SECTION 2. The City’s Fire Department has the authorization to submit an application for CALFIRE’s Wild Fire Protection Grants Program to seek funding in an amount between $200,000.00 and $300,000.00.
SECTION 3. The City’s Fire Department is available to begin, operate, and maintain the City's Very High Fire Vegetation Management program using the grant funds, if awarded.
SECTION 4. The City will follow any and all grant conditions that are set forth by the grant program if the grant funds are awarded.
SECTION 5. This action is exempt from CEQA on the basis that it can be seen with certainty that there is no possibility that the activity in question, submitting an application for CALFIRE grant funding, may have a significant effect on the environment. (State CEQA Guidelines, § 15061, subd. (b)(3).) The allocation of funding itself will have no effect on the environment, and any future grant activities requiring discretionary action will be evaluated under the California Environmental Quality Act at that time.
SECTION 6. The City Fire Chief or his or her designee, shall have the authority to conduct all negotiations, execute and submit all documents including, but not limited to all application forms, agreements, amendments, and grant payment requests, which may be necessary for the completion of the grant application.
ADOPTED THIS 14TH DAY OF DECEMBER, 2023.
SCOTT C. STILES
CITY MANAGER
ATTEST:
BRENDA PREE
CITY CLERK
Item 1X - Page 7
55575.00001\41857025.1
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 _______________________, 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 14th day of December, 2023.
Brenda Pree, City Clerk
City of Palm Springs, California
Item 1X - Page 8
ATTACHMENT B
Item 1X - Page 9
PALM SPRINGS FIRE DEPARTMENT
Appendix “S”
VEGETATION MANAGEMENT IN VERY HIGH FIRE
HAZARD SEVERITY ZONES
PALM SPRINGS FIRE DEPARTMENT
300 NORTH EL CIELO ROAD
PALM SPRINGS, CA 92262
COMMUNITY RISK REDUCTION CONTACT INFORMATION:
OFFICE: 760.323.8181
EMAIL: [email protected]
Item 1X - Page 10
TABLE OF CONTENTS
1.1 INTRODUCTION ...................................................................................................... 3
1.2 PURPOSE ................................................................................................................ 3
1.3 PENALTY ................................................................................................................ 3
1.4 CLEARANCE REQUIREMENTS/FUEL MODIFICATION .................................... 3-5 Item 1X - Page 11
1.1 INTRODUCTION
Vegetation management has proven to be a major factor in reducing the chances of buildings igniting from wildfires and from wildland areas being ignited from burning buildings. When combined with special building construction features, the chances of ignition are further reduced.
Fire and Building Department agencies adopt local and state codes that require vegetation management and special construction features. The Vegetation Management Guideline increase requirements for brush clearance and fire safety in the Very High Fire Hazard Severity Zones (VHFHSZ).
1.2 PURPOSE
This guideline establishes appropriate safety measures necessary to mitigate the occurrence of fires.
1.3 PENALTY
A first violation of this section shall be an infraction punishable by a fine not to exceed $250. A second and all subsequent violations of this appendix shall be subject to prosecution as an infraction or prosecution as a misdemeanor punishable by a fine not to exceed $1,000, by imprisonment in the County Jail for a period not to exceed six months, or by both such fine and imprisonment. In addition, to the aforementioned penalties, any violator convicted under this appendix, which resulted in a fire, may be liable for any civil cost recovery associated with the fire, as permitted by law.
1.4 CLEARANCE REQUIREMENTS
Owners of property located in the Very High Fire Hazard Severity Zone (VHFHSZ) shall maintain their property in accordance with the 2022 California Fire Code and Palm Springs Fire Department Vegetation Management Guideline. Year-round compliance shall be maintained as described below on all native brush, weeds, grass, trees, and hazardous vegetation within 200 feet of any structure/buildings, whether those structures are on the owner’s property or adjoining properties, and within 10 feet of any combustible fence or roadway/driveway used for vehicular travel.
1. Areas within 200 feet of structures and/or 10 feet of roadside surfaces or combustible fence: Grass shall be cut to three inches in height. Native brush shall be reduced in quantity to three inches in height. This does not apply to individual native shrubs spaced a minimum of 18 feet apart, provided such shrubs are trimmed up from the ground to 1/3 of their height with all dead material being removed (see diagram below).
2. For trees taller than 18 feet, trim lower branches so no foliage is within six feet of the ground, and remove all dead material. For trees and shrubs less than 18 feet, Item 1X - Page 12
remove lower branches to 1/3 of their height, and remove all dead material (see diagram below).
3. Trees shall be trimmed up so the foliage is no closer than 10 feet from the outlet of a chimney (see diagram below).
4. All roof surfaces shall be maintained free of substantial accumulation of leaves, needles, twigs and any other combustible matter. Maintain five feet of vertical clearance between roof surfaces and portions of overhanging trees (see diagram below).
5. All cut vegetation and debris shall be removed in a legal manner. Cut vegetation may be machine processed (i.e., chipped) and spread back onto the property at a depth not to exceed three inches within 30 feet of structures and six inches beyond 30 feet of structures. In addition, spread material shall not be placed within 10 feet of any usable roadside.
6. Use of metal cutting blades for grass or brush clearance shall be limited to those which are non-ferrous/non-sparking.
7. Brush clearance cannot be done on red flag days, when fire weather conditions are at their peak.
8. Individuals engaged in brush clearance operations shall not engage in any other activities during their actual clearance of grass or brush.
9. An approved 2-A two (2) gallon water fire extinguisher, or a pressurized garden hose with attached nozzle shall be within 10 feet of any grass or brush clearance operation, to quickly extinguish a small fire before it burns out of control.
10. Where a gasoline container is present at the site of the grass or brush clearance operation, a minimum 4A 60BC dry chemical fire extinguisher shall be within 10 feet of the brush clearance operation.
11. A cell phone capable of dialing 9-1-1 shall be charged and readily accessible to the grass or brush clearance operation.
Item 1X - Page 13
The above general requirements also apply to landscape vegetation.
VEGETATION MANAGEMENT IS A YEAR-ROUND
RESPONSIBILITY
Clear Early, Clear Often.
Item 1X - Page 14
CITY COUNCIL STAFF REPORT
12/14/2023 CONSENT CALENDAR
SUBJECT:
APPROVE CONTRACT SERVICES AGREEMENT NO. 23B364 WITH GENESIS FLOOR COVERING, INC. FOR ON-CALL FLOORING REPAIR AND
REPLACEMENT SERVICES FOR PALM SPRINGS INTERNATIONAL AIRPORT RECOMMENDATION:
Approve Contract Services Agreement 23B364 with Genesis Floor Covering, Inc. to provide on-call flooring repair and replacement services for the Palm Springs International Airport in an amount not to exceed $600,000 for the initial three-year term beginning January 1, 2024, through December 31, 2026, with two one-year extension options at the City’s sole discretion.
1. 2. Authorize the City Manager or his designee to execute all necessary documents.
Attachments
Item 1Y
CITY COUNCIL STAFF REPORT
DATE: DECEMBER 14, 2023 CONSENT CALENDAR
SUBJECT: APPROVE CONTRACT SERVICES AGREEMENT NO. 23B364 WITH GENESIS FLOOR COVERING, INC. FOR ON-CALL FLOORING REPAIR
AND REPLACEMENT SERVICES FOR PALM SPRINGS
INTERNATIONAL AIRPORT
FROM: Scott C. Stiles, City Manager
BY: Department of Aviation
SUMMARY:
This action will approve Agreement No. 23B364 with Genesis Floor Covering, Inc., in an amount not to exceed $600,000 for on-call flooring repair and replacement services for the Palm Springs International Airport.
RECOMMENDATION:
1. Approve Contract Services Agreement 23B364 (Attachment A) with Genesis Floor Covering, Inc. to provide on-call flooring repair and replacement services for the Palm Springs International Airport in an amount not to exceed $600,000 for the initial three-year term beginning January 1, 2024 through December 31, 2026, with two one-year extension options at the City’s sole discretion; and
2. Authorize the City Manager or his designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure form (Attachment B) submitted on November 16, 2023, Genesis Floor Covering, Inc. is registered in the State of California.
BACKGROUND:
The Airport has incorporated extensive flooring projects for all existing building spaces across the Airport’s 940-acre facility that has approximately 83,000 square feet of flooring within the terminal and adjacent buildings. Historically, the Airport has contracted with various flooring companies to address flooring issues stemming from high foot and luggage traffic and the daily demands of Airport operations. From January 2023 to Item 1Y - Page 1
City Council Staff Report
December 14, 2023 -- Page 2
Award On-Call Flooring Repair/Replacement Services Contract October 2023, 2.5 million passengers have traveled through the Airport and to efficiently handle these demands, the Airport requires the assistance of an on-call agreement to provide flooring repair and replacement services.
As damaged flooring presents a significant safety hazard that could potentially endanger passengers, staff, and tenants, an on-call flooring repair and replacement services agreement would enhance safety and operations at the Airport. Furthermore, adherence to Federal Aviation Administration (FAA) requirements is crucial, as non-compliance may result in severe penalties, and on-call flooring repair and replacement services will ensure ongoing compliance to mitigate legal and financial risks.
A well-maintained environment enhances the passenger experience and leaves a favorable impression on both the airlines and the passengers, and an on-call agreement will allow staff to promptly address flooring issues which will minimize disruptions to Airport operations.
STAFF ANALYSIS:
The contract with Genesis Floor Covering Inc. is an on-call, as-needed type contract. The bids were used to determine the lowest, responsive, responsible bidder and to set the unit rates for the contract; however, the actual amount of the contract is based on the budgeted amount set by the Department and will therefore not match the bid amounts.
An Invitation for Bids (IFB 23-46) was initiated by the City’s Procurement and Contracting Department on October 23, 2023, based on the Department of Aviation specifications.
Bids were solicited directly via the City’s procurement vendor portal, PlanetBids. In addition, the IFB was advertised in The Desert Sun. One bid was received by the November 16, 2023, deadline as follows:
Vendor Bid
Genesis Floor Covering, Inc. – Santa Fe Springs, CA $691,425.00 Since only one bid was received, the pricing was analyzed by the Aviation Department and compared to prices paid in the past and was found to be fair and reasonable for the City. The unit pricing is fixed for the first year and subject to CPI increase in the following years. Staff recommends approval of Contract Services Agreement No. 23B364 with Genesis Floor Covering, Inc. for the initial three-year term in the amount not to exceed $600,000 effective January 1, 2024 through December 31, 2026, subject to two one-year optional renewals at the sole discretion of the City.
The on-call contract will cover parts and materials, labor, and subcontractors. Staff has budgeted $200,000 for Fiscal Year 2023-24, and $200,000 will be budgeted for Fiscal Years 2024-25 and 2025-26 respectively to ensure that funding is available for any unforeseen maintenance and repair services.
Item 1Y - Page 2
City Council Staff Report
December 14, 2023 -- Page 3
Award On-Call Flooring Repair/Replacement Services 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 2A, Community Infrastructure – Improve City Facilities.
FISCAL IMPACT:
Funding in the amount of $200,000 is budgeted in the Department of Aviation, Terminal Building Account 4157050-40105 in Fiscal Year 2023-24. The remaining annual amounts will be budgeted in future fiscal years.
REVIEWED BY:
Department Director: Harry Barrett Jr.
Procurement and Contracting Director: Kim Baker
City Attorney: Geremy Holm
City Manager: Scott Stiles
ATTACHMENTS:
A. Contract Services Agreement No. 23B364
B. Public Integrity Disclosure
Item 1Y - Page 3
ATTACHMENT A
CONTRACT SERVICES AGREEMENT NO. 23B364
WITH GENESIS FLOOR COVERING INC.
Item 1Y - Page 4
Revised 4.13.23 Page 1 of 67
CONTRACT SERVICES AGREEMENT 23B364
ON-CALL FLOORING REPAIR AND REPLACEMENT SERVICES FOR
PALM SPRINGS INTERNATIONAL AIRPORT
THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into on January 01, 2024, by and between the City of Palm Springs, a California charter city and municipal corporation (“City”), and Genesis Floor Covering Inc., a California Corporation, (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.
RECITALS
A. City requires the services of a licensed and qualified vendor to provide on-call floor repair and replacement services for the Palm Springs International Airport, (“Project”).
B. Contractor has submitted to City a proposal to provide on-call floor repair and replacement services for the Palm Springs International Airport, 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 consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. CONTRACTOR SERVICES
1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Contractor shall provide services to City as described in the Scope of Services/Work attached to this Agreement as Exhibit “A” and incorporated herein by reference (the “Services” or “Work”). Exhibit "A" includes the agreed upon schedule of performance and the schedule of fees. Contractor warrants that the Services shall be performed in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced, and well qualified members of the profession currently practicing under similar conditions. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern.
1.2 Compliance with Law. Contractor shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.
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1.3 Licenses and Permits. Contractor shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the Services required by this Agreement.
1.4 Familiarity with 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 schedule of performance set forth in Exhibit “A.” Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non-performing Party. Delays shall not entitle Contractor to any additional compensation regardless of the Party responsible for the delay.
3. COMPENSATION OF CONTRACTOR
3.1 Compensation of Contractor. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $600,000.00.
3.2 Method of Payment. In any month in which Contractor wishes to receive payment, Contractor shall submit to City an invoice for Services rendered prior to the date of the invoice, no later than the first working day of such month, in the form approved by City’s finance director. Payments shall be based on the hourly rates set forth in Exhibit “A” for authorized services performed. City shall pay Contractor for all expenses stated in the invoice that are approved by City and consistent with this Agreement, within thirty (30) days of receipt of Contractor’s invoice.
3.3 Changes. In the event any change or changes in the Services is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into:
A. To provide for revisions or modifications to documents, work product, or Work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession.
3.4 Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City.
Item 1Y - Page 6
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4. PERFORMANCE SCHEDULE
4.1 Time of Essence. Time is of the essence in the performance of this Agreement.
4.2 Schedule of Performance. All Services rendered under this Agreement shall be performed under the agreed upon schedule of performance set forth in Exhibit “A.” Any time period extension must be approved in writing by the Contract Officer.
4.3 Force Majeure. The time for performance of Services to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event, if Contractor notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Contractor’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing the Services for the period of the enforced delay when and if, in the Contract Officer’s judgment, such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. The Contractor will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement shall continue in full force and effect for a period of three years, commencing on January 01, 2024, and ending on December 31, 2026, unless extended by mutual written agreement of the Parties. In addition, the term may be extended at the sole discretion of the City upon written notice to the Contractor, for two (2) additional one (1) year terms.
4.5 Termination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor. Where termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Contractor shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor, who shall be liable for the full cost of the City's corrective action.
Item 1Y - Page 7
Revised 4.13.23 Page 4 of 67
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: Oscar Medina, President. It is expressly understood that the experience, knowledge, education, capability, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the Services under this Agreement. The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer.
5.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Contractor shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the Services. Contractor shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer.
5.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, education, capability, and reputation of Contractor, its principals and employees, were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other individual or entity to perform any Services required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City.
5.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Contractor, its agents or employees, perform the Services required, except as otherwise specified. Contractor shall perform all required Services as an independent contractor of City and shall not be an employee of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role; however, City shall have the right to review Contractor’s work product, result, and advice. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Contractor shall pay all wages, salaries, and other amounts due personnel in connection with their performance under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance. Contractor shall not have any authority to bind City in any manner.
Item 1Y - Page 8
Revised 4.13.23 Page 5 of 67
5.5 Personnel. Contractor agrees to assign the following individuals to perform the services in this Agreement. Contractor shall not alter the assignment of the following personnel without the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted right to order the removal of any personnel assigned by Contractor by providing written notice to Contractor.
Name: Title:
Oscar Medina 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 and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
B. If the Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements.
6. INSURANCE
Contractor shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference.
7. INDEMNIFICATION.
7.1 Indemnification. To the fullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the “Indemnified Item 1Y - Page 9
Revised 4.13.23 Page 6 of 67
Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (Contractor’s employees included), for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct committed by Contractor, its officers, employees, representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.
7.2 Design Professional Services Indemnification and Reimbursement. If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor in the performance of the Services or this Agreement, and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction, Contractor’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault.
8. RECORDS AND REPORTS
8.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer reports concerning the performance of the Services required by this Agreement, or as the Contract Officer shall require.
8.2 Records. Contractor shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Contractor shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records.
8.3 Ownership of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of this Agreement shall be the property of City. Contractor shall deliver all above-referenced documents to City upon 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 Item 1Y - Page 10
Revised 4.13.23 Page 7 of 67
of such documents for Contractor's own use. Contractor shall have an unrestricted right to use the concepts embodied in such documents.
8.4 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer.
8.5 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, Contractor shall provide City, or other agents of City, such access to Contractor’s books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Contractor’s performance under this Agreement. Contractor shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder.
9. ENFORCEMENT OF AGREEMENT
9.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
9.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties.
Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs.
9.3 Waiver. No delay or omission in the exercise of any right or remedy of a nondefaulting Party on any default shall impair such right or remedy or be construed as a waiver.
No consent or approval of City shall be deemed to waive or render unnecessary City’s consent to or approval of any subsequent act of Contractor. Any waiver by either Party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement.
9.4 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative. The exercise by either Party of one or more of such rights or remedies Item 1Y - Page 11
Revised 4.13.23 Page 8 of 67
shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
9.5 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement.
9.6 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non-judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding.
10. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
10.1 Non-Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Contractor, or any successor-in-interest, in the event of any default or breach by City or for any amount which may become due to the Contractor or its successor, or for breach of any obligation of the terms of this Agreement.
10.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement, nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.
10.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to nondiscrimination in city contracting.
11. MISCELLANEOUS PROVISIONS
Item 1Y - Page 12
Revised 4.13.23 Page 9 of 67
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: Genesis Floor Covering Inc.
Attention: Oscar Medina
14101 Pontalavoy Ave.
Santa Fe Springs, CA 90670
11.2 Integrated Agreement. This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement.
11.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement signed by all Parties.
11.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the Parties.
11.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees.
11.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement.
11.7 Recitals. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same.
Item 1Y - Page 13
Revised 4.13.23 Page 10 of 67
11.8 Authority. The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement.
11.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
12. COMPLIANCE WITH ECONOMIC SANCTIONS IN RESPONSE TO RUSSIA'S ACTIONS IN UKRAINE.
When funding for the services is provided, in whole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive Order N-6-22 (“Russian Sanctions Program”). As part of this compliance process, Consultant shall also certify compliance with the Russian Sanctions Program by completing the form located in Exhibit “C” (Russian Sanctions Certification), attached hereto and incorporated herein by reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section.
13. FEDERAL PROVISIONS
Since funding for the Services is provided, in whole or in part, by the Federal Aviation Administration, Supplier shall also fully and adequately comply with the provisions included in Exhibit “D” attached hereto and incorporated herein by reference (“Federal Provisions”). With respect to any conflict between such Federal Provisions and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control. [SIGNATURES ON NEXT PAGE]
Item 1Y - Page 14
Revised 4.13.23 Page 11 of 67
SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND GENESIS FLOOR COVERING INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _______________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: ___________________ Item No. ___________________
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
Item 1Y - Page 15
Revised 4.13.23 Page 12 of 67
EXHIBIT “A”
CONTRACTOR’S
SCOPE OF SERVICES/WORK
Including,
Schedule of Fees
And
Schedule of Performance
Item 1Y - Page 16
Revised 4.13.23 Page 13 of 67
1.1 Background:
The Palm Springs International Airport (PSP) has the need for a flooring repair and replacement service contract. The Airport has incorporated large commercial flooring projects within all current building spaces across our 940-acres.
1.2 Scope:
A. Contractor will provide all staff, materials, and equipment necessary to provide oncall commercial grade flooring repair and replacement services for Palm Springs International Airport.
B. Flooring to include but not limited to commercial grade carpet tiles, roll carpet and commercial grade hard surface flooring such as roll vinyl, epoxy, polyurea, terrazzo, quarry tile.
C. Contractor will install base board where applicable. carpeting, hard surface and base board design and product will be determined by the airport or an approved representative.
D. Contractor (or their Sub-contractor) shall have the ability and equipment to provide carpet cleaning and restoration services.
E. Contractor shall have the knowledge and equipment to polish and stain concrete flooring, polish and restore terrazzo flooring, and polish and restore ceramic tile.
F. During installation projects, the Contractor will remove and dispose of existing flooring and base board. Clean and prep surface for installation.
G. Contractor will remove or relocate furniture when applicable to remove, prep and install flooring.
H. Contractor shall bring adequate tools, suitable materials, and equipment to the site.
I. Areas to be serviced to include all building spaces current and future on all 940-acres and future acquisitions or expansion of property of the Palm Springs International Airport.
J. Contractor will be required to complete and maintain authorized signatory training and maintain an authorized signatory on staff.
K. Contractor and affiliates will be required to obtain appropriate S.I.D.A. Badges.
1.3 Response Time:
Contractor shall respond to emergency calls for service or repair within twenty-four (24) hours. Emergency responses to include weekends, after-hours, and holidays.
1.4 General Safety Requirements:
Contractor shall be responsible for all safety precautions required in connection with their work, including regulations of the Occupational Safety and Health Administration (OSHA) and other governing agencies. The City reserves the right to oversee all service Item 1Y - Page 17
Revised 4.13.23 Page 14 of 67
work from a safety standpoint and require the Contractor to take appropriate action to ensure safety and code compliance.
1.5 Damages:
Necessary precautions shall be taken at all times to protect persons, property and equipment from injury or damage. Any damage shall be reported, reviewed, and discussed with the facility manager.
1.6 Pricing:
1. The pricing included in this Contract shall be firm for the first year.
2. The unit prices may be adjusted (decreased or increased) once a year to correspond with the most recent annual change to the Consumer Price Index for All Urban Consumers as published by the U.S. Bureaus of Labor Statistics for the Riverside-San Bernardino-Ontario Areas.
3. The City will only pay for the items listed on the bid form, and permit and disposal fees. This does not include access to public utilities. Contractor must incorporate all of its costs in its unit bid prices, including but not limited to labor, supervision, project management, overhead, profit, onboarding training, travel, mileage, truck charges, fuel charges, service call charges, parking, delivery, portal-to-portal charges, environmental fees, shop supplies and consumable incidental materials. The City will not pay for subcontractors, rental of equipment/tools, and purchase of materials/supplies unless the City authorized payment of the applicable items.
1.7 Payment:
The resulting contract for these services is an on-call as needed contract. No specific amount of work is guaranteed. The contract value is an estimated value only. All work authorized under the contract will be compensated on a time and material basis as outlined in the Invoicing Section.
1.8 Invoicing:
Contractor will submit an itemized invoice monthly. Billings must reference a purchase order number and shall indicate the unit (contract) price. Contractor will be paid for the actual hours worked at the rates shown in the contract. Parts, materials, equipment, and subcontractor costs will be compensated at actual cost with receipts required with allowable markup as outline in the contract. Contractor shall break out the line items on the invoice in accordance with the line items on the bid form. Contractor must provide back-up documentation for materials, subcontractor, rented equipment, permits, disposal and recycling fees. Invoices that are submitted with incorrect prices may be returned for correction before any payments to the contractor are authorized. It shall be the contractor’s responsibility to submit a correct invoice. The City shall not be responsible for payment until a correct invoice is received. The invoice shall be accompanied by receipts, dated, and signed by a City Employee, verifying the work was done. Invoices and receipts will be submitted to the Contract Officer for approval.
Item 1Y - Page 18
Revised 4.13.23 Page 15 of 67
Item 1Y - Page 19
ATTACHMENT G
BID FORM
INVITATION FOR BIOS (IFB 23-46)
ON-CALL FLOORING REPAIR AND REPLACEMENT SERVICES FOR PSP Responding to this IFB for on-call flooring repair and replacement services for the Palm Springs International Airport (PSP), the unde,-signed bidder proposes and agrees to provide the services and work in accordance with the specifications. Bidder proposes and agrees to furnish all labor, equipment. materials, supervision, and service necesf;;:iry tn r:nmr,IAtA s~id Work. In accord~nce with the Specifications of the City of Pam Springs and will accept as full payment therefore, the following unit cost amounts. The City of Palm Springs will not accept any additional charges. fees, etc. that are not already included or Incorporated in the below unit costs.
ITEM DESCRIPTION UNIT ESTIMATED UNIT PRICE SUBTOTAL QUANTITY 1 Laborer Regular Billing Rate HR 5,000 (7:00AM - 5:00PM) 2 Laborer Overtime BIiling Rate HR 500 (5:00PM - 7:00AM) 3 Laborer Holiday Billing Rate
(Saturday/Sunday/Holiday) HR 500
5 Parts and Materials (Enter your %
mark % S200,000 -up for parts & materials)
6 Subcontractor (Enter your% mark-up
for subcontractor) % $5,000
TOTAL (Enter this amount in PlanotBids) .lf
*Note: This bid form is to determine the lowest bidder and will be used to establish the contract unit prices. The contract value will be set at the City budget amount.
Firm Name.: __ _..t).,{...,'.l,.,,M"-f,"'1._·,;'-'-f_.l.w.....__,C..,'.IN.""'P"'~u· .... '1114 1.,_,-"lncuf.,_, .c.· ______ _ DIR Number iQ{)Q(Y)~/Y2/,i . ~
Signature of Authorized Person: _..,-;R~-~:Z ,:;......,.'------------ Printed Name: 00"-,a.r t:¾1iail Title: _::I¼..._...,~=.., ·Je,.,,m:UL... ___ _________ _ Date: _1._._1+-1/t""-1./1.&./ :l,.._Q.,..23..._ ________ ___ _ I ' Revised 4.13.23 Page 16 of 67
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 1Y - Page 20
Revised 4.13.23 Page 17 of 67
INSURANCE
1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Contractor’s performance under this Agreement.
Contractor shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agreement.
Contractor shall also carry workers’ compensation insurance in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers.
2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows:
1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate;
2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence;
3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is:
_________ required
____X____ is not required;
4. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.
3. Primary Insurance. For any claims related to this Agreement, Contractor’s insurance coverage shall be primary with respect to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and Item 1Y - Page 21
Revised 4.13.23 Page 18 of 67
contribution it may have against City, its elected officials, officers, employees, agents, and volunteers.
4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Contractor provides claims made professional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Contractor’s services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’s services under this Agreement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy.
5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City.
6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate:
A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
B. "This insurance is primary and non-contributory over any insurance or selfinsurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
C. "Should any of the above-described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.
Item 1Y - Page 22
Revised 4.13.23 Page 19 of 67
D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies.
All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter.
Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them.
7. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
Certificates of Insurance must include evidence of the amount of any deductible or self-insured retention under the policy. Contractor guarantees payment of all deductibles and self-insured retentions.
8. Severability of Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability.
Item 1Y - Page 23
Revised 4.13.23 Page 20 of 67
Exhibit C
Item 1Y - Page 24
ATTACHMENT F
EXECUTIVE 0RDEIR N-G-2'2 CERnFICA.TI0N
INVITATION FOR BIIDS (IFB 23-46)
ON-CA.LL FL00R,ING R;EPAIR AND REPLACEMENT SERVICES FOR PSP Executive Order N-6-22 issued by Govemor Gavin Nem,om on March 4, .2022, drrects all agencies and departme t s that are subject to he Governor's autho,rfty lo• (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: a nd (b) refrain from e.ntering in o any new contracts with such individuals or enLities. whtle the aforementioned sanctions are in effect.
Executive Order N-6-22 also requires that any oontraotor that {1) currently ha,s a contract with the City of Palm Springs funded through grant funds. provided by the State of California: andlor (2) submits a bid or proposal or otherwise proposes to or enter int.a or renew a comraot with the City of Palm Springs with State of California grant fund s, certify th.at lhe person is not the target of any economic sanctions against Russia and Russian entities and individuals.
The contractor hereby certifies, SUBJECT TO PENAL TY FOR PERJURY, that a) the contractor is not a ta r,g.eI of any eoonom·c sanotfons against Russian, and Russia,n entities ancl Individuals as discussed in E>:ecutlv& Order N-6,22 ~t'lcl ,b} hEI p~rson signing below is duly authori,ed l:o legally bind the Contractor, This oertrncalion is made under he laws of lhe &ale al C~1?7
Signature:_L_~_L ____________ _ __ _
Printed Na.me: ,l)tfA( fdea:;,v1Q,,..
Title: 1're4:i'drot:
Fimi Name: ~& f [bt,v'"~alk!9. lne •
Date: 11 I 1~/ 10'/13
Revised 4.13.23 Page 21 of 67
Exhibit D
FEDERAL AVIATION ADMINISTRATION
FEDERAL PROVISIONS
Provision
Reference Provision Description
Page
No.
FAA - 01 Access to Records and Reports 2
FAA - 02 Affirmative Action Requirement * 3
FAA – 03 Breach of Contract Terms 5
FAA – 04 Buy American Preference * 6
FAA – 05 Civil Rights General 7
FAA – 06 Civil Rights – Title VI Assurances * 8
FAA – 07 Clean Air and Water Pollution Control 11
FAA – 08 Contract Work Hours and Safety Standards Act Requirements 12 FAA – 09 Copeland Anti-Kickback Act 14
FAA – 10 Davis Bacon Requirements 15
FAA – 11 Debarment and Suspension * 22
FAA – 12 Disadvantaged Business Enterprise * 23
FAA – 13 Distracted Driving 25
FAA – 14 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment
26 FAA – 15 Drug Free Workplace Requirements (not applicable to Contractors)
27 FAA – 16 Equal Employment Opportunity 28
FAA – 17 Federal Fair Labor Standards Act * 36
FAA – 18 Lobbying and Influencing Federal Employees 37
FAA – 19 Prohibition of Segregated Facilities 38
FAA – 20 Occupational Safety and Health Act of 1970 39
FAA – 21 Procurement of Recovered Materials * 40
FAA – 22 Right to Inventions 41
FAA – 23 Seismic Safety 42
FAA – 24 Tax Delinquency and Felony Convictions* 43
FAA – 25 Termination of Contract 44
FAA – 26 Trade Restriction Certification (Foreign) * 45 FAA – 27 Veteran’s Preference 47
FAA – 28 Domestic Preferences for Procurements * 48
*Solicitation Clause also
Updated 2.8.2023
Item 1Y - Page 25
Revised 4.13.23 Page 22 of 67
FAA - 01 Access to Records and Reports
APPLICABILITY – pertains to all contracts.
The Contractor must maintain an acceptable cost accounting system. The Contractor agrees to provide the City, the Federal Aviation Administration and the Comptroller General of the United States or any of their duly authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to the specific contract for the purpose of making audit, examination, excerpts and transcriptions. The Contractor agrees to maintain all books, records and reports required under this contract for a period of not less than three years after final payment is made and all pending matters are closed.
Reference: 2 CFR § 200.334, 2 CFR § 200.337, FAA Order 5100.38 Item 1Y - Page 26
Revised 4.13.23 Page 23 of 67
FAA - 02 Affirmative Action Requirement
NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO
ENSURE EQUAL EMPLOYMENT OPPORTUNITY
APPLICABILITY – pertains to all contracts over $10,000 as follows:
Construction – AIP funded construction work contracts and subcontracts that exceed $10,000.
Construction work means construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection and other onsite functions incidental to the actual construction.
Equipment – any equipment project exceeding $10,000 that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at a manufacturer’s plant (e.g., firefighting and snow removal vehicles).
Professional Services – any professional service agreement if the professional 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 acquisition if the agreement includes construction work (defined above) that exceeds $10,000. Examples include demolition of structures or installation of boundary fencing.
REQUIREMENTS -
1. The Contractor’s attention is called to the “Equal Opportunity Clause” and the “Standard Federal Equal Employment Opportunity Construction Contract Specifications” set forth herein.
2. The goals and timetables for minority and female participation, expressed in percentage terms for the Contractor’s aggregate workforce in each trade on all construction work in the covered area, are as follows:
Timetables
Goals for minority participation for each trade: [N/A]
Goals for female participation in each trade: [N/A]
These goals are applicable to all of the Contractor’s construction work (whether or not it is Federal or federally assisted) performed in the covered area. If the Contractor performs construction work in a geographical area located outside of the covered area, it shall apply the goals established for such geographical area where the work is actually performed. With regard to this second area, the Contractor also is subject to the goals for both its federally involved and nonfederally involved construction.
The Contractor’s compliance with the Executive Order and the regulations in 41 CFR Part 60-4 shall be based on its implementation of the Equal Opportunity Clause, specific affirmative action obligations required by the specifications set forth in 41 CFR 60-4.3(a) and its efforts to meet the goals. The hours of minority and female employment and training must be Item 1Y - Page 27
Revised 4.13.23 Page 24 of 67
substantially uniform throughout the length of the contract, and in each trade, and the Contractor shall make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from Contractor to Contractor or from project to project for the sole purpose of meeting the Contractor’s goals shall be a violation of the contract, the Executive Order and the regulations in 41 CFR Part 60-
4. Compliance with the goals will be measured against the total work hours performed.
3. The Contractor shall provide written notification to the Director of the Office of Federal Contract Compliance Programs (OFCCP) within 10 working days of award of any construction subcontract in excess of $10,000 at any tier for construction work under the contract resulting from this solicitation. The notification shall list the name, address, and telephone number of the subcontractor; employer identification number of the subcontractor; estimated dollar amount of the subcontract; estimated starting and completion dates of the subcontract; and the geographical area in which the subcontract is to be performed.
4. As used in this notice and in the contract resulting from this solicitation, the “covered area” is California, Riverside County, Palm Springs.
Reference: 41 CFR Part 60-4
Item 1Y - Page 28
Revised 4.13.23 Page 25 of 67
FAA – 03 Breach of Contract
APPLICABILITY – required for all contracts that exceed the simplified acquisition threshold as stated in 2 CFR Part 200, Appendix II (A). This threshold is occasionally adjusted for inflation and is $250,000.
REQUIREMENT -
See Section 4.5 of the Agreement.
Reference: 2 CFR § 200 Appendix II(A)
Item 1Y - Page 29
Revised 4.13.23 Page 26 of 67
FAA – 04 Buy American Preferences
APPLICABILITY – required for contracts defined as follows:
• Construction Projects involving the replacement, rehabilitation, reconstruction of airfield surfaces such as on runways, taxiways, taxilanes, aprons, roadways, parking lots, etc. – Insert the Certificate of compliance to FAA Buy American Preference based on Construction Projects.
• Equipment and Buildings Projects involving and including the acquisition of equipment such as snow removal equipment, navigational aids, wind cones, and the construction of buildings such as hangars, terminal development, lighting vaults, aircraft rescue & firefighting buildings, etc. - Insert the Certificate of Compliance with FAA Buy American Preference Based on Equipment/Building Projects.
REQUIREMENT -
The Contractor certifies that all constructions materials, defined to mean an article, material, or supply other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives that are or consist primarily of: non-ferrous metals; plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables); glass (including optic glass); lumber; or drywall used in the project are manufactured in the U.S.
Reference: Title 49 USC § 50101
Item 1Y - Page 30
Revised 4.13.23 Page 27 of 67
FAA – 05 Civil Rights General
APPLICABILITY – required for all contracts regardless of funding source.
REQUIREMENT -
In all its activities within the scope of its airport program, the Contractor agrees to comply with pertinent statutes, Executive Orders, and such rules as identified in Title VI List of Pertinent Nondiscrimination Acts and Authorities to ensure that no person shall, on the grounds of race, color, national origin (including limited English proficiency), creed, sex (including sexual orientation and gender identity), age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance. The above provision binds the Contractor and subcontractors from the bid solicitation period through the completion of the contract.
This provision is in addition to that required by Title VI of the Civil Rights Act of 1964.
Reference: 49 USC § 47123
Item 1Y - Page 31
Revised 4.13.23 Page 28 of 67
FAA – 06 Civil Rights – Title VI Assurances
APPLICABILITY – required for all contracts.
REQUIREMENT -
Title VI List of Pertinent Nondiscrimination Acts and Authorities During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “Contractor”) agrees to comply with the following nondiscrimination statutes and authorities; including but not limited to:
• Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin); • 49 CFR part 21 (Non-discrimination in Federally-Assisted programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act of 1964); • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 USC § 4601) (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); • Section 504 of the Rehabilitation Act of 1973 (29 USC § 794 et seq.), as amended (prohibits discrimination on the basis of disability); and 49 CFR part 27 (Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance); • The Age Discrimination Act of 1975, as amended (42 USC § 6101 et seq.) (prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982 (49 USC § 47123), as amended (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987 (PL 100-259) (broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act of 1990 (42 USC § 12101, et seq) (prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities) as implemented by U.S. Department of Transportation regulations at 49 CFR parts 37 and 38; • The Federal Aviation Administration’s Nondiscrimination statute (49 USC § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations); Item 1Y - Page 32
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• Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs [70 Fed. Reg. 74087 (2005)];
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 USC § 1681, et seq).
Compliance with Nondiscrimination Requirements:
During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “Contractor”), agrees as follows:
1. Compliance with Regulations: The Contractor (hereinafter includes consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts and Authorities, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract.
2. Nondiscrimination: The Contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, national origin (including limited English proficiency), creed, sex (including sexual orientation and gender identity), age, or disability in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Contractor will not participate directly or indirectly in the discrimination prohibited by the Nondiscrimination Acts and Authorities, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR part 21.
3. Solicitations for Subcontracts, including Procurements of Materials and Equipment:
In all solicitations, either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Contractor of the Contractor’s obligations under this contract and the Nondiscrimination Acts and Authorities on the grounds of race, color, or national origin.
4. Information and Reports: The Contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City or the Federal Aviation Administration to be pertinent to ascertain compliance with such Nondiscrimination Acts and Authorities and instructions. Where any information required of a Contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Contractor will so certify to the City or the Federal Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain the information.
5. Sanctions for Noncompliance: In the event of a Contractor’s noncompliance with the non-discrimination provisions of this contract, the City will impose such contract sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to:
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a. Withholding payments to the Contractor under the contract until the Contractor complies; and/or
b. Cancelling, terminating, or suspending a contract, in whole or in part.
6. Incorporation of Provisions: The Contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations, and directives issued pursuant thereto. The Contractor will take action with respect to any subcontract or procurement as the City or the Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Contractor may request the City to enter into any litigation to protect the interests of the City. In addition, the Contractor may request the United States to enter into the litigation to protect the interests of the United States.
Reference: 49 USC § 47123, FAA Order 1400.11
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FAA – 07 Clean Air/Water Pollution Control
APPLICABILITY – This provision is required for all contracts and lower tier contracts that exceed $150,000.
REQUIREMENT -
If the Agreement exceeds $150,000, Contractor agrees to comply with all applicable standards, orders, and regulations issued pursuant to the Clean Air Act (42 USC § 7401-7671q) and the Federal Water Pollution Control Act as amended (33 USC § 1251-1387). The Contractor agrees to report any violation to the City immediately upon discovery. The City assumes responsibility for notifying the Environmental Protection Agency (EPA) and the Federal Aviation Administration.
Contractor must include this requirement in all subcontracts that exceeds $150,000.
Reference: 2 CFR § 200, Appendix II(G); 42 USC § 7401; 33 USC § 1251 Item 1Y - Page 35
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FAA – 08 Contract Work Hours and Safety Standards
APPLICABILITY – This provision is required for contracts as follows:
Contract Work Hours and Safety Standards Act Requirements (CWHSSA) (40 USC §§ 3702 & 3704) requires contractors and subcontractors on covered contracts to pay laborers and mechanics employed in the performance of the contracts not less than one and one-half times their basic rate of pay for all hours worked over 40 in a workweek.
CWHSSA prohibits unsanitary, hazardous, or dangerous working conditions on federallyassisted projects. The Wage and Hour Division (WHD) within the U.S. Department of Labor (DOL) enforces the compensation requirements of this Act, while DOL’s Occupational Safety and Health Administration (OSHA) enforces the safety and health requirements.
Contract Types –
Construction – This provision applies to all contracts and lower tier contracts that exceed $100,000, and employ laborers, mechanics, watchmen, and guards.
Equipment – This provision applies to any equipment project exceeding $100,000 that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at the vendor plant (e.g., ARFF and SRE vehicles).
Professional Services – This provision applies to professional service agreements that exceed $100,000 and employs laborers, mechanics, watchmen, and guards. This includes members of survey crews and exploratory drilling operations.
Property – While most land transactions do not involve employment of laborers, mechanics, watchmen, and guards, under certain circumstances, a property acquisition project could require such employment. Examples include the installation of property fencing or testing for environmental contamination
CONTRACT WORKHOURS AND SAFETY STANDARDS ACT REQUIREMENTS
1. Overtime Requirements.
No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic, including watchmen and guards, in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
2. Violation; Liability for Unpaid Wages; Liquidated Damages.
In the event of any violation of the clause set forth in paragraph (1) of this clause, the Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this clause, in the sum of $29 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this clause.
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3. Withholding for Unpaid Wages and Liquidated Damages.
The Federal Aviation Administration (FAA) or the City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such contract or any other Federal contract with the same prime Contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this clause.
4. Subcontractors.
The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) and also a clause requiring the subcontractor to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this clause.
Reference: 2 CFR Part 200, Appendix II(E); 2 CFR § 5.5(b); 40 USC § 3702; 40 USC § 3704
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FAA – 09 Copeland Anti-Kickback
APPLICABILITY -
The Copeland (Anti-Kickback) Act (18 USC § 874 and 40 USC § 3145) makes it unlawful to induce by force, intimidation, threat of dismissal from employment, or by any other manner, any person employed in the construction or repair of public buildings or public works, financed in whole or in part by the United States, to give up any part of the compensation to which that person is entitled under a contract of employment. The Copeland Act also requires each contractor and subcontractor to furnish weekly a statement of compliance with respect to the wages paid each employee during the preceding week.
Contract Types –
Construction – This provision applies to all construction contracts and subcontracts financed under the AIP that exceed $2,000.
Equipment – This provision applies to all equipment installation projects (e.g., electrical vault improvements) financed under the AIP that exceed $2,000. This provision does not apply to equipment acquisitions where the equipment is manufactured at the vendor’s plant (e.g., SRE and ARFF vehicles).
Professional Services –The emergence of different project delivery methods has created situations where Professional Service Agreements (PSAs) include tasks that meet the definition of construction, alteration, or repair as defined in 29 CFR Part 5. If such tasks result in work that qualifies as construction, alteration, or repair and it exceeds $2,000, the PSA must incorporate the Copeland Anti-kickback provision.
Property –Ordinarily, land acquisition projects would not involve employment of laborers or mechanics and thus the Copeland Anti-Kickback provision would not apply. However, land projects that involve installation of boundary fencing and demolition of structures would involve laborers and mechanics. The City must include this provision if the land acquisition project involves employment of laborers or mechanics for a contract exceeding $2,000.
REQUIREMENT -
Contractor must comply with the requirements of the Copeland “Anti-Kickback” Act (18 USC 874 and 40 USC 3145), as supplemented by Department of Labor regulation 29 CFR part 3. Contractor and subcontractors are prohibited from inducing, by any means, any person employed on the project to give up any part of the compensation to which the employee is entitled. The Contractor and each Subcontractor must submit to the City, a weekly statement on the wages paid to each employee performing on covered work during the prior week. City must report any violations of the Act to the Federal Aviation Administration.
Reference: 2 CFR Part 200, Appendix II(D); 29 CFR Parts 3 and 5 Item 1Y - Page 38
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FAA – 10 Davis Bacon Requirements
APPLICABILITY -
The Davis-Bacon Act (40 USC §§ 3141-3144, 3146, and 3147) ensures that laborers and mechanics employed under the contract receive pay no less than the locally prevailing wages and fringe benefits as determined by the Department of Labor.
Contract Types –
Construction –all construction contracts and subcontracts that exceed $2,000 and include funding from the AIP.
Equipment – This provision applies to all equipment installation projects (e.g., electrical vault improvements) financed under the AIP that exceed $ 2,000. This provision does not apply to equipment acquisitions where the equipment is manufactured at the vendor’s plant (e.g., SRE and ARFF vehicles)
Professional Services – The emergence of different project delivery methods has created situations where Professional Service Agreements (PSAs) includes tasks that meet the definition of construction, alteration, or repair as defined in 29 CFR Part 5. If such tasks result in work that qualifies as construction, alteration, or repair and it exceeds $2,000, the PSA must incorporate this clause.
Property – Ordinarily, land acquisition projects would not involve employment of laborers or mechanics and thus the provision would not apply. However, land projects that involve installation of boundary fencing and demolition of structures would involve laborers and mechanics. The City must include this provision if the land acquisition project involves employment of laborers or mechanics for a contract exceeding $2,000.
Fencing Projects – Fencing projects that exceed $2,000 must include this provision.
DAVIS-BACON REQUIREMENTS
1. Minimum Wages.
(i) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalent thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage Item 1Y - Page 39
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determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR § 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under (1)(ii) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can easily be seen by the workers.
(ii)(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage determination;
(2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (C) In the event the Contractor, the laborers, or mechanics to be employed in the classification, or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(ii) (B) or (C) of this paragraph, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.
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shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
(iv) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.
2. Withholding. The Federal Aviation Administration or the CIty shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the Federal Aviation Administration may, after written notice to the Contractor, City, Applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.
3. Payrolls and Basic Records.
(i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker; his or her correct classification; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 1(b)(2)(B) of the Davis-Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the Contractor shall maintain records that show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual costs incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii)(A) The Contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit the payrolls to the applicant, the City, or Owner, as the case may be, for transmission to the Federal Aviation Item 1Y - Page 41
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Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR § 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee’s social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH–347 is available for this purpose from the Wage and Hour Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker and shall provide them upon request to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit them to the applicant, the City, or Owner, as the case may be, for transmission to the Federal Aviation Administration, the Contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the sponsoring government agency (or the applicant, City, or Owner).
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under 29 CFR § 5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR § 5.5 (a)(3)(i), and that such information is correct and complete; (2) That each laborer and mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR Part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph (3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the Contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code.
(iii) The Contractor or subcontractor shall make the records required under paragraph (3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the City, the Federal Aviation Administration, or the Department of Labor and shall permit such representatives to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit the required records or to make them available, the Federal agency Item 1Y - Page 42
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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 Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman’s hourly rate) specified in the Contractor’s or subcontractor’s registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice’s level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination.
Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees. Except as provided in 29 CFR § 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee’s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the Item 1Y - Page 43
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trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination that provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate that is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal Employment Opportunity. The utilization of apprentices, trainees, and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.
5. Compliance with Copeland Act Requirements.
The Contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference in this contract.
6. Subcontracts.
The Contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR §§ 5.5(a)(1) through (10) and such other clauses as the Federal Aviation Administration may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR § 5.5.
7. Contract Termination: Debarment.
A breach of the contract clauses in paragraph 1 through 10 of this section may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR § 5.12.
8. Compliance with Davis-Bacon and Related Act Requirements.
All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract.
9. Disputes Concerning Labor Standards.
Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the Contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.
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10. Certification of Eligibility.
(i) By entering into this contract, the Contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor’s firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR §
5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR § 5.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 USC § 1001.
Reference: 2 CFR Part 200, Appendix II(D); 29 CFR Part 5; 49 USC § 47112(b); 40 USC §§ 3141-3144, 3146, and 3147
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FAA – 11 Debarment and Suspension
APPLICABILITY - This requirement applies to covered transactions, which are defined in 2 CFR part 180 (Subpart B). AIP funded contracts are non-procurement transactions, as defined by 2 CFR § 180.970. Covered transactions include any AIP-funded contract, regardless of tier, that is awarded by a contractor, subcontractor, supplier, consultant, or its agent or representative in any transaction, if the amount of the contract is expected to equal or exceed $25,000. This includes contracts associated with land acquisition projects.
REQUIREMENT -
A11.3.1 Bidder or Offeror Certification
By submitting a bid/proposal under the solicitation for this contract, the Contractor must have certified that neither it nor its principals are presently debarred or suspended by any Federal department or agency from participation in this transaction.
A11.3.2 Lower Tier Contract Certification
CERTIFICATION OF LOWER TIER CONTRACTORS REGARDING DEBARMENT The Contractor, by administering each lower tier subcontract that exceeds $25,000 as a “covered transaction”, must verify each lower tier participant of a “covered transaction” under the project is not presently debarred or otherwise disqualified from participation in this federally assisted project. The Contractor will accomplish this by:
1. Checking the System for Award Management at website: http://www.sam.gov.
2. Collecting a certification statement similar to the Certification of Offerer /Bidder Regarding Debarment, above.
3. Inserting a clause or condition in the covered transaction with the lower tier contract.
If the Federal Aviation Administration later determines that a lower tier participant failed to disclose to a higher tier participant that it was excluded or disqualified at the time it entered the covered transaction, the FAA may pursue any available remedies, including suspension and debarment of the non-compliant participant.
Reference: 2 CFR part 180 (Subpart B), 2 CFR part 200 Appendix II(H), 2 CFR Part 1200, DOT Order 4200.5; Executive Orders 12549 and 12689
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FAA – 12 Disadvantaged Business Enterprise
APPLICABILITY – all contracts with Airports that have a DBE program on file with the FAA.
Contract Assurance (§ 26.13) –
The Contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The Contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of Department of Transportation-assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the City deems appropriate, which may include, but is not limited to:
1) Withholding monthly progress payments;
2) Assessing sanctions;
3) Liquidated damages; and/or
4) Disqualifying the Contractor from future bidding as non-responsible.
Prompt Payment (§26.29) – The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than [10 days] days from the receipt of each payment the prime contractor receives from [the City]. The prime contractor agrees further to return retainage payments to each subcontractor within [30 days] days after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the [City]. This clause applies to both DBE and non-DBE subcontractors.
Termination of DBE Subcontracts (49 CFR § 26.53(f)) –
The prime Contractor must not terminate a DBE subcontractor listed in response to the solicitation (or an approved substitute DBE firm) without prior written consent of the City. This includes, but is not limited to, instances in which the prime contractor seeks to perform work originally designated for a DBE subcontractor with its own forces or those of an affiliate, a nonDBE firm, or with another DBE firm.
The prime Contractor shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless the Contractor obtains written consent of the City.
Unless City consent is provided, the prime Contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE.
The City may provide such written consent only if the City agrees, for reasons stated in the concurrence document, that the prime Contractor has good cause to terminate the DBE firm.
For purposes of this paragraph, good cause includes the circumstances listed in 49 CFR §26.53.
Before transmitting to the City its request to terminate and/or substitute a DBE subcontractor, the prime Contractor must give notice in writing to the DBE subcontractor, with a copy to the City, of its intent to request to terminate and/or substitute, and the reason for the request.
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termination of its subcontract and why the City should not approve the prime Contractor's action. If required in a particular case as a matter of public necessity (e.g., safety), the City may provide a response period shorter than five days.
In addition to post-award terminations, the provisions of this section apply to preaward deletions of or substitutions for DBE firms put forward by offerors in negotiated procurements.
Reference: 49 CFR part 26
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FAA – 13 Distracted Driving
APPLICABILITY - contracts that exceed the micro-purchase threshold of 2 CFR § 200.320 (currently set at $10,000).
REQUIREMENT -
TEXTING WHEN DRIVING
In accordance with Executive Order 13513, “Federal Leadership on Reducing Text Messaging While Driving”, (10/1/2009) and DOT Order 3902.10, “Text Messaging While Driving”, (12/30/2009), the Federal Aviation Administration encourages recipients of Federal grant funds to adopt and enforce safety policies that decrease crashes by distracted drivers, including policies to ban text messaging while driving when performing work related to a grant or subgrant.
In support of this initiative, the City encourages the Contractor to promote policies and initiatives for its employees and other work personnel that decrease crashes by distracted drivers, including policies that ban text messaging while driving motor vehicles while performing work activities associated with the project. The Contractor must include the substance of this clause in all sub-tier contracts exceeding $10,000 that involve driving a motor vehicle in performance of work activities associated with the project.
Reference: Executive Order 13513, DOT Order 3902.10
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FAA – 14 Prohibition on Certain Telecommunications and Video Surveillance Services and Equipment
APPLICABILITY - all AIP funded contracts and lower-tier contracts.
REQUIREMENT -
Contractor and Subcontractor agree to comply with mandatory standards and policies relating to use and procurement of certain telecommunications and video surveillance services or equipment in compliance with the National Defense Authorization Act [Public Law 115-232 § 889(f)(1)].
Reference: 2 CFR § 200, Appendix II(K); 2 CFR § 200.216 Item 1Y - Page 50
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FAA – 15 Drug Free Workplace Requirements
APPLICABILITY - This provision applies to all AIP funded projects, but not to the contracts between the City and a contractor, subcontractors, suppliers, or subgrantees.
The Drug-Free Workplace Act of 1988 requires some Federal contractors and all Federal grantees to agree that they will provide drug-free workplaces as a condition of receiving a contract or grant from a Federal agency. The Act does not apply to contractors, subcontractors, or subgrantees, although the Federal grantees workplace may be where the contractors, subcontractors, or subgrantees are working.
Reference: 49 CFR part 32, Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq., as amended)
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FAA – 16 Equal Employment Opportunity
APPLICABILITY – The purpose of this provision is to provide equal opportunity for all persons, without regard to race, color, religion, sex, or national origin who are employed or seeking employment with contractors performing under a federally-assisted construction contract. There are two provisions ― a construction clause and a specification clause.
The equal opportunity contract clause applies to any contract or subcontract when the amount exceeds $10,000. Once the equal opportunity clause is determined to be applicable, the contract or subcontract must include the clause for the remainder of the year, regardless of the amount or the contract.
Contract Types –
Construction – all construction contracts and subcontracts as required above.
Equipment – all equipment contracts as required above that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at the vendor plant (e.g., ARFF and SRE vehicles).
Professional Services – all professional service agreements as required above.
Property – all land acquisition projects that include work that qualifies as construction work as defined by 41 CFR part 60 as required above. An example is installation of boundary fencing.
REQUIREMENT -
A16.3.1 EEO Contract Clause
During the performance of this contract, the Contractor agrees as follows:
(1) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.
The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identify, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff, or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has Item 1Y - Page 52
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access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information. (4) The Contractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers’ representative of the Contractor’s commitments under this section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the Contractor’s noncompliance with the nondiscrimination clauses of this contract or with any such rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (8) The Contractor will include the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.
A16.3.2 EEO Specification
STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY
CONSTRUCTION CONTRACT SPECIFICATIONS
a. “Covered area” means the geographical area described in the solicitation from which this contract resulted;
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b. “Director” means Director, Office of Federal Contract Compliance Programs (OFCCP), U.S.
Department of Labor, or any person to whom the Director delegates authority; c. “Employer identification number” means the Federal social security number used on the Employer’s Quarterly Federal Tax Return, U.S. Treasury Department Form 941; d. “Minority” includes:
(1) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin);
(2) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race);
(3) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and (4) American Indian or Alaskan native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification).
2. Whenever the Contractor, or any subcontractor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions of these specifications and the Notice which contains the applicable goals for minority and female participation and which is set forth in the solicitations from which this contract resulted.
3. If the Contractor is participating (pursuant to 41 CFR part 60-4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors must be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each contractor or subcontractor participating in an approved plan is individually required to comply with its obligations under the EEO clause and to make a good faith effort to achieve each goal under the Plan in each trade in which it has employees. The overall good faith performance by other contractors or subcontractors toward a goal in an approved Plan does not excuse any covered contractor’s or subcontractor’s failure to take good faith efforts to achieve the Plan goals and timetables.
4. The Contractor shall implement the specific affirmative action standards provided in paragraphs 7a through 7p of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and female utilization the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. Covered construction contractors performing construction work in a geographical areas where they do not have a Federal or federally assisted construction contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the Federal Register in notice form, and such notices may be obtained from any Office of Federal Contract Compliance Programs office or from Federal procurement contracting officers.
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The Contractor is expected to make substantially uniform progress in meeting its goals in each craft during the period specified.
5. Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the Contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the Contractor’s obligations under these specifications, Executive Order 11246, or the regulations promulgated pursuant thereto.
6. In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees must be employed by the Contractor during the training period, and the Contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor.
7. The Contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the Contractor’s compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The Contractor shall document these efforts fully, and shall implement affirmative action steps at least as extensive as the following:
a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites, and in all facilities at which the Contractor’s employees are assigned to work. The Contractor, where possible, will assign two or more women to each construction project. The Contractor shall specifically ensure that all foremen, superintendents, and other onsite supervisory personnel are aware of and carry out the Contractor’s obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities. b. Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contractor or its unions have employment opportunities available, and maintain a record of the organizations’ responses. c. Maintain a current file of the names, addresses, and telephone numbers of each minority and female off-the-street applicant and minority or female referral from a union, a recruitment source, or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the union or, if referred, not employed by the Contractor, this shall be documented in the file with the reason therefor, along with whatever additional actions the Contractor may have taken. d. Provide immediate written notification to the Director when the union or unions with which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or woman sent by the Contractor, or when the Contractor has other information that the union referral process has impeded the Contractor’s efforts to meet its obligations.
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and apprenticeship and trainee programs relevant to the Contractor’s employment needs, especially those programs funded or approved by the Department of Labor.
The Contractor shall provide notice of these programs to the sources compiled under 7b above.
f. Disseminate the Contractor’s EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each location where construction work is performed.
g. Review, at least annually, the company’s EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, layoff, termination, or other employment decisions including specific review of these items with onsite supervisory personnel such superintendents, general foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter. h. Disseminate the Contractor’s EEO policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and discussing the Contractor’s EEO policy with other contractors and subcontractors with whom the Contractor does or anticipates doing business. i. Direct its recruitment efforts, both oral and written, to minority, female, and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the Contractor’s recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the Contractor shall send written notification to organizations such as the above, describing the openings, screening procedures, and tests to be used in the selection process.
j. Encourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer, and vacation employment to minority and female youth both on the site and in other areas of a contractor’s work force.
k. Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR part 60-3.
l. Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel, for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities. m. Ensure that seniority practices, job classifications, work assignments, and other personnel practices do not have a discriminatory effect by continually monitoring all Item 1Y - Page 56
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personnel and employment related activities to ensure that the EEO policy and the Contractor’s obligations under these specifications are being carried out. n. Ensure that all facilities and company activities are nonsegregated except that separate or single-user toilet and necessary changing facilities shall be provided to assure privacy between the sexes.
o. Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations.
p. Conduct a review, at least annually, of all supervisor’s adherence to and performance under the Contractor’s EEO policies and affirmative action obligations.
8. Contractors are encouraged to participate in voluntary associations, which assist in fulfilling one or more of their affirmative action obligations (7a through 7p). The efforts of a contractor association, joint contractor-union, contractor-community, or other similar group of which the Contractor is a member and participant may be asserted as fulfilling any one or more of its obligations under 7a through 7p of these specifications provided that the Contractor actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the Contractor’s minority and female workforce participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the Contractor. The obligation to comply, however, is the Contractor’s and failure of such a group to fulfill an obligation shall not be a defense for the Contractor’s noncompliance.
9. A single goal for minorities and a separate single goal for women have been established.
The Contractor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and non-minority. Consequently, the Contractor may be in violation of the Executive Order if a particular group is employed in a substantially disparate manner (for example, even though the Contractor has achieved its goals for women generally, the Contractor may be in violation of the Executive Order if a specific minority group of women is underutilized).
10. The Contractor shall not use the goals and timetables or affirmative action standards to discriminate against any person because of race, color, religion, sex, sexual orientation, gender identity, or national origin.
11. The Contractor shall not enter into any subcontract with any person or firm debarred from Government contracts pursuant to Executive Order 11246.
12. The Contractor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination, and cancellation of existing subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any contractor who fails to carry out such sanctions and Item 1Y - Page 57
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penalties shall be in violation of these specifications and Executive Order 11246, as amended.
13. The Contractor, in fulfilling its obligations under these specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in paragraph 7 of these specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the Contractor fails to comply with the requirements of the Executive Order, the implementing regulations, or these specifications, the Director shall proceed in accordance with 41 CFR part 60-4.8.
14. The Contractor shall designate a responsible official to monitor all employment related activity to ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the Government, and to keep records. Records shall at least include for each employee, the name, address, telephone numbers, construction trade, union affiliation if any, employee identification number when assigned, social security number, race, sex, status (e.g., mechanic, apprentice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, contractors shall not be required to maintain separate records.
15. Nothing herein provided shall be construed as a limitation upon the application of other laws which establish different standards of compliance or upon the application of requirements for the hiring of local or other area residents (e.g. those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program).
Reference: 2 CFR 200, Appendix II(C), 41 CFR § 60-1.4, 41 CFR § 60-4.3, Executive Order 11246
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FAA – 17 Federal Fair Labor Standards Act
APPLICABILITY – Contract Types – Per the Department of Labor, all employees of certain enterprises having workers engaged in interstate commerce; producing goods for interstate commerce; or handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any person are covered by the FLSA.
All consultants, sub-consultants, contractors, and subcontractors employed under this federally assisted project must comply with the FLSA.
Professional Services – 29 CFR § 213 exempts employees in a bona fide executive, administrative or professional capacity. Because professional firms employ individuals that are not covered by this exemption, the agreement with a professional services firm must include the FLSA provision.
REQUIREMENT -
The provisions of 29 CFR part 201, the Federal Fair Labor Standards Act (FLSA), are incorporated by reference with the same force and effect as if given in full text. The FLSA sets minimum wage, overtime pay, recordkeeping, and child labor standards for full and part-time workers.
The Contractor has full responsibility to monitor compliance to the referenced statute or regulation. The Contractor must address any claims or disputes that arise from this requirement directly with the U.S. Department of Labor – Wage and Hour Division.
Reference: 29 USC § 201, et seq; 2 CFR § 200.430
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FAA – 18 Lobbying and Influencing Federal Employees
APPLICABILITY- all contracts exceeding $100,000.
REQUIREMENT -
Consultants and contractors that apply or bid for an award of $100,000 or more must have certified that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or another award covered by 31 USC §1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award.
For an award over $100,00, the bidder or offeror certifies by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
• No Federal appropriated funds have been paid or will be paid, by or on behalf of the bidder or offeror, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. • If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
• The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans, and cooperative agreements) and that all sub-recipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
Reference: 31 USC § 1352 – Byrd Anti-Lobbying Amendment, 2 CFR part 200, Appendix II(I), 49 CFR part 20, Appendix A
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FAA – 19 Prohibition of Segregated Facilities
APPLICABILITY - The Contractor must comply with the requirements of the EEO clause by ensuring that facilities they provide for employees are free of segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. This clause must be included in all contracts that include the equal opportunity clause, regardless of the amount of the contract.
Contract Types – any contract containing the Equal Employment Opportunity clause of 41 CFR § 60-1.4. This obligation flows down to subcontract and sub-tier purchase orders containing the Equal Employment Opportunity clause.
Construction – Construction work means construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.
Equipment – On site installation of equipment such as airfield lighting control equipment meets the definition of construction and thus this provision would apply. This provision does not apply to equipment projects involving manufacture of the item at a vendor’s manufacturing plant. An example would be the manufacture of a SRE or ARFF vehicle.
Professional Services – Professional services that include tasks that qualify as construction work as defined by 41 CFR part 60-1. Examples include the installation of noise monitoring equipment.
Property/Land – Land acquisition contracts that include tasks that qualify as construction work as defined by 41 CFR part 60-1. Examples include demolition of structures or installation of boundary fencing.
REQUIREMENT -
(a) The Contractor agrees that it does not and will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it does not and will not permit its employees to perform their services at any location under its control where segregated facilities are maintained. The Contractor agrees that a breach of this clause is a violation of the Equal Employment Opportunity clause in this contract. (b) “Segregated facilities,” as used in this clause, means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees that are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin because of written or oral policies or employee custom. The term does not include separate or single-user rest rooms or necessary dressing or sleeping areas provided to assure privacy between the sexes. (c) The Contractor shall include this clause in every subcontract and purchase order that is subject to the Equal Employment Opportunity clause of this contract.
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FAA – 20 Occupational Safety and Health Act
APPLICABILITY – Contract Types – All contracts and subcontracts must comply with the Occupational Safety and Health Act of 1970 (OSH). The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) oversees the workplace health and safety standards wage provisions from OSH.
REQUIREMENT -
All contracts and subcontracts that result from this solicitation incorporate by reference the requirements of 29 CFR Part 1910 with the same force and effect as if given in full text. The employer must provide a work environment that is free from recognized hazards that may cause death or serious physical harm to the employee. The employer retains full responsibility to monitor its compliance and their subcontractor’s compliance with the applicable requirements of the Occupational Safety and Health Act of 1970 (29 CFR Part 1910). The employer must address any claims or disputes that pertain to a referenced requirement directly with the U.S.
Department of Labor – Occupational Safety and Health Administration.
Reference: 29 CFR part 1910
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FAA – 21 Procurement of Recovered Materials
APPLICABILITY – Contract Types – This 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/comprehensiveprocurement-guidelines-construction-products.
Section 6002(c) establishes exceptions to the preference for recovery of EPA-designated products if the contractor can demonstrate the item is:
a) Not reasonably available within a timeframe providing for compliance with the contract performance schedule;
b) Fails to meet reasonable contract performance requirements; or c) Is only available at an unreasonable price.
Reference: 2 CFR § 200.323, 2 CFR Part 200, Appendix II (J); 40 CFR part 247, 42 USC § 6901, et seq (Resource Conservation and Recovery Act)
Item 1Y - Page 63
Revised 4.13.23 Page 60 of 67
FAA – 22 Rights to Inventions
APPLICABILITY – Contract Types – This provision applies to all contracts and subcontracts with small business firms or nonprofit organizations that include performance of experimental, developmental, or research work. This clause is not applicable to construction, equipment, or professional service contracts unless the contract includes experimental, developmental, or research work.
REQUIREMENT -
Contracts or agreements that include the performance of experimental, developmental, or research work must provide for the rights of the Federal Government and the City in any resulting invention as established by 37 CFR part 401, Rights to Inventions Made by Non-profit Organizations and Small Business Firms under Government Grants, Contracts, and Cooperative Agreements. This contract incorporates by reference the patent and inventions rights as specified within 37 CFR §401.14. Contractor must include this requirement in all subtier contracts involving experimental, developmental, or research work.
Reference: 2 CFR § 200, Appendix II(F), 37 CFR 401
Item 1Y - Page 64
Revised 4.13.23 Page 61 of 67
FAA - 23 Seismic Safety
APPLICABILITY – Contract Types – This provision applies to construction of new buildings and additions to existing buildings financed in whole or in part through the Airport Improvement Program.
Professional Services– any contract involved in the construction of new buildings or structural addition to existing buildings.
Construction – any contract involved in the construction of new buildings or structural addition to existing buildings.
Equipment – if the project involves construction or structural addition to a building such as an electrical vault project to accommodate or install equipment.
Land – This provision will not typically apply to a property/land project.
REQUIREMENT -
A23.3.1 Professional Service Agreements for Design
SEISMIC SAFETY
In the performance of design services, the Consultant agrees to furnish a building design and associated construction specification that conform to a building code standard that provides a level of seismic safety substantially equivalent to standards as established by the National Earthquake Hazards Reduction Program (NEHRP). Local building codes that model their building code after the current version of the International Building Code (IBC) meet the NEHRP equivalency level for seismic safety. At the conclusion of the design services, the Consultant agrees to furnish the Owner a “certification of compliance” that attests conformance of the building design and the construction specifications with the seismic standards of NEHRP or an equivalent building code.
A23.3.2 Construction Contracts
SEISMIC SAFETY
The Contractor agrees to ensure that all work performed under this contract, including work performed by subcontractors, conforms to a building code standard that provides a level of seismic safety substantially equivalent to standards established by the National Earthquake Hazards Reduction Program (NEHRP). Local building codes that model their code after the current version of the International Building Code (IBC) meet the NEHRP equivalency level for seismic safety.
Reference: 49 CFR Part 41
Item 1Y - Page 65
Revised 4.13.23 Page 62 of 67
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 1Y - Page 66
Revised 4.13.23 Page 63 of 67
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 1Y - Page 67
Revised 4.13.23 Page 64 of 67
FAA – 26 Foreign Trade Restriction
APPLICABILITY – all AIP funded projects.
REQUIREMENT -
TRADE RESTRICTION CERTIFICATION
By accepting this contract the Contractor certifies the following statements are true – 1) is not owned or controlled by one or more citizens of a foreign country included in the list of countries that discriminate against U.S. firms as published by the Office of the United States Trade Representative (USTR);
2) has not knowingly entered into any contract or subcontract for this project with a person that is a citizen or national of a foreign country included on the list of countries that discriminate against U.S. firms as published by the USTR; and 3) has not entered into any subcontract for any product to be used on the Federal project that is produced in a foreign country included on the list of countries that discriminate against U.S. firms published by the USTR.
This certification concerns a matter within the jurisdiction of an agency of the United States of America and the making of a false, fictitious, or fraudulent certification may render the maker subject to prosecution under Title 18 USC Section 1001.
The Contractor must provide immediate written notice to the City if the Contractor learns that its certification or that of a subcontractor was erroneous when submitted or has become erroneous by reason of changed circumstances. The Contractor must require subcontractors provide immediate written notice to the Contractor if at any time it learns that its certification was erroneous by reason of changed circumstances.
Unless the restrictions of this clause are waived by the Secretary of Transportation in accordance with 49 CFR 30.17, no contract shall be awarded to an Offeror or subcontractor:
1) who is owned or controlled by one or more citizens or nationals of a foreign country included on the list of countries that discriminate against U.S. firms published by the USTR or
2) whose subcontractors are owned or controlled by one or more citizens or nationals of a foreign country on such USTR list or
3) who incorporates in the public works project any product of a foreign country on such USTR list.
Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by this provision. The knowledge and information of a contractor is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
The Contractor agrees it will incorporate this provision for certification without modification in all lower tier subcontracts. The Contractor may rely on the certification of a prospective subcontractor that it is not a firm from a foreign country included on the list of countries that Item 1Y - Page 68
Revised 4.13.23 Page 65 of 67
discriminate against U.S. firms as published by USTR, unless the Contractor has knowledge that the certification is erroneous.
This certification is a material representation of fact upon which reliance was placed when making an award. If it is later determined that the Contractor or subcontractor knowingly rendered an erroneous certification, the Federal Aviation Administration (FAA) may direct through the City cancellation of the contract or subcontract for default at no cost to the City or the FAA.
Reference: 49 USC § 50104, 49 CFR part 30
Item 1Y - Page 69
Revised 4.13.23 Page 66 of 67
FAA – 27 Veteran’s Preference
APPLICABILITY – This provision applies to all AIP funded projects that involve labor to carry out the project. This preference, which excludes executive, administrative, and supervisory positions, applies to covered veterans [as defined under § 47112(c)] only when they are readily available and qualified to accomplish the work required by the project.
REQUIREMENT -
In the employment of labor (excluding executive, administrative, and supervisory positions), the Contractor and all sub-tier contractors must give preference to covered veterans as defined within Title 49 United States Code Section 47112. Covered veterans include Vietnam-era veterans, Persian Gulf veterans, Afghanistan-Iraq war veterans, disabled veterans, and small business concerns (as defined by 15 USC 632) owned and controlled by disabled veterans.
This preference only applies when there are covered veterans readily available and qualified to perform the work to which the employment relates.
Reference: 49 USC § 47112(c)
Item 1Y - Page 70
Revised 4.13.23 Page 67 of 67
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 1Y - Page 71
ATTACHMENT B
PUBLIC INTEGRITY BUSINESS DISCLOSURE
Item 1Y - Page 72
Item 1Y - Page 73
1. Name of Entity
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
2. Address of Entity (Principal Place of Business)
4 01
4. State where En ity is Registered with Secretary of State ~-~l?v
If other than California, is the Entity also registered in California? O Yes O No
5. Type of Entity
fgJ Corporation D Limited Liability Company D Partnership D Trust D Other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust, or other entity
_..,.()Gem(_ . """""----'~--"""~"""..:...:i..:..;Y'l"'vl- ______ r/J Officer r/J Director O Member ri Manager [name] O General Partner O Limited Partner
• Other __________ _
-'{½f,'""'-= ....U""":i...-..... Mt .......... 0"""'-L..lin ..... a'-'--,.~-4-V.,__· ___ [1 Officer O Director O Member O Manager [name] O General Partner O Limited Partner
O Other __________ _
______________ O Officer O Director O Member O Manager
[name] O General Partner O Limited Partner
O Other __________ _
Item 1Y - Page 74
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity
EXAMPLE
JANE DOE 50%, ABC COMPANY, Inc.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
A.
Q:i24.r: tvtPJil'.1~ qqzo ,_G!_~,FIC&"~-~!~~: r /\
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
B.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
C.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
D.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
E.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THA HE FOREGOING IS TRUE AND CORRECT.
Date
Item 1Y - Page 75
GENESIS
"Specialist in Commercial Flooring"
1. Genesis Floor Covering, Inc., a California corporation a. Officers: Oscar Medina, Oscar Medina Jr.
b. Ownership:
1. 99% Oscar Medina
11. 1 % Oscar Medina Jr.
14101 Pontlavoy Avenue Sant a Fe Sp rings, CA 90670
Te l. (562) 345- 5007
Email : admin@genesi s f loor. net
CITY COUNCIL STAFF REPORT
12/14/2023 CONSENT CALENDAR
SUBJECT:
APPROVE COOPERATIVE PURCHASE AGREEMENT WITH SHADE
STRUCTURES, INC., DBA USA SHADE & FABRIC STRUCTURES, FOR THE
PURCHASE AND INSTALLATION OF SHADE STRUCTURES FOR THE PALM
SPRINGS INTERNATIONAL AIRPORT
RECOMMENDATION:
Approve Cooperative Purchase Agreement No. 23C366 with Shade Structures Inc. dba USA Shade & Fabric Structures to provide shade structures and installation for the Palm Springs International Airport for a one-year term in an amount not to exceed $ 247,633.89.
1. 2. Authorize the City Manager or designee to execute all necessary documents.
Attachments
Item 1Z
CITY COUNCIL STAFF REPORT
DATE: DECEMBER 14, 2023 CONSENT CALENDAR
SUBJECT: APPROVE COOPERATIVE PURCHASE AGREEMENT WITH SHADE STRUCTURES, INC., DBA USA SHADE & FABRIC STRUCTURES, FOR
THE PURCHASE AND INSTALLATION OF SHADE STRUCTURES FOR
THE PALM SPRINGS INTERNATIONAL AIRPORT
FROM: Scott C. Stiles, City Manager
BY: Department of Aviation
SUMMARY:
This action will approve a one-year cooperative purchase agreement with Shade Structures, Inc. dba USA Shade & Fabric Structures in an amount not to exceed $247,633.89 for the purchase and installation of shade structures for the Palm Springs International Airport (Airport).
RECOMMENDATION:
1. Approve Cooperative Purchase Agreement No. 23C366 (Attachment A) with Shade Structures Inc. dba USA Shade & Fabric Structures to provide shade structures and installation for the Palm Springs International Airport for a one-year term in an amount not to exceed $ 247,633.89.
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 October 3, 2023, Shade Structures Inc., dba USA Shade & Fabric Structures is a Delaware corporation registered to do business in California.
BACKGROUND:
The Palm Springs International Airport has experienced a significant growth in passenger activity over the past several years resulting in the need to expand and upgrade the Airport’s services and infrastructure. Among those infrastructure improvements are the two proposed shade structures which consist of a shade structure for the Transportation Item 1Z - Page 1
Security Administration (TSA) outdoor security check area and a shade for the patio area of the forthcoming Nine Cities Craft restaurant at the Regional Jet (RJ) Concourse shown in Figure 1: Overall Site Plan.
The first proposed shade structure will be located outside of the TSA check-in area at the northwest portion of the Wexler Terminal. Currently, the TSA check-in area has limited space for passengers to gather their personal belongings as they complete the TSA security check near the building exit. The shade structure will provide the additional space needed to accommodate the passengers that are transitioning to the secure area, and it will also ensure the continued queuing of passengers from the TSA check-in area to the secure area. The TSA shade structure is a free-standing structure that will consist of five posts at 10° with shade material connected to the post at varying heights, and the shade structure will be installed on the existing landscape area within the secure side of the terminal. The TSA shade structure will have a layered effect with overlapping shade fabric that will provide approximately 1,600 square feet of shaded area.
Figure 1: Overall Site Pllan
Item 1Z - Page 2
The second proposed shade structure will be located at the patio area of the forthcoming Nine Cities Craft restaurant in the RJ Concourse. The shade structure will also be a freestanding structure that will consist of two singular posts with overlapping shade fabric that will provide approximately 680 square feet of shaded area. There is a significant number of utility lines that are located below the concrete floor of the restaurant patio area, and the location of the two posts will be strategically identified to not impede on any of the existing utility lines.
The shade structures will have white fabric to match the shade structure at the Bono Concourse, and the material will provide up to 93.2% UVR block protection. The fabric also meets the fire standard requirements, it offers biaxial stability and tensile properties for minimal maintenance, and the durability and stability of the fabric is achieved through the knit pattern that is backed by a full 10-year warranty against UV degradation.
To ensure that the proposed shade structures are in line with the design and visual impact of the existing Airport facilities, the Airport staff submitted the shade structure plans to the Planning Department for approval. With the TSA shade structure being near the Wexler Terminal, the Planning Department approved Certificate of Appropriateness - Minor CAMI 2023-0012 on August 17, 2023, and the Planning Department also approved Architecture Review – Minor AR 2023-0109 on October 19, 2023, for the Nine Cities Craft shade structure.
STAFF ANALYSIS:
Shade Structures Inc. dba USA Shade & Fabric Structures is a leading full-service, design/build commercial shade manufacturer in the nation. Each structure is custom designed and engineered for the most effective approach for the need and feasibility of each shade structure. USA Shade & Fabric Structures will provide all materials and the installation of the shade structures, and the shade structures are scheduled to be completed by Summer of 2024.
In accordance with City of Palm Springs Municipal Code Section 7.09.010, “Cooperative Purchasing Programs”, the City may authorize the acquisition of supplies or services through a joint powers or other cooperative purchasing program provided that the bidder selected was selected through a competitive process. Staff has determined that Shade Structures Inc. dba Shade & Fabric Structures California Multiple Award Schedule (CMAS) Contract No. 4-22-11-1011 meets the requirements of City of Palm Springs Municipal Code Section 7.09.010.
ENVIRONMENTAL ASSESSMENT:
In accordance with the California Environmental Quality Act (“CEQA”) Guidelines Section 15301 “Existing Facilities”, Class 1 projects consist of the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public structures, facilities, mechanical equipment, or topographical features involving negligible or no expansion of Item 1Z - Page 3
existing or former use. Therefore, Staff has determined that the Airport Shade Structures is considered categorically exempt from CEQA.
ALIGNMENT WITH STRATEGIC PLANNING:
The requested action aligns with the City Council Priority 2A, Community Infrastructure.
FISCAL IMPACT:
In 2022, the City of Palm Springs received a Greater Palm Springs tourism grant from Visit Greater Palm Springs in the amount of $100,000 to fund the proposed shade structures. Funds for the remaining balance are budgeted in Fiscal Year 2023-24 in the amount of $147,633.89 totaling $247,633.89.
REVIEWED BY:
Department Director: Harry Barrett, Jr.
Procurement and Contracting Director: Kim Baker
City Attorney: Geremy Holm
City Manager: Scott Stiles
ATTACHMENTS:
A. Cooperative Purchase Agreement No. 23C366
B. Public Integrity Disclosure Form
Item 1Z - Page 4
ATTACHMENT A
COOPERATIVE PURCHASE AGREEMENT NO. 23C366
WITH SHADE STRUCTURES INC. DBA
USA SHADE & FABRIC STRUCTURES
Item 1Z - Page 5
COOPERATIVE PURCHASE AND INSTALLATION OF SHADE
STRUCTURES FOR THE PALM SPRINGS INTERNATIONAL AIRPORT
AGREEMENT NO. 23C366
This Cooperative Purchase and Installation of Shade Structures Agreement (“Agreement”) is entered into by and between the City of Palm Springs, a California charter city and municipal corporation (“City”) and Shade Structures, Inc. dba USA Shade & Fabric Structures, a Delaware Corporation (“Contractor”). City and Contractor are sometimes individually referred to as “Party” or collectively as “Parties” in this Agreement.
1. Background.
a. This Agreement is made and entered into in reference to the competitively solicited Shade Structures, Inc. dba USA Shade & Fabric Structures California Multiple Award Schedule (CMAS) Contract No. 4-22-11-1011 with Contractor (“Cooperative Agreement”).
b. The City desires to purchase and install shade structures at the Palm Springs International Airport attached hereto as Attachment “A”, the content of which is incorporated by reference to this Agreement as if fully set out here in its entirety. c. Contractor desires to perform said services on the terms and conditions set forth in this Agreement.
2. Term. The term of this Agreement is one (1) year beginning on the date provided in the Notice to Proceed for the City’s Procurement and Contracting Department.
3. Compensation and Payment. This Agreement is for an amount not to exceed $247,633.89 subject to approved amendments and changes. All pricing must be in accordance with the attached Quote, as shown as Attachment “B”, the content of which is incorporated by reference into this Agreement as if fully set out here in its entirety.
4. Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City.
5. Insurance. Contractor shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Attachment "C", incorporated herein by reference. If no insurance is required Attachment “C” will reflect that there are no requirements.
6. Indemnification. To the fullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, Item 1Z - Page 6
demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (Contractor’s employees included), for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct committed by Contractor, its officers, employees, representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.
7. Notice. Any notice required under this Agreement must be given by fax, hand delivery, or certified mail, postage prepaid, and is deemed received on the day faxed, or hand delivered or on the third day after postmark if sent by certified mail. Notice must be sent as follows:
IF TO THE CITY: IF TO THE CONTRACTOR:
City of Palm Springs Shade Structures, Inc. dba
Attn: City Manager/City Clerk USA Shade & Fabric Structures Address: 3200 E. Tahquitz Canyon Way Attn: Ashley Donde, Senior Palm Springs, CA 92262 Regional Manager
Phone: (760) 323-8299 Address: 2580 Esters Blvd,
Suite 100
DWF Airport, TX 75261
(760) 250-7824
8. Compliance with Law. Contractor shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with this Agreement.
9. Changes. In the event any change or changes in the work is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into:
Item 1Z - Page 7
A. To provide for revisions or modifications to documents, work product, or Work, when required by the enactment or revision of any subsequent law; or B. To provide for additional work not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession.
10.Termination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor. Where termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Contractor shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor, who shall be liable for the full cost of the City's corrective action. Contractor may not terminate this Agreement except for cause, upon 30 days written notice to City.
11.Covenant Against Discrimination. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting.
12.Compliance with Economic Sanctions in Response to Russia's Actions in Ukraine. When funding for the services is provided, in whole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive Order N-6-22 (“Russian Sanctions Program”). As part of this Item 1Z - Page 8
compliance process, Consultant shall also certify compliance with the Russian Sanctions Program by completing the form located in Attachment “D” (Russian Sanctions Certification), attached hereto and incorporated herein by reference.
Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section.
13.Federal Provisions. Since funding for the Services is provided, in whole or in part, by the Federal Aviation Administration, Supplier shall also fully and adequately comply with the provisions included in Attachment “E” attached hereto and incorporated herein by reference (“Federal Provisions”). With respect to any conflict between such Federal Provisions and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control.
14.Entire Agreement. This Agreement, along with the Cooperative Agreement constitutes the entire agreement between the parties concerning the subject matter of this Agreement and supersedes all prior negotiations, arrangements, agreements and understandings, either oral or written between the parties. In the event of conflict or inconsistency between this Agreement and the Cooperative Agreement, this terms and conditions in this Agreement shall prevail.
[Signature Page Follows]
Item 1Z - Page 9
SIGNATURE PAGE TO COOPERATIVE PURCHASE AND INSTALLATION OF
SHADE STRUCTURES FOR PALM SPRINGS INTERNATIONAL AIRPORT
AGREEMENT BETWEEN THE CITY OF PALM SPRINGS
AND SHADE STRUCTURES INC., DBA USA SHADE & FABRIC STRUCTURES IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _____________________________ By: _____________________________ Signature Signature
(2nd signature required for Corporation)
Date: ___________________________ Date: ___________________________ CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No. ________
APPROVED AS TO FORM: ATTEST:
By: _____________________________ By: _____________________________ 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 1Z - Page 10
ATTACHMENT A
SCOPE OF WORK
Shade Structures dba USA Shade & Fabric Structures will design, engineer, fabricate, supply and install two (2) tensile membrane canopies supported by steel and cables in general appearance with attached figures and as further described below:
This project has a total fabric plan area of approximately 2,040 square feet with a total fabric surface area of approximately 2,135 square feet.
Shade Structures dba USA Shade & Fabric Structures will be utilized as a primary cooperative agreement for purchasing and installing shade structures for the Palm Springs International Airport.
DESIGN/ENGINEERING: Design to CBC2022, 130 mph wind speed, 5-pound snow load.
Non-linear analysis of the configuration will be conducted using NDN (www.ndnsoftware.com), a leading software analysis program for tension fabric structures.
Project includes the following:
1. One (1) Preliminary Design Concept Refinement.
2. Standard pier foundations and anchor bolt design for the structure.
3. Design and engineering for tensile membrane canopy systems.
4. Patterning for fabrication of architectural membrane.
5. Includes limited assistance to the City for their coordination to USA Shade & Fabric Structures’ steel; for any MEP requirements which are to be supplied and installed by others. USA Shade & Fabric Structures can provide the design and engineering assistance for the attachment details for an additional cost. All MEP requirements will be external to USA Shade & Fabric Structures steel and exposed to view.
6. Design and Engineering support for building department approval.
7. Wet sealed design drawings and calculations by licensed Professional Engineer.
Project does not include the following:
1. Design or engineering of any MEP requirements or any other ancillary items unless specifically identified in inclusions, (limited assistance only).
2. Design or engineering of gutters, downspouts, scuppers, closures or diverters.
3. Design or engineering of other site work or general contractor’s work.
FURNISHED MATERIALS
Project includes the following:
1. Fabricated HDPE architectural membrane. Color to be determined from standard colors.
2. Finish powder coated structural carbon steel directly associated with tensile membrane structure down to and including base plates. All field connections to be bolted – No Field Welding.
3. Galvanized cables as required.
4. Provision of USA Shade & Fabric Structures standard one (1) year workmanship warranty and the fabric manufacturer’s standard pass-thru material warranty. USA Shade & Fabric Structures’ standard workmanship warranty is for the tensile membrane components we supply, with the exception of the steel corrosion protection, which will only be a one (1) year warranty. Because of surety requirements, any performance bond, that may be required, will cover only the first year of the warranty. The warranty will be a separate document between Shade Structures Inc. dba USA Shade & Fabric Structures and the City.
Upon completion of work, Shade Structures Inc. dba USA Shade & Fabric Structures will execute the warranty.
Item 1Z - Page 11
5. Use tax.
Project does not include the following:
1. Building permits, parking or fees of any kind.
2. Any site demolition, modifications, or repairs to other’s buildings, landscaping, or restoration work.
3. Any mechanical, electrical, lighting, sprinkler system, speaker systems, lightning protection systems, or attachments to USA Shade & Fabric Structures’ work (limited coordination only).
4. Cranes, assume drive up access with fork lifts and boom lifts.
5. Drill rigs, assume skid steer with auger attachment. Underground obstacles may require a change order.
6. Any AESS requirements for steel fabrication or erection.
7. Any gutters, downspouts, scuppers, diverters, or attachment to USA Shade & Fabric Structures’ work.
8. Any mockups.
9. Buy America, Fly America, and USA flagships.
INSTALLATION
USA Shade & Fabric Structures will be responsible for the erection of furnished materials for the tensile membrane canopies. USA Shade & Fabric Structures will provide necessary labor at Non-Union / Prevailing wage structure including night work. USA Shade & Fabric Structures will also provide the necessary equipment, rigging and tools required for the installation of the scope.
1. The tensile membrane canopies will be accessible by drive up for unloading of trucks and installation with equipment, including drill rig, personnel man-lifts, and forklifts. Any additional precautions for concrete or other site surface / sub-surface conditions have not been included. The site is conducive for all construction forms of equipment.
2. The ability to perform all of work with clear, sequential, and continuous access without interruption during normal daytime working hours is requried. USA Shade & Fabric Structures will assume one mobilization for the installation of steel and fabric, if additional mobilizations are required there will be an additional charge. USA Shade & Fabric Structures will require exclusive access to the area for work during the installation process.
3. Standard pier foundations, anchor bolt and installation for structures. A “dig test” will be required prior to engineering, any underground utilities/obstacles are the responsibility of client.
4. No special entry conditions / requirements or daily site delays accessing the work areas.
5. Secure storage and adequate lay down area for tools, equipment, and materials within close proximity to the installation site will be provided, free of charge.
6. USA Shade & Fabric Structures price assumes others to provide 200 amp / 110-volt service and necessary potable water available within 100’ of work.
7. Site sanitary facilities and refuse containers by others are required within 200’ of work area.
8. USA Shade & Fabric Structures will leave its work and materials in a clean condition at the conclusion of work. Any additional cleaning that may become necessary will be the responsibility of others.
9. USA Shade & Fabric Structures shall be reimbursed for work stoppage or delays caused by other parties.
10. Seasonal severe weather working conditions have not been included.
PROJECT SCHEDULE Schedule durations are subject to review and modification in 30 days.
A preliminary schedule has been provided but a final schedule will be agreed to, upon contract award.
ADDITIONAL INCLUSIONS AND EXCLUSIONS:
1. Any deviations from the drawings or specifications without the mutual consent of both USA Shade & Fabric Structures and the City will be subject to a Change Request/Change Order. Change orders will be invoiced as required.
2. USA Shade & Fabric Structures has assumed <1> trucks @ $2,850/truck, any deviation +/- 5%, may require a change order/deductive change order.
3. USA Shade & Fabric Structures will attend meetings while present on site; all others to be conducted via audio / online meeting conferencing if required.
Item 1Z - Page 12
4. Proposal is based on positioning seams and patterning to achieve maximum fabric efficiency.
5. City shall provide an as-built survey or drawing showing the intended location for the structure and any surrounding structures which could cause interferences or access with our structure before engineering begins. If the appropriate tolerances are not held in placing the anchor bolts or interface attachment plates and it results in additional re-engineering or re-work there will be additional costs and it will be the subject of a change order.
6. USA Shade & Fabric Structures requires a minimum of 3 working days to respond to notice or provide notices for non-emergency events such as Change Order requests, notice of time extensions, notice of cure, etc.
7. Proposal includes only those US custom fees, duties, tariffs, and importation fees in effect as of the date of this proposal. Additionally, USA Shade & Fabric Structures would require reimbursement for additional costs, including, but not limited to, raw materials, freight, etc., resulting directly or indirectly from changes to US customs and/or tariff policies which change after the date of this offer.
8. When applicable, USA Shade & Fabric Structures reserves the right to implement a surcharge for significant increases in raw materials, including the following, but not limited to: fuel, steel, fabric and concrete. Due to the duration of proposal validity and contract durations, USA Shade & Fabric Structures reserves the right to implement this surcharge when raw material and transportation cost increases warrant it as applicable. For projects including steel, the steel raw materials price is based upon Steel Benchmarker pricing index as of the date of this proposal. Due to the volatility experienced in raw material steel and fabric prices, it will be necessary to order, invoice, and receive payment for steel and fabric as soon as final types and sizes can be determined to help minimize potential cost escalation.
PAYMENT:
A twenty-five percent deposit is required at order, and monthly progress billings will be provided by the 25th of each month projected to the final day of the month being billed.
Item 1Z - Page 13
ATTACHMENT B
QUOTE / PRICING
Item 1Z - Page 14
October 24, 2023
PROPOSAL
Palm Springs Airport
3400 E Tahquitz Canyon Way, Palm Springs, CA 92262
Attn: Jeremy Keating
To: Palm Springs Airport
Tel: (760) 318-3849
Email: [email protected]
Ref: 22-154a-CA R/3
PROPOSAL DESCRIPTION
Shade Structures Inc. dba USA Shade & Fabric Structures is pleased to offer the following design/build proposal for the above project. USA Shade & Fabric Structures will design, engineer, fabricate, supply and install two (2) tensile membrane canopies supported by steel and cables in general appearance with attached figures and as further described below:
This project has a total fabric plan area of approximately 2,040 square feet with a total fabric surface area of approximately 2,135 square feet.
We acknowledge receipt of:
No addendums received.
PROPOSAL PRICING: $247,633.89
Our Bond Rate is included in the price.
This proposal is valid for 30 days.
Our proposal shall be referenced in any contract/purchase order drafted for this project.
USASHADE®
Item 1Z - Page 15
QTY UNIT TOTAL
2 Each $38,531.98
2 Each $25,178.02
56 Each $3,117.52
1 Each $8,500.00
$6,967.80
7 EACH $10,006.99
100 PER CY $24,408.00
699 PER HR $76,442.64
272 PER HR $36,913.12
32 PER HR $3,499.52
80 PER HR $13,702.40
12 PER LOAD $12,332.52
7 EACH $599.48
2 PER DAY $4,282.12
3 PER WEEK $6,423.18
3 PER WEEK $2,312.34
2 PER WEEK $4,282.12
38 PER HR $4,165.56
80 PER HR $21,581.60
1 $5,000.00
1 $6,214.50
TOTAL $247,633.89
INCLUDED EXCLUDED INCLUDED EXCLUDED
ENGINEERING REQUIREMENTS NOTES
BOND 2.50%
Scissor Lift $770.78
NSP (Non Specifically Priced)
USA SHADE reserves the right to implement a surcharge for significant increases in raw materials, including the following, but not limited to: fuel, steel, fabric, and concrete. Proposal pricing is only valid for 30 days due to the fluctuation in pricing. Due to recent significant increases experienced in raw steel and fabric materials, it may be necessary to order, invoice, and receive payments for steel and fabric as soon as final sizing can be determined. $269.77
5 psf
Electronic
1 DSA Submittal & Fees
INCLUSIONS / EXCLUSIONS
INSTALLATION - MISCELLANEOUS
Snow Load
Drawing Size
No. of Sealed Drawings
Calculations Required
Priced per CMAS Contract Number 4-22-11-1011
ENGINEERING REQUIREMENTS
On File
Building Code CBC 2022
Permit Submittal
Permit Fee
Sealed Drawings & Calculations
Wind Load 130mph
Project Management
Site Assessment
Engineering
Dirt Removal and Disposal
Concrete Pump
Reach Fork up to 8k
Skid Steer with Auger
Overnight / Per Diem $5,000.00
Concrete Saw Cut $85.64
Design Development $109.62
DESCRIPTION
Redress Area
Anchor Bolts
Freight (LTG)
Sales Tax
Rebar Cage
Ready Mix Concrete
Laborer, Journeyman
Ironworker, Journeyman
PART NUMBER
4PHYPSAIL30x40X12-16
$109.36
$135.71
$171.28
$1,027.71
$2,141.06
$2,141.06
$2,141.06
CMAS PRICING
$8,500.00
9.25%
$1,429.57
$244.08
AURORA20X20X0 Restuarant Patio Area $12,589.01
UNIT PRICE
$19,265.99
$55.67
$109.36
www.usa-shade.com 800-966-5005
AZ: 289388 CA: 989458 LA: 61718 NV: 78724 NV:78724 NM: 383826 TN: 68712 DIR: 1000003533 Prevailing Wage / Certified Payroll
Union Wages
Temporary Fencing
Water and Electrical
Landscape Repair
Demolition (Existing Structures)
Special Inspection Fees
Payment and Performance Bonds
Design and Engineering of Structure
Design and Engineering of Foundation
Reactions and Loads for attachment to Walls, Rooftops, or Other Foundations: pricing based on standard drilled pier foundations; if existing site conditions and/or constraints require revised foundations (i.e. spread footing), additional costs will incur by way of a Change Order
Undergrounds: existing underground utilities, irrigation, etc. to be relocated/capped by others – USA Shade will provide Dig Alert only Foundation Location and Elevation Survey
USASHADE
& Fabric Structures.
0 D 0 D
0 D D 0
D 0 D 0
D 0 D 0
0 D D 0
0 D D 0
D 0 0 D
D 0 D 0
Item 1Z - Page 16
Approved By :
Checked By :
Drawn By :
REV DESCRIPTION DRW CHK ENG DATE REV. DWG. DRAWING DESCRIPTION:
2580 ESTERS BLVD., SUITE 100
DFW AIRPORT, TX 75261
800-966-5005 CUSTOMER: PROJECT NAME: LOCATION: STRUCTURE TYPE: SIZE: PAGE CORPORATE HEADQUARTERS IAS CERTIFICATION No: FA-428 CLARK COUNTY MANUFACTURER CERTIFICATION NUMBER (NEVADA): 355 CERTIFICATIONS:
THESE PLANS AND SPECIFICATIONS ARE THE PROPERTY OF
USA SHADE AND FABRIC STRUCTURES
AND SHALL NOT BE REPRODUCED WITHOUT THEIR WRITTEN PERMISSION. AREA 4 22-154a-CA 1001 BCITY OF PALM SPRINGS PALM SPRINGS AIRPORT TERMINAL 2 3400 E. TAHQUITZ CANYON WAY PALM SPRINGS, CA 92262 AURORA (QTY. 2) 20' X 20' X 10'e & 13'-6"e VARIES AZR 09/11/23 AZR 09/11/23 AZR 09/11/23 SITE PLAN PLAN NORTH A REMOVED AREA 3 / REV AREA 4 AZR AZR --- 02/01/23 AREA 4 (DINING PATIO) NOTES: -THESE DRAWINGS ARE A PICTORIAL REPRESENTATION OF FABRIC AND STEEL ONLY. NONE OF THE REQUIRED ATTACHMENT OR CONNECTION DETAILS HAVE BEEN DEPICTED. -ALL DIMENSIONS AND HEIGHTS MUST BE FIELD VERIFIED PRIOR TO ANY FINAL DESIGN, FABRICATION OR INSTALLATION WORK. As manufactured and installed by USA SHADE & Fabric Structures Contact: Ashley Donde; (760) 250-7824, (800) 966-5005 Email: [email protected] SOUTH ELEVATION FINISHED SURFACE PERSPECTIVE VIEW WEST ELEVATION FINISHED SURFACE B REVISED TYPE OF STRUCTURES AZR AZR --- 09/11/23 13'-6"
15'-2"
18'-5"
20'-4"
22'-7"
10'-0"
11'-7"
14'-11"
16'-10"
19'-1"
10'-0"
16'-11"
13'-6"
20'-5" 20'-0"
20'-0" 2'-6" VERIFY
20'-0" 20'-0"
3'-0" 3'-0"
2'-6"
VERIFY
EB
Item 1Z - Page 17
Approved By :
Checked By :
Drawn By :
REV DESCRIPTION DATE DRW CHK ENG REV. DWG. DRAWING DESCRIPTION:
2580 ESTERS BLVD., SUITE 100
DFW AIRPORT, TX 75261
800-966-5005 PAGE SIZE: STRUCTURE TYPE: LOCATION: PROJECT NAME: CUSTOMER:
CORPORATE HEADQUARTERS IAS CERTIFICATION No: FA-428 CLARK COUNTY MANUFACTURER CERTIFICATION NUMBER (NEVADA): 355 CERTIFICATIONS:
THESE PLANS AND SPECIFICATIONS ARE THE PROPERTY OF
USA SHADE AND FABRIC STRUCTURES
AND SHALL NOT BE REPRODUCED WITHOUT THEIR WRITTEN PERMISSION. AREA 2 22-154a-CA F1000 CITY OF PALM SPRINGS PALM SPRINGS 3400 E. TAHQUITZ CANYON WAY AIRPORT TERMINAL 2 PALM SPRINGS, CA 92262 HYPAR SAIL VARIES AZR 05/24/23 AZR 05/24/23 AZR 05/24/23 SITE PLAN PLAN NORTH A REMOVED AREA 1 / REV. DESIGN AREA 2 02/01/23 AZR AZR --- -ALL DIMENSIONS AND HEIGHTS MUST BE FIELD VERIFIED PRIOR TO ANY FINAL DESIGN, FABRICATION OR INSTALLATION WORK. CONNECTION DETAILS HAVE BEEN DEPICTED. -THESE DRAWINGS ARE A PICTORIAL REPRESENTATION OF FABRIC AND STEEL ONLY. NONE OF THE REQUIRED ATTACHMENT OR NOTES: Email: Contact: Ashley Donde; (760) 250-7824, (800) 966-5005 As manufactured and installed by USA SHADE & Fabric Structures [email protected] TYP. FRONT VIEWSURFACE FINISHED TYP. PLAN VIEW TYP. SIDE VIEW SURFACE FINISHED PERSPECTIVE VIEW 1 (RECOMBOBULATION) AREA 2 8'-0"
31'-0"
1'-6"
B REVISED DIMENSIONS 02/08/23 AZR AZR ---
27'-11"
25'-0"
54'-0"
31'-0"
54'-0"
C REVISED DIMENSIONS 02/27/23 AZR AZR --- 14' 11' 16' 8' D REVISED TYPE OF STRUCTURE 02/27/23 AZR AZR --- BUILDING 16'-0"
10° TYP PERSPECTIVE VIEW 2
E REVISED DESIGN 03/03/23 AZR AZR ---
25'-0"
13'-0"
28'-0"
8'-0"
18'-0"
11'-0" 18' 14' 8' 10'
F REVISED ELEVATIONS 05/24/23 AZR AZR ---
EB
1 ,L~~51 USASHADE
\Ji~' & Fabric Structures•
Item 1Z - Page 18
re
at Palm Springs Airport Shade Structure Improvements
En Palm Springs, California
Enter the name of the Pro
h
e
1 ell 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hi
s
TASK ASSIGNED
TO PROGRESS START END M T W T F S S M T W T F S S M T W T F S S M T W T F S S M T W T F S S M T W T F S S M T W T F S S M T W T F S S ell
B Phase 1
ell
B Contract Award 0% 12/4/23 12/4/23
Contract Review and Execution 0% 12/4/23 1/4/24
o
w Engineering Drawings 0% 12/11/23 1/23/24
Permitting - THIS IS A VARIABLE AND RESPONSIBILITY OF T 0% 1/24/24 2/23/24 Shop Drawings 0% 2/27/24 3/15/24
Manufacturing 0% 3/19/24 5/14/24
h
e Phase 2
Shipping 0% 5/14/24 5/17/24
Installation 0% 5/21/24 6/4/24
Closeout documents 0% 6/7/24 6/7/24
Project Start:
Display Week: Jan 1, 2024 Jan 8, 2024 Jan 15, 2024 Jan 22, 2024 Mon, 12/4/2023
Dec 4, 2023 Dec 11, 2023 Dec 18, 2023 Dec 25, 2023
Item 1Z - Page 19
ATTACHMENT C
INSURANCE REQUIREMENTS
Item 1Z - Page 20
INSURANCE
1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Contractor’s performance under this Agreement.
Contractor shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agreement.
Contractor shall also carry workers’ compensation insurance in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers.
2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows:
1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate;
2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence;
3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is:
_________ required
_________ is not required;
4. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.
3. Primary Insurance. For any claims related to this Agreement, Contractor’s insurance coverage shall be primary with respect to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and contribution it may have against City, its elected officials, officers, employees, agents, and volunteers.
X
Item 1Z - Page 21
4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Contractor provides claims made professional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Contractor’s services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’s services under this Agreement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy.
5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City.
6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate:
A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
B. "This insurance is primary and non-contributory over any insurance or selfinsurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
C. "Should any of the above-described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.
D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies.
Item 1Z - Page 22
All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Contractor’s obligation to provide them.
7. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Certificates of Insurance must include evidence of the amount of any deductible or self-insured retention under the policy. Contractor guarantees payment of all deductibles and self-insured retentions.
8. Severability of Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability.
Item 1Z - Page 23
ATTACHMENT D
EXECUTIVE ORDER N-6-22 CERTIFICATION
Executive Order N-6-22 issued by Governor Gavin Newsom on March 4, 2022, directs all agencies and departments that are subject to the Governor’s authority to (a) terminate any contracts with any individuals or entities that are determined to be a target of economic sanctions against Russia and Russian entities and individuals; and (b) refrain from entering into any new contracts with such individuals or entities while the aforementioned sanctions are in effect.
Executive Order N-6-22 also requires that any contractor that: (1) currently has a contract with the City of Palm Springs funded through grant funds provided by the State of California; and/or (2) submits a bid or proposal or otherwise proposes to or enter into or renew a contract with the City of Palm Springs with State of California grant funds, certify that the person is not the target of any economic sanctions against Russia and Russian entities and individuals.
The contractor hereby certifies, SUBJECT TO PENALTY FOR PERJURY, that a) the contractor is not a target of any economic sanctions against Russian and Russian entities and individuals as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to legally bind the Contractor. This certification is made under the laws of the State of California.
Signature:
Printed Name:
Title:
Firm Name:
Date:
Item 1Z - Page 24
ATTACHMENT E
FEDERAL AVIATION ADMINISTRATION
FEDERAL PROVISIONS
Provision
Reference Provision Description
Page
No.
FAA - 01 Access to Records and Reports 2
FAA - 02 Affirmative Action Requirement * 3
FAA – 03 Breach of Contract Terms 5
FAA – 04 Buy American Preference * 6
FAA – 05 Civil Rights General 7
FAA – 06 Civil Rights – Title VI Assurances * 8
FAA – 07 Clean Air and Water Pollution Control 11
FAA – 08 Contract Work Hours and Safety Standards Act Requirements 12 FAA – 09 Copeland Anti-Kickback Act 14
FAA – 10 Davis Bacon Requirements 15
FAA – 11 Debarment and Suspension * 22
FAA – 12 Disadvantaged Business Enterprise * 23
FAA – 13 Distracted Driving 25
FAA – 14 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment
26 FAA – 15 Drug Free Workplace Requirements (not applicable to Contractors)
27 FAA – 16 Equal Employment Opportunity 28
FAA – 17 Federal Fair Labor Standards Act * 36
FAA – 18 Lobbying and Influencing Federal Employees 37
FAA – 19 Prohibition of Segregated Facilities 38
FAA – 20 Occupational Safety and Health Act of 1970 39
FAA – 21 Procurement of Recovered Materials * 40
FAA – 22 Right to Inventions 41
FAA – 23 Seismic Safety 42
FAA – 24 Tax Delinquency and Felony Convictions* 43
FAA – 25 Termination of Contract 44
FAA – 26 Trade Restriction Certification (Foreign) * 45 FAA – 27 Veteran’s Preference 47
FAA – 28 Domestic Preferences for Procurements * 48
*Solicitation Clause also
Updated 2.8.2023
Item 1Z - Page 25
FAA - 01 Access to Records and Reports
APPLICABILITY – pertains to all contracts.
The Contractor must maintain an acceptable cost accounting system. The Contractor agrees to provide the City, the Federal Aviation Administration and the Comptroller General of the United States or any of their duly authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to the specific contract for the purpose of making audit, examination, excerpts and transcriptions. The Contractor agrees to maintain all books, records and reports required under this contract for a period of not less than three years after final payment is made and all pending matters are closed.
Reference: 2 CFR § 200.334, 2 CFR § 200.337, FAA Order 5100.38 Item 1Z - Page 26
FAA - 02 Affirmative Action Requirement
Not applicable.
Item 1Z - Page 27
FAA – 03 Breach of Contract
APPLICABILITY – required for all contracts that exceed the simplified acquisition threshold as stated in 2 CFR Part 200, Appendix II (A). This threshold is occasionally adjusted for inflation and is $250,000.
REQUIREMENT -
See Section 4.5 of the Agreement.
Reference: 2 CFR § 200 Appendix II(A)
Item 1Z - Page 28
FAA – 04 Buy American Preferences
APPLICABILITY – required for contracts defined as follows:
• Construction Projects involving the replacement, rehabilitation, reconstruction of airfield surfaces such as on runways, taxiways, taxilanes, aprons, roadways, parking lots, etc. – Insert the Certificate of compliance to FAA Buy American Preference based on Construction Projects.
• Equipment and Buildings Projects involving and including the acquisition of equipment such as snow removal equipment, navigational aids, wind cones, and the construction of buildings such as hangars, terminal development, lighting vaults, aircraft rescue & firefighting buildings, etc. - Insert the Certificate of Compliance with FAA Buy American Preference Based on Equipment/Building Projects.
REQUIREMENT -
The Contractor certifies that all constructions materials, defined to mean an article, material, or supply other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives that are or consist primarily of: non-ferrous metals; plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables); glass (including optic glass); lumber; or drywall used in the project are manufactured in the U.S.
Reference: Title 49 USC § 50101
Item 1Z - Page 29
FAA – 05 Civil Rights General
APPLICABILITY – required for all contracts regardless of funding source.
REQUIREMENT -
In all its activities within the scope of its airport program, the Contractor agrees to comply with pertinent statutes, Executive Orders, and such rules as identified in Title VI List of Pertinent Nondiscrimination Acts and Authorities to ensure that no person shall, on the grounds of race, color, national origin (including limited English proficiency), creed, sex (including sexual orientation and gender identity), age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance. The above provision binds the Contractor and subcontractors from the bid solicitation period through the completion of the contract.
This provision is in addition to that required by Title VI of the Civil Rights Act of 1964.
Reference: 49 USC § 47123
Item 1Z - Page 30
FAA – 06 Civil Rights – Title VI Assurances
APPLICABILITY – required for all contracts.
REQUIREMENT -
Title VI List of Pertinent Nondiscrimination Acts and Authorities During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “Contractor”) agrees to comply with the following nondiscrimination statutes and authorities; including but not limited to:
• Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin); • 49 CFR part 21 (Non-discrimination in Federally-Assisted programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act of 1964); • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 USC § 4601) (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); • Section 504 of the Rehabilitation Act of 1973 (29 USC § 794 et seq.), as amended (prohibits discrimination on the basis of disability); and 49 CFR part 27 (Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance); • The Age Discrimination Act of 1975, as amended (42 USC § 6101 et seq.) (prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982 (49 USC § 47123), as amended (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987 (PL 100-259) (broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act of 1990 (42 USC § 12101, et seq) (prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities) as implemented by U.S. Department of Transportation regulations at 49 CFR parts 37 and 38; • The Federal Aviation Administration’s Nondiscrimination statute (49 USC § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations); • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs [70 Fed.
Reg. 74087 (2005)];
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• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 USC § 1681, et seq).
Compliance with Nondiscrimination Requirements:
During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “Contractor”), agrees as follows:
1. Compliance with Regulations: The Contractor (hereinafter includes consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts and Authorities, as they may be amended from time to time, which are herein incorporated by reference and made a part of this contract.
2. Nondiscrimination: The Contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, national origin (including limited English proficiency), creed, sex (including sexual orientation and gender identity), age, or disability in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Contractor will not participate directly or indirectly in the discrimination prohibited by the Nondiscrimination Acts and Authorities, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR part 21.
3. Solicitations for Subcontracts, including Procurements of Materials and Equipment:
In all solicitations, either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Contractor of the Contractor’s obligations under this contract and the Nondiscrimination Acts and Authorities on the grounds of race, color, or national origin.
4. Information and Reports: The Contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City or the Federal Aviation Administration to be pertinent to ascertain compliance with such Nondiscrimination Acts and Authorities and instructions. Where any information required of a Contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Contractor will so certify to the City or the Federal Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain the information.
5. Sanctions for Noncompliance: In the event of a Contractor’s noncompliance with the nondiscrimination provisions of this contract, the City will impose such contract sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to:
a. Withholding payments to the Contractor under the contract until the Contractor complies; and/or
b. Cancelling, terminating, or suspending a contract, in whole or in part.
6. Incorporation of Provisions: The Contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations, and directives issued pursuant thereto. The Contractor will take action with respect to any subcontract or procurement as Item 1Z - Page 32
the City or the Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Contractor may request the City to enter into any litigation to protect the interests of the City. In addition, the Contractor may request the United States to enter into the litigation to protect the interests of the United States.
Reference: 49 USC § 47123, FAA Order 1400.11
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FAA – 07 Clean Air/Water Pollution Control
APPLICABILITY – This provision is required for all contracts and lower tier contracts that exceed $150,000.
REQUIREMENT -
If the Agreement exceeds $150,000, Contractor agrees to comply with all applicable standards, orders, and regulations issued pursuant to the Clean Air Act (42 USC § 7401-7671q) and the Federal Water Pollution Control Act as amended (33 USC § 1251-1387). The Contractor agrees to report any violation to the City immediately upon discovery. The City assumes responsibility for notifying the Environmental Protection Agency (EPA) and the Federal Aviation Administration.
Contractor must include this requirement in all subcontracts that exceeds $150,000.
Reference: 2 CFR § 200, Appendix II(G); 42 USC § 7401; 33 USC § 1251 Item 1Z - Page 34
FAA – 08 Contract Work Hours and Safety Standards
APPLICABILITY – This provision is required for contracts as follows:
Contract Work Hours and Safety Standards Act Requirements (CWHSSA) (40 USC §§ 3702 & 3704) requires contractors and subcontractors on covered contracts to pay laborers and mechanics employed in the performance of the contracts not less than one and one-half times their basic rate of pay for all hours worked over 40 in a workweek. CWHSSA prohibits unsanitary, hazardous, or dangerous working conditions on federally-assisted projects. The Wage and Hour Division (WHD) within the U.S. Department of Labor (DOL) enforces the compensation requirements of this Act, while DOL’s Occupational Safety and Health Administration (OSHA) enforces the safety and health requirements.
Contract Types –
Construction – This provision applies to all contracts and lower tier contracts that exceed $100,000, and employ laborers, mechanics, watchmen, and guards.
Equipment – This provision applies to any equipment project exceeding $100,000 that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at the vendor plant (e.g., ARFF and SRE vehicles).
Professional Services – This provision applies to professional service agreements that exceed $100,000 and employs laborers, mechanics, watchmen, and guards. This includes members of survey crews and exploratory drilling operations.
Property – While most land transactions do not involve employment of laborers, mechanics, watchmen, and guards, under certain circumstances, a property acquisition project could require such employment. Examples include the installation of property fencing or testing for environmental contamination
CONTRACT WORKHOURS AND SAFETY STANDARDS ACT REQUIREMENTS
1. Overtime Requirements.
No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic, including watchmen and guards, in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
2. Violation; Liability for Unpaid Wages; Liquidated Damages.
In the event of any violation of the clause set forth in paragraph (1) of this clause, the Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this clause, in the sum of $29 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this clause.
3. Withholding for Unpaid Wages and Liquidated Damages.
The Federal Aviation Administration (FAA) or the City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or Item 1Z - Page 35
cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such contract or any other Federal contract with the same prime Contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this clause.
4. Subcontractors.
The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) and also a clause requiring the subcontractor to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this clause.
Reference: 2 CFR Part 200, Appendix II(E); 2 CFR § 5.5(b); 40 USC § 3702; 40 USC § 3704
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FAA – 09 Copeland Anti-Kickback
APPLICABILITY -
The Copeland (Anti-Kickback) Act (18 USC § 874 and 40 USC § 3145) makes it unlawful to induce by force, intimidation, threat of dismissal from employment, or by any other manner, any person employed in the construction or repair of public buildings or public works, financed in whole or in part by the United States, to give up any part of the compensation to which that person is entitled under a contract of employment. The Copeland Act also requires each contractor and subcontractor to furnish weekly a statement of compliance with respect to the wages paid each employee during the preceding week.
Contract Types –
Construction – This provision applies to all construction contracts and subcontracts financed under the AIP that exceed $2,000.
Equipment – This provision applies to all equipment installation projects (e.g., electrical vault improvements) financed under the AIP that exceed $2,000. This provision does not apply to equipment acquisitions where the equipment is manufactured at the vendor’s plant (e.g., SRE and ARFF vehicles).
Professional Services –The emergence of different project delivery methods has created situations where Professional Service Agreements (PSAs) include tasks that meet the definition of construction, alteration, or repair as defined in 29 CFR Part 5. If such tasks result in work that qualifies as construction, alteration, or repair and it exceeds $2,000, the PSA must incorporate the Copeland Anti-kickback provision.
Property –Ordinarily, land acquisition projects would not involve employment of laborers or mechanics and thus the Copeland Anti-Kickback provision would not apply. However, land projects that involve installation of boundary fencing and demolition of structures would involve laborers and mechanics. The City must include this provision if the land acquisition project involves employment of laborers or mechanics for a contract exceeding $2,000.
REQUIREMENT -
Contractor must comply with the requirements of the Copeland “Anti-Kickback” Act (18 USC 874 and 40 USC 3145), as supplemented by Department of Labor regulation 29 CFR part
3. Contractor and subcontractors are prohibited from inducing, by any means, any person employed on the project to give up any part of the compensation to which the employee is entitled. The Contractor and each Subcontractor must submit to the City, a weekly statement on the wages paid to each employee performing on covered work during the prior week. City must report any violations of the Act to the Federal Aviation Administration.
Reference: 2 CFR Part 200, Appendix II(D); 29 CFR Parts 3 and 5 Item 1Z - Page 37
FAA – 10 Davis Bacon Requirements
APPLICABILITY -
The Davis-Bacon Act (40 USC §§ 3141-3144, 3146, and 3147) ensures that laborers and mechanics employed under the contract receive pay no less than the locally prevailing wages and fringe benefits as determined by the Department of Labor.
Contract Types –
Construction –all construction contracts and subcontracts that exceed $2,000 and include funding from the AIP.
Equipment – This provision applies to all equipment installation projects (e.g., electrical vault improvements) financed under the AIP that exceed $ 2,000. This provision does not apply to equipment acquisitions where the equipment is manufactured at the vendor’s plant (e.g., SRE and ARFF vehicles)
Professional Services – The emergence of different project delivery methods has created situations where Professional Service Agreements (PSAs) includes tasks that meet the definition of construction, alteration, or repair as defined in 29 CFR Part 5. If such tasks result in work that qualifies as construction, alteration, or repair and it exceeds $2,000, the PSA must incorporate this clause.
Property – Ordinarily, land acquisition projects would not involve employment of laborers or mechanics and thus the provision would not apply. However, land projects that involve installation of boundary fencing and demolition of structures would involve laborers and mechanics. The City must include this provision if the land acquisition project involves employment of laborers or mechanics for a contract exceeding $2,000.
Fencing Projects – Fencing projects that exceed $2,000 must include this provision.
DAVIS-BACON REQUIREMENTS
1. Minimum Wages.
(i) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalent thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and 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 Item 1Z - Page 38
compensated at the rate specified for each classification for the time actually worked therein:
Provided, that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under (1)(ii) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can easily be seen by the workers. (ii)(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage determination;
(2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(C) In the event the Contractor, the laborers, or mechanics to be employed in the classification, or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(ii) (B) or (C) of this paragraph, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.
(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
(iv) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable Item 1Z - Page 39
standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.
2. Withholding. The Federal Aviation Administration or the CIty shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the Federal Aviation Administration may, after written notice to the Contractor, City, Applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.
3. Payrolls and Basic Records.
(i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker; his or her correct classification; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 1(b)(2)(B) of the Davis-Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the Contractor shall maintain records that show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual costs incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii)(A) The Contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit the payrolls to the applicant, the City, or Owner, as the case may be, for transmission to the Federal Aviation Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR § 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee’s social security number). The required weekly payroll information may be submitted in 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 Item 1Z - Page 40
of each covered worker and shall provide them upon request to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit them to the applicant, the City, or Owner, as the case may be, for transmission to the Federal Aviation Administration, the Contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the sponsoring government agency (or the applicant, City, or Owner).
(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under 29 CFR § 5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR § 5.5 (a)(3)(i), and that such information is correct and complete; (2) That each laborer and mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR Part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the “Statement of Compliance” required by paragraph (3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the Contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the United States Code.
(iii) The Contractor or subcontractor shall make the records required under paragraph (3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the City, the Federal Aviation Administration, or the Department of Labor and shall permit such representatives to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the Contractor, the City, applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds.
Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR § 5.12.
4. Apprentices and Trainees.
(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 Item 1Z - Page 41
first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman’s hourly rate) specified in the Contractor’s or subcontractor’s registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice’s level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
(ii) Trainees. Except as provided in 29 CFR § 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee’s level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination.
Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination that provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate that is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved.
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(iii) Equal Employment Opportunity. The utilization of apprentices, trainees, and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30.
5. Compliance with Copeland Act Requirements.
The Contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference in this contract.
6. Subcontracts.
The Contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR §§ 5.5(a)(1) through (10) and such other clauses as the Federal Aviation Administration may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR § 5.5.
7. Contract Termination: Debarment.
A breach of the contract clauses in paragraph 1 through 10 of this section may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR § 5.12.
8. Compliance with Davis-Bacon and Related Act Requirements.
All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract.
9. Disputes Concerning Labor Standards.
Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the Contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.
10. Certification of Eligibility.
(i) By entering into this contract, the Contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor’s firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR §
5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR § 5.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 USC § 1001.
Reference: 2 CFR Part 200, Appendix II(D); 29 CFR Part 5; 49 USC § 47112(b); 40 USC §§ 3141- 3144, 3146, and 3147
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FAA – 11 Debarment and Suspension
APPLICABILITY - This requirement applies to covered transactions, which are defined in 2 CFR part 180 (Subpart B). AIP funded contracts are non-procurement transactions, as defined by 2 CFR § 180.970. Covered transactions include any AIP-funded contract, regardless of tier, that is awarded by a contractor, subcontractor, supplier, consultant, or its agent or representative in any transaction, if the amount of the contract is expected to equal or exceed $25,000. This includes contracts associated with land acquisition projects.
REQUIREMENT -
A11.3.1 Bidder or Offeror Certification
By submitting a bid/proposal under the solicitation for this contract, the Contractor must have certified that neither it nor its principals are presently debarred or suspended by any Federal department or agency from participation in this transaction.
A11.3.2 Lower Tier Contract Certification
CERTIFICATION OF LOWER TIER CONTRACTORS REGARDING DEBARMENT The Contractor, by administering each lower tier subcontract that exceeds $25,000 as a “covered transaction”, must verify each lower tier participant of a “covered transaction” under the project is not presently debarred or otherwise disqualified from participation in this federally assisted project. The Contractor will accomplish this by:
1. Checking the System for Award Management at website: http://www.sam.gov.
2. Collecting a certification statement similar to the Certification of Offerer /Bidder Regarding Debarment, above.
3. Inserting a clause or condition in the covered transaction with the lower tier contract.
If the Federal Aviation Administration later determines that a lower tier participant failed to disclose to a higher tier participant that it was excluded or disqualified at the time it entered the covered transaction, the FAA may pursue any available remedies, including suspension and debarment of the non-compliant participant.
Reference: 2 CFR part 180 (Subpart B), 2 CFR part 200 Appendix II(H), 2 CFR Part 1200, DOT Order 4200.5; Executive Orders 12549 and 12689
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FAA – 12 Disadvantaged Business Enterprise
APPLICABILITY – all contracts with Airports that have a DBE program on file with the FAA.
Contract Assurance (§ 26.13) –
The Contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The Contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of Department of Transportation-assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the City deems appropriate, which may include, but is not limited to:
1) Withholding monthly progress payments;
2) Assessing sanctions;
3) Liquidated damages; and/or
4) Disqualifying the Contractor from future bidding as non-responsible.
Prompt Payment (§26.29) – The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than [10 days] days from the receipt of each payment the prime contractor receives from [the City]. The prime contractor agrees further to return retainage payments to each subcontractor within [30 days] days after the subcontractor’s work is satisfactorily completed. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the [City]. This clause applies to both DBE and non-DBE subcontractors.
Termination of DBE Subcontracts (49 CFR § 26.53(f)) –
The prime Contractor must not terminate a DBE subcontractor listed in response to the solicitation (or an approved substitute DBE firm) without prior written consent of the City. This includes, but is not limited to, instances in which the prime contractor seeks to perform work originally designated for a DBE subcontractor with its own forces or those of an affiliate, a non-DBE firm, or with another DBE firm.
The prime Contractor shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless the Contractor obtains written consent of the City. Unless City consent is provided, the prime Contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE.
The City may provide such written consent only if the City agrees, for reasons stated in the concurrence document, that the prime Contractor has good cause to terminate the DBE firm. For purposes of this paragraph, good cause includes the circumstances listed in 49 CFR §26.53.
Before transmitting to the City its request to terminate and/or substitute a DBE subcontractor, the prime Contractor must give notice in writing to the DBE subcontractor, with a copy to the City, of its intent to request to terminate and/or substitute, and the reason for the request.
The prime contractor must give the DBE five days to respond to the prime contractor's notice and advise the City and the Contractor of the reasons, if any, why it objects to the proposed termination of its subcontract and why the City should not approve the prime Contractor's action. If required in a particular case as a matter of public necessity (e.g., safety), the City may provide a response period shorter than five days.
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In addition to post-award terminations, the provisions of this section apply to preaward deletions of or substitutions for DBE firms put forward by offerors in negotiated procurements.
Reference: 49 CFR part 26
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FAA – 13 Distracted Driving
APPLICABILITY - contracts that exceed the micro-purchase threshold of 2 CFR § 200.320 (currently set at $10,000).
REQUIREMENT -
TEXTING WHEN DRIVING
In accordance with Executive Order 13513, “Federal Leadership on Reducing Text Messaging While Driving”, (10/1/2009) and DOT Order 3902.10, “Text Messaging While Driving”, (12/30/2009), the Federal Aviation Administration encourages recipients of Federal grant funds to adopt and enforce safety policies that decrease crashes by distracted drivers, including policies to ban text messaging while driving when performing work related to a grant or subgrant.
In support of this initiative, the City encourages the Contractor to promote policies and initiatives for its employees and other work personnel that decrease crashes by distracted drivers, including policies that ban text messaging while driving motor vehicles while performing work activities associated with the project. The Contractor must include the substance of this clause in all subtier 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 1Z - Page 48
FAA – 15 Drug Free Workplace Requirements
APPLICABILITY - This provision applies to all AIP funded projects, but not to the contracts between the City and a contractor, subcontractors, suppliers, or subgrantees.
The Drug-Free Workplace Act of 1988 requires some Federal contractors and all Federal grantees to agree that they will provide drug-free workplaces as a condition of receiving a contract or grant from a Federal agency. The Act does not apply to contractors, subcontractors, or subgrantees, although the Federal grantees workplace may be where the contractors, subcontractors, or subgrantees are working.
Reference: 49 CFR part 32, Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq., as amended)
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FAA – 16 Equal Employment Opportunity
APPLICABILITY – The purpose of this provision is to provide equal opportunity for all persons, without regard to race, color, religion, sex, or national origin who are employed or seeking employment with contractors performing under a federally-assisted construction contract. There are two provisions ― a construction clause and a specification clause.
The equal opportunity contract clause applies to any contract or subcontract when the amount exceeds $10,000. Once the equal opportunity clause is determined to be applicable, the contract or subcontract must include the clause for the remainder of the year, regardless of the amount or the contract.
Contract Types –
Construction – all construction contracts and subcontracts as required above.
Equipment – all equipment contracts as required above that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at the vendor plant (e.g., ARFF and SRE vehicles).
Professional Services – all professional service agreements as required above.
Property – all land acquisition projects that include work that qualifies as construction work as defined by 41 CFR part 60 as required above. An example is installation of boundary fencing.
REQUIREMENT -
A16.3.1 EEO Contract Clause
During the performance of this contract, the Contractor agrees as follows:
(1) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identify, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff, or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
(3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such Item 1Z - Page 50
disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information. (4) The Contractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers’ representative of the Contractor’s commitments under this section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
(7) In the event of the Contractor’s noncompliance with the nondiscrimination clauses of this contract or with any such rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (8) The Contractor will include the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.
A16.3.2 EEO Specification
STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY
CONSTRUCTION CONTRACT SPECIFICATIONS
a. “Covered area” means the geographical area described in the solicitation from which this contract resulted;
b. “Director” means Director, Office of Federal Contract Compliance Programs (OFCCP), U.S.
Department of Labor, or any person to whom the Director delegates authority; c. “Employer identification number” means the Federal social security number used on the Employer’s Quarterly Federal Tax Return, U.S. Treasury Department Form 941; d. “Minority” includes:
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(1) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin);
(2) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish culture or origin, regardless of race);
(3) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); and (4) American Indian or Alaskan native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification).
2. Whenever the Contractor, or any subcontractor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions of these specifications and the Notice which contains the applicable goals for minority and female participation and which is set forth in the solicitations from which this contract resulted.
3. If the Contractor is participating (pursuant to 41 CFR part 60-4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors must be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each contractor or subcontractor participating in an approved plan is individually required to comply with its obligations under the EEO clause and to make a good faith effort to achieve each goal under the Plan in each trade in which it has employees. The overall good faith performance by other contractors or subcontractors toward a goal in an approved Plan does not excuse any covered contractor’s or subcontractor’s failure to take good faith efforts to achieve the Plan goals and timetables.
4. The Contractor shall implement the specific affirmative action standards provided in paragraphs 7a through 7p of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and female utilization the Contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. Covered construction contractors performing construction work in a geographical areas where they do not have a Federal or federally assisted construction contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the Federal Register in notice form, and such notices may be obtained from any Office of Federal Contract Compliance Programs office or from Federal procurement contracting officers. The Contractor is expected to make substantially uniform progress in meeting its goals in each craft during the period specified.
5. Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the Contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the Contractor’s obligations under these specifications, Executive Order 11246, or the regulations promulgated pursuant thereto.
6. In order for the nonworking training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees must be employed by the Contractor during the training period, and the Contractor must have made a commitment to employ the Item 1Z - Page 52
apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor.
7. The Contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the Contractor’s compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. The Contractor shall document these efforts fully, and shall implement affirmative action steps at least as extensive as the following:
a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites, and in all facilities at which the Contractor’s employees are assigned to work. The Contractor, where possible, will assign two or more women to each construction project. The Contractor shall specifically ensure that all foremen, superintendents, and other onsite supervisory personnel are aware of and carry out the Contractor’s obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities. b. Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the Contractor or its unions have employment opportunities available, and maintain a record of the organizations’ responses. c. Maintain a current file of the names, addresses, and telephone numbers of each minority and female off-the-street applicant and minority or female referral from a union, a recruitment source, or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the Contractor by the union or, if referred, not employed by the Contractor, this shall be documented in the file with the reason therefor, along with whatever additional actions the Contractor may have taken. d. Provide immediate written notification to the Director when the union or unions with which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or woman sent by the Contractor, or when the Contractor has other information that the union referral process has impeded the Contractor’s efforts to meet its obligations.
e. Develop on-the-job training opportunities and/or participate in training programs for the area which expressly include minorities and women, including upgrading programs and apprenticeship and trainee programs relevant to the Contractor’s employment needs, especially those programs funded or approved by the Department of Labor. The Contractor shall provide notice of these programs to the sources compiled under 7b above.
f. Disseminate the Contractor’s EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the Contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each location where construction work is performed.
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g. Review, at least annually, the company’s EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, layoff, termination, or other employment decisions including specific review of these items with onsite supervisory personnel such superintendents, general foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter. h. Disseminate the Contractor’s EEO policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and discussing the Contractor’s EEO policy with other contractors and subcontractors with whom the Contractor does or anticipates doing business. i. Direct its recruitment efforts, both oral and written, to minority, female, and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the Contractor’s recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the Contractor shall send written notification to organizations such as the above, describing the openings, screening procedures, and tests to be used in the selection process. j. Encourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer, and vacation employment to minority and female youth both on the site and in other areas of a contractor’s work force.
k. Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR part 60-3.
l. Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel, for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities. m. Ensure that seniority practices, job classifications, work assignments, and other personnel practices do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the EEO policy and the Contractor’s obligations under these specifications are being carried out. n. Ensure that all facilities and company activities are nonsegregated except that separate or single-user toilet and necessary changing facilities shall be provided to assure privacy between the sexes.
o. Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations.
p. Conduct a review, at least annually, of all supervisor’s adherence to and performance under the Contractor’s EEO policies and affirmative action obligations.
8. Contractors are encouraged to participate in voluntary associations, which assist in fulfilling one or more of their affirmative action obligations (7a through 7p). The efforts of a contractor association, joint contractor-union, contractor-community, or other similar group of which the Item 1Z - Page 54
Contractor is a member and participant may be asserted as fulfilling any one or more of its obligations under 7a through 7p of these specifications provided that the Contractor actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the Contractor’s minority and female workforce participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the Contractor. The obligation to comply, however, is the Contractor’s and failure of such a group to fulfill an obligation shall not be a defense for the Contractor’s noncompliance.
9. A single goal for minorities and a separate single goal for women have been established. The Contractor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and non-minority. Consequently, the Contractor may be in violation of the Executive Order if a particular group is employed in a substantially disparate manner (for example, even though the Contractor has achieved its goals for women generally, the Contractor may be in violation of the Executive Order if a specific minority group of women is underutilized).
10. The Contractor shall not use the goals and timetables or affirmative action standards to discriminate against any person because of race, color, religion, sex, sexual orientation, gender identity, or national origin.
11. The Contractor shall not enter into any subcontract with any person or firm debarred from Government contracts pursuant to Executive Order 11246.
12. The Contractor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination, and cancellation of existing subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any contractor who fails to carry out such sanctions and penalties shall be in violation of these specifications and Executive Order 11246, as amended.
13. The Contractor, in fulfilling its obligations under these specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in paragraph 7 of these specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the Contractor fails to comply with the requirements of the Executive Order, the implementing regulations, or these specifications, the Director shall proceed in accordance with 41 CFR part 60-4.8.
14. The Contractor shall designate a responsible official to monitor all employment related activity to ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the Government, and to keep records. Records shall at least include for each employee, the name, address, telephone numbers, construction trade, union affiliation if any, employee identification number when assigned, social security number, race, sex, status (e.g., mechanic, apprentice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, contractors shall not be required to maintain separate records.
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15. Nothing herein provided shall be construed as a limitation upon the application of other laws which establish different standards of compliance or upon the application of requirements for the hiring of local or other area residents (e.g. those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program).
Reference: 2 CFR 200, Appendix II(C), 41 CFR § 60-1.4, 41 CFR § 60-4.3, Executive Order 11246
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FAA – 17 Federal Fair Labor Standards Act
APPLICABILITY – Contract Types – Per the Department of Labor, all employees of certain enterprises having workers engaged in interstate commerce; producing goods for interstate commerce; or handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any person are covered by the FLSA.
All consultants, sub-consultants, contractors, and subcontractors employed under this federally assisted project must comply with the FLSA.
Professional Services – 29 CFR § 213 exempts employees in a bona fide executive, administrative or professional capacity. Because professional firms employ individuals that are not covered by this exemption, the agreement with a professional services firm must include the FLSA provision.
REQUIREMENT -
The provisions of 29 CFR part 201, the Federal Fair Labor Standards Act (FLSA), are incorporated by reference with the same force and effect as if given in full text. The FLSA sets minimum wage, overtime pay, recordkeeping, and child labor standards for full and part-time workers.
The Contractor has full responsibility to monitor compliance to the referenced statute or regulation. The Contractor must address any claims or disputes that arise from this requirement directly with the U.S. Department of Labor – Wage and Hour Division.
Reference: 29 USC § 201, et seq; 2 CFR § 200.430
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FAA – 18 Lobbying and Influencing Federal Employees
APPLICABILITY- all contracts exceeding $100,000.
REQUIREMENT -
Consultants and contractors that apply or bid for an award of $100,000 or more must have certified that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or another award covered by 31 USC §1352. Each tier must also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award.
For an award over $100,00, the bidder or offeror certifies by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that:
• No Federal appropriated funds have been paid or will be paid, by or on behalf of the bidder or offeror, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. • If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
• The undersigned shall require that the language of this certification be included in the award documents for all sub-awards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans, and cooperative agreements) and that all sub-recipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
Reference: 31 USC § 1352 – Byrd Anti-Lobbying Amendment, 2 CFR part 200, Appendix II(I), 49 CFR part 20, Appendix A
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FAA – 19 Prohibition of Segregated Facilities
APPLICABILITY - The Contractor must comply with the requirements of the EEO clause by ensuring that facilities they provide for employees are free of segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. This clause must be included in all contracts that include the equal opportunity clause, regardless of the amount of the contract.
Contract Types – any contract containing the Equal Employment Opportunity clause of 41 CFR § 60-1.4. This obligation flows down to subcontract and sub-tier purchase orders containing the Equal Employment Opportunity clause.
Construction – Construction work means construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.
Equipment – On site installation of equipment such as airfield lighting control equipment meets the definition of construction and thus this provision would apply. This provision does not apply to equipment projects involving manufacture of the item at a vendor’s manufacturing plant. An example would be the manufacture of a SRE or ARFF vehicle.
Professional Services – Professional services that include tasks that qualify as construction work as defined by 41 CFR part 60-1. Examples include the installation of noise monitoring equipment.
Property/Land – Land acquisition contracts that include tasks that qualify as construction work as defined by 41 CFR part 60-1. Examples include demolition of structures or installation of boundary fencing.
REQUIREMENT -
(a) The Contractor agrees that it does not and will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it does not and will not permit its employees to perform their services at any location under its control where segregated facilities are maintained. The Contractor agrees that a breach of this clause is a violation of the Equal Employment Opportunity clause in this contract. (b) “Segregated facilities,” as used in this clause, means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees that are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin because of written or oral policies or employee custom. The term does not include separate or single-user rest rooms or necessary dressing or sleeping areas provided to assure privacy between the sexes. (c) The Contractor shall include this clause in every subcontract and purchase order that is subject to the Equal Employment Opportunity clause of this contract.
Reference: 2 CFR Part 200, Appendix II (C); 41 CFR Part 60-1 Item 1Z - Page 59
FAA – 20 Occupational Safety and Health Act
APPLICABILITY – Contract Types – All contracts and subcontracts must comply with the Occupational Safety and Health Act of 1970 (OSH). The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) oversees the workplace health and safety standards wage provisions from OSH.
REQUIREMENT -
All contracts and subcontracts that result from this solicitation incorporate by reference the requirements of 29 CFR Part 1910 with the same force and effect as if given in full text. The employer must provide a work environment that is free from recognized hazards that may cause death or serious physical harm to the employee. The employer retains full responsibility to monitor its compliance and their subcontractor’s compliance with the applicable requirements of the Occupational Safety and Health Act of 1970 (29 CFR Part 1910). The employer must address any claims or disputes that pertain to a referenced requirement directly with the U.S. Department of Labor – Occupational Safety and Health Administration.
Reference: 29 CFR part 1910
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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-procurementguidelines-construction-products.
Section 6002(c) establishes exceptions to the preference for recovery of EPA-designated products if the contractor can demonstrate the item is:
a) Not reasonably available within a timeframe providing for compliance with the contract performance schedule;
b) Fails to meet reasonable contract performance requirements; or c) Is only available at an unreasonable price.
Reference: 2 CFR § 200.323, 2 CFR Part 200, Appendix II (J); 40 CFR part 247, 42 USC § 6901, et seq (Resource Conservation and Recovery Act)
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FAA – 22 Rights to Inventions
APPLICABILITY – Contract Types – This provision applies to all contracts and subcontracts with small business firms or nonprofit organizations that include performance of experimental, developmental, or research work. This clause is not applicable to construction, equipment, or professional service contracts unless the contract includes experimental, developmental, or research work.
REQUIREMENT -
Contracts or agreements that include the performance of experimental, developmental, or research work must provide for the rights of the Federal Government and the City in any resulting invention as established by 37 CFR part 401, Rights to Inventions Made by Non-profit Organizations and Small Business Firms under Government Grants, Contracts, and Cooperative Agreements. This contract incorporates by reference the patent and inventions rights as specified within 37 CFR §401.14. Contractor must include this requirement in all sub-tier contracts involving experimental, developmental, or research work.
Reference: 2 CFR § 200, Appendix II(F), 37 CFR 401
Item 1Z - Page 62
FAA - 23 Seismic Safety
APPLICABILITY – Contract Types – This provision applies to construction of new buildings and additions to existing buildings financed in whole or in part through the Airport Improvement Program.
Professional Services– any contract involved in the construction of new buildings or structural addition to existing buildings.
Construction – any contract involved in the construction of new buildings or structural addition to existing buildings.
Equipment – if the project involves construction or structural addition to a building such as an electrical vault project to accommodate or install equipment.
Land – This provision will not typically apply to a property/land project.
REQUIREMENT -
A23.3.1 Professional Service Agreements for Design
SEISMIC SAFETY
In the performance of design services, the Consultant agrees to furnish a building design and associated construction specification that conform to a building code standard that provides a level of seismic safety substantially equivalent to standards as established by the National Earthquake Hazards Reduction Program (NEHRP). Local building codes that model their building code after the current version of the International Building Code (IBC) meet the NEHRP equivalency level for seismic safety. At the conclusion of the design services, the Consultant agrees to furnish the Owner a “certification of compliance” that attests conformance of the building design and the construction specifications with the seismic standards of NEHRP or an equivalent building code.
A23.3.2 Construction Contracts
SEISMIC SAFETY
The Contractor agrees to ensure that all work performed under this contract, including work performed by subcontractors, conforms to a building code standard that provides a level of seismic safety substantially equivalent to standards established by the National Earthquake Hazards Reduction Program (NEHRP). Local building codes that model their code after the current version of the International Building Code (IBC) meet the NEHRP equivalency level for seismic safety.
Reference: 49 CFR Part 41
Item 1Z - Page 63
FAA – 24 Tax Delinquency and Felony Conviction
APPLICABILITY – This provision applies to all contracts funded in whole or part with AIP.
REQUIREMENT -
The Contractor must have certified under the procurement process that resulted in the award of this contract that:
• Contractor has not been convicted of a Federal felony within the last 24 months; or • Contractor does not have any outstanding tax liability for which all judicial and administrative remedies have lapsed or been exhausted.
Reference: Sections 8113 of the Consolidated Appropriations Act, 2022 (Public Law 117-103), and similar provisions in subsequent appropriations acts.
DOT Order 4200.6 – Appropriations Act Requirements for Procurement and Non-Procurement Regarding Tax Delinquency and Felony Convictions
Item 1Z - Page 64
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 1Z - Page 65
FAA – 26 Foreign Trade Restriction
APPLICABILITY – all AIP funded projects.
REQUIREMENT -
TRADE RESTRICTION CERTIFICATION
By accepting this contract the Contractor certifies the following statements are true – 1) is not owned or controlled by one or more citizens of a foreign country included in the list of countries that discriminate against U.S. firms as published by the Office of the United States Trade Representative (USTR);
2) has not knowingly entered into any contract or subcontract for this project with a person that is a citizen or national of a foreign country included on the list of countries that discriminate against U.S. firms as published by the USTR; and
3) has not entered into any subcontract for any product to be used on the Federal project that is produced in a foreign country included on the list of countries that discriminate against U.S. firms published by the USTR.
This certification concerns a matter within the jurisdiction of an agency of the United States of America and the making of a false, fictitious, or fraudulent certification may render the maker subject to prosecution under Title 18 USC Section 1001.
The Contractor must provide immediate written notice to the City if the Contractor learns that its certification or that of a subcontractor was erroneous when submitted or has become erroneous by reason of changed circumstances. The Contractor must require subcontractors provide immediate written notice to the Contractor if at any time it learns that its certification was erroneous by reason of changed circumstances.
Unless the restrictions of this clause are waived by the Secretary of Transportation in accordance with 49 CFR 30.17, no contract shall be awarded to an Offeror or subcontractor:
1) who is owned or controlled by one or more citizens or nationals of a foreign country included on the list of countries that discriminate against U.S. firms published by the USTR or 2) whose subcontractors are owned or controlled by one or more citizens or nationals of a foreign country on such USTR list or
3) who incorporates in the public works project any product of a foreign country on such USTR list.
Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by this provision. The knowledge and information of a contractor is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
The Contractor agrees it will incorporate this provision for certification without modification in all lower tier subcontracts. The Contractor may rely on the certification of a prospective subcontractor that it is not a firm from a foreign country included on the list of countries that discriminate against U.S. firms as published by USTR, unless the Contractor has knowledge that the certification is erroneous.
Item 1Z - Page 66
This certification is a material representation of fact upon which reliance was placed when making an award. If it is later determined that the Contractor or subcontractor knowingly rendered an erroneous certification, the Federal Aviation Administration (FAA) may direct through the City cancellation of the contract or subcontract for default at no cost to the City or the FAA.
Reference: 49 USC § 50104, 49 CFR part 30
Item 1Z - Page 67
FAA – 27 Veteran’s Preference
APPLICABILITY – This provision applies to all AIP funded projects that involve labor to carry out the project. This preference, which excludes executive, administrative, and supervisory positions, applies to covered veterans [as defined under § 47112(c)] only when they are readily available and qualified to accomplish the work required by the project.
REQUIREMENT -
In the employment of labor (excluding executive, administrative, and supervisory positions), the Contractor and all sub-tier contractors must give preference to covered veterans as defined within Title 49 United States Code Section 47112. Covered veterans include Vietnam-era veterans, Persian Gulf veterans, Afghanistan-Iraq war veterans, disabled veterans, and small business concerns (as defined by 15 USC 632) owned and controlled by disabled veterans. This preference only applies when there are covered veterans readily available and qualified to perform the work to which the employment relates.
Reference: 49 USC § 47112(c)
Item 1Z - Page 68
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 1Z - Page 69
ATTACHMENT B
PUBLIC INTEGRITY BUSINESS DISCLOSURE
Item 1Z - Page 70
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
5. Type of Entity
Corporation Limited Liability Company Partnership Trust Other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries 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 __________________________
Shade Structures, Inc dba USA Shade & Fabric Structures 2580 Esters Blvd, Suite 100 ,DFW Airport, TX 75261
X
X
X
X
Bryan Yeazel
Cary Glay
Rob Blakley
Delaware
If other than California, is the Entity also registered in California? X Yes No 1085 N. Main, Ste. C, Orange, CA 92867
Item 1Z - Page 71
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity
EXAMPLE
JANE DOE
[name of owner/investor]
50%, ABC COMPANY, Inc.
[percentage of beneficial interest in entity and
name of entity]
A.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
B.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
C.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
D.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
E.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
Signature of Disclosing Party, Printed Name, Title Date Rob Blakley, Senior Vice President
11/28/23
PlayPower, Inc. - Parent Company 100%
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- -
-
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'
- -
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- - -
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Item 1Z - Page 72
CITY COUNCIL STAFF REPORT
12/14/2023 CONSENT CALENDAR
SUBJECT:
APPROVE LICENSE AGREEMENT NO. A9460 WITH MOBILEMONEY, INC. TO
PROVIDE THREE AUTOMATED TELLER MACHINES AT THE PALM SPRINGS
INTERNATIONAL AIRPORT
RECOMMENDATION:
Approve License Agreement No. A9460 with MobileMoney, Inc. to provide three ATM services for the Palm Springs International Airport for the initial one-year term beginning January 1, 2024, through December 31, 2024.
1. 2. Authorize the City Manager or designee to execute all necessary documents.
Attachments
Item 1AA
CITY COUNCIL STAFF REPORT
DATE: DECEMBER 14, 2023 CONSENT CALENDAR
SUBJECT: APPROVE LICENSE AGREEMENT NO. A9460 WITH MOBILEMONEY, INC. TO PROVIDE THREE AUTOMATED TELLER MACHINES AT THE
PALM SPRINGS INTERNATIONAL AIRPORT
FROM: Scott C. Stiles, City Manager
BY: Department of Aviation
SUMMARY:
This action will approve License Agreement No. A9460 with MobileMoney, Inc. to provide three automated teller machine (ATM) services at the Palm Springs International Airport (Airport).
RECOMMENDATION:
1. Approve License Agreement No. A9460 (Attachment A) with MobileMoney, Inc. to provide three ATM services for the Palm Springs International Airport for the initial one-year term beginning January 1, 2024, through December 31, 2024.
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 November 3, 2023, MobileMoney, Inc. is registered to do business in the State of California.
BACKGROUND:
Following a competitive public solicitation procurement process, on December 19, 2018, the City Council approved License Agreement No. A6456, with MobileMoney, Inc. to install and provide services for three ATMs at the Airport. The agreement was approved for a three-year term, with two additional one-year extension options.
On January 13, 2023, Amendment No. 1 was approved, exercising the first one-year extension option, and the amendment decreased the license fee per transaction from $1.85 to $0.75, increased the maximum transaction fee from $3.50 to $3.95, and on Item 1AA - Page 1
City Council Staff Report
December 14, 2023 -- Page 2
License Agreement with MobileMoney, Inc.
January 1, 2023, Amendment No. 2 was approved, exercising the second one-year extension option.
The Airport Automated Teller Machines (ATMs) provide passengers with easy access to cash and other financial services while traveling. ATMs serve a critical role in ensuring access to cash for various needs, ranging from daily expenses to unexpected emergencies, regardless of one's banking affiliation. Their versatility in facilitating different financial transactions and enhancing the overall travel experience underscores their importance in making the traveling passenger have access to cash. Furthermore, these ATMs also cater to the financial needs of Airport staff, promoting efficient operations and boosting the local economy by enabling on-site commerce with access to cash. The following table indicates the total surcharge transactions over calendar years 2019, 2020, 2021, 2022 and through October 2023:
Month 2019 2020 2021 2022 2023
January 800 687 169 259 492
February 848 699 203 295 493
March 910 411 322 63 465
April 933 58 261 367 509
May 594 64 259 276 341
June 435 114 247 197 257
July 421 142 232 262 303
August 399 126 251 267 257
September 461 132 269 332 291
October 554 162 296 413 309
November 595 17 312 402 N/A
December 639 198 346 658 N/A
Total Surcharge
Transactions
7,589
2,810
3,167
3,791
3,408
STAFF ANALYSIS:
To align with the Airport's future plans and to address the evolving needs of Airport passengers and staff, a one-year term is being proposed which corresponds with the Airport's intention to prepare and release a Request for Proposal (RFP) for Automated Teller Services in the summer of 2024. The forthcoming RFP process is expected to consider the addition of new and additional ATM machines within the terminal, and MobileMoney, Inc. will have the opportunity to participate in this process.
With the ongoing demand for cash withdrawal services at the Airport, staff recommends the approval of a new License Agreement with MobileMoney, Inc. This Agreement will ensure the continued presence of three ATMs at the Airport which will maintain the Airport’s commitment to providing accessible and convenient financial services to Airport passengers and staff. The new term of the agreement will increase the license fee per Item 1AA - Page 2
City Council Staff Report
December 14, 2023 -- Page 3
License Agreement with MobileMoney, Inc.
surcharge transaction from $0.75 to $1.25, and the Airport will receive the revenue collection. This collaborative approach with MobileMoney, Inc. allows for a seamless transition and an efficient response to the evolving needs of the Airport.
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:
N/A.
FISCAL IMPACT:
Approval of this action will result in Airport Revenues of approximately $5,000 for the 2024 calendar year.
REVIEWED BY:
Department Director: Harry Barrett Jr.
City Attorney: Geremy Holm
City Manager: Scott Stiles
ATTACHMENTS:
A. License Agreement No. A9460
B. Public Integrity Disclosure Form
Item 1AA - Page 3
ATTACHMENT A
LICENSE AGREEMENT NO. A9460
WITH MOBILEMONEY, INC.
Item 1AA - Page 4
1 A9460 LICENSE AGREEMENT FOR
MOBILEMONEY, INC. FOR AUTOMATED
TELLER MACHINES AT
PALM SPRINGS INTERNATIONAL AIRPORT
THIS LICENSE AGREEMENT ("License') is made and entered into this 1st day of January 2024, by and between the CITY OF PALM SPRINGS, a municipal corporation ("City"), and MobileMoney, Inc., a California Corporation ("Licensee"). City and Licensee may hereinafter be referred to individually as a "Party" and collectively as "Parties."
RECITALS:
A. City is the fee owner of that real property known as the Palm Springs International Airport, located at 3400 East Tahquitz Canyon Way in the City of Palm Springs, California ("Property/Airport").
B. The Property consists of an International Airport Terminal, Bono Concourse and Regional Jet Concourse with adjacent buildings.
C. City believes that travelers and visitors using the City's airport terminal and related facilities would benefit from the convenience and accessibility of automated teller machines (ATM's") located within the Property.
D. Licensee is desiring to operate three ATM’s within the Property.
E. City has selected Licensee to install, maintain, and operate ATM's, as described in the Scope of License Exhibit “A", within the airport terminal, Bono Concourse and Regional Jet Concourse of the Property.
NOW, THEREFORE, in consideration of the mutual covenants, promises and conditions set forth herein, the Parties hereto incorporate the recitals set forth above and further agree as follows:
1.0 SERVICES OF LICENSEE
1.1 Grant of Access. City hereby grants to Licensee, its employees and agents, a nonexclusive license and permission to enter upon and use a portion of the Property ("License Area") for the limited purposes of operating ATM's. A site plan for the Property depicting the License Areas, as well as the approximate location for the ATM's, is attached to this License as Exhibit "B". The License granted herein shall be valid for the term set forth below only. Licensee expressly acknowledges that this License is nonexclusive and nothing in this License shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 308a of the Federal Aviation Act of 1958 (49 U.S.C. 1349a).
Licensee further acknowledges that the City operates a commercial and public airport on the Property, such that City's employees, agents, tenants, and the general public, including the traveling public and users of commercial airline services may also access the License Areas. For the purpose of this License, the term "Licensee" includes the heirs, representatives, successors in interest, and assigns of Licensee.
1.2 General Scope of Use. Pursuant to this License and for the term provided in this License, Licensee may use the License Areas to install, maintain, and operate a general ATM kiosk, as Item 1AA - Page 5
2 provided in the Scope of License. The final design of the ATM kiosk, the precise location of the ATM kiosk, and manner in which the ATM kiosk will be installed and maintained are subject to the review and approval by the City's Director of Aviation prior to installation of the ATM kiosk. Licensee may not use the ATM's to advertise for other businesses or events; however, Licensee may have one sign on the ATM's identifying Licensee as the operator of the ATM's. The ATM's shall not incorporate features to attract members of the public for purposes other than the use of the ATM's.
1.3 Preparation of the License Areas.
1.3.1 Familiarity with Requirements. Licensee warrants that Licensee: (a) has thoroughly investigated and considered the Scope of License and all work and requirements specified in the Scope of License and otherwise expected of the Licensee; (b) has carefully considered how the Scope of License and the work and requirements should be performed and provided; and (c) fully understands the facilities, difficulties, and restrictions (including but not limited to all requirements of the federal government) attending performance of the Scope of License and the work and requirements under this License.
Licensee has fully investigated the License Areas and is fully acquainted with the conditions existing in the License Areas. Should the Licensee discover any latent or unknown conditions which will materially affect the performance of the Scope of License, Licensee shall immediately inform the City's Director of Aviation of such fact and shall not proceed except at Licensee's risk until written instructions are received from the City's Director of Aviation.
1.3.2 Installation. All costs of installation shall be borne by the Licensee and Licensee shall reimburse the City for any costs the City incurs in preparing the License Areas for use by the Licensee, including any arrangement or work performed to provide electrical power and telephone service to the License Areas accessible to the ATM kiosk location. The ATM kiosk shall not be installed or placed into operation until the City has been fully reimbursed its costs as provided in this Subsection.
1.4 Regulations. Licensee shall ensure that the use of the License Areas by Licensee and its agents, officers, and employees (collectively "Licensee's Parties") during the Term comply with all federal, state, and local laws and ordinances.
1.5 Licenses, Permits, Fees, and Assessments. Licensee shall obtain, at its sole cost and expense, such licenses, permits, and approvals as may be required by law for the performance of the services required by this License. Licensee shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Licensee's performance of the services required by this License, and shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes, penalties, or interest levied, assessed, or imposed against City hereunder.
1.5.1 Sales and Use Tax. Licensee shall be solely responsible for the payment of all sales and use taxes relating to any taxable transactions in connection with the operation of the ATM's.
1.5.2 Real Property Taxes. The parties expressly acknowledge that, as a result of this License, the License Areas may become subject to real property taxes and that, in addition to the License Fee, Licensee shall pay any and all annual real estate taxes and assessments levied upon the License Areas (including any possessory interest taxes), as well as taxes of every kind and nature levied and assessed in lieu of, in substitution for, or in addition to, existing real property taxes. Such amount shall be paid on the date that is twenty (20) days prior to the delinquent date or, if City receives the tax bill, ten (10) days after Licensee's receipt of a copy of the tax bill from City, whichever is later.
1.6 Licensee's Proposal. The Scope of License shall include the Licensee's proposal, "Exhibit A" to this Agreement. In the event of any inconsistency between the terms of such proposal and this License, the terms of this License shall govern.
1.7 SECURITY
Item 1AA - Page 6
3 1.7.1 General. The parties acknowledge that the security of the public, the License Areas, and the ATM's is a priority. For this reason, Licensee shall implement safeguards to minimize security breaches. The ATM's shall be appropriately affixed to the floor of the License Areas in the manner provided in the Scope of License. An internal camera in the ATM's shall capture the physical image of all ATM users, which may be used in the event of a dispute, theft, or fraud.
1.7.2 Armored Courier. At all times during the term of this License, Licensee shall maintain an agreement with an armored and bonded courier to provide service to the ATM's for cash fills, balancing, supply replenishment, and similar matters. Licensee shall schedule cash fills either weekly or bi-weekly, depending upon the need for cash. Licensee shall be responsible for securing such security clearances as the federal government may require for such courier to have access to the License Areas.
1.7.3. Additional Security. Licensee shall be solely responsible for the cost of any additional security deemed necessary in connection with the ATM's.
1.8 Maintenance. Licensee shall maintain the ATM's and all utilities providing services to the ATM's in a first class condition, as needed or as may be directed by the City's Director of Aviation, at Licensee's sole cost and expense. When utility maintenance is required, Licensee shall so notify the City's Director of Aviation and City shall, in conjunction with any applicable utility company, make the necessary repairs. Any costs incurred by City in connection with such repair of utilities for the ATM's shall be reimbursed by Licensee. As further discussed in Subsection 5.2, Licensee shall have the sole obligation to maintain the License Areas and adjacent property free from waste, such as ATM's receipts, which may be generated in connection with the use of the ATM's.
1.9 Free From Liens. Licensee shall keep the Property and the License Areas free from any liens arising out of any work performed, material furnished, or obligation incurred by Licensee or alleged to have been incurred by Licensee.
2.0 COMPENSATION
2.1 License Fee. In exchange for the non-exclusive use of the License Areas pursuant to this License, Licensee shall pay the City the amount of $1.25 per transaction for each transaction occurring at the ATM's installed on the Licensed Areas. This license fee shall be paid from a portion of, not in addition to, any transaction convenience fee received by Licensee. However, should Licensee elect to not charge a transaction fee to cardholders of Licensee's bank or any other customer(s) of the ATM's, Licensee will nonetheless pay City the license fee for each transaction conducted at the ATM's.
Transaction herein is defined as any withdrawal or any other sur-charge transactions.
2.2 Method of Payment. Licensee shall be solely responsible for collecting all compensation from ATM's customers or their respective financial institutions. By no later than the twentieth (20th) day of each month of the Term, including the twenty-fifth (25th) of the month following termination of this License, Licensee shall pay to City all fees due City under Subsection 2.1 for the immediately preceding month, which payment shall be accompanied by an itemized statement showing the number of customer transactions completed from the ATM's.
2.3 Payment Reports. By no later than April 30th of each year of the Term of this License, and including April 30th on the year following the termination of this License, Licensee shall provide audited financial statements, certified by an authorized officer of Licensee, confirming the number of transactions performed and fees generated from the ATM's under this License for the previous agreement year. Should the audited statements show any underpayment by Licensee to City, Licensee shall pay such difference to City within ten (10) days of City's demand therefore plus three percent (3%) of such underpayment. Should the audited statements show any overpayment by Licensee to City, City shall reimburse Licensee for the actual amount of such overpayment as a credit to the following month's revenues due to City, provided such overpayment is confirmed by the City's Department of Finance. If Item 1AA - Page 7
4 an overpayment is discovered after termination of this License, City shall reimburse Licensee the amount of the overpayment within ten (10) business days of City's receipt of the audited statements.
2.4 Maximum Transaction Fee. Licensee may charge a transaction fee not to exceed Three Dollars and fifty cents ($3.95) to process a cash withdrawal of funds at the ATM's. Such convenience fee shall be payable from each cardholder's bank account. The transaction fee shall not assess against or charged the City.
3.0 TERM
Unless earlier terminated in accordance with Subsections 8.5 or 8.6 of this License, this License shall entitle Licensee to non-exclusive use of the License Areas for the limited purposes described herein from January 1, 2024, through December 31, 2024 ("Term"). At the conclusion of this Term, unless this License has been extended by the parties by pursuant to a written agreement Licensee must remove the ATM's and surrender the License Areas pursuant to Subsection 5.1.
4.0 COORDINATION OF WORK
4.1 Representative of Licensee. The following principal of Licensee is hereby designated as being the principal and representative of Licensee authorized to act on its behalf with respect to the work specified herein and make all decisions in connection therewith: Business Development Director, MobileMoney. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principal was a substantial inducement for City to enter into this License. Therefore, the foregoing principal shall be responsible, during the term of this License, for directing all activities of Licensee with respect to the ATM's. For purposes of this License, the foregoing principal may not be replaced nor may his responsibilities be substantially reduced by Licensee without the express written approval of City.
4.2 City's Director of Aviation. The City's Director of Aviation, or the Director's designee, shall be responsible for the management of this License on behalf of the City. It shall be the Licensee's responsibility to ensure that the City's Director of Aviation is kept informed of all matters relating to the ATM's and the Licensee shall refer any decisions which must be made by City to the City's Director of Aviation. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the City's Director of Aviation. The City's Director of Aviation shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this License.
4.3 License is Assignable. This License shall become effective immediately and is personal to the Licensee and may only be assigned with the express written consent of the City. Any attempt to otherwise assign this license without the City's express written consent shall be void and unenforceable and shall operate to immediately terminate this License Agreement.
4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode, or means by which Licensee, its agents or employees, perform the services required herein, except as otherwise set forth in this License. City shall have no voice in the selection, discharge, supervision, or control of Licensee's employees, servants, representatives or agents, or in fixing their number, compensation, or hours of service. Licensee shall perform all services required herein as an independent contractor 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. Licensee 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. City shall not in any way or for any purpose become or be deemed to be a partner of Licensee in its business or otherwise or a joint venturer or a member of any joint enterprise with Licensee.
5.0 PROPERTY RELATED ISSUES
5.1 Waste. Damage. or Destruction: Surrender of Property. The Licensee shall not allow Item 1AA - Page 8
5 any waste, damage, or destruction to occur in or to the Property or the License Areas. When this License terminates, upon such termination, Licensee, as its sole cost and expense, shall repair any waste, damage, or destruction and shall restore the License Areas to that condition existing prior to Licensee's use of the License Areas Should Licensee fail to vacate the License Areas in a clean and undamaged condition, City may arrange for the cleaning and/or repair of the License Areas, the cost of which will be immediately reimbursed by Licensee, and Licensee will be additionally penalized ONE THOUSAND DOLLARS ($1,000) per day, or portion thereof, that the License Areas is unavailable for its normal use or for the commencement of replacement services.
5.2 Waste Receptacle and Waste Removal. Licensee shall be required to have one permanent waste receptacle on the License Areas at all times. This requirement may be satisfied with a waste receptacle that is incorporated into the ATM's itself, or the waste receptacle may be a separate free standing object. Licensee shall have the sole obligation to maintain the License Areas, and adjacent property, free from all waste, including but not limited to ATM's receipts, which is generated in connection with the use of the ATM's. This obligation shall require Licensee to ensure that the waste receptacle is emptied on a regular basis at sufficient intervals to allow the waste receptacle to retain capacity for the disposal of additional waste.
5.3 Customer Service Help Line. Should Licensee desire to install a customer service help line at the ATM's, Licensee shall have the sole financial responsibility to operate, install, and maintain a telephone line to establish the help line. If City's assistance is necessary for the installation or maintenance of such line, City's costs shall be reimbursed by Licensee.
5.4 Modification of License Area. Any future modification of the License Areas which is required by law shall be undertaken at Licensee's sole expense, subsequent to receipt of written approval by the City.
6.0 INSURANCE AND INDEMNIFICATION
6.1 Insurance. Prior to its ability to access the License Areas, Licensee will provide City with proof of insurance, at Licensee's sole cost and expense, to remain in full force and effect during the entire term of this License. The following policies of insurance shall be maintained:
6.1.1 Workers' Compensation Insurance. Workers' Compensation Insurance in an amount required by the laws of California and Employer's Liability Insurance in an amount not less that ONE MILLION DOLLARS ($1,000,000) combined single limit for all damages arising from each accident or occupational disease.
6.1.2 Commercial General Liability. Commercial General Liability Insurance written on a per-occurrence and not a claims-made or modified occurrence basis with a combined single limit of at least ONE MILLION DOLLARS ($1,000,000) bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. The policy must include Standard ISO CG0001 0196 Contractual Liability coverage, or its equivalent, and a Separation of lnsured's clause. There shall be no exclusions for continuing or progressive losses not known by Licensee to exist prior to the policy inception. The policy may not contain any SIR/deductible exceeding $25,000 and the policy must permit satisfaction of the SIR/deductible by City or its related entities. Licensee agrees to maintain this coverage for a minimum of ten (10) years following termination of this License.
6.1.3 Automobile Liability Insurance. A policy of comprehensive automobile liability insurance written on a per-occurrence basis in an amount not less than ONE MILLION DOLLARS ($1,000,000) combined single limit covering all owned, non-owned, leased, and hired vehicles used in connection with operations occurring on the Property.
Item 1AA - Page 9
6 6.1.4 Other Insurance. Such other policies of insurance including, but not limited to, casualty insurance, business interruption insurance, property insurance, and fidelity insurance, as may be required by the nature of operations.
6.1.5 General Provisions. All of the foregoing policies of insurance shall name City and its affiliated entities, and their respective officers, directors, agents, and employees (collectively, "City's Parties.") as an Additional Insured and shall be primary insurance and any insurance maintained by City shall be excess and non-contributing. Each insurer of Licensee shall waive all rights of contribution and subrogation against City's Parties and its respective insurers. Each of such policies of insurance shall name City's Parties. All policies of insurance required to be obtained by Licensee hereunder shall be issued by insurance companies authorized to do business in California and must be rated no less than A-, VII or better in Best's Insurance Guide. Prior to engaging in any operations hereunder, Licensee shall deliver to City certificate(s) of insurance with the required endorsements evidencing the coverages specified above. Such policies shall not be cancelled or materially altered to the detriment of City or Licensee without the insurer providing City with thirty (30) days' advance written notice. City reserves the right, in its sole discretion, to require higher limits of liability coverage if, in City's opinion, operations by or on behalf of Licensee create higher than normal hazards and risks, and, to require Licensee to name additional parties in interest to be Additional lnsured's. Nothing in this Section shall reduce Licensee's obligations as set forth in the Indemnity provisions of this License.
6.1.6 Waiver of Subrogation. Licensee hereby waives all rights of recovery by subrogation. This waiver includes but is not limited to deductible or self-insured retention clauses, inadequacy of limits of any insurance policy, limitations or exclusions of coverage, against City, and its elected officials, officers, directors, agents, and employees, in connection with any matters that are the subject of the License.
6.2 Indemnification by Licensee. Licensee shall indemnify, defend (with counsel designated by City), protect and hold harmless City, City's Parties and the Releasing Parties from and against any and all claims, demands, judgments, actions, damages, losses, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees and court costs) arising at any time directly or indirectly from or in connection with (i) any default in the performance of any obligation by Licensee to be performed under the terms of this License, (ii) Licensee's use of the License Areas, or (iii) the conduct of Licensee's business or any activity, work or things done, permitted or suffered by Licensee in or about the Property, except to the extent caused by City's negligence or willful misconduct. The obligations of Licensee under this Article 6 shall survive the expiration or earlier termination of this License.
Licensee, as a material part of the consideration to City, hereby assumes all risk of damage to the License Areas, including, without limitation, injury to persons in, upon or about the License Areas during Licensee's use of the License Areas, arising from any use of the ATM's or other activities of Licensee or Licensee's Parties on the License Areas. Licensee hereby waives all claims with respect thereof against City. City shall not be liable for any injury to the License Areas, ATM's, or injury to or death of any of Licensee's Parties, or injury to the ATM's, or injury to or death of any other person in or about the License Areas from any cause except to the extent caused by the negligence or willful misconduct of the City or the City's Parties.
6.3 Assumption of All Risks and Liabilities. Licensee assumes all risks and liabilities arising out of any and all use of the License Areas by Licensee or Licensee's Parties.
7.0 REPORTS AND RECORDS
7.1 Reports. Licensee shall periodically prepare and submit to the City's Director of Aviation such reports concerning the use of the ATM's as the City's Director of Aviation shall require.
7.2 Records. Licensee shall keep, and require subcontractors to keep, such books and Item 1AA - Page 10
7 records as shall be necessary to perform the services required by this License and enable the City's Director of Aviation to evaluate the performance of such services. The City's Director of Aviation shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required.
7.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Licensee, its employees, subcontractors and agents in the performance of this License shall be the property of City and shall be delivered to City upon request of the City's Director of Aviation or upon the termination of this License, and Licensee shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Licensee will be at the City's sole risk and without liability to Licensee, and the City shall indemnify the Licensee for all damages resulting therefrom. Licensee may retain copies of such documents for its own use. Licensee shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Licensee fails to secure such assignment, Licensee shall indemnify City for all damages resulting therefrom.
7.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Licensee in the performance of services under this License shall not be released publicly without the prior written approval of the City's Director of Aviation.
8.0 ENFORCEMENT OF LICENSE
8.1 Governing Law. This License shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California.
8.2 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State, or local governmental agency having jurisdiction in effect at the time service is rendered.
8.3 Waiver. The waiver of any breach of any provision hereunder by City or Licensee shall not be deemed to be a waiver of any preceding or subsequent breach hereunder. No failure or delay of any Party in the exercise of any right given hereunder shall constitute a waiver thereof nor shall any partial exercise of any right preclude further exercise thereof.
8.4 Severability. If any paragraph, section, sentence, clause or phrase contained in this License shall become illegal, null or void, against public policy, or otherwise unenforceable, for any reason, or held by any court of competent jurisdiction to be illegal, null or void, against public policy, or otherwise unenforceable, the remaining paragraphs, sections, sentences, clauses or phrases contained in the License shall not be affected thereby.
8.5 Termination Prior to Expiration of Term. This Section shall govern any termination of this License. The City reserves the right to terminate this License at any time, with or without cause, upon thirty (30) days' written notice to Licensee, except that where termination is due to the fault of the Licensee, the period of notice may be such shorter time as may be determined by the City's Director of Aviation.
The parties further agree that if Licensee: (i) files a petition in bankruptcy, (ii) is adjudicated bankrupt, (iii) if a petition in bankruptcy is filed against Licensee and not discharged within thirty (30) days, (iv) if Licensee becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement pursuant to any bankruptcy law, or (v) if a receiver is approached for Licensee or its business during the Term of this License, City may terminate this License upon twenty-four (24) hours' written notice to Licensee. In addition, Licensee reserves the right to terminate this License at any time, Item 1AA - Page 11
8 with or without cause, upon thirty (30) days' written notice to City. Upon receipt of any notice of termination during the Term, Licensee shall immediately cease the operation of the ATM's, and shall clean, repair and vacate the License Areas.
8.6 Termination for Default. If termination is due to the failure of Licensee to fulfill its obligations under this License, including but not limited to the provisions of Section 10 of this License, City may give Licensee thirty (30) days' written notice of the termination and the reasons therefore to Licensee. Licensee may be found to be in default for Licensee's failure to comply with any term or condition of this License, to acquire and maintain all required insurance policies, bonds, licenses, and permits, or failure to make satisfactory progress in performing under this License. Upon termination under this provision, all goods, materials, documents, data and reports prepared by Licensee under this License shall become the property and be delivered to the City on demand. The City may, upon termination of this License, procure, on terms and in the manner that it deems appropriate, materials or services to replace those under this License.
8.7 Attorney's Fees. If either party to this License is required to initiate or defend or made a party to any action or proceeding in any way connected with this License, the prevailing party in such action or proceeding in addition to any other relief which may be granted, shall be entitled to reasonable attorney's fees and costs.
9.0 CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION
9.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Licensee, 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 Licensee or to its successor, or for breach of any obligation of the terms of this License.
9.2 Conflict of Interest. No officer or employee of the City shall have any financial interest, direct or indirect, in this License nor shall any such officer or employee participate in any decision relating to the License which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation.
Licensee warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this License.
9.3 Covenant Against Discrimination: In connection with its performance under this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis").
Consultant shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Consultant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Consultant activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Consultant is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting.
Item 1AA - Page 12
9 Licensee covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this License. Licensee shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry.
9.4 Americans With Disabilities Act. In its operation and maintenance of the ATM's, Licensee shall comply with the Americans with Disabilities Act and all federal regulations applicable under the Act.
10.0 FAA REQUIRED PROVISIONS
10.1 Airport Concession Disadvantaged Business Enterprise (ACDBE) This license agreement is subject to the requirements of the U.S. Department of Transportation's regulations, 49 CFR Part 23.
The concessionaire or contractor agrees that it will not discriminate against any business owner because of the owner's race, color, national origin, or sex in connection with the award or performance of any concession agreement, management contract, or subcontract, purchase or lease agreement, or other agreement covered by 49 CFR Part 23.
The concessionaire or contractor agrees to include the above statements in any subsequent concession agreement or contract covered by 49 CFR Part 23, that it enters and cause those businesses to similarly include the statements in further agreements.
10.2 In the event of a breach of the covenants specified in Subsection 10.1 and 10.2 of this License, City shall have the right to terminate the License and to reenter and repossess the License Areas and the facilities thereon and hold the same as if said License had never been made or issued. This provision does not become effective until the procedures of Title 49, Code of Federal Regulations, and Part 23 are followed and completed.
10.3 License shall furnish its services on a fair, equal, and not unjustly discriminatory basis to all users thereof and it shall charge fair, reasonable, and not unjustly discriminatory prices for its services; provided that Licensee may be allowed to make reasonable and nondiscriminatory discounts, rebates, or other similar type of price reductions to volume purchases or other rational, reasonable basis. Noncompliance with this provision shall constitute a material breach of this License and in the event of such non-compliance, City shall have the right to terminate this License and any interest in property created without liability or at the election of the City or the United States either or both Governments shall have the right to judicially enforce this provision.
10.4 General Civil Rights Provisions. In all its activities within the scope of its airport program, the Contractor agrees to comply with pertinent statutes, Executive Orders, and such rules as identified in Title VI List of Pertinent Nondiscrimination Acts and Authorities to ensure that no person shall, on the grounds of race, color, national origin (including limited English proficiency), creed, sex (including sexual orientation and gender identity), age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance.
If the Contractor transfers its obligation to another, the transferee is obligated in the same manner as the Contractor.
The above provision obligates the Contractor for the period during which the property is owned, used or possessed by the Contractor and the airport remains obligated to the Federal Aviation Administration.
10.5 The License shall be subordinate to the provisions and requirements of any existing or future agreement between the City and the United States relative to the development, operation, or maintenance of the Property.
Item 1AA - Page 13
10 10.6 This License, and all provisions hereof, shall be subject to whatever right the United States Government now has or in the future may have or acquire, affecting the control, operation, regulation, and taking over of the Property or the exclusive or non-exclusive use of the Property by the United States.
11.0 MISCELLANEOUS PROVISIONS
11.1 Headings. The headings of this License are for purposes of reference only and shall not limit or define the meaning of the provisions of this License.
11.2 Counterparts. This License may be signed in any number of counterparts, each of which will be deemed to be an original, but all of which together will constitute one instrument.
11.3 Labor Disputes. Licensee shall give prompt notice to City of any actual or potential labor dispute which delays or may delay performance of this License.
11.4 California Law. This License shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this License shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Licensee covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
11.5 Disputes. In the event of any dispute arising under this License, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefore. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this License for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Licensee's right to terminate this License without cause pursuant to Subsection 8.5.
11.6 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this License, 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.
11.7 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this License, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this License.
11.8 Reservation of City Rights. City reserves the right, but shall not be obligated to Licensee, to maintain and keep in good repair the Property or the Lease Areas. The City further reserves the right to direct and control all activities of Licensee consistent with the provisions of this License.
11.9 Interpretation. The terms of this License shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this License or any other rule of construction which might otherwise apply.
11.10 Integration: Amendment. It is understood that there are no oral agreements between the parties hereto affecting this License and this License supersedes and cancels any and all previous Item 1AA - Page 14
11 negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this License. This License may be amended at any time by the mutual consent of the parties by an instrument in writing.
11.11 Corporate Authority. The persons executing this License on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this License on behalf of said party, (iii) by so executing this License, such party is formally bound to the provisions of this License, and (iv) the entering into this License does not violate any provision of any other License to which said party is bound.
11.12 Notice. Any notice required or permitted to be given hereunder shall be in writing and signed by the Party, officer or agent of the Party to whom it is to be sent, and shall be either: (1) personally delivered to the Party to whom it is to be sent, or (2) sent via overnight courier services, or (3) sent via certified or registered mail, return receipt requested, postage prepaid to the respective addresses, or such other addresses as the Parties may specify in writing:
To City: City of Palm Springs
Department of Aviation
Palm Springs International Airport
3400 East Tahquitz Canyon Way, Suite 1
Palm Springs, California 92262
To Licensee: MobileMoney, Inc.
941 Calle Negocio
San Clemente, CA 92673
(SIGNATURES ON FOLLOWING PAGE)
Item 1AA - Page 15
12 SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND MOBILEMONEY, INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: ______________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No.
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager
Item 1AA - Page 16
13 EXHIBIT “A”
SCOPE OF LICENSE
Licensee agrees to provide the following services:
A. The Licensee shall be required to provide, install, operate, and continuously maintain in proper operating condition, at its own expense, three (3) ATM's in the locations set forth in the attached Exhibit "B", the exact location of which will be subject to the approval of the City's Director of Aviation.
B. An ATM is defined for purposes herein as an electro-mechanical device, owned, operated, and maintained by the Licensee, and used by its customers (cardholders having accounts with the Licensee or cardholders having accounts with other financial institutions which entitles them access) for the purpose of executing banking-related transactions solely between the Licensee and its customers on an automated basis.
C. ATM's utilized by the Licensee during the term of the License shall present a "First-class" appearance, technologically state of the art upon introduction into service, and compatible with any space limitations of the Premises. Licensee is encouraged to propose utilization of equipment incorporating advanced design/customer service options (such as 24-hour customer service telephone, audible instructions, multi-lingual display, recessed keyboard, protruding writing ledge, camera providing photographic record of each transaction or constant monitoring, dial back-up, privacy screen, light compensating screen and touch-screen display).
D. All ATM's must, at a minimum be: 1) affiliated either with one or more national ATM banking networks (such as CIRRUS, Plus, or Starr), and/or one or more regional ATM banking networks) and display all such affiliations on the exterior of the ATM's; 2) equipped with internal diagnostic equipment to electronically signal Licensee of malfunctions that have or may cause the ATM's to become inoperative (such as card jam, equipment failure, cash dispensing problems, possible vandalism, electrical overloads, communication breakdown, or an out-of-stock condition; 3) equipped with a placard providing telephone numbers of Licensee's 24 hour customer service department for use by card holders experiencing difficulty: 4) available for use and operational on a 24-hour per day basis throughout the term of the Agreement; 5) equipped with a paper waste receptacle; and 6) designed to minimize glare and allow the user a feeling of privacy.
E. Licensee shall have the nonexclusive right, privilege and obligation to install, operate and maintain (within the Airport) ATM's.
F. For the purpose of operating the License as described herein, and for no other purpose, the City will allow the selected Licensee, its employees, subcontractors, suppliers, service persons, licensees, guests, patrons, and invitees the right to use the areas of the Airport specified herein, including the necessary rights of access and ingress and egress from the Premises.
G. Title to the ATM's equipment shall remain with the selected Licensee.
H. Licensee shall perform all alteration work necessary for the installation of its ATM's at no cost to the City and subject to the indemnification clause at Article 6.0.
I. The City will pay all utility costs related to the services provided Licensee by under the License except telephone or any other telecommunications charges in connection with operation of the ATM's.
J. Service and maintenance of the ATM's are as follows:
i. Any and all first line maintenance to be provided at Bank's sole expense. ii. Cash replenishment to be provided by Bank on an as-needed basis. iii. ATM's hardware maintenance to be supplied by Bank at Bank's sole expense. iv. City shall provide for required electrical power lines and usage, as well as telephone line and usage for ATM's.
Item 1AA - Page 17
14 K. Bank agrees to provide normal and reasonable maintenance. to the equipment provided for in this License. Bank agrees to take reasonable steps to repair malfunction(s) within 24 hours.
L. In the event the City requires the ATM's to be moved after the initial installation, any costs associated with such move shall be paid by the City.
M. By no later than June, 30th of each year of the term of this License, and including June 30 on the year following the termination of this License, Licensee shall provide a financial statement audited and certified by an authorized officer of Licensee, confirming the number of transactions performed and fees generated from the ATM's under this Agreement. Should the audited statements. show any underpayment by Licensee to City, Licensee shall pay such difference to City within ten (10) days of City's demand therefore plus three percent (3%) of such underpayment. Should the audited statements show any overpayment by Licensee to City, City shall reimburse Licensee· for the actual amount of such overpayment as a credit to 'the following month's revenues due to City, provided such overpayment in confirmed by the Director of Aviation.
N. Criminal History Records Check (CHRC): The Licensee will be required to submit to the Airport, prior to commencing work in accordance with this License, a letter authorizing specific Licensee representatives to approve the issuance of Airport Identification badges and the processing of a fingerprint based Criminal History Records Check (CHRC) and/or an employment history verification.
Each of the Licensee's employees or representatives requiring unescorted access to restricted areas of the Airport will be required to successfully complete a Criminal History Records Check (CHRC) in accordance with 49 CFR Part 1542. Employment history verification records and/or CHRC results must be made available to the City, the Transportation Security Administration (TSA) and/or Federal Aviation Administration {FAA) immediately upon request.
1. Under certain circumstances, and out of control of the Airport, security measures may change on short notice. No deviations from any security measure shall be allowed at any time.
2. All Licensee personnel requiring unescorted access to restricted areas of the Airport, prior to the issuance of an Airport Identification badge, must successfully complete a fingerprint based Criminal History Records Check (CHRC). In accordance with CFR 49 1542.209, the CHRC must disclose that the applicant has not been convicted, or found not guilty by reason of insanity, of any of the disqualifying crimes listed below or as stated in 49 CFR 1542.209, during the 10 years before the date of the individual's application for unescorted access authority, or while the individual has unescorted access authority. The disqualifying criminal offenses are as follows:
a. Forgery of certificates, false marking of aircraft, and other aircraft registration violation; 49 U.S.C. 46306.
b. Interference with air navigation; 49 U.S.C. 46308.
c. Improper transportation of a hazardous material; 49 U.S.C. 46312. d. Aircraft piracy; 49 U.S.C. 46502.
e. Interference with flight crew members or flight attendants; 49 U.S.C. 46504. f. Commission of certain crimes aboard aircraft in flight; 49 U.S.C. 46506. g. Carrying a weapon or explosive aboard aircraft; 49 U.S.C. 46505. h. Conveying false information and threats; 49 U.S.C. 46507. i. Aircraft piracy outside the special aircraft jurisdiction of the United States; 49 U.S.C. 46502(b).
j. Lighting violations involving transporting controlled substances; 49 U.S.C. 46315. k. Unlawful entry into an aircraft or airport area that serves air carriers or foreign air carriers contrary to established security requirements; 49 U.S.C. 46314.
Item 1AA - Page 18
15 l. Destruction of an aircraft or aircraft facility; 18 U.S.C. 32. m. Murder.
n. Assault with intent to murder.
o. Espionage.
p. Sedition.
q. Kidnapping or hostage taking.
r. Treason.
s. Rape or aggravated sexual abuse.
t. Unlawful possession, use, sale, distribution, or manufacture of an explosive or weapon.
u. Extortion.
v. Armed or felony unarmed robbery.
w. Distribution of, or intent to distribute, a controlled substance. x. Felony arson.
y. Felony involving a threat.
z. Felony involving.
1. Willful destruction of property;
2. Importation or manufacture of a controlled substance;
3. Burglary;
4. Theft;
5. Dishonesty, fraud, or misrepresentation;
6. Possession or distribution of stolen property;
7. Aggravated assault;
8. Bribery; or
9. Illegal possession of a controlled substance punishable by a maximum term of imprisonment of more than 1 year.
aa. Violence at international airports; 18 U.S.C. 37.
bb. Conspiracy or attempt to commit any of the criminal acts listed in this paragraph (d).
3. The Airport utilizes an electronic fingerprint machine, which will be utilized for the taking and submission of fingerprints.
4. Generally, CHRC results are returned to the City from the TSA within 3-5 business days.
O. Employee Security Badges
1. All Licensee personnel who will be performing guard services must obtain, and conspicuously display on their person at all times when they are on duty at the Airport, an Airport issued security identification badge.
2. The appropriate badge may be obtained at the Airport Vehicle Inspection Plaza. The cost for each identification badge, CHRC and stolen and/or lost identification badges are delineated in the Airport's Comprehensive Fee Schedule.
3. All badges are to be returned to the Airport when the services are no longer required.
4. In order to obtain a Secured Area identification badge, each Licensee employee must have Item 1AA - Page 19
16 satisfactorily completed the aforementioned CHRC and successfully completed a required 2 hour training class on airport security. Attendance of the class and subsequent issuance of the security identification badge may take longer than 3 hours per person. a. Secure Identification Display Area (SIDA) training will be provided by the Airport and will be scheduled at a mutually agreeable time to the Licensee and the Airport.
P. Armored Car Service
1. The Licensee armored car service will be required to submit to the Airport, prior to commencing work in accordance with this License, a Representative Identification List of all armed couriers and maintenance technicians that will need access to a restricted area. Armed personnel will be escorted by an Airport Law Enforcement Officer at all times they are in an Airport restricted area.
2. The Licensee's armored car service will be required to submit to the Airport, prior to commencing work in accordance with this agreement, a copy of the service's current Firearms Policy. Said policy shall be approved by the Airport prior to the start-up of service.
3. The Licensee's armored car service shall comply, at all times, with the service's Firearms Policy, all local rules and regulations, and all federal guidelines and regulations regarding the carrying of firearms at the City.
Q. Installation of all ATM's shall be completed within 30 days of the effective date of this License. At least three (3) days before Licensee installs the ATM's, Licensee shall first contact the City's Director of Aviation to coordinate a convenient time and date install the machines. Licensee warrants that the installation of the ATM's shall be performed in no more than two (2) consecutive days. Licensee shall assure that all such work is performed in a manner so as to minimize any disruptions or interference of the Airport operations, including but not limited to, Airport pedestrian traffic. Licensee shall further assure that any work performed hereunder shall be in a competent, professional and clean manner.
Licensee shall completely clean all construction equipment and materials upon completion of the work.
Service and maintenance of the ATM's shall be conducted on an as-needed basis.
Item 1AA - Page 20
17 EXHIBIT “B”
LICENSE AREA
Item 1AA - Page 21
ATTACHMENT B
PUBLIC INTEGRITY BUSINESS DISCLOSURE
Item 1AA - Page 22
Item 1AA - Page 23
Item 1AA - Page 24
CITY COUNCIL STAFF REPORT
12/14/2023 CONSENT CALENDAR
SUBJECT:
A REQUEST BY PS SOCIAL GROUP INC (DBA-HYPHEN WINE SHOP) FOR A RESOLUTION OF PUBLIC CONVENIENCE OR NECESSITY (PCN) FOR A TYPE 42
LIQUOR LICENSE FOR ON-SITE CONSUMPTION AND TASTINGS LOCATED AT 1007 NORTH PALM CANYON DRIVE, ZONE C-1 (CASE 5.1535 PCN) RECOMMENDATION:
Adopt a Resolution entitled, "A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF PALM SPRINGS, CALIFORNIA, DETERMINING THAT PUBLIC CONVENIENCE
OR NECESSITY WOULD BE SERVED BY THE ISSUANCE OF ALCOHOLIC BEVERAGE CONTROL LICENSE TYPE 42 FOR HYPHEN, A CRAFT BEER AND ORGANIC WINE SHOP LOCATED AT 1007 NORTH PALM CANYON DRIVE WITHIN CENSUS TRACT NUMBER 446.06.”
Attachments
Item 1BB
CITY COUNCIL STAFF REPORT
DATE: DECEMBER 14, 2023 CONSENT CALENDAR
SUBJECT: A REQUEST BY PS SOCIAL GROUP INC (DBA-HYPHEN WINE SHOP)
FOR A RESOLUTION OF PUBLIC CONVENIENCE OR NECESSITY
(PCN) FOR A TYPE 42 LIQUOR LICENSE FOR ON SITE CONSUMPTION AND TASTINGS LOCATED AT 1007 NORTH PALM CANYON DRIVE,
ZONE C-1 (CASE 5.1535 PCN)
FROM: Scott C. Stiles, City Manager
BY: Department of Planning Services
SUMMARY:
John Libonati, the owner of PS Social Group, Inc, has initiated the application process for California Department of Alcoholic Beverages Control (ABC) Type 42 (On-Sale Beer and Wine) liquor license as part of an existing craft beer and organic wine shop for onsite consumption and tastings located within a 960-square foot tenant space in a larger 6,400- square foot retail building. The subject property is located within a Census tract area which is identified by the ABC as an area with over concentration of liquor licenses. As the applicant surrendered their current license, there will be no net increase in liquor licenses because of this action. The applicant is requesting the City Council make a determination of public convenience or necessity for the proposed activities.
RECOMMENDATION:
1) Adopt Resolution No. _____, “A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF PALM SPRINGS, CALIFORNIA, DETERMINING THAT PUBLIC
CONVENIENCE OR NECESSITY WOULD BE SERVED BY THE ISSUANCE OF ALCOHOLIC BEVERAGE CONTROL LICENSE TYPE 42 FOR HYPHEN, A CRAFT BEER AND ORGANIC WINE SHOP LOCATED AT 1007 NORTH PALM CANYON DRIVE WITHIN CENSUS TRACT NUMBER 446.06.”
BUSINESS PRINCIPAL DISCLOSURE:
The applicant has submitted a Public Integrity Disclosure Form showing that PS Social Group Inc, is owned by John Libonati and Christopher Schutte as sole proprietors (ATTACHMENT D).
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City Council Staff Report
December 14, 2023 -- Page 2
Case 5.1535 – Hyphen – 1007 N. Palm Canyon Drive
PRIOR ACTIONS/EVENTS:
PROJECT DESCRIPTION:
The project originally received a Conditional Use Permit by the Planning Commission on September 1, 2021, to permit an organic wine and beer retail store in a 960-square foot tenant space located in a building containing three existing (3) retail stores. The City Council made a determination of public convenience or necessity in support of a liquor license on September 30, 2021. On November 8, 2023, the Planning Commission approved an amendment to the original CUP to allow for the owner to offer onsite consumption and tastings of beer and wine. The application included the addition of a small 180-square foot outdoor patio at the rear of the store for patrons to sit outside.
The business currently maintains a Type 20 ABC license which allows for the sale of beer and wine for consumption off the premises, and the approval of the CUP amendment will require the forfeiting of the current Type 20 liquor license. The issuance of the new Type 42 license will not result in any net increase in liquor licenses. The store specializes in the sale of “natural wine and organic craft beer” with a boutique style interior design. The operating hours are Monday to Thursday 11:00 AM until 7:00 PM; Friday and Saturday 10:00 AM until 8:00 PM; and Sunday from 12:00 PM to 5:00 PM. The approved CUP amendment will allow for onsite consumption in the form of wine tastings performed by the store, wineries, and representatives.
STAFF ANALYSIS:
The retail wine and beer store selling craft beer and organic wine use is consistent with the General Plan designation (NCC – Neighborhood Community Commercial) and is allowed in the C-1 zoning district upon approval of a Conditional Use Permit per Case
5.1535 CUP.
No exterior modifications are proposed to the existing building, nor is any additional square footage being added. The site complies with the parking requirements for a retail use as listed in PSMC Section 93.06.00(D)(33).
Date Actions/Events
09/01/2021 The Planning Commission approved a Conditional Use Permit (5.1535 CUP) for carry-out craft beer and organic wine shop at the subject property.
09/30/2021 The City Council approved Resolution #24941 PCN for a Type 20 liquor license for Hyphen wine shop for off-site consumption. 11/08/2023 The Planning Commission approved an amendment to an existing Conditional Use Permit to add a Type 42 onsite consumption and tastings of wine and beer at the subject property.
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City Council Staff Report
December 14, 2023 -- Page 3
Case 5.1535 – Hyphen – 1007 N. Palm Canyon Drive
The applicant has applied for a Type 42 (On-Sale Beer and Wine) liquor license through the California Department of Alcoholic Beverages Control (ABC) to operate as a retail craft beer and wine shop for carry-out and onsite consumption. The ABC identifies the Type 42 license as follows:
Type 42 – Off Sale Beer and Wine
Authorizes the sale of beer, and wine for consumption on or off the premises where sold. No distilled spirits may be on the premises. Minors are allowed on premises to enter or remain.
Pursuant to Section 23958 of the State of California Business and Professions Code, the California Department of Alcoholic Beverage Control (ABC) is required to “…deny an application for a license if issuance of that license would tend to create a law enforcement problem, or if issuance would result in or add to an undue concentration of licenses, except as provided in Section 23958.4.” Sections 23958.4(a)(2) and (3) of the Code defines the term, undue concentration, as follows:
As to on-sale retail license applications, the ratio of on-sale retail licenses to population in the census tract or census division in which the applicant premises are located exceeds the ratio of off-sale retail licenses to population in the county in which the applicant premises are located. [State of California Business and Professions Sections 23958.4(a)(2)] The Section further states that a liquor license may nevertheless be issued in an area of undue overconcentration when “…the local governing body of the area in which the applicant premises are located, or its designated subordinate officer or body, determines within 90 days of notification of a completed application that public convenience or necessity would be served by the issuance...” [State of California Business and Professions Code, Section 23958.4(b)(2)].
The subject property is located within Census tract number 446.06, which is identified as the west side of the north portion of Palm Canyon Drive that includes parts of Uptown and Downtown neighborhoods. According to the applicant’s ABC applications, there are two (2) off-sale liquor licenses issued within this Census tract while only two (2) such licenses would be allowed. The approved are as follows:
• On the Mark - 111 N. Palm Canyon Drive
• PS Bottle Shop - 383 N. Indian Canyon Drive
The General Plan land use designation of the subject property is Neighborhood Community Commercial (NCC). The General Plan states the intended use of the land use designation area as “…providing an opportunity for convenience commercial uses that serve adjacent residential neighborhoods.”
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City Council Staff Report
December 14, 2023 -- Page 4
Case 5.1535 – Hyphen – 1007 N. Palm Canyon Drive
The project site is located along a Major Thoroughfare at a corner containing other retail and office uses. North Palm Canyon Drive is the primary commercial corridor in the Census tract number 446.06, and the site is easily accessible from the attached off-street parking lot. The project site is 11,895-square feet in area with the Hyphen store within a 960-square foot tenant space, and it is adequate in size and suitable for the proposed use. A specialty craft beer and organic wine shop will contribute to diversifying products and services the area has to offer to local residents and visitors. The site and structure has been maintained in good condition; therefore, the proposed use is consistent with the intent of the General Plan. Additionally, there will not be a net increase in the number of licenses as the current license will be surrendered. Considering these attributes, staff finds that the issuance of the requested liquor licenses is suitable for the area and will serve the public convenience.
ENVIRONMENTAL ASSESSMENT:
Pursuant to the California Environmental Quality Act (CEQA) Guidelines, the project has been determined to be categorically exempt from further environmental review pursuant to Section 15301(a) (Existing Facilities).
FISCAL IMPACT:
None.
REVIEWED BY:
Department Director: Christopher Hadwin
Deputy City Manager: Flinn Fagg
City Manager: Scott Stiles
ATTACHMENTS:
A. Vicinity Map
B. Draft Resolution
C. Justification Letter
D. Public Integrity Disclosure Form
E. Resolution #24941 PCN City Council 9-30-2021
F. Resolution #6950 CUP AMND Planning Commission 11-8-2023 G. Correspondence
H. Site Photographs
I. Plans
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ATTACHMENT #A
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CITY OF PALM SPRINGS
Hyphen
- Wine Bar
1007 North Palm Canyon Drive
Cases 5.1535 CUP
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ATTACHMENT B
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RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, DETERMINING THAT
PUBLIC CONVENIENCE WOULD BE SERVED BY THE
ISSUANCE OF ALCOHOLIC BEVERAGE CONTROL
LICENSE TYPE 42 FOR HYPHEN WINE AND BEER SHOP
LOCATED AT 1007 NORTH PLAN CANYON DRIVE WITHIN
CENSUS TRACT NUMBER 446.06.
WHEREAS, PS Social Group Inc., has initiated the application process for California Department of Alcoholic Beverage Control (ABC) Type 42 (On-Sale Beer and Wine) liquor license to sell beer, and wine in a 960-squae foot tenant space at 1007 North Palm Canyon Drive, Census Tract No. 446.06, Zone C-1, APN 505-261-010 (“Hyphen”); and
WHEREAS, The California Department of Alcoholic Beverage Control (ABC) has determined that: 1) there are two (2) existing on-sale liquor licenses issued within Census tract number 446.06 while only two (2) of such permits would be allowed based on on-sale retail licenses relative to population in the County in which the applicant’s premise is located; and
WHEREAS, The California Department of Alcoholic Beverages Control (ABC) has determined that the addition of the requested license would cause an “undue concentration” of alcohol-related licenses in the Census tract number 446.06; and WHEREAS, Pursuant to Section 23958.4(b)(2) of the State of California Business and Professions Code, the City Council may determine the public convenience or necessity would be served by the issuance of the requested license notwithstanding an “undue concentration” of alcohol-related licenses in the Census tract number 446.06; and WHEREAS, Hyphen is located within Census tract number 446.06. The zone designation is General Commercial (C-1), and it is located within the Neighborhood Community Commercial (NCC) General Plan land use designation area. The proposed craft beer and organic wine shop store is currently operating within a 960-square foot tenant space in a larger 6,400-square foot retail building with three (3) other in-line tenants; 1) an original Conditional Use Permit was approved by the Planning Commission (Case 5.1535 CUP) on September 1, 2021 for a Type 20 (Off-Sale Beer and Wine) craft beer and organic wine shop; 2) an amendment to the CUP was approved by the Planning Commission on November 8, 2023 to add a Type 42 (OnSale Beer and Wine) liquor license; 3) the site is easily accessible from a Major Throughfare and an attached off-street parking lot; and 4) the issuance of the requested licenses will contribute to diversifying products and services offered to local residents and visitors; and
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS:
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Resolution No.