Item 1J - Page 3
RESOLUTION NO. _____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS, CALIFORNIA, ADOPTING A FLAG DISPLAY POLICY AND
AUTHORIZING THE DISPLAY OF THE PRIDE FLAG AT CITY FACILITIES
ANNUALLY IN THE MONTH OF NOVEMBER
WHEREAS, the City Council desires to adopt a policy to address which flags may be flown at City facilities, and the procedures applicable to the display of such flags; and
WHEREAS, the City Council desires to reflect the dignity of flags flown on City flagpoles or displayed in front of City facilities, as well as the role of City Hall as an inclusive gathering location and local symbol of government and democracy; and
WHEREAS, the City’s flagpoles are not intended to serve as a forum for free expression by the public, but rather for the display of federal, state, and City flags, and any commemorative flag as may be authorized by the City Council as an expression of the City’s official sentiments; and
WHEREAS, the City believes that the fundamental rights guaranteed by the California and U.S. Constitutions apply to every person in the C ity. The City of Palm Springs has long been home to a culturally rich LGBTQ+ community that has played a significant role in the movement for equality and social justice in California, and the City prides itself as a City that respects and celebrates all persons and it is fully committed to welcoming and embracing all members of our community; and
WH
EREAS, the City and its residents celebrate the local LGBTQ+ community through special events and activities in the month of November each year.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The foregoing recitals are true and correct and are incorporated herein by this reference.
SECTION 2.
The City of Palm Springs hereby adopts the Flag Display Policy attached hereto as Exhibit A and incorporated herein by this reference. The Policy provides procedural guidance for (a) the display of the flag of the United States, the state flag of California, and the Palm Springs flag at City facilities; and (b) the display of commemorative flags as may be approved by the City Council.
SECTION 3. The City of Palm Springs does hereby resolve that the Pride Flag shall be displayed at City Hall each year from November 1 to November 30, in accordance with the requirements and procedures set forth in the City’s Flag Display Policy.
Item 1J - Page 4
Resolution No. _____
SECTION 4. The City Manager or their designee is responsible for ensuring the proper implementation of the Flag Display Policy at all City facilities.
SECTION 5. This resolution shall be effective immediately.
ADOPTED THIS DAY OF OCTOBER, 2023.
SCOTT STILES
CITY MANAGER
ATTEST:
BRENDA PREE
CITY CLERK
Item 1J - Page 5
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, 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 October , 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this day of October, 2023.
BRENDA PREE
CITY CLERK
Item 1J - Page 6
ATTACHMENT B
Item 1J - Page 7
CITY OF PALM SPRINGS
FLAG DISPLAY POLICY
I. Purpose
A. The City of P
alm Springs (“City”) desires to establish clear guidelines regarding the following matters:
1. Th e outdo
or display of the United States flag, the California State flag, and the City of Palm Springs flag at City facilities or City-owned or maintained flagpoles; and
2. Th e outdo
or display of other commemorative flags at City Hall and at other City facilities, in the City Council’s sole discretion.
B. In ad opti
ng this Policy, the City Council desires to reflect the dignity of these flags flown on City flagpoles or displayed in front of City facilities, as well as the role of City Hall as an inclusive gathering location and local symbol of government and democracy.
C. In a dopt
ing this Policy, the City Council hereby declares that flagpoles owned or maintained by the City are not intended to serve as a forum for free expression by the public, but rather as a n on-public forum for the display of the United States, State of California, and City of Palm Springs flags, and any commemorative flag authorized by the City Council as an expression of the City Council’s official sentiments (i.e., government speech).
II. Policy
A. Confor
mance with Federal and State Regulations. Flags shall be displayed in accordance with Federal and State statutes and regulations, including, but not limited to, United States Code, Title 4, Chapter 1, California Government Code section 430 et seq., and this Policy.
1. Per Calif
ornia Government Code section 431(a), the Flag of the United States and the Flag of the State of California shall be prominently displayed upon or in front of public buildings of the City.
2. Pe r California Gov ernment Code section 434.7, any Flag of the United States or Flag of Ca lifornia that the City purchases must be made in the United State s.
3. The United St ates Flag may only be flown at half-staff in accordance with the g uidelines set forth by the U.S. government.
Item 1J - Page 8
The State of California Flag shall be flown at half-staff if the United States Flag is flown at half-staff or on order of the Governor of California.
B. City Facilities.
1. Flagpoles located at City-owned or maintained facilities may fly the following flags, in the manner described below: the United States flag, the California State flag, the City of Palm Springs flag, and any approved commemorative flag.
2. The City of Palm Springs flag shall fly at half-staff if either the United States or California flag is at half-staff. The Mayor may order the City flag to fly at half- staff upon the death of a current or former City Council Member or current City staff member or a historically significant member of the community.
C. Commemorative Flags.
1. As an expression of the City’s official government speech, the City Council may authorize the display of a commemorative flag to fly on flagpoles owned or maintained by the City at City facilities.
2. The City Council shall only consider a request to display a commemorative flag if the request is made by a member of the Palm Springs City Council, and a majority of City Council members agree to place the discussion to authorize such display on the agenda for a regular or special City Council meeting.
Requests to fly a commemorative flag by members of the public will not be considered.
3. At a noticed and agendized City Council meeting, a majority of Council Members must agree to display the commemorative flag.
4. Commemorative flags shall be displayed for a period of time that is reasonable or customary for the subject that is to be commemorated, but no longer than thirty (30) consecutive days.
5. Commemorative flags must be either purchased by the City or temporarily donated for the City’s use and must be clean, without holes and tears, and be made of an all-weather fabric. Commemorative flags must be the same size or smaller than the United States and California flags that are flown. The City will not be responsible for the condition of the commemorative flag once flown.
6. If any other flag is flown at half-staff, the commemorative flag will also be flown at half-staff.
Item 1J - Page 9
7. A “commemorative flag” as defined in this Policy shall mean a flag that identifies with a specific historical event, cause, nation, or group of people that the City Council chooses to honor or commemorate consistent with the City’s mission and priorities. The following are not allowed as Commemorative Flags and will not be considered by the City Council:
a. Flags of a particular religious movement or creed, to avoid the appearance of City government endorsing religion or a particular religious movement or creed;
b. Flags of a political party, to avoid the appearance of City government endorsing a political party; and
c. Flags advocating a certain outcome in an election.
III. Procedures
A. No other flag shall be placed above the United States flag and no other flag shall be larger than the United States flag. Other flags may be flown at the same height and in the same size, in accordance with this Policy. Where both the United State Flag and the California State flags are flown, they shall be of the same size.
B. Flags should be hoisted briskly and lowered ceremoniously. The United States flag should be hoisted first and lowered last.
C. Flags shall be displayed during operating hours on all days on which the City is open for business, and on National and State holidays. Flags may be displayed twenty-four (24) hours a day as long as they are illuminated during darkness.
D. Flags shall not be displayed during inclement weather, unless all-weather flags are used and are illuminated during darkness.
E. When flags are displayed on a single pole, the order from top to bottom shall be:
the United States flag, the California State flag, and, if displayed, the City of Palm Springs flag and any commemorative flag.
F. W hen the flags are flown from adjacent flagpoles, the United States flag shall be flown at the highest point of honor, which is the furthest point to the left from the standpoint of the observer ("the flag's right").
G. When a flag is displayed at half-staff, it shall first be hoisted to the peak for a moment and then lowered to half-staff position. Before being lowered at the end of the day or when taken down, the flags shall again be hoisted to the peak for a moment and then fully lowered.
Item 1J - Page 10
CITY COUNCIL STAFF REPORT
10/26/2023
SUBJECT:
APPROVE CONSULTING SERVICES AGREEMENT NO. 23Q314 WITH M.
ARTHUR GENSLER JR. & ASSOCIATES, INC. FOR DESIGN AND
CONSTRUCTION SUPPORT SERVICES FOR AIRPORT PUBLIC RESTROOMS RECOMMENDATION:
Approve Consulting Services Agreement No. 23Q314 with Gensler to provide design services for an amount not to exceed $236,429 for Phase I – Basis of Design and Project Definition.
1. Authorize the City Manager or designee to negotiate and amend the contract at a later date to continue into Phase II of the project to complete the design of the project and provide construction support services for an amount not to exceed $3,000,000.
2. Authorize the City Manager or designee to execute all necessary documents.3.
Attachments
Item 1K
CITY COUNCIL STAFF REPORT
DATE: OCTOBER 26, 2023 CONSENT CALENDAR
SUBJECT: APPROVE CONSULTING SERVICES AGREEMENT NO. 23Q 314 WITH M. ARTHUR GENSLER JR. & ASSOCIATES, INC . FOR DESIGN AND
CONSTRUCTION SUPPORT SERVICES FOR AIRPORT PUBLIC
RESTROOMS
FROM: Scott C. Stiles, City Manager
BY: Department of Aviation
SUMMARY:
This action requests that the City Council approve a three-year agreement with M. Arthur Gensler Jr. & Associates, Inc. (Gensler) for Palm Springs International Airport (Airport) to provide design services for A irport restrooms Pha se I in an amount not to exceed $236,429.
RECOMMENDATION:
1. Approve Consulting Services Agreement No. 23Q314 (Attachment A) with Gensler to provide design services for an amount not to exceed $236,429 for Phase I – Basis of Design and Project Definition.
2. Authorize the City Manager or designee to negotiate and amend the contract at a later date to continue into Phase II of the project to complete the design of the project and provide construction support services for an amount not to exceed $3,000,000.
3. Authorize the City Manager or designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure form (Attachment B) submitted on February 28, 2022, M. Arthur Gensler Jr. & Associates, Inc., is a California corporation.
BACKGROUND:
The Palm Springs International Airport’s public restrooms are aging and in need of renovation. The Airport needs a highly qualified architectural firm to provide design Item 1K - Page 1
City Council Staff Report
October 26, 2023 -- Page 2
Award M. Arthur Gensler Jr. & Associates, Inc. Agreement
services for four public restrooms in the Airport main terminal (lower level and mezzanine level), two restrooms in the Bono Concourse, two restrooms in the sterile area courtyard, and two restrooms near the Regional Jet Concourse.
The Consultant will provide work in two phases: Phase I is for the development of a basis of design and project definition for the renovation of the restrooms; Phase II will be for the design and permitting, bidding phase assistance, and construction administration services for the remodel, modernization, and expansion of the facility’s ten existing public restrooms. The Consultant will maintain a project team consisting of members of its staff and any subconsultants that, in total, have all the disciplines required to complete the project requirements.
STAFF ANALYSIS:
In January 2023, the Procurement and Contracting Department issued Request for Qualifications 26-23 for Restroom Renovation Design Services for Palm Springs International Airport. Three qualified firms submitted their statement of qualifications by the February 28, 2023, deadline as follows:
• M. Arthur Gensler Jr. & Associates, Inc., Los Angeles, CA • Corgan Associates, Inc., Dallas, TX with local office in Culver City, CA • Rivers & Christian, Inc., Los Angeles, CA
An evaluation committee consisting of Airport staff reviewed and scored the statement of qualifications received against the criteria published in the Request for Qualifications. The Evaluation Committee then interviewed the two highest scoring firms, Gensler and Corgan Associates, Inc., and scored the interviews. The proposal scores and interview scores for each fir m were then combined to determine the final ranking. Gensler was determined to be the highest-ranking firm. Since this is a qualifications-based selection, Gensler was requested to provide a cost proposal for the work.
An independent fee analysis was also prepared by an independent firm under contract with the Airport, which showed the value of the work to be estimated at $3,163,776 in value. When the cost proposal was received , it reflected a design fee of $3,287,572.50.
This cost was much higher than staff expected. Staff spent several months negotiating with the firm and determined that a large part of the cost being so high were a number of different issues. These issues include the unknown conditions of the restrooms behind walls, the need for extensive phasing of the restroom work as they can’t all be out of service at once, the lengthy project duration, and the need for temporary restrooms to be designed to accommodate passengers while the work is being performed.
Item 1K - Page 2
City Council Staff Report
October 26, 2023 -- Page 3
Award M. Arthur Gensler Jr. & Associates, Inc. Agreement
Staff determined after reviewing the cost proposal and discussing the project in depth with the independent fee estimator, that the scope of the project needed to be better refined and programmed as there were too many unknowns concerning the utilities, phasing, and need for temporary restrooms that had not been fully planned out to be able to get to a fair and reasonable price for the work.
Therefore, staff has decided to have Gensler perform the work in two phases : Phase I will be to develop a basis of design and project definition that includes outreach to stakeholders and allows for more investigation of the site, so that a fair and reasonable price can be reached on the full design and construction support scope. A revised cost proposal was requested from the firm which was received October 2, 2023. The cost of this initial phase is $236,429. Staff feels this is a fair and reasonable price for this phase of the work and is recommending approval of the contract to be performed in two phases.
For Phase II, staff is recommending approval to continue negotiations after Phase I is complete, and for authorization for the City Manager to approve an amendment not to exceed $3,000,000 to add the cost of Phase II scope to continue the work to complete the design and construction support of t he project. Staff is making this recommendation in order to not have any further delays in getting this project underway. Staff is confident that the work can be negotiated under this threshold after Phase I is completed. However, should the work be over the $3,000,000 limit, staff would return to Council for approval to continue.
ENVIRONMENTAL ASSESSMENT
:
As part of this agreement, Gensler will prepare the required CEQA documents. City staff will review all CEQA documents prior to submission.
FISCAL IMPACT
:
Funds for the design and construction support services for airport restrooms, Phase I in the amount of $236,426 are available in Airport Grants Expense Capital Project account 4167070.50126. Funds for Phase II of the project to complete the design and provide construction support services in the amount of $3,000,000 are available in Airport Grants Expense Capital Project account 4167070.50126. The A irport intends to apply for grant funding through the Federal Aviation Administration (FAA) Bi partisan Infrastructure Law – Airport Terminal Program (BIL-ATP) to fund the design and construction of the project in federal fiscal year 2025. Upon approval of the grant, the Airport will bring the grant agreement to City Council for award of the grant. The Airport will have a 5% local share of funding a portion of the expenditure.
Item 1K - Page 3
City Council Staff Report
October 26, 2023 -- Page 4
Award M. Arthur Gensler Jr. & Associates, Inc. Agreement
REVIEWED BY:
Department Director: Harry Barrett, Jr.
Procurement and Contracting Director: Kim Baker
City Attorney: Oscar Verdugo
City Manager: Scott Stiles
ATTACHMENTS:
A. Professional Services Agreement 23Q314
B. Public Integrity Disclosure Form
Item 1K - Page 4
ATTACHMENT A
CONSULTING SERVICES AGREEMENT NO. 23Q314
WITH M. ARTHUR GENSLER JR. & ASSOCIATES, INC.
Item 1K - Page 5
CONSULTING SERVICES AGREEMENT 23Q314
RESTROOM RENOVATION DESIGN SERVICES FOR
PALM SPRINGS INTERNATIONAL AIRPORT
THIS AGREEMENT FOR CONSULTING SERVICES (“Agreement”) is made and entered into on November 1, 2023, by and between the City of Palm Springs, a California charter city and municipa l cor poration (“City”), and M. Arthur Gensler Jr. & Associates, Inc., a California Corpor ation, (“Consultant”) . City and Consultant are individually referred to as “Party” and are collectively referred to as the “Parties”.
RECITALS
A. City requires the services of an architect, for restroom renovation design services for the Palm Springs International Airport, (“Project”).
B. Consultant has submitted to City a proposal to provide architectural services, to City under the terms of this Agreement.
C. Based on its experience, education, training, and reputation, Consultant is qualified and desires to provide the necessary services to City for the Project.
D. City desires to retain the services of Consultant for the Project.
NOW, THE REFORE, in consideration of the promises and mutual obl igations, covenants, and conditions contained herein, and other valuable consi deration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. CO
NSULTANT SERVICES
1.1 Scope of Services . In compliance wit h all terms and conditions of this Agreement, Consultant shall provide architectural services to City as described in the Sco pe of Services/Work attached to this Agreemen t as Exhibit “A” (the “Services ” or “Work”) and incorporated herein by reference. Exhibit "A" includes the agreed upon schedule of performance and the schedule of fees. The work will be performed in two phases. Phase I to provide basis of design and project definition is authorized under this Agreement. Cost and Schedule for Phase II work to provide full design and construction support will be negotia ted at a later date and if successful, the Agreement will be amended to reflect the cost and schedule for this second phase.
Consultant warrants that the Services shall be performed in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced, and well qualified members of the profession cur rently practicing under similar conditions. In t he 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.
Item 1K - Page 6
1.2 Compliance with Law . Consult ant shall comply with all applicable fed eral, state, and local laws, statutes and ordinances and all lawful orders , rules, and regulations when performing the Services. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.
1.3 Licenses and Permits . Consultant shall obtain at its sole cost and e xpense such licenses, permits, and approvals as may be re quired by law for the performance of the S ervices required by this Agreement.
1.4 Familia rity with Work. By executing this A greement, Consultant warrants that it has car efully 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 Consultant is an essential condition of this Agreement. Consultant shall prosecute regularly and diligently the work of this Agreement according to the agreed upon s chedule of performance set forth in Exhibit “A.” Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non-performing Party. Delays shall not entitle Consultant to any additional compensation r egardless of the P arty responsible for the delay.
3. CO MPENSATION OF CONSULTANT
3.1 Compensation of Consultant. Consultant shall be compensated and reimbursed for the services rendered under this Agreement in accord ance with the schedule of fees set forth in Exhibit “A”. Compensation shall not exceed the maximum contract amount of $236,429.00 for Phase I – Evaluation and Programmatic Project Tasks. Phase II to complete the scope of work for design and construction assistance of this project will be negotiated after Phase I is completed and if a price is agreed to for Phase II of the work, the Agreement will be amended for a revised “Maximum Contract Amou nt". The method of compensation shall be as set forth in Exhibit “B” for Phase I of the Project.
3.2 Method of Payment . In any month in whic h Consultant wishes to receive payment, Consultant shall submit to City an invoice for Services rendered prior to the date of the invoice, no later than the first working d ay of such month, in the form approved by City’s finance director. Payments shall be based on the hourl y rates set forth in Exhibit “A” for authorized services p erformed. City shall pay Consultant for all expe nses stated in the invoice that are approved by City and consistent with this Agreement, within thirty (30) days of receipt of Consultant’s invoice.
3.3 Changes . In the event any change or changes in the S cope of Services/Work is requested by City, Parties shall execute a written amendment to this Agr eement, specifying all proposed amendments, including, but not limited to, any addi tional fees. An amendment may be entered into:
Item 1K - Page 7
A. To provide for revisions or mo difications 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 t his Agreement or not customarily furnished in accordance with generally accepted practice in Consultant’s profession.
3.4 A ppro priations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fisc al year. If suc h appropriations are not made, this Agreement shall automatically terminate without penalty to City.
4. PERFORM ANCE SCHEDULE
4.1 Time of Essence. Time is of the essence in the performance of this Agreement.
4.2 Schedule of Performance. A ll 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. T he time for performanc e of Services to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event , if Consultant notifies the Contract Officer within ten (10) days of the commencemen t of the Force Majeure Event. A Force Majeure Event sh all mean an even t th at materially affects the Co nsultant’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the proj ect site; (2) terrorism or ot her acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable del ay in the issuance of permits or approvals by gov ernmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of t his section, “orders of governmental authorities,” includes ordinances, emerge ncy p roclamations and orders, rules to protect the public health, welfare and safety, and othe r actions of the City in its capacity as a municipal authority. After Consultant notification, t he Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing the S ervices for the period of the enf orced delay when and if , in the Contract Officer’s judgment, such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. The Consultant will not receive an adjustment to the contract pri ce or any other compensation. Notwithstanding the foregoing, the City may still ter minate this Agre ement in accordance with the termination provisions of this Agreement.
4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement s hall contin ue in full force and effect for a period of three years, commencing on November 1, 2023, and ending on October 31, 2026, unless extended by mutual written agreement of the parties.
4.5 Termination Prior to E xpiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant . W here termination is due to the fault of Consultant and constitut es an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determin ed by the City. Upon receipt of the notice of termination, Consultant shall immediately cease all Item 1K - Page 8
Services except such as may be specifically approved by the Contract Offi cer. Consultant shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof whic h are specified herein . Consultant shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. If the termination is for cause, the City shall have t he right to take whatever s teps it deems necessary to correct Consultant 's deficiencies and charge the cost thereof to Consultant, who shall be liable for the ful l cost of the City's corrective action.
Consultant may not terminate this Agreement except fo r cause upon thirty (30) days written notice to City.
5. CO ORDINATION OF WORK
5.1 Representative of C onsultant. The following principal of Consultant is designated as being the principal and representative of Co nsultant authorized to act and make all decisions i n its behalf with res pect to the specified Services and work: Keith Thompson, Principal In Charge . It is expressly understood that the experie nce, knowledge, education, capability, and reputation of the foregoing principal is a substant ial inducement for City to en ter into this Agreement. Therefore, the foregoing princi pal shall be r esponsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the Services under this Agreement . The fore going principal may not be changed by Consultant without prior written approval of the Contract Officer.
5.2 Contract Officer. Th e C ontract Officer shall be the City Manager or his/ her designee ("Contract Officer"). Consultant shall be responsible for keeping the Contract Officer fully informed of the progre ss of the perfor mance of the Services . Consultant 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 Subcontr ac ting or Assi gnment. The experience, knowledge, education, capability, and reputation of Consultant , its principals and emp loyees, were a substantial inducement for Cit y to enter into this Agreement. Consul tant shall not contract with any other individual or entity t o pe rform 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 Ci ty. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Consultant is permitted to subcontr act any part of this Agreement by City, Consultant shall be responsible to Cit y 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 C onsultant. N either City nor any of its employees shall have any control over the manner, mode , or means by which Consultant , its agents or employees, perform the Services required, except as otherwise specified. Consultant shall perform all required Services as an independent Consultant of City and shall not be an employee of City and shall remain at all times as to City a wholly independent Consultant with only such obligations as are Item 1K - Page 9
consistent with that role; however, City shall have the right to review Consultant’s work product, result, and advice. Consultant 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. Consultant shall pay all wages, salaries, and other amounts due personnel in connection with their performance under this Agreement and as required by law. Consultant shall b e 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. Consultant shall not have any authority to bind City in any manner.
5.5 P ersonnel . Consultant agrees to assign the following i ndividuals to pe rform the Services in this Agreement. Consultant shall not al ter the assignment of the following personnel without the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted r ight to order the removal of any personnel assigned by Consultant by providing written notice to Consultant.
Name: T itle:
Keith Thompson Principal In Charge
Neil McLean Project Manager
Jennifer Cardinal Design Director
Mark McManus Project Architect
5.6 C alifo rnia Labor Code Requirements.
A. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the paym ent o f 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 p erformed as part of an applicable “public works” or “maintenance” project, as de fined by the Prevailing Wage L aws, and if the t otal compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, o r repair, Consultant agrees to fully comply with such Prevailing Wage Laws. Consul tant shall defend, indemnify and hold the Ci ty, its officials, officers, employees and ag ents free and harmless from a ny claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subcontractors to comply with all Ca lifornia Labor Code provisions, which include but are not limited to prevailing wage s (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Co de 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 subcont ractors (Labor C ode Section 1777.1).
B. If t he S ervices 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, de molition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subcontractors performing such Item 1K - Page 10
Services must be register ed with the Department of Industrial Relations. Consultant shall maintain registration for the dura tion of the Project and require the same of any subcontractors , as applicable. This Agreement may also be subj ect to compliance monitoring and enforcement by the Department of Industri al Relations. It shall be Consultant ’s sole responsibility to comply with all applicable registration and labor compliance requirements.
6. I NSURANCE
Consultant shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference.
7. I NDE MNIFICATION.
7.1 Indemnification. To the fullest extent per mitted by law, Consultant shall defend (at Consul tant’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, an d volunteers (collec tively the “Indemnified Parties”), from and against any an d all liabilities, actions, suits, claims, demand s, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal c osts and attorne y fe es (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons ( Consultant’s employees included), for damage to property, including property owned by City, for any violation of any federal, st ate, or local law or ordinance or in any manner arising out of, pertaining t o, or incident to any acts, errors or omissions, or willful misconduct committed by Consultant , its officers, employees, representatives, and agents, that arise out of or relate to Consultant’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits s et forth in this Agreement be construed to limit Consultant ’s indemnification obligation or other liability under this Agreement. Consultant’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actio ns against the I ndemnified Parties for such matters indemnified are fully and fi nally 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 Consultant’s obligation to defend, indemnify, and/or hold har mless arises out of Consultant ’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, r ecklessness, or willful misconduct of the Consultant in the performance of the Services or this Agreement, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant ’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
8. RE
CORDS AND REPORTS
8.1 Reports. Consultant 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.
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8.2 Records. Consult ant shall keep complete, accurate, and detailed accounts o f all time, costs, expenses, and expenditures per taining in any way to this Agreement. Consul tant shall keep such books and records as shall be necessary to properly perform the S ervices required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. The Contrac t 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 Do cu ments. All drawings, specifications, reports, records, documents, and other materials prepared by Consultant in the pe rformance of this Agreement shall be the property of Ci ty. Consultant shall deliver all above-referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement. Consultant shall have no claim for further employment or additional compensation as a result of the exerci se by City of its full rights or ownership of the documents and materials. Consultant may retain copies of such documents for Consultant's own use. Consultant shall have an unrestricted right to use the concepts embodied in such documents.
8.4 Release of Documents. All dra wings, specifications, reports, records, documents, and other materials prepared by Consultant in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer.
8.5 Audit and Inspect ion of Records. After receipt of reasonable notice and during the regular business hours of City, Consultant shall provide City, or other agents of City, such access to Consultant’s books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Consultant’s performance under this Agreement. Cons ultant shall maintain such books, records, data, and do cuments in accor dance with generally accepted accounting principles and shall clear ly identify and make such i tems readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder.
9. ENFORCEMENT OF AGREEMENT
9.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dis pute, claim , or matter arising out of or in relation to this Agreement shall b e instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
9.2 Interp retation. This Agreement shall be construed a s a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of th is Agreement a re contractual and the result of negotiation between the Parti es.
Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafti ng party, shall not be employed in the interpretation of this Agreement. The capti on headings of the various sections Item 1K - Page 12
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 o mission 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 Consultant. 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 Cu mul
ative. Except with respect t o rights and
remedies expressly declared to be exclusive in th is Agreement, the rights and remedies of the parties are cumulative . The exercise by either Party of one or more of such rights or remedies shall not preclude the e xercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
9.5 Legal Action. In addition to a ny other rights or remedies, either Party may take legal action, in law or in eq uity, 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 A ttorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or an y non- judicial proceeding, the prevailing Party shall be entitled, in a ddition 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 limit ed to reasonable attorney fees, expert consultant fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding.
10. CITY OFFICERS AND EM PLOYEES: NON-DISCRIMINATION
10.1 Non-Liability of City Officers and Emplo yees. No officer or employee of City shall be personal ly liable to the Consultant , 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 Consultant or its successor, or for breach of any obligation of the terms of this Agreement.
10.2 Conflict o f Interest. Consultant acknowledges that no officer or employee of the City has or shall have any direct or indirect financ ial interest in this Agreement, nor shall Consultant enter into any agreem ent of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Consultant warrants that Consultant has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.
10.3 Covenant Agai n
st Discrimina tion. In connection with its performance under this Agreement , Consultant shall not discrimin ate against any employee or applicant for employment because of actual or perceived race, r eligion, color, sex, age, marital status, ancestry, nat ional origin ( i.e ., place of origin, immigration status, cultural or linguist ic characteristics, or ethnicity ), sexual orientation, gender identity, gender expression, physical or Item 1K - Page 13
mental disability, o r medical condition (each a “prohibited basis”). Consul tant 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, Consu ltant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Consultant activity, including but not limited to the following: employment, upgrading, demotion or t ransfer; recruitment or recruitment advertising; layoff or termination; rates of pa y or other forms of compensation; and selection for training, including apprenticeship; and further, that Consultant i s 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. M
ISCELLANEOUS PROVISIONS
11.1 Notice. Any notice, demand, request, consent, approval, or communication tha t either Party desires , or is required to give to the other Party or any other pe rson shall be in writing and either served per sonally or sent by pre -paid, first-class mail to the address set forth below. Notice shall be deemed communicated seventy- two (72) hours from the time of mailing if mailed as provided in this Section. Eith er Party may change its address by notifying the other Party of the change of address in writing.
T o City: City of Palm Springs
Attention: City Manager/ City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
To Consultant: M. Arthur Gensler Jr. & Associates, Inc.
Attn: Keith Thompson
500 S. Figueroa Street
Los Angeles, CA 90071
11.2 I
ntegrated Agreement . This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, a greements, representations, and understandings, if any, made by or among the P arties 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 by all Parties.
11.4 Severability. Whenever possible, each provision of thi s Agreement shall be interpreted in such a man ner as to be effective and valid under applic able law. In the event that any one or more of the phrases, sentences, clauses, par agraphs, or sect ions contained in this Agreement shall be declared invalid or une nforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining Item 1K - Page 14
phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties.
11.5 S uccess ors in Interest . This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees.
11.6 Thi rd Party Benef iciary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a th ird-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 an d 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.
11.9 Counterparts. T his Agreement may be signed in counterparts, each of which shall constitute an original.
12. FEDERAL PROVISIONS
Since funding for the Se rvices 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 “C” attached hereto and incorpor ated herein by reference (“Federal Provisions”). With respect to any conflict between such Federal Provisions and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control.
[SIGNATURES ON NEXT PAGE]
Item 1K - Page 15
SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND M. ARTHUR GENSLER JR. & ASSOCIATES, INC.
IN WITNESS WHEREOF, the P arties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _______________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No.
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ D
ate:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Man
ager – up to $5,000
Item 1K - Page 16
EXHIBIT “A”
SCOPE OF SERVICES/WORK
Including,
Schedule of Fees
And
Schedule of Performance
Item 1K - Page 17
SCOPE OF WORK
1.1. Background:
A. Palm Springs International Airport (PSP) is a commercial service airport that serves nine Coachella Valley cities a nd the Inland E mpire in Southern Cal ifornia. It is wholly owned by the City of Palm Springs. The Airport is experiencing extensive growth with current enplanements at 1.6 million annually and hosting 13 airlines providing 70 daily flights during peak season.
B. This Project will potentia lly be f unded through grants by the Federal Aviation Administration, and as such all Proposers shall be familiar and should have experience with applicable procurement, design, and project requirements for these Federal entities.
C. PSP’s objective for this project is for renovation and capacity improvement of the airport’s public restrooms and adjacent custodial closets.
1.2. Scope:
A. P hase I – Basis of Design and Project Definition Tasks:
1. The Consultant shall create a basis of de sign and pr oject definition for the renovation of the public restrooms.
2. The Consultant will prepare the b asis of d esign (BOD) and p roject definition (PD) to understand the existing conditions, define the project, connect with the vision of the stakeholders, and create parameters for the developme nt of the design. The intent of this work is to establish a clear roadmap for the eventual design phases of the project and provide a reference to inform decisions at later phases of the project.
3. The BOD portion of the work should address the basis on whic h the project will be established, such as the existing conditions, the codes that apply, and the planning parameters that will be used. Also identify the i tems that the design and stakeholder team deem necessary as a basic assumption or condition in this part of the report.
4. The project definition portion of the work shall define the improvements that are being planned. This includes consensus from the stakeholder group to identify which restrooms will be renovated, the types of features to be included, the areas of expansion that are to be included, historical features to be retained or not included, resilience and sustainable feature to be included, and the rough character intended for the design. It will not be a final design, or layout, but enough information for the design team to commence the design process without having to seek further stakeholder interaction to define the project.
When design starts, stakeholders shall be brought into the process to assure that the Project Definition is being followed, and to give guidance if a signifi cant departure is necessary. Additionally the stakeholder and design team shall consider and include out line guidance for long term phasing of the improvements.
5. The
deliverable for this phase will be a pdf document that contains the basis of design and project definitions elements discussed above and f urther defined in the Consultants proposal for phase I.
Item 1K - Page 18
6. The work for phase I shall be completed in twelve weeks.
B. P hase II – Design and Construction Support Services:
1. T he Consultant will provide design and permitting, bidding phase assistance , and construction administration ser vices for the remo del, modernization, and expansion of the facility’s ten existing public restrooms. The Consultant will maintain a project team consisting of members of its staff and any subconsultants that, in total, have all the disci plines required t o complete the project requirements.
2. The restroom locations consist of four restrooms in the airport main terminal (lower level and mezzanine level), two restrooms in the Bono Concourse, two restrooms in the sterile area courtyard, and two restrooms near the Regional Jet Concourse. The new design will consist of:
a. Converting the courtyard restrooms to gender neutral facilities b. Improving ADA accessibility
c. Increasing capacity
d. Updating fixtures, finishes, materials and technology to improve vent ilation, ability to clean and maintain, and to improve energy efficiency e. Elevating restroom design and comfort using mid-century modernism design characteristics and art
3. The Consultant will provide all labor, equipment, supplies, and materials necessary to produce and deliver documents and specifications concerning the Project, performed in connection with various local, state, and/or federally funded projects for the Airport.
4. Schematic/Conceptual Design Phase Services tasks will include:
a. Lead on-site kick-off meeting with subconsultant team and City b. Manage project and coordinate with City and subconsultant team c. Project programming and visioning
d. Existing conditions surveying to include pipe inspection services using camera and video technology
e. Prepare schematic/conceptual design package for review and comment f. Provide schedule
g. Provide Preliminary Cost Estimate
h. Provide utility research
5. Design Phase Services include but are not limited to the following tasks:
a. Upon approval of the schemati c design package and cost estimate, prepare design development package
b. Detailed cost estimating and marketplace conditions
c. P rovide for construction phasing and scheduling that wi ll minimize interruption to Airport and stakeholder operations
Item 1K - Page 19
d. Provide al ternate systems evaluation and constr uctability studies where applicable
e. Geotechnical engineering and testing
f. Provide long-lead procurement studies
g. Assist in the permitting processes
h. Coordinate with various City of Palm Springs departments, other agencies, utility companies, etc.
i. Participate with the City in a process to set goals for local and SBE participation and implement the local and SBE process
j. Value engineering
k. Protect the owner’s sensitivity to quality, safety, and environmental factors l. Advise City on choosing green building materials
6. Bidding Phase
a. Upon approval of the construction documents and r eceipt of building permit, the Consultant will support the City’s bidding process. Tasks will include:
i. Attend pre-bid conference
ii. Assist with bid addenda and clarifications in response to bidder questions iii. Support City with bid evaluations as necessary
iv. Make design modifications to reduce construction cost as needed
7. Construction Observation Phase
a. Upon selection of c ontractor, Consultant will participate in construction administration/observation. Tasks will include:
i. Attend pre-construction conference
ii. Attend construction meetings
iii. Oversee project and coordinate with City and subconsultant team iv. Review submittals and mock-ups
v. Respond to requests for information (RFIs)
vi. Review proposed substitutions, alternates and change orders vii. Observe construction during bi -weekly visits for consistency with design intent as conveyed in the construction documents
viii. Attend substantial completion walk through
ix. Review contractor punch list
x. Attend final completion walk through
xi. Review contractor’s as built drawings
8. Close Out Phase
a. Coordinate and verify training and commissioning efforts Item 1K - Page 20
b. Contract close out and post occupancy evaluation
c. Provide as built drawings in CAD and PDF format
d. Coordinate and conduct an eleven-month warranty walk through
1.3. Deliverables:
A. Consultant shall provide design submittals, cost estimates, schedules, as built documents and reports as outlined in the scope of work for the various phases of design.
B. Consultant shall provide construction observation reports, responses to request for information and review comments on submittals during the construction phase.
1.4. Schedule:
Work
will commence upon execution of contract and shall be completed within 12 months.
1.5. Compensation:
Work will be compensated as outlined on the pricing sheet in the contract. Contract pricing includes all labor, expenses, and incidentals to complete the work outlined in the contract scope. The Contractor may request monthly payments based on the percentage of work completed for the previous month as long as a detailed progress report is provided to support the amount requested. No additional compensation will be due by the City unles s the contract is modified for additional work requested by the City.
Item 1K - Page 21
EXHIBIT “B”
INSURANCE PROVISIONS
Including
Verification of Coverage,
Sufficiency of Insurers,
Errors and Omissions Coverage,
Minimum Scope of Insurance,
Deductibles and Self-Insured Retentions, and
Severability of Interests (Separation of Insureds)
Item 1K - Page 22
INSURANCE
1. Procurement and Maintenance of Insurance. Consultant shall procure and maintain public liability and property d amage insurance against all claim s fo r inju ries against persons or dama ges to property resulting from Consultant’ s performance under this Agreement.
Consultant shall procure and mai ntain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit co ncurrently with its execution of t his Agreement.
Consultant shall also carry workers ’ compensation insurance in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and eff ect during the term of this Agr eement, incl uding any exte nsions. Such insurance shal l not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencin g the foregoing and designati ng the City, its elected offici als, 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 deli very of policies, certificates, and endorsements evidencing the same sh all not be construed as a limitation of Consultant’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers.
2. M inimum Scope of Insurance . The minimum amount of insurance requir ed under this Agreement shall be as follows:
A. C omprehensive 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 insurance 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 dollars ($1,000,000.00) per occurre nce an d two million doll ars ($2,000,000) annual aggregate is:
_____X___ required
_________ is not required;
D. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Lia bility Insurance with limits of a t le ast one m illion dollars $1 million per occurrence. If Consultant has no employees, Consultant shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.
3. P rimary Insurance. For any claims related to this Agre ement, Consulta nt’s insurance coverage s hall be primary 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 contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the ins urer shall waive all rights o f subrogation and Item 1K - Page 23
contribution it may have against City , its elected of ficials, offi cers, employees, agents, and volunteers.
4. E rrors and Omissions Coverage . If Errors & Omissions Insurance is required, and if Consultant provides claims made profes sional liability insurance, Consultan t 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 unde r this Agreement, or (2) to m aintain professional liability in surance coverage with th e same carrier in the amount required by this Agreement for at le ast three years after completion of Consultant’ s Services under this Agreement. Consultant 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. Sufficien cy of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of Cal ifornia. Coverage shall be provided by insurers admitted in the State of C alifornia with an A.M. Best’s Key Rating of B++ , Class VII, or better, unless otherwise acceptable to the City.
6. Verification of Coverage. C onsultant shall furnish City with both certificates of insurance and endorsements, i ncluding additional insur ed e ndorsements, effecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of ins urance is to be received and approved by the City before work commences. City reserves the right to require Consultant’s insurers to provide complete, certified copies of all required insurance p olicies at any time. Additio nal insured endorsements are not required f or Errors an d Omissions and Workers’ Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved General and/or A
uto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Ins urance Cover age with an appr oved Additiona l Insured Endorsement with the following endorsements stated on the certificate:
A. "The City o f Palm Springs, its officials, employees, 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 Pa lm 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 writte n noti ce to the Certificate Holder named." Language such as, “endeavor to” mail and "but fa ilure to mail such notice shall impose no obligation or liability of any kind upon the company, its agent s or representative" is not acceptable and must be crossed out.
Item 1K - Page 24
D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
In addition to the endorsements listed above, th e Ci ty of Palm Springs s hall be named t he certificate holder on the policies.
All certif icates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person w ith 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. D
eductibles and Self -Insured Retent ions. Any deduc tibles 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) 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) Consultant shall procure a bond guaranteeing payment of losses and related in vestigations, claim administratio n, a nd def ense expenses.
Certificates of Insurance must include evidence of the amount of any deductible or self -insured retention under the policy. Consultant guarantees payment of all deducti bles and self -insured retentions.
8. S
everability of Interest s (S eparation of Insur eds). 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 1K - Page 25
Exhibit C
FEDERAL AVIATION ADMINIS TRATION
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 1.4.2023
Item 1K - Page 26
APPLICABILITY – pertains to all contracts.
The Contractor must maintain an acceptable cost accounting system. The C ontractor 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 1K - Page 27
FAA - 02 Affirmative Action Requirement
NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO
ENSURE EQUAL EMPLOYMENT OPPORTUNITY
APPLICABILITY – p ertains to all contracts over $10,000 as follows:
Construction – AIP funded construction work contracts and subcontracts that excee d $10,000.
Construction work means construction, rehabilitation, alteration, conversion, extension, demolition or repair of bui ldings, 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 provisi on does not apply to equipment acquisition projects where the manufacture o f the equipment takes place offsite at a manuf acturer’s plant (e.g., firefighting and snow removal vehicles).
Professional Services – any professional service agreement if the profes sional services agreement includes tasks that meet the definition of construction work [as defined by the U.S.
Department of Labor (DOL)] and exceeds $10,000. Examples include installation of monitoring systems (e.g., noise, environmental, etc.).
Property/Land – any agreement associated with land ac quisition if the agreement includes construction work (defined above) tha t exceeds $ 10,000. Examples in clude 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 t o all of the Contractor’s construction work (whether or not it is Federal o r federal ly assisted) perfor med 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 per formed. Wit h regard to t his se cond area, the C ontractor also is subject to the goals for both its federally involved and nonfederally involved construction.
The Contractor’s compliance with the Executive Order and the regulations in 41 CFR Part 60-4 shall be based on i ts implementat ion of the Equal Opportunity Clause, specific affirmative Item 1K - Page 28
action obligations required by the specifications s et forth in 41 CFR 60-4.3(a) and its efforts to meet the goals. The hours of minority and female employment and training must be substantially unif orm 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 transf er of minority or female employees or trainees from Contractor to Contractor or f rom 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; emp loyer identification number of the subcontractor; estimated dollar amount of the sub contract; 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 not ice and in the contract resulting from this solicitation, the “covered area” is California, Riverside County, Palm Springs.
R
eference: 41 CFR Part 60-4
Item 1K - Page 29
FAA – 03 Breach of Contract
APPLICABILITY – required for all c ontracts that exceed the simplified acquisition threshold as stated in 2 C FR Part 200, Appendix II (A). This threshold is occasionally adjusted for inflation and is $250,000.
REQUIREMENT -
See Section 4.5 of the Agreement.
Reference: 2 CFR § 200 Appendix II(A)
Item 1K - Page 30
FAA – 04 Buy American Preferences
APPLICABILITY – required for contracts defined as follows:
• Construction Projects involving the replacement, rehabilitation, reconstruction of airfield surfaces such as on runways, taxiways, taxilanes, aprons, roadways, parking lots, etc. – Insert the Certificate of compliance to FAA Buy American Preference based on Construction Projects.
• Equipment and Buildings Projects involving and including the acquisition of equipment such as snow removal equipment, navigational aids, wind cones, and the construction of buildings such as hangars, terminal development, lighting vaults, aircraft rescue & firefighting buildings, etc. - Insert the Certificate of Compliance with FAA Buy American Preference Based on Equipment/Building Projects.
REQUIREMENT -
The Contractor certifies that all constructions materials, defined to mean an article, materia l, or supply other than an i tem 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 ar e or consist primarily of: non- ferrous meta ls; plastic and polymer -based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables) ; glass (including optic glass); lumber; or d rywall u sed in the project ar e manufactured in the U.S.
Reference: Title 49 USC § 50101
Item 1K - Page 31
FAA – 05 Civil Rights General
APPLICABILITY – required for all contracts regardless of funding source.
REQUIREMENT -
In all its activities within the scope of its ai rport program, the Contractor agrees to comply with pertinent statutes, Exe cutive Or ders, and such r ules as id entified in Title VI List of Pertinent Nondiscrimination Acts and Authorities to ensure that no per son shall, on the grounds of race, color, national origin (including limited English proficiency), creed, sex (including s exual orientation and gender identity), age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance. The above provision binds the Contractor and subcontractors from the bid solicitation period through the completion of the contract.
This provision is in addition to that required by Title VI of the Civil Rights Act of 1964.
Reference: 49 USC § 47123
Item 1K - Page 32
FAA – 06 Civil Rights – Title VI Assurances
APPLICABILITY – required for all contracts.
REQUIREMENT -
Title VI List of Pertinent Nondiscrimination Acts and Authorities During the performance of this contract, the Contractor, for its elf, its assignees, and successors in interest (hereinafter referred to as the “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 § 2 000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin); • 49 CFR part 21 ( Non-discrimination in Federa lly-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) (pr ohibits unfair treatment of per sons 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 a nd Airw ay 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, cover age and applicability of Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975 and Section 504 of the Rehabilit ation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or act ivities 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 Di sabilities 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); • E xecutive Or der 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income P opulations (ensures nondiscrimination against minority populations by discouraging programs, policies, and ac tivities with disp roportionately high and adverse human health or environmental effects on minority and low-income populations); Item 1K - Page 33
• Executive Order 13166, Imp roving 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) wi ll comply with the Title VI List of Pertinent Nondiscriminat ion Acts and Authorities, as they may be amended from time to time, which a re herein incorporated by reference and made a part of this contract.
2. Nondiscrimination: The Contractor, with regard to the work p erformed by it during the contract, will not discriminate on the grounds of race, color, national origin (including limited English proficiency), creed, sex (including sexual orientation and gender identity), age, or disability in the selection and retenti on of subcontractors, including procurements of materials and leases of equipment. The Contractor will not participate directly or indirectly in t he discrimination prohibited by the Nondiscrimination Acts and Authorities, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR part 21.
3. Solicitations for Subcontracts, including Procurements of Materials and Equipment:
In all solicitations, either by competitive bidding or negotiation m ade by the Contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Contractor of the Contractor’s obligations under this contract a nd the Nondiscrimination Acts and Authorities on the grounds of race, color, or national origin.
4. Information and Reports: The Contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant th ereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City o r the Federal Aviation Administration to be pertinent to ascertain compliance with such Nondiscrimination Ac ts and Authorities and instructions. Where any information required of a C ontractor is in the exclusive possession of anot her who f ails 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. S anctions for Noncompliance : I n the ev ent of a Contrac tor’s noncompliance with the non-discrimination provisions of this contract, the City w ill impose such contr act sanctions as it or the Federal Aviation Admi nistration may determine to be appropriate, including, but not limited to:
Item 1K - Page 34
a. Withholding payments t o 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 su bcontract, 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 F ederal 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 subc ontractor, 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 A ir 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 Environment al Protection Agency (EPA) and the Federal Aviat ion Administration.
Contractor must include this requirement in all subcontracts that exceeds $150,000.
Reference: 2 CFR § 200, Appendix II(G); 42 USC § 7401; 33 USC § 1251
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FAA – 08 Contract Work Hours and Safety Standards
APPLICABILITY – This provision is required for contracts as follows:
Contract Work H ours and Safety Sta ndards Ac t Requirements ( CWHSSA) (40 USC §§ 3702 & 3704) requires contractors and subcontractors on covered contracts to pay laborers and mechanics employed in the performance of the cont racts not less than one and one- half times their basic rate of pay for all hours worked over 40 i n a wor kweek.
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 requi rements of t his 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 p rojects where th e m anufacture 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, m echanics, wa tchmen, and guar ds. This includes members of survey crews and exploratory drilling operations.
Property – While m ost land t ransactions do not involve employment of laborers, mechanics, watchmen, and guards, under certain circumstances, a prope rty acquisition project coul d 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 subcon tractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall requi re or permit any such laborer or mechanic, including watchmen and guards, in any workweek in which he or she is employed on such work to work in ex cess of fo rty hours in such workweek unless such laborer or mechanic receives compensation at a rate not les s than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
2. Violation; Liability for Unpaid Wages; Liquidated Damages.
In the event of any violation of the clause set forth in paragraph (1) of thi s clause, the Contractor and any subcontractor r esponsible 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 Colum bia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with re spect 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 Item 1K - Page 37
permitted to work in excess of the s tandard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this clause.
3. Withholding for Unpaid Wages and Liquidated Damages.
The Federal Aviation Administration (FAA) or the City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhol d or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor unde r any such contract or any othe r Federal contract with the same prime C ontractor, or any other federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same pri me 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 I I(E); 2 CFR § 5.5(b); 40 USC § 3702; 40 USC § 3704
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F AA – 09 Copeland Anti-Kickback
APPLICABILITY -
The Copeland (Anti-Kickback) Act (18 USC § 874 and 40 USC § 3145) makes it unlawful to induce by force, intimidation, threat of dismissal from employment , or by any other manner, any person employed in the construction or repair of public buildings or public works, financed i n whole or in part by the United States, to give up any part of the compensation to which that person is entitled under a contract of employment. The Copeland Act also requires each contr actor and subcontractor to furnish weekly a statement of compliance w ith respect to the wages paid each employee during the preceding week.
Contract Types –
Construction – This provision applies to al l construction contracts and subcontracts financed under the AIP that exceed $2,000.
Equipment – This provision applies to all equipment installation projects (e.g., electrical vault improvements) financed under the AIP that exceed $2,000. This provision does not apply to equipment acquisitions where the equipment is manufactured at the vendor’s plant (e.g., SRE and ARFF vehicles).
Professional Services –The emergence of different project delivery methods has created situations where Professional S ervice Agreements (PSAs) include tasks that meet the definiti on of construction, alteration, or repair as defined in 29 CFR Part 5 . If such tasks result in work that qualifies as construction, alteration, or repair and it exceeds $2,000, the PSA must incorporate the Copeland Anti-kickback provision.
Property –Ordinarily, land acquisition projects would not involve employment of laborers or mechanics and thus the Copeland Anti-Kickback provision would not apply. However, land projects that involve installation of b oundary fencing and demolition of structures would involve laborers and mechanics. The City must include this provision if the land acquisition project involves employment of laborers or mechanics for a contract exceeding $2,000.
REQUIREMENT -
Contractor must comply with the requirements of the Copeland “Anti-Kickback” Act (18 USC 874 and 40 USC 3145), as supplemented by Department of Labor regulation 29 CFR part 3. Contractor and subcontractors are prohibited from inducing, by any means, any person e mployed on the project to give up any part of the compe nsation to which the employee is entitled. The Contractor and each Subcontractor must submit to the City, a weekly statement on the wages paid to each employee performing on covered work during the pr ior week. City must report any violations of the Act t o the Federal Aviation Administration.
Reference: 2 CFR Part 200, Appendix II(D); 29 CFR Parts 3 and 5 Item 1K - Page 39
FAA – 10 Davis Bacon Requirements
APPLICABILITY -
The Davis -Bacon Act (40 USC §§ 3141- 3144, 3146, and 3147) ensures that laborers and mechanics employed under the contract receive pay no less than the locally prevailing wages and fringe benefits as determined by the Department of Labor.
Contract Types –
Construction – all construction contracts and subc ontracts that exceed $2,000 and include funding from the AIP.
Equipment – This provision applies to all equipment installation projects (e.g., electrical vault improvements) financed under the AIP that exceed $ 2,000. This provision does not apply to equipment acquisitions where the equipment is manufact ured at the vendor’s plant (e.g., SRE and ARFF vehicles)
Professional Services – The emergence of different project delivery methods has created situations where Professional Service Agreements (PSAs) i ncludes tasks that meet the definition of construction, alteration, or repair as defined in 29 CFR Part 5. If such tasks result in work that qualifies as construction, alteration, or repair and it exceeds $2,000, the PSA must incorporate this clause.
Property – Ordinarily, land acquisition projects would not i nvolve employment of laborers or mechanics and thus the provision would not apply. However, land projects that involve installation of boundary fencing and demolition of structures would involve labor ers and mechanics. The City must include this provision if the land acquisition project involves employment of laborers or mechanics for a contract exceeding $2,000.
Fencing Projects – Fencing projects that exceed $2,000 must include this provision.
DAVIS-BACON REQUIREMENTS
1. Minimum Wages.
(i) All labor ers and mechanics employed or working upon the site of the work will be pai d unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalent thereof) due at time of payment computed at rates not less t han those contained in the wage determination of the Secretary of Labor w hich is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics.
Contri
butions made or costs rea sonably anticipated for bona fide fringe benefi ts under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred f or more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and Item 1K - Page 40
mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR § 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for t he time actually worked therein: Provided, that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determ ination (including any additional classification and wage rates conformed under (1)(ii) of this section) and the Davis-Bacon poster (WH -1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can easily be seen by the workers.
(ii)(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determinati on and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage determination;
(2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rat e, incl uding any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (C) In the event the Contractor, the laborers, or mechanics to be employed in the classification, or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting o fficer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(D) The wage r
ate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(ii) (B) or (C) of this paragraph, shall be paid to all workers performing work in the classification under this cont ract from the first day on which work is perfor med in the classification.
Item 1K - Page 41
(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
(iv) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mec hanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, that the Secretary of Labor has found, upon the written request of the Cont ractor, that the applicable standards of the Davis -Bacon A ct have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.
2. Withholding. The Federal Aviation Administration or the CIty shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this contract or any other Federal contract with t he same prime contractor, or any other federally -assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechani cs, including apprentices, trainees, and hel pers, employed by the Contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the Federal Aviation Administration may, after written notice to the Contractor, City, Applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.
3. Payrolls and Basic Records.
(i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the cour
se of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker; his or her correct classification; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 1(b)(2)(B) of the Davis -Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Dav is-Bacon Act, the Contractor shall maintain records that show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual costs incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration o f apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.
Item 1K - Page 42
(ii)(A) The Contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit the payrolls to the applicant, the City , or Owner, as the case may be, for transmission to the Federal Aviation Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR § 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee’s social security number). The required weekly payroll informa tion may be submitted in any form desired. Optional Form WH–347 is available for this purpose from the Wage and Hour Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker and shall provide them upon request to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit them to the applicant , the City, or Owner, as the case may be, for transmission to the Federal Aviation Administration, the Contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the sponsoring government agency (or the applicant, City, or Owner).
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or subcontractor or his or her agent who pay s or supervises the payment of the persons employed under the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under 29 CFR § 5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR § 5.5 (a)(3)(i), and that such information is correct and complete; (2) That each laborer and mechanic (including each helper, apprentice, and trainee) employed on the contract d uring the payroll period has been paid the ful l weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set for th in Regulations, 29 CFR Part 3;
(3) That ea ch laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph (3)(ii)(B) of this section. (D) The falsification of any of t
he 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.
Item 1K - Page 43
(iii) The Contractor or subcontractor shall make the records r equired under paragraph (3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the City, the Federal Aviation Administration, or the Department of Labor and shall permit such representatives to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the Contractor, the City, applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR § 5.12.
4. Apprentices and Trainees.
(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Appr enticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentic e performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman’s hourly rate) specified in the Contractor’s or subcontractor’s registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice’s level of p rogress, expressed as a percentage of the journeymen hourly rate spec ified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not speci fy fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classificat ion, fring es shall be paid in accordance with that det ermination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees. Except as provided in 29 CFR § 5.16, trainees will not be p ermitted 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 Item 1K - Page 44
certification by the U.S. Department of Labor , Employ ment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate sp ecified in the approved program for the trainee’s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If t he trainee program does not mention fringe benefits , trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination that provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate that is not registered and participating in a train ing plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage det ermination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the Contractor will no longer be permitted to ut ilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal Employment Opportunity. The utilization of appr entices, trainees, and journeymen under this part shall be in conform ity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.
5. Compliance with Copeland Act Requirements.
The Contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference in this contract.
6. Subcontracts.
The Contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR §§ 5.5(a)(1) through (10) and such other clauses as the Federal Aviation Administration may by appropriate ins tructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR § 5.5.
7. Contract Termination: Debarment.
A breach of the contract clauses in paragraph 1 through 10 of this section may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR § 5.12.
8. Compliance with Davis-Bacon and Related Act Requirements.
All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract.
9. Disputes Concerning Labor S
tandards.
Item 1K - Page 45
Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the Contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.
10. Certification of Eligibility.
(i) By entering into this contract, the Contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor’s firm is a person or firm ineligible to be awarded Government contrac ts by v irtue of section 3(a) of the Davis -Bacon Act or 29 CFR §
5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR § 5.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 USC § 1001.
Reference: 2 CFR Part 200, Appendix II(D) ; 29 CFR Part 5; 49 USC § 47112(b) ; 40 USC §§ 3141-3144, 3146, and 3147
Item 1K - Page 46
FAA – 11 Debarment and Suspension
APPLICABILITY - This requirement applies to covered transactions, which are defined in 2 CFR part 180 (Subpart B). AIP funded contracts are non- procurement transactions, as defined by 2 CFR § 180.970. Covered transactions include any AIP -funded contract, regardless of tier, that is awarded by a contractor, subcontractor, supplier, consultant, or its agent or representative in any transaction, if the amount of the contract is expected to equal o r exceed $25,000. This includes contracts associated with land acquisition projects.
REQUIREMENT -
A11.3.1 Bidder or Offeror Certification
By submitting a bid/proposal under the solicitation for this contract, the Contractor must have certified that neit her it nor its principals are presently debarred or suspended by any Federal department or agency from participation in this transaction.
A11.3.2 Lower Tier Contract Certification
CERTIFICATION OF LOWER TIER CONTRACTORS REGARDING DEBARMENT The Contractor, by administering each lower tier subcontract that exce eds $25,000 as a “covered transaction”, must verify each lower tier participant of a “covered transaction” under the project is not presently debarred or otherwise disqualified from participation in thi s federally assisted project. The Contractor will accomplish this by:
1. Checking the System for Award Management at website: http://www.sam.gov.
2. Collecting a certification statement similar to the Certification of Offerer /Bidder Regarding Debarment, above.
3. Inserting a clause or condition in the covered transaction with the lower tier contract.
If the Federal Aviation Administ ration later determines that a lower tier participant failed to disclose to a higher tier participant that it was excluded or disqualified at the time it entered the covered tr ansaction, the FAA may pursue any available remedies, including suspension and debarment of the non-compliant participant.
Reference: 2 CFR part 180 (Subpart B), 2 CFR part 200 Appendix II(H), 2 CFR Part 1200, DOT Order 4200.5; Executive Orders 12549 and 12689
Item 1K - Page 47
FAA – 12 Disadvantaged Business Enterprise
APPLICABILITY – all contracts with Airports that have a DBE program on file with the FAA.
Contract Assurance (§ 26.13) –
The Contractor or subcontractor s hall not discriminate on the basis of race, color, nat ional origin, or sex in the performance of this contract. The Contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of Department of Transportation-assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the City deems appropriate, which may include, but is not limited to:
1) Withholding monthly progress payments;
2) Assessin g sanctions;
3) Liquidated damages; and/or
4) Disqualifying the Contractor from future bidding as non-responsible.
Prompt Payment (§26.29) – The prime contractor agrees to pay each subcontractor under t his prime contract for satisfactory performance of its contract no later than [10 days] days from the receipt of each payment the prime contractor receives from [the City]. The prime contracto r agrees further to return retainage payments to each subcontrac tor within [30 days] days after the subcon tractor’s wo rk is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the [City]. This clause applies to both DBE and non-DBE subcontractors.
Termination of DBE Subcontracts (49 CFR § 26.53(f)) –
The prime C ontractor must not terminate a DBE subc ontractor listed in response to the solicitation (or an approved substitute DBE firm) without prior written consent of the City. This includes, but is not limited to, i nstances in which the prime contractor seeks to perform work originally designated for a DBE subcontractor with its own forces or those of an affiliate, a non - DBE firm, or with another DBE firm.
The prime Contractor shall utilize the specific DBEs listed t o perform the work and supply the materials for which each is listed unless the C ontractor obtains written consent of the City.
Unless City consent is provided, the prime Contractor shall not be entitled to any pa yment for work or material unless it is performed or supplied by the listed DBE.
The City may provide such written consent only if the City agrees, for reasons stated in the concurrence document, that the prime Contractor has good cause to terminate the DB E firm.
For purposes of this paragraph, good cause includes the circumstances listed in 49 CFR §26.53.
Before transmitting t o the City its request to terminate and/or substitute a DBE subcontractor, the prime C ontractor must give notice in writing to the D BE subcontractor, with a copy to the City, of its intent to request to terminate and/or substitute, and the reason for the request.
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The prime contractor must give the DBE five days to respond to the prime contractor's notice and advise the City a nd the Contractor of the reasons, if any, why it objec ts to t he proposed termination of its subcontract and why the City should not approve the prime Contractor's action. If required in a particular case as a matter of public necessity (e.g., safety), the City may provide a response period shorter than five days.
In addition to post-award terminations, the provisions of this section apply to preaward deletions of or substitutions for DBE firms put forward by offerors in negotiated procurements.
Reference: 49 CFR part 26
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FAA – 13 Distracted Driving
APPLICABILITY - contracts that exceed the micro-purchase threshold of 2 CFR § 200.320 (currently set at $10,000).
REQUIREMENT -
TEXTING WHEN DRIVING
In accordance with Executive Order 13513, “Federal Leadership on Reducing Text Messaging While Driving”, (10/1/2009) and DOT Order 3902.10, “Text Messaging While Driving”, (12/30/2009), the Federal Aviation Administration encourages recipients of Federal g rant funds to adopt and enforce safety policies that decrease crashes by distracted drivers, including policies to ban text messaging while driving when performing work related to a gran t or subgrant.
In support of this initiative, the City encourages the Contractor to promote policies and initiatives for its employees and other work personnel that decrease crashes by distract ed drivers, including policies that ban text messaging while driving motor vehicles while performing work activities associated with the project. The Contractor must include the substance of thi s clause in all sub-tier contracts exceeding $10,000 that involve driving a motor vehicle in performance of work activities associated with the project.
Reference: Executive Order 13513, DOT Order 3902.10
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FAA – 14 Prohibition on Certain Telecommunications and Video Surveillance Services and Equipment
APPLICABILITY - all AIP funded contracts and lower-tier contracts.
REQUIREMENT -
Contractor and Subcontractor agree to comply with mandatory standards and policies relating to use and procurement of certain telecommunications and video surveillance services or equipment in compliance with the National Defense Authorization Act [Public Law 115- 232 § 889(f)(1)].
Reference: 2 CFR § 200, Appendix II(K); 2 CFR § 200.216 Item 1K - Page 51
FAA – 15 Drug Free Workplace Requirements
APPLICABILITY - This provision applies to all AIP funded proje cts, but not to the contracts between the City and a contractor, subcontractors, suppliers, or subgrantees.
The Drug -Free Work place Act of 1988 requires some Federal contractors and all Federal grantees to agree that they will provide drug -free work places as a condition of receiving a contract or grant from a Federal agency. The Act does not apply to contractors, subcontractors, or subgrantees, although the Federal grantees workplace may be where the contractors, subcontractors, or subgrantees are working.
Reference: 49 CFR part 32, Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq., as amended)
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FAA – 16 Equal Employment Opportunity
APPLICABILITY – The purpose of this provision is to provide equal opportunity for all persons, without regard to r ace, co lor, religion, sex, or national origin who are employed or seeking employment with contractors performing under a federally-assisted construction contract. There are two provisions ― a construction clause and a specification clause.
The equal opportunity contract clause applies to any contract or subcontract when the amount exceeds $10,000. Once the equal opportunity clause is determined to be applicable, the contract or subcontract must include the clause for the remainder of the year, regardless of the amount or the contract.
Contract Types –
Construction – all construction contracts and subcontracts as required above.
Equipment – all equipment contracts as required above that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at the vendor plant (e.g., ARFF and SRE vehicles).
Professional Services – all professional service agreements as required above.
Property – all land acquisition projects that include work that qualifies as construction work as defined by 41 CFR part 60 as required above. An example is installation of boundary fencing.
REQUIREMENT -
A16.3.1 EEO Contract Clause
During the performance of this contract, the Contractor agrees as follows:
(1) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.
The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identify, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff, or termination; rates of pay or other forms of compensation; and s election f or training, including apprenticeship. The Contract or agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other m anner 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 Item 1K - Page 53
or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses t he compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or ac tion, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information. (4) The Contractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers’ representative of the Contractor’s commitments under this section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The Contractor will furnish all inf ormation and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investig ation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the Contractor’s noncompliance w ith the nondiscrimination clauses of this contract or with any such rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (8) The Contractor will include the provisions of paragraphs (1) through (8) in every s ubcontract 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
CO
NSTRUCTION CONTRACT SPECIFICATIONS
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a. “Covered area” means the geographical area described in the solicitation from which this contract resulted;
b. “Director” means Director, Office of Federal Contract Compliance Programs (OFCCP), U.S.
Department of Labor, or any person to whom the Director delegates authority; c. “Em ployer identification number” means the Federal social security number used on the Employer’s Quarterly Federal Tax Return, U.S. Treasury Department Form 941; d. “Minority” includes:
(1) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin);
(2) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race);
(3) Asian and Pacific Islander (all persons having origins in any of the ori ginal peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and (4) American Indian or Alaskan native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification).
2. Whenever the Contractor, or any subcontrac tor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions of these specifications and the Notice which contains the applicable goals for minority and female participation and which is set forth in the solicitations from which this contract resulted.
3. If the Contrac tor is participating (pursuant to 41 CFR part 60 -4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in accordance with that Plan f or those trades which have unions participating in the Plan. Contractors must be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each contractor or subcontractor participating in an approved plan is individually required to comply with its obligations under the EEO clause and to make a good faith effort to achieve each goal under the Plan in each trade in which it has employees. The overall good fai th performance by other contractors or subcontractors toward a goal in an approved Plan does not excuse any covered contractor’s or subcontractor’s failure to take good faith efforts to achieve the Plan goals and timetables.
4. T he Contractor shall implem ent the specific affirmative action standards provided in paragraphs 7a through 7p of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and female utilization the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. Covered construction contractors performing construction work in a geographical areas where they do not have a Federal or federally assisted construction Item 1K - Page 55
contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the Fede ral Register in notice for m, and such notices may be obtained from any Office of Federal Contract Compliance Programs office or from Federal procurement contracting officers.
The Contractor is expected to make substantially uniform progress in meeting its goals in each craft during the period specified.
5. Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the Contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the Contractor’s obligations under these specifications, Executive Order 11246, or the regulations promulgated pursuant thereto.
6. In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees m ust be emp loyed by the Contractor during the training period, and the Contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor.
7. The Contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the Contractor’s compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The Contractor shall document these efforts fully, and shall implement affirmative action steps at least as extensive as the following:
a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sit es, and in all facilities at which the Contractor’s employees are assigned to work. The Contractor, where possible, will assign two or more women to each construction project. The Contractor shall specifically ensure that all foremen, superintendents, and other onsite supervisory personnel are aware of and carry out the Contractor’s obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities. b. Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contract or or its u nions have employment opportunities available, and maintain a record of the organizations’ responses. c. Maintain a current file of the names, addresses, and telephone numbers of each minority and female off -the-street applicant and minority or female ref erral from a union, a recruitment source, or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the uni on or, if referred, not employed by the Contractor, this shall be documented in the file with the reason therefor, along with whatever additional actions the Contractor may have taken. d. P
rovide immediate written notification to the Director when the uni on or unions with which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or woman sent by the Contractor, or when the Contractor Item 1K - Page 56
has other information that the union referral process has impeded the Contractor ’s efforts to meet its obligations.
e. Develop on-the-job training opportunities and/or participate in training programs for the area which expressly include minorities and women, including upgrading programs and apprenticeship and trainee progr ams relevant to the Contractor’s employment needs, especially those programs funded or approved by the Department of Labor.
The Contractor shall provide notice of these programs to the sources compiled under 7b above.
f. Disseminate the Contractor’s EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contract or 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 minori ty and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all emp loyees at each location where construction work is performed.
g. Review, at least annually, the company’s EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, l ayoff, termination, or other employment decisions including specifi c review of these items with onsite supervisory personnel such superintendents, general foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meet ings, persons attending, subject matter discussed, and disposition of the subject matter. h. Disseminate the Contractor’s EEO policy externally by including it in any advertising in the news media, specif ically including minority and female news media, and providing written notification to and discussing the Contractor’s EEO policy with other contractors and subcontractors with whom the Contractor does or anticipates doing business. i. Direct its recruitment efforts, both oral and written, to minority, female, and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the Contractor’s recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the Contractor shall send written notification to organizations such as the above, describing the openings, screening procedures, and tests to be used in the s election process.
j. E ncourage present minority and female employees t o recruit other minority persons and women and, where reasonable, provide after school, summer, and vacation employment to m inority and female youth both on the site and in other areas of a contractor’s work force.
k. V
alidate all tests and other selection requirements where there is an obligation to do so under 41 CFR part 60-3.
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l. Conduct, at least annually, an inventory an d evaluation at least of all minority and female personnel, f or promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities. m. Ensure that seniority practices, job classifications, work assignments, and other personnel practices do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the EEO policy and the Contractor’s obligations under these specifications are being carried out. n. Ensure that all facilities and company activities are nonsegregated except that separate or single- user toil et and necessary changing facilities shall be provided to assure privacy between the sexes.
o. Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations.
p. Conduct a review, a t least annually, of all supervisor’s adherence to and per formance under the Contractor’s EEO policies and affirmative action obligations.
8. Contractors are encouraged to participate in voluntary associations, which assist in fulfilling one or more of their aff irmative action obligations (7a through 7p). The efforts of a contractor association, joint contractor-union, contractor-community, or other similar group of which the Contractor is a member and participant may be asserted as fulfilling any one or m ore of its obligations under 7a through 7p of these speci fications provided that the Contractor actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the indus try, ensures that the concrete benefits of the program are reflected in the Contract or’s minority and female workforce participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstra tes th e effectiveness of actions taken on behalf of the Contractor. The obligation to comply, however, is the Contractor’s and failure of such a group to fulfill an obligation shall not be a defense for the Contractor’s noncompliance.
9. A single goal fo r minorities and a separate single goal for women have been established.
The Contractor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and non- minority. Consequently, the Contractor may be in violation of the Executive Order if a particular group is employed in a substantially disparate manner (for example, even though the Contractor has achieved its goals for women generally, the Contractor may be in violation of the Executive Order if a specific minority group of women is underutilized).
10. The Contractor shall not use the goals and timetables or affirmative action standards to di
scriminate against any person because of race, col or, religion, sex, sexual orientation, gender identity, or national origin.
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11. The Contractor shall not enter into any subcontract with any person or firm debarred from Government contracts pursuant to Executive Order 11246.
12. The Contractor shall carr y o ut such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination, and cancellation of existing subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as am ended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any contractor who fails to carry out such sanctions and penalties shall be in violation of these specifications and Executive Order 11246, as amended.
13. The Contractor, in fulfilling its obligations under these specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in paragraph 7 of these specifications, so as to achieve maximum results from its effo rts to ensure equal employment opportunity. If the Contractor fails to comply wi th the requirements of the Executive Order, the implementing regulations, or these specifications, the Director shall proceed in accordance with 41 CFR part 60-4.8.
14. The Contractor shall designate a responsible official to monitor all employment related activity to ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the Government, and to keep records. Records shall at least include for each employee, the name, address, telephone numbers, construction trade, union affiliation if any, employee identification number when assigned, social security number, race, sex, status (e.g., mechanic, apprent ice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, contractors shall not be required to maintain separate records.
15. Nothing herein provided shall be construed as a limitation upon the application of other laws which establish different standard s of c ompliance or upon the application of requirements for the hiring of local or other area residents (e.g. those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program).
Reference: 2 CFR 200, Appendix II(C), 41 CFR § 60-1.4, 41 CFR § 60- 4.3, Executive Order 11246
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FAA – 17 Federal Fair Labor Standards Act
APPLICABILITY – Contract Types – Per the Department of Labor, all employees of certain enterprises having workers engaged in interstate commerce; producing goods for interstate commerce; or handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any person are covered by the FLSA.
All consultants, sub-consultants, contractors, and subcontractors employed under this federally assisted project must comply with the FLSA.
Professional Services – 29 CFR § 213 exempts employees in a bona fide executive, administrative or professional capacity. Because professional firms employ individuals that are not covered by this exemption, the agreement with a professional services firm must include the FLSA provision.
REQUIREMENT -
The prov isions o f 29 CFR part 201, the Federal Fair Labor Standards Act (FLSA), are incorporated by reference with the same force and effect as if given in full text. The FLSA sets minimum wage, overtime pay, recordkeeping, and child labor standards for full and part -time workers.
The Contractor has full responsibility to monitor compliance to the referenced statute or regulation. The Contractor must address any claims or disputes that arise from this requirement directly with the U.S. Department of Labor – Wage and Hour Division.
Reference: 29 USC § 201, et seq; 2 CFR § 200.430
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FAA – 18 Lobbying and Influencing Federal Employees
APPLICABILITY- all contracts exceeding $100,000.
REQUIREMENT -
Consultants and contractors that apply or bid for an award of $100,000 or more must have certified that it will not and has not used Federal appropriated funds to p ay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or another award covered by 31 USC § 1352. Each tier must also disclose any lobbying with non -Federal funds t hat takes place in connection with obtaining any Federal award.
For an award over $100,00, the bidder or offeror certifies by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the bidder or offeror, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans, and cooperative agreements) and that all sub-recipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of t his certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
Reference: 31 USC § 1352 – Byrd Anti-Lobbying Amendment, 2 CFR part 200, Appendix II( I), 49 CFR part 20, Appendix A
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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 noise monitoring equipment.
Property/Land – Land acquisition contracts that include tas ks that qualify as cons truction work as defined by 41 CFR part 60- 1. Ex amples 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.
Item 1K - Page 62
Reference: 2 CFR Part 200, Appendix II (C); 41 CFR Part 60-1 Item 1K - Page 63
FAA – 20 Occupational Safety and Health Act
APPLICABILITY – Contract Types – All contracts and subcontracts must comply with the Occupational Safety and Health Act of 1970 (OSH). The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) o versees the workplace health and safety standards wage provisions from OSH.
REQUIREMENT -
All contracts and subcontracts that result from this solicitation incorporate by r eference the requirements of 29 CFR Part 1910 with the same force and effect as if given in full text. The employer must provide a work environment that is free from recognized hazards that may cause death or serious physical harm to the employee. The employer retains full res ponsibility to monitor its compliance and their subcontractor’s compliance with the applicable requirements of the Occupational Safe ty and Health Act of 1970 (29 CFR Part 1910). The employer must address any claims or disputes that pertain to a referenced requirement directly with the U.S.
Department of Labor – Occupational Safety and Health Administration.
Reference: 29 CFR part 1910
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FAA – 21 Procurement of Recovered Materials
APPLICABILITY – Contract Types – This provision applies to any contracts that include procurement of products designated in subpart B of 40 CFR part 247 where the purchase price of the item exceeds $10,000 or the value of the quantity acquired by the preceding fiscal year exceeded $10,000.
Construction and Equipment – all construction and equipment projects.
Professional Services and Property – if the agreement includes procurement of a product that exceeds $10,000.
REQUIREMENT -
Contractor and subcontractor agree to comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, and the regulatory provisions of 40 CFR Part 247. In the performance of this contract and to the extent practicable, the Contractor and subcontractors are to use products containing the highest percentage of recovered materials for items designated by the Environmental Protection Agency (EPA) under 40 CFR Part 247 whenever:
1) The contract requires procurement of $10,000 or more of a designated item during the fiscal year; or
2) The contractor has procured $10,000 or more of a designated item using Federal funding during the previous fiscal year.
The list of EPA -designated items is available at www.epa.gov/smm/comprehensive - procurement-guidelines-construction-products.
Section 6002(c) establishes exceptions to the pr eference for recovery of EPA- designated products if the contractor can demonstrate the item is:
a) Not reasonably available within a timeframe providing f or compliance w ith the contract performance schedule;
b) Fails to meet reasonable contract performance requirements; or c) Is only available at an unreasonable price.
Reference: 2 CFR § 200.323, 2 CFR Part 200, Appendix II (J); 40 CFR part 247, 42 USC § 6901, et seq (Resource Conservation and Recovery Act)
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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 exper imental, developmental, or research work. This clause is not applicable to construction, equipment, or professional service contracts unless the contract includes experimental, developmental, or research work.
REQUIREMENT -
Contracts or agreements that include the performance of experimental, developmental, or research work must provide for the rights of the Federal Government and the City in any resulting invention as established by 37 CFR part 401, Rights to Inventions Made by Non-profit Organizations and Small Business Firms under Government Grants, Contracts, and Cooperative Agreements. This contract incorporates by reference the patent and inventions rights as specified within 37 CFR §401.14. Contractor must include this requirement in all sub- tier contracts involving experimental, developmental, or research work.
Reference: 2 CFR § 200, Appendix II(F), 37 CFR 401
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FAA - 23 Seismic Safety
APPLICABILITY – Contract Types – This provision applies to construction of new buildings and additions to existing buildings financed in whole or in part through the Airport Improvement Program.
Professional Services– any contract involved in the construction of new buildings or structural addition to existing buildings.
Construction – any contract involved in the construction of new buildings or structural addition to existing buildings.
Equipment – if the project involves construction or structural addition to a building such as an electrical vault project to accommodate or install equipment.
Land – This provision will not typically apply to a property/land project.
REQUIREMENT -
A23.3.1 Professional Service Agreements for Design
SEISMIC SAFETY
In the performance of design services, the Consultant agrees to furnish a building design and associated construction specification that conform to a building code standard that provides a level of seismi c safety substantially equivalent to standards as established by the National Earthquake Hazards Reduction Program (NEHRP). Local building codes that model their building code after the current version of the International Building Code (IBC) meet the NEHRP equivalency level for seismic safety. At the conclusion of the design services, the Consultant agrees to furnish the Owner a “certification of compliance” that attests conformance of the building design and the construction specifications with the seismic standards of NEHRP or an equivalent building code.
A23.3.2 Construction Contracts
SEISMIC SAFETY
The Contractor agrees to ensure that all work performed under this contract, including work performed by subcontractors, conforms to a building code standard that provides a level of seismic safety substantially equivalent to standards established by the National Earthquake Hazards Reduction Program (NEHRP). Local building codes that model their code after the current version of the International Building Code (IBC) meet the NEHRP equivalency level for seismic safety.
Reference: 49 CFR Part 41
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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
Item 1K - Page 68
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 1K - Page 69
FAA – 26 Foreign Trade Restriction
APPLICABILITY – all AIP funded projects.
REQUIREMENT -
TRADE RESTRICTION CERTIFICATION
By accepting this contract the Contractor certifies the following statements are true – 1) is not owned or controlled by one or more citizens of a foreign country included in the list of countries that discriminate against U. S. firms as published by the Office of the United States Trade Representative (USTR);
2) has not knowingly entered into any contrac t or subcontract for this project with a person that is a citizen or national of a foreign country included on the list of countries that discriminate against U.S. firms as published by the USTR; and 3) h as not entered into any subcontract for any product to be used on the Federal project that is produced in a foreign country included on the list of countries that discriminate against U.S. firms published by the USTR.
This certification concerns a matter w ithin the jurisdiction of an agency of the United S tates of America and the making of a false, fic titious, or fraudulent c ertification may render the maker subject to prosecution under Title 18 USC Section 1001.
The Contractor must provide immediate written notice to the City if the Contractor learns that its certification or that of a subcontractor was erroneous when submitted or has become erroneous by reason of changed circumstances. The Contractor must require subcontractors provide immediate written n otice to the Contractor if at any time it learns th at its certification wa s erroneous by reason of changed circumstances.
Unless the restrictions of this clause are waived by the Secretary of Transportation in accordance with 49 CFR 30.17, no contract shall be awarded to an Offeror or subcontractor:
1) who is owned or controlled by one or more citizens or nationals of a foreign country included on the list of countries that discriminate against U.S. firms published by the USTR or
2) whose subcontractors a re owned or controlled by one or more citizens or nationals of a foreign country on such USTR list or
3) who incorporates in the public works project any product of a foreign country on such USTR list.
Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by this provision. The knowledge and information of a contractor is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
The Cont
ractor 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 Item 1K - Page 70
subcontractor that it is not a firm from a foreign country included on the list of countries that discriminate against U.S. firms as published by USTR, unless the Contractor has knowledge that the certification is erroneous.
This certification is a material represent ation of f act upon which reliance was placed when making an award. If it is later d etermined that the Contractor or subcont ractor k nowingly rendered an erroneous certification, the Federal Aviation Administration (FAA) may direct through the City cancellation of the contract or subcontract for default at no cost to the City or the FAA.
Reference: 49 USC § 50104, 49 CFR part 30
Item 1K - Page 71
FAA – 27 Veteran’s Preference
APPLICABILITY – This provision applies to all AIP funded projects that involve labor to carry out the project. This preference, which excludes executive, administrative, and supervis ory positions, applies to covered veterans [as defined under § 47112(c)] only when they are readily available and qualified to accomplish the work required by the project.
REQUIREMENT -
In the employment of labor (excluding execut ive, administrative, and supervisory positions), the Contractor and all s ub-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 1K - Page 72
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 1K - Page 73
ATTACHMENT B
PUBLIC INTEGRITY BUSINESS DISCLOSURE
Item 1K - Page 74
February 28, 2022
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
1. Name of Entity
2. Address of Entity (Principal Place of Business)
3. Local or California Address (if different than #2)
4. State where Entity is Registered with Secretary of State
If other than California, is the Entity also registered in California? Yes No
5. Type of Entity
Corporation Limited Liability Company Partnership Trust Other (please specify)
6. Officers, Directors, M embers, Managers, Tru stees, Other F iduciaries (please specify) Note: If any response is not a natural pe rson, please identify all off icers, directors, members, managers and other fiduciaries for the member, manager, trust, or other entity
________________________ Officer Director Member Manager [name] General Partner Limited Partner
Other ___________________________
_______________________________ Officer Director Member Manager [name] General Partner Limited Partner
Other __________________________
________________________________ Officer Director Member Manager [name] General Partner Limited Partner
Other __________________________
Gensler
500 S. Figueroa Street, Los Angeles, CA
n/a
California
X
Board of Directors/Officers
(effective 1/1/2023-
12/31/2023)
Andrew P . Cohen (Co-CEO)
Diane Hoskins (Co-CEO)
Joseph Brancato (Chair)
Philippe Phaneuf (COO, General
Counsel & Secretary)
Robin Klehr Avia
Jordan Goldstein
Elizabeth Brink
Julia Simet
Hao Ko
Cindy Simpson
Theresa Sheils
Samuel Bermudez Ureña
Xiaomei Lee
Michael White
Joseph Lauro
Non-Director Officers
Linda Havard (CFO and
Treasurer)
Ryan Alvarez (Assistant
Secretary)
Los Angeles Principals
Aaron Birney
Alan Young
Arpy Hatzikian
Barbara Dunn
David Herjeczki
Demetra Thornton
Denise Zacky-Popoch
Duncan Paterson
Dylan Jones
Eric Stultz
Erin Lilly
Gene Watanabe
Guy Williams
James Kelly
Jennifer Hamilton
JF Finn III
Jill Wittnebel
John Circenis
John Wiedner
Keith Thompson
Kevin Rosenstein
Lee Pasteris
Lexi Barry
Michael Volk
Michael White
Nathan Kim
Olivier Sommerhalder
Peter Barsuk
Ryan Ihly
Serena Winner
Steve Chung
Steven Hergert
Terence Young
Tim Sullivan
Tina Rothermund
Tom Ito
Tom Sze
Warwick Wicksman
Item 1K - Page 75
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity
EXAMPLE
JANE DOE
[na me of owner/investor]
50%, ABC COMPANY, Inc.
[percent age of beneficial interest in entity and
name of entity]
A.
[na me of owner/investor]
[percentage of beneficial interest in entity and
name of entity]
B.
[name of owner/investor]
[percentage of beneficial interest in entity and
name of entity]
C.
[name of owner/investor]
[percentage of beneficial interest in entity and
name of entity]
D.
[name of owner/investor]
[percenta ge of beneficial interest in entity and
name of entity]
E.
[name of owner/investor]
[perce ntage of benefi cial interest i n entity
and name of entity]
I DECLARE UNDER PENALTY OF PER JURY UNDER T HE LAWS OF T HE ST ATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
Signature of Disclosing Party, Printed Name, Title
Date
* M. Ar thur Gensler Jr. & Associates, Inc. is a private company owned by its Employee Stock Ownership Plan and its individual employee shareholders, with none of whom owning more than 6%. Gensler is a global firm with over 6,000 professionals across our 52 offices.
February 28, 2022Keith Thompson, AIA, LEED AP ,
Principal in Charge
*
Item 1K - Page 76
CITY COUNCIL STAFF REPORT
10/26/2023
SUBJECT:
APPROVE PROFESSIONAL SERVICES AGREEMENT NO. 23Q082 WITH C&S ENGINEERS, INC. FOR DESIGN AND CONSTRUCTION SUPPORT SERVICES
FOR EMPLOYEE AND ECONOMY PARKING LOTS
RECOMMENDATIONS:
Approve Professional Services Agreement No. 23Q082 with C&S Engineers, Inc. to provide design services for an amount not to exceed $154,058 for Phase I – Programming and Investigation of the project.
1. Authorize the City Manager or designee to negotiate and amend the contract at a later date to continue into Phase II of the project to complete the design of the project and provide construction support services for an amount not to exceed $2,000,000.
2. Authorize the City Manager or designee to execute all necessary documents.3.
Attachments
Item 1L
CITY COUNCIL STAFF REPORT
DATE: OCTOBER 26, 2023 CONSENT CALENDAR
SUBJECT: APPROVE PROFESSIONAL SERVICES AGREEMENT NO. 23Q 082 WITH C&S ENGINEERS, INC. FOR DESIGN AND CONSTRUCTION
SUPPORT SERVICES FOR EMPLOYEE AND ECONOMY PARKING
LOTS
FROM: Scott C. Stiles, City Manager
BY: Department of Aviation
SUMMARY:
This action requests that the City Council approve a three- year agreement with C&S Engineers, Inc. for Palm Springs International Airport (Airport) to provide design support services for employee and economy parking lots , Phase I, in an amount not to exceed $154,058.
RECOMMENDATION:
1. Approve Professional Services Agreement No. 23Q 082 (Attachment A) with C&S Engineers, Inc. to provide design services for an amount not to exceed $154,058 for Phase I – Programming and Investigation of the project.
2. Authorize the City Manager or designee to negotiate and amend the contract at a later date to continue into Phase II of the project to complete the design of the project and provide construction support services for an amount not to exceed $2,000,000.
3. Authorize the City Manager or designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure form ( Attachment B) submitted on January 11, 2023, C&S Engineering, Inc., is a New York corporation registered in the State of California.
Item 1L - Page 1
City Council Staff Report
October 26, 2023 -- Page 2
Award C&S Engineers, Inc Agreement
BACKGROUND:
The Palm Springs International Airport needs a highly qualified engineering consulting firm to provide design services for three parking areas: 1) the Airport employee parking lot located at the corner of E. Baristo Rd. & El Cielo Rd.; 2) the Airport economy lot located at the south end of the Airport boundary, south of Kirk Douglas Way; and 3) improvements to Airport lot A to accommodate for ingress/egress and circulation. Consultant will perform, accomplish, or assist in the delivery of comprehensive project design services resulting in the development of final plans and specification with all regulatory approvals, coordination with partners, stakeholders, regulatory agencies and other entities; supporting the Airport’s public outreach efforts; overseeing the construction phase of the project and assisting with on-going and final reporting to support the grant requirements of the State Water Resources Control Board (SWRCB) of California.
STAFF ANALYSIS:
On December 12, 2022, the Procurement and Contracting Department issued Request for Qualifications 19-23 for Design and Construction Support Services for Employee and Economy Parking Lots . Only one qualified firm , C&S Engineers, Inc. submitted their statement of qualifications by the January 18, 2023, deadline.
A three-person evaluation committee consisting of City Airport and Engineering staff reviewed and scored the statement of qualifications received against the criteria published in the Request for Qualifications. The committee deemed C&S Engineers, Inc. qualified to do the work and a price proposal was requested. An independent fee analysis was also prepared by an independent firm under contract with the Airport which showed the value of the work to be just over $1,000,000 in value. When the cost proposal was received it reflected a design fee of more than double the estimated value at a cost of $2,317,542.52. Staff spent several months negotiating with the firm and the final proposal received was still just over $2,000,000. Staff determined after reviewing this second cost proposal that the scope of the project needed to be better refined and programmed as there were too many unknowns concerning the underground utilities and potential soil conditions to be able to get to a fair and reasonable price for the work.
Therefore, staff decided to have C&S Engineer s, Inc. perform the work in two phases :
Phase I will be to program the scope of work and to investigate the site, so that a fair and reasonable price can be reached on the full design and construction support scope. A revised cost proposal was requested from the firm which was received in late September 2023. The cost of this initial phase is $154,058. Staff feels this is a fair and reasonable price for this phase of the work and is recommending approval of the contract to be performed in two phases.
Item 1L - Page 2
City Council Staff Report
October 26, 2023 -- Page 3
Award C&S Engineers, Inc Agreement
For the second phase , staff is recommending approval to continue negotiations after Phase I is complete, and authorization for the City Manager to approve an amendment not to exceed $2,000,000 to add the cost of Phase II to continue the work to complete the design and construction support of the project. Staff is making this recommendation in order to not have any further delays in getting this project underway. Staff is confident that the work can be negotiated under this threshold after Phase I is completed. However, should the work be over the $2,000,000 threshold, staff would return to Council f or approval.
ENVIRONMENTAL ASSESSMENT
:
As part of this agreement, C&S Engineers, Inc. will prepare the required CEQA documents. City staff will review all CEQA documents prior to submission.
FISCAL IMPACT:
Funds for the design construction support services for employee and economy parking lots, Phase 1 in the amount of $154,058 are available in Airport Special Capital Project account 4167065-80000.
REVIEWED BY:
Department Director: Harry Barrett, Jr.
Procurement and Contracting Director: Kim Baker
City Attorney: Oscar Verdugo
City Manager: Scott Stiles
ATTACHMENTS:
A. Professional Services Agreement 23Q082
B. Public Integrity Disclosure Form
Item 1L - Page 3
ATTACHMENT A
PROFESSIONAL SERVICES AGREEMENT NO. 23Q082
WITH C&S ENGINEERS, INC.
Item 1L - Page 4
55575.18165\32900157.2
Revised: 12.1.2021
1 PROFESSIONAL SERVICES AGREEMENT #23Q082
DESIGN AND CONSTRUCTION SUPPORT SERVICES FOR EMPLOYEE AND
ECONOMY PARKING LOTS
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is entered into, and effective on October 30, 2023, between the CITY OF PALM SPRINGS, a California charter city and municipal corporation, (“City”) and C&S Engineers, Inc., a New York Corporation, (“Consultant”). City and Consultant are individually referred to as “Party” and are collectively referred to as the “Parties”.
RECITALS
A. City requires the services of a Professional Engineering firm, for the design services of three parking areas at the Palm Springs International Airport (“Project”).
B. Consul tant has submitted to City a statement of qualifications to provide design and construction support services in two phases, to City under the terms of this Agreement.
C. Consultant is qualified by virtue of its experience, training, education, reputation, and expertise to provide these services and has agreed to provide such services as provided in this Agreement.
D. City desires to retain Consultant to provide such professional services.
NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. S
ERVICES OF CONSULTANT
1.1 S
cope of Services. In co mpliance with all terms and conditions of this Agreement, Consultant agrees to perform the professional services set forth in the Scope of Services described in Exhibit “A” (the “Services” or “Work”), which is attached and incorporated herein by this refer ence. The work will be performed in two phases. Phase I to provide project programming and investigation is authorized under this contract. Cost and Schedule for Phase II work to provide full design and construction support will be negotiated at a later date and if successful, the contract will be amended to reflect the cost and schedule for this second phase. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that Consultant is a provider of first class work and professional services and that Consultant is experienced in performing the Work contemplated and, in light of such status and experience, Consultant covenants that it shall perform the Work in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced and well qualified members of the profession currently practicing under similar conditions.
Item 1L - Page 5
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2 1.2 Contract Documents . The Agreement between the Parties shall consist of the following: (1) this Agreement; (2) the Scope of Services; (3) the City’s Request for Qualifications; and, (4) the Consultant’s signed, original statement of qualifications submitted to the City (“Consultant’s Qualifications”), (collectively referred to as the “Contract Documents”). The City’s Request for Qualifications and the Consultant’s statement of qualifications, which are both attached as Exhibit “B”, respectively, are incorporated herein by this reference and are made a part of this Agreement. The Scope of Services shall include the Consultant’s Statement of Qualifications. All provisions of the Scope of Services, the City’s Request for Qualifications and the Consultant’s statement of qualifications shall be binding on the Parties. Should any conflict or inconsistency exist in the Contract Documents, the conflict or inconsistency shall be resolved by applying the provisions in the highest priority document, which shall be determined in the following order of priority: (1
st) the provisions of the Scope of Services (Exhibit “A”); (2 nd) the provisions of the City’s Request for Qualifications; (3rd) the terms of this Agreement; and, (4th) the provisions of the Consultant’s statement of qualifications.
1.3 C
ompliance with Law . Consultant warrants that all Services rendered shall be performed in accordance with all applicable federal, state, and local laws, statutes, ordinances lawful orders, rules, and regulations. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.
1.4 L
icenses, Permits, Fees, and Assessments. Consultant represents and warrants to City that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession and perform the Work required by this Agreement.
Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, a ny license, permit, qualification, or approval that is legally required for consultant to perform the Work and under this Agreement.
Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and inter est, which may be imposed by law and arise from or are necessary for the Consultant's performance of the Work required by this Agreement. Consultant shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes penalties, or interest levied, assessed, or imposed against City to the fullest extent permitted by law.
1.5 F
amiliarity with Work. By executing this Agreement, Consultant warrants that Consultant (a) has thoroughly investigated and considered the Scope of Services to be performed, (b) has carefully considered how the Services should be performed, and (c) fully understands the facilities, difficulties, and restrictions attending performance of the Services under this Agreement.
If the Services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the con ditions there existing, prior to commencement of any Services. Should the Consultant discover any latent or unknown conditions that will materially affect the performance of the Services, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the City.
1.6 C
are of Work. Consultant shall adopt reasonable methods during the term of the Agreement to furnish continuous protection to the Work and the equipment, materials, papers, documents, plans, studies, and/or other components to prevent losses or damages. Consultant shall Item 1L - Page 6
55575.18165\32900157.2
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3 be responsible for all such damages, to persons or property, until acceptance of the Work by the City, except such losses or damages as may be caused by City's own negligence.
1.7 F
urther Responsibilities of Parties . Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement.
1.8 A
dditional Services. City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from such Work. No such extra work may be undertaken unless a written order is first given by the City to the Consultant, incorporating any adjustment in (i) the Maximum Contract Amount, as defined below, and/or (ii) the time to perform this Agreement. Any adjustments must also be approved in writing by the Consultant. Any increase in compensation of up to twenty- five percent (25%) of the Maximum Contract Amount or $25,000, whichever is less, or in the time to perform of up to thirty (30) days, may be approved by the City Manager, or his designee, as may be needed to perform any extra work. Any greater increases, occurring either separately or cumulatively, must be approved by the Palm Springs City Council. It is expressly understood by consultant that the provisions of this section shall not apply to the services specifically set forth or reasonably contemplated within the Scope of Services.
2. CO
MPENSATION
2.1 M aximum Contract Amount . For the Services rendered under this Agreement, Consultant shall be compensated by City in accordance with the Schedule of Compensation, which is attached as Exhibit “B” and incorporated herein by this reference. Compensation shall not exceed the maximum contract amount of $154,058.00 for Phase I – Evaluation and Programmatic Project Tasks. Phase II to complete the scope of work for design and construction assistance of this project will be negotiated after Phase I is completed and if a price is agreed to for Phase II of the work, the contract will be amended for a revised “Maximum Contract Amount". The method of compensation shall be as set forth in Exhibit “B.” for Phase I of the Project. Compensation for necessary expenditures for reproduction costs, telephone expenses, and transportation expenses must be approved in advance by the Contract Officer designated under Section 4.2 and will only be approved if such expenses are also specified in the Schedule of Compensation. The Maximum Contract Amount shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City. Consultant shall not be entitled to any increase in the Maximum Contract Amount for attending these meetings. Consultant accepts the risk that the services identified in the Scope of Services may be more costly and/or time -consuming than Consulta nt anticipates that Consultant shall not be entitled to additional compensation, and that the provisions of Section 1.8 shall not be applicable to the services identified in the Scope of Services. If the City’s Maximum Contract Amount is reached before the Consultant’s Services under this Agreement are completed, Consultant shall complete the Work and City shall not be liable for payment beyond the Maximum Contract Amount.
Item 1L - Page 7
55575.18165\32900157.2
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4 2.2. Method of Payment . Unless another method of payment is specified in the Schedule of Compensation (Exhibit “B”), in any month in which Consultant wishes to receive payment, Consultant shall submit to the City an invoice for Services rendered prior to the date of the invoice. The invoice shall be in a form approved by the City’s Finance Director and must be submitted no later than the tenth (10) working day of such month. Such requests shall be based upon the amount and value of the Services performed by Consultant and accompanied by such reporting data including an itemized breakdown of all costs incurred and tasks performed during the period covered by the invoice, as may be required by the City. City shall use reasonable efforts to make payments to Consultant within forty-five (45) days after receipt of the invoice or as soon as is reasonably practical. There shall be a maximum of one payment per month.
2.3 C
hanges in Scope . In the event any change or changes in the Scope of Services is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into:
A. T
o 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 Consultant’s profession.
2.4 A ppropriations. This Agreement is subject to and contingent upon funds being appropriated by the City Council for each fiscal year covered by the Agreement. If such appropriations are not made, this Agreement shall automatically terminate without penalty to the City.
3. S
CHEDULE OF PERFORMANCE
3.1 Ti
me of Ess ence. Time is of the essence in the performance of this Agreement.
The time for completion of the services to be performed by consultant is an essential condition of this Agreement. Consultant shall prosecute regularly and diligently the Work of this Agreement according to the agreed upon attached Schedule of Performance (Exhibit “B”), incorporated herein by this reference. Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non-performing Party. Delays shall not entitle Consultant to any additional compensation regardless of the Par ty responsible for the delay.
3.2 S
chedule of Performance. Consultant shall commence the Services under this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period(s) established in the Schedule of Performance. When requested by Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer, but such extensions shall not exceed one hundred eighty (180) days cumulatively; however, the City shall not be obligated to grant such an extension.
3.3 F
orce 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 Consultant Item 1L - Page 8
55575.18165\32900157.2
Revised: 12.1.2021
5 notifies the Cont ract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Consultant’s performance and is one or more of the following: (1) Acts of God or other natural disaster s occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Consultant notification, the Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing the Services fo r the period of the enforced delay when and if, in the Contract Officer’s judgment, such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. The Consultant will not receive an adjustm ent to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
3.4 T
erm . Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement shall continue in full force and effect for a period of three years October 30, 2023 to October 29, 2026, unless extended by mutual written agreement of the Parties. However, the term shall not exceed three years, except as otherwise provided in the Schedule of Performance described in Section 3.2 above.
3.5 T
ermination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant. Where termination is due to the fault of Consultant and constitutes an immediate danger to health, safety, and general welfare, the p eriod of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Consultant shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed Services, and shall not be entitled to damages or compensation for termination of Work. Consultant may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.
4. CO
ORDINATION OF WORK
4.1 R
epresentative of Consultant . The following principal of Consultant is designated as being the principal and representative of Consultant authorized to act in its behalf and make all decisions with respect to the Services to be performed under this Agreement: Brian Saull, PE, Env SP, Managing Engineer. It is expressly understood that the experience, knowledge, education, capability, expertise, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Consultant and Item 1L - Page 9
55575.18165\32900157.2
Revised: 12.1.2021
6 devoting sufficient time to personally supervise the Services performed hereunder. The foregoing principal may not be changed by Consultant without prior written approval of the Contract Officer.
4.2 C
ontract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Consultant shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the Services. Consultant shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer.
4.3 P
rohibition Against Subcontracting or Assignments . The experience, knowledge, education, capability, and reputation of Consultant, its principals and employees, were a substantial inducement for City to enter into this Agreement. Consultant shall not contract with any other individual or entity to perform any Services required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provisions making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to City for the acts and omissions of its subConsultant(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subConsultant and City. All persons engaged in the Work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. In addition, neither this Agreement nor any interest in this Agreement may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written consent of City.
Transfers restricted in this Agreement shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release Consultant or any surety of Consultant from any liability under this Agreement without the express written consent of City.
4.4 I
ndependent Consultant. The legal relationship between the Parties is that of an independent Consultant, and nothing shall be deemed to make Consultant a City employee.
A. D
uring the performance of this Agreement, Consultant and its officers, employees, and agents shall act in an independent capacity an d shall not act or represent themselves as City officers or employees. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of its officers, employees, or agents, except as set forth in this Agreement. Consultant, its officers, employees, or agents shall not maintain an office or any other type of fixed business location at City’s offices. City shall have no voice in the selection, discharge, supervision, or control of Consultant’s employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Consultant shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, including but not limited to social Item 1L - Page 10
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7 security income tax withholding, unemployment compensation, workers’ compensation, and other similar matters. City shall not in any way or for any purpose be deemed to be a partner of Consultant in its business or otherwise a joint venturer or a member of any joint enterprise with Consultant.
B. Consultant shall not have any authority to bind City in any manner. This includes the power to incur any debt, obligation, or liability against City.
C. No City benefits shall be available to Consultant, its officers, employees, or agents in connection with any performance under this Agreement. Except for professional fees paid to Consultant as provided for in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for the performance of Services under this Agreement. City shall not be liable for compensation or indemnification to Consultant, its officers, employees, or agents, for injury or sickness arising out of performing Services. If for any reason any court or governmental agency determines that the City has financial obligations, other than under Section 2 and Subsection 1.8 in this Agreement, of any nature relating to salary, taxes, or benefits of Consultant’s officers, employees, servants, representatives, subConsultants, or agents, Consultant shall indemnify City for all such financial obligations.
4.5 C
alifornia Labor Code Requirements .
A. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
B. If t
he Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subcontractors , as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements.
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8 5. INSURANCE
5.1 T ypes of Insurance . Consultant shall procure and maintain, at its sole cost and expense, the insurance described herein. The insurance shall be for the duration of this Agreement and includes any extensions, unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to City. The insurance shall apply against claims which may arise from the Consultant's performance of Work under this Agreement, including Consultant's agents, representatives, or employees. In the event the City Manager determines that the Work or Services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the City Manager or his designee.
Consultant shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. Except as otherwise authorized below for professional liability (errors and omissions) insurance, all insurance provided under this Agreement shall be on an occurrence basis. The minimum amount of insurance required shall be as follows:
A. E
rrors and Omissions Insurance. Consultant shall obtain and maintain in full force and effect throughout the term of this Agreement, standard industry form professional liability (errors and omissions) insurance coverage in an amount of not less than one million dollars ($1,000,000.00) per occurrence and two- million dollars ($2,000,000.00) annual aggregate, in accordance with the provisions of this section.
(1) Consultant shall either: (a) certify in writing to the City that Consultant is unaware of any professional liability claims made against Consultant and is unaware of any facts which may lead to such a claim against Consultant; or (b) if Consultant does not provide the certification under (a), Consultant shall procure from the professional liability insurer an endorsement providing that the required limits of the policy shall apply separately to claims arising from errors and omissions in the rendition of services under this Agreement.
(2) If the policy of insurance is written on a “claims made” basis, the policy shall be continued in full force and effect at all times during the term of this Agreement, and for a period of three (3) years from the date of the completion of the Services provided hereunder. In the event of termination of the policy during this period, Consultant shall obtain continuing insurance coverage for the prior acts or omissions of Consultant during the course of performing Services under the terms of this Agreement. The coverage shall be evidenced by either a new policy evidencing no gap in coverage, or by obtaining separate extended “tail” coverage with the present or new carrier or other insurance arrangements providing for complete coverage, either of which shall be subject to the written approval by the City Manager.
(3) In the event the policy of insurance is written on an “occurrence” basis, the policy shall be continued in full force and effect during the term of this Agreement, or until completion of the Services provided for in this Agreement, whichever is later. In the event of termination of the policy during this period, new coverage shall immediately be obtained to ensure coverage during the entire course of performing the Services under the terms of this Agreement.
B. W
orkers’ Compensation Insurance. Consultant shall obtain and mai ntain, Item 1L - Page 12
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9 in full force and effect throughout the term of this Agreement, workers’ compensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. Consultant agrees to waive and obtain endorsements from its workers’ compensation insurer waiving subrogation rights under its workers’ compensation insurance policy against the City and to require each of its subConsultants, if any, to do likewise under their workers’ compensation insurance policies. If Consultant has no employees, Consultant shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.
C. C
ommercial General Liability Insurance . Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least one million dollars ($1,000,000.00) and two million dollars ($2,000,000.00) general aggregate for bodily injury and property damage including coverages for contractual liability, personal injury, independent Consultants, broad form property damage, products and completed operations.
D. B
usiness Automobile Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of one million dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for owned, non-owned, leased, and hired cars.
E. E
mployer Liability Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of employer liability insurance written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease.
5.2 D
eductibles and Self -Insured Retentions . Any deductibles or self-insured retentions must be declared to and approved by the City Manager or his/her designee prior to commencing any work or services under this Agreement. Consultant guarantees payment of all deductibles and self-insured retentions. City reserves the right to reject deductibles or self-insured retentions in excess of $10,000, and the City Manager or his/her designee may require evidence of pending claims and claims history as well as evidence of Consultant’s ability to pay claims for all deductible amounts and self-insured retentions proposed in excess of $10,000.
5.3 O
ther Insurance Requirements . The following provisions shall apply to the insurance policies required of Consultant under this Agreement:
A. F
or any claims related to this Agreement, Consultant’s coverage shall be primary insurance with respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self -insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of Consultant’s insurance and shall not contribute with it.
B. A
ny failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and its officers, council Item 1L - Page 13
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10 members, officials, employees, agents, and volunteers.
C. All insurance coverage and limits provided by Consultant and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made or suit is brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage.
D. No required insurance coverages may include any limiting endorsement which substantially impair s the coverages set forth in this Agreement (e.g., elimination of contractual liability or reduction of discovery period), unless the endorsement has first been submitted to the City Manager and approved in writing.
E. Consultant agrees to require its insurer to modify insurance endorsements to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, and submittal of certificates without required endorsements may delay commencement of the Project. It is Consultant’s obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement.
F. Consultant agrees to ensure that subConsultants, and any other parties involved with the Project who are brought onto or involved in the Project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with subConsultants and others engaged in the Project will be submitted to the City for review.
G. Consultant acknowledges and agrees that any actual or a lleged failure on the part of the City to inform Consultant of non-compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights in this or any other regard.
H. Consultant shall provide proof that policies of insurance required in this Agreement, expiring during the term of this Agreement, have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration of the lapsing coverage.
I. R
equirements of specific insurance coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements, or as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive.
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11 J. The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section.
K. Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising out of the Work performed under this Agreement and for any other claim or loss which may reduce the insurance available to pay claims arising out of this Agreement.
City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are lik ely to involve City, or to reduce or dilute insurance available for payment of potential claims.
L. Consultant agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages resulting from the Consultant’s activities or the activities of any person or person for which the Consultant is otherwise responsible.
5.4 Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances.
5.5 V
erification of Coverage. Consultant shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Consultant’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies.
V
erification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate:
A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
B. " This insurance is primary and non- contributory over any insurance or self - insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or " for any and all work performed with the City" may be included in this statement).
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12 C. " Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.
D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Consultant’s obligation to provide them.
6. I
NDEMNIFICATION
6.1 I ndemnification and Reimbursement . To the fullest extent permitted by law, Consultant shall defend (at Consultant’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (Consultant’s employees included), for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct committed by Consultant, its officers, employees, representatives, and agents, that arise out of or relate to Consultant’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Cons ultant’s indemnification obligation or other liability under this Agreement. Consultant’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.
6.2 D
esign Professional Services Indemnification and Reimbursement . If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant in the performance of the Services or this Agreement, and, upon Consultant obtaining Item 1L - Page 16
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13 a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
7. RE PORTS AND RECORDS
7.1 A ccounting Records . Consultant shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement.
Consultant shall keep such books and records as shall be necessary to properly per form the Services required by this Agreement and to enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records.
7.2 R
eports . Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement, or as the Contract Officer shall require. Consultant acknowledges that the City is greatly concerned about the cost of the Work to be performed under this Agreement. For this reason, Consultant agrees that Consultant shall promptly notify the Contract Officer the es timated increased or decreased cost if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services. If Consultant is providing design services, Consultant shall prom ptly notify the Contract Officer the estimated increased or decreased cost for the project being designed if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the design services.
7.3 O
wnership of Documents . All drawings, specifications, reports, records, documents, memoranda, correspondence, computations, and other materials prepared by Consultant, its employees, subConsultants, and agents in the performance of this Agreement shall be the property of City and shall be promptly delivered to City upon request of the Contract Officer or upon the termination of this Agreement. Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials. Any use of such completed documents for other projects and/or use of incomplete documents without specific written authorization by the Consultant will be at the City's sole risk and without liability to Consultant, and the City shall indemnify the Consultant for all resulting damages. Consultant may retain copies of such documents for their own use. Consultant shall have an unrestricted right to use the concepts embodied tin this Agreement. Consultant shall ensure that all its subConsultants shall provide for assignment to City of any documents or materials prepared by them. In the event Consultant fails to secure such assignment, Consultant shall indemnify City for all resulting damages.
7.4 R
elease of Docu ments. All drawings, specifications, reports, records, documents, and other materials prepared by Consultant in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. Al l information gained by Consultant in the performance of this Agreement shall be considered confidential and shall not be released by Consultant without City’s prior written authorization.
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14 7.5 Audit and Inspection of Records . After receipt of reasonable notice and during the regular business hours of City, Consultant shall provide City, or other agents of City, such access to Consultant’s books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Consultant’s performance under this Agreement. Consultant shall maintain such books, records, data, and documents in accordance with generally acc epted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder.
8. E
NFORCEMENT OF AGREEMENT
8.1 C
alifornia Law and Venue . This Agreement shall be construed and interpreted both as to validity and as to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such County, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
8.2 I
nterpretation . This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs.
8.3 D
efault of Consultant. Consultant’s failure to comply with any provision of this Agreement shall constitute a default.
A. I
f the City Manager, or his designee, determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify Consultant in writing of such default. Consultant shall have ten (10) days, or such longer period as City may designate, to cure the default by rendering satisfactory performance. In the event Consultant fails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. Consultant shall be liable for all reasonable costs incurred by City as a result of such default. Compliance with the provisions of this section shall not constitute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing shall limit City’s right to terminate this Agreement without cause under Section 3.5.
B. I
f termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 8.3A, take over the work and prosecute the same to completion by contract or otherwise. The Consultant shall be Item 1L - Page 18
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15 liable to the extent that the total cost for completion of the Services required hereunder exceeds the Maximum Contract Amount (provided that the City shall use reasona ble efforts to mitigate such damages). The City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated. The withholding or failure to withhold payments to Consultant sha ll not limit Consultant’s liability for completion of the Services as provided in this Agreement.
8.4 Waiver .
No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition, or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default or breach, nor shall failure by the Parties to require exact, full, and complete compliance with any of the covenants, conditions, or terms contained in this Agreement be construed as changing the terms of this Agreement in any manner or preventing the Parties from enforcing the full provisions.
8.5 R
ights and Remedies Cumulative . Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
8.6 L
egal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, remedy or recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
8.7 A
ttorney 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 consultant fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding. To the extent authorized by law, in the event of a dismissal by the plaintiff or petitioner of the litigation or non-judicial proceeding within thirty (30) days of the date set for trial or hearing, the other Party shall be deemed to be the prevailing Party in such litigation or proceeding.
9. CI
TY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
9.1 No
n-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Consultant, or any successor-in-interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
9.2 C
onflict of Interest. Consultant acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Consultant Item 1L - Page 19
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16 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. Consultant warrants that Consultant has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.
9.3 C
ovenant Against Discrimination . In connection with its performance under this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Consultant shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Consultant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Consultant activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Consultant is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including w ithout limitation the provision of benefits, relating to non-discrimination in city contracting.
10. MISCELLANEOUS PROVISIONS
10.1 P atent and Copyright Infringement . To the fullest extent permissible under law, and in lieu of any other warranty by City or Consultant against patent or copyright infringement, statutory or otherwise:
A. I
t is agreed that Consultant shall defend at its expense any claim or suit against City on account of any allegation that any item furnished under this Agreement, or the normal use or sale arising out of the performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright and Consultant shall pay all costs and damages finally awarded in any such suit or claim, provided that Consultant is promptly notified in writing of the suit or claim and given authority, information and assistance at Consultant’s expense for the defense of same, and provided such suit or claim arises out of, pertains to, or is related to the negligence, recklessness or willful misconduct of Consultant. However, Consultant will not indemnify City if the suit or claim results from: (1) City's alteration of a deliverable, such that City’s alteration of such deliverable created the infringement upon any presently existing U.S. letters patent or copyright; or (2) the use of a deliverable in combination with other material not provided by Consultant when it is such use in combination which infringes upon an existing U.S. letters patent or copyright.
B. C
onsultant shall have sole control of the defense of any such claim or suit and all negotiations for settlement in the event City fails to cooperate in the defense of any suit or claim, provided, however, that such defense shall be at Consultant’s expense. Consultant shall not be obligated to indemnify City under any settlement that is made without Consultant’s consent, which shall not be unreasonably withheld. If the use or sale of such item is enjoined as a result of Item 1L - Page 20
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17 the suit or claim, Consultant, at no expense to City, shall obtain for City the right to use and sell the item, or shall substitute an equivalent item acceptable to City and extend this patent and copyright indemnity thereto.
10.2 N otice. Any notice, demand, request, consent, approval, or communication that either party desires, or is required to give to the other party or any other person shall be in writing.
All notices shall be personally delivered, sent by pre -paid First Class U.S. Mai l, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with attached evidence of completed transmission. All notices shall be deemed received upon the earlier of (i) the date of delivery to the addres s of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) five (5) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by facsimile. Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as e-mails, text messages, and instant messages are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows:
T
o City : City of Palm Springs
Attention: City Manager & City Clerk
3200 E. Tahquitz Canyon Way
Palm springs, California 92262
Telephone: (760) 323-8204
Facsimile: (760) 323-8332
To Consultant: C & S Engineers, Inc.
2355 Northside Drive Suite 350
San Diego, CA 92108
Attention: Michael Hotaling, Senior Vice President
Telephone: 619-296-9373
Facsimile: 619-292-0344
10.3 I
ntegrated Agreement . This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement.
10.4 A
mendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement signed by all Parties.
10.5 S
everability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement shall be determined to be invalid by a final judgment or decree of a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the reminder of that provision, or the remaining provisions of this Agreement unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
Item 1L - Page 21
55575.18165\32900157.2
Revised: 12.1.2021
18 10.5 Successors in Interest . This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees.
10.6 T hird Party Beneficiary . Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any right s as a third -party beneficiary or otherwise, upon any entity or person not a party to this Agreement.
10.7 R
ecitals . The above -referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same.
10.8. C
orporate Authority. Each of the undersigned represents and warrants that (i) the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which the Party for which he or she is signing is bound.
10.9 C
ounterparts . This Agreement may be signed in counterparts, each of which shall constitute an original.
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SIGNATURES ON NEXT PAGE]
Item 1L - Page 22
55575.18165\32900157.2
Revised: 12.1.2021
19 SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND C & S ENGINEERS, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _______________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No. A
greement No.
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ D
ate:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
Item 1L - Page 23