HomeMy WebLinkAbout7/13/2016 - STAFF REPORTS - 1.G. ?ALMS'.
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C4IIFOIL%%�' City Council Staff Report
DATE: July 13, 2016 LEGISLATION
SUBJECT: AN ORDINANCE OF CITY OF PALM SPRINGS, CALIFORNIA,
AMENDING SECTION 7.01.040 OF, AND ADDING SECTION 7.06.090
TO, THE PALM SPRINGS MUNICIPAL CODE, RELATING TO NON-
DISCRIMINATION IN CITY CONTRACTING.
FROM: David Ready, City Manager
BY: Douglas Holland, City Attorney
SUMMARY
This Ordinance reaffirms the policy of the City to promote the principles of equal
opportunity in its contracting activities by including terms and conditions in its various
contracts that will require those seeking to do business with the city that they 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.
RECOMMENDATION:
Waive text and introduce for first reading an Ordinance of the City Council "AN
ORDINANCE OF CITY OF PALM SPRINGS, CALIFORNIA, AMENDING
SECTION 7.01.040 OF, AND ADDING SECTION 7.06.090 TO, THE PALM
SPRINGS MUNICIPAL CODE, RELATING TO NON-DISCRIMINATION IN CITY
CONTRACTING."
ENVIRONMENTAL ASSESSMENT:
Staff has reviewed the proposed amendment to the Palm Springs Municipal Code and
determined that it can be seen with certainty that there is no possibility that the proposed
ordinance may have a significant adverse effect on the environment. Therefore,
consideration and approval of the ordinance is not subject to the California Environmental
Quality Act (CEQA), and no further study is needed. (Refer to 15061(b)(3) of the CEQA
Guidelines.)
REM NO.
City Council Staff Report
July 7, 2016 -- Page 2
Non-Discrimination Ordinance
ANALYSIS
The City's general rules and regulations relating to procurement and contracts are
contained in Title 7 of the Palm Springs Municipal Code. Chapter 7.06 of the Code
discusses the terms and conditions that are typically required in various agreements and
contracts. The City currently includes general non-discrimination provisions in its
agreements. This is a general administrative requirement; it is not specifically mandated
in the Municipal Code. The proposed ordinance will include various non-discrimination
requirements as mandatory provisions in city contracts. These provisions will prohibit all
city contractors from 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 will also require each contractor to include
a similar provision in all subcontracts.
The ordinance also prohibits any contractor with a contract in excess of $10,000.00 to
discriminate in the provision of typical employee benefits 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.
Per the request of Council, language has been added that provides a contractor will not
be deemed to discriminate in the provision of benefits if the contractor is unable to extend
an employee benefit after taking reasonable measures to comply and provides the
employee with a cash equivalent.
The proposed ordinance requires that each contractor will submit certifications of the
contractor's compliance with the provisions of the requirements of the ordinance.
The ordinance also requires contract provisions that will allow the City to review, monitor,
and investigate compliance and requires that each contractor will allow full access to
applicable records. The ordinance provides for enforcement and appeals to the City
Manager while retaining the City Council's call-up option in the event the Council wishes
to review any administrative action in the enforcement of the ordinance. The City
Manager also has the ability to waive requirements of the ordinance with the consent of
the Council under specified circumstances. The City Manager is also required to provide
an annual report on the administrative implementation of the ordinance.
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City Council Staff Report
July 7, 2016 -- Page 3
Non-Discrimination Ordinance
FISCAL IMPACT:
Additional costs will be incurred in the revision of contract language to implement the
requirements of the ordinance and to perform the basic administrative requirements in
the initiation of the program. It is anticipated that these additional costs will be minimal.
Enforcement will be complaint based and staff does not anticipate any significant
compliance issues during the initial implementation of the ordinance during this fiscal
year.
Douglas Holland, City Attorney David Ready, City M
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ORDINANCE NO.
AN ORDINANCE OF CITY OF PALM SPRINGS, CALIFORNIA,
AMENDING SECTION 7.01.040 OF, AND ADDING SECTION
7.06.090 TO, THE PALM SPRINGS MUNICIPAL CODE,
RELATING TO NON-DISCRIMINATION IN CITY CONTRACTING.
City Attomey's Summary
This Ordinance requires the inclusion of various non-discrimination
requirements as contract terms and conditions in all agreements
where the City is a part. These provisions include various non-
discrimination contract terms that will require those seeking to do
business with the City that they 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.
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS ORDAINS:
Section 1. Section 7.01.040 is amended by amending and or adding the
following definitions therein:
"City Manager" means the City Manager of the City, or the designee of the City
Manager who shall be an Assistant City Manager, Department Head, or an
independent third party hearing officer.
"Contract" means all types of city agreements, regardless of what they may be
called, for the procurement of goods, supplies, services, or construction,
including without limitation an award of a grant or a real property agreement. For
the purpose of this Chapter, the term "contract" includes "subcontract."
"Contract Administrator" means the Department Head or other city employee
designated by the City Manager to administer a Contract between the City and a
Contractor and oversee and monitor the Contractor's performance under the
terms of the Contract.
"Contractor" means any person having a contract or purchase order with the City.
For the purpose of this Chapter, the term "contractor" includes "subcontractor"
and any person who is a party to a real property agreement as defined in this
Section.
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"Domestic partner" shall mean any person who has a currently registered
domestic partnership with a governmental body pursuant to State or local law
authorizing such registration.
"Real property agreement" means any agreement for the sale, lease, or use of
real property owned by or in the lawful possession of the City, including without
limitation concessions, franchises, and easements.
"Subcontract" shall mean an agreement to (i) provide goods and/or services,
including construction labor, materials or equipment, to a contractor, if such
goods or services are procured or used in the fulfillment of the contractor's
obligations arising from a contract with the City, (ii) to transfer the right to occupy
or use all or a portion of a real property interest subject to a property contract to a
subcontractor and pursuant to which the contractor remains obligated under the
property contract.
"Subcontractor" means any person or persons, firm, partnership, corporation or
any combination thereof, who enters into a subcontract with a contractor. Such
term shall include any person or entity who enters into an agreement with any
subcontractor for the performance of 10 percent or more of any subcontract.
Section 2. Section 7.06.090 is added to the Palm Springs Municipal Code to
read:
7.06.080 Non-Discrimination in Contracting
(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.
All contracts shall include 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
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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 ten
thousand dollars ($10,000.00) 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.
(c) A contractor shall not be deemed to discriminate in the provision of
benefits if, despite taking reasonable measures to extend a particular
employee benefit and is unable to do so, the contractor provides the
employee with a cash equivalent.
(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
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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
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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 (2) 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 (5) 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..
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(8) Exceptions and Waivers.
(a) The City Manager, with the consent of the Council, may waive the
requirements of this Section 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
Chapter capable of responding to the emergency is immediately
available; provided that such certification must be made prior to or
within twenty-four (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 Chapter; provided such certification is made
prior to execution of the contract on behalf of the City.
(b) This Chapter shall not apply where the prospective contractor is a
public entity and the City Manager finds that goods, services, construction
services for a public work 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 Chapter shall not apply where the City Manager finds that the
requirements of this Chapter 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 Chapter.
(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 Chapter for any contract, real property agreement,
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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
Chapter and that the contract or real property agreement
is for goods, a service, or a 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 Chapter 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 Chapter, which is to prohibit the City from
entering into contracts with entities that discriminate based on the
criteria set forth in this Chapter;
(e) The waiver authority granted to City Manager in this Section shall
be subject to the requirements that:
(i) All proposed waivers must set forth the reasons the City
Manager officer is requesting the waiver, what steps were taken to
find an entity that complies with this Chapter and why the waiver
does not defeat the intent of this Chapter, 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,
and
(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 (9) and the disposition of complaints of contractor non-compliance
with any provision of this Section, and shall submit a report to the City Council.
Section 3. The Mayor shall sign and the City Clerk shall certify to the passage
and adoption of this Ordinance and shall cause the same, or the summary
thereof, to be published and posted pursuant to the provisions of law and this
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Ordinance shall take effect thirty (30) days after passage.
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