HomeMy WebLinkAbout12-City Manager
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Dept: City Manager's Office
Subject: Resolution authorizing
execution of a Professional Services
Agreement with Mandel E. Himelstein
for Hearing Officer and/or Administrative
Law Officer services
Council Meeting Date: 9/5/2006
From: Fred Wilson, City Manager
Date: 8/22/2006
Synopsis of Previous Council Action:
December 1, 2003 - Council adopts Resolution 2003-321, and appoints William Holt and Greer Stroud as
Administrative Law Officers pursuant to Chapter 9.92 of the Municipal Code.
September 2004 - Council adopts Resolution 2004-269, and appoints Michael B. Rutburg as Hearing
Officer and/or Administrative Law Officer.
November 7, 2005 - Council adopts Resolution 2005-365, and appoints William Holt as Hearing Officer
and/or Administrative Law Officer.
Recommended motion:
1. That the Mayor and Common Council appoint Mandel E. Himelstein as an
Administrative Law Officer until August 31, 2008 pursuant to Chapter 9.92 of the
Municipal Code; and
2. Adopt resolution.
Contact person: Catherine Allison
Phone: 384-5122
Supporting data attached: Staff report, resolution
Ward: All
FUNDING REQUIREMENTS:
Amount: Estimated $18,000 annually
Source: (Accl. No.) 001-092-5502
(Accl. Description) Non-departmental -
professional/contractual services
Finance:
Council Notes:
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Agenda Item No. J J-
STAFF REPORT
Subiect:
Resolution authorizing execution of a Professional Services Agreement with Mandel E.
Himelstein for Hearing Officer and/or Administrative Law Officer services
Backl!round:
In 1991, the Council adopted Ordinance MC-807 which designated the City
Administrator or designee as a hearing officer for nuisance abatement proceedings at the
City. In 1997, recognizing the increasing amount of Code Compliance enforcement in the
city, the Mayor and Council approved the hiring of an independent hearing officer
qualified to hear nuisance-related cases. Since that time, the City's hearing officers have
heard Code Enforcement cases two (2) days per month for an average of 6 (six) hours per
day, including nuisance abatement, abandoned vehicles and other matters.
In 2002, a California Supreme Court decision (Haas v. County of San Bernardino, 27 Ca!.
4th 1017) required the City to make a series of changes with regard to the use of hearing
officers in order to insulate the City from potential legal challenges. These changes
included the establishment of a rotation of at least two (2) hearing officers; ensuring that
hearing officer service agreements have limited terms; provisions that a hearing officer
cannot be retained again by the City until at least 12 months have passed since the
expiration of his or her previous agreement; and the elimination of the City's standard 30-
day termination provision in hearing officer agreements.
The agreement with one officer, Michael Rutburg, expired on August 31, 2006. The
agreement with the other officer, William Holt, will expire November 30, 2007. It is now
necessary to identify a second hearing officer to allow for the necessary rotation of
officers. In May, a scope of services for the position was sent to mediation/arbitration
centers and attorney offices in the area. From the 9 notifications sent out, staff received
letters of interest from 2 applicants. A four-member interview panel consisting of Julie
Hernandez, San Bernardino County Code Enforcement; Jim Morris; Lori Sassoon; and
Catherine Allison interviewed the two applicants. The panel determined that Mr.
Himelstein was best qualified for the position.
Mandel E. Himelstein will also serve as an Administrative Law Officer, responsible for
conducting hearings in accordance with the process established recently by ordinance that
creates an administrative citation process for Code Enforcement violations. (This process
was established to provide an alternative to criminal citations for enforcement of minor
violations of the Municipal Code.)
Staff is recommending approval of a two-year agreement with Mandel E. Himelstein at
the rate of $200 per hour. This is the rate currently charged by Hearing Officers Rutburg
and Holt.
Furthermore, pursuant to the administrative citation ordinance, staff is recommending
that Mandel E. Himelstein be appointed an Administrative Law Officer. Chapter 9.92 of
the Municipal Code, which establishes the administrative citation process, requires that
Administrative Law Officers be appointed by the Council.
With these actions, the necessary rotation oftwo (2) hearing officers will be continued.
Financial Impact:
There will be no net impact to the General Fund as a result of this action. The proposed
Agreement is for an hourly rate of $200, which is the rate currently charged by Hearing
Officers Rutburg and Holt. For FY 2006-07, approximately $41,000 has been budgeted
for hearing officer services.
The actual cost to the City each year depends upon the actual number of hours that
hearings are held.
Recommendation:
It is recommended that the Mayor and Common Council appoint Mandel E. Himelstein
as an Administrative Law Officer until August 31, 2008, pursuant to Chapter 9.92 of the
Municipal Code; and adopt the resolution.
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PROFESSIONAL
SERVICES AGREEMENT BETWEEN MANDEL E. HIMELSTEIN AND THE CITY
OF SAN BERNARDINO FOR HEARING OFFICER AND/OR ADMINISTRATIVE
LAW OFFICER SERVICES.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION I. The Mayor of the City of San Bernardino is hereby authorized and
directed to execute on behalf of said City, a Professional Services Agreement between
MANDEL E. HIMELSTEIN and the City of San Bernardino, for hearing officer services and
administrative law officer services under the City's Municipal Code, a copy of which is
attached hereto marked Exhibit '"A" and incorporated herein by reference as fully as though set
forth at length.
SECTION 2. The authorization to execute the above-referenced agreement is
rescinded if the parties to the agreement fail to execute it 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 THE EXECUTION OF A PROFESSIONAL
SERVICES AGREEMENT BETWEEN MANDEL E. HIMELSTEIN AND THE CITY
OF SAN BERNARDINO FOR HEARING OFFICER AND/OR ADMINISTRATIVE
LAW OFFICER SERVICES.
I 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
day of
, 2006, by the following vote, to wit:
Council Members:
ABSTAIN ABSENT
AYES
NAYS
ESTRADA
BAXTER
VACANT
DERRY
KELLEY
JOHNSON
MCCAMMACK
City Clerk
The foregoing resolution is hereby approved this
day of
2006.
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to form:
JAMES F. PENMAN,
City Attorney
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SERVICES AGREEMENT
This Agreement is entered into this day of August 2006, by and
between MANDEL E. HIMELSTEIN (CONSULTANT) and the City of San Bernardino
("CITY" or San Bernardino.)
WITNESSETH:
WHEREAS, the Mayor and Common Council have determined that it is advantageous
and in the best interest of the City of San Bernardino to engage in a professional services
agreement with Mandel E. Himelstein to act as an independent hearing officer and
administrative law officer; and
WHEREAS, CONSULTANT possesses the professional skills and ability to provide
said services for the CITY;
NOW, THEREFORE, the parties hereto agree as follows:
1. SCOPE OF SERVICES.
For the remuneration stipulated, San Bernardino hereby engages the services of
CONSULTANT to provide hearing officer services and administrative law officer services as
indicated in the hearing officer/administrative law officer scope of work for the City of San
Bernardino, a copy of which is attached hereto marked Exhibit "A" and incorporated herein by
reference as fully as though set forth at length.
2. COMPENSATION AND EXPENSES.
a. For the service delineated above, CITY shall pay the CONSULTANT a rate of $200.00
per hour for preparation and travel time, conduct of hearings, and signing of orders. The hourly
rate includes overhead expenses such as telephone, photocopy, postage, mileage and related
costs.
b. No other expenditures made by CONSULTANT shall be reimbursed by CITY.
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SERVICES AGREEMENT
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rate includes overhead expenses such as telephone, photocopy, postage, mileage and related
costs.
b. No other expenditures made by CONSULTANT shall be reimbursed by CITY.
c. Bills shall be submitted quarterly to the City Manager's Office, 300 N D Street, San
Bernardino, CA 92418.
d. Support staff for hearings shall be provided by the City of San Bernardino. All hearings
shall be held in the City at City Hall.
3. TERM; SEVERABILITY.
The term of this Agreement shall commence on September I, 2006, and terminate on
August 31, 2008.
This Agreement may be terminated at any time by thirty (30) days written notice by
either party. The terms of this Agreement shall remain in force unless mutually amended. The
duration of this contract may be extended with the written consent of both parties.
4. INDEMNITY.
CITY agrees to indemnify and hold harmless CONSULTANT, its officers, agents, and
volunteers from any and all claims, actions, or losses, damages and/or liability resulting from
CITY's negligent acts or omissions arising from the CITY's performance of its obligations
under the agreement.
CONSULTANT agrees to indemnify and hold harmless the CITY, its officers, agents,
.and volunteers from any and all claims, actions, or losses, damages and/or liability resulting
from CONSULTANT's negligent acts or omissions arising from the CONSULTANT's
performance of its obligations under the agreement.
In the event the CITY and/or the CONSULTANT is found to be comparatively at fault
for any claim, action, loss, or damage which results from their respective obligations under the
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SERVICES AGREEMENT
Agreement, the CITY and/or CONSULTANT shall indemnify the other to the extent of its
comparative fault
5. INSURANCE.
While not restricting or limiting the foregoing, during the term of this Agreement,
CONSULTANT shall maintain in effect policies of comprehensive public, general and
automobile liability insurance, in the amount of$250,000 combined single limit, and
statutory worker's compensation coverage, and shall file copies of said policies with the
CITY'S Risk Manager prior to undertaking any work under this Agreement CITY shall be set
forth as an additional named insured in each policy of insurance provided hereunder. The
Certificate of Insurance furnished to the CITY shall require the insurer to notify CITY of any
change or termination in the policy.
6. NON-DISCRIMINATION.
In the performance of this Agreement and in the hiring and recruitment of employees,
CONSULTANT shall riot discriminate on the basis of race, creed, color, religion, sex, physical
handicap, ethnic background or country of origin.
7. INDEPENDENT CONTRACTOR.
CONSULTANT shall perform work tasks provided by this Agreement but for all intents
and purposes CONSULTANT shall be an independent contractor and not an agent or employee
of the CITY. CONSULTANT shall secure, at his expense, and be responsible for any and all
payment of Income Tax, Social Security, State. Disability Insurance Compensation,
Unemployment Compensation, and other payroll deductions for CONSULTANT and its
officers, agents, and employees, and all business licenses, if any are required, in connection
with the services to be performed hereunder.
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SERVICES AGREEMENT
8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS.
CONSULTANT warrants that it possess or shall obtain. and maintain a business
registration certificate pursuant to Chapter 5 of the Municipal Code, and any other license,
permits, qualifications, insurance and approval of whatever nature that are legally required of
consultant to practice it's profession.
9. NOTICES.
Any notice to be given pursuant to this Agreement shall be deposited with the United
States Postal Service, postage prepaid and addressed as follows:
TO THE CITY:
City Manager's Office
300 North "D" Street
San Bernardino, CA 92418
Phone: (909) 384-5122
Facsimile: (909) 384-5138
TO THE CONSULT ANT:
Mandel E. Himelstein
P.O. Box 180519
Coronado, California 92178
Phone: (619) 435-5514
Fax: (619) 435-8980
10.
ATTORNEYS' FEES
In the event that litigation is brought by any party in connection with this agreement, the
prevailing party shall be entitled to recover from the opposing party all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of
its rights or remedies hereunder or the enforcement of any of the terms, conditions or
provisions hereof. The costs, salary and expenses of the City Attorney and members of his
office in enforcing this Agreement on behalf of the City shall be considered as "attorneys' fees','
for the purposes of this paragraph.
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SERVICES AGREEMENT
11. ASSIGNMENT
CONSULTANT shall not voluntarily or by operation of law assign, transfer. sublet or
encumber all or any part of the CONSULTANT's interest in this Agreement without CITY's
prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be
void and shall constitute a breach of this Agreement and cause for the termination of this
Agreement. Regardless of CITY's consent, no subletting or assignment shall release
CONSULTANT of CONSULTANT's obligation to perform all other obligations to be
performed by CONSULTANT hereunder for the term of this agreement.
12. VENUE
The parties hereto agree that all actions or proceedings arising in connection with this
Agreement shall be tried and litigated either in the State courts located in the County of San
Bernardino, State of California or the U.S. District Court for the Central District of California,
Riverside Division. The aforementioned choice of venue is intended by the parties to be the
mandatory and not permissive in nature.
13. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California.
14. SUCCESSORS AND ASSIGNS
This Agreement shall be binding on and inure to the benefit of the parties to this
Agreement and their respective heirs, representatives, successors, and assigns.
15. HEADINGS
The subject headings of the sections of this Agreement are included for the purposes of
convenience only and shall not affect the construction or the interpretation of any of its
provisions.
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SERVICES AGREEMENT
16. ENTIRE AGREEMENT; MODIFICATION
This Agreement constitutes the entire agreement and the understanding between the
parties. and supercedes anyprior agreements and understandings relating to the subject manner
of this Agreement. This Agreement may be modified or amended only by a written instrument
executed by all parties to this Agreement.
IN WITNESS THEREOF. the parties hereto have executed this Agreement on the day
and date first above written.
Date: September _.2006
By:
Mandel E. Himelstein
Date: September _, 2006
City of San Bernardino
By:
Patrick J. Morris, Mayor
Approved as to Form:
JAMES F. PENMAN
City Attorney
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Exhibit "A"
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Scope of Work: Hearing Officer! Administrative Law Officer Services
For the
City of San Bernardino
The City is seeking the services of a Hearing Officer! Administrative Law Officer for the
purpose of conducting hearings related to code enforcement actions. Code enforcement
is an important priority area for the City, as the Mayor and Council seek to improve the
appearance of the community in cooperation with residential property owners,
businesses, public safety agencies, and others.
In accordance with the Municipal Code, the Hearing Officer considers appeals by
property owners and other individuals concerning code enforcement matters. The
Hearing Officer may determine fines, set timelines for completion of certain property
maintenance work, and/or make other determinations regarding each case heard. The
Hearing Officer will also act as the Administrative Law Officer that will hear cases under
the code enforcement Administrative Citation process. The goal of this process is to gain
property owner compliance as quickly as possible, and to recoup the City's code
enforcement costs where appropriate.
The following information provides additional details concerning the key terms of the
agreement under which Hearing Officer! Administrative Law Officer services will be
contracted:
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. The selected Hearing Officer must be an attorney in good standing and on active
status with the State Bar of California, or a retired judge or court commissioner that
served in the California court system. If a firm is selected, the firm must designate an
individual or individuals to serve as Hearing Officers. The Hearing Officer(s) must
have previous experience as hearing officers in code enforcement hearings, or as
hearing officers in other property-related hearings.
. Under guidance given by recent court cases, the City maintains two (2) Hearing
Officers. Hearing Officer work is rotated among the 2 firms, with certain adjustments
for scheduling purposes. The existing agreement with one firm will soon expire, so
the City is now seeking a replacement for that firm.
. The term of the agreement for services will be for 2 years. At the conclusion of the
agreement, the Hearing Officer will not be eligible to be retained or employed in any
capacity by the City for a period of twelve (12) months.
. The selected Hearing Officer cannot be currently under contract with the City for
other services, nor can the attorney(s) be currently involved in any litigation to which
the City is a party.
. Hearing Officer services will be compensated on an hourly basis, not including travel
time. The hourly rate will include overhead expenses such as telephone, photocopy,
postage, mileage, and related costs. The City anticipates paying a maximum of $200
per hour for these services.
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. The Hearing Officer must be available to hold hearings at 1-2 days per month at City
Hall, at times to be determined by the City. Hearings are generally scheduled to last
the entire business day. The actual schedule of hearings, including the number of
hearings held per month and the hearing length, may vary.
If you are interested in providing Hearing Officer/Administrative Law Officer services to
the City, please send a letter of interest detailing your experience, qualifications, and
proposed hourly rate by June 15, 2006 to:
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Lori Sassoon, Assistant City Manager
City Manager's Office
300 N. D Street, San Bernardino CA 924 18
FAX (909) 384-5138
Email sassoon lo@sbcitv.org
If you have any questions, please contact Lori Sassoon or Teri Baker at (909) 384-5122.
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