City of Palm Springs, CA SPECIAL PROGRAMS

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.

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.

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.

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:

Supplies or Services provided under a cooperative purchasing agreement.

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.

Purchases made or Contracts let under emergency or noncompetitive situations.

Purchases with an estimated cost of $10,000 or less.

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.

The information furnished by each Bidder requesting a Local Business Preference shall be under penalty of perjury.

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.

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.

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:

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;

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

Be subject to debarment from future award of Contracts from the City.

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)

§ 7.09.040 Non-discrimination in contracting.

(1)

Statement of Policy.

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.

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.

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:

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;

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

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.

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:

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.

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.

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.

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.

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.

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:

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;

Assess liquidated damages in the amounts specified in the Contract where it is found the Contractor willfully violated the requirements of this Section; and

Seek recovery of reasonable attorneys' fees and costs incurred for enforcement of this Section.

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.

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.

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.

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.

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.

The City Manager, with the consent of the City Council, may waive the requirements of this Subsection under the following circumstances:

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;

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;

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.

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.

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.

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:

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

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

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.

The waiver authority granted to City Manager in this Subsection shall be subject to the requirements that:

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