CITY OF PALM SPRINGS
CONTRACT CHANGE ORDER
Purchase and Installation of Playground Equipment and Shade Structures at Demuth and Victoria Parks
Contract Change Order Number: 2
Date: November 20, 2023
Contractor: Project: Purchase & Installation of Playground Miracle Recreation Equipment Company Equipment and Shade Structures at 878 Highway 60 Demuth and Victoria Parks
Monett, MO 65708 Agrmt: 23C089
Attn: Kevin Walker PO: 24000226
CONTRACT CHANGE ORDER SUMMARY
This Contract Change Order No. 2 is for the addition of funds to facilitate the submittal of commercial building permit(s) applications to include, but not limited to, structural calculations, contractor affidavit, and any revisions necessary for the installation of playground equipment and shade structures at Demuth and Victoria Parks. This Contract Change Order No. 2 provides for an increase of $12,700, for a total Contract Amount of $1,371,069.89.
CONTRACT CHANGE ORDER COST
Item No. DESCRIPTION UNIT AMOUNT
Demuth Commercial Permit Processing LS $5,600.00
Victoria Commercial Permit Processing LS $7,100.00
Total: $12,700
REASON FOR CHANGES:
This is a change order in the amount of $12,700 for the submittal of commercial building permit(s) applications and any necessary changes required for the issuance of said permit(s).
CHANGES TO CONTRACT TIME:
There are no changes to the contract time.
Source of Funds:
Sufficient funds budgeted and available in project string 23-67-CAP IMPR-PARKIMP, Account No. 2613225-80000.
Summary of Costs:
Original Contract Amount: $1,325,849.89 Original Contract Time: 550 Calendar days Previous Change Order Amount: $32,520.00 Previous Days Added: 0 This Change Order Amount: $12,700.00 Days Added: 0
Revised Contract Amount: $1,371,069.89 Revised Contract Time: 550 Calendar days
Item 1F - Page 96
Item 1F - Page 97
Item 1F - Page 98
Item 1F - Page 99
KNAPP & ASSOCIATES, INC.
408 So. Stoddard Ave, San Bernardino, CA 92401
Phone: (909) 889-0115 Fax: (909) 889-0455 Email: [email protected] December 14, 2023
Bryce Lawrence
Miracle Playground Sales
1101 California Ave, Suite 209
Corona, CA
Re: Victoria Park
Palm Springs, CA
PROPOSAL
We are proposing to provide structural engineering calculations and drawings for foundation design and anchorage for the subject playground structure.
Our fee for this service will be $ 00 (site visits not included) due upon completion of design package.
If this amount is acceptable, please sign and return this letter of proposal with your authorization to proceed.
Sincerely,
Leonard C. Knapp
Accepted by:
Signature__________________________Print_______________Date______________________ Item 1F - Page 100
KNAPP & ASSOCIATES, INC.
408 So. Stoddard Ave, San Bernardino, CA 92401
Phone: (909) 889-0115 Fax: (909) 889-0455 Email: [email protected] December 14, 2023
Bryce Lawrence
Miracle Playground Sales
1101 California Ave, Suite 209
Corona, CA
Re: Demuth Park
Palm Springs, CA
PROPOSAL
We are proposing to provide structural engineering calculations and drawings for foundation design and anchorage for the subject playground structures 2-5 & 5-12.
Our fee for this service will be $ 00 (site visits not included) due upon completion of design package.
If this amount is acceptable, please sign and return this letter of proposal with your authorization to proceed.
Sincerely,
Leonard C. Knapp
Accepted by:
Signature__________________________Print_______________Date______________________ Item 1F - Page 101
CITY OF PALM SPRINGS
CONTRACT CHANGE ORDER
Purchase and Installation of Playground Equipment and Shade Structures at Demuth and Victoria Parks
Contract Change Order Number: 3
Date: March 13, 2024
Contractor: Project: Purchase & Installation of Playground Miracle Recreation Equipment Company Equipment and Shade Structures at 878 Highway 60 Demuth and Victoria Parks
Monett, MO 65708 Agrmt: 23C089
Attn: Kevin Walker PO: 24000226
CONTRACT CHANGE ORDER SUMMARY
This Contract Change Order No. 3 is for the addition of funds to facilitate (i) removing existing concrete curb and adjacent sidewalk to accommodate larger diameter footing of shade structures; (ii) additional excavation; (iii) addition of oversized rebar cages; (iv) additional 254 CY of concrete; (v) construct curb, and pour new side walk; (vi) crane rental; (vii) add 8,081 sq ft pour in place rubber to increase rubber thickness from 6’ critical fall height to 8’ critical fall height; and (viii) playground footing changes. This Contract Change Order No. 3 provides for an increase of $70,435.53, for a total Contract Amount of $1,441,505.42.
CONTRACT CHANGE ORDER COST
Item No. DESCRIPTION UNIT AMOUNT
CCO#3 V.1 Remove concrete curb and adjacent
sidewalk LS 7,254.00
CCO#3 V.2 Excavation LS 1,971.00
CCO#3 V.3 Oversized rebar cages, transport
oversized load LS 9,944.00
CCO#3 V.4 254 CY concrete LS 24,528.00
CCO#3 V.5 Construct curb and pour new sidewalk LS 7,938.00 CCO#3 V.6 Crane rental LS 1,358.50
CCO#3 V.7 8,081 sq ft pour in place rubber LS 9,028.50
CCO#3 V.8 Victoria Park playground footing
changes LS 5,101.31
CCO#3 D.1 Demuth Park playground footing
changes LS 3,312.22
Total: $70,435.53
REASON FOR CHANGES:
This is a change order in the amount of $70,435.53 for additional materials and work associated to accommodate larger diameter footings for the shade structures at Victoria Park, and the increased playground structure footings for both Victoria and Demuth Park playgrounds.
CHANGES TO CONTRACT TIME:
There are no changes to the contract time.
Source of Funds:
Sufficient funds budgeted and available in project string 23-67-CAP IMPR-PARKIMP, Account No. 2613225-80000.
Item 1F - Page 102
Summary of Costs:
Original Contract Amount: $1,325,849.89 Original Contract Time: 550 Calendar days Previous Change Order Amount: $45,220.00 Previous Days Added: 0 This Change Order Amount: $70,453.53 Days Added: 0
Revised Contract Amount: $1,441,505.42 Revised Contract Time: 550 Calendar days I have received a copy of this Change Order and the above AGREED PRICES are acceptable to Contractor.
Contractor
Signature
NAME:
TITLE:
Date
City of Palm Springs
Recommended By:
David McAbee, Director of Public Works Date
Approved By:
Scott Stiles, City Manager Date
Attest By:
City Clerk Date
Attachments: (A) N/A
Distribution:
Original Conformed Copy: Conformed - File Copy:
Contractor (1) Engineering Pay File (1)
City Clerk (1) City Project File (1)
Purchasing (1)
Finance (1)
Item 1F - Page 103
CITY OF PALM SPRINGS
CONTRACT CHANGE ORDER
Purchase and Installation of Playground Equipment and Shade Structures at Demuth and Victoria Parks
Contract Change Order Number: 4
Date: April 3, 2024
Contractor: Project: Purchase & Installation of Playground Miracle Recreation Equipment Company Equipment and Shade Structures at 878 Highway 60 Demuth and Victoria Parks
Monett, MO 65708 Agrmt: 23C089
Attn: Kevin Walker PO: 24000226
CONTRACT CHANGE ORDER SUMMARY
This Contract Change Order No. 4 is for the deletion of Contract Change Order No. 3 line items and the inclusion of line items to adhere to revised structural engineering related to (i) removing existing concrete curb and adjacent sidewalk to accommodate larger diameter footing of shade structures; (ii) addition of oversized rebar cages; (iii) additional 26 CY of concrete; (iv) haul and disposal of excess soil; (v) construct curb, and pour new side walk; (vi) Cassion drill rig; (vii) add 8,081 sq ft pour in place rubber to increase rubber thickness from 6’ critical fall height to 8’ critical fall height; and (viii) playground footing changes for both Victoria and Demuth Parks. This Contract Change Order No. 4 provides for a decrease of $19,560.00, for a total Contract Amount of $1,421,945.42.
CONTRACT CHANGE ORDER NO. 3 COST REDUCTION
Item No. DESCRIPTION UNIT AMOUNT
CCO#3 V.1 Remove concrete curb and adjacent
sidewalk LS (7,254.00)
CCO#3 V.2 Excavation LS (1,971.00)
CCO#3 V.3 Oversized rebar cages, transport
oversized load LS (9,944.00)
CCO#3 V.4 254 CY concrete LS (24,528.00)
CCO#3 V.5 Construct curb and pour new sidewalk LS (7,938.00) CCO#3 V.6 Crane rental LS (1,358.50)
CCO#3 V.7 8,081 sq ft pour in place rubber LS (9,028.50) CCO#3 V.8 Victoria Park playground footing
changes LS (5,101.31)
CCO#3 D.1 Demuth Park playground footing
changes LS (3,312.22)
Total: ($70,435.53)
CONTRACT CHANGE ORDER NO. 4 COST
Item No. DESCRIPTION UNIT AMOUNT
CCO#4 V.1 Remove concrete curb and adjacent
sidewalk LS 6,850.00
CCO#4 V.2 Oversized rebar cages, transport
oversized load LS 6,404.00
CCO#4 V.3 26 CY concrete LS 4,620.00
CCO#4 V.4 Haul & disposal of excess soil LS 964.00
CCO#4 V.5 Construct curb and pour new sidewalk LS 8,174.00 CCO#4 V.6 Cassion Drill rig w/48” to 54” drillcan to
10’ depth LS 6,422.00
CCO#4 V.7 8,081 sq ft pour in place rubber LS 9,028.00
Item 1F - Page 104
CCO#4 V.8 Victoria Park playground footing
changes LS 5,101.31
CCO#4 D.1 Demuth Park playground footing
changes LS 3,312.22
Total: $50,875.53
REASON FOR CHANGES:
This is a change order in the amount of ($19,560.00) for modifications to work as detailed above to accommodate larger diameter footings for the shade structures at Victoria Park, and the increased playground structure footings for both Victoria and Demuth Park playgrounds.
CHANGES TO CONTRACT TIME:
There are no changes to the contract time.
Source of Funds:
Sufficient funds budgeted and available in project string 23-67-CAP IMPR-PARKIMP, Account No. 2613225-80000.
Summary of Costs:
Original Contract Amount: $1,325,849.89 Original Contract Time: 550 Calendar days Previous Change Order Amount: $115,655.53 Previous Days Added: 0 This Change Order Amount: ($19,560.00) Days Added: 0
Revised Contract Amount: $1,421,945.42 Revised Contract Time: 550 Calendar days I have received a copy of this Change Order and the above AGREED PRICES are acceptable to Contractor.
Contractor
Signature
NAME:
TITLE:
Date
City of Palm Springs
Recommended By:
Aaron Bergeson, Project Manager Date
Approved By:
David McAbee, Director of Public Works Date
Attest By:
City Clerk Date
Attachments: (A) N/A
Distribution:
Original Conformed Copy: Conformed - File Copy:
Contractor (1) City Project File (1)
Item 1F - Page 105
CITY COUNCIL STAFF REPORT
DATE: SEPTEMBER 26, 2024 CONSENT CALENDAR
SUBJECT: A PPROVE CONTRACT SERVICES AGREEMENT NO. 24B 211 WITH DÉCOR IQ, LLC FOR HOLIDAY DECORATIONS FOR PALM SPRINGS
INTERNATIONAL AIRPORT
FROM: Scott C. Stiles, City Manager
BY: Department of Aviation
SUMMARY:
This action will approve Contract Services Agreement No. 24B211 with Décor IQ, LLC, in an amount not to exceed $118,632.37 , for holiday decorations, installation, and storage services for the Palm Springs International Airport (Airport).
RECOMMENDATION:
1. Approve Contract Services Agreement No. 24B211 (Attachment A) with Décor IQ, LLC to provide holiday decorations, installation, and storage services for the Palm Springs International Airport in an amount not to exceed $118,632.37 for the initial three-year term beginning September 30, 2024, through September 29 , 2027, with two one-year extension options at the City’s sole discretion.
2. Authorize the City Manager or designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure form ( Attachment B) submitted on August 20, 2024, Décor IQ, LLC is registered in the states of Texas and California.
BACKGROUND:
The City requires the services of a contractor to provide holiday decorations for the Airport. Airport staff currently stores and maintains a portion of custom holiday lighting decorations, including a Hanukkah menorah, lighting, wreaths and garland.
On November 1, 2022, the Airport entered into a three- year, $71,721 contract service s agreement with Dekra-Lite Industries, Inc. for decorations and related services.
Item 1G - Page 1
City Council Staff Report
September 26, 2024 -- Page 2
Award Holiday Decorations Contract for Palm Springs International Airport
The Airport now seeks to award a new contract to manage the installation, maintenance, removal, and storage of the decorations ; purchase additional matching holiday decorations, which includes two new large-scale electric menorahs and Kwanza Kinara.
All holiday decorations must be installed no later than November 15th of each year.
STAFF ANALYSIS:
An Invitation for Bids (IFB 24-10) was initiated by the City’s Procurement and Contracting Department on May 28, 2024, based on the Department of Aviation specifications. Bids were solicited directly via the City’s procurement vendor portal, PlanetBids. In addition, the IFB was advertised in The Desert Sun. Three bids were received by the July 8, 2024, deadline as follows:
Vendor Bid
Decor IQ, LLC – San Antonio, TX (Local Office: Garden Grove, CA) $118,632.37 Dekra-Lite, LLC – Santa Ana, CA $136,548.68
BrightLife Designs, LLC – Huntington Beach, CA $130,586.10
To maintain and enhance the festive holiday ambiance of the Airport, staff recommends approval of Contract Services Agreement No. 24B211 with Décor IQ, LLC for an initial three-year term in the amount not to exceed $118,632.37, effective September 30, 2024, through September 29 , 2027, subject to two one- year optional renewals at the sole discretion of the City.
Staff recommends approval of awarding the holiday decorations contract to Décor IQ, LLC. Décor IQ, LLC provides professional installation and guarantees timely execution.
Décor IQ, LLC also handles ongoing maintenance, keeping decorations in good condition, and they offer eco-friendly options that meet our sustainability goals.
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 reasonabl y foreseeable indirect physical change in the environment. The requested action is to approve contracts for the above- mentioned services, and is exempt from CEQA pursuant to Section 15378(b), in that a “Project” does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
ALIGNMENT WITH STRATEGIC PLANNING:
Approval of this action supports City Council priority 2A, Community Infrastructure – Improve City Facilities.
Item 1G - Page 2
City Council Staff Report
September 26, 2024 -- Page 3
Award Holiday Decorations Contract for Palm Springs International Airport
FISCAL IMPACT:
Sufficient funds are budgeted in FY 2024- 25 in the Department of Aviation, Terminal Building Operations Account 4157050-40105. Sufficient funds will be budgeted in future fiscal years.
REVIEWED BY:
Executive Director of Aviation: Harry Barrett Jr.
Procurement and Contracting Director: Kim Baker
City Attorney: Oscar Verdugo
City Manager: Scott Stiles
ATTACHMENTS:
A. Contract Services Agreement No. 24B211
B. Public Integrity Disclosure
Item 1G - Page 3
ATTACHMENT A
CONTRACT SERVICES AGREEMENT NO. 24B211
WITH DECOR IQ, LLC
Item 1G - Page 4
CONTRACT SERVICES AGREEMENT 24B211
HOLIDAY DECORATIONS FOR PALM SPRINGS INTERNATIONAL
AIRPORT
THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into on September 30, 2024, by and between the City of Palm Springs, a California charter city and municipal corporation (“City”), and Décor IQ , LLC , a Texas and California corporation , (“Contractor”). City and Contractor are individually referred to as “Party” and are coll ectively referred to as the “Parties”.
RECITALS
A. City requires the services of a licensed and qualified firm to provide holiday decorations, installation, and storage for the Palm Springs International Airport, (“Project”).
B. Contractor has submitted to City a Bid to provide holiday decorations, installation, and storage for the Palm Springs International Airport , under the terms of this Agreement.
C. Based on its experience, education, training, and reputation, Contractor is qual ified 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 th e 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 1G - 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 $118,632.35.
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 service s 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 modificatio ns 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 pe rformance 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 F orce 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 fol lowing: (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 1G - Page 6
municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay, a nd extend the time for performing the Services for the period of the enforced delay when and if, in the Contract Officer’s judgment, such delay is justified.
The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. The Contractor will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement shall continue in full force and effect for a period of three years, commencing on September 30, 2024, and ending on September 29, 2027, 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 additional one-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 Cont ractor'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. COORDINATION OF WORK
5.1 Representative of Contractor. The following principal of Contractor is designated as being the principal and representative of Contractor authorized to act and make all decisions in its behalf with respect to the specified Services: Stacey Jordan, Vice President of Sales. 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 princi pal 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 p rior 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 Subcontracti ng 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 ap proval of Item 1G - 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 p art 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 otherwi se 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 limite d 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 pe rform 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:
Stacey Jordan Vice President of Sales
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, Co ntractor 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 Co de 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 1G - 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 loc al 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 th is 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 reco rds and transcripts from such records.
Item 1G - 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 ge nerally 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 rig hts 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 1G - 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 reli ef 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 sh all 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 1G - Page 11
To Contractor: Décor IQ, LLC
Attention: Stacey Jordan
14241 Commerce St.
Garden Grove, CA 92843
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 mod ifications 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 u pon 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 ade quately 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 San ctions 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 1G - 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 1G - Page 13
SIGNATURE PAGE TO CONTRACT SERVICES AGREEMENT
BY AND BETWEEN THE CITY OF PALM SPRINGS AND DÉCOR IQ, LLC.
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 1G - Page 14
EXHIBIT “A”
SCOPE OF SERVICES/WORK
Including,
Schedule of Fees
And
Schedule of Performance
Item 1G - Page 15
1.1 Background:
The City requires the services of a contractor to provide holiday decorations for the Palm Springs International Airport (PSP).
1.2 Scope:
A. Contractor shall furnish all necessary equipment, labor, and materials necessary to install, maintain, remove, transport, a nd store Pa lm Springs International Airport holiday decorations for the contract term.
1. See attachments photo of existing holiday decorations.
B. All holiday decorations shall be installed, tested and operational no later than November 15th of each year.
C. Contractor shall travel to the Orange County storage location to pick up existing holiday decorations to be moved and stored to their location.
D. Existing holiday decorations include the following and will also require annual installation, removal, storage, and maintenance:
1. 16’ Custom Multicolor Decorated Sequoia Tree with 36’ WW Moravian Star Topper and 4’ Custom Riser with Graphics.
2. Two 4’ Custom Multicolor Decorated Wreaths with WW LED Mini Lights and 80’ Custom Multicolor Decorated Garland, Lit with WW LED Mini Lights, each with 10’ feet of decorated and lite garland for placement along the second level walkway of the terminal.
3. One 9.5’ Custom Multicolor Decorated Mountain Pine Tree with Rolling Base.
4. 23 Customer Owned 10’ Mountain Pine Garland Pole Warps with Pink, Apple Green , Turquoise, and Silver Décor, Unlit.
E. The location for decorations shall be determined by the City and approved by the Contractor as to feasibility for installation. Contractor shall be allowed to install decoration hardware items, including but not limited to faceplates, cables, and anchor points within a reasonable time prior to actual installation dates. All hardware items shall remain in place between seasons.
F. City shall furnish adequate electrical power and suitable electrical connections as are customarily used in the electrical trade or required by Underwriter’s Laboratory within a reasonable area, not to exceed 20 feet of the decoration installation stie. Contractor shall provide extension cords for distances greater than 20 feet. The City warrants that the final electrical connection supplied shal l be suitable for the intended purpose and the City shall be responsible for payment for all electricity consumed by the decorations.
G. Contractor shall prior to installation, and periodically inspect and make necessary repairs including LED bulb replacement s, rewiring, and socket replacement as needed. This will be done at the sole cost and expense of the Contractor.
H. Contractor shall test and/or repair each decorative piece prior to hanging or installing.
I. Contractor shall be responsible for the transportation of holiday decorations and ladder(s) and/or scissor lift(s) for installation and removal.
J. Contractor shall respond to all observed failures and requests for service and correct any reported outages within 24 hours.
Item 1G - Page 16
K. Contractor shall remove, transport, and store all decorative elements in a secure storage location by January 10th of each year.
L. Contractor will provide and show proof of storage facility for City inspection.
M. Should the Airport not continue with the holiday decorative lighting prog ram in any given year, the Contractor will deliver all City owned equipment and materials to a City storage location determined by the Executive Director of Aviation or their designee.
N. Contractor shall work with the City and procure additional holiday deco rations at the sole discretion of the City. New commercial quality items to be purchased for the November 2024 install include:
1. 20+ foot tall Mosiac Tree (or similar style) – Winter Theme – includes Topper, Wall Washers, Frame, and Acrylic Panels. Commercial quality for indoor/outdoor use.
2. 12” Custom Multicolor Decorated Sequoia Tree with 36” WW Moravian Star Topper and 4” Custom Riser with Graphics. Commercial quality for indoor/outdoor use.
3. Two Large Electric Menorahs that are at least 5 feet tall for indoor/outdoor use.
4. Two lit Skyline decorative pieces.
5. Decorations must match existing Airport decorations and style. Current garland decorations are unlit and made of Mountain Pine garland with bulbs in the colors of Pink, Apple Green, Turquoise, and Silver. Trees are Sequoia with similar bulb decorations with white lights.
6. Approximate 5 -foot-tall electric Kwanzaa Kinara with no real candles, rated for indoor/outdoor use or a large-scale commercial Kinara suggestion,
1.3 Pricing:
1. The pricing included in this Contract shall be firm for the first year.
2. The unit prices may be adjusted (decreased or increased) once a year to correspond with the most recent annual change to the Consumer Price Index for All Urban Consumers as published by the U.S. Bureaus of Labor Stati stics for the Riverside- San Bernardino-Ontario Areas.
3. The City will only pay for the items listed on the bid form, and permit and disposal fees. This does not include access to public utilities. Contractor must incorporate all of its costs in its unit bid prices, including but not limited to labor, supervision, project management, overhead, profit, onboarding training, travel, mileage, truck charges, fuel charges, service call charges, parking, delivery, portal -to-portal charges, environmental fees, shop su pplies and consumable incidental materials. The City will not pay for subcontractors, rental of equipment/tools, and purchase of materials/supplies unless the City authorized payment of the applicable items.
1.4 Compensation:
Work will be compensated on a lump sum basis. For all services which the Contractor is obligated to perform under this Contract, the City shall pay to the Contractor per the bid provided by the Contractor and set out in Exhibit “A” of the Contract Services Agreement.
No additional compensat ion will be due by the City unless the contract is modified for additional work requested by the City.
1.5 Invoicing:
Item 1G - Page 17
Contractor will submit an itemized invoice monthly. Billings must reference a purchase order number and shall indicate the unit (contract) price. Contractor will be paid for the actual hours worked at the rates shown in the contract. Parts, materials, equipment, and subcontractor costs will be compensated at actual cost with receipts required with allowable markup as outline in the contract. Contractor shall break out the line items on the invoice in accordance with the line items on the bid form. Contractor must provide back-up documentation for materials, subcontractor, rented equipment, permits, disposal and recycling fees. Invoices that ar e submitted with incorrect prices may be returned for correction before any payments to the contractor are authorized. It shall be the contractor’s responsibility to submit a correct invoice. The City shall not be responsible for payment until a correct in voice is received. The invoice shall be accompanied by receipts, dated, and signed by a City Employee, verifying the work was done. Invoices and receipts will be submitted to the Contract Officer for approval. All invoices are to be sent as one document, per month to: [email protected].
Item 1G - Page 18
Item 1G - Page 19
ATTACHMENT G
BID FORM
INVITATION FOR BIDS (IFB 24-10)
HOLIDAY DECORATIONS FOR PALM SPRINGS INTERNATIONAL AIRPORT Responding to this IFB to provide holiday decorations as well as the instaflation, removal, storage, and maintenance ot eX1stmg no1iday aecorations for the Palm Sp<ings International Airpon (PSP), the undersigned bidder proposes and agrees to provide the services and wO(I( in accordance with the specifications. Bidder p<oposes and agrees to furnish all labor, equipment, materials, supervision. and service necessary to complete said Work in accordance with the Specifications of the City of Palm Springs and will accept as full payment therefore, the following unlt cost amounts.
The City of Palm Springs will not accept any additional charges, lees, etc. that are not already included or lncorp«ated in the below unit costs.
ITEM DESCRIPTION UNIT QUANTITY UNIT PRICE SUBTOTAL
20+ ft tall Mosiac Tree -
VVinter Theme; Includes
1 topper, wall washers. frame, EACH and acrylic panels. 1 $21,187 .96 $21,187.96 (commercial quallty for
outdoor use and litl
12" Custom Multicolor Star
2 Topper and 4" Custom Riser EACH 1 $9,165.71 $9,165.71 with graphics. (commercial
Qualitv for indoor/outdoor use\
Large Ele<:tric Menorahs that
3 are at least 5 feet tall for EACH 2 $3,591.67 $7,183.34 indoo<loutdoor use.
4 Lit Skyline Decorative pieces. EACH 2 $4,766.93 $9,533.86 Approxrnate 5-loot-tall
s electric Kwanza Kinara or EACH 1 $4,109 .15 $4,109.15 large sale commercial sunnestion.
Equipment, Labor, and
Material necessary to Install,
$22,484.1 1 $67,452.33 6 Maintain, Remove. Transport, Year 3 and Store holiday
decorations.
TOTAL (Enter this amount in Planet Bids) $118,632.35·
•pricing Includes sales tax at 9.25% on new items. If The airport is tax exempt the price wm be lower.
Item 1G - Page 20
Finn Name: . .;D;.;e;.;c;.;o.;.r.;.IQ=-------------------- Signature of Authorized Person: s~ y-t.dax,
Printed Name: Stacey Jordan
Title: Vice President of Sales
Date: 7/3/2024
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 1G - Page 21
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 sa tisfactory 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 t he 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 c laims 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 subro gation 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 liabili ty 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 Item 1G - Page 22
the amount required by this Agreement for at least three years after completion of Contractor’s services under this Agreement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy.
5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California . Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City.
6. Verification of Coverage . Contractor shall furnish City with both certificat es 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 res pects 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 3 0 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 lis ted 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 o r 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 ad ministration, and defense expenses. Certificates of Item 1G - Page 23
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 1G - Page 24
EXHIBIT “C”
Item 1G - Page 25
ATTA CHMENT "F"
EXECUTIVE ORDER: N-6-22 CERTIFICATION
INVITATION FOR BIDS (IFB 24-10)
HOLIDAY DECORATIONS FOR PALM SPRINGS INTERNATIONAL AIRPORT Executive Order N-6-22 issued by Governor Gavin Newsom on March 4, 2022, directs all agencies and departments that are subject to the Governor's authority to (a) terminate any contracts with any individuals or entities that are determined to be a target of econom ic sanctions against Russia and Russian entities and individuals; and (b) refrain from entering into any new contracts with such individuals or entities while the aforementioned sanctions are in effect.
Executive Order N-6-22 also requires that any contractor that: (1) currently has a contract with the City of Palm Springs funded through grant funds provided by the State of California; and/or (2) submits a bid or proposal or otherwise proposes to o r enter into or renew a contract with the City of Palm Springs wtth State of California grant funds, certify that the person is not the target of any economic sanctions against Russia and Russian entit ies and individuals.
The contractor hereby certifies, SUBJECT T O P ENALTY FOR PERJURY, that a) the contractor is not a target of any economic sanctions against Russian and Russian entities and individuals as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to legally bind the Contractor. This certification is made under the laws of the State of California.
Signature s~ ~~
Printed Name: Stacey Jo[dap
Title: Vice President of Sales
Firm Name: Decor IQ
Date: 7/3/2024
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 1G - Page 26
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 r epresentatives 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 1G - Page 27
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 s upervision, 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 t o 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 agreem ent 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 1G - Page 28
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 i ts 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 workin g 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
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FAA – 03 Breach of Contract
APPLICABILITY – required for all contracts that exceed the simplified acquisition threshold as stated in 2 CFR Part 200, Appendix II (A). This threshold is occasionally adjusted for inflation and is $250,000.
REQUIREMENT -
See Section 4.5 of the Agreement.
Reference: 2 CFR § 200 Appendix II(A)
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FAA – 04 Buy American Preferences
APPLICABILITY – required for contracts defined as follows:
• Construction Projects involving the replacement, rehabilitation, reconstruction of airfield surfaces such as on runways, taxiways, taxi lanes, 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 bi nding agents or additives that are or consist primarily of: non -ferrous metals; plastic and polymer -based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables); glass (including optic glass); lumber; or drywall used in the project are manufactured in the U.S.
Reference: Title 49 USC § 50101
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FAA – 05 Civil Rights General
APPLICABILITY – required for all contracts regardless of funding source.
REQUIREMENT -
In all its activities within the scope of it s 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, n ational 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 provisi on binds the Contractor and subcontractors from the bid solicitation period through the completion of the contract.
This provision is in addition to that required by Title VI of the Civil Rights Act of 1964.
Reference: 49 USC § 47123
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FAA – 06 Civil Rights – Title VI Assurances
APPLICABILITY – required for all contracts.
REQUIREMENT -
Title VI List of Pertinent Nondiscrimination Acts and Authorities During the performance of this contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “Contractor”) agrees to comply with the following non - discrimination statutes and authorities; including but not limited to:
• Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq., 78 stat. 252) (prohibi ts 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 Rehabilitatio n 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 Discrimina tion 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); • Exe cutive 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 1G - Page 33
reasonable steps to ensure that LEP persons have meaningful access to your programs [70 Fed.
Reg. 74087 (2005)];
• Title IX of the Educati on 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, o r 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 Autho rities, 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, eithe r 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 Reg ulations, 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 Ci ty 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 en forcing 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 i nto 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 t o 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 installa tion 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 violat ion 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 authoriz ed 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 defi ned 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 inclu de 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 Con tractor 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 1G - Page 39
FAA – 10 Davis Bacon Requirements
APPLICABILITY -
The Davis -Bacon Act (40 USC §§ 3141 -3144, 3146, and 3147) ensures that laborers and mechanics employed under the contract receive pay no less than the locally prevailing wages and fringe benefits as determined by the Department of Labor.
Contract Types –
Construction –all construction contracts and subcontracts that exceed $2,000 and include funding from the AIP.
Equipment – This provision applies to al l 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 employmen t 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 Secret ary 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 co sts 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 1G - Page 40
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. T he 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 un der 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 benefi ts, 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, Wa shington, 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 w age 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, advan ce, 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 therea fter 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 contributio ns 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 weekl y transmittals. Instead the payrolls shall only need to Item 1G - Page 42
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 L abor 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 apprentices hip 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 de termination 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 pai d 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 t o 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 r ate 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 l evel 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 menti on 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 1G - Page 44
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 s hall 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 t he 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.
Item 1G - Page 45
(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 presen tly 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 ent ered 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 Contr actor 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 satisfacto ry 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 t he 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 sp ecific 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 1G - Page 48
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 1G - Page 51
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 offsit e 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 appli cant 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, withou t 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; la yoff, 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 appli cant 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 employ ees or applicants as a part of such Item 1G - Page 53
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 c omplaint 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 lab or union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers’ representative of the Contractor’s commitments under this section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
(5) The Contractor will comply with all provisions of Execut ive 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, regu lations, 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 1G - Page 54
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 expect ed to make substantially uniform progress in meeting its goals in each craft during the period specified.
Item 1G - Page 55
5. Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the Contractor has a collective bargaining agr eement, 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 trai nees 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 a ssign two or more women to each construction project. The Contractor shall specifically ensure that all foremen, superintendents, and other onsite supervisory personnel are aware of and carry out the Contractor’s obligation to maintain such a working envir onment, 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 recruit ment 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 Contracto r 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 1G - Page 56
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 new s 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 m inority, 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 o ther 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 practic es 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.
Item 1G - Page 57
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 pro gram 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 Contrac tor 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 Of fice 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 1G - Page 58
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 change s 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
Item 1G - Page 59
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
Item 1G - Page 60
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 offi cer 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 an y 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
Item 1G - Page 61
FAA – 19 Prohibition of Segregated Facilities
APPLICABILITY - The Contractor must comp ly 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 rea l 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 contr ol 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 t hat 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 1G - Page 62
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 Administ ration (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 th eir 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
Item 1G - Page 63
FAA – 21 Procurement of Recovered Materials
APPLICABILITY – Contract Types – This provision applies to any contracts that include procurement of products designated i n 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 Recover y 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)
Item 1G - Page 64
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 1G - Page 65
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 involve s 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 equi valent 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 se ismic 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 o f 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 e quivalency level for seismic safety.
Reference: 49 CFR Part 41
Item 1G - Page 66
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 1G - Page 67
FAA – 25 Termination of Contract
APPLICABILITY – All contracts and subcontracts in excess of $10,000.
REQUIREMENT -
See Section 4.5 of the Agreement.
Reference: 2 CFR § 200 Appendix II(B), FAA Advisory Circular 150/5370-10, Section 80-09 Item 1G - Page 68
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 requ ire 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 wh ich 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 1G - Page 69
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 1G - Page 70
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 veteran s. 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 1G - Page 71
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, acquisitio n, 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 1G - Page 72
ATTACHMENT B
PUBLIC INTEGRITY BUSINESS DISCLOSURE
Item 1G - Page 73
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
1. Name of Entity
2. Address of Entity (Principal Place of Business)
3. Local or California Address (if different than #2)
4. State where Entity is Registered with Secretary of State If other than Califor
nia, is the Entity also registered in California? Yes No
5. Type of Entity
Corporation Limited Liability Company Partnership Trust Other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust, or other entity
________________________ Officer Director Member Manager [name] General P artner Limited Partner
Other ___________________________
_______________________________ Officer Director Member Manager [name] General Partner Limited Partner
Other __________________________
________________________________ Officer
Director Member Manager
[name] General Partner Limited Partner
Other __________________________
Decor IQ, LLC
1310 W Laurel, San Antonio TX 78201
14241 Commerce Dr, Garden Grove, CA 92843
Texas
John Alban
Mark Metzger
Item 1G - Page 74
I l
-
-
-
✓
-
✓
✓
-
-
✓
-
L
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity
EXAMPLE
JANE DO
E
[name of owner/i nvestor]
50%, A
BC COMPANY, Inc.
[percentage of beneficial interest in entity and
name of entity]
A.
[name of owner/i nvestor]
[percentage of beneficial interest in entity and
name of entity]
B.
[name of owner/i nvestor]
[percentage of beneficial interest in entity and
name of entity]
C.
[name of owner/i nvestor] [percentage of beneficial interest in entity and name of entity]
D.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
E.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
Signature of Disclosing Party, Printed Name, Title Date John Alban
50%
Mark Metzger
50%
John Alban, President
8/20/24
Item 1G - Page 75
CITY COUNCIL STAFF REPORT
DATE: SEPTEMBER 26, 2024 CONSENT CALENDAR
SUBJECT: APPROVAL OF AMENDMENT NO. 3 TO CONTRACT SERVICES AGREEMENT NO. A8535 WITH ABM AVIATION, INC. FOR PARKING
MANAGEMENT SERVICES AT THE PALM SPRINGS INTERNATIONAL
AIRPORT
FROM: Scott C. Stiles, City Manager
BY: Department of Aviation
SUMMARY:
This action will approve Amendment No. 3 (Amendment) to Contract Services Agreement No. A8535 (Agreement) with ABM Aviation, Inc. (ABM), for year-round parking lot shuttle services, to increase parking staff, and to extend the Agreement term for one year, for an additional amount of $2,674,475 and a total revised contract amount not to exceed $6,945,271 at the Palm Springs International Airport (Airport).
RECOMMENDATION:
1. Approve Amendment No. 3 to Contract Services Agreement A8535 (Attachment A) with ABM Aviation, Inc., for year-round parking lot shuttle services, to increase parking staff, and to extend the Agreement term for one year, June 1, 2025 to May 31, 2026, for an additional amount of $2,6 74,475 and a total revised contract amount not to exceed $6,945,271.
2. Authorize the City Manager or designee to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure Form (Attachment B) submitted on June 17, 2024, ABM Aviation, Inc. is registered in the State of California.
BACKGROUND:
Palm Springs International Airport has four paid public parking lots; Parking Lots A, B, C, and D, that are open daily and provide a total of 880 parking spaces. Additionally, the Item 1H - Page 1
City Council Staff Report
September 26, 2024 -- Page 2
Approval of Amendment No. 3 to Contract Services Agreement No. A8535 with ABM Aviation, Inc.
Airport has an overflow parking lot that is opened for paid public parking when Parking Lots A through D have a remaining vacancy of 25 parking spaces. The overflow parking lot provides an additional 837 parking spaces, and a shuttle service is provided to shuttle Airport customers to and from the Airport main terminal and the overflow parking lot.
For the last 24 years, the Airport has utilized contracted services to manage the Airport’s parking operations, and for the last 19 years, the contracted services have also included a taxi starter booth attendant and terminal curbside t raffic enforcement to meet the demands of the Airport’s public transportation needs and traffic demands.
On April 2, 2020, the City Council approved Contract Services Agreement No. A8535 with ABM Aviation, Inc. to provide parking management services at the Airport, for a five-year term from June 1, 2020, through May 31, 2025 for an amount of $4,270,796.
On May 28, 2020, the City and ABM entered into Amendment No. 1 to temporarily decrease staffing levels to a minimum staffing level to account for markedly decreased passenger activity due to the COVID-19 pandemic.
On April 5, 2021, the City and ABM agreed to restore the staffing levels to “Non- Peak” staffing levels.
On September 30, 2021, the City Council approved Amendment No. 2 to designate ABM as the merchant of record to process the debit and credit card transactions for patrons of the paid parking facilities and to record September as a “Non-Peak” month.
In November 2021, the Airport’s passenger numbers began to increase at a much higher rate than staff had anticipated requiring ABM to provide additional shuttle services which was billed at an additional hourly rate. From November 2021 to May 2024, the Air port incurred an additional 4,572 shuttle service hours for an additional cost of $121,500.
Remaining funds from unbilled management fees for Year 1 and Year 2 of the Agreement were carried over and covered the additional shuttle costs.
STAFF ANALYSIS:
The Airport has experienced significant growth in parking transactions over the past four years. Following challenges in 2020, there has been a remarkable recover y and continued growth. From 2020 to 2021, parking transactions surged by 46.11%, indicating a strong rebound in travel activity as pandemic restrictions eased. The upward trend continued into 2022, with a 29.67% increase over 2021, suggesting sustained recovery and growing passenger numbers. Growth moderated in 2023, with a 2.54% increase over 2022, indicating a stabilization of parking demand at a higher level. While the Airport cannot yet make a full year -over-year comparison for 2024, the partial year data of 120,964 transactions suggests continued strong performance. Chart 1 below identifies the sustained growth.
Item 1H - Page 2
City Council Staff Report
September 26, 2024 -- Page 3
Approval of Amendment No. 3 to Contract Services Agreement No. A8535 with ABM Aviation, Inc.
Chart 1
The Agreement’s scope of work requires ABM to perform Airport shuttle operations to and from the overflow parking lot or designated location on the Airport property during all periods that capacity in the parking lots A through D exceed 90%, as part of the base management.
The scope of work also requires that shuttle service for holiday parking (Thanksgiving, Christmas, and New Year) should be considered as part of the base management fee, at such time as the public parking lot exceeds ninety percent (90%) capacity.
Holiday shuttle service provides passenger pick-ups every ten to fifteen minutes. (For the 2014 holiday season, the Contractor provided service for a combined twenty-three days, as part of the management fee.)
Additional shuttle services, as may be required from time to time, should be provided as a separate hourly charge and would be approved in addition to services provided in the base management fee. The management fee will consider a maximum of twenty-five days of shuttle service annually, up to but not to exceed twenty hours per day. Additional, shuttle hourly service charge to be approved separately. 18,976 22,132
14,554
1,207 2,328 3,595 4,062 4,415 4,542 6,268 7,480 6,927
6,602
7,541
11,760
12,143 11,755 10,809 11,675 10,776 10,199
14,302 16,268 17,150
14,631
17,078 22,902
18,337 14,068 11,439 11,216 11,071 11,244
14,856
17,652 18,319
18,906
20,757
23,908
18,589
14,099
10,737 10,463 9,955 10,414
15,079
16,714 17,828
18,799
20,321
23,830
17,963
14,217
10,858
14,976
-
20,000
40,000
60,000
80,000
100,000
120,000
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
Total Parking Transactions - PSP
2020 2021 2022 2023 2024
Item 1H - Page 3
City Council Staff Report
September 26, 2024 -- Page 4
Approval of Amendment No. 3 to Contract Services Agreement No. A8535 with ABM Aviation, Inc.
For several years, the Airport’s monthly passenger numbers have increased at record- breaking rates. This surge has created a higher demand for parking and necessitated the frequent opening of the overflow parking lot during the peak seasons. As previously mentioned, ABM’s management fee covers shuttle services when parking lot capacity exceeds 90%. However, when capacity falls below 90% and vehicles remain in the overflow lot, shuttle services must continue, and ABM charges the Airport an hourly rate for these additional services.
To keep up with the parking demand and to ensure exceptional customer service, staff is recommending that the Airport provide year-round shuttle services; including May through September, to ensure safe and efficient access to the terminal. Additionally , staff proposes adding a Shuttle/Curbside Supervisor position to assist with passenger ingress and egress, oversee curbside and shuttle operations, and drive a shuttle bus during peak periods when multiple shuttles are needed. Implementing the additional shuttle services can also be a benefit towards bridging the gap if shuttle services are required for the future rental car facilities. Staff has determined the need to increase the Traffic Enforcement Officers hours from 39 to 48 hours and the Taxi Starters hours from 17 hours to 20 hours.
To ensure the continuity of the Airport’s parking management operations, the Airport staff is also recommending a one-year extension to the Agreement for June 1, 2025 to May 31, 2026. The Airport intends to issue a request for proposal for future services prior to the expiration of the Agreement with ABM.
ENVIRONMENTAL ASSESSMENT
:
The requested City Council action is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. The requested action is to approve contracts for the above- mentioned services, and is exempt from CEQA pursuant to Section 15378(b), in that a “Project” does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
FISCAL IMPACT:
Sufficient funds are budgeted and available in Fiscal Year 2024- 25 in the Department of Aviation, Landside Operations Account 4157040-40105, and funds will be budgeted for Fiscal Year 2025-26.
Item 1H - Page 4
City Council Staff Report
September 26, 2024 -- Page 5
Approval of Amendment No. 3 to Contract Services Agreement No. A8535 with ABM Aviation, Inc.
REVIEWED BY:
Executive Director of Aviation: Harry Barrett Jr.
Procurement and Contracting Director: Kim Baker
City Attorney: Oscar Verdugo
City Manager: Scott Stiles
ATTACHMENTS:
A. Amendment No. 3 to Contract Services Agreement No. A8535 B. Public Integrity Disclosure Form
Item 1H - Page 5
ATTACHMENT A
AMENDMENT NO. 3 TO
CONTRACT SERVICES AGREEMENT N
O. A8535
Item 1H - Page 6
Revised: 10.31.23
AMENDMENT NO. 3 TO THE CONTRACT SERVICES AGREEMENT
NO. A8535 BETWEEN THE CITY OF PALM SPRINGS AND ABM
AVIATION INC.
1. Parties and Date.
This Amendment No. 3 t o the Contract Services Agreement (“Amendment No. 3”) is made and entered into as of October 1, 2024, by and between the City of Palm Springs (“City”) and ABM Aviation Inc., a Georgia Corporation, (Contractor). City and Contractor are sometimes individually referred to as “Party” and collectively as “Parties.”
2. Recitals.
2.1 Agreement. The City and Contractor have entered into an agreement entitled “Contract Services Agreement No. A 8535” dated April 1, 2020 (“Agreement”) for the purpose of providing parking management services at the Palm Springs International Airport and with the City acting as the merchant of record, for an amount of $4,270,796 and a term of five-years from June 1, 2020 to May 31, 2025.
2.2 Amendment No. 1. On May 28, 2020, Parties entered into Amendment No. 1 to the Agreement to provide to the City the administrative rights to decrease the scope of minimum services required for airport parking management services to address the global COVID-19 pandemic affecting regional and/or international travel.
2.3 Amendment No. 2. On August 8, 2021, Parties entered into Amendment No. 2 to the Agreement to amend the scope of services and to allow the Contractor to act as the merchant of record.
2.4 The City and Contractor desire to amend the Agreement to increase compensation to extend the term for one year, upgrade the credit card payment terminals to EMV contactless payment terminals, increase staffing, staffing hours, hourly staff rates, and shuttle services.
2.5 Amendment Authority. This Amendment No. 3 is authorized pursuant to Section 2.3 of the Agreement.
3. Terms.
3.1 S ection 1.1 Scope of Services. Exhibit “A” of the Agreement is replaced by Exhibit “A1”, to upgrade the credit card payment terminals to EMV contactless payment terminals, increase staffing, staffing hours, hourly staff rates, and shuttle services attached hereto to this Amendment and incorporated herein by this reference . All references to Exhibit “A” within the Agree ment shall hereafter refer to Exhibit “A1”.
3.2 Increase to Section 2.1 Maximum Contract Amount. The Maximum Contract Amount outlined in Section 2.1 of the Agreement is hereby increased in the amount of $2,674,475 for a new Item 1H - Page 7
Revised: 10.31.23
not to exceed maximum contract amount of $6,945,271. In addition, Exhibit “F” of the Agreement is hereby replaced by Exhibit “F1”, attached hereto to this Amendment No. 3 and incorporated herein by this reference. All references of Exhibit “ F” within the Agreement shall hereafter refer to Exhibit “F1”.
3.3 Section 3.4 Term. Section 3.4 of the Agreement is hereby amended in its entirety to read as follows:
“Unless earlier terminated in accordance with Section 3.5 of the Agreement, this Agreement shall continue in full force and effect for a period of six years, commencing on June 1, 2020 and ending on May 31, 2026. This Agreement may be extended by mutual written agreement of the Parties.”
3.4 Continuing Effect of Agreement. Except as amended by this Amendment No. 3, all other provisions of the Agreement remain in full force and effect and shall govern the actions of the parties under this Amendment No. 3. From and after the date of this Amendment No. 3, whenever the term “Agreement” or “Contract” appears in the Agreement, it shall mean the Agreement as amended by this Amendment No. 3.
3.5 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 3.
3.6 Severability. If any portion of this Amendment No. 3 is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.7 Counterparts. This Amendment No. 3 may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
Item 1H - Page 8
Revised: 10.31.23
SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND ABM AVIATION INC.
IN WITNESS WHEREOF, the Parties have executed this Amendment No. 3 as of the dates stated below.
CONTRACTOR:
By: _____________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _________ Item No. _______
APPROVED AS TO FORM: ATTEST:
By: ______________________________ By: _______________________________ City Attorney City Clerk
APPROVED:
By: ______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
Item 1H - Page 9
Revised: 10.31.23
EXHIBIT “A1”
SCOPE OF SERVICES
General Overview
Contractor must provide all personnel, personnel bonds, personnel uniforms, materials, equipment, radios, vehicles, supervision and other items necessary to:
1. Operate and manage Airport public parking lots.
2. Collect all parking lot fee s and charges (including the secure processing of credit card and debit card charges) legally due, and provide bookkeeping, accoun�ng, and audit services with respect thereto. Daily deposit of funds, with all necessary suppor�ng documenta�on made directly to the City Finance Department.
3. Contractor shall operate, service, maintain, and repair all parking lot equipment including parking lot revenue control and access equipment as part of the management fee.
4. Report and arrange for improperly parked or abandoned vehicles to be removed from the parking lots.
5. Perform nightly license plate inventory of all vehicles parked in parking lots. This informa�on must be logged into a database that is accessible to Airport management.
6. Provide and/or arrang e for basic vehicle emergency services (i.e. jump -starts, keys locked in vehicles, and towing).
7. Keep parking lots safe and secure, in a clean, liter-free condi�on. Report all concerns.
8. Provide a designated number of traffic enforcement officers (TEO, see Atachment" H" of the RFP and incorporated herein in Exhibit " F1") performing in an orderly, diploma�c, and courteous manner.
Ensure the safe movement of vehicular and pedestrian traffic on the Airport roadways in front of the terminal and in the parking lots, and other areas as may be required.
9. Provide a designated number of taxi control officers to ensure the safe and efficient movement of commercial vehicles and taxi queuing (see Atachment "H" of the RFP and incorporated herein in Exhibit" F1").
10. From October to May, provide a designated number of shutle bus drivers to operate shutle bus for the safe and efficient transporta�on of Airport passengers to and from the overflow parking lot or designated loca�on on the airport property (see Exhibit “F1”).
11. From June to September, perform Airport shutle bus opera�ons to and from the overflow parking lot or designated loca�on on the airport property during all periods that capacity in the parking lot exceeds ninety percent (90%) to be provided as a separate hourly charge and would be approved in addi�on to services provided in the base management fee services (see Exhibit “F1”).
12. Provide shutle bus dispatching services when the overflow lot is opera�onal.
Item 1H - Page 10
Revised: 10.31.23
13. Assure adherence to airport parking and grounds transporta�on procedures/ regula�ons.
Observe and report any discrepancies.
14. Provide various daily and monthly reports, accoun�ng records, and other sta�s�cal data requested by the City.
15. Ensure that personnel u�lized for each component of the Agreement receive the appropriate level of training prior to assignment so that they may exercise their du�es in an exemplary manner.
Maintain current personnel manual.
16. Implement a proposed Parking Facility Revenue Control System Investment consistent with each component of the Agreement as provided (Exhibit "E"). All equipment must be compliant with payment card industry (PCI) standards. All parking equipment will be a fully integrated system.
Facility Descrip�on, Repor�ng Requirements and Equipment
The automobile parking facili�es to be managed and operated by Contractor consist of the following, including six (6) entry lanes, each with a �cket dispenser, and one (1) toll plaza with two (2) exit booths, one (1) express exit lane with one (1) addi�onal express exit on booth #1, and one (1) pay- on- foot sta�on located within the Terminal. It will be necessary to add revenue control equipment at the overflow parking entry prior to October 1, 2016. All equipment to be compliant with payment card industry (PCI) standards. These loca�ons shall be referred to collec�vely as the" Airport Parking Facili�es":
A. Public Parking Lot.
The public parking lot is located generally west of the Terminal, as shown on Exhibit "D" atached hereto and incorporated by reference herein. At the �me of execu�on of this Agreement, said lot has parking capacity for approximately nine hundred and thirty-six (936) vehicles in the parking area.
B. Public Overflow Parking Lot.
The overflow parking lot is located generally south of the Terminal, on Kirk Douglas Drive, as shown on Exhibit "D" of the RFP . At the �me of execu�on of this Agreement, this lot has the capacity for approximately one thousand (1,000) vehicles.
C. ADA Parking.
There are currently thirty-one (31) ADA parking spots located within the public parking lot. The spots are located nearest the passenger terminal.
D. Employee Parking Lot.
The Employee Parking Lot is managed and permited by airport staff. The Contractors employees will be issued permits to park their personal vehicles in this lot while on duty, currently there is no charge Item 1H - Page 11
Revised: 10.31.23
for the first permit to the employee. Lost permits are subject to replacement cost charges. No personal vehicles of the Contractor are to park in the public parking lots while on duty.
E. Future Parking Facili�es.
City shall have the right, at any �me during the term of this Agreement, including any extensions thereto, to improve, expand, replace, or modify any or all of the Airport Parking Facili�es, and/ or any equipment or appurtenances thereto. City reserves the right to construct addi�onal parking facili�es to serve the Terminal. Upon thirty (30) days writen no�fica�on by the City to the Contractor, any such modified, expanded, or addi�onal parking facili�es shall be included within the Airport Parking Facili�es and shall be subject to this Agreement.
F. Management.
Provide highly qualified on-site manager. The contractor will provide an Assistant Manager during the absence or unavailability of the Parking Manager, to represent and act for Parking Manager with like authority. The Manager or Assistant Manager will be available seven (7) days a week. The Parking Manager shall not be concurrently assigned or employed in any capacity with the management or opera�on of any other automobile parking facility or enterprise whatsoever during the tenure of such Parking Manager at the Airport.
G. Shutle/Curbside Supervisor.
The Shutle/Curbside Supervisor provides assistance with both ingress and egress of passengers and oversees and responds to curbside and shutle bus needs. The Shutle/Curbside Supervisor will also be available to assist during peak periods to drive the shutle bus when demand requires the opera�on of mul�ple shutles.
H. Traffic Enforcement Officer (TEO).
TEO' s are responsible for compliance with Federal regula�ons, regarding vehicle and traffic standards. They provide customer service by answering passenger ques�ons and summoning skycaps. They report unatended luggage and vehicles, issue cita�ons and monitor for unauthorized commercial ground vehicle operators.
I. Taxi Starter.
Taxi Starters provide passenger assistance with forming an orderly queue line before being directed to the next available ride and ensure adequate cabs are available for customer demand. Verify compliance with Public U�lity Commission (PUC) and other local regula�ons. These include, but are not limited to, dress codes, waybills, Transporta�on Commercial Permit (TCP) numbers displayed properly, commercial vehicle license plate checks, and PSP issued transponders. The Taxi Starter is to check vehicle creden�als and monitor for compliance.
Item 1H - Page 12
Revised: 10.31.23
J. Cashier.
Contractor shall be responsible for hiring, training and supervising an adequate number of supervisory and opera�ng personnel with appropriate skills to ensure full p erformance of Contractor's management and opera�on services.
K. Shutle Bus Driver.
Shutle bus drivers provide safe and efficient shutle bus transporta�on of Airport passengers to and from the overflow parking lot or designated loca�on on the airport property.
L. Hours of Opera�on.
Contractor shall keep the Airport Parking Facili�es open for use by the public and by authorized employees a minimum of ninety (90) minutes prior to the first commercial aircra� departure and a minimum of one (1) hour a�er the last commercial aircra� arrival, to include delayed flights. In the event of irregular opera�ons, the airport control center will no�fy the parking atendant with the required schedule to operate the exit booth. This will include seven (7) da ys a week, including all weekends and holidays.
M. Supervision of Vehicular Movement and Parking.
Contractor shall maintain adequate supervision and control over vehicular entrances, exits and movement lanes so as to maintain at all �mes the safe, orderly, efficient and �mely flow of traffic through the Airport Parking Facili�es.
The scope of this sec�on par�cularly refers to the requirement for Contractor to staff and operate an adequate number of addi�onal exit lanes to accommodate varying volume s of exit traffic, without unreasonable delays. Unreasonable delays are considered to be any delay in excess of six (6) minutes.
Contractor shall maintain on file with Contract Administrator a current writen schedule showing the daily hours of opera�on of each exit lane. Contract Administrator may require an expansion or reduc�on to the schedule as appropriate to accommodate exi�ng vehicle volumes and paterns.
N. Daily Inspec�on of Facili�es.
Throughout the term of this Agreement, Contractor shall , on a daily basis, conduct a thorough and detailed inspec�on of Airport Parking Facili�es, to determine if any unclean or poten�ally hazardous condi�on to the public exists. The results of each such inspec�on shall be recorded in wri�ng upon a report form and submited during the same business day.
Item 1H - Page 13
Revised: 10.31.23
O. Capital Investment.
Contractor shall be responsible for all capital investment to upgrade the exis�ng revenue control equipment and add all equipment necessary to accommodate a fully func�onal system that will be ninety nine percent (99%) reliable, accurate and opera�onal during all weather condi�ons (e. g., rain, wind, dust, heat, etc.) throughout the term of this agreement. The revenue control equipment upgrades shall be completed no later than July 1, 2016.
The Contractor's capital investment shall also include any vehicles and equipment that will be necessary to perform the day- to- day func�ons for the services required.
P. Equipment Maintenance.
Contractor shall have responsibility for maintaining and opera�ng all parking equipment and vehicles necessary to meet the project scope requirements. Contractor shall be responsible for all revenue control equipment maintenance and repair upon the date of contract commencement. Contractor shall neither have nor allow access to parking lot transac�on coun�ng devices associated with exit gates, except in the presence of the City authorized representa�ve. Addi�onally, Contractor’s personnel shall witness all access to such parking lot transac�on coun�ng devices.
Contractor shall no�fy City when maintenance is needed on any City- owned equipment. Contractor shall provide City with access to such devices, upon request. Contractor shall give the Contract Administrator immediate oral no�ce of any malfunc�on or breakdown of any parking lot equipment supplying audit data or affec�ng parking lot ingress or egress and shall give the Contract Administrator no�ce of the date and �me such malfunc�on or breakdown is corrected and repaired.
Contractor shall transmit writen confirma�on on all such informa�on to the Contract Administrator, within twenty-four (24) hours.
Q. Tickets.
Contractor shall provide all �ckets necessary for use in the Parking Lots that are subject to this agreement and shall issue, collect and retain such �ckets in accordance with terms of this Agreement.
Such �ckets shall be sequen�ally pre- numbered, accurately dated, and accurately �me- stamped as to the �me each vehicle enters and exits such parking lot. Tickets issued for use shall be collected at the �me of vehicle exi�ng the public parking lots.
On- site Manager: Contractor shall provide an On -site Manager for day-to-day opera�ons and who will also act as the local point of contact. Manager will provide repor ts as needed, respond to complaints, training needs, will track working hours, and supervise the contract personnel. Any disciplinary ac�on will be the responsibility of On-site Manager and Contractor. The On- site Manager shall meet with the Contract Administrator or designee weekly to discuss any complaints or viola�ons of the Performance Standards that may be reported by the public or observed by the City.
Item 1H - Page 14
Revised: 10.31.23
Complaints to the City regarding contract employees: Contractor' s assigned On- site Manager shall inves�gate and report any complaints regarding their employees received from the public or the City within twenty-four (24) hours of the report. The City shall reserve the right to contact the repor�ng party and Contractor employee as needed to resolve the complaint to the City' s sa�sfac�on, with the understanding that unprofessional or discourteous treatment of the public will not be tolerated.
City' s Rights: City reserves the right to establish, modify, add or delete hours of management.
City further reserves the right to approve or deny Contractor' s personnel. The City retains the right to review and direct modifica�on of any Contract employee training program. The City' s rights under this provision may be exercised by the City Manager or the City Manager's designee.
PARKING OPERATIONS EQUIPMENT, SERVICES AND SUPPLIES TO BE PROVIDED BY CONTRACTOR:
Contractor Employee Uniforms:
• All personnel shall wear uniforms while on duty.
• Contractor shall be responsible for providing personnel with proper, complete, and acceptable uniforms.
• Uniform shall include a name badge or tag. Uniforms and iden�fying badges shall be dis�nct enough from those used by Peace Officers or other sworn personnel so that the general public will not mistake traffic enforcement personnel (TEO) for Peace Officers. • Contractor shall not issue any. uniform or iden�fying badge without the prior writen approval by the City.
• Contract employees will not be allowed to work unless a�red in complete approved uniform. • Contractor shall provide uniforms for each contract employee at no expense to the employee, except in cases of negligence or abuse of the uniform by the contract employee. • Contractor shall provide five (5) EMV unatended credit card terminals and two (2) EMV atended credit card terminals
Item 1H - Page 15
Revised: 10.31.23
EXHIBIT “F1”
Proposed equipment replacement or upgrades necessary for the contract term:
• The equipment maintenance will be the responsibility of the Contractor over the term of this agreement, the cost should be included in the management fee. The Airport does not have details for the historical maintenance of the equipment.
• The cost for all miscellaneous supplies/equipment such as radios, handheld unit for daily vehicle inventories, phone lines, data lines, �ckets, receipts, equipment maintenance, signage and uniforms.
• Cleaning the parking offices and all parking booths is the responsibility of the contractor.
Major grounds and parking lot clean- up Is the responsibility of the Airport staff.
• The hourly quote for addi�onal shutle services should be for hours in excess of the base amount. The hourly cost Is to include all costs of the shutle opera�on. • Credit card fees will be the responsibility of the City and should NOT be included in the management fee.
The list provided will include all approved equipment to be amor�zed over the five (5) year contract term. To be included in the management fee.
Equipment Loca�on Make / Model
PSP Airport SkiData Revenue Control Equipment
PSP Airport SkiData Upgrade (Refresh Care)
PSP Airport SkiData Upgrade (P2P)
PSP Airport 4 Person Golf Cart
PSP Airport SkiData Maintenance contract (extended) PSP Airport Handheld radios
PSP Airport Computers
PSP Airport Ford Transit Shutle Bus
PSP Airport Ford E-Transit 350 Shutle Bus
PSP Airport 3C P2PE EMV Credit Card Unatended Terminal PSP Airport 3C P2PE EMV Credit Card Atended Terminal
Item 1H - Page 16
Revised: 10.31.23
TOTAL PROPOSED ANNUAL MANAGEMENT FEE
Contractor is responsible for maintaining the Skidata system, so�ware licensing, repairs, parts, maintenance and all others costs to operate the fully opera�onal, PCI compliant revenue control equipment through the term of the agreement.
Inclusive of ALL labor, payroll, materials, equipment, opera�ng expenses and facility Investment.
SCHEDULES:
To Be Amor�zed Over Six (6) Years:
Year 1 (June 1, 2020 — May 31, 2021)
$ 780,888
Year 2 (June 1, 2021 — May 31, 2022) $ 808,838
Year 3 (June 1, 2022 — May 31, 2023) $ 856,779
Year 4 (June 1, 2023 — May 31, 2024) $ 891,047
Year 5 (June 1, 2024 — May 31, 2025) $ 1,707,467
Year 6 (June 1, 2025 — May 31, 2026) $ 1,900,252
Grand Total Management Fees for Six (6) Years $ 6,945,271 Item 1H - Page 17
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20 20
20 20
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77 700 007 77 7 7 7 7 7 7 7 7 7 7 7 7 7 7 1.40
Shuttle Dnv..- (Octob...- - Mavl
0.00 1:00 2'00 3:00 4:00 5:00 6:00 7:00 81)0 9:00 10:00 11:CXl 1.2:00 13:CXl 14:00 15:00 16:00 17:00 1800 19:00 2000 21:00 2200 23:00 Tota l 22 22
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770 07 7777 7 7 7 7 7 7 7 7 7 7 7 7 7 7 7 1.54
Curbsi d e/ Sl,Jttle Supervso r (June l'Vtl •;)
0:00 1:00 2:00 3:00 4:00 5:00 6:00 7:00 81)() 9:00 10:00 11:00 12:00 13:00 14:00 15:00 16:00 17:00 lBOO 191)() 2000 21:00 22:00 23:00 Tota l 16 16
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Revised: 10.31.23
Item 1H - Page 18
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-Sunday
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2 2 0 0 1 1 1 1 2 2 2
2 2 0 0 1 1 1 1 2 2 2
2 2 0 0 1 1 1 1 2 2 2
2 2 0 0 1 1 1 1 2 2 2
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2 2 2 2 2 3 3
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48 48
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ATTACHMENT B
PUBLIC INTEGRITY BUSINESS DISCLOSURE
Item 1H - Page 19
CITY OF PALM SPRINGS – PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
(Revised 09 13 18)
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
1. Name of Entity
2. Address of Entity (Principle Place of Business)
3. Local or California Address (if different than #2)
4. State where Entity is Registered with Secretary of State If other than California, is the Entity also registered in California? X Yes
5. Type of Entity No
X Corporation Limited Liability Company Partnership Trust Other (please specify) 6. Officers, Directors, Members, Managers , Trustees, Other Fiduc iaries (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 ____See Attached. _____________________________________________ Officer Director Member
Manager [name]
General Partner Limited Partner
Other ____________________________________
_________________________________________________ Officer Director Member Manager [name]
General Partner Limited Partner
Other ____________________________________
_________________________________________________ Officer Director Member Manager [name]
General Partner Limited Partner
Other ____________________________________
ABM Aviation, Inc.
14141 Southwest Frwy, Ste 400, Sugar Land TX 77478
3300E Tahquitz Canyon Way Palm Springs, CA, 92262-6966
Georgia
Item 1H - Page 20
CITY OF PALM SPRINGS – PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
(Revised 09 13 18)
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity
EXAMPLE
JANE DOE
[name of owner/investor]
50%, ABC COMPANY, Inc.
[percentage of beneficial interest in entity
and name of entity]
A.
[name of owner/investor] [percentage of beneficial interest in entity
and name of entity]
B.
[name of owner/investor] [percentage of beneficial interest in entity
and name of entity]
C.
[name of owner/investor] [percentage of beneficial interest in entity
and name of entity]
D.
[name of owner/investor] [percentage of beneficial interest in entity
and name of entity]
E.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
Signature of Disclosing Party, Printed Name, Title Date ABM Industries Incorporated 100%, ABM Aviation ,Inc.
Item 1H - Page 21
ABM AVIATION, INC.
Name
Scott Salmirs
Rene Jacobsen
Sean Bromfield
Harmar Denny
Camillo Simms
Brad Lurie
Lawrence DeLuca
Paul Shira
David Goldman
Dean
A. Chin
Scott Flynn
Jacob Thomas
Title
Director
Dir
ector
President
Senior Vice President
Senior Vice President
Senior Vice President
Vice President
Vice President
Secretary
Treasurer
Assistant S
ecretary
Assistant Secretary
Item 1H - Page 22
CITY COUNCIL STAFF REPORT
DATE: SEPTEMBER 26, 2024 CONSENT CALENDAR
SUBJECT: APPROVE AMENDMENT NO. 2 TO MAINTENANCE AGREEMENT NO.
A8310 WITH SIGNATURE TECHNOLOGIES, INC. DBA COM -NET
SOFTWARE TO PROVIDE SOFTWARE, MAINTENANCE, AND
SERVICES FOR FLIGHT INFORMATION SYSTE MS DISPLAY
SOFTWARE AT THE PALM SPRINGS INTERNATIONAL AIRPORT
FROM: Scott C. Stiles, City Manager
BY: Department of Aviation
Department of Information Technology
SUMMARY:
This action will approve Amendment No. 2 to Maintenance Agreement No. A 8310 (Agreement) with Signature Technologies, Inc. dba Com -Net Software (Com-Net) to reflect a name change from Palm Springs International Airport to the City of Palm Springs; to allow the City to terminate the Agreement upon 30 days prior written notice; to retroactively remove the yearly automatic renewal of the Agreement as of June 30, 2024; to extend the term for one year for a period of July 1, 2024 to June 30, 2025; a nd to increase the compensation for a month-to-month subscription pricing structure for an additional amount of $38,304, for a total revised Agreement amount not to exceed $136,704.
RECOMMENDATION:
1. Approve Amendment No. 2 to Maintenance Agreement No. A8310 (Agreement) with Signature Technologies, Inc. dba Com -Net Software (Com -Net) to reflect a name change; to allow the City to terminate the Agreement upon 30 days prior written notice; to retroactively remove the yearly automatic renewal of the Agreement as of June 30, 2024; to extend the term for one year for July 1, 2024 to June 30, 2025; and to increase the compensation for a month-to-month subscription pricing structure, for an additional amount of $38,304, for a total revised Agreement amount not to exceed $136,704 (Attachment A).
2. Authorize the City Manager or designee to sign all necessary documents.
Item 1I - Page 1
City Council Staff Report
September 26, 2024 -- Page 2
Amendment No. 2 to Maintenance Agreement No. A8310 with Com-Net Software
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure form ( Attachment B ), Signature Technologies, Inc. dba Com-Net Software is registered in the State of California.
BACKGROUND:
A Flight Information Display System (FIDS) is a computer system used in airports to provide passengers with up- to-date flight information, which includ es departure and arrival times, gate assignments, and delays. This information helps passengers stay informed and reduces confusion, making the travel experience more enjoyable. FIDS also assists the Airport staff with managing flight operations more effectively by ensuring that all relevant information is synchronized and accessible which improves the overall efficiency of the Airport.
On July 1, 2019, the City Manager approved Maintenance Agreement No. A8310 between the Palm Springs International Airport and Signature Technologies Inc. dba Com-Net Software for FIDS software, maintenance and support for the term of July 1, 2019, to June 30, 2020, for an amount not to exceed $24,600, invoiced in the amount of $2,050 per month.
On May 27, 2020, the City Manager approved Amendment No. 1 to Maintenance Agreement No. A8310 (Amendment) to extend the term of the Agreement for a period of one year ending June 30, 202 1 for an additional amount of $24,600 , with a cumulative Agreement amount of $49,200, and to add Exhibit “A” to the Agreement, which added a clause for the term to renew automatically each year on the anniversary of the term date, unless either party provides written notice to the other party sixty days in advance of the annual term date.
On July 1, 2022, the Agreement automatically renewed for a third year for an increase in compensation of $24,600 for a new not to exceed amount of $73,800.
On July 1, 2023, the Agreement automatically renewed for a fourth year for an increase in compensation of $24,600 for a new not to exceed amount of $98,400.
STAFF ANALYSIS:
In April 2024, a review of the Agreement was conducted to determine options for amending the contract, and it was noted that Amendment No. 1 executed on May 27, 2020, to Maintenance Agreement No. A8310 with Com-Net, had a cumulative amount of $49,200, which at that time , required City Council approval rather than City Manager approval as it exceeded the $25,000 threshold in place at that time. Additionally, the automatic renewal of the agreement on the anniversary date was identified as a non - standard practice for government agreements, raising concerns about maintaining appropriate approval levels and ensuring timely cancellation of the Agreement, should it Item 1I - Page 2
City Council Staff Report
September 26, 2024 -- Page 3
Amendment No. 2 to Maintenance Agreement No. A8310 with Com-Net Software
become necessary.
Airport staff determined that it would be necessary to extend the term of Maintenance Agreement No. A8310 with Com-Net, and on June 3, 2024, Airport staff met with a Com- Net representative to discuss amending Maintenance Agreement No. A8310 to reflect a name change from Palm Springs International Airport to City of Palm Springs , to allow the City to terminate the Agreement upon 30 days prior written notice, to retroactively remove the yearly automatic renewal of the Agreement as of June 30, 2024, and to extend the term for one year for July 1, 2024 to June 30, 2025.
After several months of negotiations between the Airport staff and Com -Net, Com-Net agreed to amending the contract with the stipulation that the contract amount of $2,050 per month for an annual cost of $24,600 would be increased to $3,192 per month for an annual cost of $ 38,304 to reflect the Agreement being amended from a one-time purchase pricing structure to a month-to-month subscription pricing structure.
The City IT Department and Airport staff have held three meetings to discuss the necessary requirements for enhancing the FIDS scope, and Airport staff has determined that the best option for procuring the FIDS software, maintenance and support would be to utilize a cooperative agreement.
Staff rec ommends the approval of Amendment No. 2 to Maintenance Agreement No.
A8310 with Com -Net to ensure that the Airport can continue to provide an enjoyable passenger experience and to maintain efficient Airport operations while the Airport staff works to enter into a cooperative agreement for the FIDS software, maintenance and support.
ENVIRONMENTAL ASSESSMENT
:
In accordance with the California Environmental Quality Act (“CEQA”) Guidelines the requested City Council action is not a “Project” pursuant to Section 15378(b)(5).
Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment are not considered a “Project”.
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 budgeted and available in Fiscal Year 202 4-25 in the Department of Aviation, Control Center Operations Account 4157055-40105.
Item 1I - Page 3
City Council Staff Report
September 26, 2024 -- Page 4
Amendment No. 2 to Maintenance Agreement No. A8310 with Com-Net Software
REVIEWED BY:
Executive Director of Aviation: Harry Barrett Jr.
Procurement and Contracting Director: Kim Baker
Information Technology Director: Larry Klingaman
City Attorney: Oscar Verdugo
City Manager: Scott Stiles
ATTACHMENTS:
A. Amendment No. 2 to Maintenance Agreement No. A8310
B. Public Integrity Disclosure Form
Item 1I - Page 4
ATTACHMENT A
AMENDMENT NO. 2 TO
MAINTENANCE AGREEMENT NO. A8310
Item 1I - Page 5
AMENDMENT NO. 2 TO THE MAINTENANCE AGREEMENT BETWEEN
SIGNATURE TECHNOLOGIES, INC. DBA COM-NET SOFTWARE AND
PALM SPRINGS INTERNATIONAL AIRPORT
DATED: July 1, 2024
CONTRACT: MAINTENANCE AGREEMENT, between the City of Palm Springs/Palm Springs International Airport (hereinafter referred to as PSP), having a principal place of business at 3400 E. Tahquitz Canyon Way, Palm Springs, CA 92262 and Signature Technologies, Inc. dba Com -Net Software (hereinafter referred to as “Com-Net”), having its principal place of business at 3728 Benner Rd., Miamisburg, Ohio 45342. PSP and Com-Net are sometimes individually referred to as “Party” and collectively as “Parties.”
RECITALS:
WHEREAS, Com-Net is a SITA company and SITA will provide customer support under the Maintenance Agreement; and
WHEREAS, Com -Net and PSP entered into an agreement entitled “Maintenance Agreement” dated July 29, 2019 (“Agreement”) for the purpose software maintenance and on-going software services for all Com -Net Flight Information Display Systems (FIDS) software at the Palm Springs International Airport for an amount not to exceed $24,600 for a term of one year.
WHEREAS, on May 27, 2020, Com -Net and PSP entered into an Amendment No. 1 to the Agreement to amend the support provisions, and to extend the term of the agreement for a one-year period and to allow the Agreement to renew automatically each year on the anniversary on the term date for an increase of compensation by $24,600 for a new not to exceed amount of $49,200.
WHEREAS, the Agreement automatically renewed for a third year for an increase of compensation of $24,600 for new not to exceed amount of $73,800.
WHEREAS, the Agreement automatically renewed for a fourth year for an increase of compensation of $24,600 for new not to exceed amount of $98,400.
Com-Net and PSP desire to amend the Agreement to reflect a name change, to retroactively remove the yearly automatic renewal of the Agreement as June 30, 2024, and extend the term for one year for July 1, 2024 to June 30, 2025, and to increase compensation.
NOW THEREFORE, the above- mentioned Maintenance Agreement is hereby amended to be reflective of the following:
TERMS:
Item 1I - Page 6
1. Name Change. The Agreement is hereby amended to reflect that the name of Palm Springs International Airport is changed to City of Palm Springs. All references in the Agreement to “Palm Springs International Airport” shall hereafter refer to “City of Palm Springs."
2. Section 2.0 – Term. Section 2.0 of the Agreement is hereby amended to include the following language:
“Beginning on July 1, 2024 and ending on June, 3 0, 2025 , the term of the Agreement shall continue on a month-to-month basis unless either Party provides written notice pursuant to Section 9.2.1 of the Agreement.”
3. Section 2.2 – Term. Section 2.2 is removed in its entirety from the Agreement.
4. Section 4.2 – Software Releases and Upgrades. Exhibit “A” of the Agreement is replaced by Exhibit "A1” , attached hereto to this Amendment and incorporated herein by this reference. All references to Exhibit “A” within the Agreement shall hereafter refer to “Exhibit “A1”.
5. Section 8.0 - Pricing of Service. Section 8.0 of the Agreement is hereby amended in its entirety to read as follows:
“Com-Net will require the City of Palm Springs to issue a Purchase Order. Com-Net will charge the City of Palm Springs a monthly fee of Three Thousand One Hundred and Ninety-Two Dollars ($3,192) for Flight Data, the Software Maintenance and on- going Software Services as outlined within this Agreement for an increased compensation of not to exceed $38,304 for the anticipated one-year term for a new contract total not-to-exceed amount of $136,704. The recurring fee will include Help Desk, Software Support, and software version point releases necessary for the day- to-day operation of the Palms Springs International Airport FIDS system.
6. Section 9.2 – Termination. Section 9.2.1 is hereby amended in its entirety to read as follows:
“City may terminate this Agreement at any time, with or without cause, upon thirty (30) days prior written notice to Com-Net.
Where termination is due to the fault of
Com-Net 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, Com -Net shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Com-Net 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. Com -Net 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 Com - Net's deficiencies and charge the cost thereof to Com-Net, who shall be liable for the reasonable cost of the City's corrective action. Com-Net may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.”
Item 1I - Page 7
This Amendment forms part of said Agreement. All other Terms and Conditions of the Agreement not modified by this Amendment remain unchanged.
[SIGNATURES ON FOLLOWING PAGE]
Item 1I - Page 8
SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND SIGNATURE TECHNOLOGIES, INC. DBA COM-NET SOFTWARE
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
SIGNATURE TECHNOLOGIES, INC DBA COM-NET SOFTWARE:
By: _______________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No.
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
Item 1I - Page 9
EXHIBIT “A1”
Standard Software Price List
Maintenance and Services
For Palm Springs International Airport
July 1, 2024 – December 31, 2024
APV Software Maintenance
Description
Quantity
Monthly Charge
AirportVision 7.4 Modules 1
$3,192.00
- Display
- Connect (IED Interface)
- Failover
- Webfeed
Media Manager Core
Help Desk Support
View licenses 36
OAG Flight Data 1
Total Monthly Price (USD) $3,192.00
The following services will be provided upon request at an additional charge:
DDC Services (upon request) * Unit Price (USD)
Replacement DDC
One-Time Charge - Remote configuration $230
Additional DDC
One-Time Charge – Remote configuration, View License $630 Recurring Charge – Monthly maintenance $5.33
* Hardware is not included in this unit pricing
* Labor rate subject to annual adjustment
Item 1I - Page 10
ATTACHMENT B
PUBLIC INTEGRITY BUSINESS DISCLOSURE
Item 1I - Page 11
Item 1I - Page 12
1. Name of Entity
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
Signature Technologies, Inc. dba Com-Net Software
2. Address of Entity (Principle Place of Business)
3728 Benner Road, Miamisburg, OH 45342
3. Local or California Address (if different than #2)
N/A
4. State where Entity is Registered with Secretary of State Ohio
If other than California, is the Entity also registered in California?~ Yes D No
5. Type of Entity
IB] Corporation D Limited Liability Company D Partnership D Trust D Other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust or other entity Harihar Subramanian IB] Officer IB] Director D Member D Manager Danielle Morton
Aileen McEntee
(Revised 05/16/19)
[name]
D General Partner D Limited Partner
Other
IB] Officer D Director D Member D Manager
[name]
D General Partner D Limited Partner
Other
IB] Officer D Director D Member D Manager
[name]
D General Partner D Limited Partner
Other
CITY OF PALM SPRINGS - PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
Item 1I - Page 13
1. Name of Entity
PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
Signature Technologies, Inc.
2. Address of Entity (Principle Place of Business)
3728 Benner Road, Miamisburg, OH 45342
3. Local or California Address (if different than #2)
N/A
4. State where Entity is Registered with Secretary of State Ohio
If other than California, is the Entity also registered in California?~ Yes D No
5. Type of Entity
IB] Corporation D Limited Liability Company D Partnership D Trust D Other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust or other entity Catherine C. Young IB] Officer D Director D Member D Manager Nicolas Husson
Tanja Popovic
(Revised 05/16/19)
[name]
D General Partner D Limited Partner
Other
IB] Officer IB] Director D Member D Manager
[name]
D General Partner D Limited Partner
Other
IB] Officer D Director D Member D Manager
[name]
D General Partner D Limited Partner
Other
CITY OF PALM SPRINGS - PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
Item 1I - Page 14
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity
EXAMPLE
JANEDOE 50%, ABC COMPANY, Inc.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
A.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
B.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
C.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
D.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
E.
[name of owner/investor] [percentage of beneficial interest in entity and name of entity]
I DECLARE UNDER PENAL TY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
Signature of Disclosing Party, Printed Name, Title Date ~
Sign ed by:
V ·& f\,,t,bvf 13-Sep-2024
~AF6B85E4C3 . blA,
PENALTIES
Falsification of information or failure to report information required to be reported may subject you to administrative action by the City.
(Revised 05/16/19)
CITY OF PALM SPRINGS - PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
CITY COUNCIL STAFF REPORT
DATE: SEPTEMBER 26, 2024 CONSENT CALENDAR
SUBJECT: A PPROVAL OF A PROFESSIONAL SERVICES AGREEMENT WITH KIMLEY-HORN AND ASSOCIATES, INC., A NORTH CAROLINA
CORPORATION, IN THE AMOUNT OF $312,591.26 FOR THE HIGHWAY SAFETY IMPROVEMENT PROJECT (CYCLE 11), FEDERAL -AID
PROJECT NO. HSIPL-5282(051), CITY PROJECT NO. 23-12
FROM: Scott C. Stiles, City Manager
BY: Engineering Services Department
SUMMARY:
Approval of a Professional Services Agreement with Kimley -Horn and Associates, Inc., (Kimley-Horn), will allow the City to proceed with professional environmental and engineering design services to commence with the Preliminary Engineering (PE) phase for the Highway Safety Improvement Program (HSIP) Cycle 11 Traffic Safety Enhancements at nine (9) Intersections, Federal-Aid Project No. HSIPL-5282 (051), City Project No. 23-12 (the “Project”).
RECOMMENDATION:
1. Approve Professional Services Agreement No. _____ with Kimley -Horn and Associates, Inc., a North Carolina corporation, in the amount of $312,591.26 for environmental and engineering design services for the Highway Safety Improvement Program (HSIP) Cycle 11 Traffic Safety Enhancements a t nine (9) Intersections, Federal-Aid Project No. HSIPL-5282 (051), City Project No. 23-12;
2. Appropriate $150,000 from the Capital fund balance; and,
3. Authorize the City Manager to execute all necessary documents.
BUSINESS PRINCIPAL DISCLOSURE:
The Public Integrity Disclosure Form from Kimley-Horn is included as Attachment A.
BACKGROUND:
After successfully being awarded HSIP Cycle 7, HSIP Cycle 8, and HSIP Cycle 9 grant funding, Staff has continued to apply for grants to improve the safety of the traveling public Item 1J - Page 1
City Council Staff Report
September 26, 2024 - Page 2
Approval of Professional Services Agreement & Program Supplement Agreement No. F057 (CP 23- 12)
and pedestrians. The Engineering Services Department submitted a grant application to Caltrans for Federal Highway Safety Improvement Program (HSIP) Cycle 11 funds to upgrade an additional nine (9) traffic signal intersections with the latest traffic safety equipment, including the implementation of a Leading Pedestrian Interval (LPI). The LPI will provide a short window of time (typically 3- to 7-seconds) for pedestrians to enter the crosswalk while all traffic lights are red before vehicles are given the green light indication.
This has been proven to increase pedestrian safety at signalized intersections.
In addition, the proposed improvements include installation of upgraded pedestrian push buttons and countdown timers, signal controllers, LED lights with new 1A poles, new streetlights, and other related improvements at the following 9 intersections:
1. Ramon Road & Crossley Road
2. Sunrise Way & San Rafael Drive
3. Vista Chino & Sunrise Way (Caltrans ROW)
4. Ramon Road & Gene Autry Trail (Caltrans ROW)
5. Ramon Road & El Placer Road
6. Indian Canyon Drive & Vista Chino (Caltrans ROW)
7. Tahquitz Canyon Way & Calle Encilia
8. Tahquitz Canyon Way & Calle El Segundo
9. Tahquitz Canyon Way & Avenida Caballeros
On March 14, 2023, Caltrans issued the City Engineer a letter notifying the City of Caltrans’ approval of the City’s HSIP Cycle 11 grant application. This approval followed Caltrans' review of 434 applications submitted statewide. The City’s application was among a limited number of 4 3 projects awarded funding in the entire Riverside/San Bernardino County area (Caltrans District 8) with only 286 projects awarded statewide with a total cost of $231.6 million. In the Coachella Valley, six projects were awarded:
Palm Springs (1 - $1.9 million total), Cathedral City (4 - $3.5 million total), and Desert Hot Springs (1 - $0.5 million total) were awarded HSIP Cycle 11 funding. The City was awarded a grant of $1,887,120, which covers 90% of the total project cost of $2,096,800.
The remaining 10% ($209,680) will be funded by local City funds, as detailed in the award letter included as Attachment B.
As a condition of award, Caltrans now requires agencies to meet key delivery deadlines.
The City has received its Authorization to Proceed with Preliminary Engineering for the Project, meeting the first of two milestones per the award letter. As part of A uthorization for Funding, the City of Palm Springs and the State of California is required to enter into standard agreements in order to receive federal funding.
Program Supplement Agreements– F057 to Master Agreement 08-5282F15
The Master Agreement is amended by each successive use of federal funds on a project, and upon authorization or obligation of the use of federal funds on a project, the City is provided with a “Program Supplement Agreement”, or amendment, to the Master Item 1J - Page 2
City Council Staff Report
September 26, 2024 - Page 3
Approval of Professional Services Agreement & Program Supplement Agreement No. F057 (CP 23- 12)
Agreement. In light of the City’s authorization to proceed with the Preliminary Engineering phase of the Project using federal HSIP funds, Caltrans has submitted to the City approval of Program Supplement Agreement No. F057, which includes the disbursement and use of $270,000 of HSIP federal-aid funds, with a minimum local match of $30,000. A copy of Program Supplement Agreement No. F057 is included in Attachment C.
STAFF ANALYSIS:
Staff prepared a Request for Proposals (RFP) soliciting proposals from qualified professional engineering firms to provide the City with environmental and engineering design services related to the Project. The scope of services requested includes the preparation of environmental documents and technical studies necessary to obtain environmental clearances; preparation of plans, specifications and estimate; and construction support for implementing the Project. On July 8 , 2024, the City received proposals from the following six firms, identified below:
• Advantec Consulting Engineers, Inc., Irvine, CA
• Kimley-Horn, Orange, CA
• TJK M, Pleasanton, CA
• Albert Webb & Associates, Riverside, CA
• TKE Engineering, Inc., Riverside, CA
• Interwest Consulting Group, Irvine, CA
An Evaluation Committee consisting of Engineering Services D epartment Staff independently reviewed the proposals and evaluated them based on the criteria established in the RFP. Based on the final evaluation scores, Kimley-Horn was the most qualified professional firm to provide the requested services for the Project.
Staff reviewed Kimley-Horn’s cost proposal of $312,591.26 and compared the proposals from the other three HSIP projects and found the cost to be reasonable and within the budget provided by the HSIP 11 grant. Staff recommends that the City Council approve the professional services agreement with Kimley-Horn in the amount of $312,591.26. A copy of the agreement is included as Attachment D.
Through the contract negotiations with Kimley -Horn, Staff identified four scope of work items that could be added as an optional task if the need arises. This includes surveying and designing curb ramps at the proposed intersections, which is not part of the grant scope, but may be added if it becomes a priority ; utility locating if the new poles have a potential to impact existing utilities; and a Phase 1 Initial Site Assessment if there are any hazardous sites near the proposed intersections.
Item 1J - Page 3
City Council Staff Report
September 26, 2024 - Page 4
Approval of Professional Services Agreement & Program Supplement Agreement No. F057 (CP 23- 12)
Local Business Preference Compliance
Section 7.09.030 of the Palm Springs Municipal Code, “Local Business Preference Program,” indicates that in awarding contracts for services, including consultant services, preference to Local Business shall be given whenever practicable, and that the consultant shall solicit proposals from sub- consultants from local firms. In accordance with the exceptions in the Code, given the federal funding associated with this Project , local preferences are not allowed, and the provisions of the City’s Local Business P reference Program were not included in the City’s RFP.
1 ENVIRONMENTAL ASSESSMENT
:
Construction of the Project is subject to environmental review pursuant to the California Environmental Quality Act (“CEQA”), and the National Environmental Policy Act (“NEPA”). Kimley-Horn will complete all technical and environmental analysis associated with the Project to determine any environmental mitigation measures required and will prepare environmental documents for City approval.
ALIGNMENT WITH STRATEGIC PLANNING:
This request is consistent with Community Infrastructure – (2A) Prioritize deferred maintenance.
FISCAL IMPACT:
This Project is federally funded with 90% HSIP federal-aid funds and a 10% City match.
The environmental and engineering design (Preliminary Engineering) phase of the Project has been programed with the disbursement of $270,000 of HSIP federal -aid funds, requiring the City to contribute the remaining $42,591 in local funds for a total of $312,591.
The $270,000 HSIP funds were previously allocated from the Capital Project Fund (Fund 261) account. An appropriation of $150,000 from Capital Fund balance is required to cover the local project funds, staff time, administration, and management costs. Sufficient funding is available in the Capital fund to cover the appropriation.
REVIEWED BY:
City Engineer: Joel Montalvo
Deputy City Manager: Flinn Fagg
City Manager: Scott Stiles
1 The primary basis behind the prohibition of local hiring preferences is that they are inconsistent with the principles of free and open competition, which is required in the federal-aid program pursuant to federal law found at 23 USC 112, “Letting of Contracts”.
Item 1J - Page 4
City Council Staff Report
September 26, 2024 - Page 5
Approval of Professional Services Agreement & Program Supplement Agreement No. F057 (CP 23- 12)
ATTACHMENTS:
A. Public Integrity Disclosure Form
B. HSIP Award Letter
C. Program Supplement Agreement No. F057
D. Professional Services Agreement
Item 1J - Page 5
Attachment A
Item 1J - Page 6
PUBLIC INTEGRITY DISCLOSURE FORM
PUBLIC INTEGRITY DISCLOSURE APPLICANT DISCLOSURE FORM
1. Name of Entity
2. Address of Entity (Principle Place of Business)
3. Local or California Address (if different than #2)
4. State where Entity is Registered with Secretary of State If other than California, is the Entity also registered in California? Yes
No
5. Type of Entity
Corporation
Limited Liability Company
Partnership
Trust
Other (please specify)
6. Officers, Directors, Members, Managers, Trustees, Other Fiduciaries (please specify) Note: If any response is not a natural person, please identify all officers, directors, members, managers and other fiduciaries for the member, manager, trust or other entity Officer
Director
Member
Manager [name]
General Partner
Limited Partner
Other
Officer
Director
Member
Manager [name]
General Partner
Limited Partner
Other
Officer
Director
Member
Manager [name]
General Partner
Limited Partner
Other
CITY OF PALM SPRINGS – PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
Kimley-Horn and Associates, Inc.
421 Fayetteville Street, Suite 600, Raleigh NC 27601
State of California
X
X
Steven E. Lefton X
X CEO, President
John C. Atz
X Chairman
Richard N. Cook
X Sr. Vice President
45-25 Manitou Drive, Suite 11, Indian Wells, CA 92210
Item 1J - Page 7
PUBLIC INTEGRITY DISCLOSURE FORM
PUBLIC INTEGRITY DISCLOSURE APPLICANT DISCLOSURE FORM
7. Owners/Investors with a 5% beneficial interest in the Applicant Entity or a related entity A.
[name of owner/investor] [name of official with whom owner/investor has material financial relationship]
FOR RELATIONSHIP A, EXPLANATION OF THE RELATIONSHIP:
B.
[name of owner/investor] [name of official with whom owner/investor has material financial relationship]
FOR RELATIONSHIP B, EXPLANATION OF THE RELATIONSHIP:
C.
[name of owner/investor] [name of official with whom owner/investor has material financial relationship]
FOR RELATIONSHIP C, EXPLANATION OF THE RELATIONSHIP:
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
CITY OF PALM SPRINGS – PUBLIC INTEGRITY DISCLOSURE
APPLICANT DISCLOSURE FORM
Date
Signature of Disclosing Party, Printed Name, Title
Associates Group Services, Inc. 100% Kimley-Horn and Associates, Inc.
APHC, Inc.
100% Associates Group Services, Inc.
APHC, Inc. Has no owners/investors with
5% beneficial interest.
Jean B. Fares, P.E., Sr. Vice President 9.24.2020
Parent Company of Kimley-Horn
Parent Company of Kimley-Horn's parent company and other affiliated companies Item 1J - Page 8
1- I
Kimley-Horn and Associates, Inc. Principal Officers and Directors PRINCIPAL OFFICERS:
Names/Titles
John C. Atz, Chairman
Steven E. Lefton, CEO, President
Richard N. Cook,
Senior Vice President, Secretary
Tammy L. Flanagan,
CFO, Senior Vice President
David L. McEntee, Vice President,
Treasurer, Assistant Secretary
DIRECTORS:
Names
John C. Atz
Chairman
Barry L. Barber
Executive Vice President
Stephen W. Blakley
Senior Vice President
Paul B. Danielson
Senior Vice President
William E. Dvorak, Jr.
Senior Vice President
James R. Hall
Senior Vice President
Steven E. Lefton
CEO, President
Emmeline F. Montanye
Senior Vice President
Brent H. Mutti
Senior Vice President
Brooks H. Peed
Chairman Emeritus
Michael G. Schiller
Executive Vice President
G. Bradbury Tribble
Senior Vice President
Ownership: Kimley-Horn and Associates, Inc. is wholly owned by Associates Group Services, Inc., which is wholly owned by APHC, Inc., which is owned by over 500 Kimley-Horn employees, none of which own 5% or more of the outstanding shares.
Item 1J - Page 9
Attachment B
Item 1J - Page 10
“Provide a safe, sustainable, integrated and efficient transportation system to enhance California’s economy and livability”
STATE OF CALIFORNIA- - - - - - - CALIFORNIA STATE TRANSPORTATION AGENCY Gavin Newsom, Governor
DEPARTMENT OF TRANSPORTATION
DIVISION OF LOCAL ASSISTANCE
P.O. BOX 942874, MS-1
SACRAMENTO, CA 94274-0001
PHONE (916) 654-1776
FAX (916) 653-1905
TTY 711
www.dot.ca.gov
Making Conservation
a California Way of Life.
March 9, 2023
Francisco Jaime
City of Palm Springs
3200 E Tahquitz Canyon Way
Palm Springs, CA 92262
Dear Francisco Jaime:
Congratulations! Your HSIP application has been selected for funding:
Application ID Location Description of Work Project Cost HSIP Funds (State)
08-Palm Springs-2
Various
signalized
intersections in
the City of
Palm Springs.
Installing LED
pedestrian
countdown signal
heads, intersection
lighting, upgrading
signal equipment,
and installing
Leading Pedestrian
Interval (LPI).
$2,096,800.00 $1,887,120.00
The complete list of funded projects in HSIP Cycle 11 Call for Projects is available online at https://dot.ca.gov/programs/local-assistance/fed-and-state-programs/highway-safety-improvement- program/approved-project-lists.
The agency’s first step is to contact the appropriate District Local Assistance Engineer (DLAE) who can assist with the funding allocation process and other project management requirements. The DLAE contact information is available at https://dot.ca.gov/programs/local-assistance/other- important-issues/local-assistance-contacts.
To help in the success of your project, here are some important items to note:
1. State funds will be used for many HSIP Cycle 11 projects; the projects that fit into the High- Risk Rural Road (HR3) will be federalized to meet the FHWA’s Special Rule for the High- Risk Rural Roads; the projects that implement mainly Pedestrian/Bike safety countermeasures may be federalized for satisfying the FHWA’s Special Rule for Vulnerable Road Users (VRU).
2. The HSIP is a reimbursement program. Reimbursable work cannot commence on your project until you receive an allocation (for state funds) or an authorization for (federal funds) from Caltrans Division of Local Assistance (DLA) for this project.
Item 1J - Page 11
@
. . .
'
Application ID Location Description of Work Project Cost HSIP Funds (State)
Francisco Jaime
March 9, 2023
“Provide a safe, sustainable, integrated and efficient transportation system to enhance California’s economy and livability”
3. For state funded HSIP projects, please note:
a. the funding allocation process for HSIP projects with state HSIP Funding is different from projects in other programs such as ATP/STIP and SB1. The funding allocation for HSIP projects is processed through Caltrans DLA, not the CTC. b. The funding allocation request is Phase specific, i.e., Preliminary Engineering (PE), Right of Way (ROW) or Construction (CON).
For more guidance on implementing State-funded HSIP projects, please visit https://dot.ca.gov/programs/local-assistance/fed-and-state-programs/highway-safety- improvement-program/state-funded-hsip.
4. For federally funded HSIP projects, please follow the project authorization process in Chapter 3 of the Local Assistance Procedures Manual (LAPM).
5. The delivery of the HSIP Cycle 11 projects must meet the below milestones:
a. The PE phase (if applicable) must be allocated by 12/31/2023. b. The Construction (CON) phase must be allocated by 3/31/2026 (6 months may be added for projects with consultant for PE).
c. The project must be completed and closed out by 3/31/2028 (6 months may be added for projects with consultant for PE).
HSIP project delivery requests and status of the projects are available at https://dot.ca.gov/programs/local-assistance/fed-and-state-programs/highway-safety- improvement-program/delivery-requirements-status-approved-projects.
6. It is the agency’s responsibility to review their project scope throughout the project delivery process and confirm that HSIP funding is used to fund the approved eligible scope as defined in your HSIP application. In case that any scope or cost change is needed, please contact your DLAE.
7. Prior to engaging in any Architectural and Engineering (A&E) contract procurement(s), agencies should reference Chapter 10 (Consultant Selection) of the Local Assistance Procedures Manual (LAPM), located at: https://dot.ca.gov/programs/local- assistance/guidelines-and-procedures/local-assistance-procedures-manual-lapm.
If you have any questions about your project, please contact your DLAE.
Sincerely,
Alberto Vergel De Dios
District Local Assistance Engineer
Item 1J - Page 12
•- _ _i_ , ____ , '"" - r""'I
Attachment C
Item 1J - Page 13
F057
FOR FEDERAL-AID PROJECTS NO 08-5282F15
0824000004
December 08, 2023
08-RIV-0-PSP
HSIPL-5282(051)
5282
This Program Supplement hereby adopts and incorporates the Administering Agency-State Agreement for Federal Aid which was entered into between the Administering Agency and the State on 11/14/2016 and is subject to all the terms and conditions thereof. This Program Supplement is executed in accordance with Article I of the aforementioned Master Agreement under authority of Resolution No. approved by the Administering Agency on (See copy attached).
The Administering Agency further stipulates that as a condition to the payment by the State of any funds derived from sources noted below obligated to this PROJECT, the Administering Agency accepts and will comply with the special covenants or remarks set forth on the following pages.
Various signalized intersections throughout the City of Palm Springs Upgrade Signals 0.0(MILES)
Federal FundsEstimated Cost Matching Funds
YS70 $270,000.00
CITY OF PALM SPRINGS
By ________________________________ By ________________________________ Title
Date
&LW\0DQDJHU
_______________________________
Attest _______________________________
&LW\&OHUN
Date _______________________________
Division of Local Assistance
I hereby certify upon my personal knowledge that budgeted funds are available for this encumbrance:
Accounting Officer
$33529('$672)250
BBBBBBBBBBBBBBBBBBBBBB
&LW\$WWRUQH\
_______________________ Date _______________
PROGRAM SUPPLEMENT NO.
to
ADMINISTERING AGENCY-STATE AGREEMENT
Adv. Project ID Date:
Location:
Project Number:
E.A. Number:
Locode:
PROJECT LOCATION:
TYPE OF WORK: LENGTH:
LOCAL OTHER
$300,000.00 $30,000.00 $0.00
Chief, Office of Project Implementation
STATE OF CALIFORNIA
Department of Transportation
$270,000.00
1Page of 7Program Supplement 08-5282F15-F057- ISTEA
_______________ 12/8/2023
Item 1J - Page 14
~ DocuSigned by :
L~ A~~7
SPECIAL COVENANTS OR REMARKS
08-RIV-0-PSP
HSIPL-5282(051)
1. A. The ADMINISTERING AGENCY will advertise, award and administer this project in accordance with the current published Local Assistance Procedures Manual.
B. ADMINISTERING AGENCY agrees that it will only proceed with work authorized for specific phase(s) with an "Authorization to Proceed" and will not proceed with future phase(s) of this project prior to receiving an "Authorization to Proceed" from the STATE for that phase(s) unless no further State or Federal funds are needed for those future phase(s).
C. STATE and ADMINISTERING AGENCY agree that any additional funds which might be made available by future Federal obligations will be encumbered on this PROJECT by use of a STATE-approved "Authorization to Proceed" and Finance Letter. ADMINISTERING AGENCY agrees that Federal funds available for reimbursement will be limited to the amounts obligated by the Federal Highway Administration.
D. Award information shall be submitted by the ADMINISTERING AGENCY to the District Local Assistance Engineer within 60 days of project contract award and prior to the submittal of the ADMINISTERING AGENCY'S first invoice for the construction contract.
Failure to do so will cause a delay in the State processing invoices for the construction phase.
Attention is directed to Section 15.6 "Award Package" of the Local Assistance Procedures Manual.
E. ADMINISTERING AGENCY agrees, as a minimum, to submit invoices at least once every six months commencing after the funds are encumbered for each phase by the execution of this Project Program Supplement Agreement, or by STATE's approval of an applicable Finance Letter. STATE reserves the right to suspend future authorizations/obligations for Federal aid projects, or encumbrances for State funded projects, as well as to suspend invoice payments for any on-going or future project by ADMINISTERING AGENCY if PROJECT costs have not been invoiced by ADMINISTERING AGENCY for a six-month period.
If no costs have been invoiced for a six-month period, ADMINISTERING AGENCY agrees to submit for each phase a written explanation of the absence of PROJECT activity along with target billing date and target billing amount.
ADMINISTERING AGENCY agrees to submit the final report documents that collectively constitute a "Report of Expenditures" within one hundred eighty (180) days of PROJECT completion. Failure of ADMINISTERING AGENCY to submit a "Final Report of Expenditures" within 180 days of PROJECT completion will result in STATE imposing sanctions upon ADMINISTERING AGENCY in accordance with the current Local Assistance Procedures Manual.
2Page of 7Program Supplement 08-5282F15-F057- ISTEA
Item 1J - Page 15
SPECIAL COVENANTS OR REMARKS
08-RIV-0-PSP
HSIPL-5282(051)
F. Administering Agency shall not discriminate on the basis of race, religion, age, disability, color, national origin, or sex in the award and performance of any Federal-assisted contract or in the administration of its DBE Program Implementation Agreement. The Administering Agency shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of Federal-assisted contracts. The Administering Agency's DBE Implementation Agreement is incorporated by reference in this Agreement. Implementation of the DBE Implementation Agreement, including but not limited to timely reporting of DBE commitments and utilization, is a legal obligation and failure to carry out its terms shall be treated as a violation of this Agreement. Upon notification to the Administering Agency of its failure to carry out its DBE Implementation Agreement, the State may impose sanctions as provided for under 49 CFR Part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.).
G. Any State and Federal funds that may have been encumbered for this project are available for disbursement for limited periods of time. For each fund encumbrance the limited period is from the start of the fiscal year that the specific fund was appropriated within the State Budget Act to the applicable fund Reversion Date shown on the State approved project finance letter. Per Government Code Section 16304, all project funds not liquidated within these periods will revert unless an executed Cooperative Work Agreement extending these dates is requested by the ADMINISTERING AGENCY and approved by the California Department of Finance.
ADMINISTERING AGENCY should ensure that invoices are submitted to the District Local Assistance Engineer at least 75 days prior to the applicable fund Reversion Date to avoid the lapse of applicable funds. Pursuant to a directive from the State Controller's Office and the Department of Finance; in order for payment to be made, the last date the District Local Assistance Engineer can forward an invoice for payment to the Department's Local Programs Accounting Office for reimbursable work for funds that are going to revert at the end of a particular fiscal year is May 15th of the particular fiscal year. Notwithstanding the unliquidated sums of project specific State and Federal funding remaining and available to fund project work, any invoice for reimbursement involving applicable funds that is not received by the Department's Local Programs Accounting Office at least 45 days prior to the applicable fixed fund Reversion Date will not be paid. These unexpended funds will be irrevocably reverted by the Department's Division of Accounting on the applicable fund Reversion Date.
H. As a condition for receiving federal-aid highway funds for the PROJECT, the Administering Agency certifies that NO members of the elected board, council, or other key decision makers are on the Federal Government Exclusion List. Exclusions can be found at www.sam.gov. 3Page of 7Program Supplement 08-5282F15-F057- ISTEA
Item 1J - Page 16
SPECIAL COVENANTS OR REMARKS
08-RIV-0-PSP
HSIPL-5282(051)
2. A. ADMINISTERING AGENCY shall conform to all State statutes, regulations and procedures (including those set forth in the Local Assistance Procedures Manual and the Local Assistance Program Guidelines, hereafter collectively referred to as "LOCAL ASSISTANCE PROCEDURES") relating to the federal-aid program, all Title 23 Code of Federal Regulation (CFR) and 2 CFR Part 200 federal requirements, and all applicable federal laws, regulations, and policy and procedural or instructional memoranda, unless otherwise specifically waived as designated in the executed project-specific PROGRAM SUPPLEMENT.
B. Invoices shall be formatted in accordance with LOCAL ASSISTANCE PROCEDURES.
C. ADMINISTERING AGENCY must have at least one copy of supporting backup documentation for costs incurred and claimed for reimbursement by ADMINISTERING AGENCY. ADMINISTERING AGENCY agrees to submit supporting backup documentation with invoices if requested by State. Acceptable backup documentation includes, but is not limited to, agency's progress payment to the contractors, copies of cancelled checks showing amounts made payable to vendors and contractors, and/or a computerized summary of PROJECT costs.
D. Indirect Cost Allocation Plan/Indirect Cost Rate Proposals (ICAP/ICRP), Central Service Cost Allocation Plans and related documentation are to be prepared and provided to STATE (Caltrans Audits & Investigations) for review and approval prior to ADMINISTERING AGENCY seeking reimbursement of indirect costs incurred within each fiscal year being claimed for State and federal reimbursement. ICAPs/ICRPs must be prepared in accordance with the requirements set forth in 2 CFR, Part 200, Chapter 5 of the Local Assistance Procedural Manual, and the ICAP/ICRP approval procedures established by STATE.
E. STATE will withhold the greater of either two (2) percent of the total of all federal funds encumbered for each PROGRAM SUPPLEMENT or $40,000 until ADMINISTERING AGENCY submits the Final Report of Expenditures for each completed PROGRAM SUPPLEMENT PROJECT.
F. Payments to ADMINISTERING AGENCY for PROJECT-related travel and subsistence (per diem) expenses of ADMINISTERING AGENCY forces and its contractors and subcontractors claimed for reimbursement or as local match credit shall not exceed rates authorized to be paid rank and file STATE employees under current State Department of Personnel Administration (DPA) rules. If the rates invoiced by ADMINISTERING AGENCY are in excess of DPA rates, ADMINISTERING AGENCY is responsible for the cost difference, and any overpayments inadvertently paid by STATE shall be reimbursed to STATE by ADMINISTERING AGENCY on demand within thirty (30) days of such invoice. 4Page of 7Program Supplement 08-5282F15-F057- ISTEA
Item 1J - Page 17
SPECIAL COVENANTS OR REMARKS
08-RIV-0-PSP
HSIPL-5282(051)
G. ADMINISTERING AGENCY agrees to comply with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Principles and Audit Requirement for Federal Awards.
H. ADMINISTERING AGENCY agrees, and will assure that its contractors and subcontractors will be obligated to agree, that Contract Cost Principles and Procedures, 48 CFR, Federal Acquisition Regulations System, Chapter 1, Part 31, et seq., shall be used to determine the allowability of individual PROJECT cost items.
I. Every sub-recipient receiving PROJECT funds under this AGREEMENT shall comply with 2 CFR, Part 200, 23 CFR, 48 CFR Chapter 1, Part 31, Local Assistance Procedures, Public Contract Code (PCC) 10300-10334 (procurement of goods), PCC 10335-10381 (non-A&E services), and other applicable STATE and FEDERAL regulations.
J. Any PROJECT costs for which ADMINISTERING AGENCY has received payment or credit that are determined by subsequent audit to be unallowable under 2 CFR, Part 200, 23 CFR, 48 CFR, Chapter 1, Part 31, and other applicable STATE and FEDERAL regulations, are subject to repayment by ADMINISTERING AGENCY to STATE.
K. STATE reserves the right to conduct technical and financial audits of PROJECT WORK and records and ADMINISTERING AGENCY agrees, and shall require its contractors and subcontractors to agree, to cooperate with STATE by making all appropriate and relevant PROJECT records available for audit and copying as required by the following paragraph:
ADMINISTERING AGENCY, ADMINISTERING AGENCY'S contractors and subcontractors, and STATE shall each maintain and make available for inspection and audit by STATE, the California State Auditor, or any duly authorized representative of STATE or the United States all books, documents, papers, accounting records, and other evidence pertaining to the performance of such contracts, including, but not limited to, the costs of administering those various contracts and ADMINISTERING AGENCY shall furnish copies thereof if requested.
All of the above referenced parties shall make such AGREEMENT, PROGRAM SUPPLEMENT, and contract materials available at their respective offices at all reasonable times during the entire PROJECT period and for three (3) years from the date of submission of the final expenditure report by the STATE to the FHWA.
L. ADMINISTERING AGENCY, its contractors and subcontractors shall establish and maintain a financial management system and records that properly accumulate and segregate reasonable, allowable, and allocable incurred PROJECT costs and matching funds by line item for the PROJECT. The financial management system
5Page of 7Program Supplement 08-5282F15-F057- ISTEA
Item 1J - Page 18
SPECIAL COVENANTS OR REMARKS
08-RIV-0-PSP
HSIPL-5282(051)
of ADMINISTERING AGENCY, its contractors and all subcontractors shall conform to Generally Accepted Accounting Principles, enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices set to or paid by STATE.
M. ADMINISTERING AGENCY is required to have an audit in accordance with the Single Audit Act of 2 CFR 200 if it expends $750,000 or more in Federal Funds in a single fiscal year of the Catalogue of Federal Domestic Assistance.
N. ADMINISTERING AGENCY agrees to include all PROGRAM SUPPLEMENTS adopting the terms of this AGREEMENT in the schedule of projects to be examined in ADMINISTERING AGENCY's annual audit and in the schedule of projects to be examined under its single audit prepared in accordance with 2 CFR, Part 200.
O. ADMINISTERING AGENCY shall not award a non-A&E contract over $5,000, construction contracts over $10,000, or other contracts over $25,000 [excluding professional service contracts of the type which are required to be procured in accordance with Government Code sections 4525 (d), (e) and (f)] on the basis of a noncompetitive negotiation for work to be performed under this AGREEMENT without the prior written approval of STATE. Contracts awarded by ADMINISTERING AGENCY, if intended as local match credit, must meet the requirements set forth in this AGREEMENT regarding local match funds.
P. Any subcontract entered into by ADMINISTERING AGENCY as a result of this AGREEMENT shall contain provisions B, C, F, H, I, K, and L under Section 2 of this agreement.
3. Appendix E of the Title VI Assurances (US DOT Order 1050.2A) During the performance of this agreement, the ADMINISTERING AGENCY, ADMINISTERING AGENCY'S contractors and subcontractor, (hereinafter referred to as the "contractor") agrees to comply with the following nondiscrimination statutes and authorities; including but not limited to:
Pertinent Nondiscrimination Authorities:
A. Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.
B. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); C. Federal-Aid Highway Act of 1973, (23 U.S.C. 324 et seq.), (prohibits discrimination on the basis of sex);
D. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. 794 et seq.), as 6Page of 7Program Supplement 08-5282F15-F057- ISTEA
Item 1J - Page 19
SPECIAL COVENANTS OR REMARKS
08-RIV-0-PSP
HSIPL-5282(051)
amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; E. The Age Discrimination Act of 1975, as amended, (42 U.S.C. 6101 et seq.), (prohibits discrimination on the basis of age);
F. Airport and Airway Improvement Act of 1982, (49 U.S.C. 4 71, Section 4 7123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); G. The Civil Rights Restoration Act of 1987, (PL 100-209), (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, subrecipients and contractors, whether such programs or activities are Federally funded or not);
H. Titles II and III of the Americans with Disabilities Act, which 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 (42 U.S.C. 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38; I. The Federal Aviation Administration's Nondiscrimination statute (49 U.S.C. 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); J. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which 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; K. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
L. Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). 7Page of 7Program Supplement 08-5282F15-F057- ISTEA
Item 1J - Page 20
Item 1J - Page 21
ll
[
RESOLUTION NO. 24896'
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, AUTHORIZING THE CITY
MANAGER OR DESIGNEE TO EXECUTE PROGRAM
SUPPLEMENT AGREEMENTS TO THE MASTER
AGREEMENT, ADMINISTERING AGENCY-STATE
AGREEMENT FOR FEDERAL AID PROJECTS,
AGREEMENT NO. 05-5282F15, AS MAY BE AMENDED.
WHEREAS, the Congress of the United States has enacted the lntermodal Surface Transportation Efficiency Act (ISTEA) of 1991 and subsequent Transportation Authorization Bills to fund transportation programs; and WHEREAS, the Legislature of the State of California has enacted legislation by which certain federal-aid funds may be made available for use on local transportation related projects of public entities qualified to act as recipients for these federal-aid funds in accordance with the intent of federal law; and
WHEREAS, the City of Palm Springs is eligible to receive Federal and/or State funding for certain Transportation Projects, through the California Department of Transportation; and
WHEREAS, Master Agreements and Program Supplemental Agreements need to be executed with the California Department of Transportation before such funds could be claimed; and
WHEREAS, before federal-funds will be made available for a specific program project, the City of Palm Springs and State of California are required to enter into an agreement to establish terms and conditions applicable to the City of Palm Springs when receiving federal funds for a designated project facility and to the subsequent operation and maintenance of that completed facility; and
WHEREAS, the City of Palm Springs has entered multiple "Master Agreements" with the State of California for certain Transportation Projects, through the California Department of Transportation, including the most recent Master Agreement No. 08-5282F15 dated November 14, 2016; and
WHEREAS, Paragraph 4 of Article I sets for the requirements for execution of a Program Supplement to the Master Agreement by the City as a prerequisite for receiving federal-aid funds from and through the State of California; and WHEREAS, the City Council of the City of Palm Springs wishes to delegate authorization to execute the program agreements and any amendments thereto to the City Manager, or a designee so appointed by the City Manager.
Item 1J - Page 22
Resolution No. 24896
Page2
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City Council hereby authorizes the City Manager, or a designee as may be appointed in writing by the City Manager, to execute all Program Supplement Agreements and any amendments thereto to that certain Master Agreement, Administering Agency -State Agreement for Federal-Aid Projects, Agreement No. 08-5282F15, between the City of Palm Springs and the State of California, acting through the Department of Transportation.
SECTION 2. The City Council hereby authorizes the City Manager, or a designee as may be appointed in writing by the City Manager, to execute any future amendments to that certain Master Agreement, Administering Agency -State Agreement for Federal Aid Projects, Agreement No. 08-5282F15, between the City of Palm Springs and the State of California, acting through the Department of Transportation, as may be required by the State of California.
SECTION 3. The City Clerk shall certify to the adoption of this Resolution.
ADOPTED THIS 27TH DAY OF MAY 2021.
ATTEST:
D
l J
Item 1J - Page 23
(1 !
Resolution
No
. 24896
Page3
CERTIFICATION
STATE
OF
CALIFORNIA
)
COUNTY
OF
RIVERSIDE
)
ss.
CITY
OF
PALM
SPRINGS
)
I,
ANTHONY
MEJIA,
City
Clerk
of
the
City
of
Palm
Springs,
hereby
certify
that
Resolution
No.
24896
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
May
27,
2021,
by
the
following
vote: AYES: NOES: ABSENT: ABSTAIN:
Councilmembers
Gamer,
Kors
, Woods,
Mayor
Pro
Tern
Middleton,
and
Mayor
Holstege
None None None
IN
WITNESS
WHEREOF,
I have
hereunto
set
my
hand
and
affixed
the
official
seal
of
the
City
of
Palm
Springs,
California,
this
V
~-t-
day
of
. ::r:
~ .,......_
,
'2.o'l..-
1 •
CERTIFIED
COPY
I certify
that
this
Is
a
true
and
correct
copy
of
the
document
on
· · In
the
official
records
of
the
City
of
Palm
Springs.
ust
appear
In
blue
with
an
orfglnal
Attachment D
Item 1J - Page 24
Revised 2.9.22 Page 1 of 46
PROFESSIONAL SERVICES AGREEMENT
HSIP CYCLE 11 TRAFFIC SAFETY ENHANCEMENTS AT NINE (9)
INTERSECTIONS
FEDERAL-AID PROJECT NO. HSIPL-5282(051)
CITY PROJECT NO. 23-12
THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is entered into, and effective on _____________, 20__, between the CITY OF PALM SPRINGS, a California charter city and municipal cor poration, (“City”) and Kimley-Horn and Associates, Inc. , a North Carolina corporation, (“Consultant”). City and Consultant are individually referred to as “Party” and are collectively referred to as the “Parties”.
RECITALS
A. City requires the services for environmental and traffi c engineering, for the HSIP Cycle 11 Traffic Safety Enhancements At Nine (9) Intersections, Federal Aid Project No. HSIPL- 5282(051), City Project No. 23-12 (“Project”).
B. Consultant has submitte d to City a proposal to provide environmental and traffic engineering design services to City under the terms of this Agreement.
C. Consultant is qualified by virtue of its experience, traini ng, education, reputation, and expertise to provide these services and has agreed to provide such services as provided in this Agreement.
D. City desires to retain Consultant to provide such professional services.
NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and c onditions of this Agreement, Consultant agrees to perform the pr ofessional services set forth in the Scope of Services described in Exhibit “A” (the “Services” or “Work”), which is attached and incorporated herein by this reference. As a material induce ment to the City entering into this Agreement, Consultant represents and warrants that Consultant is a provider of first class work and professional services and that Consultant is ex perienced in performing the Work contemplated and, in light of such status and experience, Consultant covenants that it shall perform the Work in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced and well qualified members of the profession currently practicing under similar conditions.
Item 1J - Page 25
Revised 2.9.22 Page 2 of 46
1.2 Contract Documents. The Agreement between the Parties shall consist of the following: (1) this Agreement; (2) the Scope of Services; (3) the City’s Request for Proposals; and, (4) the Consultant’s signed, orig inal proposal submitted to the City (“Consultant’s Proposal”), (collectively referred to as the “Contract Documents”). The City’s Request for Proposals and the Consultant’s Proposal, which are bo th attached as Exhi bit “B”, respectively, are incorporated herein by this reference and are made a part of this Agreement. The Scope of Services shall include the Consultant’s Proposal. All provisions of the Scope of Services, the City’s Request for Proposals and the Consultant’s Proposal shall be binding on the Pa rties. Should any conflict or inconsistency exist in the Contract Documents, the conflict or inconsiste ncy shall be resolved by applying the provisions in the highest priority document, which shall be determined in the following order of priority: (1 st) the provisions of the Scope of Services (Exhibit “A”); (2 nd) the provisions of the City’s Request for Proposal; (3 rd) the terms of this Agreement; and, (4 th) the provisions of the Consultant’s Proposal.
1.3 Compliance with Law. Consultant warrants that all Services rendered shall be performed in accordance with all applicable federa l, state, and local laws, statutes, ordinances lawful orders, rules, and regulations. Consultant shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement.
1.4 Licenses, Permits, Fees, and Assessments. Consultant represents and warrants to City that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice it s profession and perform the Work required by this Agreement.
Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during th e term of this Agreement, any license, permit, qualification, or approval that is legally required for Consultant to perform the Wo rk and under this Agreement.
Consultant shall have the sole obligation to pa y for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant's performance of the Work re quired by this Agreemen t. Consultant shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes penalties, or interest levied, assessed, or imposed against City to the fullest extent permitted by law.
1.5 Familiarity with Work. By executing this Agreement, Consultant warrants that Consultant (a) has thoroughly investigated and considered the Scope of Services to be performed, (b) has carefully considered how the Services should be performe d, and (c) fully understands the facilities, difficulties, and restrictions attending performance of the Services under this Agreement.
If the Services involve work upon any site, Cons ultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions th ere existing, prior to commencement of any Services. Should the Consultant discover any latent or unknown conditions that will materially affect the performance of th e Services, Consultant sh all immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the City.
1.6 Care of Work. Consultant shall adopt reasonable methods during the term of the Agreement to furnish continuous protection to th e Work and the equipment, materials, papers, documents, plans, studies, and/or other components to prevent losses or damages. Consultant shall Item 1J - Page 26
Revised 2.9.22 Page 3 of 46
be responsible for all such damages, to persons or property, until acceptance of the Work by the City, except such losses or damages as may be caused by City's own negligence.
1.7 Further Responsibilities of Parties. Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement.
1.8 Additional Services. City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by alteri ng, adding to, or deducting from such Work. No such extra work may be undertaken unless a written order is first given by the City to the Consultant, incorporating any adjustment in (i) the Maximum Contract Amount, as defined below, and/or (ii) the time to perform this Agreement. Any adjustments must also be approved in writing by the Consultant. Any increase in compensati on of up to twenty-five percent (25%) of the Maximum Contract Amount or $25,000, whichever is less, or in the time to perform of up to thirty (30) days, may be approved by the City Manager, or his designee, as may be needed to perform any extra work. Any greater increases, occurring either separately or cumulatively, must be approved by the Palm Springs City Council. It is expressly understood by Consultant that the provisions of this section shall not apply to the services specifically set forth or reasonably contemplated within the Scope of Services.
2. COMPENSATION
2.1 Maximum Contract Amount. For the Services rendered under this Agreement, Consultant shall be compensated by City in accordance with the Schedule of Compensation, which is attached as Exhibit “B” and incorporated he rein by this reference. Compensation shall not exceed the maximum contract amount of Three hundred twelve thousand five hundred ninety- one dollars and twenty-six cents ($312,591.26) ("Maximum Contract Amount"), except as may be provided under Section 1.8. The method of compensa tion shall be as set forth in Exhibit “B.” Compensation for necessary expenditures for reproduction costs, te lephone expenses, and transportation expenses must be approved in advance by the Contract Officer designated under Section 4.2 and will only be approved if such e xpenses are also specified in the Schedule of Compensation. The Maximum Contract Amount shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City. Consultant shall not be entitled to any increase in the Maximum Contract Amount for a ttending these meetings. Consultant accepts the risk that the services identified in the Scope of Services may be more costly and/or time-consuming than Consultant anticipates, that Consultant shal l not be entitled to ad ditional compensation, and that the provisions of Section 1.8 shall not be applicable to the services identified in the Scope of Services. If the City’s Maximum Contract Amount is reached befo re the Consultant’s Services under this Agreement are completed, Consultant shall complete th e Work and City shall not be liable for payment beyond the Maximum Contract Amount.
2.2. Method of Payment. Unless another method of payment is specified in the Schedule of Compensation (Exhibit “B”), in any month in which Consultant wishes to receive payment, Consultant shall submit to the City an invoice for Services rendered prior to the date of Item 1J - Page 27
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the invoice. The invoice shall be in a form appr oved by the City’s Finance Director and must be submitted no later than the tenth (10) working da y of such month. Such requests shall be based upon the amount and value of the Services perf ormed by Consultant and accompanied by such reporting data including an item ized breakdown of all costs incu rred and tasks performed during the period covered by the invoice, as may be required by the City. City shall use reasonable efforts to make payments to Consultant within forty-five (45) days after receipt of the invoice or as soon as is reasonably practical. There shall be a maximum of one payment per month.
2.3 Changes in Scope. In the event any change or changes in the Scope of Services is requested by City, Parties shall execute a writte n 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 modifi cations to documents, work product, or work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant’s profession.
C. Consultant shall only commence work covered by an amendment after the amendment is executed and notific ation to proceed has been pr ovided by the City’s Contract Officer. There shall be no change in the Consultant’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is part of this Agreement, without prior written approval by City’s Contract Officer.
2.4 Appropriations. This Agreement is subject to and contingent upon funds being appropriated by the City Council for each fiscal year covered by the Agreement. If such appropriations are not made, this Agreement shall automatically terminate without penalty to the City. Consultant further acknowledges the following:
A. It is mutually understood between the parties that this Agreement may have been written before ascertaining the availability of funds or appropria tion of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that woul d occur if the Agreement were executed after that determination was made.
B. This Agreement is valid and enforceable only, if sufficient funds are made available to the City for the purpose of this Agreement. In addition, this Agreement is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or City Council that may affect the provisions, terms, or fund ing of this Agreement in any manner.
C. It is mutually agreed that if sufficient funds are not approp riated, this Agreement may be amended to reflect any reduction in funds.
D. The City has the option to voi d the Agreement under the 30-day termination clause pursuant to as provided in Section 3.5 of this Agre ement, or by mutual agreement to amend the Agreement to reflect any reduction of funds.
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2.5 Cost principals and Admi nistration Requirements.
A. Consultant agrees that 48 CFR Part 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
B. Consultant also agrees to comply with federal procedures in accordance with 2 CFR, Part 200, Uniform Administrative Requirements, Cost Pr inciples, and Audit Re quirements for Federal Awards.
C. Any costs for which payment has been made to Consultant that are determined by subsequent audit to be unallowable under 48 CFR Part 31 or 2 CFR Part 200 are subject to repayment by Consultant to City.
2.6 Prompt Payment to Subconsultants. Consultant or Subconsultant shall pay to any Subconsultant, not later than ten (10) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed Consultant on account of the work performed by the Subconsultants, to the extent of each Subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from Consultant or Subconsultant to a Subconsultant , Consultant or Subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the Subconsultant, of 2 percent of the amount due per mont h for every month th at payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sa nctions authorized under th is requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
2.7 Equipment Purchase and other Capital Expenditures.
A. Prior authorization in writing, by City’s Contract Officer, shall be required before Consultant enters into any unbudgeted pu rchase order, or subcontra ct exceeding $5,000 for supplies, equipment, or Consultant services. Consultant shall provide an evaluation of the necessity or desirability of incurring such costs.
B. For purchase of any item, service or consulting work not covered in Consultant’s Cost Proposal and exceeding $5,000 prior authorization by City’s Contract Officer; three competitive quotations must be submitted with the request, or the absence of proposal must be adequately justified.
C. Any equipment purchased as a result of this Agreement is subject to the following: “Consultant shall maintain an inventory of all nonexpendable property. Nonexpendable property is defined as having a useful life of at least two year s and an acquisition cost of $5,000 or more. If the purchased equipment needs replacement and is so ld or traded in, City shall receive a proper refund or credit at the conclusion of the Ag reement, or if the Ag reement is terminated, Consultant may either keep the equipment and credit City in an amount equal to its fair market Item 1J - Page 29
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value, or sell such equipment at the best pr ice obtainable at a public or private sale, in accordance with established City procedures; and credit City in an amount equal to the sales price. If Consultant elects to keep the equipm ent, fair market value shall be determined at Consultant’s expense, on the basis of a compet ent independent appraisal of such equipment.
Appraisals shall be obtained from an appraiser mutually agreeable to by City and Consultant, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by City.” 2 CFR, Part 200 requires a credit to Federal funds when participating equipment with a fair market value greater than $5,000 is credited to the project.
2.8 Retention of Funds.
A. Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this Section.
B. No retainage will be held by the City from pr ogress payments due to Consultant. Consultants and Subconsultants are prohibited from holding retainage from Subconsultants. Any delay or postponement of payment may take place only for good cause and with the City’s prior written approval. Any violation of th ese provisions shall subject th e violating Consultant or Subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shal l not be construed to limit or impair any contractual, administrative or judicial reme dies, otherwise available to Consultant or Subconsultant in the event of a dispute involving late payment or nonpayment by Consultant, deficient Subconsultant perform ance and/or noncompliance by a Subconsultant. This clause applies to both DBE and non-DBE Subconsultants.
2.9 Prompt Payment.
A. Prompt Payment from City to Consultant
The City shall make all project progress payment within 30 days after receipt of an undisputed and properly submitted payment request from Consultant on a professional service contract. If the City fails to pay promptly, the City shall pa y interest to the Consultant, which accrues at the rate of 10 percent per a nnum on the principal amount of a money judgment remaining unsatisfied and pro-rated as necessary. Upon receipt of the payment request, the City shall act in accordance with both of the following:
(1) The City shall review each payment request as soon as feasible after receipt to verify it is a proper payment request.
(2) The City must return any payment request deemed improper by the City to the Consultant as soon as feasible, but not later than seve n (7) days, after receipt . A request returned pursuant to this paragraph shall include documentation setting forth in writing the reasons why it is an improper payment request.
B. Prompt Payment Certification
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For projects awarded on or after September 1, 2023: the Consultant must now submit Exhibit 9-P to the City administering the contract by the 15th of the month following the month of any payment(s). If the Consultant does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
The City must verify all Exhibit 9-P inform ation, monitor compliance with prompt payment requirements for DBE and non-DBE firms, and address any shortfalls to the DBE commitment and prompt payment issues until the end of the project. The City must email a copy of Exhibit 9-P to [email protected] before the end of the month af ter receiving the Exhibit 9-P from the Consultant.
3. SCHEDULE OF PERFORMANCE
3.1 Time of Essence. Time is of the essence in the performance of this Agreement.
The time for completion of the services to be performed by Consultant is an essential condition of this Agreement. Consultant shall prosecute regu larly and diligently the Work of this Agreement according to the agreed upon attached Schedule of Performance (Exhibit “B”), incorporated herein by this reference. Neither Party shall be acc ountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non-performing Party. Delays shall not entitle Consultant to any additional compensation regardless of the Party responsible for the delay.
3.2 Schedule of Performance. Consultant shall commence the Services under this Agreement upon receipt of a written notice to pro ceed and shall perform all Services within the time period(s) established in the Schedule of Performance. When requested by Consultant, extensions to the time period(s) specified in the Schedule of Performa nce may be approved in writing by the Contract Officer, but such extens ions shall not exceed one hundred eighty (180) days cumulatively; however, the City shall not be obligated to grant such an extension.
3.3 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 Consultant notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an ev ent that materially affects the Consultant’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Consultant notification, the Contract Officer shall investigate the facts and the extent of any necessary delay, and exte nd the time for performing the Services for the period of the enforced delay when and if, in the Contract Offi cer’s judgment, such delay is justified. The Contract Officer’s determination shall be final and conclusi ve upon the Parties to this Agreement. The Consultant will not receive an adjustment to the contract price or any other Item 1J - Page 31
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compensation. Notwithstanding th e foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
3.4 Term. Unless earlier terminated in accordan ce with Section 3.5 of this Agreement, this Agreement shall continue in full force and effect for a period of ___ years, commencing on _____________, 202__, and ending on _____________, unless extended by mutual written agreement of the Parties. However, the term shall not exceed Five (5) from the commencement date, except as otherwise provided in the Schedule of Performance described in Section 3.2 above.
3.5 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 Consultant. Where termination is due to the fault of Consultant and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter tim e as may be determined by the City. Upon receipt of the notice of termination, Consultant shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified here in. Consultant shall not be entitled to payment for unperform ed Services, and shall not be entitled to damages or compensation for termination of Work. Consultant may not terminate this Agreement except for cause, upon thirty (30) days written notice to City.
Consultant further acknowledges the following:
A. Upon termination, the City shall be entitled to all work, including but not limi ted to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and in accordance with Section 7.3 Ownership of Documents.
B. The City may temporarily suspend this Agreement, at no additional cost to the City, provided that Consultant is given written notice of temporary suspension. If City gives such notice of temporary suspension, Consultant shall imme diately suspend its activities under this Agreement. A temporary suspension may be issued concurrent with the notice of termination provided for in subsection A of this section.
C. Notwithstanding any provisions of this Agreement, Consultant shall not be relieved of liability to City for damages sustained by City by virtue of any breach of this Agreement by Consultant, and City may withhold any payments due to Consultant until such time as the exact amount of damages, if any, due City from Consultant is determined.
D. In the event of termination, Consultant shall be compensated as provided for in this Agreement, except as provided in Section 2.7-C. Upon termina tion, the City shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whet her completed or not, and in accordance with Section 7.3 Ownership of Documents.
4. COORDINATION OF WORK
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4.1 Representative of Consultant. The following princi pal of Consultant is designated as being the principal an d representative of Consultant authorized to act in its behalf and make all decisions with re spect to the Services to be performed under this Agreement: Jean Fares, PE. It is expressly understood that the e xperience, knowledge, education, capability, expertise, and reputation of the foregoing principal is a substantia l inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the Services performed hereunder. The foregoing pr incipal may not be changed by Consultant without prior written approval of the Contract Officer.
4.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Office r"). Consultant shall be responsib le for keeping the Contract Officer fully informed of the progress of the performan ce of the Services. Consultant shall refer any decisions that must be made by City to the C ontract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer.
4.3 Prohibition Against Subcontr acting or Assignments. The experience, knowledge, education, capability, and reputation of Consultant, its principals and employees, were a substantial inducement for City to enter into this Agreement. Consultant shall not contract with any other individual or entity to perform any Serv ices required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any in terest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shal l contain a provisions making th em subject to all provisions stipulated in this Agreement including withou t limitation the insurance and indemnification requirements. If Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to City for the acts and omissions of its subConsultant(s) in the same manner as it is for persons directly employ ed. Nothing contained in this Agreement shall create any contractual relationships between any subConsultant and City. All persons engaged in the Work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. In addition, neither this Agreement nor any interest in this Agreement may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written consent of City.
Transfers restricted in this Agreement shall include the transfer to any person or group of persons acting in concert of more than twenty five perc ent (25%) of the present ownership and/or control of Consultant, taking all transfer s into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Ag reement shall be void. No approved transfer shall release Consultant or any surety of Consultant from any liability under this Agreement without the express written consent of City.
Consultant further acknowledges the following:
A. No subcontract shall relieve the Consultant of its responsibilities and obligations hereunder.
The Consultant agrees to be as fully responsible to th e City for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of pers ons directly employed by the Consultant. The Consultant’s Item 1J - Page 33
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obligation to pay its Subconsultants is an independent obligation from the City’s obligation to make payments to the Consultant.
B. The Consultant shall perform th e work contemplated with res ources available within its own organization and no portion of the work shall be subcontracted without written authorization by the City’s Contract Officer, except that which is expressly identified in the approved Cost Proposal.
C. Any subcontract entered into as a result of th is Agreement, shall contain all the provisions stipulated in this entire Agreement to be applicable to Subconsultants unless otherwise noted.
D. Any substitution of Subconsultants must be approved in writing by the City’s Contract Officer in advance of assigning work to a substitute Subconsultant.
4.4 Independent Consultant. The legal relationship between the Parties is that of an independent Consultant, and nothing shall be deemed to make Consultant a City employee.
A. During the performance of this Agreement, Consultant and its officers, employees, and agents shall act in an indepe ndent capacity and shall not act or represent themselves as City officers or employees. The personnel perfo rming the Services under this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of its officers, em ployees, or agents, except as set forth in this Agreement. Consultant, its officers, employees, or agents shall not maintain an office or any other type of fixed business location at City’s offices. City shall have no voice in the selection, discharge, supervision, or control of Consultant’s employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Consultant shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obl igations respecting them, includ ing but not limited to social security income tax withholding, unemployment compensation, workers’ compensation, and other similar matters. City shall not in any way or for any purpose be deemed to be a partner of Consultant in its business or othe rwise a joint venturer or a member of any joint enterprise with Consultant.
B. Consultant shall not have any auth ority to bind City in any manner. This includes the power to incur any debt, obligation, or liability against City.
C. No City benefits shall be availabl e to Consultant, its officers, employees, or agents in connection with any performance under this Agreement. Except for professional fees paid to Consultant as provided for in this Agreem ent, City shall not pay sa laries, wages, or other compensation to Consultant for the performance of Services under this Agreement. City shall not be liable for compensation or indemnification to Consultant, its officers, employees, or agents, for injury or sickness arising out of performing Services. If for any reason any court or governmental agency determines that the City has financial obligati ons, other than under Section 2 and Subsection 1.8 in this Agreement, of any nature relating to salary, taxes, or benefits of Consultant’s officers, employees, servants, representatives, subConsultants, or agents, Consultant shall indemnify City for all such financial obligations.
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4.5 California Labor Code Requirements .
A. Consultant is aware of the requireme nts 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 requirement s on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are be ing performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Consultant ag rees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wa ges (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Lab or 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 comp ensation is $15,000 or more for maintenance or $25,000 or more for construction, a lteration, demolition, in stallation, or repair , then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all s ubcontractors performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Agreement may also be subj ect to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements.
Consultant Further Acknowledges the following:
A. No Consultant or Subconsultant may be aw arded an Agreement containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be main tained throughout the entire term of this Agreement, including any subsequent amendments.
B. The Consultant shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this Agreement are av ailable and on file with the Department of Transportation's Regional/Distric t Labor Compliance Officer (https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this Agreement by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at City construc tion sites, at City faci lities and at off-site locations that are set up by the c onstruction contractor or one of its subcontractors solely and specifically to serve City projects. Prevailing wage requireme nts do not apply to inspection Item 1J - Page 35
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work performed at the facilities of vendors a nd commercial materials su ppliers that provide goods and services to the general public.
C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations Internet site at http://www.dir.ca.gov.
D. Each Consultant and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee empl oyed by the Consultant or Subc onsultant in connection with the public work. Each payroll record shall contai n or be verified by a written declaration that it is made under penalty of perjury, stating both of the following: (A) The information contained in the payroll record is true and correct. (B) The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.
E. The payroll records enumerated under paragraph D above shall be certified as correct by the Consultant under penalty of perjury. The payr oll records and all suppo rting documents shall be made available for inspection and copying by City representative’s at all reasonable hours at the principal office of the Consultant. The Consultant shall provide copies of certified payrolls or permit inspection of its records as follo ws: (A) A certified copy of an employee's payroll record shall be made available for inspection or furn ished to the employee or the employee's authorized representa tive on request. (B) A certifie d copy of all payroll records enumerated in paragraph D above , shall be made available fo r inspection or furnished upon request to a representative of City, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standa rds of the Department of Industrial Relations. Certified payrolls submitted to the City, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shal l not be altered or oblitera ted by the Consultant. (C) The public shall not be given access to certified payroll records by the Consultant. The Consultant is required to forward any requests for certified payrolls to the City Contract Officer by both email and regular mail on the business day following receipt of the request.
F. Each Consultant shall submit a certified copy of the records enumerated in paragraph D above, to the entity that requested the records within ten (10) calendar days after receipt of a written request. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by C ity shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number.
The name and address of the Consultant or S ubconsultant performing the work shall not be marked or obliterated. The Consultant shall inform the City of the location of the records enumerated under paragraph D above, including the street address, city and county, and shall, within five working days, provide a notice of a change of location and address. In the event the Consultant or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to City, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effe ctuated. Such penalties shall be withheld by Item 1J - Page 36
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City from payments then due. Consultant is no t subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
G. When prevailing wage rates apply, the Consultant is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the City’s Contract Officer.
H. The Consultant and any of its Subconsultants shall comply with Labor Code §1774 and §1775.
Pursuant to Labor Code §1775, the Consultant and any Subconsultant shall forfeit to the City a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by th e Director of DIR for the work or craft in which the worker is employed for any public work done under the Agreement by the Consultant or by its Subconsultant in violat ion of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
I. The amount of this forfeiture shall be determined by the La bor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the Consultant or Subconsultant in failing to pay the correct rate of prevailing wa ges, or the previous record of the Consultant or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the Consultant or Subconsultant to pay the correct rates of prevai ling wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the Consultant or Subconsultant had knowledge of the obligations under the Labor Code.
The Consultant is responsible for paying the appropria te rate, including a ny escalations that take place during the term of the Agreement.
J. In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the am ount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Consultant or Subconsultant.
K. If a worker employed by a Subconsultant on a pub lic works project is not paid the general prevailing per diem wages by the Subconsultant, th e Consultant is not liable for the penalties described above unless the Consultant had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to th ose workers or unless the Consultant fails to comply with all of the following requireme nts: (A) The Agreemen t executed between the Consultant and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815. (B) The Consultant shall mo nitor the payment of the speci fied general prevailing rate of per diem wages by the Subconsul tant to the employees by peri odic review of the certified payroll records of the Subconsultant. (C) Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing ra te of wages to the Subconsulta nt’s workers, the Consultant shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the Subconsulta nt for work performed on the public works project. (D) Prior to making final payment to the Subconsultant for work performed on the public works project, the Consultant shall obtain an affidavit signed und er penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of Item 1J - Page 37
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per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813.
L. Pursuant to Labor Code §1775, the City shall no tify the Consultant on a public works project within fifteen (15) calen dar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.
M. If the City determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if the City did not retain sufficient money under the Agreement to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the Consultant shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by the City.
N. Eight (8) hours labor constitutes a legal day's work. The Consultant shall forfeit, as a penalty to the City, twenty-five dolla rs ($25) for each worker employed in the execution of the Agreement by the Consultant or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and fort y (40) hours during a ny one week, shall be permitted upon compensa tion for all hours worked in exces s of eight (8) hours per day and forty (40) hours in any week, at not less than one and one half (1.5) times the basic rate of pay, as provided in §1815.
O. Where either the Contact or the subcontract exceeds thirty thousand dollars ($30,000), the Consultant and any subconsulta nts under him or her shall comply with a ll applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.
Consultant and subconsultants are required to comply with all Labor Code requirements regarding the employment of a pprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, Consultant and subconsultants are advised to contact the DI R Division of Apprenticeshi p Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey-to- a pprentice ratios for the Agreement work. The Consultant is responsible for all subconsulta nts’ compliance with these requirements.
Penalties are specified in Labor Code §1777.7.
5. INSURANCE
5.1 Types of Insurance. Consultant shall procure and maintain, at its sole cost and expense, the insurance described herein. The insurance shall be for the duration of this Agreement and includes any extensions, unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to City. The insurance shall apply against claims which may arise from the Consultant 's performance of Work under this Agreemen t, including Consultant's agents, representatives, or employees. In the event the City Manager determines that the Work or Services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be Item 1J - Page 38
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changed accordingly upon receipt of written noti ce from the City Manager or his designee.
Consultant shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. Except as otherwise authorized below for professional liability (errors and omissions) insurance, all insurance provided under this Agreement shall be on an occurrence basis. The minimum amount of insurance required shall be as follows:
A. Errors and Omissions Insurance. Consultant shall obtain and maintain in full force and effect throughout the term of this Agreement, standard industry form professional liability (errors and omissions) insurance coverage in an amount of not less than one million dollars ($1,000,000.00) per occurrence and two-million dollars ($2,000,000.00) annua l aggregate, in accordance with the provisions of this section.
(1) Consultant shall either: (a) certif y in writing to the City that Consultant is unaware of any professional liability claims made against Consultant and is unaware of any facts which may lead to such a claim against Consulta nt; or (b) if Consultant does not provide the certification under (a), Consultant shall procur e from the professional liability insurer an endorsement providing that the required limits of the policy shall apply separately to claims arising from errors and omissions in the rendition of services under this Agreement.
(2) If the policy of insurance is writ ten on a “claims made” basis, the policy shall be continued in full force and effect at all times during the term of this Agreement, and for a period of three (3) years from the date of the completion of the Services provided hereunder. In the event of termination of the policy during this period, Consultant shall obtain continuing insurance coverage for the prior acts or omissions of Consultant during the course of performing Services under the terms of this Agreement. Th e coverage shall be evidenced by either a new policy evidencing no gap in coverage, or by obtaining separate extended “tail” coverage with the present or new carrier or other insurance arrangements providing for complete coverage, either of which shall be subject to the written approval by the City Manager.
(3) In the event the policy of insura nce is written on an “occurrence” basis, the policy shall be continued in fu ll force and effect during the term of this Agreement, or until completion of the Services provide d for in this Agreement, whichever is later. In the event of termination of the policy during this period, new coverage shall immediately be obtained to ensure coverage during the entire course of performing the Services under the terms of this Agreement.
B. Workers’ Compensation Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreemen t, workers’ compensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. Consultant agrees to waive and obtain endorsements from its workers’ compensation insurer waiving subr ogation rights under its workers’ compensation insurance policy against the City and to require e ach of its subConsultants, if any, to do likewise under their workers’ compensation insurance policies. If Consultant has no employees, Consultant shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form.
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C. Commercial General Liability Insura nce. Consultant shall obtain and maintain, in full force and effect throughout the term of this Ag reement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least one million dollars ($1,000,000.00) and two million dollars ($2,000,000.00) general aggregate for bodily injury and property damage including covera ges for contractual liability, personal injury, independent Consultants, broad form property damage, products and completed operations.
D. Business Automobile Insurance. Co nsultant shall obtain and maintain, in full force and effect throughout th e term of this Agreement, a policy of business automobile liability insurance written on a per occurrence basis with a singl e limit liability in the amount of one million dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for owned, non-owned, leased, and hired cars.
E. Employer Liability Insurance. Consu ltant shall obtain and maintain, in full force and effect throughout the term of this Ag reement, a policy of empl oyer liability insurance written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease.
5.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City Manager or his/her designee prior to commencing any work or services under this Agr eement. Consultant guarantees payment of all deductibles and self-insured retentions. City reserves the right to reject deductibles or self-insured retentions in excess of $10,000, and the City Manager or his/her designee may require evidence of pending claims and claims history as well as evidence of Consultant’s ability to pay claims for all deductible amounts and self-insured retentions proposed in excess of $10,000.
5.3 Other Insurance Requirements. The following provisions shall apply to the insurance policies required of Consultant under this Agreement:
A. For any claims related to this Agreement, Consultant’s coverage shall be primary insurance with respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any insura nce or self-insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of Consultant’s insurance and shall not contribute with it.
B. Any failure to comply with reporti ng or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials, employees, agents, and volunteers.
C. All insurance coverage and limits provided by Cons ultant and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made or suit is brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage.
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D. No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in this Agreement (e.g., elimination of contractual liability or reducti on of discovery period), unless th e endorsement has first been submitted to the City Manager and approved in writing.
E. Consultant agrees to require its insurer to modify in surance endorsements to delete any exculpatory wordi ng stating that failure of the insurer to mail written notice of cancellation imposes no obliga tion, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, a nd submittal of certifi cates without required endorsements may delay commencement of the Project. It is Consultant’s obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement.
F. Consultant agrees to ensure that subConsultants, and any other parties involved with the Project who are brought onto or involved in the Project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requireme nts of this section. Consulta nt agrees that upon request, all agreements with subConsultants and others engage d in the Project will be submitted to the City for review.
G. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights in this or any other regard.
H. Consultant shall provide proof that policies of insurance required in this Agreement, expiring during the term of this Agreement, have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration of the lapsing coverage.
I. Requirements of specific insurance c overage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements, or as a waiver of any coverage normally provide d by any given policy. Specific re ference to a given coverage feature is for purposes of clarific ation only as it pertains to a gi ven issue, and is not intended by any party or insured to be limiting or all-inclusive.
J. The requirements in this section su persede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section.
K. Consultant agrees to provide immedi ate notice to City of any claim or loss against Consultant arising out of the Work pe rformed under this Agreement and for any other claim or loss which may reduce the insurance available to pay claims arising out of this Agreement.
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City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to reduce or dilute insurance available for payment of potential claims.
L. Consultant agrees that the provisions of this section sh all not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages resulting from the Consultant’s activities or the activities of any person or person for which the Consultant is otherwise responsible.
5.4 Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances.
5.5 Verification of Coverage. Consultant shall furnish City with both certificates of insurance and endorsements, in cluding additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work co mmences. City reserves the right to require Consultant’s insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorse ments 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 approv ed 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 wr itten 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 official s, officers, employees, agents, and volunteers.
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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 bi nd coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Consultant’s obligation to provide them.
6. INDEMNIFICATION
6.1 Indemnification and Reimbursement . To the fullest extent permitted by law, Consultant shall defend (at Cons ultant’s sole cost and expens e), indemnify, protect, and hold harmless City, its elected offici als, officers, employees, agents , and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (Consultant’s employees included), for damage to property, including property owned by City, for any violatio n 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 committ ed by Consultant, its officers, employees, representatives, and agents, that arise out of or relate to Consultant’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set fort h in this Agreement be cons trued to limit Consultant’s indemnification obligation or other liability under this Agre ement. Consultant’s indemnification obligation shall survive the expiration or earlier te rmination of this Agr eement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final.
6.2 Design Professional Services Indemnification and Reimbursement. If Consultant’s obligation to defe nd, indemnify, and/or hold harmle ss arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation sh all be limited to the extent which the Claims arise out of, pertain to, or relate to the neglig ence, recklessness, or willful misconduct of the Consultant in the performance of the Services or this Agreement, and, upon Consultant obtaining a final adjudication by a court of competent jurisd iction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
6.3 Claims Filed by City’s Construction Contractor.
A. If claims are filed by the City’s constructi on contractor relating to work performed by Consultant’s personnel, and additional information or assistance from Consultant’s personnel is required in order to evaluate or defend against such claims; Consultant agrees to make its personnel available for consultation with the C ity’s construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
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B. Consultant’s personnel th at the City considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from the City.
Consultant shall be responsible for all cost s associated with consultation or testimony, including travel costs, associated with defense of the City’s construction contractor claims.
C. Services of Consultant’s personnel in connection with the City’s construction contractor claims will be performed pursuant to a written amendment to this Agreement, if necessary, extending the termination date of this Agreement in order to resolve the construction claims.
7. REPORTS AND RECORDS
7.1 Accounting Records. Consultant shall keep co mplete, accurate, and detailed accounts of all time, costs, expens es, and expenditures pertaining in any way to this Agreement.
Consultant shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and to enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records.
7.2 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement, or as the Contract Officer shall require. Consultant acknowledges that the City is greatly concerned about the cost of the Work to be pe rformed under this Agreem ent. For this reas on, Consultant agrees that Consultant shall promptly notify the Contract Officer the es timated increased or decreased cost if Consultant becomes aware of any facts, ci rcumstances, techniques, or events that may or will materially increase or decrease the cost of th e Services. If Consultant is providing design services, Consultant shall promptly notify the Contract Officer the estimated increased or decreased cost for the project being designed if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the design services. The Consultant further acknowledges the following:
A. Consultant shall submit progress reports at least once a month. Th e report should be sufficiently detailed for the Cont ract Officer to determine, if Consultant is performing to expectations, or is on sche dule; to provide co mmunication of interi m findings, and to sufficiently address any difficul ties or special pr oblems encountered, so remedies can be developed.
B. Consultant’s Project Manager shall meet with the City’s Contract Officer, as needed, to discuss progress on the Project.
7.3 Ownership of Documents. All drawings, specificati ons, reports, records, documents, memoranda, correspondence, comput ations, and other mate rials prepared by Consultant, its employees, subConsultants, and agents in the performance of this Agreement shall be the property of City and shall be promptly delivered to City upon request of the Contract Officer or upon the termination of this Agreement. Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the Item 1J - Page 44
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documents and materials. Any use of such completed documents for other projects and/or use of incomplete documents without specific written authorization by the Consultant will be at the City's sole risk and without liability to Consultant, a nd the City shall indemnif y the Consultant for all resulting damages. Consultant may retain copies of such documents for their own use. Consultant shall have an unrestricted right to use the concepts embodied tin this Agreement. Consultant shall ensure that all its subConsultants shall provide for assignment to City of any documents or materials prepared by them. In the event Consulta nt fails to secure such assignment, Consultant shall indemnify City for all resulting damages.
Consultant further acknowledges the following:
A. Upon completion of all work under this Agreem ent, ownership and title to all reports, documents, plans, specifications , and estimates produce as part of this Agreement will automatically be vested in the City; and no further agreement will be necessary to transfer ownership to the City. Consultant shall furnish the City all necessary copies of data needed to complete the review and approval process. Additionally, it is agreed that the Parties intend this to be an Agreement for services and each considers the products and results of the services to be rendered by Consultant hereunder to be work made for hire. Consultant acknowledges and agrees that the work (and all rights therei n, including, without limi tation, copyright) belongs to and shall be the sole and exclusive property of City without restriction or limitation upon its use or dissemination by City.
B. It is understood and agreed that all calculations, drawings and specifications, whether in hard copy or machine-readable form, are intended for one-time use in the construction of the project for which this Agreement has been entered into.
C. Consultant is not liable for clai ms, liabilities, or losses arisi ng out of, or connected with the modification, or misuse by the City of the machine-readable information and data provided by Consultant under this Agr eement; further, Consultant is not liable for claims , liabilities, or losses arising out of, or connect ed with any use by the City of the project documentation on other projects for additions to this project, or for the completion of this project by others, except only such use as many be authorized in writing by Consultant.
D. Applicable patent rights provisi ons regarding rights to inventi ons shall be included in the contracts as appropriate (48 CFR 27, Subpart 27.3 - Patent Rights under Government Contracts for federal-aid contracts).
E. The City may permit copyrighting reports or other agreement products. If copyrights are permitted; the agreement shall provide that the FHWA shall have the royalty-free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.
F. Immediately upon termination, City shall be entitled to, and Consu ltant shall deliver to City, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates
performed to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by Consultant in performing this Agreement which is not Item 1J - Page 45
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Consultant’s privileged information, as defined by law, or Consultant’s personnel information, along with all other property belonging exclusively to City which is in Consultant’s possession.
G. Publication of the information derived from work performed or data obtained in connection with services rendered under this Agreement must be approved in writing by City.
7.4 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Consultant in the performance of Services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. All information gained by Consultant in the perfor mance of this Agreement shall be considered confidential and shall not be released by Consultant without City’s prior written authorization.
Consultant further acknowledges the following:
A. All financial, statistical, personal, technical, or other data and information relative to the City’s operations, which are designated confidential by the City and made available to Consultant in order to carry out this Agreement, shall be protected by Consultant from unauthorized use and disclosure.
B. Permission to disclose information on one occasion, or public hearing held by the City relating to the Agreement, shall not au thorize Consultant to further disclose such information, or disseminate the same on any other occasion.
C. Consultant shall not comment publicly to the press or any other media regarding the Agreement or the City’s actions on the same, except to the City’s sta ff, Consultant’s own personnel involved in the performance of this Agreement, at public hearings or in response to questions from a Legislative committee.
D. Consultant shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this Agreement w ithout prior review of the contents thereof by the City, and receipt of the City’s written permission.
E. Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this Section.
F. All information related to the construction estimate is confidential, and shall not be disclosed by Consultant to any entity, other than the City, Caltrans, and/or FHWA. All of the materials prepared or assembled by Consultant pursuan t to performance of this Agreement are confidential and Consultant agrees that they shall not be made available to any individual or organization without the prior written approval of City or except by court order. If Consultant or any of its officers, employe es, or subcontractors does vol untarily provide information in violation of this Agreement, City has th e right to reimbursement and indemnity from Consultant for any damages caused by Consultant releasing the information, including, but not limited to, City’s attorney’s fees and disbursements, including without limitation experts’ fees and disbursements.
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7.5 Audit and Inspection of Records. After receipt of reas onable notice and during the regular business hours of Cit y, Consultant shall provide City, or other agents of City, such access to Consultant’s books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Consultant’s performance under this Agreement. Consultant shall maintain such books, records, data, and documen ts in accordance with generally accepted accounting principles and shall cl early identify and make such it ems readily access ible 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.
Consultant further acknowledges the following:
A. For the purpose of determining compliance with Public Contract Code 10115, et seq. and Title 21, California Code of Regulations, Chapter 21, Section 2500 et seq., when applicable and other matters connected with the performance of the Agreement pursuant to Government Code 8546.7; Consultant, subconsultants, and City shall maintain and make available for inspection all books, documents, papers, accounting record s, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaini ng to the performance of the Agreement, including but not limi ted to, the costs of
administering the Agreement. All parties, including
Consultants Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the Agreement period and for three years from the date of final payment under the Agreement and records for real property and equipment acquired with federal funds must be retained for three years after final disposition. The state, State Auditor, City, FHWA, or any duly authorized representative of the Federal Government having jurisdiction under Federal laws or regula tions (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of Consultant and it’s certified public accountants (CPA) work pape rs that are pertinent to the Agreement and indirect cost rates (ICR) for audit, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested.
B. Consultant and any subconsultant shall permit the City, the state, and the FHWA if federal participating funds are used in this Agreement; to review and inspect the project activities and files at all reasonable times during the performance period of this Agreement including review and inspection on a daily basis.
7.6 Audit Review Procedures.
A. Any dispute concerning a question of fact ar ising under an interim or post audit of this Agreement that is not disposed of by agreemen t, shall be reviewed by City’s Chief Financial Officer.
B. Not later than 30 days after issuance of the final audit report, Consultant may request a review by City’s Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.
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C. Neither the pendency of a dispute nor its consid eration by City will excuse Consultant from full and timely performance, in accordance with the terms of this Agreement.
D. Consultant and Subconsultant contracts, includ ing cost proposals and Indirect Cost Rates (ICR), are subject to audits or reviews such as, but not limited to, a contract audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the Agreement, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR, Part 31 a nd other related laws and regulations. In the instances of a CPA ICR audit work paper review it is Consultant’s responsibility to ensure federal, state, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The Ag reement, cost proposal, and ICR shall be adjusted by Consultant and appr oved by City contract manager to conform to the audit or review recommendations. Consultant agrees that individual terms of costs identified in the audit report shall be incorporated into the Agreement by this reference if directed by City at its sole discretion. Refusal by Consu ltant to incorporate audit or review recommendations, or to ensure that the federal, stat e or local governments have access to CPA work papers, will be considered a breach of Agreement terms and cause for termination of the Agreement and disallowance of prior reimbursed costs.
E. Consultant’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentati on. The Cost Proposal shall be adjusted by the Consultant and approved by th e City’s Contract Officer to conform to the Work Paper Review recommendations include d in the management letter or audit recommendations included in the audit report. Refusal by the Consultant to incorporate the Work Paper Review recommendations include d in the management letter or audit recommendations included in the audit report will be considered a breach of the Contract terms and cause for termination of the Contract and disallowance of prior reimbursed costs.
F. During IOAI’s review of the ICR audit work papers created by the Consultant’s independent CPA, IOAI will work with the CPA and/or Consultant toward a resolution of issues that arise during the review. Each party agrees to use its be st efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, the City will reimburse the Consultant at an accepted ICR until a FAR (Federal Acquisition Regulation) comp liant ICR {e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Associati on of State Highways and Transportation Officials (AASHTO) Audit Gu ide; and other applic able procedures and guidelines}is received and approved by IOAI . If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbur sed will be ninety percent (90%) of the proposed rate. If the proposed rate is betw een one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.
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G. If IOAI is unable to issue a cognizant letter per paragra ph F above, IOAI may require Consultant to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the Consultant’s and/or the independent CPA’s revisions.
H. If the Consultant fails to comply with the provis ions of this Section 7.6 , or if IOAI is still unable to issue a cognizant appr oval letter after the revised i ndependent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph F above for all rendered services. In this event, this accepted I CR will become the actual and final ICR for reimbursement purposes under this Agreement.
I. Consultant may submit the final invoice to the City only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this Agreement has been comp leted to the satisfaction of the City; and, (3) IOAI has issued its final ICR review letter. The Consultant must submit the final invoice to the City no later than sixty (60) calendar days after o ccurrence of the last of these items. The accepted ICR will apply to this Agreement and a ll other agreements executed between City and the Consultant, either as a prime or Subconsultant, with the same fiscal period ICR.
8. ENFORCEMENT OF AGREEMENT
8.1 California Law and Venue. This Agreement shall be construed and interpreted both as to validity and as to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, cl aim, or matter arising out of or in relation to this Agreement shall be instituted in the Superi or Court of the County of Riverside, State of California, or any other appropriate court in such County, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
8.2 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 betw een 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 pu rposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs.
8.3 Default of Consultant. Consultant’s failure to comply with any provision of this Agreement shall constitute a default.
A. If the City Manager, or his designee, de termines that Consultant is in default in the performance of any of the terms or cond itions of this Agreement, he/she shall notify Consultant in writing of such de fault. Consultant shall have te n (10) days, or such longer period as City may designate, to cure the default by rendering satisfactor y performance. In the event Consultant fails to cure its default within such period of time, City shall have the right, Item 1J - Page 49
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notwithstanding any other provision of this Agr eement, to terminate this Agreement without further notice and without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. Consultant shall be liable for all reasonable costs incurred by City as a result of such default. Compliance with the provisions of this section shall not constitute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing shall limit City’s right to terminate this Agreement without cause under Section 3.5.
B. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 8.3A, take over the work and prosecute the same to completion by contract or otherwise. The Consultant shall be liable to the extent that the total cost for comp letion of the Services required hereunder exceeds the Maximum Contract Amount (provided that the City shall use reasonab le efforts to mitigate such damages). The City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated. The withholding or failure to withhold payments to Consultant shall not limit Consultant’s liability for completion of the Services as provided in this Agreement.
8.4 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition, or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default or breach, nor shall failure by the Parties to require exact, full, and complete compliance with any of the covenants, conditi ons, or terms contained in this Agreement be construed as changing the terms of this Agreement in any manner or preventing the Parties from enforcing the full provisions.
8.5 Rights and Remedies Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agr eement, the rights and reme dies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or differ ent times, of any other ri ghts or remedies for the same default or any other default by the other Party.
8.6 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correc t, remedy or recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
8.7 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non-judi cial 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 re asonable attorney fees, expert consultant fees, court cost s and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding. To the extent authorized by law, in the event of a dismissal by the plaintiff or petitioner of the litigation or non-judicial proceeding within thirty (30) days of the date se t for trial or hearing, the other Pa rty shall be deemed to be the prevailing Party in such litigation or proceeding.
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8.9 Disputes.
A. Prior to either party commencing any legal action under this Agreement, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty-five (45) days of good-faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other.
B. Any dispute, other than audit, concerning a question of fact arising under this Agreement that is not disposed of by agreement shall be decided by a committee consisting of City’s Contract Officer and City Engineer, who may consider written or verbal information submitted by Consultant.
C. Not later than thirty (30) calendar days after completion of all work under the Agreement, Consultant may request review by City Council of unresolved cl aims or disputes, other than audit. The request for review will be submitted in writing.
D. Neither the pendency of a dispute, nor its consideration by the committee will excuse Consultant from full and timely performance in accordance with the terms of this Agreement.
9. CITY OFFICERS AND EMPL OYEES: NON-DISCRIMINATION
9.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Consultant, or any successor-in-interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
9.2 Conflict of Interest. Consultant acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Consultant enter into any agreement of any kind with any such officer or em ployee during the term of this Agreement and for one (1) year thereafter. Consu ltant warrants that Consultant has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. Further, Consultant acknowledges the following:
A. Consultant shall disclose any financial, business, or other rela tionship with the City that may have an impact upon the outcome of this Agreement, or any ensuing City construction project.
Consultant shall also list current clients who may have a financial interest in the outcome of this Agreement, or any ensuing City construction project, which will follow.
B. Consultant certifies that it has disclosed to the City any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this Agreement.
Consultant agrees to advise the City of any actua l, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this Agreement. Consultant further agrees to complete any statements of economic interest if required by either the City ordinance or State law.
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C. Consultant hereby certifies that it does not no w have, nor shall it acquire any financial or business interest that would conflict with the performance of services under this Agreement.
D. Consultant hereby certifies that neither Consultant, its employees, nor any firm affiliated with Consultant providing services on this project prepared the Plans, Specifications, and Estimate for any construction project included within this Agreement. An affiliated firm is one, which is subject to the control of the same persons through joint- ownership, or otherwise.
E. Consultant further certifies that neither Consultant, nor any firm affiliated with Consultant, will bid on any construction subcontracts in cluded within the construction contract.
Additionally, Consultant certifies that no person worki ng under this Agr eement is also employed by the construction contractor for any project included within this Agreement.
F. Except for subconsultants whose services are li mited to materials testing, no subconsultant who is providing service on this Agreement shall have provided services on the design of any project included within this Agreement.
9.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of actual or perceived ra ce, religion, color, sex, age, ma rital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expre ssion, physical or mental disability, or medical condition (each a “prohibited basis”). Consultant shall ensure that app licants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawf ul capacity to enter this Agreement, and in executing this Agreement, Consultant certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Consultant activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; ra tes of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Consultant is in full compliance with the provisions of Palm Springs Muni cipal Code Section 7.09. 040, including without limitation the provision of benefits, relating to non-discrimination in city contracting.
Consultant further acknowledges the following requirements:
A. Consultant’s signature affixed herein, and dated, shall constitute a certifica tion under penalty of perjury under the laws of the State of Ca lifornia that Consultant has, unless exempt, complied with, the nondiscrimination program requirements of Government Code Section 12990 and Title 2, California Administrative Code, Section 8103.
B. During the performance of this Agreement, Consultant and its Subconsultants shall not deny the Agreement’s benefits to any person on the ba sis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gend er identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for employmen t because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, me dical condition, genetic Item 1J - Page 52
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information, marital status, sex, gender, gender identity, gender ex pression, age, sexual orientation, or military and veteran status. Consultant and Subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Consultant and Subconsulta nts shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov.
Code §§11135-11139.5, and the regulations or standards adopted by the City to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set fort h 2 CCR §§8100-8504, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Consultant shall permit access by representatives of the Department of Fair Employment and Housing and the City upon reasonable notice at any time during the normal business hours, but in no case less than twenty-four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or City shal l require to ascertain compliance with this clause. Consultant and its Subconsultant s shall give written notice of their obligations under this clause to labor or ganizations with which they have a collective bargaining or other Agreement.
C. The Consultant shall comply w ith regulations relative to n on-discrimination in federally- assisted programs of the U.S. Department of Transportation (49 CFR Part 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Speci fically, the Consultant shall not participate either directly or indire ctly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
D. The Consultant, with regard to the work performed under this Agreement, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, ag e, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
E. Consultant, subrecipient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the City components of the DBE Program Plan, Consultant, subrecipient or subconsultant will no t, directly, or through contractual or other
arrangements, use criteria or me thods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.
F. Consultant shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement.
G. During the performance of this Agreement, th e Consultant, for itself, its assignees, and successors in interest (herein collectively referred to as CONSULTANT) agrees as follows:
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a. Compliance with Regulations: CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement. b. Nondiscrimination: CONSULTANT, with re gard to the work performed by it during the , shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by Section
21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations. c. Solicitations for Sub-agreements, Incl uding Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work to be perform ed under a Sub-agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified by CONSULTANT of the CONSULTANT’S obligations under this Agreement and the Regulations relative to nondis crimination on the grounds of race, color, or national origin.
d. Information and Reports: CONSULTANT shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA to be pertinent to ascertain compliance with such Regulations or di rectives. Where any information required of CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, CONSULTANT shall so certify to the recipient or FHWA as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information.
e. Sanctions for Noncomplianc e: In the event of C ONSULTANT’s noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
i. withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or ii. cancellation, termination or suspension of the Agreement, in whole or in part.
f. Incorporation of Provisi ons: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub-agreement, in cluding procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.
g. CONSULTANT shall take such action with respect to any sub-agreement or procurement as the recipient or FHWA ma y direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes
involved in, or is threatened with, litigation with a
sub-applicant or supplier as a result of such direction, CONSULTANT may request the recipient enter into such litigation to protect the interests of the State, and, in Item 1J - Page 54
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addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.
H. During the performance of this Agreement, th e Consultant, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to:
a. Title VI of the Civil Rights Act of 1 964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.
b. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601 ), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);
c. Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex);
d. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; e. The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age);
f. Airport and Airway Improvement Act of 1982, ( 49 USC § 4 71, Section 4 7123 ), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex);
g. The Civil Rights Restoration Act of 1987, (PL 100-209), (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); h. Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of pub lic entities, public and private transportation systems, pl aces of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.P.R. parts 37 and 38; i. The Federal Aviation Administration's N on-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);
j. Executive Order 12898, Federal Actions to Address Environm ental Justice in Minority Populations and Low-Income Populations, which ensures discrimination against minority populations by discouragi ng programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations;
k. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); Item 1J - Page 55
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l. Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U .S.C. 1681 et seq).
9.4 Rebates, Kickbacks or Other Unlawful Consideration. Consultant warrants that this Agreement was not obtained or secured through rebates kickback s or other unlawful consideration, either promised or paid to any City employee. For breach or violation of this warranty, City shall have the right in its discreti on; to terminate the Agreement without liability; to pay only for the value of the work actually perfor med; or to deduct from the contract price; or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
9.5 Contingent Fee. Consultant warrants, by executi on of this Agreement that no person or selling agency has been employed, or retained, to solicit or secure this Agreement upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees, or bona fide established commercial or selling agencies maintained by Consultant for the purpose of secu ring business. For breach or violation of this warranty, the City has th e right to annul this Ag reement without liability; pay only for the value of the work actually performed, or in its di scretion to deduct from the Agreement price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
10. MISCELLANEOUS PROVISIONS
10.1 Patent and Copyright Infringement. To the fullest extent permissible under law, and in lieu of any other warranty by City or Consultant against patent or copyright infringement, statutory or otherwise:
A. It is agreed that Consultant shal l defend at its expens e any claim or suit against City on account of any al legation that any item furnishe d under this Agreement, or the normal use or sale arising out of the performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright and C onsultant shall pay all costs and damages finally awarded in any such suit or claim, provided that Consultant is promptly notified in writing of the suit or claim and given authority, information a nd assistance at Consultant’s expense for the defense of same, and provided such suit or claim ar ises out of, pertains to, or is related to the negligence, recklessness or willful misconduct of Consultant. However, Consultant will not indemnify City if the suit or claim results from: (1 ) City's alteration of a deliverable, such that City’s alteration of such deliv erable created the infringement upon any presently existing U.S. letters patent or copyright; or (2 ) the use of a deliverable in comb ination with other material not provided by Consultant when it is such use in combination which infringes upon an existing U.S. letters patent or copyright.
B. Consultant shall have sole control of the defense of any such claim or suit and all negotiations for settlement in the event City fails to cooperate in the defense of any suit or claim, provided, however, that such defense shall be at Consultant’s expense. Consultant shall not be obligated to indemnify City under any settlement that is made without Consultant’s consent, which shall not be unreasonably withheld. If the use or sale of such item is enjoined as a result of Item 1J - Page 56
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the suit or claim, Consultant, at no expense to Ci ty, shall obtain for City th e right to use and sell the item, or shall substitute an equivalent ite m acceptable to City and extend this patent and copyright indemnity thereto.
10.2 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.
All notices shall be pers onally delivered, sent by pre-paid Firs t Class U.S. Mail, registered or certified mail, postage prepaid, return receipt re quested, or delivered or sent by facsimile with attached evidence of completed transmission. All notices shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) five (5) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by facsimile. Any notice, request, demand, direction, or othe r communication sent by facsimil e must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as e-mails, text messages, and instant message s are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows:
To City: City of Palm Springs
Attention: City Manager & City Clerk
3200 E. Tahquitz Canyon Way
Palm springs, California 92262
Telephone: (760) 323-8204
Facsimile: (760) 323-8332
To Consultant: [Insert Consultant Name]
A t t e n t i o n : [Insert Appropriate Party]
A d d r e s s L i n e
A d d r e s s L i n e
Telephone:
F a c s i m i l e :
10.3 Integrated Agreement. This Agreement constitutes the entire understanding between the Parties and supersedes and cancels a ll prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement.
10.4 Amendment. No amendments or other modifica tions of this Agreement shall be binding unless through written agreement signed by all Parties.
10.5 Severability. Whenever possible, each provis ion of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement shall be determined to be invalid by a final judgment or decree of a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the reminder of that provision, or the remaining provisions of this Agreement unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
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10.5 Successors in Interest. This Agreement shall be bi nding upon and in ure to the benefit of the Parties’ successors and assignees.
10.6 Third Party Beneficiary. Except as may be expressl y provided for in this Agreement, nothing contained in this Agreement is intended to confer, no r shall this Agreement be construed as conferri ng, any rights, including, w ithout limitation, any ri ghts as a third-party beneficiary or otherwise, upon any entity or person not a party to this Agreement.
10.7 Recitals. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set fort h in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same.
10.8. Corporate Authority. Each of the undersigned represen ts and warrants that (i) the Party for which he or she is executing this Agreem ent is duly authorized a nd existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agre ement, the Party for which he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which the Party for which he or she is signing is bound.
10.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
10.10 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.
10.11 Prohibition of Expending City, State or Federal Funds for Lobbying.
A. Consultant certifies to the best of his or her knowledge and belief that:
1) No State, Federal, or City appropriated funds have been paid or will be paid, by or on behalf of the Consultant, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employ ee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this Agreement, or with the ex tension, continuation, renewal, amendment, or modification of this Agreement.
2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influe nce an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Item 1J - Page 58
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Congress in connection with th is Agreement, the Consultant shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certif ication is a prerequisite for making or entering into this transaction im posed by Section 1352, Title 31, U.S. Code. Any person who fails to file the requi red certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
C. Consultant also agrees by signing this Agreement that he or she shall require that the language of this certification be included in all lower-tier subcontracts, which exceed $100,000 and that all such sub recipients shall certify and disclose accordingly.
10.12 Debarment and Suspension Certification.
A. Consultant’s signature affixed herein, shall constitute a certification under penalty of perjury under the laws of the State of California, that Consultant has complied with Title 2 CFR, Part 180, “OMB Guidelines to Agencies on Government wide Debarment and Suspension (nonprocurement)”, which certifies that he/she or any person associated therewith in the capacity of owner, partner, di rector, officer, or manager, is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency; has not been suspended, debarred, voluntarily exclud ed, or determined ineligible by any federal agency within the past three (3) years; does not have a proposed debarment pending; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
Any exceptions to this certification must be disclosed to the City.
B. Exceptions will not necessarily result in deni al of recommendation for award, but will be considered in determining Consultant respons ibility. Disclosures must indicate to whom exceptions apply, initiating agency, and dates of action.
C. Exceptions to the Federal Government Excluded Parties ( https://sam.gov/content/home) maintained by the U.S. General Services Administration are to be determined by the Federal highway Administration.
10.13 Disadvantaged Business Enterprises (DBE) Participation.
A. Consultant, subrecipient (City), or subconsultant shall take necessary and reasonable steps to ensure that DBEs have oppor tunities to participate in the Agreement (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, The City shows a contract goal for DBEs. Consultant shall make work availabl e to DBEs and select work parts consistent with available DBE subconsultants and suppliers.
B. Consultant shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate Good Faith Efforts (GFE) to meet this goal. It is Item 1J - Page 59
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Consultant’s responsibility to verify at date of proposal opening that the DBE firm is certified as a DBE by using the California Unified Certification Program (CUCP) database and possesses the most specific available North American Industry Cl assification System (NAICS) codes and work code applicable to th e type of work the fi rm will perform on the contract. Additionally, the Consultant is responsible to document the verification record by printing out the CUCP data for each DBE firm. A list of DBEs certified by the CUCP can be found at: https://dot.ca.gov/programs/civil-rights/dbe-search.
C. All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies Consultant purchases from DBEs counts towards the goal in the following manner:
100 percent counts if the materials or supplies are obtained from a DBE manufacturer.
60 percent counts if the materials or s upplies are purchased from a DBE regular dealer.
Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49CFR26.55 defines "manufacturer" and "regular dealer."
D. This Agreement is subject to 49 CFR, Part 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Tran sportation Financial As sistance Programs”.
Consultants who enter into a federally-funded agreement will assist the City in a good faith effort to achieve California's statewide overall DBE goal.
E. The goal for DBE participation for this Agreement is 17%. Participation by DBE consultant or subconsultants shall be in accordance with information contained in the Consultant Proposal DBE Commitment (Exhibit 10-O1), or in the Consultant Contract DBE Information (Exhibit 10-O2) attached hereto and incorporated as part of the Agreement. If a DBE subconsultant is unable to perform, Consulta nt must make a good fait h effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
F. The Consultant can meet the DBE participation goal by either documenting commitments to DBEs to meet the Contract goal, or by docum enting adequate good faith efforts to meet the Contract goal. An adequate good faith effort means that the Consultant must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If Consultant has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information – Good Faith Efforts to documen t efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
G. Under 49 CFR 26.13(b): “Consultant, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement.
Consultant shall carry out applicable re quirements of 49 CFR 26 in the award and administration of federal-aid contracts.” Fa ilure by Consultant to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as the City deems appropriate, which may include but Item 1J - Page 60
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not be limited to: (1) Withholding monthly pr ogress payments; (2) Assessing sanctions; (3) Liquidated damages; and/or; (4) Disqualifyi ng the contractor from future bidding as non- responsible.
H. Consultant shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless Consultant or DBE subconsultant obtains the City’s written consent. Consultant shall not terminate or replace a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the City. Unless the City’s consent is provided, the Consultant shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02 Consultant Contract DBE Commitment form.
I. After execution of the Agreement, termination of a DBE may be allowed for the following, but not limited to, justifiable reasons with prior written authorization from the City:
a. Listed DBE fails or refuses to execut e a written contract based on plans and specifications for the project.
b. The City stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the City’s bond requirements.
c. Work requires a consultant's license a nd listed DBE does not have a valid license under Contractors License Law.
d. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination). e. Listed DBE's work is unsatisfactory and not in compliance with the contract. f. Listed DBE is ineligible to work on the project because of suspension or debarment. g. Listed DBE becomes bankrupt or insolvent or exhibits credit unworthiness. h. Listed DBE voluntarily withdraws with written notice from the Contract. i. Listed DBE is ineligible to receive credit for the type of work required. j. Listed DBE owner dies or becomes disabl ed resulting in the inability to perform the work on the Contract.
k. The City determines other documented good cause.
J. Consultant must use the following procedures to request the termination of a DBE or portion of a DBE’s work:
a. Send a written notice to the DBE of the Cons ultant’s intent to use other forces or material sources and include one or mo re justifiable reasons listed above.
Simultaneously send a copy of this written notice to the City. The written notice to the DBE must request they provide any re sponse within five (5) business days to both the Consultant and the City by either acknowledging their agreement or documenting their reasoning as to why the use of other forces or sources of materials should not occur.
b. If the DBE does not respond w ithin five (5) business da ys, Consultant may move forward with the request as if the DBE had agreed to Consultant’s written notice. c. Submit Consultant’s DBE termination reque st by written letter to the City and include:
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One or more above listed justifiable reasons along with supporting documentation.
Consultant’s written notice to the DBE regarding the request, including proof of transmission and tracking documentation of Consultant’s written notice
The DBE's response to Consultant’s written notice, if received. If a written response was not provided, provide a statement to that effect.
K. The City shall respond in writi ng to Consultant’s DBE termination request within five (5) business days. After receiving the City’s written authorization of DBE termination request, Consultant must obtain the City’s written agreement for DBE replacement. Consultant must find or demonstrate GFEs to find qualified DB E replacement firms to perform the work to the extent needed to meet the DBE commitment.
L. The following procedures shall be followed to request authorization to replace a DBE firm:
1. Submit a request to replace a DBE with other fo rces or material sources in writing to the City which must include:
a. Description of remaining uncommitted work item made available for replacement DBE solicitation and participation.
b. The proposed DBE replacement firm's business information, the work they have agreed to perform, and the following:
Description of scope of work and cost proposal
Proposed subcontract agreement and wr itten confirmation of agreement to perform on the Contract
Revised Exhibit 10-O2: Consultant Contract DBE Commitment
M. If Consultant has not identified a DBE replacement firm, submits documentation of Consultant’s GFEs to use DBE replacement firms within seven (7 ) days of City’s authorization to terminate the DBE. Consultant may request the City’s approval to extend this submittal period to a tota l of 14 days. Submit documentati on of actions taken to find a DBE replacement firm, such as:
Search results of certified DBEs available to perform the original DBE work identified and or other work Consultant had intended to self-perform, to the extent needed to meet DBE commitment
Solicitations of DBEs for performance of work identified Correspondence with interested DBEs that may have included contract details and requirements
Negotiation efforts with DBEs that reflect why an agreement was not reached If a DBE's quote was rejected, provide reasoning for the rejection, such as why the DBE was unqualified for the work, or why the price quote was unreasonable or excessive
Copies of each DBE's and non-DBE's price quotes for work identified, as the City may contact the firms to verify solicitation efforts and determine if the DBE quotes are substantially higher
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Additional documentation that supports Consultant’s GFE
N. The City’s DBE program includes a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization. The Consultant shall notify the City’s contract administrator or designated representative of a ny changes to its anticipated DBE participation and provide this notification before starting the affected work. The Consultant shall maintain records including; name and bus iness address of each 1st-tier subconsultant; name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier; date of payment and total amount paid to each business (see Exhibit 9-F Monthly Disadvantaged Business Enterprise Payment). If Consultant is a DBE Consultant, they shall include the date of work performed by their own forces and the corresponding value of the work.
O. If a DBE is decertified before completing its work, the DBE must notify Consultant in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify Consultant in writing of the certification date. Consultant shall submit the notifications to the City. On wo rk completion, Consultant shall complete a Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17-O, form and submit the form to the City within 30 days of contract acceptance.
P. Upon work completion, Consulta nt shall complete Exhibit 17 -F Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First-Tier Subcontractors and submit it to the City within 90 days of contract acceptance. The City will withhold $10,000 until the form is submitted. The City will release the withhold upon submission of the completed form.
Q. DBEs must perform a commercially useful function (CUF) under 49 CFR 26.55 when performing work or supplying materials lis ted on the DBE Commitment form. The DBE value of work will only count toward the DBE commitment if the DBE performs a CUF. A DBE performs a CUF when it is responsible for execution of the work of the Agreement and is carrying out its responsibil ities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsibl e, with respect to materials and supplies used on the Agreement, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself.
R. Consultant must perform CUF evaluation for each DBE working on a federal-aid contract, with or without a DBE goal. Perform a CUF evaluation at the beginning of the DBE’s work and continue to monitor the performance of CUF for the duration of the project.
S. Consultant must provide written notification to th e City at least 15 days in advance of each DBE's initial performance of work or supplying materials for the Contract. The notification must include the DBE's name, work the DBE will perform on the contract, and the location, date, and time of where their work will take place. Within 10 days of a DBE initially performing work or supplying materials on the Contract, Consultant shall submit to the LPA the initial evaluation and validation of DBE performance of a CUF using the LAPM 9-J:
Disadvantaged Business Enterprise Commercia lly Useful Function Evaluation. Include the following information with the submittal:
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Subcontract agreement with the DBE
Purchase orders
Bills of lading
Invoices
Proof of payment
T. Consultant must monitor all DBE’s performance of CUF by conducting quarterly evaluations and validations throughout their duration of work on the Contract using the LAPM 9-J: DBE Commercially Useful Function Evaluation. Consultant must submit to the City these quarterly evaluations and validations by the 5th of the month for the previous three months of work.
U. Consultant must notify the City immediately if they believe the DBE may not be performing a CUF.
V. The City will verify DBEs performance of CUF by reviewing the initial and quarterly submissions of LAPM 9-J: DBE Commercia lly Useful Function Evaluation, submitted supporting information, field observations, and through any additional City evaluations. The City must evaluate DBEs and their CUF performance throughout the duration of a Contract.
The City will provide written notice to the Consultant and the DBE at least two (2) business days prior to any evaluation. The Consultant and the DBE must participate in the evaluation.
Upon completing the evaluation, the City must share the ev aluation results with the Consultant and the DBE. An evaluation coul d include items that must be remedied upon receipt. If the City determines the DBE is not performing a CUF, the Consultant must suspend performance of the noncompliant work.
W. Consultants and DBEs must submit any a dditional CUF related records and documents within five (5) business days of City’s request such as:
Proof of ownership or lease and rental agreements for equipment Tax records
Employee rosters
Certified payroll records
Inventory rosters
Failure to submit required DBE Commercially Us eful Function Evaluation forms or requested records and documents can result in withholding of payment for th e value of work completed by the DBE. If Consultant and/or the City determin e that a listed DBE is not performing a CUF in performance of their DBE committed work, Consultant must immediately suspend performance of the noncompliant portion of the work. City may deny payment for the noncompliant portion of the work. City will ask the Consultant to submit a corrective action plan (CAP) to the City within five (5) days of the noncompliant CUF determination. The CAP must identify how the Consultant will correct the noncompliance findings for the remaining portion of the DBE's work. City has five (5) days to review the CAP in conjunction with the Consultant’s review. The Consultant must implement the CAP within five (5) days of the C ity’s approval. The City will then authorize the prior noncompliant portion of work for the DBE's committed work. If corrective actions cannot be Item 1J - Page 64
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accomplished to ensure the DBE performs a co mmercially useful function on the Contract, Consultant may have good cause to request termination of the DBE.
X. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, contract, or proj ect through which funds are passe d in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
Y. If a DBE does not perform or exercise responsibil ity for at least thirty percent (30%) of the total cost of its contract with its own work force, or the DBE subcontracts a greater portion of the work of the contract than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
Z. Consultant shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or vendor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE prime consultants shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
AA. If a DBE subconsultant is decertified during the life of the Agreement, the decertified subconsultant shall notify Consultant in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the Agreement, the subconsultant shall notify Consultant in writing with the date of certification. Any changes should be reported to the City’s Contract Officer within 30 days.
BB. For projects awarded on or after March 1, 2020, but before September 1, 2023: No later than the 10th of the month following the month of any payment(s), the Consultant must submit an invoice for payment along with Exhibit 9-F: Monthly Disadvantaged Business Enterprise (DBE) Payment to the Caltrans Business Support Unit at [email protected]. Provide a copy to the City administering the contract.
CC. For projects awarded on or af ter September 1, 2023: Exhibit 9-F is no longer required.
Instead, by the 15th of the mont h following the month of any payment(s), the Consultant must now submit Exhibit 9-P to the City admini stering the contract. If the Consultant does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9- P.
DD. Any subcontract entered into as a result of this Agreement shall contain all of the provisions of this section.
10.14 Safety.
A. Consultant shall comply with OSHA regulations applicable to Consultant regarding necessary safety equipment or procedures. Consultant shall comply with safety instructions issued by Item 1J - Page 65
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City Safety Officer and other C ity representatives. Consultant personnel shall wear hard hats and safety vests at all times while working on the construction project site.
B. Pursuant to the authority contained in Section 591 of the Vehicle Code, the City has determined that such areas are within the limits of the pr oject and are open to public traffic. Consultant shall comply with all of the requirements set forth in Di visions 11, 12, 13, 14, and 15 of the Vehicle Code. Consultant shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the travel ing public from injury and damage from such vehicles.
C. Any subcontract entered into as a result of this Agreement, shall contai n all of the provisions of this Section.
D. Consultant must have a Division of Occupati onal Safety and Health (CAL-OSHA) permit(s), as outlined in California Labor Code Sections 6500 and 6705, prior to the initiation of any practices, work, method, operati on, or process related to the construction or excavation of trenches which are five feet or deeper.
10.15 National Labor Relations Board Certification. In accordance with Public Contract Code Section 10296, Consultant hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against Consultant within the immediately preceding two-y ear period, because of Consultant’s failure to comply with an order of a federal court that orders Consultant to comply with an order of the National Labor Relations Board.
10.16 Inspection of Work. Consultant and any subconsultant shall permit the City, the State, and the FHWA if federal participating funds are used in this Agreement; to review and inspect the project activities and files at all reasonable times during the performance period of this Agreement.
[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND KIMLEY-HORN AND ASSOCIATES, INC.
IN WITNESS WHEREOF, the Parties have execut ed this Agreement as of the dates stated below.
CONSULTANT:
By: _______________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No.
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________ J e f f B a l l i n g e r B r e n d a P r e e
City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
Scott C. Stiles
City Manager
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EXHIBIT “A”
SCOPE OF SERVICES
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EXHIBIT “B”
SCHEDULE OF COMPENSATION
A. The method of payment for this Agreement w ill be based on lump sum. The total lump sum price paid to Consultant will include compensa tion for all work and deliverables, including travel and equipment described in Exhibit “A” Scope of Services. No additional compensation will be paid to Consultant, unless there is a change in the scope of the work or the scope of the project. In the instance of a change in the scope of work or scope of the project, adjustment to the total lump sum compensation will be negotiated between Consultant and City. Adjustment in the total lump sum compensation will not be effective until authorized by Agreement amendment and approved by City.
B. Progress payments may be made monthly in arrears based on the percentage of work completed by Consultant. If Consultant fails to submit the required deliverable items according to the schedule set forth in Exhibit “A” Scope of Services, City shall have the right to delay payment or terminate this Agreement in accordance with the provisions of Article 3.5 Termination.
C. Consultant shall not commence performance of work or services until this Agreement has been approved by City and notification to proceed has been issued by City’s Contract Officer. No payment will be made prior to approval of any work, or for any work performed prior to approval of this Agreement.
D. Consultant will be reimbursed within thirty (30) days upon receipt by City’s Contract Officer of itemized invoices. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which Consultant is billing. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this Agreement number and project title. Final invoice must contain the final cost and all credits due City that include any equipment purchased under the provisions of Article 2.7 Equipment Purchase. The final invoice must be submitted within sixty (60) calendar days after completion of Consultant’s work unless a later date is approved by the City. Invoices shall be emailed to City’s Contract Officer at the following email addresses: [email protected]; [email protected]
I. The total amount payable by the City shall not exceed $(______).
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EXHIBIT “C”
EXECUTIVE ORDER N-6-22 CERTIFICATION
Executive Order N-6-22 issued by Governor Gavin Newsom on March 4, 2022, directs all agencies and departments that are subject to the Governor’s authority to (a) terminate any contracts with any individuals or entities that are determined to be a target of economic sanctions against Russia and Russian entities and individuals; and (b) refrain from entering into any new contracts with such individuals or entities while the aforementioned sanctions are in effect.
Executive Order N-6-22 also requires that any contractor that: (1) currently has a contract with the City of Palm Springs funded through grant funds provided by th e State of California; and/or (2) submits a bid or proposal or otherwise proposes to or enter into or renew a contract with the City of Palm Springs with State of California grant funds, certify that the person is not the target of any economic sanctions against Russia and Russian entities and individuals.
The contractor hereby certifies, SUBJECT TO PENALTY FOR PERJURY, that a) the contractor is not a target of any economic sanctions against Russian and Russian entities and individuals as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to legally bind the Contractor.
This certification is made under the laws of the State of California.
Signature:
Printed Name:
Title:
Firm Name:
Date:
Item 1J - Page 70
CITY COUNCIL STAFF REPORT
DATE: SEPTEMBER 26, 2024 CONSENT CALENDAR
SUBJECT: SECOND READING AND ADOPTION OF ORDINANCE NO. 2 102 AMENDING PALM SPRINGS MUNICIPAL CODE SECTION 6.10.082
REGARDING SMOKING PROHIBITIONS AT THE PALM SPRINGS
INTERNATIONAL AIRPORT
FROM: Scott C. Stiles, City Manager
BY: Department of Aviation
SUMMARY:
This is the second reading of an ordinance amending the Palm Springs Municipal Code Section 6.10.082 “Smoking Prohibited – Airport Terminal” to limit smoking at the Palm Springs International Airport to designated outdoor smoking areas.
RECOMMENDATION:
Waive the second reading of the ordinance text in its entirety, read by title only, and adopt Ordinance No. 2102 entitled, “AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTION 6.10.082 OF THE PALM SPRINGS MUNICIPAL
CODE REGARDING SMOKING PROHIBITIONS AT THE PALM SPRINGS INTERNATIONAL AIRPORT.”
STAFF ANALYSIS:
On April 11, 2024, Ordinance No. 2102 was introduced for first reading, as noted below:
MOTION BY COUNCILMEMBER MIDDLETON, SECOND BY MAYOR PRO TEM DEHARTE, CARRIED 5-0 to waive the reading of the ordinance text in its entirety, read by title only, and introduce Ordinance No. 2102 entitled, “AN ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA, AMENDING SECTION 6.10.082 OF THE PALM
SPRINGS MUNICIPAL CODE REGARDING SMOKING PROHIBITIONS AT THE PALM SPRINGS INTERNATIONAL AIRPORT.”
City Attorney’s Summary: This Ordinance amends Section 6.10.082 of the Palm Springs Municipal Code (“PSMC”) to limit smoking at the Palm Springs International Airport to designated outdoor smoking areas.
Item 1K - Page 1
City Council Staff Report
September 26, 2024 -- Page 2
Airport Smoking Ordinance – 2nd Reading & Adoption
This report provides for the City Council to waive further reading and adopt the ordinance.
The ordinance shall be effective 30 days from adoption.
REVIEWED BY:
Executive Airport Director: Harry Barrett Jr.
City Attorney: Oscar Verdugo
City Manager: Scott Stiles
ATTACHMENTS:
A. Ordinance No. 2102
Item 1K - Page 2
ATTACHMENT A
ORDINANCE NO. 2102
Item 1K - Page 3
55575.18160\42345536.1
ORDINANCE NO. 2102
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS CALIFORNIA, AMENDING PALM SPRINGS
MUNICIPAL CODE SECTION 6.10.082 REGARDING
SMOKING PROHIBITIONS AT THE PALM SPRINGS
INTERNATIONAL AIRPORT
City Attorney Summary
This Ordinance amends Section 6.10.082 of the Palm Springs Municipal Code (“PSMC”) to limit smoking at the Palm Springs International Airport to designated outdoor smoking areas.
WHEREAS, the City of Palm Springs (the “City”) is a charter city organized pursuant to Article XI, Section 5 of the California Constitution and pursuant to the authority so granted, the City has the power to make and enforce within its limits all ordinances and regulations with respect to municipal affairs not in conflict with its own charter; and such police powers include without limitation the ability to adopt regulations pertaining generally to the protection and promotion of the public health, safety, and welfare; and
WHEREAS, tobacco use causes death and disease and continues to be an urgent public health challenge; and
WHEREAS, exposure to secondhand smoke has been identified as a health hazard, has negative health impacts, and exposure to secondhand smoke occurs at significant levels outdoors; and
WHEREAS, exposure to secondhand smoke causes death and disease; and WHEREAS, tobacco use and exposure to secondhan d smoke impose great social and economic costs; and
WHEREAS, laws restricting the use of tobacco products have recognizable benefits to public health and medical costs with based on review of over 80 peer-reviewed research studies showing that smoke-free policies reduce tobacco use, reduce exposure to secondhand smoke, increase the number of tobacco users who quit, reduce initiation of tobacco use amon g young people, and reduce tobacco -related illnesses and death; and
WHEREAS, pursuant to Chapter 6.10 of the PSMC, the City has prohibited smoking in certain public areas throughout the City; and
WHEREAS, the City desires to limit smoking at the Palm Spr ings International Airport to designated outdoor smoking areas; and
WHEREAS, the City Council finds that the adoption and implementation of the Ordinance set forth below is within the power and authority of the City to protect the public health, safety, and welfare of the City’s citizens; and
Item 1K - Page 4
55575.18160\42345536.1
Ordinance No. 2102