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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Charles McNeely, City Manager
Subject: Resolution of the Mayor and
Conunon Council of the City of San
Bernardino authorizing an amendment to the
2009 Professional Services Agreement with
William Holt for Hearing Officer and/or
Administrative Law Officer services.
Dept: City Manager's Office
Date: 8/10/11
Council Meeting Date: August 15, 2011
Synopsis of Previous Council Action:
February 22, 2011 _ Adopted Resolution of the Mayor and Common Council of the City of San
Bernardino authorizing the execution of Amendment No. I to the 2009 Professional Services Agreement
with William Holt for Hearing Officer and/or Administrative Law Officer services, and extending the
agreement through July 31, 2011.
December 7, 2009 _ Adopted Resolution of the Mayor and Common Council of the City of San
Bernardino ratifYing the execution of an agreement with William Holt for Hearing Officer and/or
Administrative Law Officer services from December 1,2009 to November 30,2010.
December 17, 2007 _ Amended Resolution 2005-365 and authorized a two-year extension to the
Professional Services Agreement with William Holt to provide hearing officer services.
November 7, 2005- Council adopted Resolution 2005-365 authorizing the execution ofa Professional
Services Agreement with William Holt to provide hearing officer services.
Recommended motion:
Adopt resolution.
Contact person:
Tait Ecklund
Phone: 384-5122
Supporting data attached: Staff Report, Resolution, Exhibits A, B
Ward: All
FUNDING REQUIREMENTS: Amount: Estimated Cost $25,000 FY 11112
Source: (Acct. No.) 001-090-5502
(Acct. Description) Non-departmental-
professional/contractual services
Finance:
Council Notes:
Agenda Item No. d-5
Cl_\c:::..-\,
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report
Subiect:
Resolution of the Mayor and Common Council of the City of San Bernardino authorizing an
amendment to the 2009 Professional Services Agreement with WiJliam Holt for Hearing Officer
and/or Administrative Law Officer services.
Backt!round:
In 1993, the Mayor and Common Council adopted MC-1l48 adding Chapter 9.92 to the San
Bernardino Municipal Code (SBMC) to establish an Administrative Citation Process for Code
Enforcement Violations. Section 9.92 also established the Administrative Law Officer position.
On May 22,2008, MC-1268 went into effect, adding Chapter 9.93, instituting Administrative Civil
Penalties (ACPs) for Municipal Code violations. This penalty, which is up to $1,000 per day per
violation of the SBMC, was designed to be used as an additional enforcement tool to address more
egregious violations of the municipal code.
SBMC 9.93 also created an Administrative Hearing Officer position. Tills position is identical to
that of the Administrative Law Officer position identified in Section 9.92. In May 2008, the Mayor
and Common Council amended Section 9.92 to state that the appointment, qualifications,
disqualifications and powers of the Administrative Law Officer shall be the same as those provided
for the Administrative Hearing Officer as stated in SBMC 9.93.
In 2002, a California Supreme Court decision (Haas v. County of San Bernardino, 27 Ca!. 4th 1017)
recommended municipalities consider a series of changes with regard to the use of hearing officers
in order to insulate the City from potential legal challenges. Of those suggestions was the length of
an officer's term, as well as a rotation of hearings. Specifically, Section 9.93.090 of the SBMC
states the term of an Administrative Hearing Officer shall be three years.
Mr. Holt began hearing ACP appeal cases in December 2005. At the conclusion of the two-year,
2005 Professional Services Agreement, the City agreed to a two-year extension of the agreement,
which expired November 2009. In December 2009, City entered into a one-year Professional
Services Agreement with Mr. Holt (Exhibit A), at the conclusion of which, staff recommended that
Mr. Holt's services be continued for an additional eight months. On February 22, 2011, the Mayor
and Common Council approved Amendment No. I to Mr. Holt's contract, which provided an eight-
month extension that expired on July 31, 2011 (Exhibit B).
The City is in the process of preparing a request for proposal (RFP) for a new Administrative
Hearing Officer to replace Mr. Holt in compliance with SBMC 9.93.090 and Haas v. County of San
Bernardino (2002). During the time in which this RFP process is completed and a new hearing
officer is recommended for approval, it is recommended the City continue using the services of Mr.
Holt on a month to month basis for a period not to exceed six months. Staff anticipates the RFP
process will be completed in three months.
The hourly rate for services will continue to be $200.00 per hour, not including commute time.
Additionally, Mr. Holt has agreed to continue his 5% compensation reduction. All other terms of
the agreement would remain the same.
Financial Impact:
Account Number: 001-090-5502-0000-0052 Budgeted Amount: $1.387.700
Balance as of2/14/11: $857.372 Balance after approval of this item: $832.372
Please note this balance does not indicate available fUnding. It does not include non-encumbered
reoccurring expenses or expenses incurred but not yet processed
Recommendation:
Adopt Resolution.
2009-361
Exhibit A
PROFESSIONAL SERVICES AGREEMENT
1. T~ .CITY OF SAN BERNARDINO ("CITY") and WILLIAM HOLT are
the parties. to this. Agreement. The tenn of the Agreement is for a fixed period of one (1) year,
cOmmencing December 1, 2009 and expiring November 30, 2010.
2. CITY may tenninate this Agreement only upon WILLIAM HOLT'S inability or
refusal to conduct hearings and render decisions or his failure to maintain his good standing
and active status with the State Bar of California. CITY shall have no other right to terminate
this Agreement. WILLIAM HOLT may terminate this Agreement at any time by thirty (30)
days written notice.
3. WILLIAM HOLT will be acting as an independent hearing officer and
administrative law officer. WILLIAM HOLT will be hearing those matters specified by the
Municipal Code which the City Manager or other Cit)' Official may delegate to a hearing
officer or administrative law officer.
4. WILLIAM HOLT will be paid at the rate of $200.00 per hour for preparation,
conduct of hearings, and signing of orders. The hourly rate includes overhead expenses such as
telephone, photocopy, postage, mileage and related costs. No travel expenses will be paid.
WILLIAM HOLT has agreed to continue the 5% compensation reduction; this reduction will
be reflected on the monthly invoices.
5. Bills shall be submitted monthly.
6. Support staff for hearings shall be provided by the City of San Bernardino. All
hearings shall be held in the CITY at City Hall.
7. Any written notice required to be given under this Agreement will be provided
at the following addresses:
2009 Agreement - Holt
Pa"elof4
2009-361
Exhibit A'
1)
CITY OF SAN BERNARDINO
CITY MANAGER - 6th Floor
300 North "0" Street
San Bernardino, California 92418
2)
WILLIAM HOLT
Post Office Box 6040
Fullerton, California 92834
8. WILLIAM HOLT is an independent contractor to the CITY.
9. WILLIAM HOLT shall maintain the following type of insurance with limits as
shown:
a)
Workers Compensation as required by the laws of the State of
California, if applicable, including Employment Liability with $250,000
limits covering all persons providing service on behalf of WILLIAM
HOLT and all risks to such persons under this Agreement. WILLIAM '
HOLT shall require his Workers Compensation carrier to waive all rights
of subrogation against the CITY, and its elected officers, officials boards,
commissions, attorneys, employees and agents and any others for whom
services are being provided under this Agreement.
b)
Automobile Liability Insurance coverage to include contractual
coverage and automobile coverage for owned, hired and non-owned
vehicles.
c)
Professional liability insurance with limits of at least $1,000,000
per claim.
All policies with respect to the insurance coverage above required, except for the Workers
Compensation insurance coverage, shall obtain additional endorsements naming the CITY, its
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2009-361
Exhibit A
elected officers, officials, boards, commissions, attorneys, employees and agents under this
Agreement as additional named insured with respect to liabilities arising out of the
performance of services hereunder.
WILLIAM HOLT shall furnish certificates of insurance and certified copies of all
policies and endorsements to the Risk Management Division of the City's Human Resources
Department evidencing the insurance coverage above required prior to the commencement of
performance of services hereunder, which certificates shall provide that such insurance shall
not be terminated or expire without thirty (30) days written notice to the Risk Management
Division, and shall maintain such insurance from the time WILLIAM HOLT commences
performance of services hereunder until the completion of such services.
All policies required above are to be primary and non-contributing with any insurance
or self-insurance programs carried or administered by the CITY or other parties represented
under this Agreement.
10. All decisions after hearings shall be directed by WILLIAM HOLT to the City
Manager or the City Manager's designee, for service on the parties to the hearing.
11. CITY agrees to indemnify and defend WILLIAM HOLT for any liability
imposed by law on WILLIAM HOLT as a result of any act or omission arising out of, or
performed under, his Hearing Officer duties and responsibilities under this Agreement. Any
indemnification of punitive or exemplary damages shall require the findings set forth in
Government Code 9825 (b) by the City Council.
12. WILLIAM HOLT will indemnify and defend (if requested by CITY) the CITY
for any act or omission except those in paragraph 11, including, without limitation, travel to
and from the CITY.
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2009-361
Exhibit A
13. WILLIAM HOLT agrees to be available to hold hearings at least two (2) days
per month at City Hall. The hearings shall be held on days that City Hall is open to the public
and at times specified by the CITY, unless changed by mutual agreement of the parties.
WILLIAM HOLT will be available for a full day of hearings on days scheduled for hearing.
CITY OF SAN BERNARDINO
Dated: iJ.U /1. oJ()~9
C~M'M
atnc . oms, ayor
City of San Bernardino
Dated: -r- C, 1..810 -
Approved as to legal form:
By:
James F. Penman
City Attorney
CITY ArTOIIREY'S OFFICE DECLIIiE TO
SIGH THIS IlOCllHENT
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Exhibit B
2011-35
AMENDMENT NO.1 TO
2009 PROFESSIONAL SERVICES AGREEMENT WITH WILLIAM HOLT FOR
HEARING OFFICER AND/OR ADMINISTRA TIVE LAW OFFICER SERVICES
WHEREAS, San Bernardino Municipal Code (SBMC) Section 9.93.090 states
that the term of an Administrative Hearing Officer shall be three years; and
WHEREAS, Mr Holt began Hearing Officer Services for Section 9.93 of the
SBMC in August, 2008; and
WHEREAS, at the conclusion of the 2009 Professional Services Agreement Mr.
Holt had served two years and four months of the three year term, resulting in an eight
month residual in his tenure; and
WHEREAS, the parties hereto agree that an amendment to this Agreement shaH
be to the benefit of both parties; and
WHEREAS, Mr. Holt has agreed to an eight months extension to his services as
Hearing Officer and Administrative Officer for the City of San Bernardino.
Now, therefore, the Services Agreement dated December 1, 2009, by and between
the City of San Bernardino and William Holt is hereby amended as foHows:
Section 1.
as foHows:
Section 1 of the 2009 Agreement is hereby amended to now read
"1. THE CITY OF SAN BERNARDINO ("CITY") and WILLIAM HOLT
are the parties to this Agreement. The term of the Agreement is for a fixed period
of20 months, commencing December 1,2009 and expiring July 31, 2011".
Section 2. At the conclusion of said twenty month Agreement, WILLIAM
HOLT will not be eligible to be retained or employed in any capacity by CITY for a
period of twelve (12) consecutive months."
AH other terms and conditions contained in the original Services Agreement shaH remain
in fuH force and effect.
//1
Exhibit B
2011-35
AMENDMENT NO.1 TO
2009 PROFESSIONAL SERVICES AGREEMENT WITH WILLIAM HOLT FOR
HEARING OFFICER AND/OR ADMINISTRATIVE LAW OFFICER SERVICES
IN WITNESS THEREOF, the authorized parties have signed below;
WILLIAM HOLT
CITY OF SAN BERNARDINO
Bi /-.-~~?
/
rCharles McNeely
By~1
DATED: ~~ 2.41
,2011
DATED: "Yrl-<'L~ 3 ,2011
Approved as to form:
ATTEST:
~
Special Cauns
~~-Z l;; C0UL-lc
Rachel Clark, City Clerk
DATED:
,2011
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING AN AMENDMENT TO THE 2009 PROFESSIONAL
SERVICES AGREEMENT WITH WILLIAM HOLT FOR HEARING OFFICER
ANDIOR ADMINISTRA TIVE LAW OFFICER SERVICES.
WHEREAS, William Holt began providing Administrative Hearing Officer and
Administrative Law Officer services to the City of San Bernardino in December 2005 pursuant
to a two-year agreement for services, which expired on November 30, 2007; and
WHEREAS, in 2007 the City extended Mr. Holt's original 2005 agreement for an
additional two years, to November 30, 2009; and
WHEREAS, on December 17, 2009, the City of San Bernardino entered into a new
Professional Services Agreement with William Holt, which expired on November 30, 2010;
and
WHEREAS, the City executed Amendment No.1, which extended Mr. Holt's 2009
agreement by eight months to July 31, 2011; and
WHEREAS, the City is in the process of completing a request for proposal process to
hire a new Administrative Hearing Officer in compliance with Section 9.93.090; and
WHEREAS, it has been determined that it is in the best interests of the City to continue
William Holt's services on a month-to-month basis not to exceed six months until such time as
the City selects a new Administrative Hearing Officer; and
WHEREAS, William Holt will be ineligible to be retained in this capacity by the City
of San Bernardino for a period of 12 consecutive months following the conclusion of this
Agreement.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING AN AMENDMENT TO THE 2009 PROFESSIONAL
SERVICES AGREEMENT WITH WILLIAM HOLT FOR HEARING OFFICER
AND/OR ADMINISTRATIVE LAW OFFICER SERVICES.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1. The City Manager is hereby authorized to execute Amendment
No. 2 to the 2009 Professional Services Agreement with Mr. William Holt to
provide Hearing Officer and/or Administrative Law Officer Services on a month
to month basis, for a period not to exceed six months.
SECTION 2. All other terms and conditions contained in the 2009 Professional
Services Agreement shall remain in full force and effect.
SECTION 3. The authorization to extend the above-referenced agreement is
rescinded if the parties to the agreement fail to execute Amendment No.2 within
sixty (60) days of the passage of this Resolution.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING AN AMENDMENT TO THE 2009 PROFESSIONAL
SERVICES AGREEMENT WITH WILLIAM HOLT FOR HEARING OFFICER
AND/OR ADMINISTRATIVE LAW OFFICER SERVICES.
1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a
meeting thereof, held on the
, 20 II, by the following vote, to wit:
_ day of
Council Members:
AYES
NAYS
ABSTAIN ABSENT
MARQUEZ
JENKINS
BRINKER
SHORETT
KELLEY
JOHNSON
MCCAMMACK
City Clerk
day of
The foregoing resolution is hereby approved this
201 I.
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to fonn:
BY~!:::~()meY
S pet-IJ C CJ~~v/
AMENDMENT NO.2 TO
2009 PROFESSIONAL SERVICES AGREEMENT WITH WILLIAM HOLT FOR
HEARING OFFICER AND/OR ADMlNISTRA TIVE LAW OFFICER SERVICES
WHEREAS, San Bernardino Municipal Code (SBMC) Section 9.93.090 provides that
the term of an Administrative Hearing Officer shall be three years; and
WHEREAS, Mr. Holt began providing Hearing Officer and Administrative Law Officer
services for the City of San Bernardino in December 2005; and
WHEREAS, Mr. Holt's December 2005 agreement was extended until November 30,
2009; and
WHEREAS, Mr. Holt entered into a new agreement with the City for Hearing Officer
Services in December 2009; and
WHEREAS, in February 201 I, Amendment No.1 to the December 2009 agreement
extended his services through July 31, 201 I; and
WHEREAS, the City is in the process of issuing a request for proposal for an
Administrative Hearing Officer in compliance with SBMC Section 9.93.090; and
WHEREAS, the parties hereto agree that an amendment to this Agreement is necessary
to provide time to enable the City to complete an RFP process and identifY a qualified
Administrative Hearing Officer, and shall be to the benefit of both parties; and
WHEREAS, Mr. Holt has agreed to a month-to-month extension to his services for a
period not to exceed six months as Hearing Officer and Administrative Officer for the City of
San Bernardino.
Now, therefore, the Services Agreement dated December 1, 2009, by and between the
City of San Bernardino and William Holt is hereby amended as follows:
Section 1. Section I of the 2009 Agreement is hereby amended to read as follows:
J. THE CITY OF SAN BERNARDINO ("CITY") and WILLIAM HOLT are the
parties to this Agreement. The term of the Agreement is for a fixed period of 20 months,
commencing December I, 2009, and expiring July 31,201 I. After the conclusion of this
period, parties agree to a month-to-month extension for a period not to exceed six
months, until a suitable replacement is found for the position of Administrative Hearing
Officer.
AMENDMENT NO.2 TO
2009 PROFESSIONAL SERVICES AGREEMENT WITH WILLIAM HOLT FOR
HEARING OFFICER AND/OR ADMINISTRATIVE LAW OFFICER SERVICES
IN WITNESS THEREOF, the authorized parties have signed below;
WILLIAM HOLT
CITY OF SAN BERNARDINO
By:
William Holt
By:
Charles McNeely
DATED:
,2011
DATED:
,2011
Approved as to form:
ATTEST:
\~
S;ecial Co I
Rachel Clark, City Clerk
DATED: A'S"c. t- /1
,2011
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