HomeMy WebLinkAbout5/16/2001 - STAFF REPORTS (2) DATE: May 16, 2001
TO: Community Redevelopment Agency
FROM: City Engineer
ELECTRICAL DISTRIBUTION SYSTEM FOR DECORATIVE LIGHT FIXTURES ON
TAHQUITZ CANYON WAY
RECOMMENDATION:
That the Community Redevelopment Agency cancel Agreement No. 416C with
MRC Associates,in the amount of$7,500.00, and award a design services contract
to Dahl, Taylor and Associates, Inc., in the amount of$15,800,00, for the electrical
engineering design of the decorative light fixtures on Tahquitz Canyon Way,
between Indian Canyon Drive and Avenida Caballeros, City Project No. 00-36.
SUMMARY:
The Agency approved Resolution No. 1119 awarding a design contract to MRC
Associates on March 21, 2001, however, after review by the City Attorney it was
determined thattheAgency's award of that contract represents, arguably, a conflict
of interest, a violation of Government Code Section 1090. This item provides for
cancellation of the Agency's previous contract and award to an alternate
consultant.
BACKGROUND:
The fiscalyear2000/01 Community RedevelopmentAgency budget includes funds
to design and construct approximately 62 decorative light fixtures on Tahquitz
Canyon Way between Indian Canyon Drive and Avenida Caballeros. The City
Council and Tribal Council have expressed conceptual support for this project, and
on March 14, 2001, the Planning Commission approved adoption of the standard
plans for the decorative lighting.
On December 21, 2000, staff issued a request for proposals for electrical
engineering services for the design of the backbone electrical system for the
proposed decorative lights. Included in the design will be the footings for the light
poles. Five proposals were received from the following firms:
1. Turpin & Rattan Engineering, La Mesa
2. Bechard Long & Associates, Inc., San Diego
3. MRC Associates, Palm Springs
4. Dahl, Taylor &Associates, Inc., Santa Ana
5. Dream Engineering, Inc., Palm Desert
A staff evaluation panel had reviewed the proposals with respect to the proposed
approach to the project, firm and personnel qualifications, project schedule and
project costs, and initially recommended award to MRC Associates. On March 21,
2001, the Agency concurred with staff's recommendation, and awarded contract
to MRC Associates in the amount of $7,500.00, Agreement No. 416C.
c oh -
City Project No. 00-36, Tahquitz Canyon Decorative Lighting
May 16, 2001
Page 2
Following the Agency's action, the City Attorney became aware that MRC
Associates was owned and operated by Ralph Raya, a member of the Planning
Commission, and could violate Government Code Section 1090. Government
Code Section 1090 prohibits public officers and employees from having financial
interests in contracts made by them, or by any Board or body of which they are
members. Unlike conflict issues under the Political Reform Act, conflict issues
under Section 1090 cannot be cured by abstaining-which Commissioner Raya did
in this instance. The critical issue was the level of involvement of the Planning
Commission in the Tahquitz Lighting program, and the City Attorney found that this
situation was similar to other situations where courts have concluded that 1090
conflicts existed. The City Attorney's analysis is attached.
In light of this opinion, staff recommends award of the contract to Dahl, Taylor &
Associates, Inc. The firm is a corporation from Santa Ana, California, and its sole
officer is Quang Vu. Sufficient funds are available in Community Redevelopment
Agency account no. 812-8192-65130 (East Tahquitz Light Fixtures).
VPRV�
DAVID J. BARAKIAN JOHN S. RAYMOND
City Engineer Director,
`77 — — C munity Redevelopment Agency
APPROVED:-
Executive Director
ATTACHMENTS:
1. Resolution
2. Agreement
3. Conflict Letter
CITY OF PALM SPRINGS
Engineering Department
CONTRACT SERVICES AGREEMENT FOR DESIGN SERVICES
OF THE DECORATIVE LIGHT FIXTURES ON TAHQUITZ CANYON WAY
CITY PROJECT NO. 00-36
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement") is made and entered
into this_ day of , 2001, by and between the Community Redevelopment
Agency of the City of Palm Springs, California, a public body, corporate and politic, (herein"City")
and Dahl, Taylor and Associates, Inc., (herein "Contractor"). (The term Contractor includes
professionals performing in a consulting capacity).
NOW, THEREFORE, the parties hereto agree as follows:
1.0 SERVICES OF CONTRACTOR
1.1 Scope of Services. In compliance with all of the terms and conditions of this
Agreement, the Contractor shall perform the work or services set forth in the "Scope of Services"
attached hereto as Exhibit"A"and incorporated herein by reference. Contractor warrants that all
work and services set forth in the Scope of Services will be performed in a competent,
professional and satisfactory manner.
1.2 Compliance With Law. All work and services rendered hereunder shall be
provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City
and any Federal, State or local governmental agency of competent jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. 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.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement,
Contractor shall be compensated in accordance with the "Schedule of Compensation" attached
hereto as Exhibit"B" and incorporated herein by this reference, but not exceeding the maximum
contract amount of Fifteen Thousand Eight Hundred Dollars ($15.800.00) ("Contract Sum").
2.2 Method of Payment. Provided that Contractor is not in default under the
terms of this Agreement, Contractor shall be paid as outlined in Exhibit "B", Schedule of
Compensation.
3.0 COORDINATION OF WORK
3.1 Representative of Contractor. Thomas L. Doyle is hereby designated as
being the principal and representative of Contractor authorized to act in its behalf with respect to
the work and services specified herein and make all decisions in connection therewith.
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3.2 Contract Officer. City Engineer is hereby designated as being the
representative the City authorized to act in its behalf with respect to the work and services
specified herein and make all decisions in connection therewith ("Contract Officer"). The City
Manager of City shall have the right to designate another Contract Officer by providing written
notice to Contractor.
3.3 Prohibition Against Subcontracting or Assignment. Contractor shall not
contract with any entity to perform in whole or in part the work or services required hereunder
without the express written approval of the City. Neither this Agreement nor any interest herein
may be assigned or transferred, voluntarily or by operation of law, without the prior written
approval of City. Any such prohibited assignment or transfer shall be void.
3.4 Independent Contractor. Neither the 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 herein, except as otherwise set forth. Contractor shall perform all
services required herein as an independent contractor of City and shall remain under only such
obligations as are consistent with that role. 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.
4.0 INSURANCE AND INDEMNIFICATION
4.1 Insurance. The Contractor shall procure and maintain, at its sole cost
and expense, in a form and content satisfactory to City, during the entire term of this Agreement
including any extension thereof, the following policies of insurance:
(a) Comprehensive General Liability Insurance. A policy of
comprehensive general liability insurance written on a per occurrence basis in an amount
not less than either(i) a combined single limit of$1,000,000.00 or(ii) bodily injury limits of
$500,000.00 per person, $1,000,000.00 per occurrence and $1,000,000.00 products and
completed operations and property damage limits of$500,000.00 per occurrence. If the
Contract Sum is greater than $500,000.00, the policy of insurance shall be in an amount
not less than $5,000,000.00 combined single limit.
(b) Worker's Compensation Insurance. A policy of worker's
compensation insurance in such amount as will fully comply with the laws of the State of
California and which shall indemnify, insure and provide legal defense for both the
Contractor and the City against any loss, claim or damage arising from any injuries or
occupational diseases occurring to any worker employed by or any persons retained by
the Contractor in the course of carrying out the work or services contemplated in this
Agreement.
(c) Automotive Insurance. A policyof comprehensive automobile liability
insurance written on a per occurrence basis in an amount not less than either (i) bodily
injury liability limits of $500,000.00 per person and $1,000,000.00 per occurrence and
property damage liability limits of $250,000.00 per occurrence and $500,000.00 in the
aggregate or (ii) combined single limit liability of$1.000.000.00. Said policy shall include
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coverage for owned, non-owned, leased and hired cars.
(d) Additional Insurance: Policies of such other insurance, including
Professional Liability Insurance, as may be required in the Scope of Services,
Exhibit"A".
All of the above policies of insurance shall be primary insurance and shall name the City,
its officers, employees and agents as additional insureds, except that the City shall not be named
as an additional insured for the Worker's Compenstation Insurance nor the Professional Liability
Insurance. The insurer shall waive all rights of subrogation and contribution it may have against
the City, its officers, employees and agents and their respective insurers. All of said policies of
insurance shall provide that said insurance may not be amended or canceled without providing
thirty (30) days prior written notice by registered mail to the City. In the event any of said policies
of insurance are canceled, the Contractor shall, prior to the cancellation date, submit new
evidence of insurance in conformance with this Section 4.1 to the Contract Officer. No work or
services under this Agreement shall commence until the Contractor has provided the City with
Certificates of Insurance or appropriate insurance binders evidencing the above insurance
coverages and said Certificates of Insurance or binders are approved by the City.
The Contractor agrees that the provisions of this Section 4.1 shall not be construed as
limiting in any way the extent to which the Contractor may be held responsible for the payment of
damages to any persons or property resulting from the Contractor's activities or the activities of
any person or persons for which the Contractor is otherwise responsible.
The insurance required by this Agreement shall be satisfactory only if issued by companies
qualified to do business in California, rated "A"or better in the most recent edition of Best Rating
Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial
category Class VII or better, unless such requirements are waived by the City Manager or
designee of the City due to unique circumstances.
4.2 Indemnification. Contractor agrees to indemnifythe City, its officers, agents
and employees against, and will hold and save them and each of them harmless from, any and
all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations,
errors, omissions or liabilities, including paying any legal costs, attorneys fees, or paying any
judgment (herein "claims or liabilities") that may be asserted or claimed by any person, firm or
entity arising out of or in connection with the negligent performance of the work or services of
Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising from
the negligent acts or omissions of Contractor hereunder, or arising from Contractor's negligent
performance of or failure to perform any term, provision covenant or condition of this Agreement,
but excluding such claims or liabilities to the extent caused by the negligence orwillful misconduct
of the City.
5.0 TERM
5.1 Term. Unless earlier terminated in accordance with Section 5.2 below, this
Agreement shall continue in full force until June 30, 2002.
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5.2 Termination Prior to Expiration of Term. Either party may terminate this
Agreement at any time, with or without cause, upon thirty (30) days' written notice to the other
party. Upon receipt of the notice of termination, the Contractor shall immediately cease all work
or services hereunder except as may be specifically approved by the Contract Officer. In the
event of termination by the City, Contractor shall be entitled to compensation for all services
rendered prior to the effectiveness of the notice of termination and for such additional services
specifically authorized by the Contract Officer and City shall be entitled to reimbursement for any
compensation paid in excess of the services rendered.
6.0 MISCELLANEOUS
6.1 Covenant Against Discrimination. Contractor covenants that, by and for
itself, its heirs, executors, assigns and all persons claiming under or through them,that there shall
be no discrimination against or segregation of, any person or group of persons on account of race,
color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this
Agreement. Contractor shall take affirmative action to ensure that applicants are employed and
that employees are treated during employment without regard to their race, color, creed, religion,
sex, marital status, national origin or ancestry.
6.2 Non-liability of City Officers and Employees. No officer or employee of the
City shall be personally liable to the Contractor, 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 Contractor or to its
successor, or for breach of any obligation of the terms of this Agreement.
6.3 Conflict of Interest. No officer or employee of the City shall have any
financial interest, direct or indirect, in this Agreement nor shall any such officer or employee
participate in any decision relating to the Agreement which effects his financial interest or the
financial interest of any corporation, partnership or association in which he is, directly or indirectly,
interested, in violation of any State statute or regulation. The Contractor warrants that it has not
paid or given and will not pay or give any third party any money or other consideration for
obtaining this Agreement.
6.4 Notice. Any notice, demand, request, document, consent, approval, or
communication 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 prepaid, first-class mail, in the case of
the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM
SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the case of the Contractor, to
the person at the address designated on the execution page of this Agreement.
6.5 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or against
either party by reason of the authorship of this Agreement or any other rule of construction which
might otherwise apply.
6.6 Integration;Amendment. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and cancels
any and all previous negotiations,arrangements,agreements and understandings, if any, between
the parties, and none shall be used to interpret this Agreement. This Agreement may be amended
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at any time by the mutual consent of the parties by an instrument in writing.
6.7 Severability. In the event that part of this Agreement shall be declared
invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such
invalidity or unenforceability shall not affect any of the remaining portions of this Agreementwhich
are hereby declared as severable and shall be interpreted to carry out the intent of the parties
hereunder 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.
6.8 Waiver. No delay or omission in the exercise of any right or remedy by a
nondefaulting party on any default shall impair such right or remedy or be construed as a waiver.
A party's consent to or approval of any act by the other party requiring the party's consent or
approval shall not be deemed to waive or render unnecessary the other party's consent to or
approval of any subsequent act. Any waiver by either party of any default must be in writing and
shall not be a waiver of any other default concerning the same or any other provision of this
Agreement.
6.9 Attorneys' Fees. If either party to this Agreement is required to initiate or
defend or made a party to any action or proceeding in any way connected with this Agreement,
the prevailing party in such action or proceeding, in addition to any other relief which may be
granted, whether legal or equitable, shall be entitled to reasonable attorney's fees,whether or not
the matter proceeds to judgment.
6.10 Corporate Authoritv. The persons executing this Agreement on behalf of
the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this
Agreement, such party 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 said party is
bound.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as
of the date first written above.
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
of the City of Palm Springs, California, a
public body, corporate and politic
By:
Assistant Secretary Executive Director
APPROVED AS TO FORM:
City Attorney
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Check one:
_Individual _ Partnership _Corporation
CONTRACTOR:
Dahl, Taylor and Associates, Inc.
By:
(Notarized Signature)
Print Name&Title
By:
(Notarized Signature)
Print Name&Title
Mailing Address:
2960 Daimler Street
Santa Ana, CA 92705-5824
(END OF SIGNATURES)
(Corporations require two signatures: One from each
of the Following: A. Chairman of Board, President,
any Vice President. AND B Secretary, Assistant
Secretary, Treasurer, Assistant Treasurer, or Chief
Financial Officer).
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EXHIBIT "A"
SCOPE OF SERVICES
TASK 1
1. Kick Off Meeting.
2. Gather as-built drawings, inventory maps, etc., from the City of Palm Springs
(the City). Also, gather standards and previous similar documents that could
be pertinent to this new work. Gather light poles and fixtures data.
3. Gather electronic files of topography base maps, backgrounds showing the
proposed light poles and fixtures, existing utilities information from the City and
decide what other information needs to be gathered before the electrical work
can begin.
4. Coordinate with Southern California Edison (SCE) to determine circuit loading
and utility points of connection. Also, coordinate with SCE on all existing and
known future load requirements.
5. Develop existing and new single line diagrams as needed. Complete
preliminary load calculations. Complete preliminary voltage drop calculations.
Prepare preliminary site plans including photometric analysis of proposed light
pole locations.
6. Coordinate with the City on easement locations and lay out a preliminary
conduit and substructure plan.
TASK 2
1. Prepare and submit preliminary (30%) plans (consistent with the conceptual
design previously approved by the City) for review. This review includes
construction documents and a preliminary construction cost estimate. Plans
shall be on standard 24" by 36" City title block sheets.
2. Pick up comments and update backgrounds if needed.
3. Develop and prepare detailed conduit and substructure plans. Identify
appropriate SCE electrical meter information depending on the quantity, type,
etc., of meters required.
4. Develop and prepare details fortrenching,trench repair, pole light foundations,
and all other appropriate construction information.
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EXHIBIT "A"
SCOPE OF SERVICES
(Continued)
TASK 3
1. Prepare and submit preliminary (80%) plans for review. This review includes
construction documents, specifications, and a preliminary construction cost
estimate. Plans shall be on standard 24" by 36" City title block sheets.
Specifications shall be written using City "boiler plate" documents in Microsoft
Word Version 97. Specification format shall be provided by City.
2. Pick up comments.
3. Complete final coordination with SCE. Secure approval for the electrical
design.
4. Complete a final coordination with the City to ensure that all electrical
equipment complies with the City's standards.
TASK 4
1. Prepare and submit final(100%) plans for approval and bidding. This includes
all construction documents, specifications, and a final construction cost
estimate. Plans shall be on standard 24" by 36" City title block sheets. Final
plans shall also be provided in digital format (Autocad version R13), on 3Y2"
floppy disc. Specifications shall be written using City "boiler plate" documents
in Microsoft Word Version 97. Specifications shall also be provided in digital
format on 3Y2" floppy disc. Specification format shall be provided by City.
2. Provide bidding assistance during the bidding phase of the project. This
includes answering specific questions regarding the plans and specifications
and attendance at a Pre-Construction Conference.
Additional Insurance per Section 4.1d shall be required as follows:
A policy of Professional Errors and Omissions Insurance, in an amount not less
than $500,000.00 per claim and in the aggregate with respect to loss arising from
the actions of the Contractor performing professional services hereunder on behalf
of the City.
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EXHIBIT "B"
SCHEDULE OF COMPENSATION
TASK 1 Lump sum fee of $ 1,580.00
TASK 2 Lump sum fee of $ 2,370.00
TASK 3 Lump sum fee of $ 7,900.00
TASK 4 Lump sum fee of $ 3,950.00
TOTAL Lump sum fee: $ 15,800.00
Lump sum fees are payable upon completion of each task.
Task 1 shall be completed within 3 weeks of receipt of Notice To Proceed.
Task 2 shall be completed within 1 month of approval of Task 1 by City.
Task 3 shall be completed within 1 month of approval of Task 2 by City.
Task 4 shall be completed within 1 week of approval of Task 3 by City.
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April 27, 2001 I/A�0
David J. Barakian r
.-
City EngineerIti'�S
City of Pahn Springs
3200 E. Tahquitz Canyon Way
Palm Springs, California 92263
Re: Tahquitz Canyon Way Decorative Light Fixture Desien/Ralph Raya's
Conflict of Interest
Dear David:
Pursuant to your request, this letter is to advise you on whether a potential conflict-of-
interest issue arises out of MRC Associates' contract with Palm Springs Redevelopment Agency
("Agency") on the electrical engineering of the decorative light fixtures.
1. Relevant Facts
It is our understanding that around seven or eight months ago, the Agency began
discussions concerning development of decorative light fixtures on East Tahquitz Canyon Way.
On or about December 6, 2000, Mr. Jerry Ougbum, the Project Manager, presented to the City's
Planning Commission information regarding the location of the lights and the design of the
lights. It is also our understanding that prior to Mr. Oughbum's presentation of the design to the
Planning Commission, Mr. Oughburn and Mr. Raya were involved in some discussions regarding
the design of the lights.
On March 14, 2001, the Planning Commission adopted the standard for the type of light
to be used on East Tahquitz Canyon Way and the location where the lights would be placed. It is
also our understanding that Mr. Ralph Raya, a member of the Planning Commission, abstained
from both the December 6, 2000 study session and the March 14, 2001 session.
The Agency mailed out requests for proposals for the electrical engineering of the East
Tahquitz Canyon Way Decorative Light Fixture Project ("Project") on or about December 22,
2000. The deadline to respond to the request for proposals was January 19, 2001. MRC
Associates, a company wholly owned by Mr. Raya, submitted a proposal to enter into a contract
LA#66999 vl
David J. Barakian
City Engineer
April 27, 2001
Page 2
with the Agency in order to provide services for the electrical engineering of the Project. On or
about March 21, 2001, the Agency approved MRC Associates' proposal to conduct the electrical
engineering of the Project.
The issue presented is whether the agency can proceed with the contract with MRC
Associates without any violations of Government Code Section 1090, i.e., without violation of
any conflicts-of-interest rules.
II. Leaal Analysis
Government Code Section 1090 prohibits public officers and employees from having
financial interests in contracts made by them or by any Board or body of which they are
members.
Section 1090 applies in two basic situations. First, if the financially interested officer or
employee is a member of a Board or other body that actually executes the contract [i.e., City
Council Board of Directors], the potential conflict prohibits the Board from entering into the
proposed contract, regardless of whether or not the officer participates in or abstains from the
actual decision. Second, if a staff member has a financial interest in a contract with the Board,
there's a conflict only if that staff member actually participates in the making of the contract'.
It is important to note that the term "contract" is used very broadly and applies to any
agreement between the Board and another party whether written or oral and whether formal or
informal. Additionally, the prohibitions of Section 1090 apply equally to the Board members
who vote on a written contract2, a member of an Advisory Board who makes a recommendations
on a contract and to an employee who advises the council on a particular contract.4
However, when an Advisory Committee, merely advises on a contract, then the Advisory
Committee may perform its responsibilities without violating Section 1090 provided that the
interested member abstains and does not participate in the giving of advice.5 The purpose of the
' Frasier-Yamor Agency v. Count o Del Norte 1977 68 Cal.A M 201. See also, 1999 WL 604287, O . Cal. At 8 Y Y f ( ) PP� P g<
Gen.No.99-304
2 Stigal v. City ofTaft(1962)58 Cal.2d 565
3 City Council v McKinley(1978)80 CalApp.3d 204
4 Schaefer v.Berinstein(1956) 140 Cal.App 2d 278.
5 See, 1999 WL 604287, Op Cal.Atty. Gen. No.99-304.
David J. Barakian
City Engineer
April 27, 2001
Page 3
enactment of Section 1090 was "to remove or limit the possibility of any personal influence
either directly or indirectly which might bear on an official's decision as well as to avoid
contracts which are actually obtained through fraud or dishonest conduct.s6 Hence, "the critical
test for determining whether Section 1090 has been violated is whether an officer or an employee
has participated in the making [or letting] of a contract in his or her official capacity.s7
The "making" or "letting" of a contract has been defined to include the preliminary
discussions, negotiations, compromises, reasoning, planning, drawing of plans and specifications
and solicitations for bids.8 In City Council of San Diego v. McKinley, the court held that the
execution of a contract between a landscape architectural firm, whose president and stockholder
was also a member of the City's Park and Recreation Board, and the City Council for the design
of a new City park would violate Section 1090.9
In McKinley, the president of the architectural fine did not abstain from participation
when the City's Park and Recreation Board approved the design of a Japanese Garden for the
City park. Subsequently, he submitted a proposal to the City Council for architectural and
engineering of the City park. The City Manager, on advice of the City Attorney, refused to
execute the agreement between the City Council and the landscape architectural firm based on
violation of conflict-of-interest laws,per Section 1090.
The City Council sought a writ of mandamus against the City Manager and the City
Auditor Comptroller seeking to compel the execution of the agreement between the landscape
architectural firm and the City for the design of the new Japanese Garden and the City park.10
The court held that public officers are obligated to discharge their responsibilities with integrity
and fidelity. "The law of this state is that public officers shall not have a personal interest in any
contract made in their official capacity"11
6 City Council of San Diego v.McKinley(1978)80 Cal.App.3d 204,213.
7 77 Op. Cal. Atty. Gen. 112, p.3, citing to, Millbrae Assn.for residential survival v. City of Millbrae (1968) 262
Cal.App.2d 222,237(emphasis added).;See also,Mckinley,80 Cal.App.3d at 212.
8 See, 77Op. Cal.Ally. Gen.at p.4;see also,McKinley, 80 Cal.App.3d at 212-213.
9 McKinley, 80 Cal.App.3d at 213-214.
to Id.at208-210.
1 t Id.at 213.
ezi oily
David J. Barakian
City Engineer
April 27, 2001
Page 4
The court explained that "the Park and Recreation Board's conduct of extensive
investigations and preparations of detailed proposals for the design of the Japanese Garden"
within the City park was so closely related to that of the Council's operation that the Board could
be viewed as having been involved in the exercising of the Council's own authority to some
extent. The court went on to hold that "the above factors combined with the Board's advisory
relationship to the City Manager (who executes any contract after it is approved by the City
Council) compelled the conclusion that the Board was involved in `letting' of the contract.12
In another case, also, where the approval of the design services of an airport by the Art
Commission was part of the terms and conditions of a contract with the City for engineering of
the City's airport, the Attorney General found that an Art Commissioner on the Art Commission
would violate Section 1090 if he were to enter into a contract with the city to design the airport.13
The Attorney General held that "if the contract for the design were examined in isolation
up to the time of its award, we might conclude that the commissioner would not be in violation
of this statute."14
Here, the approval of the design services by the commission is part
of the original contract. The transaction may not be segmented
into two steps. Although the contract was awarded by the airport
commission is was not merely for design, but for satisfactory
design. The Art Commission will in essence determine the
ultimate terms and conditions of the contract, that is, what
constitutes satisfactory design. As such, Art Commission members
may be said to be participants in the making of the contract.15
The instant situation could be construed as distinguishable from McKinley and the Art
Commission cases discussed above. Here, it could be argued that the engineering contract of the
lights is not dependent on the approval of the design by the Planning Commission making the
Planning Commission an advisory board, and that since Mr. Raya has abstained from
participation in the sessions in which the Planning Commission discussed the design and the
location of the lights, no violation of the Section 1090 would occur if the Agency proceeds with
its contract with MRC Associates. It could be argued that unlike the Art Commission case, here
12 Id. at 212-213.
13 77 Op. Cal. Atty. Gen. 112,p.5.
14 Id.
15 Id.
CkA .4 /s
David J. Barakian
City Engineer
April 27, 2001
Page 5
the terms of the electrical engineering contract between MRC Associates and the Agency are not
dependent on the approval of the design or location of the lights by the Planning Commission.
However, it should be kept in mind that in McKinley, similar to this situation, the
approval of the proposal for the City park was not dependant on the approval of the design of the
Japanese Garden by the Park and Recreation Board either.
In the present case, it is also important to keep in mind the proximity in time between the
approval of the design and location of the lights by the Planning Commission on March 14, 2001
and the Agency's approval of MRC Associate's proposal on March 21, 2001, which means that
MRC Associates actually submitted its proposal to the Agency during the same period of time
that the Planning Commission was approving the design and location of the lights.
Furthermore, here, although the Planning Commission has not participated in any
preliminary discussions, negotiations, compromises, reasonings, and/or solicitation for bids of
the electrical engineering contract at issue, like the McKinely case, it could be construed that they
have in essence been involved in the "planning" and "draw of plans" for the contract, i.e.,
discussions of the design and location of the lights.
More importantly, in the Contract at issue, the identification of the proposed design and
location are listed as tasks under the scope of services. Hence, a court could conclude that,
similar to McKinley, here, also, the Planning Commission's detailed discussions and "drawing of
plans" regarding the design and location of the lights, which are part of the contract, may render
the Planning Commission more than just an "advisory board" but may invlove in the "making"
or "letting" of the contract, in which case, even though Mr. Raya has abstained from
participation, the Agency is not able to proceed with the contract without violation of Section
1090.
III. Conclusion
Unfortunately, the case law in this area has taken the law beyond what might appear from
a simple reading of the statute. We included discussion of some of the leading cases in this
memo to demonstrate the complexity of the issue. The distinctions made by the cases are not
necessarily clear, and any advice we give must be a matter of degree.
The issue of conflict of interest is one of perception. Under the conflict of interest rules,
the intentions and motivations behind your actions are not what is analyzed. What is assessed is
the public perception of the potential for you to act either in your economic or personal interest
to the detriment of your office. Although, as discussed above, the situation presented in this
matter could be distinguished from the cases discussed in this memo, we can easily see how an
etw 04A
David J. Barakian
City Engineer
April 27, 2001
Page 6
argument could be made for a 1090 conflict. In the end, we cannot reach a conclusion with a
high degree of confidence. In essence, the question comes down to how significant the Planning
Commission's involvement was in the decision to proceed with the project. At this point, we can
see that the issue is open to different interpretations. Therefore, perhaps the safer course of
action is to not participate unless there are additional facts which bear on the issue.
I am sorry that we could not be more definitive at this time. We would be happy to discuss the
matter further at your convenience.
Very truly yours,
DAVID J. AtEgHIRE, City Attoney
City of Palm Springs
DJA/SKS:da
cc: Mr. David Ready, City Manager
Mr. Ralph Raya
IM4 4 ,
RESOLUTION NO. 1125
OF THE COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF PALM SPRINGS, CALIFORNIA,
CANCELLING AGREEMENT NO. 416C WITH MRC
ASSOCIATES, IN THE AMOUNT OF $7,500.00, AND
APPROVING A CONTRACT WITH DAHL, TAYLOR AND
ASSOCIATES, INC., IN THEAMOUNT OF$15,800.00, FOR
THE ELECTRICAL ENGINEERING DESIGN OF THE
DECORATIVE LIGHT FIXTURES ON TAHQUITZ CANYON
WAY, BETWEEN INDIAN CANYON DRIVE AND AVENIDA
CABALLEROS, CITY PROJECT NO. 00-36
WHEREAS, the Community Redevelopment Agency awarded a design contract to MRC
Associates, in the amount of$7,500.00 on March 21, 2001, as Agreement No. 416C; and
WHEREAS, the City Attorney of the City of Palm Springs has reviewed the relevant facts
regarding Agreement No. 416C; and
WHEREAS, the City Attorney has rendered an opinion that argument can be made that
MRC Associates' contract with the Community Redevelopment Agency represents a
conflict of interest and a violation of Government Code Section 1090.
NOW THEREFORE BE IT RESOLVED by the Community Redevelopment Agency of the
City of Palm Springs, California, that Agreement No. 416C with MRC Associates, in the
amount of$7,500.00, is hereby cancelled; that a contract with Dahl, Taylor&Associates,
Inc., in the amount of $15,800.00, for the electrical engineering design of the decorative
light fixtures on Tahquitz Canyon Way, between Indian Canyon Drive and Avenida
Caballeros, City Project No. 00-36, is approved; and, that the Executive Director is hereby
authorized to execute all documents relating to the implementation of this contract.
ADOPTED this 16th day of May 2001.
AYES: Members Hodges, Reller-Spurgin and Vice-Chairman Oden
NOES: Member Jones
ABSENT: Chairman Kleindienst
ATTEST: COMMUNITY REDEVELOPMENT AGENCY
By:
Assistant Secretary Chairman
REVIEWED & APPROVED: