Item 1F - Page 67
CITY COUNCIL STAFF REPORT
DATE: JUNE 13, 2024 CONSENT CALENDAR
SUBJECT: INITIATIVE NO. 21 -0042A1, THE TA XPAYER PROTECTION AND
GOVERNMENT ACCOUNTABILITY ACT
FROM: Scott C. Stiles, City Manager
BY: Teresa Gallavan, Assistant City Manager
SUMMARY:
The Taxpayer Protection and Government Accountability Act would revise the California Constitution with provisions that limit voters’ authority and input, adopt new and stricter rules for raising taxes and fees, and may make it more difficult to impose fin es and penalties for violation of state and local laws.
The measure puts billions of local government tax and fee revenues at risk statewide with related core public service impacts.
The measure could have significant negative impacts on the City of Palm Springs operations and core service delivery.
The proposed constitutional initiative is sponsored by the California Business Roundtable and strongly opposed by the League of California Cities, along with a broad collation of local governments, labor and public safety leaders, infrastructure advocates, and businesses.
RECOMMENDATION:
Staff recommends Council adopt a Resolution ( Attachment A) opposing Initiative No. 21-0042A1, The Taxpayer Protection and Government Accountability Act, and direct staff to send a letter (Attachment B) to the League of California Cities to include the City of Palm Springs as part of the growing coalition of public safety, labor, local government, infrastructure advocates and other organizations throughout the state opposed to this initiative.
Item 1G - Page 1
City Council Staff Report
June 13, 2024 -- Page 2
Taxpayer Protection & Government Accountability Act
BACKGROUND:
On Jan. 4, 2022, the California Business Roundtable filed the “Taxpayer Protection and Government Accountability Act” or AG# 21- 0042A1. On Feb. 1, 2023, the measure qualified for the November 2024 ballot.
The League of California Cities, along with a broad coalition of local governments, labor and public safety leaders, infrastructure advocates, and businesses, strongly opposes this initiative.
Local government revenue- raising authority is currently substantially restricted by state statute and constitutional provisions, including the voter approved provisions of Proposition 13 of 1978, Proposition 218 of 1996, and Proposition 26 of 2010. The Taxpayer Protection and Government Accountability Act adds and expands restrictions on voters and local government tax and fee authority.
STAFF ANALYSIS:
Local governments levy a variety of fees and other charges to provide core public services. Major examples of affected fees and charges are:
• Nuisance abatement charges, such as for weed, rubbish, and general nuisance abatement to fund community safety, code enforcement, and neighborhood cleanup programs.
• Commercial franchise fees.
• Emergency response fees, such as in connection with DUI. • Advanced Life Support (ALS) transport charges.
• Document processing and duplication fees.
• Transit fees, tolls, parking fees, and public airport and harbor use fees. • Facility use charges, fees for parks and recreation services, garbage disposal tipping fees.
Virtually every city, county, and special district must regularly (e.g., annually) adopt increases to fee rates and charges and revise rate schedules to accommodate new users and activities. Most of these would be subject to new standards and limitations u nder threat of legal challenge. Based on the current volume of fees and charges imposed by local agencies, including council-adopted increases to simply accommodate inflation, Cal Cities estimates the amount of local government fee and charge revenue at ri sk is approximately $2 billion per year including those adopted since Jan. 1, 2022, when the initiative would retroactively affect and void all state and local taxes or fees adopted after that date if they did not align with the provisions of the initiative. Over ten years, $20 billion of local government fee and charge revenues will be at heightened legal peril.
Item 1G - Page 2
City Council Staff Report
June 13, 2024 -- Page 3
Taxpayer Protection & Government Accountability Act
Most of the City of Palm Springs fees that are listed in the Comprehensive Fee Schedule, and approved by the City Council annually, could be subject to this legislation. Examples include Business License, Building Permits, Fire Inspection Fees, etc. City Staff estimate the annual value of fee revenue affected is approximately $8 million.
Hundreds of local tax measures were approved in 2022 that likely do not comply with the provisions of the initiative. Nearly $2 billion of annual revenues from these voter-approved measures will cease a year after the effective date of the measure, reducing the local public services funded by these measures, unless the tax is re -submitted for voter approval.
Reductions on local government tax revenues have impacts on core services and infrastructure including fire and emergency response, law enforcement, streets and roads, drinking water, sewer sanitation, parks, libraries, affordable housing, homelessness prevention, and mental health services.
The City of Palm Springs has three local Measures, all of which were approved by the voters prior to 2022
1. If the local Measure has to be returned to the voters to be extended, this legislation could affect those tax revenues and require the measure to be resubmitted for voter approval.
Fines and Penalties
Under existing law, cities are required to provide due process before imposing a penalty or fine for violation of its municipal code:
1. A local agency must adopt administrative procedures that govern imposing fines and penalties, including providing a reasonable period of time for a person responsible for a continuing violation to correct or remedy the violation [Gov't Code 53069.4].
2. Notice must be given to the violating party before imposing the penalty; and give the party an opportunity to be heard and present any facts or arguments [ Merco Construction Engineers v. Los Angeles Unified School District (1969) 274 CA 2d 154, 166].
3. The fine may not be "excessive" [U.S. Constitution amendments VIII and XIV].
The initiative converts administratively -imposed fines and penalties into taxes unless a new, undefined, and ambiguous “adjudicatory due process” is followed. This provision may put at risk authority to impose fines and penalties for violations of state and local law.
1 Initiative #1935 (filed as 21-0042A1) - California Special Districts Association (csda.net)
Item 1G - Page 3
City Council Staff Report
June 13, 2024 -- Page 4
Taxpayer Protection & Government Accountability Act
The City of Palm Springs affected fines and penalties include Parking Violations, Towing Fees, and False Alarm Fees. The value of the potentially affected fines is approximately $750,000 annually.
FISCAL IMPACT
:
The Taxpayer Protection and Government Accountability Act will take billions of dollars away from local government services statewide.
City of Palm Springs Financial Impact
The potential financial impact to the City for affected fee and fine revenue, as well as the local Tax Measure that could be extended in the future, totals approximately $35 million.
REVIEWED BY:
Department Director: Kristopher Mooney
Assistant City Manager: Teresa Gallavan
City Manager: Scott Stiles
ATTACHMENTS:
A. Resolution to Oppose Initiative
B. Letter to Oppose Initiative
Item 1G - Page 4
ATTACHMENT A
Item 1G - Page 5
RESOLUTION NO. _____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, O PPOSING INITIATIVE
#21-0042A1, THE TAXPAYER PROTECTION AND
GOVERNMENT ACCOUNTABILITY ACT
WHEREAS, an association representing California’s wealthiest corporations is spending tens of millions of dollars to promote a deceptive ballot measure currently eligible for the November 2024 statewide ballot; and
WHEREAS, the measure creates constitutional loopholes that allow corporations to pay far less than their fair share for the impacts they have on our communities, which could force residents and taxpayers to pay more to maintain services; and
WHEREAS, the measure threatens billions of dollars every year in local government funding for services like fire and emergency response, law enforcement, affordable housing, services to support homeless residents, mental health services, and more; and
WHEREAS, the fiscal impact for impacted fees and fines, as well as local Tax Measures that could potentially be impacted totals approximately $35 million.
WHEREAS, the measure is an attack on voters’ rights, containing undemocratic provisions that would make it more difficult for local voters to pass measures to fund services, provisions that retroactively cancel measures recently passed by voters, and provisions that prevent voters from passing advisory measures that provide direction on how they want their local tax dollars spent; and
WHEREAS, the measure contains intentionally restrictive language that will encourage hundreds of frivolous lawsuits against cities and local governments – costing taxpayers many millions and stopping investments in vital local services; and
WHEREAS, the measure would make it much more difficult for state and local regulators to issue fines and levies on corporations that violate laws intended to protect our environment, public health and safety, and our neighborhoods; and
WHEREAS, the measure is opposed by hundreds of local governments, teachers, firefighters, working families and local elected officials.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City of Palm Springs opposes Initiative #21-0042A1; and
SECTION 2. The City of Palm Springs will join the “Stop the Taxpayer Deception Act” coalition, a growing coalition of public safety, education, labor, local government, and infrastructure groups throughout the state.
Item 1G - Page 6
Resolution No. _____
SECTION 3. Directs staff to email a copy of this adopted resolution to the League of California Cities at [email protected].
ADOPTED THIS 13TH DAY OF JUNE, 2024
.
SCOTT C. STILES
CITY MANAGER
ATTEST:
BRENDA PREE
CITY CLERK
Item 1G - Page 7
Resolution No. _____
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, BRENDA PREE , City Clerk of the City of Palm Springs, h ereby certify that Resolution No. ____ is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this ______ day of ______________, _________.
Brenda Pree, City Clerk
City of Palm Springs, California
Item 1G - Page 8
ATTACHMENT B
Item 1G - Page 9
***CITY LETTERHEAD***
June 14, 2024
League of California Cities
c/o Public Affairs Department
1400 K Street, Suite 400
Sacramento, CA 95814
[email protected]
[email protected]
RE
: Letter Opposing Initiative 21-0042A1
The City of Palm Springs opposes Initiative #21- 0042A1, a November 2024 statewide ballot proposition. The measure is a significant threat to local control and voters’ rights that could jeopardize funding for vital services.
This measure creates new constitutional loopholes that allow corporations to pay far less than their fair share for the impacts they have on our communities, which could force residents and taxpayers to pay more to maintain services.
The measure puts billions of dollars currently dedicated to local services at risk, and could force cuts to fire and emergency response, law enforcement, services to support homeless residents, and more.
The measure is also an attack on voters’ rights, containing undemocratic provisions that would make it more difficult for local voters to pass measures to fund local services, provisions that retroactively cancel measures recently passed by voters, and provisions that prevent voters from passing advisory measures that provide direction on how they want their local tax dollars spent.
Furthermore, the measure contains intentionally vague and restrictive language that will encourage hundreds of frivolous lawsuits against cities and local governments — costing taxpayers millions and blocking investments, development and long-term planning.
The fiscal impact of the fees and fines affected, as well as any local Tax Measures that could be extended in the future is approximately $35 million.
You may list the City of Palm Springs in formal opposition to Initiative #21-0042A1 and include our city as part of the growing coalition of public safety, labor, local government, infrastructure advocates, and other organizations throughout the state opposed to this deceptive proposition.
Sincerely,
Jeffrey Bernstein
Mayor, City of Palm Springs
Item 1G - Page 10
CITY COUNCIL STAFF REPORT
DATE: JUNE 13, 2024 CONSENT CALENDAR
SUBJECT: ADOPT A RESOLUTION IDENTIFYING THE PROJECTS TO BE FUNDED BY SENATE BILL 1 (SB 1), THE ROAD REPAIR AND ACCOUNTABILITY ACT OF 2017, FOR FISCAL YEAR 2024-25
FROM: Scott C. Stiles, City Manager
BY: Engineering Services Department
SUMMARY:
Adoption of this resolution will allow the City of Palm Springs to identify a specific project or projects that will be designated as recipients of Senate Bill 1 (SB 1) funding, identified as “The Road Repair and Accountability Act of 2017.” Staff has updated the Capital Improvement Program to include SB1 - Road Maintenance and Rehabilitation Program (RMRA) funds to be budgeted for the traffic signal at the intersection of Indian Canyon Drive and Via Escuela.
RECOMMENDATION:
Adopt Resolution No. ____, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF PALM SPRINGS, CALIFORNIA, ADOPTING A LIST OF PROJECTS FOR FISCAL YEAR 202 4-25 FUNDED BY SENATE BILL 1 (SB 1) , THE ROAD REPAIR AND ACCOUNTABILITY ACT OF 2017.”
BACKGROUND:
On April 28, 2017, the Governor signed Senate Bill 1 (SB 1) (Beall, Chapter 5, Statutes of 2017), which is known as the Road Repair and Accountability Act of 2017. To address basic road maintenance, rehabilitation, and critical safety needs on both the state highway and local streets and road system, SB 1 increases the per-gallon fuel excise taxes; increases diesel fuel sales taxes and vehicle registration fees; and provides for inflationary adjustments to tax rates in future years.
Beginning November 1, 2017, the State Controller deposited various portions of this new funding into the newly created RMRA. A percentage of this new RMRA funding is apportioned by formula to eligible cities and counties pursuant to the Streets and Highways Code (SHC) Section 2032(h) for basic road maintenance, rehabilitation, and Item 1H - Page 1
City Council Staff Report
June 13, 2024 -- Page 2
Adopt a Resolution Identifying Project(s) for SB1 RMRA Funds
critical safety projects on the local streets and roads systems.
It is important to note that all new revenues received through the increased gas tax must be dedicated to capital improvement projects and cannot be used for personnel or other administrative costs.
STAFF ANALYSIS:
Cities and counties receiving Road Maintenance and Rehabilitation Program ( RMRA) funds must comply with all relevant federal and state laws, regulations, policies, and procedures. The main requirements for the program are codified in SHC Sections 2034, 2036, 2037, and 2038; several of the key requirements are listed below:
• Submit to the California Transportation Commission (CTC) a list of projects proposed to be funded with these funds. All projects proposed to receive funding must be included in a city or county budget that is adopted by the applicable city council or county board of supervisors at a regular public meeting [SHC 2034(a)(1)].
• The list of projects must include the description and location of each proposed project, a proposed schedule for the project's completion, and the estimated useful life of the improvement [SHC 2034(a)(1)].
• For each fiscal year in which RMRA funds are received and expended, cities and counties must submit documentation to the Commission that includes the description and location of each completed project, the amount of funds expended on the project, the completion date, and the estimated useful life of the improvement [SHC 2034(b)].
Staff recommends adopting this resolution, Attachment A, identifying the traffic signal at the intersection of Indian Canyon Drive and Via Escuela Project as an eligible project to receive RMRA funding by Senate Bill 1 (SB 1), the Road Repair and Accountability Act of 2017, for Fiscal Year 2024-2025.
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 amend the Fiscal Year 202 4-2025 budget, 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.
Item 1H - Page 2
City Council Staff Report
June 13, 2024 -- Page 3
Adopt a Resolution Identifying Project(s) for SB1 RMRA Funds
ALIGNMENT WITH STRATEGIC PLANNING:
This item aligns with the City Council Priority 2 – “Community Infrastructure”.
FISCAL IMPACT:
Following City Council approval, the Capital Improvement Budget will be updated, reflecting this projected revenue for RMRA Gas Tax Funds of $1,144,916 for Fiscal Year 2024-2025, allowing the City to provide the CTC with the project to be funded by Senate Bill 1 (SB 1).
The FY 24-25 estimated revenue of $1,144,916 will be used to fund the traffic signal at the intersection of Indian Canyon Drive and Via Escuela.
REVIEWED BY:
City Engineer: Joel Montalvo
Deputy City Manager: Flinn Fagg
City Manager: Scott Stiles
ATTACHMENTS:
A. Resolution
Item 1H - Page 3
ATTACHMENT A
Item 1H - Page 4
RESOLUTION NO. _____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS CALIFORNIA, ADOPTING A LIST OF
PROJECTS FOR FISCAL YEAR 20 23-24 FUNDED BY
SENATE BILL 1 (SB 1), THE ROAD REPAIR AND
ACCOUNTABILITY ACT OF 2017
WHEREAS, Senate Bill 1 (SB 1), the Road Repair and Accountability Act of 2017 (Chapter 5, Statutes of 2017) was passed by the Legislature and signed into law by the Governor in April 2017 in order to address the significant multi -modal transportation funding shortfalls statewide; and
WHEREAS, SB 1 includes accountability and transparency provisions that will ensure the residents of our City are aware of the projects proposed for funding in our community and which projects have been completed each fiscal year; and
WHEREAS, the City must include a list of all projects proposed to receive funding from the Road Maintenance and Rehabilitation Account (RMRA), created by SB 1, in the City budget, which must include a description and the location of each proposed project, a proposed schedule for the project's completion, and the estimated useful life of the improvement; and
WHEREAS, the City, will receive an estimated $1,144,916 in RMRA funding in Fiscal Year 2024-25 from SB 1; and
WHEREAS, this is the fifth year in which the City is receiving SB 1 funding and will enable the City to continue essential road maintenance and rehabilitation projects, safety improvements, repairing and replacing aging bridges, and increasing access and mobility options for the traveling public that would not have otherwise been possible without SB 1; and
WHEREAS, the City has undergone a robust public process to ensure public input into our community's transportation priorities/the project list; and
WHEREAS, the City reviews safety concerns and uses a Pavement Management System to develop the SB 1 project list to ensure revenues are being used on the most high- priority and cost -effective projects that also meet the communities priorities for transportation investment and safety; and
WHEREAS, the funding from SB 1 will help the City maintain and rehabilitate streets, roads, bridges, improve s afety, add traffic control devices , and add active transportation infrastructure throughout the City this year and hundreds of similar projects into the future; and
Item 1H - Page 5
Resolution No. _____
WHEREAS, the 201 8 California Statewide Local Streets and Roads Needs Assessment found that the City's streets and roads are in a "good" condition and this
revenue will help us increase the overall quality of our road system and over the next decade will maintain our streets and roads in a "good" condition; and
WHEREAS, the SB 1 project list and overall investment in our local streets and roads infrastructure with a focus on basic maintenance and safety, investing in complete streets infrastructure, and using cutting- edge technology, materials and practices, will have significant positive co-benefits statewide; and
NOW, THEREFORE THE CITY COUNCIL DETERMINES, RESOLVES AND APPROVES AS FOLLOWS:
SECTION 1. That the foregoing Recitals are true and correct and are incorporated herein by this reference.
SECTION 2. The Fiscal Year 2024-25 list of projects planned to be funded with Road Maintenance and Rehabilitation Account revenues include:
Project Name: Traffic Signal at the intersection of Indian Canyon Drive and Via Escuela
Description: Install new Traffic Signal with necessary equipment, hardware and required street improvements.
Estimated Useful Life: 50 Years
Est. Construction Year: Early to middle of 2025
ADOPTED THIS 13th DAY OF June 2024.
SCOTT C. STILES, CITY MANAGER
ATTEST:
BRENDA PREE, CITY CLERK
Item 1H - Page 6
Resolution No. _____
CE
RTIFICATION
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 as was duly adopted at a regular meeting of the City Council of the City of Palm Springs on June 13, 2025, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
BREN DA PREE, CITY CLERK
City of Palm Springs, California
Item 1H - Page 7
CITY COUNCIL STAFF REPORT
DATE: JUNE 13, 2024 CONSENT CALENDAR
SUBJECT: APPROVAL OF AN AGREEMENT WITH THE CITY OF CATHEDRAL CITY
AND THE COACHELLA VALLEY WATER DISTRICT REGARDING THE
RAMON ROAD WIDENING (FROM SAN LUIS REY DR IVE TO LANDAU
BOULEVARD) INCLUDING THE WHITEWATER BRIDGE WIDENING ,
CITY PROJECT NO. 08 -25, FEDERAL -AID PROJECT NO. BHLS -5282 (040)
FROM: Scott C. Stiles, City Manager
BY: Engineering Services Department
SUMMARY:
Approval of this item will authorize the City Manager to execute an Agreement with Cathedral City and the Coachella Valley Water District (CVWD) to allow the City’s construction of the improvements identified as the Ramon Road Widening (San Luis Rey Dr. to Landau Boulevard). CVWD previously issued an Encroachment Permit 040517-4- 002 to the Riverside County Road Department on June 9, 1981, to construct the existing road bridge. However, said Encroachment Permit was never assigned or otherwise transferred to the Cities in order to formally permit the construction and location of the existing road bridge. The Project will impact CVWD Stormwater Facilities and will encroach on CVWD Property. Th is Agreement is necessary for any work within CVWD property and right-of-way.
RECOMMENDATION:
1) Approve Agreement Regarding the Ramon Road Widening Project over the Whitewater River with The City of Cathedral City and Coachella Valley Water District for the construction of the Ramon Road Widening (San Luis Rey Drive to Landau Boulevard) including the Whitewater River Bridge Widening, City Project No. 08-25, Federal-Aid Project No. BHLS-5282 (040).
2) Authorize the City Manager to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
Not Applicable.
Item 1I - Page 1
City Council Staff Report
June 13, 2024 -- Page 2
Palm Springs, Cathedral City and CVWD Agreement
BACKGROUND:
On January 30, 2008, the City of Palm Springs, the City of Cathedral City, and the Agua Caliente Band of Cahuilla Indians submitted a letter to CVAG requesting funding for a Project Study Report (PSR) to identify the project details and overall scope for t he widening of Ramon Road to its full 6- lane width, extending from San Luis Rey Drive to Landau Boulevard, including widening of the existing bridge over the Whitewater River.
This capital improvement project has been called the Ramon Road Widening (from San Luis Rey Dr. to Landau Blvd.) including the Whitewater River Bridge Widening, City Project No. 08-25, (the “Project”). Palm Springs is administering the project to widen the road bridge over the Whitewater River Stormwater Channel (“WWRSC”).
CVWD operates and maintains the WWRSC on Assessor’s Parcel Number (“APN”) 680- 170-014, 680- 170-053, and 677- 420-023 as a regional flood conveyance and control channel to protect human life and property and for related purposes (“CVWD Stormwater Facilities”). CVWD holds certain stormwater easement rights on APN 680-170-014, 680- 170-053, and 677-420-023 (collectively “CVWD Property”).
CVWD previously issued Encroachment Permit 040517-4- 002 to the Riverside County Road Department on June 9, 1981, to construct the existing road bridge. However, said Encroachment Permit was never assigned or otherwise transferred to the Cities in order to formally permit the construction and location of the existing road bridge.
The Project will impact CVWD Stormwater Facilities and will encroach on CVWD Property. A Channel Maintenance Responsibility Plan is provided in Attachment A for reference.
STAFF ANALYSIS:
Coachella Valley Water District requires a formal Agreement for any construction that is to take place within their property and right -of-way. The Project encroaches onto and expands the existing slope lining within the channel and improves pier walls and other bridge infrastructure.
Staff, along with legal counsel, have reviewed the proposed Agreement and support the approval by Council. A copy of the Agreement is included as Attachment B.
ENVIRONMENTAL ASSESSMENT
:
Section 21084 of the California Public Resources Code requires Guidelines for Implementation of the California Environmental Quality Act (“CEQA”). In accordance with the CEQA Guidelines, the City acting as “Lead Agency” pursuant to CEQA, previously completed an environmental analysis of the potential impacts resulting from construction of the Project. On May 7, 2014, the City Council adopted Resolution No. 23544, adopting and ordering the filing of a Mitigated Negative Declaration for the Project. Subsequently, Item 1I - Page 2
City Council Staff Report
June 13, 2024 -- Page 3
Palm Springs, Cathedral City and CVWD Agreement
on May 14, 2014, Staff filed a Notice of Determination with the Riverside County Clerk and State Clearinghouse.
The Project is funded, in part, by federal funds, requiring local oversight by Caltrans. As a federally funded project, the Project is subject to environmental review pursuant to the National Environmental Policy Act (“NEPA”). On June 9, 2014, Caltrans, ac ting as the lead agency pursuant to NEPA, made an environmental determination that the Project does not individually or cumulatively have a significant impact on the environment as defined by NEPA and is excluded from the requirements to prepare an Environ mental Assessment (“EA”) or Environmental Impact Statement (“EIS”), and that it qualifies for a Categorical Exclusion in accordance with 23 USC 327. Subsequently, on January 21, 2016, Caltrans completed a NEPA re- validation of the Project, confirming that the prior NEPA determination for the Project remains valid, and approved the City to proceed with the right-of-way acquisition phase.
ALIGNMENT WITH STRATEGIC PLANNING:
This item aligns with City Council Priority “Community Infrastructure”, specifically Priority 2B, 5-Year Capital Improvement Plan, in identifying high priority facilities.
FISCAL IMPACT
:
The requested action has no fiscal impact.
REVIEWED BY:
City Engineer Joel Montalvo
Deputy City Manager: Flinn Fagg
City Manager: Scott Stiles
ATTACHMENTS:
A. Channel Maintenance Responsibility Plan
B. Agreement Regarding the Ramon Road Widening Project
Item 1I - Page 3
Attachment A
Item 1I - Page 4
Underground Service Alert
Exp. 03-31-24
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AT THE NORTHEASTERLY CORNER OF SAN LUIS REY DRIVE
AND RAMON ROAD, IN THE NORTH END OF INLET BOX, 50 FT.
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#118 373.94
NAD 83 (EPOCH 2007.0) NAVD 88
THE CITY OF PALM SPRINGS OR ITS
OFFICERS OR AGENTS SHALL NOT BE
RESPONSIBLE FOR THE ACCURACY OR
COMPLETENESS OF ELECTRONIC OR
SCANNED COPIES OF THIS PLAN SHEET.
17 156
17 59
Item 1I - Page 5
Attachment B
Item 1I - Page 6
AGREEMENT REGARDING THE
RAMON ROAD WIDENING PROJECT OVER THE WHITEWATER RIVER
This Agreement Regarding the Ramon Road Widening Project (“Agreement”) is entered into this day of , 20 (“Effective Date”), by and between the CITY OF PALM SPRINGS, a California municipal corporation (“Palm Springs”), and the CITY OF CATHEDRAL CITY, a California municipal corporation (“Cathedral City”) and the COACHELLA VALLEY WATER DISTRICT, a public agency of the State of California (“CVWD”). Palm Springs, Cathedral City, and CVWD are sometimes referred to herein individually as a ”Party” or collectively as “Parties”. Palm Springs and Cathedral City are sometimes referred to herein collectively as “Cities”.
RECITALS
A. Palm Springs is administering a project to widen the road bridge (“Project”) of Ramon Road over the Whitewater River Stormwater Channel (“WWRSC”).
B. CVWD operates and maintains the WWRSC on Assessor’s Parcel Number (“APN”) 680-170-014, 680-170-053, and 677-420-023 as a regional flood conveyance and control channel to protect human life and property and for related purposes (“CVWD Stormwater Facilities”).
C. CVWD holds certain stormwater easement rights on APN 680-170-014, 680-170- 053, and 677-420-023 (collectively “CVWD Property”).
D. CVWD previously issued Encroachment Permit 040517-4-002 to the Riverside County Road Department on June 9, 1981 to construct the existing road bridge. However, said Encroachment Permit was never assigned or otherwise transferred to the Cities in order to formally permit the construction and location of the existing road bridge.
E. The Project will impact CVWD Stormwater Facilities and will encroach on CVWD Property.
F. The Parties desire to enter into this Agreement to establish the responsibilities of each Party.
NOW THEREFORE, THE PARTIES AGREE TO THE FOLLOWING:
AGREEMENT
1. CITIES’ RESPONSIBILITIES
A. To be solely responsible for all cost and expense of project management, planning, environmental, design, and construction work on the Project. Any consultants or contractors hired by the Cities will be subject to the terms and conditions of this Agreement, as applicable.
B. To comply with CVWD’s rules, regulations, ordinances, and procedures regarding the design, installation, and construction of the Project, including but Item 1I - Page 7
not limited to CVWD’s Development Design Manual, and design standards, as may be amended by CVWD and the CVWD Board of Directors (“Board”) from time to time (collectively, “Rules”).
C. To keep itself and all contractors, staff, and employees fully informed of and in compliance with all local, state, and federal laws, rules, and regulation that may impact, or be implicated by the construction of the Project including, without limitation, the Federal Emergency Management Agency’s floodplain management requirements; CVWD Ordinance No. 1234; Cities’ equivalent ordinance or Riverside County Ordinance 458; all applicable provisions of the local ordinances regulating discharges of stormwater; the Federal Water Pollution Control Act ( 33 U.S.C 1251 et seq.); the California Porter-Cologne Water Quality Control Act (Water Code 13000 et seq).; and any and all regulations, policies, or permits issued pursuant to any such authority. These include, but are not limited to California Regional Water Quality Control Board, Colorado Region, Order No. R7-2013-0011 (NPDES Permit No. CAS617002) and State Water Resources Control Board Order NO. 2010-0014-DWQ, Order No. 2009-0009-DWQ, and Order NO. 2012-0006-DWQ.
D. To be responsible for compliance with the laws of the State of California and the United States applicable to the design and construction of the Project, including but not limited to, applicable state and federal environmental laws, such as the California Environmental Quality Act (“CEQA”), the National Environmental Policy Act (“NEPA”), California Public Resources Code section 21000 et seq., and the Federal Species Act and the California Endangered Species Act, (collectively “Environmental Laws”).
E. To the extent permitted by law, indemnify and hold harmless CVWD, its official, offers, agents, employees and authorized volunteers from and against any and all claims, demands, losses or liability of any kind or nature (“Claims”) which CVWD, its officials, officers, agents, employees and authorized volunteers may sustain or incur for Cities’ noncompliance with the laws, regulations, and ordinances listed above, arising out of or in connection with the improvements and Project, except for Claims resulting from the sole established negligence, willful misconduct or active negligence of CVWD, its officials, officers, agents, employees or authorized volunteers.
F. Prior to construction of the Project, to submit the Project’s construction plans (“Plans”) to CVWD for CVWD’s review and approval, which shall not be unreasonably withheld. CVWD shall approve or disapprove the Plans in writing within a reasonable amount of time after submittal to CVWD. In the event CVWD disapproves the Plans, Cities shall modify the Plans in accordance with the reasons given for disapproval and shall resubmit the revised Plans to CVWD for approval. This procedure shall continue until the Plans have been approved by CVWD.
G. To not allow any utilities to be constructed within the Project or CVWD Property without prior approval from CVWD, which shall not be unreasonably withheld.
Item 1I - Page 8
H. To provide certain insurance requirements, including the following:
i. Cities, along with any contractors or subcontractors of the Cities, shall throughout the term of the Agreement, comply and maintain the insurance coverages described in the Exhibit A.
ii. CVWD’s insurance requirements are periodically updated to reflect adjustments in insurance amounts and types of coverage. CVWD will provide written notice to the Cities of changes in the insurance requirements, after which the Cities will have thirty (30) calendar days within which to implement any changes and provide proof of coverage.
I. To provide certain operation and maintenance responsibilities, including the following:
i. Operate and maintain the Project and the existing road bridge.
ii. Maintain concrete apron and associated cutoff walls beneath the bridge, as detailed in Exhibit C.
iii. Prohibit and enforce, to the extent permitted by the law, the prohibition on camping or overnight occupancy on the Project. Post appropriate signage at the Project location to provide notices of these prohibited activities.
iv. Maintain reasonable security precautions and programs to protect the Project against vandalism, graffiti, theft, arson, or other similar actions.
v. Allow CVWD access for purposes related to the operation, maintenance, and repair of CVWD Stormwater Facilities.
vi. Cities shall notify CVWD Right-of-Way Division a minimum of 72-hours for any planned maintenance activities by Cities’ staff.
vii. For emergency repairs and maintenance, the Cities shall endeavor to notify CVWD as soon as possible about the emergency repairs.
viii. If the Cities contract any of the operations, maintenance, repairs, and construction work, the Cities’ contractor shall apply for a construction permit with CVWD Right-of-Way Division and comply with all the requirements including insurance and indemnification. The Cities’ Contractor (as defined herein) shall allow for a minimum of 30 calendar days for CVWD to process the construction permit.
J. To follow certain pre-construction requirements, including the following:
i. Following receipt of CVWD’s approval of the Plans and prior to construction, Cities shall do the following:
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a. Employ, a qualified contractor or contractors (collectively, “Cities’ Contractor”) properly licensed by the State of California, to construct and complete the Project.
b. Invite a CVWD representative to any pre-bid meetings for the Project.
c. Require Cities’ Contractor to hold a preconstruction meeting with CVWD a minimum of 7 calendar days before mobilization to the Project. At such meeting there shall be at least one (1) representative of CVWD, Cities and Cities’ Contractor. At such meeting (or, prior to), Cities shall pay to CVWD an inspection services deposit for inspection services required by CVWD.
CVWD shall deduct from said inspection services deposit all reasonable expenses of CVWD, including, but not limited to, CVWD’s agents, employees, consultants, or independent
contractors, to inspect the Project. CVWD shall handle such deposit consistent with CVWD’s rules, regulations and procedures with respect to such deposits. The inspection services deposit is a minimum required amount and may be modified in CVWD’s sole discretion, based on the project size, complexity, or impacts to CVWD. CVWD may elect to use consultants to perform the inspection services for this Project based on either technical needs and/or staff availability.
K. To follow certain construction requirements, including the following:
i. Cities’ Contractor shall name CVWD as an additional insured in the insurance policies provided by Cities’ Contractor pursuant to the Cities’ construction contract with the Cities’ Contractor.
ii. Cities shall include CVWD and the CVWD Indemnitees as defined herein, as indemnitees in the indemnification clause in the Cities’ construction contract with the Cities’ Contractor.
iii. Cities shall require the Cities’ Contractor to comply with the applicable Occupational Safety and Health Administration (“OSHA”) standards and requirements, including, but not limited to, submitting construction and shoring plans.
iv. Cities shall pay all valid and undisputed charges from all contractors, subcontractors and suppliers supplying goods or services to Cities for the Project and shall keep the Project free and clear of any liens related to such charges. Cities shall indemnify CVWD for all claims, losses, damages, liabilities and expenses resulting from any liens filed against Project in connection with such charges; provided, however, that Cities shall have the right to contest any such lien, so long as it provides a statutory bond or other reasonable assurances of payment that either remove such lien from title to the Project or that assure that any adverse Item 1I - Page 10
judgment with respect to such lien will be paid without affecting title to the Project.
v. The Project shall be installed in strict compliance with the approved Plans. Any request for deviations from the approved Plans related to CVWD’s Stormwater Facilities must be submitted to CVWD in writing by the Cities and shall include approval by the Project’s engineer-of-record.
The Cities shall provide CVWD with 21 calendar days to review and approve any proposed changes to the approved Plans. CVWD shall not be responsible for any cost or schedule impacts due to any changes to the Plans except to the extent caused by not reviewing and approving proposed changes to the Plans in a timely manner. At Cities’ sole risk, Cities’ Contractor may construct CVWD facilities that deviate from the approved Plans. However, the deviated work is subject to rejection at no cost to CVWD, if CVWD does not subsequently approve the proposed changes to the Plans.
vi. Construction of the Project will be limited to the Temporary Construction Easements as shown in Drawing Nos 49187 through 49203. The Temporary Construction Easement shall expire when the Cities files and records a Notice of Completion with the County of Riverside.
vii. Cities shall provide CVWD representatives with reasonable access for inspection purposes. It is understood and agreed that CVWD’s inspection personnel shall have the authority to enforce the Plans with the Cities.
Nothing herein shall be construed to grant CVWD direct control over Cities’ Contractor or anyone but Cities or its designee. CVWD’s inspection does not include inspection for compliance with safety requirements by Cities’ Contractor. Any inspection completed by CVWD shall be for the sole use and benefit of CVWD, and neither Cities nor any third party shall be entitled to rely thereon for any purpose. CVWD does not undertake or assume any responsibility for or owe a duty to select, review or supervise the creation of the Project. CVWD shall direct all concerns regarding the construction of the Project to the Cities.
viii. Upon completion and acceptance of the Project, Cities shall provide CVWD a recorded copy of the Notice of Completion.
ix. Cities warrant and represent to CVWD that the Cities’ Contractor shall provide a guarantee that the Project will be free from construction defects for twelve (12) months from the date of the Notice of Completion recorded with the County of Riverside.
2. CVWD Responsibilities
A. To review the Plans, any proposed deviations from the approved Plans that may affect CVWD’s ability to operate and maintain CVWD’s Stormwater Facilities, RFIs, and construction submittals and provide Cities approval or disapproval with comments in writing.
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B. Attend any pre-bid meetings during the Cities bidding process.
C. Attend any pre-construction meeting prior to commencement of construction of the Project.
D. Maintain the new concrete slope protection on the west side of the channel starting where it meets with the concrete apron cutoff wall at Station 7+24.93 south to Station 5+91.27, detailed in Exhibit C.
E. Provide Cities ongoing access to the Project site and CVWD’s Stormwater Facilities for the purpose of performing their obligations required by this Agreement.
3. Indemnity
A. T o the extent permitted by law, the Cities, on their own behalf and on behalf of successor entities, shall defend, indemnify and hold CVWD, its officers, directors, administrators, representatives, consultants, engineers, employees and agents, their successors and assigns ( collectively, "CVWD lndemnitees") free and harmless from and against any and all claims, actions, causes of action, damages, demands, liabilities, costs (including, without limitation, reasonable attorneys' fees), losses and expenses of every type and description ("Claims" and "Costs") to which CVWD Indemnitees may be subjected resulting from or arising out of this Agreement or the construction, installation, repair, maintenance and operation of the Project on the Property to the extent caused by the negligence or willful misconduct of the Cities. The forgoing indemnity shall not apply to the extent that such Claims and Costs are ultimately established by a court of competent jurisdiction to have been caused by the negligence or willful misconduct of CVWD Indemnitees. All who enter upon the Property pursuant to this Agreement shall do so at their own risk and shall at all times comply with all reasonable instructions and directions of CVWD. CVWD shall make all decisions regarding its representation in any legal proceeding described in this Indemnity Section. The Cities shall not settle any claim without prior written consent of CVWD, which shall not be unreasonably withheld. If the Cities fail to indemnify CVWD, CVWD shall have the right, but not the obligation, to defend against the matters described herein and charge all actual Costs of such defense to the Cities and recover the same from the Cities to extend of the Cities’ proportional fault.
B. Storm, surface, ground, nuisance, or other waters may be encountered at various times during construction of the Project and/or maintenance activities thereafter.
The Cities hereby acknowledges and agrees that there are certain inherent risks and dangers associated with such waters; and that, except as expressly set forth herein, it knowingly and voluntarily accepts and assumes responsibility for, each of these risks and dangers, and all other risks and dangers that could arise out of, or occur during, construction of the Project and/or maintenance activities.
Such inherent risks and dangers include, but are not limited to: flooding, health hazards, slippery ground, uneven surfaces, and debris.
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C. CVWD shall not be responsible for construction or maintenance of any part of the Project either within or outside the Property area. If the Cities construction and/or maintenance activities cause damage to CVWD Stormwater Facilities, and the Cities does not repair or restore the same after proper written notice from CVWD in a timely manner, CVWD may repair or restore the same and the Cities and the Cities' successor entities shall reimburse any cost incurred by CVWD in repairing such damage. Such undisputed costs shall be paid by the Cities and its successor entities within thirty (30) calendar days following receipt of an invoice from CVWD.
4. Conflict of Interest
A. The Cities shall not engage directly or indirectly in any activity which materially conflicts with the Cities' faithful performance of services, commitments, and obligations undertaken to be performed pursuant to this Agreement.
5. Termination
A. I n the event the Cities fails to perform any material obligation required by this Agreement, CVWD shall demand in writing that the Cities cure such non- performance. The Cities shall have thirty (30) calendar days after receipt of such demand to commence curing the non-performance. In the event the Cities fails to commence curing such a non-performance within the thirty (30) day period, CVWD may terminate this Agreement. Following termination, CVWD shall have the right to take whatever steps it deems necessary to correct the Cities' deficiencies, including but not limited to, hiring a third-party to perform the Cities' obligations and charge the cost thereof to the Cities, who shall be liable for the full cost of CVWD's corrective action, including reasonable overhead, attorneys' fees, and a ten percent (10%) supervision fee shall be due and payable within thirty (30) days of invoice by CVWD.
B. In the event CVWD fails to perform any obligation required by this Agreement, the Cities shall demand in writing that CVWD cure such non-performance.
CVWD shall have thirty (30) calendar days after receipt of such demand to commence curing such non-performance. In the event the CVWD fails to commence curing such non-performance within the thirty (30) day period, the Cities may terminate this Agreement.
C. Notwithstanding any other provision, this Agreement may be terminated by CVWD as to all or any portion of the Property if CVWD determines that such termination is necessary in order to protect human lives or property against those hazards for which CVWD has responsibility as a public agency. Prior to such termination, CVWD such meet and confer with Cities regarding the termination and discuss options to continue the Agreement. Any such termination will be effected with maximum possible notice to the Cities consistent with the nature of circumstances threatening public safety.
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6. General Provisions
A. Notices
i. All notices under this Agreement shall be in writing and mailed (registered or certified, postage prepaid, return receipt requested), or by express carrier (return receipt requested) or hand delivered to Parties the addresses set forth below. All such notices shall, if hand delivered, or delivered by express carrier, be deemed received upon delivery and, if mailed, be deemed received three (3) business days after such mailing.
CVWD:
Coachella Valley Water District
Attention: J. M. Barrett, General Manager
Post Office Box 1058
Coachella, CA 92236
CITY OF PALM SPRINGS:
City of Palm Springs
Attention: City Engineer
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
CITY OF CATHEDRAL CITY:
City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
B. Waiver
i. Except as otherwise expressly provided in this Agreement, no waiver by a Party of any breach of this Agreement or of any warranty or representation hereunder by the other Party shall be deemed to be a waiver of any other breach by such other Party (whether preceding or succeeding and whether or not of the same or similar nature) and no acceptance of payment or performance by a Party after any breach by the other Party shall be deemed to be a waiver of any breach of this Agreement or of any representation or warranty hereunder by such other Party whether or not the first Party knows such breach at the time it accepts such payment or performance. Except as otherwise expressly provided in this Agreement, no failure or delay by a Party to exercise any right it may have by reason of the default of the other Party shall operate as a waiver of default or modification of this Agreement or shall prevent the exercise of any right by the first Party while the other Party continues to be so in default.
C. Governing Law
i. The rights and obligations of the parties and the interpretation and performance of this Agreement shall be governed by the laws of the State of California, excluding its conflicts of rules of law.
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D. Jurisdiction and Venue
i. The Parties agree that venue for any action brought to enforce the terms of this Agreement or arising out of this Agreement shall be in a court of competent jurisdiction in the County of Riverside, California, and consent to the jurisdiction thereof.
E. Counterparts; Entirety
i. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. The Parties agree that this Agreement constitutes the entire and only Agreement between the parties with reference to the subject matter hereof and supersedes any prior Agreement, oral or written, with respect thereto.
F. Modification
i. The provisions of this Agreement may not be amended, changed or modified orally, except by an Agreement in writing signed by the Party against whom any amendment, change or modification is sought.
G. Severability
i. Any provision of this Agreement adjudicated by a court of competent jurisdiction to be invalid or unenforceable for any reason shall be ineffective to the extent of such prohibition or invalidity and shall not invalidate or otherwise render invalid or unenforceable any remaining provisions of this Agreement.
H. No Interpretation Against the Drafter
i. This Agreement is the product of negotiations between the Parties hereto represented by counsel and any rules of construction relating to interpretation against the drafter of an Agreement shall not apply to this Agreement and are expressly waived by the Parties hereto.
I. Assignability
i. This Agreement shall not be assigned by any Party without prior written consent of the other Parties.
J. Time
i. Time is of the essence for this Agreement.
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K. No Third Party Beneficiaries
i. Except as set expressly set forth herein, no third party shall have the right to enforce any term of this Agreement.
[REMAINDER OF PAGE LEFT BLANK – SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first set forth above.
Dated: THE CITY OF PALM SPRINGS, a
California municipal corporation
By:
Name
Title City Manager
Dated: THE CITY OF CATHEDRAL CITY, a
California municipal corporation
By:
Name
Title City Manager
Dated: CVWD:
COACHELLA VALLEY WATER DISTRICT,
a public agency of the State of California
By:
J. M. Barrett
General Manager
ATTEST:
Sylvia Bermudez
Clerk of the Board
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EXHIBIT LIST
EXHIBIT “A” INSURANCE
EXHIBIT “B” INDEMNITY
Exhibit “C” CHANNEL MAINTENANCE RESPONSIBILITY PLAN
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EXHIBIT “A”
INSURANCE REQUIREMENTS
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EXHIBIT “A”
INSURANCE REQUIREMENTS
1. MINIMUM SCOPE AND LIMIT OF COVERAGE . Prior to and at all times after executing the Agreement, Developer shall procure and maintain, at its sole cost , for the duration of Developer’s obligations hereunder, not less than the following coverage and limits of insurance with insurers and under policy forms satisfactory to CVWD. (a) Commercial General Liability Insurance written on an occurrence basis of at least $2,000,000 per occurrence/$4,000,000 aggregate providing coverage for ongoing and products and completed operations, property damage, bodily injury, personal and advertising injury, property damage, and premises/operations liability.
(i) Coverage for Commercial General Liability insurance shall be at least as broad as Insurance Services Office Commercial General Liability coverage form (Occurrence Form CG 00 01) or exact equivalent. (ii) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement. (iii) The policy shall be endorsed to name Coachella Valley Water District, its employees, directors, officers, and agents as additional insureds using ISO endorsement forms CG 20 10 07 04 and 20 37 07 04, or endorsements providing the exact same coverage.
(b) Commercial Automobile Liability Insurance written on a per occurrence basis of at least $1,000,000 per occurrence for bodily injury and property damage. (i) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto)
(ii) The policy shall be endorsed to name Coachella Valley Water District, its employees, directors, officers, and agents as additional insureds.
(c) Workers’ Compensation Insurance /Employers Liability as required by the State of California with statutory limits or be legally self -insured pursuant to Labor Code section 3700 et . seq. along with Employer’s Liability limits of no less than $1,000,000 per occurrence for bodily injury or disease. The workers compensation insurer shall agree, using form WC 00 03 13 or the exact equivalent to waive all rights of subrogation against Coachella Valley Water District, its employees, directors, officers, and agents.
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2. OTHER INSURANCE PROVISIONS . All of Developer’s policies shall meet the following requirements and contain all specified provisions/endorsements noted hereunder.
(a) Insurers shall provide CVWD at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that insurers shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non -payment of premium. In the event any insurer issuing coverage hereunder does not agree to provide notice of cancellation to CVWD, Developer shall assume such obligation and provide written notice of cancellation in accordance with the above. If any of the required coverage is cancelled or expires during the term of this Agreement, Developer shall deliver renewal certificate(s) including endorsements to CVWD at least ten (10) days prior to the effective date of cancellation or expiration.
(b) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Developer’s policy is primary insurance and that any insurance, self -insurance or other coverage maintained by CVWD or any additional insureds shall not be called upon to contribute to any loss. (c) All required insurance coverages shall contain a provision, or be endorsed, to waive subrogation in favor of the Coachella Valley Water District, its employees, directors, officers, and agents or shall specifically allow Developer to waive its right of recovery prior to a loss. Developer hereby waives its own right of recovery against Coachella Valley Water District, its employees, directors, officers, and agents.
(d) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, CVWD has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CVWD will be promptly reimbursed by Developer. In the alternative, CVWD may cancel this Agreement. (e) CVWD may require Developer to provide complete copies of all insurance policies and endorsements in effect for the duration of the Agreement. (f) Developer shall not allow any of its contractors, consultants, subcontractors or subconsultants to commence work under this Agreement until Developer has verified that contractors, subcontractors, consultants, or subconsultants have secured all insurance required herein, including waivers of subrogation and other endorsements. Policies of commercial general liability insurance provided by such contractors, consultants, subcontractors or subconsultants shall be endorsed to name Coachella Valley Water District, its employees, directors, officers, and agents as additional insureds using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Developer, CVWD may approve different scopes or minimum limits of insurance for particular contractors, consultants, subcontractors or subconsultants.
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(g) The general liability program and automobile liability program may utilize either deductibles or provide coverage excess of a self -insured retention, subject to written approval by CVWD, and provided that such deductibles shall not apply to CVWD as an additional insured.
(h) Claims made policies are not acceptable.
3. VERIFICATION OF COVERAGE . Prior to execution of the Agreement, Developer shall file with CVWD evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the Certificate of Insurance (Acord Form 25 -S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. All policies required shall be issued by acceptable insurance companies, as determined by CVWD. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
4. LIABILITY NOT LIMITED. Defense costs shall be payable in addition to the limits set forth herein. Requirements of specific coverage or limits contained herein are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve Developer from liability in excess of such coverage, nor shall it limit Developer’s indemnification obligations to CVWD and shall not preclude CVWD from taking such other actions available to CVWD under other provisions of the Agreement or law.
5. AVAILABLE LIMITS . Notwithstanding the minimum limits set forth above, any available insurance proceeds in excess of the specified minimum limits of coverage shall be available to the parties required to be named as additional insureds.
6. RESERVATION OF RIGHTS. CVWD reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
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EXHIBIT “B”
INDEMNITY PROVISION
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EXHIBIT “B”
INDEMNITY
Developer shall assume the defense of, indemnify and hold harmless CVWD and its officers, directors, administrators, representatives, consultants, engineers, employees and agents, and their respective successors and assigns (collectively, “CVWD Indemnitees”) and each and every one of them, from and against all actions, causes of action, damages, demands, liabilities, costs (including, but not limited to reasonable attorneys’ fees), claims, losses and expenses of every type and description (collectively, “Costs”) to which they may be subjected or put, by reason of, or resulting from: (A) this Agreement: (B) the design, engineering and construction of the Domestic Water System: (C) the performance of or failure to perform, the work covered by this Agreement which is caused or occasioned by any act or neglect on the part of Developer or its Representatives (as defined below); (D) any death, injury, property damage, accident or casualty caused or claimed to be caused by Developer or its Representatives or including Developer or its Representatives or its or their property; (E) any breach by Developer of its obligations under this Agreement; and (F) any enforcement by CVWD of any provision of this Agreement. The foregoing indemnity shall not apply to the extent any such Costs are ultimately established by a court of competent jurisdiction to have been caused by the gross negligence or willful misconduct of CVWD Indemnitees or any of them. CVWD shall make all decisions with respect to its representation in any legal proceeding concerning this Section. If Developer fails to do so, CVWD shall have the right, but not the obligation, to defend the same and charge all of the direct or incidental costs of such defense, including fees and costs, to Developer and to recover the same from Developer. The term “Representatives” shall mean employees, representatives, agents, contractors, subcontractors or any other persons directly or indirectly employed by any of the foregoing or reasonably under the control of any of the foregoing or for whose acts any of the foregoing may be liable. No provision of this Agreement shall in any way limit the extent of the responsibility of Developer for payment of damages resulting from its operations or the operations of any of its Representatives. Developer further covenants and agrees to pay, or reimburse CVWD Indemnitees, or any of them for any and all Costs in connection with the investigating, defending against or otherwise in connection with Developer’s obligations pursuant to this Agreement, except liability arising through the gross negligence or willful misconduct of CVWD Indemnitees, or any of them.
CVWD shall have the right, at Developer’s expense, to commence, to appear in, or to defend any action or proceeding arising out of or in connection with this Agreement, and in connection therewith, may pay all necessary expenses if Developer fails upon reasonable notice to so commence, appear in or defend any action or proceeding with counsel reasonably acceptable to CVWD. Developer shall be furnished with copies of bills relating to the forgoing upon request.
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EXHIBIT “C”
CHANNEL MAINTENANCE RESPONSIBILITY PLAN
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CITY COUNCIL STAFF REPORT
DATE: JUNE 13, 2024 CONSENT CALENDAR
SUBJECT: AN APPLICATION BY JANE LUNDIN REPRESENTED BY THE PALM
SPRINGS PRESERVATION FOUNDATION FOR HISTORIC
DESIGNATION OF “THE M.H. ATIKIAN BUILDING” LOCATED AT 120 WEST ARENAS ROAD, CASE HSPB #147 (APN #513-143-006)
FROM: Scott C. Stiles, City Manager
BY: Department of Planning Services
SUMMARY:
The M.H. Atikian Building is a two- story commercial building in the Central Business District (CBD) designed by architect William F. Cody in 1950. The applicant is requesting historic designation of the commercial property.
Staff initially recommended that the site not be designated at this time due to significant alterations that have diminished the building’s historic integrity. The HSPB heard the request for designation on October 6, 2023 and recommended City Council designate the property as a Class 2 historic site.
The City Council heard the item on April 25, 2024 and continued the item to May 23, 2024 in order to ask the owner questions about their intent for future restoration of the property.
At the continued hearing of May 23, 2024, the owner’s representative indicated there is no intent to undertake restoration at this time. At the conclusion of the hearing, t he City Council voted 2-2 with one absence. In accordance with the Council’s Rules of Procedure, a tie vote without all members present automatically continues the item to the next meeting date where it can be considered by all members. Accordingly, the application is returning to the City Council with HSPB’s recommendation per the attach ed draft resolution.
The April 25, 2024 staff report and associated materials can be found here .
The May 23, 2024 staff report and associated materials can be found here .
Item 1J - Page 1
City Council Staff Report
June 13, 2024 – Page 2
Historic Designation – The M.H. Atikian Building
RECOMMENDATION:
1. A dopt Resolution No. _____, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, DESIGNATING “THE M.H. ATIKIAN BUILDING” LOCATED AT 120 WEST AREANS ROAD, AS A CLASS 2 (HISTORIC MERIT) HISTORIC RESOURCE HSPB #1 47, SUBJECT TO CONDITIONS (APN #513-143-006).
REVIEWED BY:
Department Director: Christopher Hadwin
Deputy City Manager: Flinn Fagg
City Manager: Scott Stiles
ATTACHMENTS:
A. Draft Resolution
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ATTACHMENT A
Item 1J - Page 3
RESOLUTION NO._____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS, CALIFORNIA, DESIGNAT ING “ THE M.H. ATIKIAN
BUILDING” LOCATED AT 120 WEST ARENAS ROAD, A CLASS 2
HISTORIC SITE, (HSPB #147), APN# 513-143-006.
THE CITY COUNCIL FINDS AND DETERMINES AS FOLLOWS:
A. WHEREAS, Chapter 8.05 of the Palm Springs Municipal Code allows for the designation of historic sites and districts; and
B. WHEREAS, Jane Lundin, Represented by the Palm Springs Preservation Foundation, submitted an application seeking historic site designation of the M.H. Atikian Building located at 120 West Arenas Road; and
C. WHEREAS, in September , 202 3, members of the Historic Site Preservation Board (HSPB) and City staff conducted site inspections of the proposed historic resource; and D. WHEREAS, on October 2, 2023, a noticed public he aring of the Palm Springs Historic Site Preservation Board to consider Case HSPB #147 was held in accordance with applicable law; and
E. WHEREAS, at the said hearing, t he HSPB carefully reviewed and considered all the evidence presented in connection with the hearing on the project, including, but not limited to, the staff report and all written and oral testimony and voted unanimously to recommend that the Council designate the M.H. Atikian Building a Class 2 (Historic Merit) historic resource; and F. WHEREAS, on April 25, 2024, May 23, 2024, and June 13, 2024 a noticed public hearing of the Palm Springs City Council to consider Case HSPB #147 was held in accordance with applicable law; and
G. WHEREAS, at the said hearing, the City Council carefully reviewed and considered all the evidence presented in connection with the hearing on the project, including, but not limited to the staff report and all written and oral testimony.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS RESOLVES:
SECTION 1: FINDINGS – PART “A”, CRITERIA FOR HISTORIC RESOURCES.
Ev
aluation of the Application. Pursuant to Municipal Code Section 8.05.070 (C,1), the City Council shall evaluate the application and make findings in conformance with the following criteria:
Cr
iteria for the Designation of Class 2 Historic Resources. A site, structure, building or object may be designated as a Class 2 historic resource, provided the following findings are met:
a. The site, structure, building or object exhibits exceptional historic Item 1J - Page 4
Resolution No.____
June 13, 2024
significance and meets one or more of the criteria listed below:
The Atikian building is a two-story mixed-use commercial building designed by master architect William F Cody and located on a prominent commercial corner in downtown Palm Springs. The period of significance is 1950, the date of construction. The original 1950 drawings from the office of William F. Cody clearly show the building was intended to be visually unique, engage pedestrians, and embrace the aesthetics of mid- century desert architecture. Despite some alterations over time, the building meets criteria for a Class 2 historic resource as detailed below.
(Criterion 1) The resource is associated with events that have made a meaningful contribution to the nation, state, or community;
No information was provided indicating any significant event was directly associated with this site. The site does not qualify under Criterion i.
(Criterion 2) The resource is associated with the lives of persons who made a meaningful contribution to national, state, or local history;
The report provides background information on Mesrab Housep (“M.H.”) Atikian who commissioned architect William F. Cody to design the building. A prominent jeweler and art collector, M.H. Atikian moved to Palm Springs in 1949 with his mother with plans to open a new business. Although Atikian was a prominent businessman in Palm Springs, there’s no information to find that he made a meaningful contribution to national, state, or local history.
Therefore, the City Council finds the building does not meet Criterion ii.
(Criterion 3) The resource reflects or exemplifies a particular period of national, state, or local history;
During the Post World War II period, architecture in the desert was taking cues from many different movements. Young architects in the valley began experimenting with different building materials and architectural principles to develop their own unique modern aesthetic in the desert.
Materials such as steel and glass started to be used, and the ideals of influential architects like Frank Llyod Wright and his principals on “organic architecture” had an impact. In the case of the M.H. Atikian Building, the design incorporates materials such as exposed stone and redwood that connect to the natural environment. The horizontal emphasis of the building and the use of glass and steel hint at the exposure to design principles of the International Style. Cody’s design of the Atikian building reflects his unique application of specific design trends and thoughts of his time. The City Council finds that the building meets Criterion iii as a significant example of a commercial building that reflects the design aesthetics of the Post World War II period and of desert Modern architecture.
(Criterion 4) The resource embodies the distinctive characteristics of a type, period, or method of construction;
Unlike the National Register criterion concerning construction, the Palm Springs evaluation of construction addresses the type (of construction), the period (of construction) and the method (of construction). Because of the removal of some original character-defining features and materials, the City Council finds that the building does not Item 1J - Page 5
Resolution No.____
June 13, 2024
meet Criterion iv.
(Criterion 5) The resource presents the work of a master builder, designer, artist, or architect whose individual genius influenced his age, or that possesses high artistic value;
The site planning and the design of the two- story commercial building was by master architect William F. Cody. There was an intentional design process and visual appearance that responded to the client’s programming needs for the building and its location on a prominent commercial corner in downtown Palm Springs. Cody’s spirit of experimentation is seen in his design, specifically in the street -facing facades and site circulation. The juxtaposition of the thin glass storefronts sitting on top of masonry walls or planters that flows in and out of the building is an embodiment of the architectural thought during that time, as designers grappled with both Wrightian concepts of “organic architecture” and the visual aesthetics of the International Style.
Cody was a master architect who influenced his age and produced work that possesses high artistic value. There are few examples of his commercial work in Palm Springs. Therefore, the City Council finds that Criterion v is met.
(Criterion 6) The resource represents a significant and distinguishable entity whose components may lack individual distinction, as used in evaluating applications for designation of historic districts, for parcels on which more than one entity exists; or
No information has been provided that the resource qualifies under Criterion vi.
(Criterion 7) The resource has yielded or may be likely to yield information important to national, state or local history or prehistory.
No information has been provided on any pre-historic significance of the site.
SECTION 2: PART “B” ANALYSIS OF HISTORIC INTEGRITY.
Analysis of Integrity. (PSMC 8.05.070 (C,1,b). The site, structure, building, or object retains one or more of the following aspects of integrity, as established in the Secretary of the Interior’s Standards: integrity of design, materials, workmanship, location, setting, feeling, or association.
The City Council was unable to make the findings for Historic Integrity for the site to qualify as a Class 1 (Landmark) historic site.
SECTION 3: DEFINING HISTORIC CHARACTERISTICS
In considering a recommendation for historic resource designation it is important to distinguish those physical elements that are original or from the period of significance that contribute to the resource’s historic significance from alterations, additions or features that were added at a later time that may be sympathetic to the original character, but which may create a false sense of historicity. Distinguishing original character-defining features from non-original Item 1J - Page 6
Resolution No.____
June 13, 2024
elements aids staff and HSPB when it is tasked with evaluating future alterations to the historic resource.
Character-defining features of the resource are as follows:
• Site design and building placement on a prominent commercial corner. • Flat roof, two-story building
• Horizontal emphasis
• Mixed uses (commercial on the first floor and residential on the second) • Thin, flat roof overhangs (awnings) extending over the sidewalk that wrap around S. Palm Canyon Drive and W. Arenas Road (Note: this feature was rebuilt and reconfigured at the corners. The thickness of the roof does not appear to match historic photographs.) • Stone planters that interact with the glass storefronts o Triangulated hourglass -shaped planter along W. Arenas Road that connects the interior space with the exterior conditions.
• Window display cases
• Diverse paving materials and patterns
• Stone masonry walls on the lower half of the retail facades • Sawtooth shaped storefronts along W. Arenas Road (Note: those along S. Palm Canyon Drive have been removed)
• Second story horizonal siding (Note: original redwood replaced with metal siding) • Glass storefront windows that extend to the ceiling
Non-contributing elements:
• Outdoor metal stairs and concrete landing pad located in the former carport area. • Enclosed courtyard space with stairs to access the second floor (originally an open staircase and open-air courtyard along W. Arenas Road). • Paving stones along S. Palm Canyon which were installed by the City of Palm Springs to match the rest of the street for the “Walk of Stars.”
• Aluminum-framed storefronts in orthogonal patterns where it was originally angled all along S. Palm Canyon and western portions of the storefront on W. Arenas Road. • Style and dimensions of replacement windows on the second floor (originally long ribbon windows).
• Awning supports (the awning supports were originally square steel tubes as shown in the original design.)
• Gutters, downspouts, and flashing details.
SECTION 4: ENVIRONMENTAL ASSESSMENT
The proposed historic resource designation is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical changes to the environment, directly or indirectly.
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Resolution No.____
June 13, 2024
SECTION 5: CONDITIONS THAT APPLY TO HISTORIC SITES:
According to Section 8.05 of the Municipal Code, the following shall apply to a Class 2 Historic Resource:
1. It shall meet the definition of a Class 2 historic site as outlined in Municipal Code Section
8.05.020.
2. An archival file on the property shall be maintained by the City.
3. It may be qualified as ‘historic’ at the federal, state, and/or county level.
4. The structure/site may not be modified, nor objects removed without following the procedures outlined in Municipal Code Section 8.05.110 “Demolition or Alteration of Class 1 and Class 2 Historic Resources – Certificate of Appropriateness”.
5. A marker explaining the historic nature of the site may be installed at the site in a location viewable from the public way.
6. Compliance with all rules and regulations for Historic Sites and Historic Districts under Chapter 8.05 of the Municipal Code shall be required.
7. The site shall not be further subdivided.
8. The City Clerk shall submit the Council Resolution to the County recorder for recordation within 90 days of the effective date of the Council’s resolution.
Based upon the foregoing, the City Council hereby designates “The M.H. Atikian Building ” located at 120 West Arenas Road, a Class 2 (Historic Merit) Historic Resource (HSPB #147).
ADOPTED THIS THIRTEENTH DAY OF JUNE, 2024.
SCOTT STILES
CITY MANAGER
ATTEST:
BRENDA PREE, MMC
CITY CLERK
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
Item 1J - Page 8
Resolution No.____
June 13, 2024
I, BRENDA PREE, City Clerk of the City of Palm Springs, hereby certify that Resolution No. ____ is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this ______ day of ______________, _________.
BRENDA PREE, MMC
CITY CLERK
Item 1J - Page 9
CITY COUNCIL STAFF REPORT
DATE: JUNE 13, 2024 CONSENT CALENDAR
SUBJECT: A PPROVE CONTRACT SERVICES AGREEMENT NO. 24B101 WITH TIMBERLINE GSE INC. TO PURCHASE F OUR SWITCHBACK
PASSENGER BOARDING RAMPS FOR THE PALM SPRINGS
INTERNATIONAL AIRPORT
FROM: Scott C. Stiles, City Manager
BY: Department of Aviation
SUMMARY:
This action will approve Agreement No. 24B101 with Timberline GSE Inc., in an amount not to exceed $284,105, to purchase four switchback passenger boarding ramps for the Palm Springs International Airport (Airport) with warranty and maintenance services.
RECOMMENDATION:
1. Approve Contract Services Agreement 24B101 (Attachment A) with Timberline GSE Inc. to provide four switchback passenger boarding ramps for the Palm Springs International Airport with warranty and maintenance services in an amount not to exceed $284,105 for the initial two -year term beginning June 17 , 2024, through June 16, 2026.
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 April 23, 2024, Timberline GSE Inc. is registered in the State of Utah.
BACKGROUND:
The Airport has experienced ongoing fluctuations in passenger traffic flow, emphasizing the need for enhancements to improve accessibility and operational efficiency. Currently, the Airport utilizes two switchback passenger boarding ramps that serve all gates at the Agua Caliente Concourse and are utilized for the ground loading of passengers to and from the aircraft.
Item 1K - Page 1
City Council Staff Report
June 13, 2024 -- Page 2
Award Switchback Passenger Boarding Ramp Contract
The Airport’s current switchback passenger boarding ramps have played a pivotal role in establishing a smooth and accessible pathway between the terminal and aircraft doors, offering significant benefits to passengers with reduced mobility. The switchback passenger boarding ramps have also significantly improved the efficiency of both boarding and disembarking processes, contributing to the overall operational efficiency for airlines operating at the Airport. Additionally, these ramps are in align ment with the Airport's commitment to the Americans with Disabilities Act (ADA) compliance, ensuring that all passengers can navigate the facilities comfortably and safely.
STAFF ANALYSIS:
An Invitation for Bids (IFB 24-01) was initiated by the City’s Procurement and Contracting Department on March 25, 2024, based on the Department of Aviation specifications. Bids were solicited directly via the City’s procurement vendor portal, PlanetBids. In addition, the Invitation for Bids ( IFB 24-01) was advertised in The Desert Sun. Two bids were received by the April 23, 2024, deadline. Below are the two responsive bids:
Vendor Bid
Timberline GSE, Inc. – Richfield, UT $284,105.00
Keith Consolidated Industries, Inc. – White City, OR $300,544.00
Staff recommends approval of Contract Services Agreement No. 24B101 with Timberline GSE, Inc. for the two-year term in the amount not to exceed $284,105 effective June 17, 2024, through June 16, 2026. The scope is to include all services, equipment, and labor to deliver four new switchback passenger boarding ramps that meet the ADA compliance requirement.
Procuring four additional switchback passenger boarding ramps for the Agua Caliente Concourse will provide the following increased benefits for the Airport, airlines and passengers:
• Accessibility: Providing a direct and accessible pathway for passengers with reduced mobility between the terminal and aircraft doors. • Compliance: Ensuring compliance with ADA regulations and industry standards, thereby enhancing the overall airport safety and operations. • Efficiency: Streamlining boarding and disembarking processes to improve flight punctuality and operational efficiency for airlines.
• Enhanced Passenger Experience: Enhancing the passenger experience by providing a seamless boarding and disembarking process. • Space Optimization: Maximizing usage in limited boarding gate areas through thoughtful design.
Item 1K - Page 2
City Council Staff Report
June 13, 2024 -- Page 3
Award Switchback Passenger Boarding Ramp 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:
This item aligns with City Council Strategic Priority 2, Community Infrastructure, specifically 2A - Improve City Facilities.
FISCAL IMPACT:
Sufficient funds are available in Fiscal Year 2024-25 in the Department of Aviation, Airside Operations Account 4157030-40105.
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 24B101
B. Public Integrity Disclosure
Item 1K - Page 3
ATTACHMENT A
CONTRACT SERVICES AGREEMENT NO. 24B101
Item 1K - Page 4
CONTRACT SERVICES AGREEMENT 24B101
SWITCHBACK PASSENGER BOARDING RAMP FOR
PALM SPRINGS INTERNATIONAL AIRPORT
THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into on June 17, 2024, by and between the City of Palm Springs, a California charter city and municipal corporation (“City”), and Timberline GSE, Inc., a Utah corporation, (“Contractor”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”.
RECITALS
A. City requires qualified firm to provide switchback boarding ramps for the Palm Springs International Airport with warranty and 2 years of operation and maintenance services, (“Project”).
B. Contractor has submitted to City a Bid to provide switchback boarding ramps for the Palm Springs International Airport with warranty and 2 years of operation and maintenance services, 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.
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.
Item 1K - Page 5
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 $284,105.00.
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.
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 Item 1K - Page 6
m
unicipal 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 two years , commencing on June
17, 2024, and ending on June 16, 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.
Contractor may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.
5. COORDI
NATION 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: Wren Gardner, Administrator. 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 Item 1K - Page 7
City. Subcontracts, if any, shall contain a provisions making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City.
5.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Contractor, its agents, or employees, perform the Services required, except as otherwise specified. Contractor shall perform all required Services as an independent contractor of City and shall not be an employee of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role; however, City shall have the right to review Contractor’s work product, result, and advice. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City . Contractor shall pay all wages, salaries, and other amounts due personnel in connection with their performance under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance . Contractor shall not have any authority to bind City in any manner.
5.5 Personnel. Contractor agrees to assign the following individuals to perform the services in this Agreement. Contractor shall not alter the assignment of the following personnel 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:
Wren Gardner Administrator
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 Item 1K - Page 8
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 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.
Item 1K - Page 9
8.3 Ownership of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of this Agreement shall be the property of City. Contractor shall deliver all above-referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement . Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. Contractor may retain copies of such documents for Contractor's own use . Contractor shall have an unrestricted right to use the concepts embodied in such documents.
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 non- defaulting Party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of City shall be deemed to waive or render unnecessary City’s consent to or approval of any subsequent act of Contractor. Any waiver by either Party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement.
9.4 Rights and Remedies are Cumulative . Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative. 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.
Item 1K - Page 10
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 non-discrimination in city contracting.
11. MISCELLANEOUS PROVISIONS
11.1 Notice. Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person shall be in writing and either served personally or sent by pre- paid, first-class mail to the address set forth below .
Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed as provided in this Section. Either Party may change its address by notifying the other Party of the change of address in writing.
To City: City of Palm Springs
Attention: City Manager/ City Clerk
3200 E. Tahquitz Canyon Way
Palm Springs, California 92262
Item 1K - Page 11
To Contractor: Timberline GSE Inc.
Attention: Wren Gardner
2215 South Industrial Park Road
Richfield, UT 84754
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.
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 (“Fede ral Provisions”). With Item 1K - Page 12
respect to any conflict between such Federal Provisions and the terms of this Agreement and/or the provisions of state law, the more stringent requirement shall control.
[SIGNATURES ON NEXT PAGE]
Item 1K - Page 13
SIGNATURE PAGE TO CONTRACT SERVICES AGREEMENT
BY AND BETWEEN THE CITY OF PALM SPRINGS AND TIMBERLINE GSE, 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 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 1K - Page 14
EXHIBIT “A”
SCOPE OF SERVICES/WORK
Including,
Schedule of Fees
And
Schedule of Performance
Item 1K - Page 15
1.1 Background:
It is the intention of these specifications to describe the minimum acceptable standards for obtaining a new switchback passenger boarding ramp for use at the Palm Springs International Airport. The scope is to include all services, equipment, and labor to deliver a new switchback passenger boarding ramp that meets the ADA compliance requirement.
The equipment will be used for the ground boarding of passengers to and from aircraft.
The equipment shall include all the manufacturer’s standard equipment for the model in addition to the items required by this specification.
1.2 Scope:
1. Equipment Specifications
These specifications describe the City of Palm Springs requirements for a Switchback Passenger Boarding ramp. The following describes the City’s (Airport’s) minimum Technical Specifications for equipment, functionality, durability, serviceability, and economics.
a. This specification describes City of Palm Springs (Airport) technical specifications for a switchback passenger boarding ramp. The unit shall NOT be what is commonly known as an “Air Stairs”.
The unit CAN NOT have any stairs. The unit must be a Switchback Style Passenger Boarding Ramp unit consisting of multiple ramps that are adjustable to various aircraft sill heights as specified above. The unit must be capable of meeting the ADA passenger accessibility standards. b. Service Height: Capable of serving an aircraft’s official doorsill height at a minimum of 6’2” (190 cm) and at a maximum of 11’2” (340 cm) regardless of aircraft type. Must not exceed 11’2” feet when stowed.
c. Total Length of Unit: Not to exceed 45 feet.
d. Total Width of Unit: 17 feet or less.
e. Weight: The unloaded weight of unit and all parts shall not exceed 6,500 lbs. f. Walkway Width: Minimum width of 34”. Must accommodate 3- and 4 - wheeled mobility aids.
g. Handrail Surface: Coated in material designed for burn prevention should a user contact surface.
h. Walkway Surface: Coated in material designed to prevent slip and falls when surfaces are wet. Must be continuous and not have protrusions greater than 0.25 inches.
i. Operation: Towable
j. Deployment: The time required to deploy equipment and prepare standby/storage must be two minutes or less.
k. Design Stress: The stress levels for design must be based on the total of the structural weight plus the maximum carried passenger load. The design must be based on the highest stress occurring over the full range of motion with the load in the least favorable positions.
l. Wind Rating: The structure must withstand wind loads of up to 90 mph for 3 second gusts while in use, and up to 70 mph for sustained winds.
Item 1K - Page 16
m. Gradient Slope: The maximum angle for transition ramps should not be greater than 1:8.
n. Safety: The unit must be equipped with a stabilizing system for occupant safety while mated to the aircraft doorsill.
o. Tires: Shall be flat-free regardless of object it may run over. p. User Mobility Access: The unit must provide a means for boarding wheelchair users and other passengers with mobility impairments onto the ramp surface at ground level.
q. Training: The Contractor must, at no additional cost, provide trained personnel at the tie of delivery to adequately train airport/airline staff in the operation and maintenance of the unit.
Training must include written operating instructions that depict the step -by- step operating use of the unit. Written instruction must include, or be supplemented by, safety training materials which can be used to train subsequent new operators.
Training topics must include troubleshooting and problem solving, in the form of theory and hands-on training, for personnel designated by the City of Palm Springs.
r. Useful Total Life: The unit must be designed to perform its intended function for its “total life” period, when maintained according t o the manufacturer’s instructions. The “total life” for which the equipment is designed, assuming it is used and maintained in accordance with the Contractor ’s recommendations, must be a minimum of 2 years, based on a frequency of use of 1,000 cycles per year.
s. Supplemental Documentation: The Contractor must develop and provide to the City of Palm Springs written documentation on recommended preventative maintenance actions.
The Contractor must develop and provide to the City of Palm Springs written documentation on recommended cleaning procedures, including solvent types and tools.
The manufacturer must develop and provide to the City of Palm Springs written documentation on regularly scheduled maintenance inspection procedures. A focus on sensitive equipment and schedules timelines must be included in the documentation.
The manufacturer must develop and provide to the City of Palm Springs a parts list including associated replacement/repair costs. t. Operational Standards and Testing: Contractor shall be responsible for conducting tests to ensure that its equipment meets the operation and performance requirement it advertises. Certified records of these compliance tests shall be submitted by the manufacturer.
u. Post Delivery Inspection: Contractor shall provide a post -delivery inspection service of the equipment, approximately thirty (30) days after it is placed in service. The inspection shall include identifying signs of premature wear, verifying integrity of welds, check bearings.
Item 1K - Page 17
v. Delivery: Guaranteed delivery is required no later than forty w. Training: Contractor shall provide operational and repair troubleshooting training to staff or shall provide manual with sufficient instructions. x. Additional Replacement Parts: Contractor shall include 1 replacement tire for each unit. If multiple types of tires are equipment on each unit, the contractor shall include 1 replacement tire of each type for each unit in the bid. Contractor shall include 1 replacement spring shield/guard for each unit in the bid.
2. Warranty:
a. Price Warranty:
Contractor shall guarantee that prices for equipment and parts in the like grade and quantity will be as low as such equipment and parts sold through any other government contract or cooperative. Any time the prices are reduced or increased to the general trade, it is understood that the City of Palm Springs shall not pay a higher price than any other user effective with the date of such price reduction or increase to the general trade.
b. Equipment Warranty:
The contractor shall fully warrant all products including without limitation against any poor or inferior quality product for a period not less than one (1) year from the date of final acceptance of the product by the City. The contractor shall replace product in a timely manner so as to minimize the possible disruption of Airport operations resulting from the said product. Where applicable, all bids shall be accompanied by a copy description of the manufacturer’s warranty for the item(s) proposed and evidence that such a warranty is assignable to the City of Palm Springs or Palm Springs International Airport.
3. Parts and Services:
a. Service Capability
Contractor must have equipment , parts, and personnel available to service, maintain, overhaul, and repair the equipment within the warranty and service period.
b. Parts Pricing and Availability
The successful bidder agrees to offer OEM parts to the City of Palm Springs for the life of the equipment or as otherwise stated. The Contractor shall make deliveries within 48 hours when requested.
4. Compensation:
Work will be compensated on a lumpsum basis. Contract pricing includes purchase and delivery of 4 Switchback Passenger Boarding Ramps, 2-year operation and maintenance services, and warranty as outlined in the contract scope. No additional compensation will be due by the City unless the contract is modified work requested by the City.
Item 1K - Page 18
Item 1K - Page 19
ATTACHMENT G
BID FORM
l:NiV11TATION IP:OR. BIIDS {IFB 24•01)
SWITCHBACK PASSENGER BOARDING BRi DGIE
Responding1 to this IFS fur 4 switchback passenger boarding br"dge for Palm Springs International Airport. (PS
1 P), Uie undersigned bidder proposes and agrHs to provide the services and work in aocordance wrr~h the specirfications. Bidder proposes and agr,ees to furnish all labor, equi,pment, materials, supervision, and service necessary to complete said Work in accor-danoo with ~he Specifrications of i1e City of Pajlm Springs and will acoept as full payment therefore, the fo:Uowlng unit cost amounts. The City of Palm Springs wil1I not aooept any additional charges, fees, etc. that are not already included or Incorporated in tihe below unit costs.
ITEM DESCRl,PTION UINIT QUANTITY UNIIT PRICE SUBTOTAL
I
1 load ing Bridges Each 4 $67,750.00 $251,000 .00
2 Services Annually 2 $350 0.DO $7,000.00
3 Warranty Years 2 ·ncluded included
TOTAL (Enter this aR1ount i1n PlanetBids) $284, 1105.00 Attach Swirtchbaok Passen1ger Boarding Bridge specification sheets/ details to th"s form.
Firm Name: Timberlfne G SE Inc.
Signatu,o o< !\Juthorlzod Person: IA~ 'l)Jl(91
Printed Name: Wren Ga~dner
Title: Adminlstrstor
IDat,e: 4/17/2024
EXHIBIT “B”
INSURANCE PROVISIONS
Including
Verification of Coverage,
Sufficiency of Insurers,
Errors and Omissions Coverage,
Minimum Scope of Insurance,
Deductibles and Self-Insured Retentions, and
Severability of Interests (Separation of Insureds)
Item 1K - Page 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
___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 Invitation 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.
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 Item 1K - Page 21
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, effecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf . All proof of insurance is to be received and approved by the City before work commences . City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate:
A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
B. "This insurance is primary and non -contributory over any insurance or self - insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement).
C. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out.
D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
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 Item 1K - Page 22
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 1K - Page 23
EXHIBIT “C”
Item 1K - Page 24
ATTACHMENT ''f"
EXECUTIVE ORDER N-6-22 CERTilFICATION
,NVITAT ONI FOR BIDS (IFB 24-01}
SWITCHIB.ACK PASSENGER LOADING RAMIP
Executive Orde r N-6-22 1iss,ued by Governor Gavin Newsom on March 4, 2022, directs all agencies and dep,artments that are subject to the Govemor's authority to (a) termina1te any contracts witti any fndM duals or entires that are determined to be a target of economic sanottons aga inst IRussla and Russian entities and individua ls; and (b) refrain rrom enl-ering tnto any new contracts with such individua ls or entities whil!e the aforemen,tioned sanctions are in effect
Exec utive Order N~6-22 also requires that any contracto r that (1) currently has a contract wi1h the City of Palm Springs funded through grant funds provided by the Stal:e of California ; amt/or {2} submits a bid or proposal or otherwise proposes to or enrter into or renew a contract with the City of Palm Springs with State of Califomla , grant flmds, oertilfy that the person is not the larget of any econom ic sanctions aga inst Russia and Russian entities and individua ls.
The oontraotor hereby certifies, S.UBJECT 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 ts duly authorized to legal ly bind the Contracto r. To;s certification is made under the laws of the State of California.
S-•· 1/v!&U<l
Printed Name: Wren Gardner
Title'. Admlnistralor
Flrm Name: Timberline GSE Inc.
Date ; 4117/2024
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 1K - 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 1K - Page 26
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 substantially Item 1K - Page 27
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 1K - Page 28
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 1K - Page 29
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 1K - Page 30
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 1K - Page 31
FAA – 06 Civil Rights – Title VI Assurances
APPLICABILITY – required for all contracts.
REQUIREMENT -
Title VI List of Pertinent Nondiscrimination Acts and Authorities During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “Contractor”) agrees to comply with the following non- discrimination statutes and authorities; including but not limited to:
• Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin); • 49 CFR part 21 (Non -discrimination in Federally -Assisted programs of the Department of Transportation—Effectuation of Title VI of the Civil Rights Act of 1964); • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 USC § 4601) (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); • Section 504 of the Rehabilitation Act of 1973 (29 USC § 794 et seq.), as amended (prohibits discrimination on the basis of disability); and 49 CFR part 27 (Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance); • The Age Discrimination Act of 1975, as amended (42 USC § 6101 et seq.) (prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982 (49 USC § 47123), as amended (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987 (PL 100- 259) (broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms “programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act of 1990 (42 USC § 12101, et seq) (prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities) as implemented by U.S. Department of Transportation regulations at 49 CFR parts 37 and 38; • The Federal Aviation Administration’s Nondiscrimination statute (49 USC § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low- Income Populations (ensures nondiscrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations); • 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 Item 1K - Page 32
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:
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.
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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
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FAA – 08 Contract Work Hours and Safety Standards
APPLICABILITY – This provision is required for contracts as follows:
Contract Work Hours and Safety Standards Act Requirements (CWHSSA) (40 USC §§ 3702 & 3704) requires contractors and subcontractors on covered contracts to pay laborers and mechanics employed in the performance of the contracts not less than one and one- half times their basic rate of pay for all hours worked over 40 in a workweek. CWHSSA prohibits unsanitary, hazardous, or dangerous working conditions on federally-assisted projects. The Wage and Hour Division (WHD) within the U.S. Department of Labor (DOL) enforces the compensation requirements of this Act, while DOL’s Occupational Safety and Health Administration (OSHA) enforces the safety and health requirements.
Contract Types –
Construction – This provision applies to all contracts and lower tier contracts that exceed $100,000, and employ laborers, mechanics, watchmen, and guards.
Equipment – This provision applies to any equipment project exceeding $100,000 that involves installation of equipment onsite (e.g., electrical vault equipment). This provision does not apply to equipment acquisition projects where the manufacture of the equipment takes place offsite at the vendor plant (e.g., ARFF and SRE vehicles).
Professional Services – This provision applies to professional service agreements that exceed $100,000 and employs laborers, mechanics, watchmen, and guards. This includes members of survey crews and exploratory drilling operations.
Property – While most land transactions do not involve employment of laborers, mechanics, watchmen, and guards, under certain circumstances, a property acquisition project could require such employment. Examples include the installation of property fencing or testing for environmental contamination
CONTRACT WORKHOURS AND SAFETY STANDARDS ACT REQUIREMENTS
1. Overtime Requirements.
No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic, including watchmen and guards, in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
2. Violation; Liability for Unpaid Wages; Liquidated Damages.
In the event of any violation of the clause set forth in paragraph (1) of this clause, the Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this clause, in the sum of $29 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this clause.
3. Withholding for Unpaid Wages and Liquidated Damages.
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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 publ ic works, financed in whole or in part by the United States, to give up any part of the compensation to which that person is entitled under a contract of employment. The Copeland Act also requires each contractor and subcontractor to furnish weekly a statement of compliance with respect to the wages paid each employee during the preceding week.
Contract Types –
Construction – This provision applies to all construction contracts and subcontracts financed under the AIP that exceed $2,000.
Equipment – This provision applies to all equipment installation projects (e.g., electrical vault improvements) financed under the AIP that exceed $2,000. This provision does not apply to equipment acquisitions where the equipment is manufactured at the vendor’s plant (e.g., SRE and ARFF vehicles).
Professional Services –The emergence of different project delivery methods has created situations where Professional Service Agreements (PSAs) include tasks that meet the definition of construction, alteration, or repair as defined in 29 CFR Part 5. If such tasks result in work that qualifies as construction, alteration, or repair and it exceeds $2,000, the PSA must incorporate the Copeland Anti-kickback provision.
Property –Ordinarily, land acquisition projects would not involve employment of laborers or mechanics and thus the Copeland Anti-Kickback provision would not apply. However, land projects that involve installation of boundary fencing and demolition of structures would involve laborers and mechanics. The City must include this provision if the land acquisition project involves employment of laborers or mechanics for a contract exceeding $2,000.
REQUIREMENT -
Contractor must comply with the requirements of the Copeland “Anti-Kickback” Act (18 USC 874 and 40 USC 3145), as supplemented by Department of Labor regulation 29 CFR part
3. Contractor and subcontractors are prohibited from inducing, by any means, any person employed on the project to give up any part of the compensation to which the employee is entitled. The Contractor and each Subcontractor must submit to the City, a weekly statement on the wages paid to each employee performing on covered work during the prior week. City must report any violations of the Act to the Federal Aviation Administration.
Reference: 2 CFR Part 200, Appendix II(D); 29 CFR Parts 3 and 5 Item 1K - Page 38
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 Item 1K - Page 39
for the classification of work actually performed, without regard to skill, except as provided in 29 CFR § 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein:
Provided, that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under (1)(ii) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can easily be seen by the workers. (ii)(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage determination;
(2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.
(C) In the event the Contractor, the laborers, or mechanics to be employed in the classification, or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30- day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(ii) (B) or (C) of this paragraph, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.
(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.
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(iv) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.
2. Withholding. The Federal Aviation Administration or the City shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the Federal Aviation Administration may, after written notice to the Contractor, City, Applicant, or Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.
3. Payrolls and Basic Records.
(i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker; his or her correct classification; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 1(b)(2)(B) of the Davis-Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the Contractor shall maintain records that show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual costs incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii)(A) The Contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit the payrolls to the applicant, the City, or Owner, as the case may be, for transmission to the Federal Aviation Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR § 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to Item 1K - Page 41
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 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.
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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 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 Item 1K - Page 43
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.
10. Certification of Eligibility.
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(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 Item 1K - Page 47
in a particular case as a matter of public necessity (e.g., safety), the City may provide a response period shorter than five days.
In addition to post-award terminations, the provisions of this section apply to preaward deletions of or substitutions for DBE firms put forward by offerors in negotiated procurements.
Reference: 49 CFR part 26
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FAA – 13 Distracted Driving
APPLICABILITY - contracts that exceed the micro-purchase threshold of 2 CFR § 200.320 (currently set at $10,000).
REQUIREMENT -
TEXTING WHEN DRIVING
In accordance with Executive Order 13513, “Federal Leadership on Reducing Text Messaging While Driving”, (10/1/2009) and DOT Order 3902.10, “Text Messaging While Driving”, (12/30/2009), the Federal Aviation Administration encourages recipients of Federal g rant funds to adopt and enforce safety policies that decrease crashes by distracted drivers, including policies to ban text messaging while driving when performing work related to a 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 1K - Page 50
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 Item 1K - Page 52
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 wor kers’ 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; Item 1K - Page 53
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. The Contractor is expected to make substantially uniform progress in meeting its goals in each craft during the period specified.
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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 eac h 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 Item 1K - Page 55
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 personnel and employment related activities to ensure that the EEO policy and the Contractor’s obligations under these specifications are being carried out.
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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 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 Item 1K - Page 57
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.
Reference: 2 CFR Part 200, Appendix II (C); 41 CFR Part 60-1 Item 1K - Page 61
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-procurement- guidelines-construction-products.
Section 6002(c) establishes exceptions to the preference for recovery of EPA -designated products if the contractor can demonstrate the item is:
a) Not reasonably available within a timeframe providing for compliance with the contract performance schedule;
b) Fails to meet reasonable contract performance requirements; or c) Is only available at an unreasonable price.
Reference: 2 CFR § 200.323, 2 CFR Part 200, Appendix II (J); 40 CFR part 247, 42 USC § 6901, et seq (Resource Conservation and Recovery Act)
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FAA – 22 Rights to Inventions
APPLICABILITY – Contract Types – This provision applies to all contracts and subcontracts with small business firms or nonprofit organizations that include performance of experimental, developmental, or research work. This clause is not applicable to construction, equipment, or professional service contracts unless the contract includes experimental, developmental, or research work.
REQUIREMENT -
Contracts or agreements that include the performance of experimental, developmental, or research work must provide for the rights of the Federal Government and the City in any resulting invention as established by 37 CFR part 401, Rights to Inventions Made by Non- profit Organizations and Small Business Firms under Government Grants, Contracts, and Cooperative Agreements. This contract incorporates by reference the patent and inventions rights as specified within 37 CFR §401.14. Contractor must include this requirement in all sub-tier contracts involving experimental, developmental, or research work.
Reference: 2 CFR § 200, Appendix II(F), 37 CFR 401
Item 1K - Page 64
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 1K - Page 65
FAA – 24 Tax Delinquency and Felony Conviction
APPLICABILITY – This provision applies to all contracts funded in whole or part with AIP.
REQUIREMENT -
The Contractor must have certified under the procurement process that resulted in the award of this contract that:
• Contractor has not been convicted of a Federal felony within the last 24 months; or • Contractor does not have any outstanding tax liability for which all judicial and administrative remedies have lapsed or been exhausted.
Reference: Sections 8113 of the Consolidated Appropriations Act, 2022 (Public Law 117-103), and similar provisions in subsequent appropriations acts.
DOT Order 4200.6 – Appropriations Act Requirements for Procurement and Non-Procurement Regarding Tax Delinquency and Felony Convictions
Item 1K - Page 66
FAA – 25 Termination of Contract
APPLICABILITY – All contracts and subcontracts in excess of $10,000.
REQUIREMENT -
See Section 4.5 of the Agreement.
Reference: 2 CFR § 200 Appendix II(B), FAA Advisory Circular 150/5370-10, Section 80-09 Item 1K - Page 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 requir e 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 1K - Page 68
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 1K - Page 69
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 1K - Page 70
FAA – 28 Domestic Preferences for Procurements
APPLICABILITY – all contracts and Purchase orders for work or products under the grant.
REQUIREMENT -
The Contractor certifies by signing and submitting its bid or proposal that, to the greatest extent practicable, the Contractor has provided a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including, but not limited to, iron, aluminum, steel, cement, and other manufactured products) in compliance with 2 CFR § 200.322.
Reference: 2 CFR § 200.322; 2 CFR Part 200, Appendix II(L)
Item 1K - Page 71
ATTACHMENT B
PUBLIC INTEGRITY BUSINESS DISCLOSURE
Item 1K - Page 72
Item 1K - Page 73
1. 2.
3. 4.
5. Name of Entity
Timberline GSE Inc.
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
Address of Entity (Principal Place of Business)
2215 south Industrial Park road Richfield Utah
Local or California Address (if different than #2)
State where Entity is Registered with Secretary of State Utah
If other than California, is the Entity also registered in California? DY~ D No Type of Entity
acorporation O Limited Liability Company O 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
Todd Gardner D<Officer D Director D Member D Manager
[name] D General Partner D Limited Partner
Other
Wren Gardner D Officer D Director O Member D Manager
[name] O General Partner O Limited Partner
GZJ Other Administrator
D Officer D Director D Member D Manager
[name} D General Partner D Limited Partner
D Other
Item 1K - 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.
NA
[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.
Date
4/17/2024
CITY COUNCIL STAFF REPORT
DATE: JUNE 13, 2024 CONSENT CALENDAR
SUBJECT: CITY BOARDS AND COMMISSIONS – ADOPTION OF A RESOLUTION
ESTABLISHING A CODE OF CONDUCT FOR CITY BOARDS AND
COMMISSIONS; AND RESOLUTION ESTABLISHING A HIATUS FOR
THE CITY’S HUMAN RIGHTS COMMISSION
FROM: Scott C. Stiles, City Manager
BY: Jeffrey S. Ballinger, City Attorney
SUMMARY:
At the May 9, 2024 City Council meeting, the City Council requested, among other things, that a Code of Conduct be brought back for consideration by the City Council. In addition, at the May 23, 2024 Council meeting, the Council requested that staff bring back an action item allowing the City Council to place a temporary “hiatus” on the activities and meetings of the City’s Human Rights Commission (“HRC”).
This agenda item provides the City Council with an opportunity to consider adopting: (1) a Code of Conduct for City Boards and Commissions (hereinafter, “Commissions”); and (2) a temporary hiatus on the activities and meetings of the HRC.
RECOMMENDATION:
Discuss and consider adopting:
(1) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS, CALIFORNIA, ADOPTING A CODE OF CONDUCT FOR CITY
OF PALM SPRINGS BOARDS AND COMMISSIONS
(2) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS, CALIFORNIA, TEMPORARILY SUSPENDING MEETINGS
AND ACTIVITIES OF THE CITY OF PALM SPRINGS HUMAN RIGHTS
COMMISSION
BACKGROUND:
At the May 9, 2024 City Council meeting, the City Council discussed various issues involving the City’s Commissions. The topics included roles of Commissions, support and Item 1L - Page 1
guidance for Commissions, a possible code of conduct for Commissions, and the process for removal of Commissioners. At that time, the Council provided direction to City staff to bring back a variety of issues, including the following:
• Adopting a Code of Conduct applicable to Commissions
• Updating the Roles of Commissions to reflect the needs of the City • Developing a process for receiving Commission input regarding the Commissions’ various enabling ordinances / roles
• Authorizing the City Manager to establish a working group, to review updates to the City’s ordinances defining roles of Commissioners
• Developing a process for Commissions to follow the City Council’s Strategic Plan • Establishing defined rules for communications
• Identifying a “point of contact” on the Council for each Commission, in order to enhance communications between the City Council and its Commissions • Enhancing representation of historically underrepresented groups on Commissions
• Identifying “cause”, as used in the City’s current Commissioner removal provisions
At the following meeting, on May 23, 2024, the City Council requested staff to bring back an action item allowing the City Council to place a temporary “hiatus” on the meetings and activities of the HRC. This request was made, in part, based on recently expressed concerns about the lack of clarity surrounding the HRC Commission’s role and responsibility.
STAFF ANALYSIS:
Code of Conduct
As discussed at the May 9 Council meeting, the City Council has adopted a Code of Conduct applicable to the City Council. However, that Code of Conduct does not, by its terms, apply to Commissions. As such, the Council directed staff and the City Attorney to craft a Code of Conduct applicable to Commissions.
Accompanying this staff report is a draft Code of Conduct for the Council’s consideration.
It is proposed to be adopted by resolution, which would provide more flexibility than an ordinance, should the Council wish to modify it from time to time.
The draft Code of Conduct contains many of the same policies and rules that the Code of Conduct applicable to the Council does. Some examples include:
• Commissioners shall act collectively in a properly noticed and constituted meeting; Commissioners have no authority to make decisions or take actions on behalf of the Commission unless expressly authorized to do so.
Item 1L - Page 2
• Each Commission, as a whole or an authorized subcommittee or liaison, shall provide direction and guidance to City staff liaison and the Commission’s subsidiary bodies; not individual Commissioners.
• Clarifying that the Code of Conduct does not replace other good governance laws, such as the Brown Act, which must be followed by Commissions. • Commission members treat each other, City employees, residents, and business- people with courtesy and respect in a manner that reflects well on the City.
The draft Code of Conduct also contains additional provisions, including the following training requirements for Commissioners:
• All Commission members must review the Handbook prepared by the City Attorney and City staff and attend in- person “new Commissioner” training sessions, within one (1) year following their initial appointment or the adoption of the Code of Conduct, whichever comes later.
• All Commission members must complete an FPPC -approved, two-hour course of training in ethics. This training is required of all newly appointed Commission members within one (1) year of assuming a position on the Commission or the adoption of the Code of Conduct, whichever comes later, and must be renewed thereafter each two (2) years.
Finally, the draft Code of Conduct contains provisions for the enforcement of the Code.
Namely, violations of the Code of Conduct may result in any one or more of the following consequences:
• Reprimand Censure
• Travel or expense reimbursement restrictions
• Loss of committee or liaison assignments
• Removal from the Commission
• Loss of staff support or use of City resources
• Restrictions on access to City facilities
Therefore, staff recommends that the City Council review the accompanying Code of Conduct and, if acceptable, adopt the proposed Code, including with any additions or modifications that the Council may deem appropriate.
HRC Hiatus
As discussed above, there have been concerns expressed about the roles and functions of various City Commissions, including the HRC. While the City undertakes some of the Council-directed tasks listed above, such as further defining those roles, it has been proposed that the HRC be placed on a temporary hiatus.
The accompanying resolution establishes a temporary hiatus on the meetings (both Item 1L - Page 3
regular and special) of the HRC, as well as any other activities the HRC Commissioners may be engaged in. The hiatus does not apply to the currently scheduled joint meeting of the City Council and the various other City Commissions. Under the proposed hiatus, the term of each member of the HRC Commission will continue to run and will expire per the provisions of the Municipal Code.
The hiatus is proposed to be temporary and would end at such time that the City Council determines is appropriate.
ENVIRONMENTAL ASSESSMENT
:
This agenda item has no potential for having any environmental impact, and as such, does not require further review pursuant to the California Environmental Quality Act (CEQA).
ALIGNMENT WITH STRATEGIC PLANNING:
This agenda item aligns with the City Council’s Major Theme/Principle of “Optimizing basic services and facilities” in that it is intended to optimize the services of appointed Commissioners. This agenda item also aligns with the Council’s Major Theme/Principle of “forward thinking governance” by providing for processes and procedures to enhance the City’s Boards and Commissions.
FISCAL IMPACT:
It is not anticipated that any direction provided by the City Council will have a significant fiscal impact on the City.
REVIEWED BY:
City Attorney: Jeffrey S. Ballinger
City Manager: Scott Stiles
ATTACHMENTS:
A. Resolution Adopting a Code of Conduct for Commissioners B. Code of Conduct for Commissioners (text)
C. Resolution Establishing a Temporary Hiatus on HRC
Item 1L - Page 4
ATTACHMENT A
Item 1L - Page 5
RESOLUTION NO. __
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF PALM SPRINGS, CALIFORNIA, ADOPTING A CODE
OF CONDUCT FOR CITY OF PALM SPRINGS BOARDS
AND COMMISSIONS
WHEREAS, it is the policy of the City of Palm Springs (“City”) to: (a) promote the highest standards of behavior for City leaders; (b) maintain an environment that fosters the public’s trust and confidence in the City; and (c) provide a source of guidance to City leaders in their day-to-day service; and
WHEREAS, the City Council adopted a Code of Conduct, applicable to the City Council, by Resolution No. 24554 on January 23, 2019, to ensure that the highest level of ethics is practiced by all of the City’s elected officials; and
WHEREAS, the City Council desires to adopt a Code of Conduct for members of City of Palm Springs Boards and Commissions (“Commissions”) in order to document the City Council’s commitment to ethical behavior in the performance of the City’s business; and
WHEREAS, the City Council has determined that it is in the best interest of the City and its residents to adopt a Code of Conduct for Commissions.
THE CITY COUNCIL HEREBY RESOLVES, DETERMINES, AND APPROVES AS FOLLOWS:
Section 1
. The above recitals are true and correct, and are incorporated herein by this reference.
Section 2. The City Co uncil hereby adopts the Code of Conduct for Commissions pursuant to the authority vested in the City Council by Section 300 of the City’s Charter as set forth in Exhibit “A” attached hereto and incorporated herein by reference, subject to future amendment by resolution of the City Council.
Section 3. It is the intent of the City Council that the Code of Conduct be implemented in conjunction with and pursuant to any and all other City policies, laws, and regulations that pertain to the rights and obligations of City Commissions.
Section 4. The City Council finds that this Resolution is not subject to the California Environmental Quality Act (“CEQA”) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines (Chapter 3 to Title 14 of the California Code of Regulations) because it has no potential for resulting in physical change to the Item 1L - Page 6
environment, directly or indirectly.
Section 5. If any section (subsection, subdivision, sentence, clause, phrase, or portion) of this Resolution for any reason is held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Resolution . The City Council hereby declares that it would have adopted this Resolution (and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof) irrespective of the fact that any one or more sections (subsections, subdivisions, sentences, clauses, phrases, or portions thereof) be declared invalid or unconstitutional.
Section 6. This Resolution shall be effective immediately upon its adoption.
PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY
COUNCIL THIS ______ DAY OF JUNE 2024.
_____________________________________
SCOTT C. STILES
CITY MANAGER
ATTEST:
BRENDA PREE, MMC
CITY CLERK
Item 1L - Page 7
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 as was duly adopted at a regular meeting of the City Council of the City of Palm Springs on the ______ day of June 2024 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this ______ day of ________________, 2024.
_____________________________________
BRENDA PREE, MMC
CITY CLERK
Item 1L - Page 8
ATTACHMENT B
Item 1L - Page 9
CITY OF PALM SPRINGS
Code of Conduct – Board and Commission (“Commission”)
1. Purpose. The purpose of this Code of Conduct ("Code") is to define the role of Commissions in the governance of the City of Palm Springs (“City”). This Code consists of policies and implementing rules intended to advance the City's goals of providing efficient and responsive services to its residents, and providing a safe and productive work environment for its employees.
a. Policy. The City’s policy is to maintain the highest ethical standards for its Commission members. The proper operation of the City requires that decisions and policies are made within the proper channels of governmental structure, that public office is not used for personal gain, and that Commission members remain objective and responsive to the needs of the public they serve.
Accordingly, it is the City’s policy that Commission members maintain the highest standard of personal honesty and fairness in carrying out their duties. b. Objective. The objectives of this Code are to (1) provide guidance for dealing with ethical issues, (2) heighten awareness of ethics and values as critical elements in Commission members’ conduct, and (3) improve ethical decision-making and values-based management.
2. Background. The City is a charter city governed by the council/manager form of government.
a. City Council . The City Council (composed of five members, Mayor, Mayor Pro Tempore, and Councilmembers) is the legislative body of the City, which makes policies and fundamental governmental decisions with the assistance of its advisory Commissions . The City Council has direct authority over the City Manager and the City Attorney. b. City Manager. The City Manager carries out the executive responsibility, and is charged with implementing those policies and decisions and administering the day- to-day affairs of the City with the assistance of their staff. All City employees are under the direct authority of the City Manager.
c. Commissions. The general provisions of the City’s Commissions are found in Section
2.06 of the City’s Municipal Code. Commissions serve as the eyes and ears of the City Council.
Generally, Commissions act in primarily two ways: (1) help the City Council formulate policy and (2) assist in implementing City Council policy. As such, Commissions do not set policy but assist the City Council in making policy and carrying out City Council -established policy. For those Commissions that have decision-making authority, those decisions should be made in a way that is consistent with, and carries out, the policies that have been adopted by the City Council. While the vast majority of the City’s Commissions have their roles/duties spelled out by City ordinance (codified in several Chapters of Title 2 (Administration and Personnel) of the City’s Municipal Code), some of the City’s commissions have their roles/duties spelled out by State law. The City currently has the following fourteen (14) Commissions:
• Palm Springs International Airport Commission
• Parks and Recreation Commission
• VillageFest Board
• Public Arts Commission
• Sustainability Commission
Item 1L - Page 10
• Planning Commission
• Public Library Board of Trustees
• Human Rights Commission
• Administrative Appeals Board
• Measure “J” Oversight Commission
• Rent Review Commission
• Architectural Review Committee
• Historic Site Preservation Board
• Small Hotel Tourism BID Advisory Board
3. Limitations. This Code addresses selective aspects of the governance of the City; and supplements but does not supplant other laws and rules that prescribe the legal responsibilities of Commission members. Those include among others the California Constitution, various provisions of the California Government Code including the Ralph M. Brown Act (Government Code § 54950 et seq.) and Political Reform Act ( Government Code §§ 81000-91014) , California Labor Code, the City's Charter, Federal laws prohibiting discrimination and harassment, and the provisions of the City's Municipal Code, including, without limitation, the City’s Public Integrity Ordinance (PSMC, Ch. 2.60). It is not possible for a Code of this kind to anticipate and provide a rule of conduct for all situations.
4. Responsibilities of public office . Commission members are obligated to uphold the Constitution of the United States and the Constitution of the State of California. Commission members will comply with applicable laws regulating their conduct including conflict of interest, financial disclos ure, and open government laws. Commission members will strive to work in cooperation with other public officials , unless prohibited from so doing by law or officially- recognized work confidentiality rules. Commissions will strive to maintain the highest ethical standards by:
a. Always obeying the law and all City policies and procedures; and acting in a professional, honest, and ethical manner when acting on behalf of the City. Commission members will seek advice if in doubt about the appropriateness and/or legality of an action. b. Knowing the information contained in this Code , and the related City policies and procedures.
c. Completing all required trainings in a timely manner. d. Promptly reporting concerns about possible violations of laws, regulations, this Code, or any City policies or procedures in accordance with the City ’s policies. Commission members are encouraged to fulfill their obligation to the public and the City by disclosing improper activities within their knowledge.
e. Cooperating and telling the whole truth when responding to a com pliance review or investigation; and never altering or destroying any records.
5. Roles of Commissioners . Once a Commissioner accepts an appointment, the Commissioner becomes an officer of the City. An office is a public trust and all officers must exercise their duties in a manner consistent with this trust. Commissioners owe a duty of loyalty to the City and must carry out their duties in a manner that serves the City's interests. In some cases, Com missioners must be selected from a designated interest group by law. Even Item 1L - Page 11
Commissioners who are selected from a particular interest group owe their duty of loyalty to the City. They do not represent the designated interest group, although they may bring to their service a greater knowledge of or appreciation for the needs of that interest group. Thus, these Commissioners, like all commissioners, must act in the City's interests. When carrying out the functions the City’s Charter and Municipal Codes assign to them, different boards and commissions may serve in different roles.
a. Quasi-judicial role
. Some boards and commissions act, primarily or frequently, in a "quasi-judicial" role. When acting in a quasi -judicial capacity, the body adjudicates matt ers between private parties (or more typically between the City and private parties or employees ).
When acting in a quasi -judicial capacity, Commission me mbers function like judges. Thus, they must take care to ensure that the parties appearing before them receive due process. Due process requires fair adjudicators. Commissioners must listen to the evide nce presented before making decisions, and base their decisions upon the evidence and the governing law. Commissions that act frequently in a quasi-judicial capacity adopt rules addressing the procedures for adjudicative hearings, and the conduct of commissioners regarding evidence and witnesses.
6. Conduct of Commissioners. The City’s Charter and Municipal Code do not specifically set forth a "code of conduct" for commissioners. It is expected that Commission members treat each other, City employees, residents, and business -people with courtesy and respect in a manner that reflects well on the City. Commissioners must also comport themselves in a manner consistent with the public trust. Conduct that falls below the standard of decency, good faith, and right action impliedly required of all public officers is official miscond uct which may result in removal from office.
a. Professional and personal conduct . The professional and personal conduct of Commission members while exercising their office must be above reproach and avoid even the appearance of impropriety. Commission members shall refrain from (1) abusive conduct towards City staff and one another; and (2) personal charges or verbal attacks upon the character or motives of other Commission members, staff, or the public.
b. Fair and equal treatment (non- discrimination). Commission members will not discriminate against or harass any person on the basis of actual or perceived race, color, religion, ancestry, national origin, disability, medical condition, marital status, domestic partner status, sex, gender, gender identity, gender expression, or sexual orientation as these terms are defined by California Law, or association with members of classes protected under this paragraph, in the performance of their officia l duties and responsibilities. A Commission member will not grant any special consideration, treatment , or advantage to any person or group beyond that which is available to every other person or group in similar circumstances. c. Commissioners shall not retaliate or threaten to retaliate against employees as a result of disagreements over policy recommendations.
d. Commissioners shall not threaten a City employee with disciplinary action. e. Commissioners shall act collectively in a properly noticed and constituted meeting; Commissioners have no authority to make decisions or take actions on behalf of the Commission unless expressly authorized to do so.
Item 1L - Page 12
f. Commissioners shall not make representations or promises to any third party regarding the future actions of the City or of the Commission of which they are a member, unless such representation or promise has been duly authorized by the appropriate body. g. Commissioners have a fundamental responsibility to communicate with the public and to aid in the resolution of individual and collective public policy and constituent service matters. When Commissioners engage in conversations with residents, applicants, developers, lobbyists and officials of other governmental agencies, they should be cautious not to make representations or promises that they cannot legally make or keep. Future actions of a Commission cannot be promised or predicted with certainty. Individual Commissioners do not have authority to make commitments on behalf of the City unless expressly authorized to do so by the body of which they are a member.
h. When making public statements, whether verbally or in writing, Commissioners shall make it clear whether they are authorized to speak in an official capacity on behalf of the body of which they are a member, or whether they are presenting their own views. i. Commissioners shall not interfere with the manner by which the City staff perform their duties as directed by the Commission or Council acting as a body or by a duly appointed subcommittee or liaison.
j. Proclamations should generally be issued on behalf of the entire Commission and signed by each member of the Commission . Individual Commissioners may opt out of signing a proclamation or ceremonial statement by their Commission. k. When a Commissioner receives a formal request for an official policy position, they shall forward that request to the Commission liaison for a response, and for sharing with fellow Commissioners.
l. Each Commission, as a whole or an authorized subcommittee or liaison, shall provide direction and guidance to City staff liaison and the Commission’s subsidiary bodies; not individual Commissioners.
m. Commissioners shall not ask or direct employees to spend time on non- City business.
n. When representing the City, Commissioners shall conduct themselves in a dignified manner and in accordance with all legal requirements. When representing the City on official business, Commissioners shall behave in a manner as to project a positive image for the City and shall not disparage the City or another Commissioner.
o. Commissioners shall identify themselves by their titles only when acting in an official Commissioner capacity, or when it is directly relevant. p. Commissioners should conduct themselves in a professional and businesslike manner in the performance of their duties, during the meetings of the bodies of which they are members.
q. Each City Commissioner shall at all times conduct themselves in accordance with the principle that the oath of office administered to each of the City’s officials creates a duty to serve and represent the best interests of all of the City as a whole.
Item 1L - Page 13
7. Meetings
a. Attendance. A ttending meetings is a fundamental part of a commissioner's duties.
Commissioners must abide by the attendance requirements of Section 2.06.010(f) of the Palm Springs Municipal Code, unless a more specific provision applies to that Commissioner’s Commission.
b. Commission meetings will be conducted by the Chair of the Board (or the Vi ce Chair in the Chair’s absence; or in the absence of the Chair and Vice Chair, by a member of the Commission selected to be the presiding officer by the remaining Commission members). Meetings will be conducted in a manner consistent with the policies set forth herein. c. Commission members should refrain from texting or emailing on their personal devices during meetings . Based on California law, the Public Records Act grants the public access to electronic communications (such as texts or email messages) that relate to public business (including communications sent or received on the dais or from private accounts and devices ).
Further, the public perception of electronic communications by a Commission member during a public meeting can lead to claims that the Commission has violated the due process rights of those in attendance at the meeting to be heard by the body. Members of the public may perceive Commission members who are communicating electronically as bein g in violation of the Brown Act because it can appear that the members are using private devices to speak to one another concerning items presently being considered by the Commission as a whole. Even if that is not the case, for reasons of decorum and public perception, it is always recommended that Commission members refrain from engaging in electronic communica tions while at a public meeting.
Commission members may ask for a recess and take a call, text, or email from outside the chambers if it is an emergency.
d. A ll Commission meetings should commence at the time stated on the meeting agenda in accordance with the Brown Act , and the order of the agenda should guide the conduct of the meeting. The purpose of Commission meetings is to enable the Commission to conduct the business of the City; and as such, the following guidelines should be followed to the extent practicable depending on the circumstances of each meeting:
(1) Each regular agenda item will be taken in the order presented on the agenda, unless the order is altered by a vote of the members of the Commission. (2) Commission members will engage in the meeting in a manner that, to the fullest possible extent, allows for consideration of the issues presented in a thorough and fair way; and for public discussion of any needed action associated with each agenda item. (3) It is the policy that no oral presentation by any Commissioner shall include charges or complaints against any City employee (regardless of whether or not the employee is identified in the presentation by name or by another reference which tends to identify them). All charges or complaints against employees shall be submitted to the appropriate person charged with investigating personnel matters in writing via email or hard copy. (4) Willful disruption of any of the meetings of the Commission shall not be permitted. If the Commission finds that there is in fact willful disruption of any meeting of the Commission, they may order the disruptive party removed or order the room cleared and subsequently conduct the Commission’s business without the audience present in accordance with Item 1L - Page 14
the Brown Act. In such an event, only matters appearing on the published agenda will be considered.
8. Proper use and safeguarding of City property and resources. A Commission member will not use or permit the use of City-owned vehicles, equipment, telephones, materials, or property for personal benefit or profit except as specifically authorized. A Commission member will not ask or require a City employee to perform services for the personal benefit or profit of a Commission member. Each Commission member must protect and properly use any City asset within his or her control, including information recorded on paper or in electronic form. Commission members will safeguard City property, equipment, money, and assets agai nst unauthorized use or removal as well as from loss due to criminal act or breach of trust.
9. Use of Confidential Information . A Commission member is not authorized to disclose information that qualifies as confidential information under applicable provisions of law to a person not authorized to receive it that (1) has been received for, or during, a closed session meeting of the Commission, or (2) is protected from disclosure under the attorney/client or other evidentiary privilege without approval of the City Council.
10. Conflicts of Interest. A Commission member will not have a financial interest in a contract with the City, be a purchaser at a sale by the City , or a vendor for a purchase made by the City unless the Commission member’s participation was authorized under Government Code §§ 1091 or 1091.5 (or other provisions of law).
11. Support and Guidance for Commissions
a. Commission Handbook. All Commission members must review the Handbook prepared by the City Attorney and City staff, and attend in- person “new Commissioner” training sessions, within one (1) year following their initial appointment or the adoption of this Code, whichever comes later.
b. Ethics training . All Commission members must complete an FPPC-approved, two-hour course of training in ethics. This training is required of all newly appointed Commission members within one (1) year of assuming a position on the Commission or the adoption of this Code, whichever comes later, and must be renewed thereafter each two (2) years. c. Additional training resources. Additional support and guidance for Commissioners could be provided through training, either in- house or through organizations such as the League of California Cities or Institute for Local Government. There may also be organizations that provide training that is unique to each Commission and their specialties. d. City policies. Because Commissions are meant to assist the City Council in formulating policy and carrying those policies out, it is important for the Commissions to have a good understanding of the City Council’s current policies as well as its policy goals. As such, an effective mechanism for sharing with each Commission the City Council’s current policies (as well as future policy goals) is important. This can be done through City Council liaisons, City staff liaisons, and/or regular meetings among City Council and Commissions.
12. Violation of Code of Conduct or Ethics Policies . The City is committed to maintaining a healthy, fulfilling and humane workplace. To that end, every City official is expected to observe the foregoing policies and rules when engaged in City business.
Item 1L - Page 15
Complaints alleging a violation of this Code of Conduct by a Commissioner should be directed to the Commission liaison or the City Attorney. Upon receipt of a complaint of a minor nature, the Commission liaison and the City Attorney shall together determine a course of action.
The Commission liaison and the City Attorney shall, should they fail to resolve the complaint or should the complaint be of a serious nature, consult with the Mayor and the Chair of that Commission (unless the Chair is the subject of the complaint, in which event they shall consult with the Vice Chair or other Commissioner, in order of seniority, as is appropriate under the circumstances) in order to determine an appropriate course of action.
The goal of enforcement of this Code of Conduct is corrective, rather than penal, and a progressive approach to curing violations shall be employed, beginning with informal methods and proceeding to more formal methods as necessary. If appropriate, informal counseling and instruction (including referral to the Employee Assistance Program if appropriate) shall be utilized to correct the official’s behavior prior to recommending imposition of sanctions.
Should less drastic measures fail the Commission, or the City Council, may in a public meeting impose one or more of the following sanctions:
• Reprimand
• Censure
• Travel or expense reimbursement restrictions
• Loss of committee or liaison assignments
• Removal from the Commission
• Loss of staff support or use of City resources
• Restrictions on access to City facilities
• Other penalties as may be applicable under the circumstances
13. Removal of Commissioners
a. Removal with or without cause . Section 2.16.016(f) of the City’s Municipal Code provides “Any [Commission] member may be removed from office at any time, with or without cause, by a majority vote of the members of the city council. If a member is absent without advance permission of the board or commission or of the member's appointing authority, from three consecutive regular meetings or from twenty- five percent of the duly scheduled meetings of the board or commission within any fiscal year, the chair of the board or commission shall file a certification with the City Clerk that such absences have occurred, and the member's office shall thereupon automatically become vacant and shall be filled as any other vacancy ”. One or more City Council Members may request that the removal of a Commissioner be brought back to the City Council for consideration. If a majority of the City Council agree to the item being placed on the agenda, City staff would put it on the agenda at the next available City Council meeting. b. Removal for failure to file disclosure reports . A Commissioner is autom atically suspended from service if that Commissioner fails to file any State or lo cally required disclosure form pursuant to Section 2.06.040 of the City’s Municipal Code.
Item 1L - Page 16
ATTACHMENT C
Item 1L - Page 17
RESOLUTION NO. ________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, TEMPORARILY
SUSPENDING MEETINGS AND ACTIVITIES OF THE CITY
OF PALM SPRINGS HUMAN RIGHTS COMMISSION
WHEREAS, Chapter 2.45 to Title 2 of the City of Palm Springs (“City”) Municipal Code (“Municipal Code”) established and authorized the Human Rights Commission (“HRC Commission”) to promote and protect the diversity of the City’s community, and to improve human relations through education and community awareness; and WHEREAS, there have recently been concerns expressed about the lack of clarity surrounding the HRC Commission’s role and responsibility; and WHEREAS, ultimately, the Boards and Commissions of the City of Palm Springs serve at the pleasure of the City Council; and
WHEREAS, the City Council has determined that it is in the best interest of the City and its residents to place the HRC Commission on hold in an effort to update the HRC Commission’s role and scope, as well as allow an opportunity to provide appropriate policy direction.
THE CITY COUNCIL HEREBY RESOLVES, DETERMINES, AND APPROVES AS FOLLOWS:
Section 1. The above recitals are true and correct, and are incorporated herein by this reference.
Section 2. The City Council hereby temporarily suspends the HRC Commission pursuant to the authority vested in the City Council by Section 300 of the City ’s Charter; and all rights, powers, duties, and authority bestowed upon the members of the HRC Commission are hereby temporarily suspended until such time that this Resolution is repealed or superseded, by City Council resolution or motion. The term of each member of the HRC Commission will continue to run and will expire pursuant to the provisions of the Municipal Code. Notwithstanding anything to the contrary in the Municipal Code or the City’s Charter, there shall be no regular or special meetings or other activities of the HRC Commission until such time that this Resolution is repealed or superseded, with the exception of the Joint Meeting of the City Council and the City’s Boards and Commissions, scheduled for Monday, June 17, 2024.
Section 3. The City Council finds that this Resolution is not subject to the California Environmental Quality Act (“CEQA”) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines (Chapter 3 to Title 14 of the California Code of R egulations) because it has no potential for resulting in physical change to the environment, directly or indirectly.
Section 4. If any section (subsection, subdivision, sentence, clause, phrase, or portion) of this Resolution for any reason is held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity Item 1L - Page 18
of the remaining portions of this Resolution. The City Council hereby declares that it would have adopted this Resolution (and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof) irrespective of the fact that any one or more sections (subsections, subdivisions, sentences, clauses, phrases, or portions thereof) be declared invalid or unconstitutional.
Section 5
. This Resolution shall be effective immediately upon its adoption.
PASSED, APPROVED, AND ADOPTED BY THE PALM SPRINGS CITY
COUNCIL THIS ______ DAY OF JUNE 2024.
_____________________________________
SCOTT C. STILES
CITY MANAGER
ATTEST:
BRENDA PREE, MMC
CITY CLERK
Item 1L - Page 19
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 as was duly adopted at a regular meeting of the City Council of the City of Palm Springs on the ______ day of June 2024 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this ______ day of ________________, 2024.
_____________________________________
BRENDA PREE, MMC
CITY CLERK
Item 1L - Page 20
CITY COUNCIL STAFF REPORT
DATE: JUNE 13, 2024 PUBLIC HEARING
SUBJECT: AN APPLICATION BY THE CITY OF PALM SPRINGS FOR HISTORIC DESIGNATION OF THE “HARRIET VAN HORN RESIDENCE” LOCATED AT 1121 LINDA VISTA ROAD (APN 507-132-001), CASE HSPB #157
FROM: Scott C. Stiles, City Manager
BY: Department of Planning Services
SUMMARY:
Constructed in 1948, t he Harriet Van Horn Residence at 1121 Linda Vista Road is considered one of the early residential projects designed by Herbert W. Burns in Palm Springs. The lot is 0.22- acres in size and contains a one-story residence that is an example of Late Moderne architecture from the post-World War II period. The home has a flat roof and design features that emphasize its horizontality and incorporates ornamental details like the vertical wooden poles, horizontally stacked Arizona sandstone and steel framed windows with mullions. Based on the Historic Resources Report the period of significance is 1948.
This property was deemed a Class 3 site eligible for reclassification, and when a proposal to replace original windows was brought before the HSPB, the request for alteration was stayed and staff was directed to pursue historic designation proceedings.
If designated as a historic resource, the property would be subject to the regulations outlined in Section 8.05 of the Palm Springs Municipal Code (PSMC).
The Historic Site Preservation Board (HSPB) and staff evaluated the application in accordance with the historic designation ordinance and applicable state/federal regulations, and determined it qualifies as a Class 1 (Landmark) historic site.
RECOMMENDATION:
1. Open the public hearing and receive public testimony.
2. Close the public hearing and adopt Resolution No . _____, “A RESOLUTION OF
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, DESIGNATING THE “HARRIET VAN HORN RESIDENCE ” LOCATED AT 1121 Item 2A - Page 1
City Council Staff Report
June 13, 2024 – Page 2
Historic Designation – The Harriet Van Horn Residence
LINDA VISTA ROAD, AS A CLASS 1 ( LANDMARK) HISTORIC RESOURCE HSPB #157, SUBJECT TO CONDITIONS (APN 507-132-001).”
BACKGROUND AND SETTING:
The attached historic resources report dated May 23, 2024, prepared by Chattel, Inc. (“the report”), and site visits with HSPB members are the basis of this staff report.
Related Relevant City Actions by HSPB, Planning, Fire, Building, etc.
January, 2024 Site inspection by members of the HSPB and City Staff.
February, 2024 HSPB directed staff to initiate the designation process for the property.
June, 2024 HSPB considered the application for designation at a public hearing recommending Class 1 designation.
Ownership Status
September, 2022 Purchased by current owners.
1121 LINDA VISTA ROAD, CURRENT CONDITION OF THE HOME IN 2024.
HISTORIC IMAGE OF THE HARRIET VAN HORN RESIDENCE, 1949.
IMAGE SOURCE: PALM SPRINGS VILLAGER
Item 2A - Page 2
City Council Staff Report
June 13, 2024 – Page 3
Historic Designation – The Harriet Van Horn Residence
The historic designation request was initiated by the City and the historic resources report supports the reclassification of the site as a Class 1 landmark. Staff and HSPB agree with the findings in the report and recommend Class 1 designation.
ANALYSIS AND FINDINGS:
The analysis of the application relative to the criteria for the designation of historic resources is detailed in the attached HSPB resolution and staff report dated June 4, 2024.
In order to be designated a historic landmark, a resource must exhibit exceptional historic significance and meet one or more of the criteria listed in PSMC Section 8.05.070.C.1.a.
The Board made findings in support of Class 1 ( Landmark) designation based on the following criteria:
PSMC 8.05.070, (C,1,Part a). The site, structure, building, or object exhibits exceptional historic significance and meets one or more of the criteria listed below:
(Criterion 3) The resource reflects or exemplifies a particular period of national, state, or local history;
(Criterion 5) The resource presents the work of a master builder, designer, artist, or architect whose individual genius influenced his age, or that possesses high artistic value.
The Board also made findings pursuant to PSMC 8.05.070, (5,C,1,Part b); “Historic Integrity” that the Harriet Van Horn Residence possesses sufficient historic integrity to qualify as a Class 1 (Landmark) historic site.
CONCLUSION:
The Harriet Van Horn Residence meets the definition of a historic resource based on Criterion 3 and 5 of the Palm Springs Historic Preservation Ordinance. The property possesses a high level of historic integrity to qualify as a Class 1 ( Landmark) site. The HSPB recommendation to the City Council reflects these findings which are outlined in the attached draft City Council resolution.
ENVIRONMENTAL ASSESSMENT:
The proposed historic resource designation is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical changes to the environment, directly or indirectly.
Item 2A - Page 3
City Council Staff Report
June 13, 2024 – Page 4
Historic Designation – The Harriet Van Horn Residence
NOTIFICATION:
Pursuant to Section 94.09.00 (Public Hearing) of the Palm Springs Zoning Code, notice has been mailed to all property owners and residents within five hundred (500) feet of the subject property and notice was published in a newspaper of general circulation.
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. Application, related background materials, photos.
D. HSPB resolution, staff report, minute excerpt.
Item 2A - Page 4
ATTACHMENT A
Item 2A - Page 5
Department of Planning Services
Vicinity Map
CITY OF PALM SPRINGS
HSPB #157 – The Harriet Van Horn Residence
1121 Linda Vista Road
LINDA VISTA RD
PASATIEMPO RD
PASATIEMPO RD
E PASEO EL MIRADOR
E TACHEVAH DR
Item 2A - Page 6
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ATTACHMENT B
Item 2A - Page 7
RESOLUTION NO._____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
SPRINGS, CALIFORNIA, DESIGNATING THE “HARRIET VAN
HORN RESIDENCE” LOCATED AT 1121 LINDA VISTA ROAD, AS
A CLASS 1 ( LANDMARK) HISTORIC RESOURCE HSPB #15 7,
SUBJECT TO CONDITIONS (APN 507-132-001).
THE CITY COUNCIL FINDS AND DETERMINES AS FOLLOWS:
A. WHEREAS, Chapter 8.05 of the Palm Springs Municipal Code allows for the designation of historic sites and districts; and
B. WHEREAS, the City of Palm Springs initiated an application seeking historic site designation of the Harriet Van Horn Residence located at 1121 Linda Vista Road; and
C. WHEREAS, in January 31, 2024, members of the Historic Site Preservation Board (HSPB) and City staff conducted site inspections of the proposed historic resource; and
D. WHEREAS, on June 4, 2024, a noticed public hearing of the Palm Springs Historic S ite Preservation Board to consider Case HSPB #157 was held in accordance with applicable law; and
E. WHEREAS, at the said hearing, t he HSPB carefully reviewed and considered all the evidence presented in connection with the hearing on the project, including, but not limited to, the staff report and all written and oral testimony and voted unanimously to recommend that the Council designate the Harriet Van Horn Residence a Class 1 (Landmark) historic resource; and
F. WHEREAS, on June 13, 2024, a noticed public hearing of the Palm Springs City Council to consider Case HSPB #157 was held in accordance with applicable law; and
G. WHEREAS, at the said hearing, the City Council carefully reviewed and considered all the evidence presented in connection with the hearing on the project, including, but not limited to the staff report and all written and oral testimony.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS RESOLVES:
SECTION 1: FINDINGS – PART “A”, CRITERIA FOR HISTORIC RESOURCES.
Evaluation of the Application.
Pursuant to Municipal Code Section 8.05.070 (C,1,a), the City Council shall evaluate the application and make findings in conformance with the following criteria:
Criteria for the Designation of Class 1 Historic Resources. A site, structure, building or object may be designated as a Class 1 historic resource, provided both of the following findings (“a” and “b”) are met:
a. The site, structure, building, or object exhibits exceptional historic significance and meets one or more of the criteria listed below:
Item 2A - Page 8
Resolution No.____
June 13, 2024
The report clarifies the permit history and provides historical context surrounding the home and the development patterns for the period after World War II in Palm Springs. Not only is the property an early example of Herbert Burns’ residential work, but t he home is also an intact representation of an architectural style that was desired and readily accepted. The period of significance is 1948. The following is an analysis of the criterion and integrity findings.
(Criterion 1) The resource is associated with events that have made a meaningful contribution to the nation, state, or community;
No information was provided indicating any significant event was directly associated with this site. The site does not qualify under Criterion i.
(Criterion 2) The resource is associated with the lives of persons who made a meaningful contribution to national, state or local history;
The home was the residence of a writer and character actress by the name of Harriet Merry Van Horn in 1950. The report concludes that there is little information about this individual other than the fact that she owned the property for about a year shortly after it was constructed in 1948.
City Council finds that criterion ii is not met.
(Criterion 3) The resource reflects or exemplifies a particular period of national, state, or local history;
The home was completed for the developers O.W. Karn and R.C. Inger in the El Mirador Park tract. According to the research in the report, developers during this period tried to set apart their homes through design. Herbert W. Burns was an established designer that had a distinctive style that identified with the Late Moderne movement of the post-World War II era. The design of the building has a strong emphasis on the horizontal form and a flat roof. The mullions of the steel framed windows, the vertical wo oden poles and the horizontally stacked Arizona sandstone all contribute to creating a subtle sense of ornamentation. The home in its condition is an exceptional representation of this particular time period from a state and local standpoint, thus, criterion iii is met.
(Criterion 4) The resource embodies the distinctive characteristics of a type, period, or method of construction;
Unlike the National Register criterion concerning construction, the Palm Springs evaluation of construction addresses the type (of construction), the period (of construction) and the method (of construction). It appears that the home was constructed using standard construction methods and does not qualify for this criterion.
(Criterion 5) The resource presents the work of a master builder, designer, artist, or architect whose individual genius influenced his age, or that possesses high artistic value;
Designer Herbert W. Burns is a locally recognized figure who designed a number of historically significant buildings in Palm Springs such as the Town & Desert Apartments (370 W. Arenas Item 2A - Page 9
Resolution No.____
June 13, 2024
Road, HSPB #90, Class 1 Site) and the Gillman Residence (574 W. Mariscal Road, HSPB #142, Class 1 site). His designs include the use of specific building materials and his mastery in creating balance with asymmetric compositions. His contributions to the d evelopment of Palm Springs as a designer is evident in his work, thus City Council finds Criterion v is met.
(Criterion 6) The resource represents a significant and distinguishable entity whose components may lack individual distinction, as used in evaluating applications for designation of historic districts, for parcels on which more than one entity exists; or
No information has been provided that the resource qualifies under Criterion vi.
(Criterion 7) The resource has yielded or may be likely to yield information important to national, state or local history or prehistory.
No information has been provided on any pre-historic significance of the site.
SECTION 2: PART “B” ANALYSIS OF HISTORIC INTEGRITY.
Analysis of Integrity. (PSMC 8.05.070 (C,1,b). The site, structure, building, or object retains one or more of the following aspects of integrity, as established in the Secretary of the Interior’s Standards: integrity of design, materials, workmanship, location, setting, feeling, or association.
Beginning on page 12 of the report is an evaluation of the site relative to the seven aspects or qualities of historic integrity, as recognized by the National Register of Historic Places. The seven aspects or qualities include location, design, setting, materials, workmanship, feeling, and association. The report concludes that the site retains a high degree of integrity and is further analyzed below:
1. Location:
The resource remains in its original location of construction, therefore, retains its integrity of location.
2. Design:
The single-story home is sited on a corner lot with the open space concentrated towards the front yard and a square pool located at the far southwest corner of the lot. The design of the home identifies with Late Moderne architecture which is identified in the Citywide Historic Context Statement for Palm Springs as style that incorporates elements of Streamline Moderne and the International style. The home emphasizes horizontality with the flat roof and the layout of the building footprint. The stacked Arizona sandstone, steel framed windows with mullions, and the vertical wood poles creates a composition of materials that emphasizes utilitarian aesthetics with natural materials. The carport/garage area is enclosed, and a covered breezeway now connects the detached maid’s quarters to the home, but the majority of the layout remains consistent to the original design, and all changes to the home are in discrete Item 2A - Page 10
Resolution No.____