The City Council may authorize the acquisition of Supplies or
Services through a joint powers or other cooperative purchasing program
with a Public Entity or association of public agencies or officials,
provided that the Bidder selected has been selected through a competitive
process and the Director finds: (a) that the competitive process is
similar to that contained in this Title or adequate to protect the
public interest; and (b) that due to economies of scale, the nature
of the product, or market conditions, the price of the Supplies or
Services is likely to be less through the cooperative purchase than
through the City's independent purchasing pursuant to this Title.
(Ord. 1605 § 1, 2002; Ord. 2049 § 1, 2021)
(1) Source
Lists.
The Director shall compile and maintain source lists of disadvantaged
business enterprises for the purpose of encouraging Procurement from
disadvantaged business enterprises when a Procurement involves the
expenditure of federal funds in compliance with federal law. Such
source lists are subject to the certification requirements mandated
by state or federal laws.
(2) Solicitation
Mailing Lists.
To the extent deemed acceptable by the Director or as may be
required by state or federal law or regulation, the Director shall
include disadvantaged business enterprises on solicitation lists.
(3) Solicitation
of Disadvantaged Business Enterprises.
The Director shall assure that disadvantaged business enterprises
are solicited for Procurements for which such businesses may be suited.
(4) Training
Programs.
The Director shall develop special training programs to be conducted
by the City to assist disadvantaged business enterprises in learning
how to do business with the City.
(Ord. 1605 § 1, 2002; Ord. 2049 § 1, 2021)
(1) Findings.
(a) The City annually spends significant amounts on purchasing Supplies
and Services. The dollars used in making these purchases are derived
in large measure from taxes and fees derived from Local Businesses
and the City Council has determined that funds generated in the community
should, to the extent possible, be placed back in the local economy.
Therefore, the City Council has determined that it is in the best
interest of the City to give a preference to Local Businesses in making
such purchases whenever the application of such a preference is reasonable
in light of the dollar-value received in relation to such expenditure.
(b) The City Council further finds that the Coachella Valley is in a
state of economic depression and many Local Businesses have been forced
to close their doors due to severe financial losses. Many of these
Local Businesses have been doing business in the Coachella Valley
for many years. The City Council finds that the City should promote
and stimulate Local Businesses by requiring that purchases of Supplies
and Services be acquired from Local Businesses.
(c) The City Council further finds that this action is necessary to grow
the local economy and preserve the Local Businesses that have diligently
served the Coachella Valley for many years.
(d) Strategies that encourage people to buy locally are an important
component of economic sustainability. Retaining local dollars within
a community reduces economic export and increases the financial productivity
of taxpayer dollars and increases the consumption of Supplies and
Services while fostering a sustainable community. In working towards
a sustainable economy, the City Council recognizes that sustainable
procurement policies are an important early step on the Palm Springs
Path to a Sustainable Community. By leveraging the purchasing power
of the City to buy local Supplies and Services, instead of Supplies
and Services from outside the Coachella Valley, it strengthens the
local economic activity and employment as well as sets an example
that helps foster and maintain a vital economic community for future
generations.
(2) Statement
of Policy.
It is the policy of the City to promote employment and business
opportunities for local residents and Local Businesses on all Contracts
and give preference to local residents, workers, Businesses, Contractors,
and consultants to the extent consistent with the law and interests
of the public.
(3) Local
Preference in Purchasing.
In the Procurement of Supplies, as provided in this Title, the
City Council or the Director may give a preference to Local Businesses
in making such purchase or awarding such Contract in an amount not
to exceed 5% of the Local Business' total bid price, or $15,000.00,
whichever amount is lower. Total bid price shall include only the
base bid price but also adjustments to that base bid price resulting
from alternates requested in the Solicitation. In order for a Local
Business to be eligible to claim the preference, the person or Business
must request the preference in the Solicitation response and provide
a copy of its current business license from a jurisdiction in the
Coachella Valley.
(4) Local
Preference in Services.
In awarding Contracts for Services, including Professional Services, preference to Local Business shall be given whenever practicable pursuant to this Title consistent with the Statement of Policy in subsection
(2) above. The person or Business will also, to the extent legally possible, solicit applications for employment and proposals from subcontractors for Services associated with the proposed Contract from local residents and Local Businesses as opportunities occur and hire qualified local residents and Local Businesses whenever feasible. In order for a Local Business to be eligible to claim the preference, the person or Business must request the preference in the Solicitation response and provide a copy of its current business license from a jurisdiction in the Coachella Valley.
(5) Local
Preference in Public Works Contracts (Sub-Contracting).
The Contractor shall use good faith efforts to sub-contract
Supplies to Local Businesses and to sub-contract Services to Local
Businesses whose work force resides within the Coachella Valley. The
Contractor shall submit evidence of such good faith efforts at the
time of submission of Bids. Good faith efforts may be evaluated by
placing advertisements inviting proposals in local newspapers, sending
request for proposals to local sub-contractors, or by demonstrating
that no local sub-contractors are qualified to perform the Services
or provide the Supplies. Any notice inviting bids which may require
the use of sub-contractors shall include notification of this subsection.
The City Council or Director may reject as non-responsive the Bid
of any Contractor proposing to use sub-contractors that fail to comply
with the requirements of this subsection.
(6) Exceptions
to Local Business Preference Policy. The preference set forth in this
Section shall not apply to the following purchases or contracts:
(a) Supplies or Services provided under a cooperative purchasing agreement.
(b) Purchases or Contracts which are funded in whole or in part by a
governmental entity and the laws, regulations, or policies governing
such funding prohibit application of a local preference.
(c) Purchases made or Contracts let under emergency or noncompetitive
situations.
(d) Purchases with an estimated cost of $10,000 or less.
(e) Application of the local business preference to a particular purchase,
Contract, or category of Contracts for which the City Council is the
awarding authority may be waived at the City Council's discretion.
(7) Quality
and Fitness.
The preferences established in this Section shall in no way
be construed to inhibit, limit or restrict the right and obligation
of the City Council and the Director to compare quality and fitness
for use of supplies, materials, equipment, and services proposed for
purchase and compare the qualifications, character, responsibility,
and fitness of all persons, firms, or corporations submitting bids
or proposals. In addition, the preferences established in this Section
shall in no way be construed to prohibit the right of the City Council
or the Director from giving any other preference permitted by law
or this Title.
(8) Application.
This Section shall be implemented in a manner consistent with
otherwise applicable provisions of this Title.
(9) Verification
of Local Business Preference Eligibility.
Any person or Business claiming to be a Local Business, shall so certify in the Bid, in writing to the Director. The Director shall not be required to verify the accuracy or any such certifications, and shall have sole discretion to determine if a person or Business meets the definition of "Local Business." The decision of the Director declaring that any person or Business is not a Local Business shall be subject to appeal pursuant to the provisions of Chapter
2.50 of this Code.
(10) Enforcement.
(a) The information furnished by each Bidder requesting a Local Business
Preference shall be under penalty of perjury.
(b) No person or Business shall knowingly and with intent to defraud,
fraudulently obtain, retain, attempt to obtain or retain, or aid another
in fraudulently obtaining or retaining or attempting to obtain or
retain certification as a Local Business for the purpose of this Section.
(c) No person or Business shall willfully and knowingly make a false
statement with the intent to defraud, whether by affidavit, report,
or other representation, to a City official or employee for the purpose
of influencing the certification or denial of certification of any
entity as a Local Business.
(d) A Business which has obtained City certification as a Local Business
by reason of having furnished incorrect supporting information or
by reason of having withheld information, and which knew or should
have known, the information furnished was incorrect or the information
withheld was relevant to its request for certification, and which
by reason of such certification has been awarded a Contract to which
it would not otherwise have been entitled, shall:
(i) Pay to the City any difference between the Contract amount and what
the City's costs would have been if the Contract had been properly
awarded;
(ii)
In addition to the amount described in subsection (i) above,
be assessed a penalty in an amount of not more than 10% of the amount
of the Contract involved; and
(iii)
Be subject to debarment from future award of Contracts from
the City.
(e) The penalties identified in subsection (d) above shall also apply
to any Business that has previously obtained proper certification
and, as a result of a change in its status would no longer be eligible
for certification, fails to notify the Director of this information
prior to responding to a Solicitation or accepting a Contract award.
(11) Promulgation of Administrative Rules.
The Director is authorized to adopt administrative rules supplemental
to the provisions of this Title as necessary or appropriate to implement
the provisions of this Section. The provisions of this Section and
the rules adopted by the Director shall be provided to potential Bidders
to the widest extent practicable.
(Ord. 1605 § 1, 2002; Ord. 1576 § 3, 2009; Ord. 2049 § 1, 2021)
(1) Statement
of Policy.
(a) It is the policy of the City to promote the principles of equal opportunity
in its contracting activities by assuring that those seeking to do
business with the city will treat contractors, subcontractors, and
employees equally and will not engage in discrimination against their
contractors, subcontractors, or employees because of their actual
or perceived race, color, religion, ancestry, national origin, disability,
medical condition, marital status, domestic partner status, sex, gender,
gender identity, gender expression, or sexual orientation or as a
member of any other protected class.
(b) It is also the policy of the City to ensure that work performed on
behalf of the City is done in a cost effective and high level manner.
Employees who are treated fairly are more productive in their jobs
and less likely to change jobs, thus helping to ensure that government
contracts are both cost effective and completed in a professional
manner.
(2) Basic
Contract Requirement Prohibiting Non-Discrimination. The City shall
not enter into any contract with any Contractor, unless such Contractor
agrees to be bound by contract to provisions prohibiting discrimination
on the basis of actual or perceived race, color, religion, ancestry,
national origin, disability, medical condition, marital status, domestic
partner status, sex, gender, gender identity, gender expression, or
sexual orientation as these terms are defined by California Law, or
association with members of classes protected under this Section or
in retaliation for opposition to any practices forbidden under this
Section, against any person seeking accommodations, advantages, facilities,
privileges, services, or membership in all business, social, or other
establishments or organizations, operated by that contractor, and
shall require such contractor to include a similar provision in all
subcontracts.
(3) Requirement
Prohibiting Discrimination in the Provision of Benefits.
(a) No Contractor of the City with a Contract in the amount of $10,000
or more shall discriminate in the provision of health benefits, bereavement
leave, family medical leave, moving expenses, pensions or retirement
benefits, travel benefits, or membership or membership discounts between:
(i) Employees on the basis of an employee's, employee's spouse's,
employee's domestic partner's, or dependent's actual
or perceived race, color, religion, ancestry, national origin, disability,
medical condition, marital status, domestic partner status, sex, gender,
gender identity, gender expression, or sexual orientation as these
terms are defined by California Law;
(ii)
Employees on the basis of an employee's or dependent's
actual or perceived gender identity, including, but not limited to,
the employee's or dependent's identification as transgender;
or
(iii)
Employees with spouses and employees with domestic partners,
or discrimination between employees with spouses or domestic partners
of a different sex and employees with spouses or domestic partners
of the same sex, or discrimination between same-sex and different-sex
domestic partners of employees or between same-sex and different-sex
spouses of employees.
(b) For purposes of this Section, an employee health plan is discriminatory
if the plan is not consistent with California Law including, but not
limited to, Section 1365.5 of the Health and Safety Code and Section
10140 of the Insurance Code.
(4) Certification.
Every Contractor shall submit a nondiscrimination certificate in a
form acceptable to the City Manager. No Contract shall be awarded
until the Contractor has submitted to the City such certificate. The
certificate shall contain the following:
(a) Contractor certifies and represents that, during the performance
of the Contract, the Contractor and any other parties with whom it
may subcontract shall adhere to the City's non-discrimination
and equal benefits as provided in the Section to assure that applicants
and employees are treated equally and are not discriminated against
because of their actual or perceived race, color, religion, ancestry,
national origin, disability, medical condition, marital status, domestic
partner status, sex, gender, gender identity, gender expression, national
origin, ancestry, or sexual orientation. Contractor further certifies
that it will not maintain any segregated facilities.
(b) Contractor shall, in all solicitations or advertisements for applicants
for employment placed by or on behalf of this Contract, state that
it is an "equal opportunity employer" or that all qualified
applicants will receive consideration for employment without regard
to their actual or perceived race, color, religion, ancestry, national
origin, disability, medical condition, marital status, domestic partner
status, sex, gender, gender identity, gender expression, or sexual
orientation.
(c) Contractor shall, if requested to so do by the Contract Administrator,
certify that it has not, in the performance of this contract, discriminated
against applicants or employees because of their actual or perceived
race, color, religion, ancestry, national origin, disability, medical
condition, marital status, domestic partner status, sex, gender, gender
identity, gender expression, or sexual orientation.
(d) If requested to do so by the Contract Administrator, Contractor shall
provide the City with access to copies of all of its records pertaining
or relating to its employment practices, except to the extent such
records or portions of such records are confidential or privileged
under state or federal law.
(e) Contractor agrees to recruit Coachella Valley residents initially
and to give them preference, if all other factors are equal, for any
new positions which result from the performance of this Contract and
which are performed within the City. The Contract Administrator may
agree to modify requirement where it is in conflict with federal or
state laws or regulations.
(f) Nothing contained in this Contract shall be construed in any manner
so as to require or permit any act which is prohibited by law.
(g) The Contractor shall include the provisions set forth in paragraphs
(a)—(f) of this Subsection (4) of this Section, inclusive, in
each of its subcontracts.
(5) Investigation
and Monitoring. All Contracts shall include appropriate provisions
that will allow the Contract Administrator to review, monitor, and
investigate compliance with this Section and to require each Contractor
to allow and provide full access to all applicable records, rules,
regulations, documents, and other pertinent data necessary for the
qualitative and quantitative evaluation of each Contractor's
compliance with the provisions of this Section.
(6) Enforcement
and Appeals.
(a) In the event the Contract Administrator determines the Contractor
is not in substantial compliance with the provisions of this Section,
the Contract Administrator may recommend to the City Manager, the
initiation of one or more of the following rights and remedies described
in this subsection, in addition to any rights and remedies otherwise
provided in the applicable Contract or by law or equity:
(i) Termination of the Contract and bar the Contractor from bidding on
future contracts with the City for two years from the effective date
of the Contract termination;
(ii)
Assess liquidated damages in the amounts specified in the Contract
where it is found the Contractor willfully violated the requirements
of this Section; and
(iii)
Seek recovery of reasonable attorneys' fees and costs
incurred for enforcement of this Section.
(b) The Contract Administrator shall issue written findings and mail
a copy of the findings to the Contractor by first class mail and by
any other means provided in the Contract.
(7) Appeals.
(a) Within five business days of the notice of the Contract Administrator's
findings, the Contractor may file a written appeal of the Contract
Administrator's determinations to the City Manager.
(b) The City Manager shall set the matter for hearing and shall cause
a Notice of Hearing to be given to the Contractor and to such other
persons as may have identified themselves as interested in the decision
and as otherwise required by the California Ralph M. Brown Act.
(c) The hearing shall be conducted as an independent reexamination of
the matter. The Contractor shall have the burden of proof in all cases,
and if the Contractor fails to appear either in person or by counsel,
or fails to present or offer any evidence, the City Manager may adopt
the decision of the Contractor Administrator or may decide the matter
upon the record with or without taking any additional evidence. Any
oral or documentary evidence may be received, but the City Manager
shall exclude irrelevant, immaterial or unduly repetitious evidence.
The City Manager's decision shall be made upon substantial evidence.
In other words, if an essential finding is based upon hearsay or secondary
evidence, such evidence must be of the type which would be admissible
in a court of law as proof of such finding.
(d) Upon the hearing of the appeal the City Manager may refer the matter back to the Contract Administrator with directions for further consideration, or the City Manager may reverse, affirm, or modify the decision as may appear just and reasonable in light of the evidence presented. The decision of the City Manager shall be supported by written findings and shall include the reasons for the ruling. Notice of the City Manager's decision shall be served on the Contractor, the Contract Administrator, and the City Clerk. The decision shall be final unless City Council agrees to review the matter pursuant to Section
2.06.030 of this Code.
(8) Exceptions
and Waivers.
(a) The City Manager, with the consent of the City Council, may waive
the requirements of this Subsection under the following circumstances:
(i) Whenever the City Manager finds that there is only one prospective
contractor willing to enter into a Real Property Agreement with the
City for use of City property on the terms and conditions established
by the City, or that the needed goods, services, construction services
for a public work or improvement, or interest in or right to use real
property are available only from a sole source, and the prospective
contractor is not currently disqualified from doing business with
the City, or from doing business with any governmental agency based
on any contract compliance requirements;
(ii)
Where the City Manager certifies in writing to the City Council
that the Contract or Real Property Agreement is necessary to respond
to an emergency which endangers the public health or safety and no
entity which complies with the requirements of this Section capable
of responding to the emergency is immediately available; provided
that such certification must be made prior to or within 24 hours of
execution of the Contract or Real Property Agreement on behalf of
the City;
(iii)
Where the City Attorney certifies in writing to the City Council
that the Contract involves specialized litigation requirements such
that it would be in the best interests of the City to waive the requirements
of this Section; provided such certification is made prior to execution
of the Contract on behalf of the City.
(b) This Section shall not apply where the prospective Contractor is
a public entity and the City Manager finds that Supplies, services,
construction for a Public Project or improvement or interest in or
right to use real property of comparable quality or accessibility
as are available under the proposed contract or property contract
are not available from another source, or that the proposed contract
or property contract is necessary to serve a substantial public interest.
(c) This Section shall not apply where the City Manager finds that the
requirements of this Section will violate or are inconsistent with
the terms or conditions of a grant, subvention or agreement with a
public agency or the instructions of an authorized representative
of any such agency with respect to any such grant, subvention or agreement,
provided that the contracting officer has made a good faith attempt
to change the terms or conditions of any such grant, subvention or
agreement to authorize application of this Section.
(d) Upon the request of a potential contractor or upon the contracting
officer's own initiative, after taking all reasonable measures
to find an entity that complies with the law, the City Manager may
waive any or all of the requirements of this Section for any Contract,
Real Property Agreement, or bid package advertised and made available
to the public, or any competitive or sealed bids received by the City
under the following circumstances:
(i) Where the City Manager determines that there are no qualified responsive
bidders or prospective contractors who could be certified as being
in compliance with the requirements of this Section and that the Contract
or Real Property Agreement is for Supplies, a service, or a Public
Project that is essential to the City or City residents; or
(ii)
Where the City Manager determines that transactions entered
into pursuant to bulk purchasing arrangements through federal, State,
or regional entities which actually reduce the City's purchasing
costs would be in the best interests of the City; or
(iii)
Where the City Manager determines that the requirements of this
Section would result in the City's entering into a Contract
with an entity that was set up, or is being used, for the purpose
of evading the intent of this Section, which is to prohibit the City
from entering into contracts with entities that discriminate based
on the criteria set forth in this Section.
(e) The waiver authority granted to City Manager in this Subsection shall
be subject to the requirements that:
(i) All proposed waivers must set forth the reasons the City Manager
is requesting the waiver, what steps were taken to find an entity
that complies with this Subsection and why the waiver does not defeat
the intent of this Section, which is to prohibit the City from entering
into contracts with entities that discriminate based on the criteria
set forth in this Chapter. Such waivers shall be filed in the Office
of the City Clerk and a notice of such waiver shall be presented to
the City Council on the next available City Council agenda; and
(ii)
For any Contract or Real Property Agreement subject to approval
by the City Council, the City Manager shall include a statement in
the approving resolution and related staff report whether any waiver
under this Section is proposed for that Contract.
(9) Annual Reports. The City Manager shall conduct an annual comprehensive review of the administrative implementation of the provisions of this Section, including without limitation, the use of the waiver authority under Subsection
(8) and the disposition of complaints of contractor non-compliance with any provision of this Section, and shall submit a report to the City Council.
(Ord. 1896 § 2, 2016; Ord. 2049 § 1, 2021)