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RESOLUTION NO. 2024-144
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
IMPOSING LIENS ON CERTAIN REAL PROPERTY
LOCATED WITHIN THE CITY OF SAN BERNARDINO
FOR THE COSTS OF PUBLIC NUISANCE ABATEMENTS
WHEREAS, the City of San Bernardino, pursuant to its authority under Chapter 8.30 of the San Bernardino Municipal Code, did lawfully cause public nuisances to be abated on the properties described in the Abatement Assessments List, a copy of which is attached hereto and incorporated herein as Exhibit A, in this Resolution; and WHEREAS, notice of the abatement costs were given to the owners of record of said properties, and any timely requested hearing has heretofore been held to hear protests of the costs of said abatement before the Administrative Hearing Officer, who determined the owner of record is responsible for the costs.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this reference.
SECTION 2. Said costs are found to have been incurred by the City pursuant to proceedings under the San Bernardino Municipal Code, and the final statement of costs on file with the City Clerk is hereby confirmed and adopted as special assessments against the properties lists in Exhibit A.
SECTION 3. Said sum shall become a lien on said property pursuant to San Bernardino Municipal Code 8.30.050 and shall be collected as a special assessment.
SECTION 4. The City Clerk is hereby directed to file a certified copy of this Resolution, including Exhibit A, showing such sums as remained unpaid, to the Recorder and the Auditor of the County of San Bernardino, State of California, directing that each sum be entered as a lien charged against the property as it appears on the current assessment rolls, to be collected at the said time and in the same manner, subject to the same penalties and interest upon delinquencies, as the general taxes for the City of San Bernardino are collected.
SECTION 5. The City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that
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the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
SECTION 6. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 7. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 3rd day of July 2024.
______________________________
Helen Tran, Mayor
City of San Bernardino
Attest:
__________________________________
Genoveva Rocha, CMC, City Clerk
Approved as to form:
___________________________________
Sonia Carvalho, City Attorney
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Resolution No. 2024-144
Resolution No. 2024-144
July 3, 2024
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CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2024-144, adopted at a regular meeting held on the 5 th day of June 2024 by the following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
REYNOSO _____ _____ _______ _______
CALVIN _____ _____ _______ _______
ALEXANDER _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this 6th day of July 2024. ______________________________
Genoveva Rocha, CMC, City Clerk
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EXHIBIT "A"
ABATEMENT ASSESSMENTS
ADDRESS OWNER DATE ABATED WARD COST
247 ENNIS ST. JAMA INVESTMENTS LLC 10/06/23 3 $32,934.11 1923 BELLE ST. RAMIREZ, JOSE I / RAMIREZ, OSTOLIA 1/3/2024 2 $11,141.22
Total: $44,075.33
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ORDINANCE NO. MC-1521
AN ORDINANCE OF THE MAYOR AND CITY COUNCIL
OF THE CITY OF SAN BERNARDINO , CALIFORNIA
AMENDING CHAPTERS 2.45, 8.24, 8.3 0, 8.36, 9.92, 15.04,
15.05, 15. 20, AND 15.28 OF THE SAN BERNARDINO
MUNICIPAL CODE, AND ADDING CHAPTER 9.94 OF
THE SAN BERNARDINO MUNICIPAL CODE, RELATED
TO VARIOUS CODE ENFORCEMENT PROCEDURES,
INCLUDING THE CITY’S ADMINISTRATIVE HEARING
PROCEDURES AND APPEALS PROCEDURES
WHEREAS, the Cit y previously adopted Ordinance No. MC -1474, which established the Building and Accessibility Appeals Board and dissolved the Board of Building Commissioners, as permitted by Health and Safety Code section 19957.5(a); and WHEREAS, this Ordinance amends Cha pter 2.45 to dissolve the Building and Accessibility Appeals Board and establish the Building Appeals Board in order to comply with Health and Safety Code section 17920.5, ease the Board’s membership qualifications, and make reaching a quorum easier; and
WHEREAS, this Ordinance also amends Chapter 2.45 to clarify and elaborate on the procedures for appeals before the Building Appeals Board; and WHEREAS, Ordinance No. MC -1474, when dissolving the Board of Building Commissioners, did not eliminate lateral ref erences to that board elsewhere in the San Bernardino Municipal Code, and
WHEREAS, this Ordinance amends Chapters 8.24, 8.36, 8.69, 9.92, 15.04, 15.20, 15.26,
15.27, and 15.28, in part, to eliminate erroneous references to the defunct Board of Building Commissioners; and
WHEREAS, this Ordinance adds Chapter 9.94 to the San Bernardino Municipal Code to create a uniform process for the handling of administrative hearings and appeals where such rights are granted in the San Bernardino Municipal Code; and WHEREAS, this Ordinance amends the appeal procedures in Chapters 8.24, 8.30, 8.36,
9.92, 15.04, 15.05, 15.20, and 15.28 of the San Bernardino Municipal Code to clarify hearing and appeal procedures and to refer hearings and appeals to the appropriate body, whether that be the Building Appeals Board under Chapter 2.45 or a hearing officer under Chapter 9.94; and WHEREAS, this Ordinance amends the San Bernardino Municipal Code and assigns appeals to be heard by the Building Appeals Board consistent with the right granted under California Building Code section 1.8.8.3; and
WHEREAS, this Ordinance amends the San Bernardino Municipal Code to refer all other hearings and appeals to Chapter 9.94 of the San Bernardino Municipal Code; and
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WHEREAS, this Ordinance amends Section 8.24.100(H) of Chapter 8.24, Solid Waste Collection, Removal, Disposal, Processing and Recycling , to specify the appealable acts of the City Manager and provide for appeals to a hearing officer under new Chapter 9.94; and WHEREAS, this Ordinance amends Chapter 8.30, Public Nuisances, to clarify the procedures for summary abatement and demolition procedures, including providing notice to property owners, recovery of abatement costs, and procedures for hearings and appeals; and WHEREAS, this Ordinance amends Chapter 8.3 6, Abandoned Vehicles, to clarify the notice to be provided before abatement of a vehicle, eliminate the unique hearing procedures therein, and instead provide for appeals to a hearing officer under Chapter 9.94; and WHEREAS, this Ordinance amends Chapter 9.92, Administrative Citation Process, to authorize the City to collect delinquent administrative citation fines via any legal means, eliminate collection of delinquent administrative citation fines via liens, and eliminate the second tier of administrative appeal before an appellant may seek judicial review of an administrative citation; and
WHEREAS, this Ordinance amends Chapter 15.04, Building Codes, to adopt all parts of the California Building Standards Code, to eliminate adoptions of other unnecessary uniform codes, and to eliminate an erroneous reference to an impermissible method to calculate fees for building permits; and
WHEREAS, this Ordinance amends Chapter 15.05, Property Maintenance Code, to correct a reference to the current edition of the International Property Maintenance Code; and WHEREAS, this Ordinance amends Chapter 15.20, Certificate of Occupancy, to provide for appeals to a hearing officer under new Chapter 9.94; and WHEREAS, this Ordinance amends Chapter 15.28, Dangerous Buildings, which amends the 1997 Uniform Code for the Abatement of Dangerous Buildings adopted by reference in the San Bernardino Municipal Code, to authorize the Code Enforcement Division to exercise the authority granted to the building official, to clarify the authority of the building official to secure buildings ordered vacated, to clarify the right to appeal orders under this code, and to clarify the City’s authority to recover costs of abatements done under this code; and WHEREAS, this Ordinance amends various tables of contents, the numbering of certain sections, section titles, and substantive provisions in order to correct errors , clarify meaning, and as otherwise required according to the foregoing amendments; and WHEREAS, all other legal prerequ isites to the adoption of this Ordinance have occurred.
NOW, THEREFORE, THE MAYOR AND CITY CO UNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA DO ORDAIN AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this reference.
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SECTION 2. Chapter 2.45 of Title 2 of the San Bernardino Municipal Code is hereby amended to state in full as follows:
“
Chapter 2.45
BUILDING APPEALS BOARD
Sections:
2.45.010 Members
2.45.020 [Reserved]
2.45.030 Duties
2.45.040 Review of the Board’s Decision
2.45.050 Oath of Office
2.45.060 Chair - Meetings
2.45.070 Quorum
2.45.080 Hearing Procedures
2.45.010 Members - Appointment
The Building Appeals Board shall be comprised of the members of the San Bernardino Planning Commission, as defined in Section 2.22.010 of this Code. Members shall be appointed on a basis of knowledge in the applicable building codes, regulations, and ordinances of the City, and must be qualified by training and experience to pass on matters pertaining to building construction.
2.45.020 [Reserved]
2.45.030 Duties
Pursuant to Section 1.8.8 of the California Building Code, the Board shall have the duty to consider appeals of orde rs, decisions, and determinations of the City of San Bernardino Building Official relating to the building standards of the California Building Standards Code.
The Board is authorized to establish policies and procedures necessary to carry out its duties.
2.45.040 Review of the Board’s Decision
The decision of the Board may be appealed to the City Council in accordance with Chapter 2.64 of this Code. The City Council’s decision on an appeal from the Board’s decision is final and binding. Pursuant to Code o f Civil Procedure Section 1094.5 and 1094.6, any action to review a decision of the City Council shall be commenced not later than the ninetieth (90th) day after the date the City Council’s order is adopted.
2.45.050 Oath of Office
Prior to undertaking his or her duties as a member of the Board, the member shall subscribe and file his or her official oath of office with the City Clerk.
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2.45.060 Chair - Meetings
A. The Chairperson of the Board shall be the Chairperson of the Planning Commission, or his or her designee. The Board shall meet only as required to consider an appeal within its jurisdiction.
B. The Board shall meet at such times and dates, and in such places , as shall be designated by the Chairperson of the Board.
C. Meetings of the Board shall be open to the public and shall be governed by the provisions of the Ralph M. Brown Act, Sections 54950.5, et seq., California Government Code, except as otherwise provided by law.
D. A member shall not hear an appeal in which that member has a personal, professional, or financial interest.
2.45.070 Quorum
Any five members in attendance at any meeting shall constitute a quorum.
2.45.080 Hearing Procedures
A. The Board shall meet upon notice from the chairperson.
B. The appellant, the appellant’s representative, the Building Official, the Building Official’s representative, and any person whose interests are affected shall be given an opportunity to be heard.
C. The Board shall adopt an d make available to the public procedures under which a hearing will be conducted. The procedures shall not require compliance with strict rules of evidence, but shall mandate that only relevant information be received.
D. A quorum of the Board shall hear an appeal.
E. The Board may modify or reverse the decision of the Building Official by a concurring vote of a majority of its members. The authority of the Board to render a decision is limited to the scope of authority of the Building Official in the first inst ance. The Board has no authority to waive a requirement of the California Building Standards Code.
F. The Board must issue a written decision with findings within a reasonably prompt t ime after filing of the appeal.
SECTION 3. Subdivision H of S ection 8.24.100 of Chapter 8.24 of Title 8 of the San Bernardino Municipal Code is hereby amended to state as follows (omitted provisions not amended represented by ellipses […]):
“8.24.100 Construction and Demolition Debris Recycling Program …
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H. Appeal.
Any appellant aggrieved by the decision of the City Manager relating to a Security Deposit under Section 8.24.100(D) or Section 8.24.100(E) may appeal the decision to the hearing officer in the manner provided in Chapter 9.94 of this Code.
…”
SECTION 4. Various Sections of Chapter 8.30 of the San Bernardino Municipal Code are hereby amended to state as follows (omitted provisions not ame nded represented by ellipses […]):
“
Chapter 8.30
PUBLIC NUISANCES
Sections:
8.30.010 Purpose
8.30.015 Definitions
8.30.020 Declaration of nuisances
8.30.021 Summary/Emergency Abatement
8.30.022 Summary/Emergency Abatement Post-Abatement Hearing
8.30.023 Method of giving notice
8.30.025 Determination of nuisance
8.30.026 Additional Requirements for Demolition of Buildings or Structures
8.30.030 Appeal
8.30.035 Time limit for compliance
8.30.040 Abatement by City
8.30.041 Invoice of abatement costs
8.30.042 Recovery of attorneys' fees and report of attorneys' fees
8.30.043 Treble damages
8.30.045 Hearing on nuisance abatement costs
8.30.050 Council action
8.30.055 Imposition of special assessment lien and notice
8.30.056 Recording of nuisance abatement lien
8.30.060 Collection of costs and attorney' s fees prior to hearing
8.30.065 Alternative remedies
8.30.070 Violation - Penalty
…
8.30.015 Definitions
For the purpose of this Chapter the following words and phrases shall have the meanings given herein:
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c) “Administrative Hearing O fficer” or “Hearing Officer” shall mean any individual appointed by the City Manager of the City of San Bernardino, or his/her designee, to hear the appeal under this Chapter..
…
h) “Code Enforcement Director” shall mean the Chief of Police for the City of San Bernardino, or his or her designee.
…
8.30.021 Summary/Emergency Abatement
Notwithstanding any other provision of this Chapter with reference to the abatement of public nuisance, the Code Enforcement Director, Fire Chief, Chief of Police, City Engineer, Director of Public Works, Building Official, or their designees, shall have the authority to immediately cause the abatement of any public nuisance if it is determined that the nuisance presents an immediate threat to public health or safety, or an imminent hazard to real or perso nal property, in their sole discretion. Any such abatement activity may be conducted without observance of any notice requirements described in this chapter. The City is entitled to recover all abatement costs incurred in the abatement of an imminent threa t or hazard as set forth in this chapter.
8.30.022 Summary/Emergency Abatement Post-Abatement Hearing A. Within 10 business days, or as soon as reasonably possible under the circumstances, following any summary abatement action by the City to abate an immedia te threat to public health or safety, or imminent hazard to real or personal property, the City must provide the owner and any other responsible person with a “Notice of Summary Abatement.” B. The Notice of Summary Abatement shall be served in accordance wit h Section 8.30.023 of this Chapter and contain the following information:
1) A brief description of the condition and reasons why it constituted an imminent threat or hazard;
2) A brief description of the law prohibiting or pertaining to the imminent threat or hazard; 3) A brief description of the actions the City took to abate the imminent threat or hazard; and
4) An itemized invoice identifying all nuisance abatement costs related to the summary abatement. The invoice shall further indicate that any unpaid amounts ma y become a lien and special assessment against the property.
C. The City’s determination that a public nuisance constituted an imminent threat or hazard may be appealed as set forth in Section 8.30.030. The invoice of abatement costs may be appealed as set forth in Section 8.30.045. Any party to whom an invoice has been issued shall have 45 calendar days from the date of the invoice to remit full payment of the invoice to the City. If the owner or other responsible person fails to make timely, full payment of the abatement costs within 45 days of issuance of the Notice of Summary Abatement or as ordered by the hearing officer after any appeal, the City may then proceed to collect its abatement costs in any manner allowed by law, including as set forth in Section 8.30.055.
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D. Omission of any of the foregoing provisions in a Notice of Summary Abatement, whether in whole or in part, or the failure of an owner or responsible person to receive this document, does not render it defective or render any proceeding or actio n pursuant to this chapter invalid.
E. The decision of the Hearing Officer on the determination of nuisance is final. Any appeal of the Hearing Officer's decision shall be governed by California Code of Civil Procedure Section 1094.6 or such section as may be amended from time to time. …
8.30.026 Additional Requirements for Demolition of Buildings or Structures A. Whenever the Code Enforcement Director, or designee, intends to abate a public nuisance by demolition of a building or structure, the City must comply with the following additional requirements:
(1) The Notice to Abate must contain a statement that the City intends to abate the nuisance with City personnel or contractors by demolition of a building or structure if the nuisance conditions are not repaired, re habilitated, removed, terminated, or demolished within the compliance deadline set forth in the Notice to Abate.
(2) The City shall serve the Notice to Abate on all secured lienholders of record with the San Bernardino County Recorder’s Office;
(3) Entry onto any real property to abate a public nuisance by demolition of a building or structure must be pursuant to a warrant or other order issued by a court of competent jurisdiction
B. The provisions of this section do not apply in cases involving summary or emergency abatement under Section 8.30.021 of this Code.
8.30.030 Appeal
A. Within ten days from the date of giving notice to abate, the violator may file an appeal to the determination of the nuisance with the City Clerk. Such appeal shall be in writing and shall identify the property subject to the Notice to Abate. The City Clerk shall then cause the matter to be set for hearing before a Hearing Officer contracted by the City to hear such matters.
B. Notice of the date of hearing shall be given in writing. The date of the hearing shall be no sooner than fifteen days from the date when notice of the hearing is given to the appellant and to the Code Enforcement Division.
C. At the time fixed in the notice, the Administrative Hearing Officer shall hear the testimony of all competent persons desiring to testify respecting the condition constituting the nuisance.
D. At the conclusion of the hearing, the Hearing Officer shall determine whether or not a nuisance exists, and if the Hearing Officer so concludes, he may declare the conditi ons existing to be a nuisance and direct the person owning the property upon which the nuisance exists to abate it within ten days after the date of posting on the premises a notice of the Hearing Officer's order. The Hearing Officer may amend time to abat e the nuisance, if in his or her opinion, there exists good cause for the amendment of time to abate. If the City is the
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prevailing party, the Hearing Officer’s decision shall order the responsible parties to pay the confirmed nuisance abatement costs to the City within 30 calendar days, and shall specify that any confirmed nuisance abatement costs not paid within 30 calendar days shall become a lien and special assessment against the property.
E. The decision of the Hearing Officer on the determination of nui sance is final. Any appeal of the Hearing Officer's decision shall be governed by California Code of Civil Procedure Section 1094.6 or such section as may be amended from time to time.
8.30.035 Time limit for compliance
The violator must abate the nuisance within the period of time set forth in the Notice to Abate, or, in case of an appeal, within ten days from the finding of the Hearing Officer or such longer period as may be determined by the Administrative Hearing Officer.
Unless an emergency situation exists, the violator shall be given at least ten days to abate the nuisance.
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8.30.041 Invoice of abatement costs
A. In accordance with this Chapter, the City shall serve upon each responsible party and each interested party an invoice identifying all nuisance abatement costs related to a nuisance abatement action.
B. Any party to whom an invoice has been issued shall have 45 calendar days from the date of the invoice to remit full payment of the invoice to the City. Payment shall be submitted to the City as specified in the invoice. The invoice shall further indicate that any unpaid amounts may become a lien and special assessment against the property.
C. The statement shall be accompanied by a notice to the owner that the cost of abatement may be protested as set forth in Section 8.30.045. If the cost is not protested within 15 calendar days after service, it shall be deemed final.
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8.30.045 Hearing on nuisance abatement costs
A. Any responsible party or interested party to whom an invoice has been issued may, within 15 calendar days from the date of the invoice, request a hearing to protest the cost of abatement by filing a written request for a hearing on the abatement costs with the City Clerk. The request for hearing must contain the following information:
(1) The requestor’s full legal name;
(2) The requestor’s mailing address and telephone number; (3) The amount of nuisance abatement costs disputed;
(4) The specific legal and factual grounds for all disputes of the invoice and nuisance abatement costs.
B. The failure of any party to properly and timely request a hearing is a waiver of the right to contest the invoice, a waiver of the right to a hearing, a failure to exhaust administrative
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remedies, and a bar to any further challenge to the City’s invoice and nuisance abatemen t costs.
C. If a hearing is timely and properly requested, the City Clerk shall cause a Hearing to be set before the Hearing Officer. The City shall provide notice of the date, time, and location of the hearing to all parties at least 10 calendar days before the hearing. At the time fixed for the hearing, the Hearing Officer shall hold an informal hearing to consider the invoice and protests or objections raised by the requestor.
D. At the conclusion of the hearing, or within 5 days thereafter, the Hearing Office r shall issue a decision approving, denying, or modifying the amount of the nuisance abatement costs that the City is entitled to recover.
E. The decision of the Hearing Officer shall be in writing and shall be served by mail. The decision of the Hearing Offi cer on the abatement costs shall be final. If any cost recovery is upheld, even in part, the City shall be the prevailing party. If cost recovery is entirely denied, the requesting parties shall be the prevailing parties.
F. Any appeal of the Hearing Officer' s decision shall be governed by California Code of Civil Procedure Section 1094. 6 or such section as may be amended from time to time. …”
SECTION 5. Various Sections of Chapter 8.36 of Title 8 of the San Bernardino Municipal Code are hereby amended to state as follows ( omitted provisions not ame nded represented by ellipses […]):
“
Chapter 8.36
ABANDONED VEHICLES
Sections:
8.36.010 Findings
8.36.020 Definitions
8.36.030 Applicability
8.36.040 Chapter not exclusive
8.36.050 Administration and enforcement
8.36.060 Rights of franchisee to enter private property
8.36.070 Assessment of administrative costs
8.36.080 Abatement authority
8.36.090 Ten-day notice required
8.36.100 Public hearing
8.36.110 Hearings to be held before hearing officer
8.36.120 [Reserved]
8.36.130 Removal of vehicle to scrapyard
8.36.140 Notice to Department of Motor Vehicles of removed vehicles
8.36.150 Assessment of charges against land
8.36.160 Violation - Penalty
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8.36.090 Ten-day notice required
A ten-day notice of intention to abate and remove the vehicle, or part thereof, as a public nuisance shall be issued. Such ten -day notice of intention to abate shall be mailed by certified mail or registered mail, return receipt requested, to the owner of th e land, as shown on the last equalized assessment roll, and to the last registered owner and/or legal owner of record of the vehicle, unless the vehicle is in such condition that identification numbers are not available to determine ownership. All notices must identify the vehicle. Notices mailed to the owner of land must advise that failure to comply with the notice may result in abatement by the City, and costs being assessed against the property. All notices must advise that an aggrieved party may appeal and describe the procedures for filing an appeal.
8.36.100 Public hearing
A. The owner of the vehicle or owner of the land that is the subject of a ten -day notice issued under this Chapter may appeal the notice to a hearing officer in the manner provided in Chapter 9.94 of this Code.
B. The appeal must be filed within 10 days following issuance of the ten -day notice. If such a request for hearing is not received by the City within said ten days after mailing of the notice of intention to abate and remove, the C ity shall have the authority to abate and remove the vehicle or parts thereof as a public nuisance without holding a public hearing.
8.36.110 Hearings to be held before hearing officer
A. The hearing officer may impose such conditions and take such other acti on as the hearing officer deems appropriate under the circumstances to carry out the purpose of this Chapter.
The hearing officer may delay the time for removal of the vehicle or part thereof if, in the hearing officer’s opinion, the circumstances justify it. At the conclusion of the public hearing, the hearing officer may find that a vehicle or part thereof has been abandoned, wrecked, dismantled, or is inoperative on private or public property, and may order the same removed from the property as a public nuisance and disposed of as hereinafter provided, and may determine the administrative costs and the cost of removal to be charged against the owner of the parcel of land on which the vehicle or part thereof is located. The order requiring removal shall in clude a description of the vehicle or part thereof and the correct identification number and license number of the vehicle if available at the site.
B. If it is determined at the hearing that the vehicle was placed on the land without the consent of the land owner and that he has not subsequently acquiesced in its presence, the hearing officer shall not assess costs of administration or removal of the vehicle against the property upon which the vehicle is located or otherwise attempt to collect such costs from such landowner.
C. The decision of the hearing officer in an appeal under Chapter 9.94 of this Code is final.
8.36.120 [Reserved]
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SECTION 6. Various Sections of Chapter 9.92 of Title 9 of the San Bernardino Municipal Code are hereby amended to state as follows ( omitted provisions not ame nded represented by ellipses […]):
“
Chapter 9.92
ADMINISTRATIVE CITATION PROCESS
Sections:
9.92.010 Legislative Findings and Statement of Purpose
9.92.020 Administrative Law Officer
9.92.030 Use of Administrative Citation
9.92.040 Violation; Authority; Fines
9.92.050 Service Procedures
9.92.060 Contents of Citation
9.92.070 Satisfaction of the Administrative Citation
9.92.080 Request for Hearing on an Administrative Citation
9.92.090 Failure to Pay Fines
9.92.100 Publication and Availability of Rules and Regulations
9.92.110 Representation at Hearings
9.92.120 Conduct of Hearings
9.92.130 Orders
9.92.140 Disposition of Fines
9.92.150 Punishment of Violations by Imprisonment
9.92.160 Administrative Adjudication Procedures Not Exclusive
9.92.170 Applicability of Administrative Adjudication Procedures
9.92.180 Right to Judicial Review
9.92.190 Severability
…
9.92.090 Failure to Pay Fines
A. Any person who fails to pay to the City any fine imposed pursuant to the provisions of this Chapter on or before the date that fine is due is liable for the payment of any applicable interest charges.
B. The delinquent obligation shall bear interest at a rate of 10 percent per year. Interest shall be calculated on a prorated monthly basis f rom the date such obligation becomes delinquent to the date it is paid.
C. The City may collect any delinquent administrative citation fines or interest charges by use of all available legal means, including personal collection from the responsible parties.
D. The City also may recover all costs, expenses, and fees, including attorneys’ fees, associated with the assessment, enforcement, processing, and collection of the fines associated with the administrative citation in accordance with the provisions of this Code.
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9.92.170 Applicability of Administrative Adjudication Procedures A. Notwithstanding any other provision of the ordinances of the City or this Code, all provisions of this Code or ordinances, may be enforced by instituting an administrative adjudication hearing with the Administrative Law Officer as provided in this article.
B. Notwithstanding any other provision of the ordinances of the City or this Code, any enforcement action, including but not limited to license or permit suspension or revocation, which may be exercised by another department of the City may also be exercised by the Administrative Law Officer as provided in this article.
9.92.180 Right to Judicial Review
Any decision of the Administrative Law Officer is final, subject to judicial review.
Within 20 days after service of the decision of the Administrative Law Officer upon the party to the administrative adjudication hearing, that person may seek judicial review of the decision by filing an appeal with the Superior Court of the State of Calif ornia, in the County of San Bernardino, in accordance with California Government Code section 53069.4. The appealing party must serve upon the City Clerk, either in person or by first -class mail, a copy of the notice of appeal. If the appealing party fails to timely file a notice of appeal, the hearing officer’s decision is deemed confirmed.”
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SECTION 7. Chapter 9.94 of Title 9 of the San Bernardino Municipal Code is hereby added to state in full as follows:
“
Chapter 9.94
ADMINISTRATIVE HEARINGS AND APPEALS
Sections:
9.94.010 Definitions
9.94.020 Purpose and Intent
9.94.030 Scope
9.94.040 Hearing Officer—Selection and Qualifications
9.94.050 Powers and Duties of Hearing Officer
9.94.060 Right to Appeal; Consequence of an Untimely or Incomplete Appeal
9.94.070 Administrative Hearings—Notice Procedures
9.94.080 Administrative Hearings—Conduct of Hearing
9.94.090 Decision of the Hearing Officer
9.94.100 Methods of Service
9.94.110 Costs
9.94.120 Judicial Review
9.94.130 Limitation on Jurisdiction
9.94.140 Severability
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9.94.010 Definitions
The following definitions apply in the interpretation and enforcement of this Chapter.
A. “Action” means an act or decision by an administrative officer or administrative agency for which a right to appeal under the provisions of this Chapter is granted in this Code.
B. “Administrative agency” means an organ of the city government other than the City Council which under the direction of the City Manager has responsibility for carrying out or enforcing the rules, regulati ons, and ordinances of the city, but not including boards and commissions of the city.
C. “Administrative officer” means an officer of the city who is not a member of the legislative body or appointed boards or commissions. Such officers include but are not l imited to the City Manager, chief of police, fire chief, director of planning and building, director of transportation, director of public works, or similar officer.
D. “Aggrieved person” means any person whose personal, pecuniary or property right or interest is directly and adversely affected, or upon whom a substantial burden or obligation is imposed by the action or decision appealed from.
E. “Appellant” means any aggrieved person who files an appeal.
F. “Code” means the San Bernardino Municipal Code.
G. “Hearing officer” means any person duly qualified and authorized by this Chapter to hear and review appeals under this Chapter.
H. “Respondent” means the administrative officer or agency which took the action appealed from, and any other administrative officer or agency named as respondent in an appeal.
9.94.020 Purpose
It is the purpose and intent of the City Council to afford due process of law to any person who is directly affected by an action or decision of an administrative agency or officer. These procedures are also intended to establish a forum to efficiently and fairly resolve administrative appeals.
9.94.030 Scope
The hearing officer hears appeals from actions taken by an administrative officer or administrative agency when a right to appeal under the provisi ons of this Chapter is granted in this Code. Except where this Code prescribes another procedure, the rules and procedures pertaining to appeals are as stated herein. The rules and procedures pertaining to appeals under this Chapter may be supplemented or modified as stated in the chapter that grants a right to appeal under these provisions. The hearing officer has no authority to hear appeals of any action taken by the City Council or any other board or commission of the City.
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9.94.040 Hearing Officer—Selection and Qualifications
A. The City Manager must establish procedures for the selection of a qualified person to serve as hearing officer for each matter appealed under this Chapter. Hearing officers must be selected in a manner that avoids the potential for pecuniary or other bias.
B. For purposes of this section, “qualified person” includes an individual with a background in the practice of law or with a background in local governance, that is particularly experienced or knowledgeable about the subject matter at issue, or that is otherwise deemed qualified by the City Manager.
9.94.050 Powers and Duties of Hearing Officer
A. As provided by Section 9.94.030, the hearing officer hears all appeals in accordance with the procedures contained in this Chapter or as sup plemented or modified in the chapter granting a right to appeal hereunder.
B. The hearing officer is authorized to issue decisions and take all actions necessary and proper to carry out the functions of the hearing officer in this Chapter, including:
(1) Hold conferences for settlement or simplification of the issues; (2) Administer oaths and affirmations;
(3) Hear testimony;
(4) Rule upon motions, objections, and the admissibility of evidence; (5) Preserve and authenticate the record of the hearing and all exhibits and eviden ce introduced at the hearing;
(6) Regulate the course of the hearing in accordance with this Chapter or other applicable law; and
(7) Issue a final order which includes findings of fact and conclusions of law.
C. The hearing officer may request information, services, facilities, or any other assistance for the purpose of furthering the objectives of this Chapter.
D. At the hearing, the hearing officer must hear and consider the testimony of the appellant, respondent, and their witnesses, as well as any documentary eviden ce presented by these persons.
E. The hearing officer must ensure that parties receive a fair hearing and are afforded due process in accordance with the applicable State and federal law governing such hearings.
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9.94.060 Right to Appeal; Consequence of an Untimely or Incomplete Appeal Except where this Code prescribes another procedure, the following hearing request procedures apply to appeals under this Chapter.
A. Any aggrieved person may contest an action taken by an administrative officer of the City, as provided in Section 9.94.030 , by filing a written notice of appeal with the City Clerk within 15 calendar days. No fee shall be due for the filing of an appeal. The notice of appeal must also include payment to the City Clerk of the appeal fee, as established or amended from time to time by resolution of the City Council.
B. The notice required by Subsection (A) must be filed no later than 15 days following the date of mailing to appellant of notice of the action from which the appeal is taken or, if there is no such mailing or none is required, no later than 15 days following the date of the action that is the subject of the appeal.
C. A written notice of appeal must contain the following information:
(1) The full name, mailing address, e -mail address, and telephone number of each appellant who is appealing the action;
(2) A description of the specific action or decision being appealed, including the date of the action;
(3) The grounds for appeal in sufficient detail to enable the hearing officer to understand the nature of the controversy; and
(4) The signature of an appellant.
D. If the City Clerk does not receive a timely notice of appeal, if the notice of appeal is incomplete, or if the notice of appeal does not comply with all of the requirements set forth in this section, the r ight to appeal the action is waived. In this event, the action is final and binding. A failure to file a timely or proper notice of appeal also constitutes a failure to exhaust administrative remedies.
9.94.070 Administrative Hearings—Notice Procedures
Except where this Code prescribes another procedure, the following hearing notice procedures apply to appeals under this Chapter:
A. No hearing before a hearing officer under this Chapter may be scheduled or held unless a timely and proper notice of appeal ha s been submitted to the City Clerk as set forth in Section 9.94.060.
B. The City Clerk must schedule the hearing no sooner than 15 days and no later than 60 days from receipt of the notice of appeal, unless the parties waive such time limits. The failure to hold the hearing within this time period does not invalidate any action of the hearing officer.
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C. The City Clerk must provide a copy of the appeal to the respondent within five days after filing.
D. The City Clerk must notify the appellant, respondent, and City Attorney in writing of the date, time, and location of the hearing at least 15 days before the date of the hearing.
E. Failure to receive notice of the time and place of the hearing shall not dismiss any violation at issue or invalidate any action of the hea ring officer, if the notice was given in the manner stated in Subsection (D) of this Section.
F. The notice of hearing may be served by any of the methods of service listed in Section
9.94.100 of this Chapter.
G. Unless the notice of appeal names some other res pondent, the administrative officer or administrative agency that took the action or made the decision being appealed is designated the “respondent.”
9.94.080 Administrative Hearings—Conduct of Hearing
A. Participation. The hearing officer must be present at all times to preside over the hearing.
All hearings are open to the public. The respondent, or another City representative, is required to participate in the hearing. The appellant is required to participate in the hearing.
B. Evidence, Witnesses, and Discovery. All parties have the right to present evidence and cross-examine witnesses. The formal rules of evidence and discovery do not apply. The rules of privilege are effective to the same extent that they are now or he reafter may be recognized in civil actions. Irrelevant and unduly repetitious evidence may be excluded. Oral evidence may be taken only on oath or affirmation. The appellant and respondent may represent themselves or be represented by anyone of their choice.
C. Cross-Examination. No party shall have the right to cross -examine any other party or witness except for good cause shown to the satisfaction of the hearing officer. Each party may cross-examine witnesses.
D. Interpretation and Recordation. The appellant ma y bring an interpreter to the hearing at his or her sole expense. The City may, at its discretion, record the hearing by stenographer, court reporter, audio recording, or video recording.
E. Subpoenas. In any hearing conducted by the hearing officer, he or sh e has the power to compel the attendance of witnesses for the production of evidence by subpoenas issued under the authority of the City Council and attested by the City Clerk. Subpoenas may also be issued at the request of the parties prior to the commenc ement of such hearing. No subpoena may be issued for any reason without the concurrence of the City Attorney that there is good cause for such subpoena to be issued, and such subpoena is approved by the City Council. It is the duty of the Chief of Police t o cause all such subpoenas to be served, and the refusal of a person to attend or to testify in answer to such a subpoena subjects the person to prosecution in the same manner set forth by law for failure to appear before the City Council in response to a subpoena issued by the City Council.
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F. Proof. The standard of proof applicable to the hearing and to be used by the hearing officer in deciding the issue on appeal is proof by a preponderance of the evidence. The respondent bears the burden of proof at the h earing. The hearing officer determines relevancy, weight, and credibility of testimony and evidence.
G. Continuances. The hearing officer, before or during a hearing, may grant a request for a continuance, in his or her discretion, for good cause; however, i n no event may the hearing be continued for more than 30 calendar days without stipulation by all parties.
H. Failure of Appellant to Appear. If the appellant fails to appear at the hearing, the hearing officer may cancel the hearing and send a notice thereof to the appellant to the address stated on the appeal form. A cancellation of a hearing due to non -appearance of the appellant waives the right to appeal and is failure to exhaust all administrative remedies, provided that proper notice of the hearing as required by this Chapter has been provided. In such instances, the action is final and binding.
9.94.090 Decision of the Hearing Officer
A. The hearing officer must render his or her decision in accordance with the provisions of this Chapter, applicable law, and all ordinances of this City.
B. The hearing officer’s decision must be in writing and must set forth the hearing officer’s findings of fact and conclusions of law.
C. The hearing officer must render a decision within 15 days following the conclusion of the hearing. Failure of the hearing officer to render a decision within this time period does not invalidate any action of the hearing officer.
D. The hearing officer’s decision must be served on all parties in accordance with Section
9.94.100. Failure of a person to receive a properly-served decision does not affect the finality or effectiveness of the decision.
E. The hearing officer’s decision is the final administrative decision of the City regarding the action that is the subject of the appeal. The hearing officer ’s decision is effective on the date of service of the decision. The decision must contain the following statement: “The decision of the hearing officer is final and binding. Judicial review of this decision is subject to the provisions and time limits set forth in California Code of Civil Procedure section 1094.6 et seq.”
9.94.100 Methods of Service
A. Except where this Code prescribes another procedure, any notice or document required to be served under this Chapter must be served by personal service or first-class mail.
B. Service is deemed effective on the date it is personally delivered or mailed.
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C. Failure of any person to receive a document properly served under this Chapter does not affect the validity of the notice or document, service, or any acti on or proceeding under this Chapter.
9.94.110 Costs
Nothing herein limits the City’s ability to seek recovery of its costs or fees incurred in connection with the hearing if authorized by law. The City shall keep an accounting of the hearing costs. If any portion of the action is upheld, even in part, the City is the prevailing party.
9.94.120 Judicial Review
The decision of the hearing officer is not subject to appeal to the City Council or any board or commission of the City. Once the hearing officer’s de cision becomes final as provided in this Chapter, the appellant must both bring judicial action to contest such decision and provide the City with a notice of the action within 90 days after the date of such decision of the hearing officer, in accordance w ith the Code of Civil Procedure section 1094.6. Failure to do so means all objections to the hearing officer’s decision are waived.
9.94.130 Limitation on Jurisdiction
The hearing officer shall not consider appeals of orders, decisions, and determinations of the City of San Bernardino Building Official relating to the building standards of the California Building Standards Code, which must be considered by the Building Appeals Board p ursuant to Section 2.45.030 of this Code.
9.94.140 Severability
The provisions of this Chapter are severable, and, if any sentence, section or other part of this Chapter should be found to be invalid, such invalidity shall not affect the remaining provisions, and the remaining provisions shall continue in full force and effect.” SECTION 8. Various Sections of Chapter 15.04 of Title 15 of the San Bernardino Municipal Code are hereby amended to state as follows (omitted provisions not amended represented by ellipses […]):
“
Chapter 15.04
BUILDING CODES
Sections:
15.04.010 Citation
15.04.020 Adoption of Codes by Reference
15.04.030 Applicability
15.04.040 Definitions
15.04.050 CBC Chapter 1, Section 105.5.1 is added - Prima Facie Evidence of Abandoned Work
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15.04.060 CBC Chapter 1, Section 112.1.1 is added - Board of Appeals Designated
15.04.070 CBC Chapter 1, Section 105.2, Item 2 is Amended Fences Not Requiring a Building Permit
15.04.080 [Reserved]
15.04.090 CBC Section 2204.1.1 is added- Qualification of Welding Operators.
15.04.100 CBC Section 3109.1.1 is added- Barriers for Swimming Pools
15.04.110 CBC Appendix J, Section J101 .3 is added - Alquist-Priolo Earthquake Fault Zones
15.04.120 CBC Appendix J, Section J101 .4 is added - Enforcement Authority
15.04.130 On-site Improvement Permit
15.04.140 Preparation of Grading Plans
15.04.150 On-Site Improvement Plans and Specifications
15.04.160 Information on On-Site Improvement Plans
15.04.170 On-site Improvement Plan Review and Permit Fees
15.04.180 Inspection of On-Site Improvements
15.04.190 Bonds Required
15.04.200 CBC Appendix J, Section J110.1 is added- Planting of Slopes
15.04.210 CBC Appendix J, Section J112 is added- Grading Operations
15.04.220 CBC Appendix J, Section J110.3 is added- Final Repots
15.04.230 Driveway Configurations
15.04.240 Location of Slopes
15.04.250 Automatic Fire Sprinkler Systems- Residential Additions
15.04.260 Stop Work Order
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15.04.020 Adoption of Codes by Reference
A. Adoption of the California Building Standards Code by Reference Those certain rules and regulations as set forth in the following codes are hereby adopted and by this reference are made a part of this Code with the force and effect as though set out herein in full, with the exception of those parts expressly excepted and deleted or as amended by this Code, as the regulations governing the erection, construction, alteration, change of occupancy, repair, removal, and maintenance of all buildings and other structures in the City:
1. The 2016 edition of the California Build ing Standards Code, known as the California Code of Regulations, Title 24, incorporating those state adopted model codes listed pursuant to Health and Safety Code Section 17922, and all state adopted amendments thereon, and incorporating:
A. California Building Code (CBC), 2016 edition, and Appendix J thereto; B. California Electrical Code (CEC), 2016 edition;
C. California Mechanical Code (CMC), 2016 edition;
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D. California Plumbing Code (CPC), 2016 edition;
E. California Green Building Standards Code (CGBSC), 2016 edition; and F. California Residential Code (CRC), 2016 edition;
G. California Energy Code, 2016 edition;
H. California Historical Building Code, 2016 edition;
I. California Fire Code, 2016 edition;
J. California Existing Building Code, 2016 edition.
B. Adoption of Other Codes by Reference
In addition to the California Building Standards Codes, those certain rules and regulations, as set forth in the following codes, and appendices are hereby adopted by reference and shall regulate the erection, construction, change of occupancy, alteration, repair, removal and maintenance of all buildings and other structures in the City:
1. Uniform Code for the Abatement of Dangerous Buildings (UCADB), 1997 edition;
2. International Property Maintenance Code (IPMC), 2015 edition C. Copies of all Codes listed above shall be on file in the Community Development Department Office for inspection and reference and copies of each code shall be furnished to the Building Official and each deputy.
15.04.030 Applicability
It shall be unlawful to erect, cons truct, change the occupancy, alter, repair, rehabilitate, remove, move or maintain any building or structure, or grade or alter any land, in the City in violation of, or without complying with the appropriate provisions of this Chapter.
The California Buil ding Standards Code shall govern and prevail in the event of any inconsistency or conflict between the building standards within the California Building Standards Code, as adopted and amended by the City, and the building standards in any other code.
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15.04.050 CBC Chapter 1, Section 105.5.1 is added - Prima Facie Evidence of Abandoned Work
Section 105.5.1 Prima Facie Evidence of Abandoned Work
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Failure on the part of the permittee to obtain an inspection and to demonstrate substantial progress to the satis faction of the Building Official within any 365 day period shall be prima facie evidence that the work has been abandoned and the permit shall have expired.
15.04.060 CBC Chapter 1, Section 113.1.1 is added Board of Appeals Designated Section 113.1.1 Board of Appeals Designated
1. In order to hear and decide appeals of orders, decisions, or determinations made by the Building Official relative to the application and interpretation of the building standards of this code, the Building Appeals Board of the City o f San Bernardino, established under Chapter 2.45 of this Code, shall serve as the Board of Appeals. The Building Appeals Board has such duties as are delegated to it by the California Building Standards Code and Chapter 2.45 of the San Bernardino Municipal Code.
15.04.070 CBC Chapter 1, Section 105.2, Item 2 is Amended - Fences Not Requiring a Building Permit
2. Fences not over 6 feet high, except concrete and masonry fences greater than three (3) feet above grade. Masonry fences shall be constructed in accord ance with the standard design specifications approved by the Building Official, unless an alternate engineered design is submitted and approved. Exemption from the permit requirements shall not be deemed as a waiver of the design requirements contained in the San Bernardino Development Code as it relates to the use or configuration of materials, or to the height of fences in front, side or rear yards.
15.04.080 [Reserved]
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15.04.120 CBC Appendix J, Section J101.4 is added - Enforcement Authority J101.4 Enforcement Authority. The Building Official of the City of San Bernardino or his/ her designee shall have the authority for the enforcement of CBC Appendix J and any amendments thereto.
…”
SECTION 9. Chapter 15.05 of Title 15 of the San Bernardino Municipal Code is hereby amended to state in full as follows:
“
Chapter 15.05
PROPERTY MAINTENANCE CODE
Sections:
15.05.010 Citation of Sections
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15.05.020 Section 102.3 amended
15.05.030 Section 103.1 amended
15.05.040 Section 104.3 amended
15.05.050 Section 106.4 amended
15.05.060 Section 107.1 amended
15.05.070 Section 111 amended
15.05.080 Section 112.4 amended
15.05.090 Section 201.3 amended
15.05.100 Section 302.4 amended
15.05.110 Section 302.9 amended
15.05.120 Section 304.3 amended
15.05.130 Section 304.14 amended
15.05.140 Section 304.18 amended
15.05.150 Section 307 amended
15.05.160 Section 401.3 amended
15.05.170 Section 502.5 amended
15.05.180 Section 505.1 amended
15.05.190 Section 602.2 amended
15.05.200 Section 602.3 amended
15.05.210 Section 602.4 amended
15.05.220 Section 604.2 amended
15.05.230 Section 604.3.1.1 amended
15.05.240 Section 604.3.2.1 amended
15.05.250 Section 702.1 amended
15.05.260 Section 702.2 amended
15.05.270 Section 702.3 amended
15.05.280 Section 704.1 amended
15.05.290 Section 704.2 amended
15.05.010 Citation of Sections
The provisions of this chapter amend the International Property Maintenance Code, 2015 Edition, published by the International Code Conference, as adopted by reference by the City in Chapter 15.04 of this Code.
15.05.020 Section 102.3 amended
International Property Maintenance Code Section 102.3 is amended to read as follows:
102.3 "Repairs, additions or alterations to a structure, or changes of occupancy, shall be done in accordance with the procedures and provisions of the California Administrative Code, California Building Code, California Energy Code, California Historical Building Code, California Existing Building Code, California Fire Code, California Plumbing Code, California Mechanical Code, and California Electrical Code. Nothing in this code shall be construed to cancel, modify or set aside any provision of the San Bernardino Municipal Code."
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15.05.030 Section 103.1 amended
International Property Maintenance Code Section 103. 1 is amended to read as follows:
103.1 "The Chief of Police or the Director of Community Development or their authorized representatives shall be known as the code official as referenced in the International Property Maintenance Code."
15.05.040 Section 104.3 amended
International Property Maintenance Code Section 104.3 is amended to add the following phrase to the end of the last sentence: "including the warrant provisions of Section 1822.50 et seq. of the Code of Civil Procedure of the State of California."
15.05.050 Section 106.4 amended
International Property Maintenance Code Section 106.4 is amended to read as follows:
106.4 "Violation penalties. Any person violating any of the provisions of this title, including, but not limited to, adopted model codes, as amended in this title, shall be subject to the penalty provisions of Chapters 1.12, 9.92 and 9.93 of the San Bernardino Municipal Code."
15.05.060 Section 107.1 amended
International Property Maintenance Code Section 107.1 is amended to read as follows:
107.1 "Notice to Person Responsible. Whenever the code official determines that there has been a violation of this code or has grounds to believe that a violation has occurred, notice shall be given in the manner prescribed in Sectio ns 107.2 and 107.3, or in the manner provided by San Bernardino Municipal Code Section 9.92.050, to the person responsible for the violation as specified in this code. Notices for condemnation procedures shall also comply with Section 108.3."
15.05.070 Section 111 amended
International Property Maintenance Code Section 111 and subsections are amended to read as follows:
111 "A party aggrieved by a notice or order issued under this code may appeal in the manner set forth in Chapter 9.94 of the San Bernardino Municipal Code."
15.05.080 Section 112.4 amended
International Property Maintenance Code Section 112.4, Failure to comply, is amended to read as follows:
112.4 Failure to Comply "Any person, firm or corporation who continues work on a building or structure after a stop work order has been issued by any of the employees listed in [SBMC]
9.90.010 A(2, 3, 4, 5, 6 or 8) shall be guilty of a misdemeanor, except such work as that person is
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directed to perform to remove a violation or unsafe condition, shall b e liable to a fine of not less than one hundred dollars ($100.00) and not more than one thousand dollars ($1,000.00) for each day of the violation. Each day during any part of which the activity prohibited by subdivision 112. 1 of this section continues shall be a distinct and separate offense."
15.05.090 Section 201.3 amended
International Property Maintenance Code Section 201.3 is amended to read as follows:
201.3 Definitions . "Where terms are not defined in this code and are defined in the California Adm inistrative Code, California Building Code, California Residential Code, California Green Building Standards Code, California Energy Code, California Historical Building Code, California Existing Building Code, California Fire Code, California Plumbing Code, California Mechanical Code, or California Electrical Code, or any code adopted by reference under Chapter 15 of the San Bernardino Municipal Code, such terms shall have the meanings ascribed to them as stated in those codes."
15.05.100 Section 302.4 amended
International Property Maintenance Code Section 302.4, paragraph number one, is amended to read as follows:
302.4 Weeds "Weed and rubbish abatement shall be as set forth in the San Bernardino Municipal Code, Chapter 8.30, Abatement of Public Nuisances."
15.05.110 Section 302.9 amended
International Property Maintenance Code Section 302.9, defacement of property, is deleted.
15.05.120 Section 304.3 amended
International Property Maintenance Code Section 304.3 is amended to read as follows:
304.3 Premise s Identification "Premises identification shall be as set forth in the San Bernardino Municipal Code sections 12.32.030 and/or 15.16.126."
15.05.130 Section 304.14 amended
International Property Maintenance Code Section 304.14 is deleted.
15.05.140 Section 304.18 amended
International Property Maintenance Code Section 304.18 is deleted.
15.05.150 Section 307 amended
International Property Maintenance Code Section 307, Handrails and guardrails, is amended to read as follows:
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307 Handrails and Guardrails "Every exterior and interior flight of stairs shall have a handrail and guard per the requirements of the adopting code at the time the building was permitted. Handrails and guardrails shall be maintained in a safe and useful condition."
15.05.160 Section 401.3 amended
International Property Maintenance Code Section 401. 3 is amended to read as follows:
401.3 Alternative Devices "In lieu of the means for natural light and ventilation herein prescribed, artificial light or mechanical ventilation complying with the California Building Code or California Residential Code shall be permitted."
15.05.170 Section 502.5 amended
International Property Maintenance Code Section 502.5, Public toilet facilities, is amended to read as follows:
502.5 Public Toilet Facilities "Public toilet facilities shall be maintained in a safe sanitary and working condition in accordance with the California Plumbing Code. Except for periodic maintenance or cleaning, public access and use shall be provided to the toilet facilities at all times during occupancy of the premises."
15.05.180 Section 505.1 amended
International Property Maintenance Code Section 505. 1, Plumbing Fixture Connections, is amended to read as follows:
505.1 Plumbing Fixture Connections "General. Every sink, lavatory, bat htub or shower, drinking fountain, water closet or other plumbing fixture shall be properly connected to either a public water system or to an approved private water system. All kitchen sinks, lavatories, laundry facilities, bathtubs and showers shall be s upplied with hot or tempered and cold running water in accordance with the California Plumbing Code."
15.05.190 Section 602.2 amended
International Property Maintenance Code Section 602.2, Heating Facilities, is amended to read as follows:
602.2 Heating Fa cilities "Residential occupancies. Interior spaces intended for human occupancy shall be provided with permanently-installed heating facilities capable of maintaining a room temperature of 68 degrees F (20 C) in all habitable rooms."
15.05.200 Section 602.3 amended
International Property Maintenance Code Section 602. 3, Heat supply, Exceptions #1 and #2 are deleted.
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15.05.210 Section 602.4 amended
International Property Maintenance Code Section 602.4, Occupiable work spaces, is deleted.
15.05.220 Section 604.2 amended
International Property Maintenance Code Section 604.2, Service, is amended to read as follows:
604.2 "Service. The size and usage of appliances and equipment shall serve as a basis for determining the need for additional facilities in accordance with the California Electrical Code. Dwelling units shall be served by a three - wire, 120/ 240 volt, single -phase electrical service having a rating of not less than 60 amperes."
15.05.230 Section 604.3.1.1 amended
International Property Maintenance Code Section 604.3.1.1, Electrical equipment, is amended to read as follows:
604.3.1.1 Electrical Equipment "Electrical equipment. Electrical distribution equipment, motor circuits, power equipment, transformers, wire, cable, flexible cords, wiring devices, ground fault circuit interrupters, arc fault circuit interruptors, surge protectors, molded case circuit breakers, low-voltage fuses, luminaires, ballasts, motors and electronic control, signaling and communication equipment that have been exposed to water shall be replaced in accordance with the provisions of the California Electrical Code. The exception provisions of section 604.3.1.1 of the IPMC are hereby deleted."
15.05.240 Section 604.3.2.1 amended
International Property Maintenance Code Section 604.3.2.1, Electrical equipment, is amended to read as follows:
604.3.2.1 Electrical Equipment "Electrical switches, receptacles and fixtures, including furnace, waterheating, security system and power distribution circuits, that have been exposed to fire, shall be replaced in accordance with the provisions of the California Building Code, or California Electrical Code."
The exception provisions of section 604.3.2.1 of the IPMC are hereby deleted.
15.05.250 Section 702.1 amended
International Property Maintenance Code Section 702.1, General, is amended to read as follows:
702.1 General "General. A safe, continuous and unobstructed pa th of travel shall be provided from any point in a building or structure to the public way. Means of egress shall
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comply with the California Fire Code, California Residential Code, or the California Building Code, whichever is more restrictive."
15.05.260 Section 702.2 amended
International Property Maintenance Code Section 702.2, Aisles, is amended to read as follows:
702.2 Aisles "Aisles. The required width of aisles in accordance with the California Fire Code, California Residential Code, California Building Code, or Civil Code 304.18, whichever is more restrictive, shall be unobstructed."
15.05.270 Section 702.3 amended
International Property Maintenance Code Section 702.3, Locked doors, is amended to read as follows:
702.3 Locked Doors "Locked Doors. All means of egress doors shall be readily openable from the side from which egress is to be made without the need for keys, special knowledge or effort, except where the door hardware conforms to that permitted by the California Fire Code, California Building Code, or California Residential Code, whichever is more restrictive."
15.05.280 Section 704.1 amended
International Property Maintenance Code Section 704.1, General, is amended to read as follows:
704.1 Fire Protection Systems "General. All systems, dev ices and equipment to detect a fire, actuate an alarm, or suppress or control a fire or any combination thereof shall be maintained in an operable condition at all times in accordance with the California Fire Code."
15.05.290 Section 704.2 amended
International Property Maintenance Code Section 704.2, Smoke alarms, is amended to read as follows:
704.2 Smoke Alarms "Smoke alarms. Smoke alarms shall be installed and maintained in accordance with the California Fire Code, California Residential Code, or the Ca lifornia Building Code, whichever is more restrictive."”
SECTION 10. Section 15.20.090 of Chapter 20 of Title 15 of the San Bernardino Municipal Code is hereby amended to state as follows ( omitted provisions not ame nded represented by ellipses […]):
“…
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15.20.090 Hearings
Any person aggrieved by the revocation of any c ertificate of occupancy by the Building Official may appeal that decision in the manner set forth in Chapter 9.94 of this Code, as such revocation is an administrative enforcement action. An y person aggrieved by the denial of a certificate of occupancy may appeal that decision in the manner set forth in Chapter 2.45 of this Code, as such denial is an order, decision, or determination of the Building Official relating to the building standards of the California Building Standards Code. …”
SECTION 11. Various Sections of C hapter 15.28 of Title 15 of the San Bernardino Municipal Code are hereby amended to state as follows ( omitted provisions not amended represented by ellipses […]):
“
Chapter 15.28
DANGEROUS BUILDINGS
Sections:
15.28.010 Referenced Code
15.28.020 Uniform Code for the Abatement of Dangerous Buildings - Amended
15.28.030 [Reserved]
15.28.040 [Reserved]
15.28.050 [Reserved]
15.28.060 [Reserved]
15.28.070 [Reserved]
15.28.080 [Reserved]
15.28.090 [Reserved]
15.28.100 [Reserved]
15.28.110 [Reserved]
15.28.120 [Reserved]
15.28.130 [Reserved]
15.28.140 Securing dangerous buildings from entry
15.28.150 Recovery of costs of abatement of nuisance
15.28.160 Discontinuance of utilities
15.28.170 Filing of notice of pendency of administrative proceedings
15.28.180 [Reserved]
15.28.190 Post-disaster Safety Assessment Placards
15.28.200 Section 103 amended
15.28.210 Section 205 amended
15.28.220 Section 301 amended
…
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15.28.020 Uniform Code for the Abatement of Dangerous Buildings - Amended Chapters 5, 6, and 9 of the Uniform Code for the Abatement of Dangerous Buildings are hereby deleted.
Procedures for appeals, hearings, enforcement of orders, and abatements related to the administrative enforcement procedures in the UCADB shall be in accordance with Chapter 8.30 of the San Bernardino Municipal Code. Except for vacation orders made under Section 404 of the UCADB, enforcement of any notice and order of the building official is stayed du ring the pendency of an appeal therefrom that is properly and timely filed. …
15.28.140 Securing dangerous buildings from entry
A. The building official is authorized to secure from entry any structure that is ordered vacated in accordance with Chapter 4 of the Uniform Code for the Abatement of Dangerous Buildings and where the building official determines, in his or her sole discretion, that securing the structure is necessary to enforce the order to vacate. The enforcement official may secure such structures using any method deemed appropriate under the circumstances in his or her discretion.
B. It is unlawful to remove a notice to vacate posted in accordance with Chapter 4 of the Uniform Code for the Abatement of Dangerous. Any person who removes a notice to v acate without the express written consent of the City of San Bernardino Building Official is guilty of a misdemeanor, which upon conviction thereof is punishable in accordance with the provisions of Section 1.12.010 of the San Bernardino Municipal Code.
C. The building official’s decision to secure a structure may be appealed in the same manner as the issuance of the underling notice to vacate and as provided in Section 15.28.020.
15.28.150 Recovery of costs of abatement of nuisance
Any costs incurred by the C ity in connection with the enforcement of the Uniform Code for the Abatement of Dangerous Buildings may be collected by the City according to the procedures specified in Chapter 8.30 of the San Bernardino Municipal Code. …
15.28.170 Filing of notice of pendency of administrative proceedings At any time after the Building Official has initiated action to locate and serve the owners with the notice and order referred to in Section 401 of the Uniform Code for the Abatement of Dangerous Buildings, the Building Official or the City Engineer may file with the county recorder a notice of pendency of administrative proceedings which shall constitute notice to any subsequent owner, purchaser, encumbrancer of the property described therein or involved in the proceedings, beneficiary of a trust deed, lienholder, mortgagee, or any other person holding or claiming any interest of any kind in the property described therein who shall be bound by the
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administrative proceedings, including liability for all amounts and costs a nd expenses assessed against the property as a lien for abatement in the same manner as if he had been the owner at the time of commencement of the proceedings and had been properly served at that time. …
15.28.200 Section 103 amended
Section 301 of the Un iform Code for the Abatement of Dangerous Buildings is amended to read as follows:
"All buildings or structures which are required to be repaired under the provisions of this code shall be subject to the provisions of the California Building Standards Code promulgated by the California Building Standards Commission in Title 24 of the California Code of Regulations, as adopted and amended by the City of San Bernardino."
15.28.210 Section 205 amended
Section 205 of the Uniform Code for the Abatement of Dangerous Buildings is amended by deleting the section.
15.28.220 Section 205 amended
Section 301 of the Uniform Code for the Abatement of Dangerous Buildings is amended to read as follows:
"For the purpose of this code, certain terms, phrases, words, and their derivatives shall be construed as specified in either this chapter or as specified in the International Building Code.
Where terms are not defined, they shall have their ordinary accepted meanings within the context with which they are used. Words us ed in the singular include the plural and plural the singular.
Words used in the masculine gender include the feminine and the feminine the masculine.
BUILDING CODE is the California Building Code, as adopted and amended by the City of San Bernardino.
DANGEROUS BUILDING is any building or structure deemed to be dangerous under the provisions of Section 302 of this code."”
SECTION 12. All existing provisions of the San Bernardino Municipal Code that are repeated herein are repeated only to aid decision -makers and the public in understanding the effect of the proposed changes. Restatement of existing provisions does not constitute a new enactment.
SECTION 13. Severability. If any provision of this Ordinance or the application thereof to any person or circu mstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end, the provisions of this Ordinance are declared to be severable.
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SECTION 14. The City Council finds this Ordinance is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
SECTION 15. Effective Date. This Ordinance shall become effective thirty (30) days after the date of its adoption.
SECTION 16. Notice of Adoption. The City Clerk of the City of San Bernardino shall certify to the adoption of this Ordinance and cause publication to occur in a newspaper of general circulation and published and circulated in the City in a manner permitted under section 36933 of the Government Code of the State of California.
APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this ___ day of __________, 20 .
John Valdivia, Mayor
City of San Bernardino
Attest:
__________________________________
Georgeann Hanna, MMC, City Clerk
Approved as to form:
__________________________________
Gary D. Saenz, City Attorney
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CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Georgeann Hanna, MMC, City Clerk, hereby certify that the attached is a true copy of Ordinance No. MC-1521 introduced by the Mayor and City Council of the City of San Bernardino, California, at a regular meeting held the 4th day of September, 2019. Ordinance No.
MC-1521 was approved, passed and adopted at a regular meeting held the 18th day of September, 2019 by the following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _______
SHORETT _____ _____ _______ _______
NICKEL _____ _____ _______ _______
RICHARD _____ _____ _______ _______
MULVIHILL _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this day of ____________, 20 .
______________________________
Georgeann Hanna, MMC, City Clerk
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7 9
CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: July 3, 2024
To: Honorable Mayor and City Council Members
From: Rochelle Clayton, Acting City Manager
C. Jeannie Fortune, Interim Director of Finance and Management Services
Department: Finance
Subject: Investment Portfolio Report for April 2024 (All Wards) Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California, accept and file the Monthly Investment Portfolio Report for April 2024.
Executive Summary
This action is to approve the Investment Portfolio for the month of April 2024. This is regular business of the Mayor and City Council ensuring that City investments are in compliance with the Mayor and Council approved Investment Policy.
Background
The City’s Statement of Investment Policy requires that a monthly Investment Portfolio Report be prepared and submitted to the Mayor and City Council. Section III, Chapter N of the City’s approved 2023-24 Investment Policy reads as follows, “The Director of Finance shall submit to the City Council, on a monthly basis, a report summarizing the individual transactions executed within the month.” The Director of Finance will prepare, review, and present the City’s Investment Portfolio Report and confirm that the portfolio is in compliance with the City’s Investment Policy.
Discussion
The Investment Portfolio Report provides a synopsis of investment activity for the City’s investment portfolio for the month ended April 2024.
The City’s Investment Portfolio is in full compliance with the City’s current Investment Policy and California Government Code section 53601, and there is sufficient cash flow from a combination of liquid and maturing securities, bank deposits, and income to meet the City’s expenditure requirements.
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2021-2025 Strategic Targets and Goals
The acceptance and filing of the attached Investment Portfolio Report aligns with Key Target No. 1: Improved Operational & Financial Capacity by implementing, maintaining, and updating a fiscal accountability plan.
Fiscal Impact
There is no fiscal impact associated with receiving and filing the monthly investment report.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, accept and file the Monthly Investment Portfolio Report for April 2024.
Attachments
Attachment 1 Investment Portfolio Management Summary Report, April 2024.
Attachment 2 Resolution 2023-118; Adopted Investment Policy Ward:
All Wards
Synopsis of Previous Council Actions:
N/A
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CITY OF SAN BERNARDINO
Portfolio Management
April 30, 2024
CITY OF SAN BERNARDINO
FINANCE DEPARTMENT
290 N D. ST
SAN BERNARDINO, CA 92401
(909)384-5242
Portfolio Summary
% of
Portfolio
Book
ValueInvestments
Market
Value
Par
Value
Days to
MaturityTerm
YTM
360 Equiv.
YTM
365 Equiv.
State Local Agency Investment Fund 80,220,762.62 122.52 0.200180,220,762.6280,220,762.62 0.203 Certificates of Deposit 994,000.00 1,8260.28 1.808459948,876.23994,000.00 1.833 Federal Agency Issues - Coupon 69,963,891.37 1,54719.64 0.82752065,992,395.0070,000,000.00 0.839 Money Market Funds 171,343,564.49 148.11 0.0101171,343,564.49171,343,564.49 0.010 Corporate Notes 29,114,717.90 1,6118.17 1.00951927,336,060.0029,125,000.00 1.023 Supranationals 4,509,779.47 1,5531.27 0.5944744,269,750.004,500,000.00 0.603 356,146,715.85 100.00%
Investments
350,111,408.34356,183,327.11 461 153 0.307 0.312
Cash and Accrued Interest
(not included in yield calculations)
Passbook/Checking 656,352.00 1 0.0001656,352.00656,352.00 0.000 356,843,071.29Total Cash and Investments
696,355.44Subtotal
40,003.44
350,807,763.78356,839,679.11
696,355.44
40,003.44
461 153 0.307 0.312
Accrued Interest at Purchase
Current Year
April 30
92,992.95
Fiscal Year To Date
8,621,528.78
Average Daily Balance
Effective Rate of Return
349,474,672.30 333,203,665.62
3.10%0.32%
Total Earnings Month Ending
"I certify that this report accurately reflects all pooled investments and is in conformity with the Investment Policy Statement approved by the Mayor and City Council." *Book Value is amortized Cost Basis
**Market Values provided by BNY Western Trust.
__________________________________________________ ____________________
CYNTHIA JEANNIE FORTUNE, INTERIM DIRECTOR OF FINANCE & MGMT Portfolio CITY
AP
Reporting period 04/01/2024-04/30/2024
Run Date: 05/28/2024 - 14:38 IE (PRF_PM1) 7.3.11
Report Ver. 7.3.11
05-28-2024
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YTM
360
Par Value Book Value
Maturity
Date
Stated
RateMarket Value
April 30, 2024
Portfolio Details - Investments
Average
BalanceIssuer
Portfolio Management
CITY OF SAN BERNARDINO
Days to
Maturity
Moody'sCUSIP Investment #
Purchase
Date
State Local Agency Investment Fund
0.200LOCAL AGENCY INVESTMENT FUND10001 39,117,940.52 39,117,940.52 0.20307/01/2022 39,117,940.52SYS 1
0.200LOCAL AGENCY INVESTMENT FUND10003 41,102,822.10 41,102,822.10 0.20307/01/2022 41,102,822.10SYS10003 1 80,220,762.6280,220,762.6280,220,762.6279,909,800.89Subtotal and Average 0.200 1 Certificates of Deposit
1.134STATE BANK OF INDIA80057 250,000.00 250,000.00 09/28/20261.15009/28/2021 228,710.25856285XL0 880
2.614CAPITAL ONE NATIONAL ASSOC80054 247,000.00 247,000.00 05/30/20242.65005/30/2019 246,430.3214042RLW9 29
2.564MORGAN STANLEY PRIVATE BANK80055 247,000.00 247,000.00 06/13/20242.60006/13/2019 246,153.0661760AG52 43
0.937UBS FINANCE COMMERCIAL PAPER80056 250,000.00 250,000.00 09/22/20260.95009/22/2021 227,582.6090348JT59 874 994,000.00948,876.23994,000.001,110,200.00Subtotal and Average 1.808 459 Managed Pool Accounts
0.158CALTRUST GOVT INVESTMENT FUND20008 0.00 0.00 0.16007/01/2022 0.0020008 1
0.000.000.000.00Subtotal and Average 0.000 0
Federal Agency Issues - Coupon
0.334FEDERAL FARM CREDIT BANK30605 1,000,000.00 999,854.69 02/10/20250.32002/10/2021 962,480.00 Aaa3133EMQG0 285
0.473FEDERAL FARM CREDIT BANK30608 2,000,000.00 2,000,000.00 03/03/20250.48003/03/2021 1,921,400.00 Aaa3133EMSC7 306
0.700FEDERAL FARM CREDIT BANK30613 1,000,000.00 1,000,000.00 04/01/20250.71004/01/2021 959,100.00 Aaa3133EMUP5 335
0.720FEDERAL FARM CREDIT BANK30630 1,000,000.00 1,000,000.00 05/19/20250.73005/19/2021 953,440.00 Aaa3133EMZW5 383
0.957FEDERAL FARM CREDIT BANK30634 1,000,000.00 999,586.11 05/26/20260.95005/26/2021 917,610.00 Aaa3133EMB76 755
0.641FEDERAL FARM CREDIT BANK30642 1,000,000.00 1,000,000.00 06/09/20250.65006/09/2021 951,410.00 Aaa3133EMF98 404
0.730FEDERAL FARM CREDIT BANK30655 1,000,000.00 1,000,000.00 07/21/20250.74007/21/2021 947,460.00 Aaa3133EMU91 446
0.594FEDERAL FARM CREDIT BANK30656 1,000,000.00 999,288.13 09/16/20250.55007/21/2021 939,220.00 Aaa3133EL7K4 503
0.502FEDERAL FARM CREDIT BANK30664 1,000,000.00 999,775.72 02/10/20250.48008/26/2021 963,670.00 Aaa3133EMZ70 285
0.888FEDERAL FARM CREDIT BANK30665 1,000,000.00 999,300.00 09/01/20260.87009/01/2021 907,040.00 Aaa3133EM3T7 853
0.581FEDERAL FARM CREDIT BANK30672 1,000,000.00 999,746.03 03/21/20250.56009/21/2021 959,050.00 Aaa3133EM5V0 324
0.716FEDERAL FARM CREDIT BANK30681 1,000,000.00 999,551.39 10/21/20240.63010/21/2021 977,330.00 Aaa3133ENBM1 173
1.312FEDERAL FARM CREDIT BANK30682 1,000,000.00 1,000,000.00 11/03/20261.33011/03/2021 913,150.00 Aaa3133ENDC1 916
1.152FEDERAL FARM CREDIT BANK30683 1,000,000.00 994,480.43 06/15/20260.90011/04/2021 914,620.00 Aaa3133EMH21 775
1.189FEDERAL FARM CREDIT BANK30689 1,000,000.00 993,717.81 06/15/20260.90011/22/2021 914,620.00 Aaa3133EMH21 775
1.519FEDERAL FARM CREDIT BANK30691 1,000,000.00 1,000,000.00 11/30/20261.54011/30/2021 913,810.00 Aaa3133ENFN5 943
1.302FEDERAL FARM CREDIT BANK30692 1,000,000.00 1,000,000.00 06/01/20261.32012/01/2021 926,220.00 Aaa3133ENGC8 761
1.371FEDERAL FARM CREDIT BANK30699 1,000,000.00 1,000,000.00 06/22/20261.39012/22/2021 923,770.00 Aaa3133ENHV5 782
1.272FEDERAL FARM CREDIT BANK30700 1,000,000.00 1,000,000.00 12/22/20261.29012/22/2021 905,800.00 Aaa3133ENJC5 965 Portfolio CITY
AP
Run Date: 06/04/2024 - 14:25 PM (PRF_PM2) 7.3.11
Report Ver. 7.3.11
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YTM
360
Par Value Book Value
Maturity
Date
Stated
RateMarket Value
April 30, 2024
Portfolio Details - Investments
Average
BalanceIssuer
Portfolio Management
CITY OF SAN BERNARDINO
Days to
Maturity
Moody'sCUSIP Investment #
Purchase
Date
Federal Agency Issues - Coupon
1.450FEDERAL FARM CREDIT BANK30703 1,000,000.00 1,000,000.00 01/11/20271.47001/11/2022 912,480.00 Aaa3133ENKG4 985
0.542FEDERAL HOME LOAN BANK30606 2,000,000.00 2,000,000.00 02/26/20260.62502/26/2021 1,849,800.00 Aaa3130AL6L3 666
0.690FEDERAL HOME LOAN BANK30610 1,000,000.00 1,000,000.00 06/24/20250.70003/24/2021 951,630.00 Aaa3130ALLA0 419
0.592FEDERAL HOME LOAN BANK30614 1,000,000.00 1,000,000.00 11/29/20240.60003/29/2021 973,810.00 Aaa3130ALRM8 212
0.654FEDERAL HOME LOAN BANK30617 1,000,000.00 999,889.59 03/17/20250.65003/26/2021 960,230.00 Aaa3130ALLP7 320
1.016FEDERAL HOME LOAN BANK30620 1,000,000.00 1,000,000.00 03/30/20261.03003/30/2021 924,840.00 Aaa3130ALV68 698
0.740FEDERAL HOME LOAN BANK30623 1,000,000.00 1,000,000.00 04/28/20250.75004/28/2021 956,390.00 Aaa3130AM4D1 362
0.799FEDERAL HOME LOAN BANK30632 1,000,000.00 1,000,000.00 11/26/20250.81005/26/2021 933,790.00 Aaa3130AMLJ9 574
0.542FEDERAL HOME LOAN BANK30633 1,000,000.00 1,000,000.00 11/26/20240.55005/26/2021 973,910.00 Aaa3130AMK92 209
0.370FEDERAL HOME LOAN BANK30636 1,000,000.00 1,000,000.00 06/03/20240.37506/03/2021 995,410.00 Aaa3130AMMM1 33
0.404FEDERAL HOME LOAN BANK30639 1,000,000.00 1,000,000.00 08/01/20240.41006/01/2021 987,800.00 Aaa3130AMHH8 92
0.681FEDERAL HOME LOAN BANK30640 1,000,000.00 1,000,000.00 06/10/20250.69006/10/2021 953,140.00 Aaa3130AMMT6 405
0.370FEDERAL HOME LOAN BANK30641 1,000,000.00 1,000,000.00 06/24/20240.37506/24/2021 992,570.00 Aaa3130AMR38 54
0.789FEDERAL HOME LOAN BANK30643 1,000,000.00 1,000,000.00 09/29/20250.80006/29/2021 940,050.00 Aaa3130AMSY9 516
0.740FEDERAL HOME LOAN BANK30645 1,000,000.00 1,000,000.00 11/28/20250.75006/28/2021 932,680.00 Aaa3130AMTZ5 576
0.838FEDERAL HOME LOAN BANK30653 1,000,000.00 1,000,000.00 03/30/20260.85007/13/2021 921,610.00 Aaa3130AMUD2 698
0.690FEDERAL HOME LOAN BANK30654 1,000,000.00 1,000,000.00 04/29/20250.70007/29/2021 955,790.00 Aaa3130ANBU3 363
0.690FEDERAL HOME LOAN BANK30658 1,000,000.00 1,000,000.00 02/26/20260.70008/26/2021 924,210.00 Aaa3130ANJ35 666
0.986FEDERAL HOME LOAN BANK30659 1,000,000.00 1,000,000.00 08/27/20261.00008/27/2021 908,990.00 Aaa3130ANKG4 848
0.740FEDERAL HOME LOAN BANK30662 1,000,000.00 1,000,000.00 09/25/20250.75008/25/2021 939,930.00 Aaa3130ANQJ2 512
0.521FEDERAL HOME LOAN BANK30668 1,000,000.00 999,929.67 02/25/20250.52009/01/2021 962,050.00 Aaa3130ANJU5 300
0.725FEDERAL HOME LOAN BANK30669 1,000,000.00 996,881.34 01/20/20260.55009/10/2021 923,280.00 Aaa3130AKN85 629
0.493FEDERAL HOME LOAN BANK30671 1,000,000.00 1,000,000.00 09/30/20240.50009/30/2021 979,600.00 Aaa3130AP4R3 152
0.814FEDERAL HOME LOAN BANK30673 1,000,000.00 1,000,000.00 12/30/20250.82509/30/2021 930,050.00 Aaa3130AP4S1 608
0.986FEDERAL HOME LOAN BANK30674 1,000,000.00 1,000,000.00 09/30/20261.00009/30/2021 905,660.00 Aaa3130AP6D2 882
1.110FEDERAL HOME LOAN BANK30675 1,000,000.00 1,000,000.00 09/29/20261.12509/29/2021 908,550.00 Aaa3130APCH6 881
1.110FEDERAL HOME LOAN BANK30676 1,000,000.00 1,000,000.00 10/28/20261.25010/28/2021 911,760.00 Aaa3130APHA6 910
1.184FEDERAL HOME LOAN BANK30678 1,000,000.00 1,000,000.00 10/26/20261.20010/26/2021 907,620.00 Aaa3130APHT5 908
1.134FEDERAL HOME LOAN BANK30679 1,000,000.00 1,000,000.00 10/28/20261.15010/28/2021 906,270.00 Aaa3130APGP4 910
0.710FEDERAL HOME LOAN BANK30684 1,000,000.00 999,707.21 10/28/20240.66011/08/2021 977,570.00 Aaa3130APJ22 180
1.479FEDERAL HOME LOAN BANK30685 1,000,000.00 1,000,000.00 11/25/20261.50011/30/2021 912,030.00 Aaa3130APWE1 938
0.986FEDERAL HOME LOAN BANK30686 1,000,000.00 1,000,000.00 05/22/20251.00011/22/2021 958,380.00 Aaa3130APVB8 386
1.134FEDERAL HOME LOAN BANK30688 1,000,000.00 1,000,000.00 05/23/20251.15011/23/2021 959,800.00 Aaa3130APXP5 387
1.627FEDERAL HOME LOAN BANK30694 1,000,000.00 1,000,000.00 12/30/20261.65012/30/2021 910,390.00 Aaa3130AQBE2 973
1.085FEDERAL HOME LOAN BANK30695 1,000,000.00 1,000,000.00 09/30/20241.10012/30/2021 982,490.00 Aaa3130AQBH5 152
1.381FEDERAL HOME LOAN BANK30701 1,000,000.00 1,000,000.00 12/30/20261.40012/30/2021 904,230.00 Aaa3130AQET6 973 Portfolio CITY
AP
Run Date: 06/04/2024 - 14:25 PM (PRF_PM2) 7.3.11
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YTM
360
Par Value Book Value
Maturity
Date
Stated
RateMarket Value
April 30, 2024
Portfolio Details - Investments
Average
BalanceIssuer
Portfolio Management
CITY OF SAN BERNARDINO
Days to
Maturity
Moody'sCUSIP Investment #
Purchase
Date
Federal Agency Issues - Coupon
0.641FEDERAL HOME LOAN MORTGAGE CRP30581 1,000,000.00 1,000,000.00 06/30/20250.65006/30/2020 948,540.00 Aaa3134GVT99 425
0.444FEDERAL HOME LOAN MORTGAGE CRP30584 1,000,000.00 1,000,000.00 07/22/20240.45007/22/2020 988,420.00 Aaa3134GWCB0 82
0.404FEDERAL HOME LOAN MORTGAGE CRP30594 1,000,000.00 1,000,000.00 05/13/20240.41008/13/2020 998,340.00 Aaa3134GWHR0 12
0.839FEDERAL HOME LOAN MORTGAGE CRP30615 1,000,000.00 997,575.19 12/23/20250.70003/24/2021 930,050.00 Aaa3134GXHD9 601
0.691FEDERAL HOME LOAN MORTGAGE CRP30663 500,000.00 499,487.80 09/15/20250.62508/19/2021 470,160.00 Aaa3134GWB70 502
0.670FARMER MAC30650 1,500,000.00 1,499,570.83 04/28/20250.65006/23/2021 1,436,655.00 Aaa31422BYS3 362
1.105FARMER MAC30690 1,000,000.00 995,425.48 05/19/20250.67511/23/2021 952,890.00 Aaa31422BA26 383
0.888FARMER MAC30693 1,000,000.00 999,235.56 12/06/20240.77012/06/2021 973,510.00 Aaa31422XQV7 219
0.592FEDERAL NATIONAL MORTGAGE ASSO30585 1,000,000.00 1,000,000.00 07/22/20250.60007/22/2020 947,350.00 Aaa3136G4ZF3 447
0.641FEDERAL NATIONAL MORTGAGE ASSO30588 1,000,000.00 1,000,000.00 08/14/20250.65008/14/2020 943,680.00 Aaa3136G4C43 470
0.533FEDERAL NATIONAL MORTGAGE ASSO30600 1,000,000.00 1,000,000.00 10/27/20250.54010/27/2020 934,210.00 Aaa3136G45C3 544
0.542FEDERAL NATIONAL MORTGAGE ASSO30602 1,000,000.00 1,000,000.00 11/04/20250.55011/04/2020 933,520.00 Aaa3135GA2N0 552
1.177FEDERAL NATIONAL MORTGAGE ASSO30697 1,000,000.00 990,888.39 10/22/20250.56012/15/2021 935,080.00 Aaa3135G06B4 539 69,963,891.3765,992,395.0070,000,000.0069,962,884.13Subtotal and Average 0.827 520 Money Market Funds
0.010WELLS FARGO GOVT MONEY MARKET20002 171,343,564.49 171,343,564.49 0.01007/01/2022 171,343,564.49SYS20002 1 171,343,564.49171,343,564.49171,343,564.49164,841,969.55Subtotal and Average 0.010 1 Corporate Notes
0.466AMAZON.COM INC30627 1,000,000.00 999,993.17 05/12/20240.45005/13/2021 998,430.00 A1023135BW5 11
1.051AMAZON.COM INC30628 1,000,000.00 998,715.98 05/12/20261.00005/13/2021 919,880.00 A1023135BX3 741
0.919AMAZON.COM INC30680 1,000,000.00 998,590.12 06/03/20250.80010/19/2021 953,710.00 A1023135BQ8 398
1.800APPLE INC30561 1,000,000.00 999,913.44 09/11/20241.80001/24/2020 987,040.00 Aa1037833DM9 133
0.810BANK OF AMERICA CORPORATION30603 2,000,000.00 1,998,325.79 12/23/20250.85001/25/2021 1,843,960.00 A206048WK66 601
1.354BANK OF AMERICA CORPORATION30622 1,500,000.00 1,482,088.41 01/26/20260.75004/14/2021 1,382,145.00 A206048WK82 635
0.641BANK OF AMERICA CORPORATION30626 1,500,000.00 1,500,000.00 05/14/20240.65005/14/2021 1,497,120.00 A206048WM23 13
1.233BANK OF AMERICA CORPORATION30637 1,000,000.00 1,000,000.00 05/28/20261.25005/28/2021 909,010.00 A206048WM31 757
0.691CATERPILLAR FINL SERVICE30624 1,000,000.00 1,014,659.46 12/01/20243.25004/26/2021 987,210.00 A214912L6G1 214
0.846CATERPILLAR FINL SERVICE30660 1,625,000.00 1,626,229.07 03/02/20260.90008/09/2021 1,500,525.00 A214913R2K2 670
1.003JOHN DEERE CAPITAL CORP30648 1,000,000.00 1,000,680.89 06/17/20261.05006/17/2021 915,570.00 A224422EVR7 777
1.277JOHN DEERE CAPITAL CORP30677 1,000,000.00 1,000,122.50 10/13/20261.30010/13/2021 909,290.00 A224422EVW6 895
1.361JOHN DEERE CAPITAL CORP30687 1,000,000.00 993,212.78 06/17/20261.05011/17/2021 915,570.00 A224422EVR7 777
1.381GOLDMAN SACHS GROUP INC.30646 1,000,000.00 1,000,000.00 06/16/20261.40006/16/2021 904,890.00 A238150AG82 776
0.690GOLDMAN SACHS GROUP INC.30647 1,000,000.00 1,000,000.00 06/17/20240.70006/17/2021 986,670.00 A238150AGA7 47 Portfolio CITY
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YTM
360
Par Value Book Value
Maturity
Date
Stated
RateMarket Value
April 30, 2024
Portfolio Details - Investments
Average
BalanceIssuer
Portfolio Management
CITY OF SAN BERNARDINO
Days to
Maturity
Moody'sCUSIP Investment #
Purchase
Date
Corporate Notes
1.430GOLDMAN SACHS GROUP INC.30657 1,000,000.00 1,000,000.00 07/30/20261.45007/30/2021 905,770.00 A238150AGW9 820
0.986GOLDMAN SACHS GROUP INC.30666 1,000,000.00 1,000,000.00 08/30/20241.00008/30/2021 981,180.00 A238150AHG3 121
1.036J.P. MORGAN CHASE & CO30582 1,000,000.00 1,000,000.00 06/23/20251.05006/23/2020 937,990.00 A248128GU40 418
0.789J.P. MORGAN CHASE & CO30595 1,000,000.00 1,000,000.00 08/18/20250.80008/18/2020 924,330.00 A248128GV56 474
1.184J.P. MORGAN CHASE & CO30625 2,000,000.00 2,000,000.00 04/30/20261.20004/30/2021 1,835,740.00 A248128G3G3 729
1.134J.P. MORGAN CHASE & CO30661 1,000,000.00 1,000,000.00 08/17/20261.15008/17/2021 881,110.00 A248128G4R8 838
0.796TOYOTA MOTOR CREDIT CORP30607 1,000,000.00 999,899.52 10/16/20250.80002/24/2021 936,800.00 A189236THP3 533
0.623TOYOTA MOTOR CREDIT CORP30651 1,500,000.00 1,499,744.23 06/18/20240.50006/23/2021 1,490,340.00 A189236TJH9 48
1.086UNITEDHEALTH GROUP INC30629 1,000,000.00 1,000,973.21 05/15/20261.15005/20/2021 920,370.00 A391324PEC2 744
0.969WAL-MART STORES NOTE30670 1,000,000.00 1,001,569.33 09/17/20261.05009/17/2021 911,410.00 Aa2931142ER0 869 29,114,717.9027,336,060.0029,125,000.0029,115,054.78Subtotal and Average 1.009 519 Supranationals
0.434INTL BK RECON & DEVELOPMENT30609 1,500,000.00 1,512,487.30 01/15/20251.62502/26/2021 1,460,880.00 Aaa459058HT3 259
0.555INTL BK RECON & DEVELOPMENT30635 1,000,000.00 1,000,597.07 04/22/20250.62505/27/2021 955,580.00 Aaa459058JB0 356
0.829INTL BK RECON & DEVELOPMENT30667 1,000,000.00 996,695.10 02/10/20260.65008/31/2021 922,130.00 Aaa459058JS3 650
0.642INTL FINANCE CORP30631 1,000,000.00 1,000,000.00 05/15/20260.75005/28/2021 931,160.00 Aaa45950VPY6 744 4,509,779.474,269,750.004,500,000.004,510,428.25Subtotal and Average 0.594 474 349,474,672.30 356,183,327.11 0.307 153350,111,408.34 356,146,715.85Total and Average Portfolio CITY
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YTM
360
Par Value Book Value
Stated
RateMarket Value
April 30, 2024
Portfolio Details - Cash
Average
BalanceIssuer
Portfolio Management
CITY OF SAN BERNARDINO
Days to
Maturity
Moody'sCUSIP Investment #
Purchase
Date
Passbook/Checking Accounts
0.000WELLS FARGO BANK10002 656,352.00 656,352.0007/01/2022 656,352.00SYS10002 1
0.00 349,474,672.30 356,839,679.11 0.307 153
1 696,355.44
40,003.44
696,355.44
40,003.44
Subtotal
Accrued Interest at PurchaseAverage Balance
350,807,763.78 356,843,071.29Total Cash and Investments Portfolio CITY
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Stated
Rate
Transaction
Date
April 1, 2024 through April 30, 2024
Activity By Type
Balance
Portfolio Management
CITY OF SAN BERNARDINO
CUSIP Investment # Issuer
Purchases
or Deposits
Redemptions
or Withdrawals
State Local Agency Investment Fund (Monthly Summary)
LOCAL AGENCY INVESTMENT FUND10001 413,546.840.203 0.00SYS LOCAL AGENCY INVESTMENT FUND10003 434,530.600.203 0.00SYS10003
0.00 80,220,762.62Subtotal 848,077.44
Certificates of Deposit
COMENITY CAPITAL BANK80052 0.002.750 04/15/2024 249,000.0020033AU61 249,000.00 994,000.00Subtotal 0.00
Managed Pool Accounts (Monthly Summary)
0.00Subtotal
Federal Agency Issues - Coupon
69,963,891.37Subtotal
Money Market Funds (Monthly Summary)
WELLS FARGO GOVT MONEY MARKET20002 18,472,911.860.010 11,747,123.99SYS20002 11,747,123.99 171,343,564.49Subtotal 18,472,911.86
Passbook/Checking Accounts (Monthly Summary)
WELLS FARGO BANK10002 36,683,900.13 36,030,089.13SYS10002 36,030,089.13 0.00Subtotal 36,683,900.13
Corporate Notes
29,114,717.90Subtotal
Supranationals
4,509,779.47Subtotal
356,146,715.85Total 48,026,213.1256,004,889.43
Portfolio CITY
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April 2023 through April 2024
Activity Summary
Month
Portfolio Management
End Year
Number of
Securities
Total
Invested
360
Equivalent
365
Equivalent
Managed
Pool
Rate
Average
Term
Average
Days to Maturity
CITY OF SAN BERNARDINO
Number
of Investments
Purchased
Number
of Investments
Redeemed
Yield to Maturity
330,318,187.39April 2023 122 542 2880.371 0.376 0.203 0 0 354,101,086.74May 2023 122 502 2580.342 0.347 0.203 0 1 353,263,726.34June 2023 121 503 2490.343 0.347 0.203 0 0 324,159,293.07July 2023 121 549 2600.373 0.378 0.203 0 0 326,234,899.82August 2023 121 531 2480.357 0.362 0.203 0 3 321,937,855.76September 2023 118 538 2400.362 0.367 0.203 0 0 323,041,925.84October 2023 118 533 2290.360 0.365 0.203 0 1 320,178,429.38November 2023 117 534 2200.362 0.368 0.203 0 1 327,063,582.50December 2023 116 516 2050.348 0.353 0.203 0 3 342,446,651.22January 2024 113 489 1860.327 0.331 0.203 0 2 342,540,656.88February 2024 111 487 1770.324 0.329 0.203 0 1 348,821,805.89March 2024 110 472 1650.315 0.320 0.203 0 3 356,146,715.85April 2024 107 461 1530.307 0.312 0.203 0 1 Average 336,173,447.44 0.346% 0.350% 0.203 0 1 512 221117 Portfolio CITY
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April 30, 2024
Interest Earnings Summary
Month EndingApril 30 Fiscal Year To Date
Portfolio Management
CITY OF SAN BERNARDINO
CD/Coupon/Discount Investments:
87,500.78Interest Collected
Plus Accrued Interest at End of Period
Less Accrued Interest at Beginning of Period
349,976.02
( 359,216.25)
788,275.41
387,053.20
( 345,277.88)
Less Accrued Interest at Purchase During Period ( 0.00) ( 0.00) Interest Earned during Period
Adjusted by Premiums and Discounts
Adjusted by Capital Gains or Losses
Earnings during Periods
78,260.55
44.65 0.00
830,050.73
-73.84
193.40
78,305.20 830,170.29
Pass Through Securities:
0.00Interest Collected
Plus Accrued Interest at End of Period
Less Accrued Interest at Beginning of Period
0.00 ( 0.00)
0.00 0.00
( 0.00)
Less Accrued Interest at Purchase During Period ( 0.00) ( 0.00) Interest Earned during Period
Adjusted by Premiums and Discounts
Adjusted by Capital Gains or Losses
Earnings during Periods
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
Cash/Checking Accounts:
1,550,749.54Interest Collected
Plus Accrued Interest at End of Period
Less Accrued Interest at Beginning of Period
-126,365.23
( 1,409,696.56)
9,588,559.56
-126,365.23
( 1,670,835.84)
Interest Earned during Period 14,687.75 7,791,358.49
Total Interest Earned during Period
Total Adjustments from Premiums and Discounts
Total Capital Gains or Losses
Total Earnings during Period
92,948.30
44.65 0.00
8,621,409.22
-73.84
193.40
92,992.95 8,621,528.78
Portfolio CITY
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CITY OF
SAN BERNARDINO
Investment Policy
Fiscal Year 2023-24
Adopted August 2, 2023
Barbara Whitehorn
Agency Director of Administrative Services
C. Jeannie Fortune
Deputy Director of Finance
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Exhibit A
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I. PURPOSE
To establish guidelines for the prudent investment of public funds in a manner that will protect City funds, meet daily cash flow expenditures, and comply with all federal, state, and local laws and ordinances governing the investment of public funds.
II. POLICY & ADOPTION
t shall be the policy of the City of San Bernardino to annually review and adopt an Investment Policy by resolution of the City Council. This Policy applies to all financial assets and funds held by the City of San Bernardino and the Successor Agency to the San Bernardino Redevelopment Agency. The funds covered by this policy include:
*General Fund
*Special Revenue Funds
*Capital Project Funds
*Proprietary Funds
*Other funds that may be created
Any modifications to the Policy must be approved by the City Council.
III. PROCEDURES
The Director of Finance shall annually review the City’s Investment Policy, and incorporate any changes in state law, recommendations from the City’s Investment Advisor, recommendations from the various national and state organizations of municipal finance officers, or other changes recommended by City staff. The revised Investment Policy shall be presented to the Finance Committee and the City Council for review and approval. (A) Responsibilities
No person may engage in investment activities except as provided under the terms of this Policy and the procedures established by the Director of Finance.
1. Responsibilities of the City Council
The City Council shall annually consider and adopt a written Investment Policy.
As provided in this Policy, the Council shall receive monthly Investment Reports.
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Exhibit A
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2. Responsibilities of the Director of Finance
The Director of Finance is appointed by and serves at the pleasure of the City Manager and is subject to his/her direction and supervision. The Director of Finance is charged with responsibility for the conduct of all Finance Department operations. The City Charter places the “City Treasurer” responsibilities amongst the duties of the Director of Finance. That individual is charged with responsibility for carrying out all investment actions. He/she may delegate the day-to-day investment activities to their designee(s) but not the responsibility for the overall investment program. If authorized by the City Council, the Director of Finance may also utilize the services of an external investment advisor to assist with the investment program.
The Director of Finance, through supporting staff members, is responsible to manage all public funds and securities belonging to or under the control of the City and the Successor Agency, including the deposit and investment of those funds in accordance with principles of sound treasury management and applicable laws and ordinances. Appropriate internal controls designed to ensure that assets of the City are protected from loss, theft, or misuse, including but not limited to separation of duties and multiple approvers for transactions, shall be maintained at all times in order to safeguard the City’s assets.
3. Responsibilities of the City’s Investment Advisor (if applicable) The City may engage in the services of outside professionals for evaluation and advice regarding the City’s investment program. An authorized Investment Advisor may provide investment management services, which may also include facilitating trade executions under the direction of the Director of Finance or designee. Any Investment Advisor shall be registered by the Securities and Exchange Commission and licensed to do business in the State of California. An authorized Investment Advisor shall invest the City’s funds in investments that are in compliance with this policy and provide accurate and timely reports of its investment activities to City staff. The Investment Advisor shall never take possession of the City’s funds or assets.
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Exhibit A
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4. Internal Controls
The Director of Finance is responsible for establishing and maintaining an internal control structure designed to ensure that the assets of the City are protected from loss, theft, fraud or misuse.
The City’s external independent auditing firm shall perform an annual analysis and review of internal controls, account activity and compliance with policies and procedures.
(B) Prudent Investor Rule
The standard of prudence to be used by the Director of Finance shall be the “prudent investor” standard. This shall be applied in the context of managing an overall portfolio.
The “Prudent Investor Rule” provides, pursuant to California Government Code Section 53600.3, that investments shall be made with judgment and care—under circumstances then prevailing—which persons of prudence, discretion and intelligence exercise in the management of their own affairs, not for speculation, but for investment, considering the probable safety of their capital as well as the probable income to be derived. The Director of Finance and any designee of the Director of Finance, as investment officers acting in accordance with written procedures and the investment policy and exercising due diligence, shall be relieved of personal responsibility for an individual security’s credit risk or market price changes, provided deviations from expectations are reported to the City Council in a timely fashion and appropriate action is taken to control adverse developments.
(C) Ethics and Conflicts of Interest
In addition to state and local statutes relating to conflicts of interest, all persons involved in the investment process shall refrain from personal business activity that conflicts with proper execution of the investment program or impairs their ability to make impartial investment decisions. Employees and investment officers are required to annually file applicable financial disclosures as required for “public officials who manage public investments” by the Fair Political Practices Commission (FPPC) and are subject to California law relative to conflicts of interest.
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Exhibit A
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(D) Level of Investment
The City strives to maintain the level of investment of all investable cash as near to 100 percent as possible through current and projected cash flow management.
The Director of Finance shall maintain a system to monitor and forecast revenues and expenditures so that City funds can be invested to the fullest extent possible while providing sufficient liquidity to meet the City’s reasonably anticipated cash flow requirements. Maturities of investments will be selected to provide necessary liquidity, manage interest rate risk, and optimize earnings. Because of inherent difficulties in accurately forecasting cash flow requirements, a portion of the portfolio should be continuously invested in readily available funds. (E) Investment Objectives
The City seeks safety and liquidity in all of its investments followed by yield. Safety, liquidity, and yield are defined as follows:
1.Safety. Safety of principal is the foremost objective of the investment program. Investments shall be undertaken in a manner that seeks to ensure the preservation of capital in the overall portfolio.
2. Liquidity. The investment portfolio shall remain sufficiently liquid to meet operating requirements that may be reasonably anticipated. This is accomplished by structuring the portfolio so that securities mature concurrent with cash needs to meet anticipated demands.
3. Yield. The investment portfolio shall be designed with the objective of attaining a market rate of return, taking into account the investment risk constraints and liquidity needs. Return on investment is of secondary importance compared to the safety and liquidity objectives described above.
(F) Allowable Investments
The investments listed in this Policy are authorized investments pursuant to Sections 53601 and 53635 of the California Government Code and are authorized investments for the City subject, however, to the restrictions set forth in Section “K” of this Investment Policy. In the event that an apparent discrepancy is found between this Policy and the Government Code, the more restrictive parameters will take precedence.
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(G) Collateralization
If collateral is required for a particular investment type, it will be provided in compliance with California Government Code requirements. (H) Investment Pools/Mutual Funds
Prior to investing in any pooled investment program (e.g., LAIF, money market funds), the Director of Finance will review the program’s documentation (e.g., investment policy, policies for participation, fees) to determine the appropriateness of the pool for City funds. Whenever the City has funds invested in a pooled investment program, the Director of Finance should periodically review the pool’s investment holdings. The review shall, at a minimum, obtain the following information:
•A description of eligible investment securities, and a written statement of investment policy and objectives.
•A description of interest calculations and how it is distributed, and how gains and losses are treated.
•A description of how the securities are safeguarded (including the settlement processes), and how often the securities are priced and the program audited.
•A description of who may invest in the program, how often, and what size of deposits and withdrawals are allowed.
•A schedule for receiving statements and portfolio listings. •A description of how the pool/fund utilizes reserves, retained earnings, etc.
•A fee schedule, including when and how fees are assessed. •The eligibility of the pool/fund to invest in bond proceeds and special district funds, and a description of its practices
(I) Diversification
The City shall diversify the investments within the portfolio to avoid incurring unreasonable risks inherent in over-investing in specific instruments, individual financial institutions, or maturities. To promote diversification, no more than 5% of the portfolio may be invested in the securities of any one issuer, regardless of security type; excluding U.S. Treasuries, federal agencies, supranationals, and pooled investments such as LAIF, money market funds, or local government investment pools.
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(J) Maximum Maturities
For those investment types for which this Policy does not specify a maturity limit, no individual investment shall exceed a maturity of five years from the date of purchase unless the City Council has granted express authority to make that investment either specifically or as a part of an investment program approved by the City Council no less than three months prior to the investment. The weighted average duration of the investment portfolio shall not exceed 3.0 years. (K) Authorized Investments of the City
The following types of investments are authorized by this Policy:
1. U.S. Treasury Instruments. United States Treasury notes, bonds, bills, or certificates of indebtedness, or those for which the faith and credit of the United States are pledged for the payment of principal and interest. There is no limitation as to the percentage of the City’s portfolio that may be invested in this category. The maximum maturity for this investment is five years from the time of purchase.
2.State of California’s Local Agency Investment Fund (LAIF). A State of California-managed investment pool. The maximum amount invested in this category may not exceed the limit set by LAIF for operating accounts.
For 2023 that deposit limit is $75 million.
3.Local Government Investment Pools (“LGIP”). Shares of beneficial interest issued by joint powers authority organized pursuant to Section 6509.7 that invests in the securities and obligations authorized in Government Code (e.g. Cal Trust). The City will limit investments to LGIPs that seek to maintain a stable net asset value. There is no limitation as to the percentage of the City’s portfolio that may be invested in this category.
4.Municipal Bonds. Registered state warrants or treasury notes or bonds of this state, including bonds payable solely out of the revenues from a revenue-producing property owned, controlled, or operated by the state or by a department, board, agency, or authority of the state.
Registered treasury notes or bonds of any of the other 49 states in addition to California, including bonds payable solely out of the revenues from a revenue-producing property owned, controlled, or operated by a state or by a department, board, agency, or authority of any of the other 49 states, in addition to California.
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Bonds, notes, warrants, or other evidences of indebtedness of a local agency within this state, including bonds payable solely out of the revenues from a revenue-producing property owned, controlled, or operated by the local agency, or by a department, board, agency, or authority of the local agency.
Purchases are limited to securities rated in a rating category of “A” (long- term) or “A-1” (short-term) or their equivalents or better by a Nationally Recognized Statistical Rating Organization (NRSRO). A maximum of 30% the City’s portfolio may be invested in this category. The maximum maturity for this investment is five years from the time of purchase.
5.Federal Agency Securities. Federal agency or United States government- sponsored enterprise obligations, participations, or other instruments, including those issued by or fully guaranteed as to principal and interest by federal agencies or United States government-sponsored enterprises.
There is no limitation as to the percentage of the City’s portfolio that may be invested in this category. The maximum maturity for this investment is five years from the time of purchase.
6.Negotiable Certificates of Deposit. Negotiable certificates of deposit issued by a nationally or state-chartered bank, a savings association or a federal association, a state or federal credit union, or by a federally licensed or state-licensed branch of a foreign bank. Securities in this category shall be limited to the maximum amount covered by federal deposit insurance currently set at $250,000. A maximum of 30% of the City’s portfolio may be invested in this category. The maximum maturity for this investment is five years from the time of purchase.
7.Commercial Paper. Commercial paper of “prime” quality of the highest ranking or of the highest letter and number rating as provided for by a NRSRO. The entity that issues the commercial paper shall meet all of the following conditions in either paragraph (1) or (2):
(1) The entity meets the following criteria: (A) Is organized and operating in the United States as a general corporation; (B) Has total assets in excess of five hundred million dollars
($500,000,000), and (C) Has debt other than commercial paper, if any, that is rated in a rating category of “A” or its equivalent or better by an NRSRO.
(2) The entity meets the following criteria: (A) Is organized within the United States as a special purpose corporation, trust, or limited liability company, (B) Has program-wide credit enhancements
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Exhibit A
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including, but not limited to, overcollateralization, letters of credit, or a surety bond, and (C) Has commercial paper that is rated “A-1” or better, or the equivalent, by an NRSRO.
Purchases are limited to securities that have a maximum maturity of 270 days. A maximum of 25% the City’s portfolio may be invested in this category with a maximum of 5% per issuer.
8. Corporate or Medium-Term Notes. Corporate or medium-term notes, defined as all corporate and depository institution debt securities with a maximum remaining maturity of five years or less, issued by corporations organized and operating within the United States or by depository institutions licensed by the United States or any state and operating within the United States. Purchases are limited to securities rated in a rating category of “A” or its equivalent or better by an NRSRO. A maximum of 30% the City’s portfolio may be invested in this category with a maximum of 5% per issuer.
9. Money Market Funds (“MMF”). Purchases are restricted to Government Money Market Funds. Furthermore, these Money Market Funds must have met either of the following criteria: (A) Attained the highest ranking or the highest letter and numerical rating provided by not less than two NRSROs, or (B) Retained an investment advisor with not less than five years’ experience and registered or exempt from registration with the SEC, with assets under management in excess of five hundred million dollars ($500,000,000). A maximum of 20% of the City’s portfolio may be invested in this category.
10. Supranational Obligations. United States dollar denominated senior unsecured unsubordinated obligations issued or unconditionally guaranteed by the International Bank for Reconstruction and Development, International Finance Corporation, or Inter-American Development Bank, with a maximum remaining maturity of five years or less, and eligible for purchase and sale within the United States.
Investments under this subdivision shall be rated in a rating category of “AA” or its equivalent or better by a NRSRO. A maximum of 10% the City’s portfolio may be invested in this category with a maximum of 5% per issuer. State law limits the percentage to 30% of the portfolio.
11.Bankers Acceptances. Bankers’ acceptances are short-term debt instruments issued by a company that is guaranteed by a commercial bank.
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Exhibit A
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Bankers Acceptances are limited to institutions with short-term debt obligations of A-1 or higher and have long term debt obligations rated “A” or higher, or the equivalent by a NRSRO. The maturity shall not exceed 180 days and no more than 30 percent of the total portfolio may be invested in banker’s acceptances and no more than 5% per issuer.
City of San Bernardino Authorized Investment Policy Table Investment Type Maximum Term Maximum % of
Portfolio
Maximum per
Issuer
Minimum
Rating
US Treasury
Obligations 5 Years NONE NONE NONE
Local Agency
Investment Fund
(LAIF)
N/A
The City may invest
up to the maximum
amount permitted by
California state law.
N/A NONE
Joint Powers/Local
Government
Investment Pool
N/A NONE N/A NONE
Municipal Debt 5 Years 30% A1, A
Federal Agency
Obligations 5 Years NONE NONE NONE
Certificate of
Deposits
5 Years 30% NONE
Securities in this
category shall be
limited to the
maximum amount
covered by federal
deposit insurance.
Commercial Paper 270 Days 25% 5% A1/P1, A
Medium
Term/Corporate
Notes
5 Years 30% 5% A
Money Market
Mutual Funds N/A 20% NONE AAA
Supranational
Obligations (IBRD,
IFC, IDB)
5 Years 10% 5% M
Banker’s
Acceptances 180 Days 30% 5% A1, A
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Exhibit A
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(L) Prohibited Investments
Furthermore, the City will not invest in inverse floaters, range notes, mortgage- derived, interest-only strips, or any security that could result in zero interest accrual if held to maturity. In order to anticipate market changes and provide a level of security for all funds, the collateralization level will 100% of market value for Certificate of Deposits and 102% for reverse purchase agreements or principal and accrued interest. Collateral will always be held by an independent third party with whom the entity has a current custodial relationship (M) Performance Standards
The investment portfolio shall be managed with the objective of obtaining a market-average rate of return during budgetary and economic cycles, considering the City’s investment risk constraints and the cash flow needs.
Investment return is a consideration only after the core investment portfolio tenets of safety and liquidity have been met. The Director of Finance will adopt a benchmark which best approximates the composition and weighted average maturity of the City’s portfolio. The City will monitor the City’s portfolio yield against the US Treasury Constant Maturity and the performance yield presented by LAIF. However, the benchmark will be used only as a reference tool and does not infer that the portfolio will be managed in an attempt to attain or exceed the stated benchmark. Benchmarks may change over time based on changes in market conditions or cash flow requirements. The selected performance benchmarks shall be representative of the City’s overall investment objectives and liquidity requirements.
(N) Investment Reporting
The Director of Finance shall submit to the City Council, on a monthly basis, a report summarizing the individual transactions executed within the month. The Director of Finance shall submit to the City Council on a quarterly basis a report summarizing the status of the current investment portfolio and the individual transactions executed over the last quarter. The report shall be prepared in a manner which shall allow the City Council to ascertain whether investment activities during the reporting period have conformed to the Investment Policy.
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Exhibit A
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The report will include the following elements:
•Type of investment
•Institution/Issuer
•Purchase Date
•Date of maturity
•Amount of deposit or cost of the investment
•Face value of the investment
•Current market value of securities and source of valuation •Rate of interest
•Interest earnings
•Statement relating the report to its compliance with the Statement of Investment Policy or the manner in which the portfolio is not in compliance •Statement on availability of funds to meet the next six month’s obligations •Percentage of Portfolio by Investment Type
•Days to Maturity for all Investments
•Comparative report on Monthly Investment Balances & Interest Yields •Monthly transactions
(O) Portfolio Review
The Director of Finance shall continually monitor portfolio performance to ensure that the securities in the portfolio are in compliance with this Policy. The Director of Finance shall report any issues of material non-compliance in the next monthly Investment Report. Percentage holding limits and diversification requirements listed in this Policy apply at the time a security is purchased. If a percentage holding limit or diversification requirement is exceeded due to a subsequent change in the portfolio, it is not a compliance violation, but no additional securities may be purchased in that category or for that issuer until the holdings are back under the Policy limits. Credit ratings, where shown, specify the minimum credit rating category required at purchase. In the event a security held by the City is subject to a credit rating change that brings it below the minimum credit ratings specified in this Policy, the Director of Finance will notify the City Council of the change in the next monthly Investment Report. The course of action to be followed will then be decided on a case-by-case basis, considering such factors as the reason for the change, prognosis for recovery or further rating downgrades, and the market price of the security. If a security is determined to be out of compliance with this Policy due to a subsequent change in this Policy or the Government Code, it may be held to maturity unless there is a requirement that the security be sold.
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Exhibit A
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(P) Debt Proceeds
Debt proceeds and bond reserve funds are to be invested in accordance with their respective bond indenture. If the indenture is silent as to the permitted investments, the bond proceeds will be invested in the securities permitted by this Policy. Notwithstanding the other provisions of this Policy, the percentage limitations listed elsewhere in this Policy do not apply to bond proceeds and bond proceeds may be invested beyond five years if the maturities of such investments do not exceed the expected use of the funds, the investments are deemed prudent in the opinion of the Director of Finance, and the investments are not prohibited by the applicable bond documents. Tax and Revenue Anticipation Notes or other temporary financing proceeds shall not be invested for a term that exceeds the term of the debt.
(Q) Safekeeping
To protect against potential losses by collapse of individual securities dealers, all deliverable securities owned by the City, including collateral on repurchase agreements, shall be held in safekeeping by a third party bank trust department acting as agent for the City under the terms of a custody agreement executed by the bank and by the City. All deliverable securities will be received and delivered using standard delivery-versus-payment procedures.
(R) Qualified Financial Institutions and Broker/Dealers The Director of Finance shall maintain a list of approved financial institutions authorized to provide investment related services to the City. In addition, the City shall maintain a list of approved security broker/dealers selected by conducting a process of due diligence. These may include ‘primary’ dealers or regional dealers that qualify under Securities and Exchange Commission (“SEC”) Rule 15C3-1 (uniform net capital rule). A copy of this Investment Policy shall be sent annually to all firms with which the City executes investments.
Additionally, all financial institutions and broker/dealers who desire to become qualified bidders of investment transactions must provide the Director of Finance with the following:
•Audited Financial Statements
•Proof of State Registration
•Copy of most recently filed Financial Industry Regulated Authority (FINRA) documentation
•Certification of having read the Investment Policy and depository contracts of the City of San Bernardino
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Exhibit A
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The Director of Finance will review the existing list of either qualified broker/dealers or qualified bidders for investment transactions on an annual basis. At the discretion of the Director of Finance, and with the due diligence noted above, add or delete either broker/dealers or qualified bidders. (S) Continuing Education and Training
To ensure the highest level of professional standards for the execution of the investment program, investment staff responsible for the day-to-day management of the portfolio are encouraged to engage in continuing education in the areas of cash and investment management.
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Exhibit A
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GLOSSARY
AGENCIES: Federal agency securities.
BANKERS’ ACCEPTANCE (BA): A draft or bill or exchange accepted by a bank or trust company.
The accepting institution guarantees payment of the bill, as well as the issuer. The drafts are drawn on a bank by an exporter or importer to obtain funds to pay for specific merchandise. An acceptance is a high grade negotiable instrument.
BENCHMARK: A comparative base for measuring the performance or risk tolerance of the investment portfolio. A benchmark should represent a close correlation to the level of risk and the average duration of the portfolio’s investments.
BROKER: A broker brings buyers and sellers together for a commission. He/she does not take a position.
CERTIFICATE OF DEPOSIT (CD): A time deposit with a specific maturity evidenced by a certificate.
Large-denomination CD’s are typically negotiable.
COLLATERAL: Securities, evidence of deposit or other property, which a borrower pledges to secure repayment of a loan. Also refers to securities pledged by a bank to secure deposits of public monies.
COMMERCIAL PAPER: Short term unsecured promissory note issued by a corporation (including limited liability companies) to raise working capital. These negotiable instruments are purchased at a discount to par value or at par value with interest bearing. Commercial paper is issued by corporations such as General Motors Acceptance Corporation, IBM, Bank of America, etc.
COUPON: a) The annual rate of interest that a bond’s issuer promises to pay the bondholder on the bond’s face value. b) A certificate attached to a bond evidencing interest due on a payment date.
DEALER: A dealer, as opposed to a broker, acts as a principal in all transactions; buying and selling for his/her own account.
DELIVERY VERSUS PAYMENT: There are two methods of delivery of securities: delivery versus payment and delivery versus receipt. Delivery versus payment is delivery of securities with an
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Exhibit A
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exchange of money for the securities. Delivery versus receipt is delivery of securities with an exchange of a signed receipt for the securities.
DIVERSIFICATION: Dividing investment funds among a variety of securities offering independent returns.
FEDERAL CREDIT AGENCIES: Agencies of the Federal government set up to supply credit to various classes of institutions (e.g. S&L’s, Small business firms, students, farmers, farm cooperatives, and exporters).
FEDERAL DEPOSIT INSURANCE CORPORATION (FDIC): A Federal agency that insures bank deposits, currently up to $250,000 per deposit.
LIQUIDITY: A liquid asset is one that can be converted easily and rapidly into cash without a substantial loss of value. In the money market, a security is said to be liquid if the spread between bid and asked prices is narrow and a reasonable size can be done at those quotes.
LOCAL GOVERNMENT INVESTMENT POOL (LGIP): The aggregate of all funds from political subdivisions that are placed in the custody of the State Treasurer for investment and reinvestment.
MARKET VALUE: The price at which a security is trading and could presumably be purchased or sold.
MATURITY: The date upon which the principal or stated value of an investment becomes due and payable.
MONEY MARKET: The market in which short-term debt instruments (bills, commercial paper, bankers’ acceptances, etc.) are issued and traded.
NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION (“NRSRO”): Firms that review and assess the creditworthiness of an obligor as an entity or with respect to specific securities or money market instruments and express their opinion in the form of a letter rating. A credit rating agency may apply to the SEC for registration as a nationally recognized statistical rating organization (“NRSRO”). The primary rating agencies are Standard & Poor’s Corporation, Moody’s Investor Services, Inc. and Fitch, Inc.
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Exhibit A
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NEGOTIABLE CERTIFICATES OF DEPOSIT: Generally, short-term debt instrument that usually pays interest and is issued by a bank, savings or federal association, state or federal credit union, or state-licensed branch of a foreign bank. Negotiable CDs are traded in a·secondary market and are payable upon order to the bearer or initial depositor (investor). Negotiable CDs are insured by FDIC up to $250,000, but they are not collateralized beyond that amount.
NON-NEGOTIABLE CERTIFICATES OF DEPOSIT: CDs that carry a penalty if redeemed prior to maturity. Non-negotiable CDs issued by banks and savings and loans are insured by the Federal Deposit Insurance Corporation up to the amount of $250,000, including principal and interest.
Amounts deposited above this amount may be secured with other forms of collateral through an agreement between the investor and the issuer. Collateral may include other securities including Treasuries or agency securities such as those issued by the Federal National Mortgage Association.
PORTFOLIO: Collection of securities held by an investor.
PRIMARY DEALER: A group of government securities dealers who submit daily reports of market activity and positions and monthly financial statements to the Federal Reserve Bank of New York and are subject to its informal oversight. Primary dealers include Securities and Exchange Commission (SEC)-registered securities broker/dealers, banks and a few unregulated firms.
PRUDENT PERSON RULE: An investment standard. In some states, the law requires that a fiduciary, such as a trustee, may invest money only in a list of securities selected by the custody state—the so-called “legal list”. In other states, the trustee may invest in a security if it is one that would be bought by a prudent person of discretion and intelligence who is seeking a reasonable income and preservation of capital.
RATE OF RETURN: The yield obtainable on a security based on its purchase price or its current market price. This may be the amortized yield to maturity; on a bond, the current income return.
SAFEKEEPING: The service provided by banks and trust companies for clients when the bank or trust company stores the securities, takes in coupon payments, and redeems issues at maturity.
SECURITIES & EXCHANGE COMMISSION: Agency created by Congress to protect investors in securities transactions by administering securities legislation.
SEC RULE 150-1: See “Uniform Net Capital Rule”.
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Exhibit A
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SUPRANATIONAL SECURITIES: United States dollar denominated senior unsecured unsubordinated obligations issued or unconditionally guaranteed by the International Bank for Reconstruction and Development (IBRD), International Finance Corporation (IFC), or Inter- American Development Bank (IDB), with a maximum remaining maturity of five years or less, and eligible for purchase and sale within the United States. Investments under this subdivision shall be rated “AA” or better by an NRSRO and shall not exceed 10 percent of the agency’s moneys that may be invested pursuant to this section.
TREASURY BILLS: A non-interest bearing discount security issued by the U.S. Treasury to finance the national debt. Most bills are issued to mature in three months, six months, or one year.
TREASURY BOND: Long-term U.S. Treasury securities having initial maturities of more than 10 years.
TREASURY NOTES: Intermediate-term coupon bearing U.S. Treasury having initial maturities of from one year to ten years.
UNIFORM NET CAPITAL RULE: Securities and Exchange Commission requirement that member firms as well as nonmember broker/dealers in securities maintain a maximum ratio of indebtedness to liquid capital of 15 to 1; also called net capital rule and net capital ratio.
Indebtedness covers all money owed to a firm, including margin loans and commitments to purchase securities, one reason new public issues are spread among members of underwriting syndicates. Liquid capital includes cash and assets easily converted into cash.
YIELD: The rate of annual income return on an investment, expressed as a percentage. (a) Income Yield is obtained by dividing the current dollar income by the current market price for the security. (b) Net Yield or Yield to Maturity is the current income yield minus any premium above par or plus any discount from par in purchase price, with the adjustment spread over the period from the date of purchase to the date of maturity of the bond.
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7 8
CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: July 3, 2024
To: Honorable Mayor and City Council Members
From: Rochelle Clayton, Acting City Manager
C. Jeannie Fortune, Interim Director of Finance & Management Services
Department: Finance
Subject: Approval of Commercial and Payroll Disbursements (All Wards)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California approve the commercial and payroll disbursements for May 2024.
Executive Summary
This action is to approve the commercial and payroll disbursements. This is regular business of the Mayor and City Council ensuring that the City pays vendors, employees, and the retirement system timely, accurately and with full transparency for the community.
Background
Completed commercial and payroll disbursement registers are submitted to the Mayor and City Council for approval. This happens on a regular basis, typically every meeting for the most recently completed disbursement registers.
The detailed warrant registers are available on the City Website and are updated weekly by the Finance Department. The registers may be accessed by copying the following link into an internet browser:
https://sbcity.org/city_hall/finance/warrant_register
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Discussion
2021-2025 Strategic Targets and Goals
Approval of the noted check and EFT registers for commercial and payroll disbursements align with Key Target No. 1: Improved Operational & Financial Capacity by creating a framework for spending decisions.
Fiscal Impact
Amounts noted in the disbursement registers have no further fiscal impact. Amounts were paid consistent with existing budget authorization and no further budgetary impact is required.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino approve the commercial and payroll disbursements for May 2024.
Attachments
Attachment 1 Payroll Summary Report for May 2024 Attachment 2 Commercial checks & Payroll Register #54 Attachment 3 Commercial checks & Payroll Register #55 Attachment 4 Commercial checks & Payroll Register #56 Attachment 5 Commercial checks & Payroll Register #57 Attachment 6 Commercial checks & Payroll Register #58 Attachment 7 Commercial checks & Payroll Register #59 Attachment 8 Commercial EFT Registers #1625-1634 Attachment 9 Commercial EFT Registers #1635-1640 Gross Payroll
Bi-Weekly for May 9, 2024 $3,162,325.73
Bi-Weekly for May 23, 2024 $3,200,627.52
Monthly for May 15, 2024 $26,950.00
Total Payroll Demands: $6,389,903.25 The following check registers are being presented for approval:
May 2, 2024 2023/24 (Register #54) $1,005,743.56
May 9, 2024 2023/24 (Register #55) $1,917,718.87
May 16, 2024 2023/24 (Register #56) $1,795,048.05
May 23, 2024 2023/24 (Register #57) $636,267.13
May 30, 2024 2023/24 (Register #58) $1,713,751.25
May 30, 2024 2023/24 (Register #59) $14,744.28 Total commercial check demands: $7,083,273.14 The following Electronic Funds Transfer (EFT) registers presented for approval:
April 3, 2024-April 25, 2024 2023/24 (Register #1625-1634) $2,428,404.23 May 1, 2024-May 9, 2024 2023/24 (Register #1635-1640) $1,760,885.12 Total commercial EFT demands: $4,189,289.35
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Ward:
All Wards
Synopsis of Previous Council Actions:
N/A
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: July 3, 2024
To: Honorable Mayor and City Council Members
From: Rochelle Clayton, Acting City Manager;
Andrea Russell, Director of Human Resources & Risk
Management
Department: Human Resources & Risk Management
Subject: Professional Services Agreements for Workers'
Compensation Legal Services (All Wards)
Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize the City Manager or designee to execute professional services agreements with the Hanna, Brophy, MacLean, McAleer & Jensen, Black & Rose and Goldman, Magdalin & Straatsma for Workers' Compensation Legal Services.
Executive Summary
Staff prepared a Request for Proposal (RFP) for workers’ compensation legal services which garnered four responses. The proposals were evaluated, and Hanna, Brophy, MacLean, McAleer & Jensen (Hanna Brophy), Black & Rose, and Goldman, Magdalin & Straatsma (GMS) were selected as the most qualified respondents.
Background
On September 5, 2018, the Mayor and City Council authorized the City Manager to execute the reinstated professional services agreement between Goldman, Magdalin and Krikes (GMK), LLP and the City of San Bernardino in the amount of $300,000 for workers’ compensation legal services.
Because the City’s current contract with GMS, formerly GMK, is due to sunset and all contract extensions had been exhausted, Staff released an RFP that garnered four proposals from the respondents listed below. The proposals were evaluated by staff from the Human Resources & Risk Management Department. The quality of services to be provided were considered in determining the most qualified respondent.
RFP Respondent Group Score
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Hanna, Brophy, MacLean, McAleer &
Jensen (Hanna Brophy)
105
Black & Rose 73
Goldman, Magdalin & Straatsma
(GMS)
97 Mullen & Filippi 72
Discussion
As the City continues to grow and face increasingly complex legal issues in the workers‘ compensation realm, it has become beneficial to utilize a workers’ compensation legal panel as opposed to working with only one firm. A legal panel is a group of law firms who are approved to provide legal services to the City. Using a panel of workers’ compensation law firms can help the City get the best possible service and value for money from external legal counsel. A panel arrangement will ensure that each firm demonstrates their value and purpose. In addition, the perceived competitive nature could lead to faster resolution of claims, decreasing overall costs in legal fees.
The proposed agreements with Hanna Brophy, Black & Rose and GMS will support the City by providing strategic workers’ compensation claims handling to reduce exposure and expenses efficiently and effectively.
The scope of services will include:
•Review and/prepare reports, resolutions, orders, agreements, forms, and documents required for Workers’ Compensation matters.
•Research and interpret Workers’ Compensation laws, court decisions and other legal authorities in order to prepare recommendations.
•Provide clear and concise legal advice and consultation on an as needed basis as requested and required.
•Prepare, review and revise staff documents, including, but not limited to initiation of memorandums concerning legal issues on Workers’ Compensation Claims and recommended negotiated claim settlements.
•Attend City Council closed session meetings to present settlement recommendations on claims.
•Make appearances at Workers’ Compensation Appeals Board (WCAB). •Provide related Workers’ Compensation training to City staff. •Provide expert knowledge in temporary disability, permanent disability, indemnity and rating, industrial disability/causation, medical consultation, rehabilitation Voucher, Agreed Medical Examiner (AME), Panel Qualified Medical Examiner (PQME) and case settlement.
Hanna Brophy
With over 80 years of experience, Hanna Brophy specializes in representing employers and insurance carriers throughout California, particularly in the defense of public entities. Having established 15 offices across California, they are well positioned to provide local representation at every Workers' Compensation Appeals
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Board and Office of Administrative Hearings venue in the state. Their team of 130 attorneys, who represent approximately 250 governmental entities, insurance companies, self-insured employers, and third-party administrators, possesses extensive experience in managing the defense of public entity claims.
Hanna Brophy has a proven track record of success, demonstrated by their expertise in litigating the unique issues associated with claims filed by governmental employees and peace officers. They are litigation specialists and expert trial attorneys who prioritize early settlement negotiations while staying ahead of shifting industry trends.
They will offer legal representation to the City of San Bernardino for workers' compensation claims, industrial disability retirement claims (including safety officers), Labor Code §132(a) claims, serious and willful misconduct claims, and disability retirement. In addition, they will provide advisory legal opinions, training, and education on workers' compensation and industrial disability retirement topics.
Black & Rose
For over 20 years, Black and Rose has been representing employers and carriers at WCABs across the state. In performing its legal services, their attorneys have represented cities, counties, and numerous other public entities. Black and Rose will focus on the reduction of workers‘ compensation claims and the costs associated therewith so as to increase the funds available for the City.
The attorneys designated to the City’s litigation team are experts in temporary disability/causation medical consultation, SJDB vouchers, AME’s, PQME’s, and case settlement. The attorneys will conduct discovery which may include depositions of claimants, interviews with witnesses, cross-examination of and consultation with medical experts, permanent disability rating of medical reports, organizing and reviewing video surveillance in connection with a fraud investigation, and making appearances and taking cases and liens to trial on behalf of the City.
As a part of the Workers Compensation Legal Services program, the attorneys of Black and Rose will work closely with City contacts and the third-party administrator to control and reduce costs associated with workers’ compensation claims. The attorneys will investigate claims so as to reduce medical treatment costs, minimize the outflow of resources, reduce exposure for future medical costs and permanent disability, and reduce reserves through case closures.
GMS
Since its founding in 1999, GMS has represented employers, businesses, public entities and insurance companies in California and the United States. The expertise gained by GMS in representing and partnering with their public agency clients have allowed them to identify the best workers’ compensation practices in the public agency sector.
GMS has demonstrated effective workers’ compensation legal services by strategizing
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cost savings opportunities through claim settlements and comprehensive claim management review techniques.
They will provide detailed reviews of each case to devise a strategic plan to fit the claim and organizational goals while reducing the City’s exposure in the most professional, reasonable and expeditious manner with each claim. GMS Staff includes highly skilled, experienced and trained attorneys, including lien resolution specialists, in addition to experts in workers’ compensation law, subrogation, lien resolution, mediation, public entities and disability retirement
If approved, all agreements will begin July 1, 2024, through June 30, 2027, with an option for two, one-year extensions thereafter.
2021-2025 Strategic Targets and Goals
The proposed professional services agreements align with Goal No. 1: Financial Stability. Each firm will provide Workers’ Compensation legal services to the City which will help minimize risk and litigation exposure.
Fiscal Impact
There is no fiscal impact to the General Fund. There is sufficient budget in FY24/25 for this item.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize the City Manager or designee to execute professional services agreements with the Hanna, Brophy, MacLean, McAleer & Jensen, Black & Rose and Goldman, Magdalin & Straatsma, LLP for Workers' Compensation Legal Services.
Attachments
Attachment 1 – Exhibit A - Professional Services Agreements - Hanna, Brophy, MacLean, McAleer & Jensen
Attachment 2 – Exhibit B - Professional Services Agreements - Black & Rose
Attachment 3 – Exhibit C - Professional Services Agreements - Goldman, Magdalin & Straatsma
Ward:
All Wards
Synopsis of Previous Council Actions:
On September 8, 2015, the Mayor and City Council adopted Resolution No. 2015-198 authorizing the execution of a professional services agreement between Goldman, Magdalin and Krikes (GMK), LLP, and the City of San Bernardino in the amount of $300,000 for workers’ compensation legal services.
On September 5, 2018, the Mayor and City Council authorized the City Manager to
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execute the amended and restated professional services agreement between Goldman, Magdalin and Krikes (GMK), LLP and the City of San Bernardino in the amount of $300,000 for workers’ compensation legal services.
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EXHIBIT A
1 PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND HANNA, BROPHY, MACLEAN, MCALEER AND JENSEN, LLP
This Agreement is made and entered into as of July 1, 2024 by and between the City of San Bernardino, a charter city and municipal corporation organized and operating under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, CA 92401 (“City”), and Hanna, Brophy, MacLean, McAleer and Jensen, a Limited Liability Partnership with its principal place of business at 180 Grand Avenue, Suite 720, Oakland, CA 94612 (hereinafter referred to as “Consultant”). City and Consultant are hereinafter sometimes referred to individually as “Party” and collectively as the “Parties.”
RECITALS
A. City is a public agency of the State of California and is in need of professional services for the following project:
Provide workers’ compensation legal services, utilizing creative and effective litigation strategies to resolve claims in a timely manner with minimal exposure to the City. (hereinafter referred to as “the Project”).
B. Consultant is duly licensed and has the necessary qualifications to provide such services.
C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
AGREEMENT
1. Incorporation of Recitals. The recitals above are true and correct and are hereby incorporated herein by this reference.
2. Services. Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.”
3. Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel identified in their proposal. Consultant warrants that Consultant is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant’s performance of this Agreement. Consultant further represents that no City employee will provide any services under this Agreement.
4. Compensation.
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2 a. Subject to paragraph 4(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “A.” b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of one hundred thousand ($100,000) annually. This amount is to cover all related costs, and the City will not pay any additional fees for printing expenses. Consultant may submit invoices to City for approval. Said invoice shall be based on the total of all Consultant’s services which have been completed to City’s sole satisfaction. City shall pay Consultant’s invoice within forty-five (45) days from the date City receives said invoice. The invoice shall describe in detail the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as “Additional Services” and shall identify the number of the authorized change order, where applicable, on all invoices.
5. Additional Work. If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
a. Adjustments. No retroactive price adjustments will be considered.
Additionally, no price increases will be permitted during the first year of this Agreement, unless agreed to by City and Consultant in writing.
6. Term. This Agreement shall commence on the Effective Date and continue through June 30, 2027, with the option of two (2), one (1) year extensions, unless the Agreement is previously terminated as provided for herein (“Term”).
7. Maintenance of Records; Audits.
a. Records of Consultant’s services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City for inspection and/or audit at mutually convenient times for a period of four (4) years from the Effective Date.
b. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City.
8. Time of Performance. Consultant shall perform its services in a prompt and timely manner and shall commence performance upon receipt of written notice from the
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3 City to proceed. Consultant shall complete the services required hereunder within Term.
9. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Consultant’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety. b. Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Delays shall not entitle Consultant to any additional compensation regardless of the Party responsible for the delay.
c. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
10. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements.
b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies.
c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.
11. Standard of Care. Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. Consultant’s performance shall conform in all material
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4 respects to the requirements of the Scope of Work.
12. Conflicts of Interest. During the term of this Agreement, Consultant shall at all times maintain a duty of loyalty and a fiduciary duty to the City and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the City.
13. City Business Certificate. Consultant shall, prior to execution of this Agreement, obtain and maintain during the term of this Agreement a valid business registration certificate from the City pursuant to Title 5 of the City’s Municipal Code and any and all other licenses, permits, qualifications, insurance, and approvals of whatever nature that are legally required of Consultant to practice his/her profession, skill, or business.
14. Assignment and Subconsultant. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.
15. Independent Consultant. Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. Any personnel performing the work governed by this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Agreement and as required by law.
Consultant shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance.
16. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Additional Insured
The City of San Bernardino, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Consultant’s and its subconsultants’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
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5 b. Commercial General Liability
(i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City.
(ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following:
Insurance Services Office Commercial General Liability
coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX)
exclusion deleted
(7) Contractual Liability with respect to this Contract (8) Broad Form Property Damage
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(v) The policy shall give City, its elected and appointed officials, officers, employees, agents, and City-designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured.
c. Automobile Liability
(i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury
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6 and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. (ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(iii) The policy shall give City, its elected and appointed officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. d. Workers’ Compensation/Employer’s Liability
(i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section. e. Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. f. Privacy/Network Security (Cyber)
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7 At all times during the performance of the work under this Agreement, the Consultant shall maintain privacy/network security insurance for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and the (4) introduction, implantation or spread of malicious software code, in a form and with insurance companies acceptable to the City.
g. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/$4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $1,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
Cyber Liability $1,000,000 per occurrence and
aggregate
h. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. i. Policy Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of the premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver
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8 renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to provide waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. j. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or
companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
k. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance
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9 by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including, but not limited to, the provisions concerning indemnification. (ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. l. Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.
17. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with counsel reasonably approved by the City), indemnify and hold the City, its elected and appointed officials, officers, employees, agents, and authorized volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project, or this Agreement, including without limitation the payment of all damages, expert witness fees, attorneys’ fees and other related costs and expenses. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, the City Council, members of the City Council, its employees, or authorized volunteers. Consultant’s indemnification obligation shall survive the expiration or earlier termination of this Agreement.
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10 b. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant in the performance of the services or this Agreement, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
18. California Labor Code Requirements. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws, if applicable. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements.
19. Verification of Employment Eligibility. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same.
20. Laws and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the
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11 County of San Bernardino, State of California.
21. Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days’ written notice to Consultant.
In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.
22. 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’s Office in enforcing this Agreement on behalf of the City shall be considered as “attorneys’ fees” for the purposes of this Agreement.
23. Responsibility for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City’s representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant’s professional services occurs, Consultant shall, at no cost to City, provide all other services necessary to rectify and correct the matter to the sole satisfaction of the City and to participate in any meeting required with regard to the correction.
24. Prohibited Employment. Consultant shall not employ any current employee of City to perform the work under this Agreement while this Agreement is in effect.
25. Costs. Each Party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations
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12 hereunder except as expressly provided herein.
26. Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.
27. Organization. Consultant shall assign David Thomas as Project Manager.
The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.
28. Limitation of Agreement. This Agreement is limited to and includes only the work included in the Project described above.
29. Notice. Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to the following addresses and shall be effective upon receipt thereof:
CITY:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Andrea Russell, Director of
Human Resources &
Risk Management
With Copy To:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
CONSULTANT:
Hanna, Brophy, MacLean, McAleer &
Jensen, LLP
180 Grand Avenue, Suite 720
Oakland, CA 94612
Attn: David Thomas, Office Managing
Partner
30. Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.
31. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
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13 32. Entire Agreement. This Agreement, including Exhibit “A,” represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each Party acknowledges that no representations, inducements, promises, or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This is an integrated Agreement.
33. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect.
34. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.
35. Non-Waiver. The delay or failure of either Party at any time to require performance or compliance by the other Party of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance.
No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
36. Time of Essence. Time is of the essence for each and every provision of this Agreement.
37. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain, or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
38. Amendments. Only a writing executed by all of the Parties hereto or their respective successors and assigns may amend this Agreement.
39. City’s Right to Employ Other Consultants. City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.
40. Prohibited Interests. Consultant maintains and warrants that it has neither employed nor retained any company or person, other than a bona fide employee working
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14 solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
41. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one single Agreement.
42. Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by doing so, the Parties hereto are formally bound to the provisions of this Agreement.
43. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature.
[SIGNATURES ON FOLLOWING PAGE]
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15 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND HANNA, BROPHY, MACLEAN, MCALEER AND JENSEN, LLP
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF SAN BERNARDINO
APPROVED BY:
Rochelle Clayton
Acting City Manager
ATTESTED BY:
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
CONSULTANT
Signature
David Thomas
Name
Office Managing Partner _____
Title
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16 EXHIBIT A
SCOPE OF WORK
WORKERS’ COMPENSATION LEGAL SERVICES
The scope of work includes completion of the services and deliverables listed below.
WORKERS’ COMPENSTION LEGAL SERVICES
I.PURPOSE
The City of San Bernardino’s Human Resources Department ("City'') desires to retain a panel of attorneys who specialize in Workers’ Compensation litigation.
II.SPECIFICATIONS
A. The City would like to contract with “Best-in-Class” law firms to provide workers’ compensation litigation services. Vendors should demonstrate creative and effective litigation strategies, has expertise in temporary disability/causation medical consultation, rehabilitation/supplemental job displacement benefits voucher (SJDB), Agreed Medical Examiner (AME), Panel Qualified Medical Examiner (PQME), and case settlement.
1. Case Referrals
New case referrals will be assigned by the City’s Risk Management Division. Within five (5) business days upon referral of new cases, the Consultant shall send an email to the City’s Risk Management Division and the TPA acknowledging receipt of the file, confirming the designated attorney(s) assigned to the file, and disclosure of any conflicts of interest. The case acknowledgment email represents a non-billable event.
If available at the time of a new case referral, City’s Risk Management Division and/or the TPA transmittal shall include:
•All Division of Workers’ Compensation notices and filings •Personnel file
•Wage statement
•Job description or job analysis
•Claimant’s occupation, department, and supervisor contact information •Summary of claim and status
•Medical reports for the injury
•Investigative reports
•Claim payment history (medical and indemnity)
•Legal notices or filings, including TPA responses
•Case file notes
•Specific issues requiring defense
•Related information from the City’s Risk Management Division regarding issues
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17 that may impact strategy
2. Reporting Requirements
The retained Consultant(s) shall observe the following guidelines for reporting and communication:
•Reports shall be as brief.
•Timely and pertinent status reports shall address only new development following a brief history.
•Reports shall point out key information contained in any attachments with an explanation of its significance to the case. Voluminous records only need be summarized, unless requested by the City’s Risk Management Division, the TPA or the City’s General Counsel.
•Email is the preferred method of communication.
•
Following the case acknowledgement, reporting requirements shall include:
•Initial Report - due within thirty (30) days of case referral Report contents must include:
oAnalysis - A written analysis of the case which provides the initial evaluation of the case and identifies the strengths and weaknesses of the case. It shall include:
a. Summary of the claim.
b. Legal opinion of compensability, whether the case should be tried or settled.
c. Pertinent statutes and/or case law.
d. An estimated settlement range or verdict range.
oInvestigation - The Consultant(s) shall identify any additional information needed to establish defenses in the action. To the extent possible, this investigation and information gathering shall be done by the TPA. oStrategy – Consultant(s) shall define the strategy to be used in each claim including:
a. The anticipated course of action to be taken.
b. The factors or elements which must be proved or disproved and the necessary discovery to establish these defenses or proof. c. The timing of discovery, filing of motions, negotiations, or other objectives.
d. The tactics to be used in defending the case and the advantages to be gained using these tactics.
e. If applicable, counsel will specifically address available defenses under California statutes.
•Litigation Budget - due with the Initial Report and with Status Reports oA litigation budget shall be provided with the initial report listing
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18 Consultant(s) best estimate for costs associated with those activities outlined in the initial report.
•Status Update – due bi-weekly
oConsultant(s) shall provide brief status updates to the City’s Risk Management Division bi-weekly to include the most up to date information pertaining to the case. Updates can be provided in written format, via an in-person or virtual meeting.
•Status Reports - due every ninety (90) days
oConsultant(s) shall provide concise status updates to the TPA and the City’s Risk Management Division whenever events change any fact, judgment or opinion bearing on the case. Status updates should be provided every ninety (90) days, even if there has been no activity. Reports should not repeat previously reported events. Reports shall include:
a. Discovery completed, including deposition summaries. b. Current evaluation of the case.
c. Current estimate of medical and indemnity exposure.
d. Settlement demand and offer, if any.
e. Significant discovery planned for the next three months to include recommended use of independent medical examinations,
utilization review, and expert medical advisors.
f. Suitability of dispositive motions.
g. Budget through current stage with explanation of budget deviations.
h. Other significant changes.
i. Timeline for resolution.
•Pre-Settlement Conference/Mediation Report - due twenty-one (21) days in advance
oConsultant(s) shall notify the TPA and the City’s Risk Management Division of a settlement conference, mediation or trial as soon as the date is set. Mediations may be attended by the City’s Risk Management Division who must be contacted reasonably in advance of scheduling a settlement conference or mediation to determine availability. oPre-mediation report to the City’s Risk Management Division and the TPA should include:
a. A brief synopsis of the case
b. Consultant(s) opinion as to the strengths and weaknesses of the case and associated exposure
c. Potential settlement range for the case
d. Consultant(s) opinion as to the outcome
e. Next steps should the case not settle
f. Updated litigation budget
•Pre-Hearing Report - due thirty (30) days before hearing
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19 oThirty (30) days prior to a hearing, Consultant(s) shall submit a detailed pre-hearing report to the City’s Risk Management Division and the TPA that should include an analysis of the issues, associated exposure, chances of prevailing, comments regarding jurisdiction and the assigned Judge of Compensation Claims, and possibility of resolving prior to a hearing. If resolution is possible, the Consultant(s) shall confer with the Consultant(s) Risk Management Division and the TPA to determine how the case can be reasonably resolved without unnecessary costs. •Post-Settlement Conference/Mediation/Hearing Report - due five (5) days after oFive (5) days post settlement conference, mediation or hearing, Consultant(s) shall submit a brief written summary or schedule a conference call with the TPA and the City’s Risk Management Division to discuss results and next steps.
3. General Litigation Guidelines
•Discovery
oThe method of discovery utilized shall be that which obtains the information required at the least cost and in the most efficient manner. The Consultant(s) shall not schedule depositions without first giving due consideration to the value of sworn or other recorded testimony in lieu of a deposition. Unless special circumstances exist, deposition transcripts other than that of the applicant shall not be ordered unless or until it is reasonably certain that the case will be tried, or they are needed for dispositive court filings such as motions for summary judgment. Decisions to proceed with discovery shall be made jointly by the Consultant(s), the City’s Risk Management Division and the TPA, considering the purpose, value of information sought, cost of proposed Discovery, and degree of potential for adverse consequences. Direct contact with the Departmental Employees shall be made with consent of and coordination through the City’s Risk Management Division.
•Use of Experts
oThe Consultant(s) must obtain authority and approval from the City’s Risk Management Division of all experts, including those retained to perform independent medical examinations or expert medical advisors, to assist with the defense of the case. Experts shall be retained by the Consultant(s) only after discussion with and approval of the City’s Risk Management Division and the TPA. The discussion shall include the objectives of retaining the expert, the expert’s qualifications and fees, the anticipated benefits, and a determination of the point in time when the expert’s use may be most effective.
•Settlements (Global)
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20 oIn all cases, the Consultant(s) shall provide realistic options including compromise and settlement, and identify which option it believes to be best, comment on the reasonableness of a settlement demand and recommend a response. The Consultant(s) shall obtain authority for, and approval of all settlement offers or advanced payments before they are submitted to claimant’s counsel, the Division of Workers’ Compensation and/or its Appeals Board, or mediator, in accordance with City’s Settlement Guidelines. Settlement demands made by claimant or claimant’s counsel, and any counter offers, shall be communicated to the City’s Risk Management Division and the TPA immediately. The Consultant(s) is not authorized to act independently of any delegation of authority provided through the City’s Risk Management Division. The City’s Risk Management Division may consider settlement negotiations outside of formal mediations or settlement conferences but shall require up to thirty (30) days for the delegation of authority process for approval of settlement evaluations. oUpon case resolution, the Consultant(s) shall submit a brief final summary in an email to the City’s Risk Management Division and the TPA. This communication shall include copies of the signed settlement agreement, general release and resignation, settlement check due date with complete payable to and Tax ID information to include a copy of the claimant’s law firm’s W-9, along with any other documents or information that support resolution of an issue or the case in its entirety. Upon final conclusion and receipt of the settlement check, and approved settlement agreement, the Consultant(s) shall close its file and submit the final billing for each case in the next billing period.
•Multi-Forum, Fraudulent, and Overlapping Claims
oCoordination and sharing of information from litigated liability claims with the City’s Risk Management Division, the City’s general counsel and workers’ compensation attorneys are expected in cases where there is exposure to potential liability in other legal venues, such as EEOC claims, disability retirement program, workers’ compensation claims (overlapping), disability insurance, Medicare Set Aside, and Structured Settlement companies. The Consultant(s) is expected to work collaboratively with the City’s other defense counsel to develop strategies to resolve liabilities globally.
oThe Consultant(s) shall cooperate in the investigation of potentially fraudulent claims reported to the California Department of Insurance Fraud Division upon lawful request of this entity and in the recovery of Workers’ Compensation monies.
•Appeals, Continuances, Waivers
oThe Consultant(s) must obtain authority from the City’s Risk Management Division before filing a petition for reconsideration with the
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21 Appeals Board or filing a Writ of Review at the Appellate or Supreme Court level.
oThe Consultant(s) must obtain approval before waiving any rights of the City, such as third-party recovery, causes of action against a third party, restitution, settlement of liens and collateral benefits, such as the City’s health, dental, and leave benefits. Under no circumstances may the Consultant(s) make any agreement regarding retirement benefits. oThe Consultant(s) must coordinate requests for continuances or extensions of timelines or deadlines, other than routine discovery, in advance with the City’s Risk Management Division.
•Subrogation
oThe Consultant(s) and the City’s Risk Management Division shall consider the following factors in determining if subrogation shall be utilized and, if so, the strategy to be employed:
a. In consultation with the City’s Risk Management Division, an assessment of whether there are other business reasons or relationships which might affect a decision to subrogate; b. What the expected recovery amount is compared to the legal costs to affect such recovery;
c. The effect on potential recovery of third-party liability and comparative fault by employee and employer;
d. Legal action available to or taken by the injured party; e. The possibility of a statute of limitations defense; and f. The status and potential value of the workers’ compensation case.
oSettlement of third-party cases fall within the same authorization guidelines as all other workers’ compensation settlements. Non- workers’ compensation recoverable losses shall be considered, such as sick leave, Family Medical Leave Act (FMLA) salary continuation, property damage, and other insurance.
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1 PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND BLACK AND ROSE LLP
This Agreement is made and entered into as of July 1, 2024 by and between the City of San Bernardino, a charter city and municipal corporation organized and operating under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, CA 92401 (“City”), and Black and Rose, a Limited Liability Partnership with its principal place of business at 18301 Von Karman Avenue, Irvine, CA 92612 (hereinafter referred to as “Consultant”). City and Consultant are hereinafter sometimes referred to individually as “Party” and collectively as the “Parties.”
RECITALS
A. City is a public agency of the State of California and is in need of professional services for the following project:
Provide workers’ compensation legal services, utilizing creative and effective litigation strategies to resolve claims in a timely manner with minimal exposure to the City. (hereinafter referred to as “the Project”).
B. Consultant is duly licensed and has the necessary qualifications to provide such services.
C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
AGREEMENT
1. Incorporation of Recitals. The recitals above are true and correct and are hereby incorporated herein by this reference.
2. Services. Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.”
3. Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel identified in their proposal. Consultant warrants that Consultant is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant’s performance of this Agreement. Consultant further represents that no City employee will provide any services under this Agreement.
4. Compensation.
a. Subject to paragraph 4(b) below, the City shall pay for such services
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2 in accordance with the Schedule of Charges set forth in Exhibit “A.” b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of one hundred thousand ($100,000) annually. This amount is to cover all related costs, and the City will not pay any additional fees for printing expenses. Consultant may submit invoices to City for approval. Said invoice shall be based on the total of all Consultant’s services which have been completed to City’s sole satisfaction. City shall pay Consultant’s invoice within forty-five (45) days from the date City receives said invoice. The invoice shall describe in detail the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as “Additional Services” and shall identify the number of the authorized change order, where applicable, on all invoices.
5. Additional Work. If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
a. Adjustments. No retroactive price adjustments will be considered.
Additionally, no price increases will be permitted during the first year of this Agreement, unless agreed to by City and Consultant in writing.
6. Term. This Agreement shall commence on the Effective Date and continue through June 30, 2027, with the option of two (2), one (1) year extensions, unless the Agreement is previously terminated as provided for herein (“Term”).
7. Maintenance of Records; Audits.
a. Records of Consultant’s services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City for inspection and/or audit at mutually convenient times for a period of four (4) years from the Effective Date.
b. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City.
8. Time of Performance. Consultant shall perform its services in a prompt and timely manner and shall commence performance upon receipt of written notice from the City to proceed. Consultant shall complete the services required hereunder within Term.
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3 9. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Consultant’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety. b. Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Delays shall not entitle Consultant to any additional compensation regardless of the Party responsible for the delay.
c. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
10. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements.
b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies.
c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.
11. Standard of Care. Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. Consultant’s performance shall conform in all material respects to the requirements of the Scope of Work.
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4 12. Conflicts of Interest. During the term of this Agreement, Consultant shall at all times maintain a duty of loyalty and a fiduciary duty to the City and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the City.
13. City Business Certificate. Consultant shall, prior to execution of this Agreement, obtain and maintain during the term of this Agreement a valid business registration certificate from the City pursuant to Title 5 of the City’s Municipal Code and any and all other licenses, permits, qualifications, insurance, and approvals of whatever nature that are legally required of Consultant to practice his/her profession, skill, or business.
14. Assignment and Subconsultant. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.
15. Independent Consultant. Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. Any personnel performing the work governed by this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Agreement and as required by law.
Consultant shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance.
16. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Additional Insured
The City of San Bernardino, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Consultant’s and its subconsultants’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents. b. Commercial General Liability
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5 (i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City.
(ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following:
Insurance Services Office Commercial General Liability
coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX)
exclusion deleted
(7) Contractual Liability with respect to this Contract (8) Broad Form Property Damage
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(v) The policy shall give City, its elected and appointed officials, officers, employees, agents, and City-designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured.
c. Automobile Liability
(i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
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6 (ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(iii) The policy shall give City, its elected and appointed officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. d. Workers’ Compensation/Employer’s Liability
(i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section. e. Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. f. Privacy/Network Security (Cyber)
At all times during the performance of the work under this Agreement, the Consultant shall maintain privacy/network security insurance for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and the (4) introduction, implantation
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7 or spread of malicious software code, in a form and with insurance companies acceptable to the City.
g. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/$4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $1,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
Cyber Liability $1,000,000 per occurrence and
aggregate
h. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. i. Policy Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of the premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
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8 (ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to provide waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. j. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or
companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
k. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including, but not limited to, the provisions concerning indemnification.
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9 (ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. l. Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.
17. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with counsel reasonably approved by the City), indemnify and hold the City, its elected and appointed officials, officers, employees, agents, and authorized volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project, or this Agreement, including without limitation the payment of all damages, expert witness fees, attorneys’ fees and other related costs and expenses. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, the City Council, members of the City Council, its employees, or authorized volunteers. Consultant’s indemnification obligation shall survive the expiration or earlier termination of this Agreement. b. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation
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10 shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant in the performance of the services or this Agreement, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
18. California Labor Code Requirements. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws, if applicable. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements.
19. Verification of Employment Eligibility. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same.
20. Laws and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of San Bernardino, State of California.
21. Termination or Abandonment
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11 a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days’ written notice to Consultant.
In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.
22. 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’s Office in enforcing this Agreement on behalf of the City shall be considered as “attorneys’ fees” for the purposes of this Agreement.
23. Responsibility for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City’s representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant’s professional services occurs, Consultant shall, at no cost to City, provide all other services necessary to rectify and correct the matter to the sole satisfaction of the City and to participate in any meeting required with regard to the correction.
24. Prohibited Employment. Consultant shall not employ any current employee of City to perform the work under this Agreement while this Agreement is in effect.
25. Costs. Each Party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
26. Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and
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12 Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.
27. Organization. Consultant shall assign Carl Ilg as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.
28. Limitation of Agreement. This Agreement is limited to and includes only the work included in the Project described above.
29. Notice. Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to the following addresses and shall be effective upon receipt thereof:
CITY:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Andrea Russell, Director of
Human Resources &
Risk Management
With Copy To:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
CONSULTANT:
Black and Rose, LLP
8301 Von Karman Avenue, Ste. 300
Irvine, CA 92612
Attn: Carl Ilg, Partner
Attorney
30. Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.
31. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
32. Entire Agreement. This Agreement, including Exhibit “A,” represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding,
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13 promises or representations with respect to those matters covered hereunder. Each Party acknowledges that no representations, inducements, promises, or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This is an integrated Agreement.
33. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect.
34. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.
35. Non-Waiver. The delay or failure of either Party at any time to require performance or compliance by the other Party of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance.
No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
36. Time of Essence. Time is of the essence for each and every provision of this Agreement.
37. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain, or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
38. Amendments. Only a writing executed by all of the Parties hereto or their respective successors and assigns may amend this Agreement.
39. City’s Right to Employ Other Consultants. City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.
40. Prohibited Interests. Consultant maintains and warrants that it has neither employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of
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14 this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
41. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one single Agreement.
42. Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by doing so, the Parties hereto are formally bound to the provisions of this Agreement.
43. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature.
[SIGNATURES ON FOLLOWING PAGE]
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15 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND BLACK AND ROSE, LLP
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF SAN BERNARDINO
APPROVED BY:
Rochelle Clayton
Acting City Manager
ATTESTED BY:
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
CONSULTANT
Signature
Carl Ilg ___________
Name
Partner Attorney ___________
Title
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16 EXHIBIT A
SCOPE OF WORK
WORKERS’ COMPENSATION LEGAL SERVICES
The scope of work includes completion of the services and deliverables listed below.
WORKERS’ COMPENSTION LEGAL SERVICES
I.PURPOSE
The City of San Bernardino’s Human Resources Department ("City'') desires to retain a panel of attorneys who specialize in Workers’ Compensation litigation.
II.SPECIFICATIONS
A. The City would like to contract with “Best-in-Class” law firms to provide workers’ compensation litigation services. Vendors should demonstrate creative and effective litigation strategies, has expertise in temporary disability/causation medical consultation, rehabilitation/supplemental job displacement benefits voucher (SJDB), Agreed Medical Examiner (AME), Panel Qualified Medical Examiner (PQME), and case settlement.
1. Case Referrals
New case referrals will be assigned by the City’s Risk Management Division. Within five (5) business days upon referral of new cases, the Consultant shall send an email to the City’s Risk Management Division and the TPA acknowledging receipt of the file, confirming the designated attorney(s) assigned to the file, and disclosure of any conflicts of interest. The case acknowledgment email represents a non-billable event.
If available at the time of a new case referral, City’s Risk Management Division and/or the TPA transmittal shall include:
•All Division of Workers’ Compensation notices and filings •Personnel file
•Wage statement
•Job description or job analysis
•Claimant’s occupation, department, and supervisor contact information •Summary of claim and status
•Medical reports for the injury
•Investigative reports
•Claim payment history (medical and indemnity)
•Legal notices or filings, including TPA responses
•Case file notes
•Specific issues requiring defense
•Related information from the City’s Risk Management Division regarding issues that may impact strategy
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17 2. Reporting Requirements
The retained Consultant(s) shall observe the following guidelines for reporting and communication:
•Reports shall be as brief.
•Timely and pertinent status reports shall address only new development following a brief history.
•Reports shall point out key information contained in any attachments with an explanation of its significance to the case. Voluminous records only need be summarized, unless requested by the City’s Risk Management Division, the TPA or the City’s General Counsel.
•Email is the preferred method of communication.
•
Following the case acknowledgement, reporting requirements shall include:
•Initial Report - due within thirty (30) days of case referral Report contents must include:
oAnalysis - A written analysis of the case which provides the initial evaluation of the case and identifies the strengths and weaknesses of the case. It shall include:
a. Summary of the claim.
b. Legal opinion of compensability, whether the case should be tried or settled.
c. Pertinent statutes and/or case law.
d. An estimated settlement range or verdict range.
oInvestigation - The Consultant(s) shall identify any additional information needed to establish defenses in the action. To the extent possible, this investigation and information gathering shall be done by the TPA. oStrategy – Consultant(s) shall define the strategy to be used in each claim including:
a. The anticipated course of action to be taken.
b. The factors or elements which must be proved or disproved and the necessary discovery to establish these defenses or proof. c. The timing of discovery, filing of motions, negotiations, or other objectives.
d. The tactics to be used in defending the case and the advantages to be gained using these tactics.
e. If applicable, counsel will specifically address available defenses under California statutes.
•Litigation Budget - due with the Initial Report and with Status Reports oA litigation budget shall be provided with the initial report listing Consultant(s) best estimate for costs associated with those activities
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18 outlined in the initial report.
•Status Update – due bi-weekly
oConsultant(s) shall provide brief status updates to the City’s Risk Management Division bi-weekly to include the most up to date information pertaining to the case. Updates can be provided in written format, via an in-person or virtual meeting.
•Status Reports - due every ninety (90) days
oConsultant(s) shall provide concise status updates to the TPA and the City’s Risk Management Division whenever events change any fact, judgment or opinion bearing on the case. Status updates should be provided every ninety (90) days, even if there has been no activity. Reports should not repeat previously reported events. Reports shall include:
a. Discovery completed, including deposition summaries. b. Current evaluation of the case.
c. Current estimate of medical and indemnity exposure.
d. Settlement demand and offer, if any.
e. Significant discovery planned for the next three months to include recommended use of independent medical examinations,
utilization review, and expert medical advisors.
f. Suitability of dispositive motions.
g. Budget through current stage with explanation of budget deviations.
h. Other significant changes.
i. Timeline for resolution.
•Pre-Settlement Conference/Mediation Report - due twenty-one (21) days in advance
oConsultant(s) shall notify the TPA and the City’s Risk Management Division of a settlement conference, mediation or trial as soon as the date is set. Mediations may be attended by the City’s Risk Management Division who must be contacted reasonably in advance of scheduling a settlement conference or mediation to determine availability. oPre-mediation report to the City’s Risk Management Division and the TPA should include:
a. A brief synopsis of the case
b. Consultant(s) opinion as to the strengths and weaknesses of the case and associated exposure
c. Potential settlement range for the case
d. Consultant(s) opinion as to the outcome
e. Next steps should the case not settle
f. Updated litigation budget
•Pre-Hearing Report - due thirty (30) days before hearing oThirty (30) days prior to a hearing, Consultant(s) shall submit a detailed
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19 pre-hearing report to the City’s Risk Management Division and the TPA that should include an analysis of the issues, associated exposure, chances of prevailing, comments regarding jurisdiction and the assigned Judge of Compensation Claims, and possibility of resolving prior to a hearing. If resolution is possible, the Consultant(s) shall confer with the Consultant(s) Risk Management Division and the TPA to determine how the case can be reasonably resolved without unnecessary costs. •Post-Settlement Conference/Mediation/Hearing Report - due five (5) days after oFive (5) days post settlement conference, mediation or hearing, Consultant(s) shall submit a brief written summary or schedule a conference call with the TPA and the City’s Risk Management Division to discuss results and next steps.
3. General Litigation Guidelines
•Discovery
oThe method of discovery utilized shall be that which obtains the information required at the least cost and in the most efficient manner. The Consultant(s) shall not schedule depositions without first giving due consideration to the value of sworn or other recorded testimony in lieu of a deposition. Unless special circumstances exist, deposition transcripts other than that of the applicant shall not be ordered unless or until it is reasonably certain that the case will be tried, or they are needed for dispositive court filings such as motions for summary judgment. Decisions to proceed with discovery shall be made jointly by the Consultant(s), the City’s Risk Management Division and the TPA, considering the purpose, value of information sought, cost of proposed Discovery, and degree of potential for adverse consequences. Direct contact with the Departmental Employees shall be made with consent of and coordination through the City’s Risk Management Division.
•Use of Experts
oThe Consultant(s) must obtain authority and approval from the City’s Risk Management Division of all experts, including those retained to perform independent medical examinations or expert medical advisors, to assist with the defense of the case. Experts shall be retained by the Consultant(s) only after discussion with and approval of the City’s Risk Management Division and the TPA. The discussion shall include the objectives of retaining the expert, the expert’s qualifications and fees, the anticipated benefits, and a determination of the point in time when the expert’s use may be most effective.
•Settlements (Global)
oIn all cases, the Consultant(s) shall provide realistic options including
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20 compromise and settlement, and identify which option it believes to be best, comment on the reasonableness of a settlement demand and recommend a response. The Consultant(s) shall obtain authority for, and approval of all settlement offers or advanced payments before they are submitted to claimant’s counsel, the Division of Workers’ Compensation and/or its Appeals Board, or mediator, in accordance with City’s Settlement Guidelines. Settlement demands made by claimant or claimant’s counsel, and any counter offers, shall be communicated to the City’s Risk Management Division and the TPA immediately. The Consultant(s) is not authorized to act independently of any delegation of authority provided through the City’s Risk Management Division. The City’s Risk Management Division may consider settlement negotiations outside of formal mediations or settlement conferences but shall require up to thirty (30) days for the delegation of authority process for approval of settlement evaluations. oUpon case resolution, the Consultant(s) shall submit a brief final summary in an email to the City’s Risk Management Division and the TPA. This communication shall include copies of the signed settlement agreement, general release and resignation, settlement check due date with complete payable to and Tax ID information to include a copy of the claimant’s law firm’s W-9, along with any other documents or information that support resolution of an issue or the case in its entirety. Upon final conclusion and receipt of the settlement check, and approved settlement agreement, the Consultant(s) shall close its file and submit the final billing for each case in the next billing period.
•Multi-Forum, Fraudulent, and Overlapping Claims
oCoordination and sharing of information from litigated liability claims with the City’s Risk Management Division, the City’s general counsel and workers’ compensation attorneys are expected in cases where there is exposure to potential liability in other legal venues, such as EEOC claims, disability retirement program, workers’ compensation claims (overlapping), disability insurance, Medicare Set Aside, and Structured Settlement companies. The Consultant(s) is expected to work collaboratively with the City’s other defense counsel to develop strategies to resolve liabilities globally.
oThe Consultant(s) shall cooperate in the investigation of potentially fraudulent claims reported to the California Department of Insurance Fraud Division upon lawful request of this entity and in the recovery of Workers’ Compensation monies.
•Appeals, Continuances, Waivers
oThe Consultant(s) must obtain authority from the City’s Risk Management Division before filing a petition for reconsideration with the Appeals Board or filing a Writ of Review at the Appellate or Supreme
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21 Court level.
oThe Consultant(s) must obtain approval before waiving any rights of the City, such as third-party recovery, causes of action against a third party, restitution, settlement of liens and collateral benefits, such as the City’s health, dental, and leave benefits. Under no circumstances may the Consultant(s) make any agreement regarding retirement benefits. oThe Consultant(s) must coordinate requests for continuances or extensions of timelines or deadlines, other than routine discovery, in advance with the City’s Risk Management Division.
•Subrogation
oThe Consultant(s) and the City’s Risk Management Division shall consider the following factors in determining if subrogation shall be utilized and, if so, the strategy to be employed:
a. In consultation with the City’s Risk Management Division, an assessment of whether there are other business reasons or relationships which might affect a decision to subrogate; b. What the expected recovery amount is compared to the legal costs to affect such recovery;
c. The effect on potential recovery of third-party liability and comparative fault by employee and employer;
d. Legal action available to or taken by the injured party; e. The possibility of a statute of limitations defense; and f. The status and potential value of the workers’ compensation case.
oSettlement of third-party cases fall within the same authorization guidelines as all other workers’ compensation settlements. Non- workers’ compensation recoverable losses shall be considered, such as sick leave, Family Medical Leave Act (FMLA) salary continuation, property damage, and other insurance.
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EXHIBIT C
1 PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND GOLDMAN MAGDALIN STRAATSMA LLP
This Agreement is made and entered into as of July 1, 2024 by and between the City of San Bernardino, a charter city and municipal corporation organized and operating under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, CA 92401 (“City”), and Goldman Magdalin Straatsma, a Limited Liability Partnership with its principal place of business at One Pointe Drive, Suite 200, Brea, CA 92821 (hereinafter referred to as “Consultant”). City and Consultant are hereinafter sometimes referred to individually as “Party” and collectively as the “Parties.”
RECITALS
A. City is a public agency of the State of California and is in need of professional services for the following project:
Provide workers’ compensation legal services, utilizing creative and effective litigation strategies to resolve claims in a timely manner with minimal exposure to the City. (hereinafter referred to as “the Project”).
B. Consultant is duly licensed and has the necessary qualifications to provide such services.
C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
AGREEMENT
1. Incorporation of Recitals. The recitals above are true and correct and are hereby incorporated herein by this reference.
2. Services. Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A.”
3. Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel identified in their proposal. Consultant warrants that Consultant is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant’s performance of this Agreement. Consultant further represents that no City employee will provide any services under this Agreement.
4. Compensation.
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2 a. Subject to paragraph 4(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “A.” b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of two hundred sixty-five thousand dollars ($265,000) annually. This amount is to cover all related costs, and the City will not pay any additional fees for printing expenses. Consultant may submit invoices to City for approval. Said invoice shall be based on the total of all Consultant’s services which have been completed to City’s sole satisfaction. City shall pay Consultant’s invoice within forty- five (45) days from the date City receives said invoice. The invoice shall describe in detail the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as “Additional Services” and shall identify the number of the authorized change order, where applicable, on all invoices.
5. Additional Work. If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
a. Adjustments. No retroactive price adjustments will be considered.
Additionally, no price increases will be permitted during the first year of this Agreement, unless agreed to by City and Consultant in writing.
6. Term. This Agreement shall commence on the Effective Date and continue through June 30, 2027, with the option of two (2), one (1) year extensions, unless the Agreement is previously terminated as provided for herein (“Term”).
7. Maintenance of Records; Audits.
a. Records of Consultant’s services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City for inspection and/or audit at mutually convenient times for a period of four (4) years from the Effective Date.
b. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City.
8. Time of Performance. Consultant shall perform its services in a prompt and timely manner and shall commence performance upon receipt of written notice from the City to proceed. Consultant shall complete the services required hereunder within Term.
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3 9. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include a Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Consultant’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the services); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety. b. Should a Force Majeure Event occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Delays shall not entitle Consultant to any additional compensation regardless of the Party responsible for the delay.
c. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement.
10. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements.
b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies.
c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.
11. Standard of Care. Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions. Consultant’s performance shall conform in all material respects to the requirements of the Scope of Work.
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4 12. Conflicts of Interest. During the term of this Agreement, Consultant shall at all times maintain a duty of loyalty and a fiduciary duty to the City and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the City.
13. City Business Certificate. Consultant shall, prior to execution of this Agreement, obtain and maintain during the term of this Agreement a valid business registration certificate from the City pursuant to Title 5 of the City’s Municipal Code and any and all other licenses, permits, qualifications, insurance, and approvals of whatever nature that are legally required of Consultant to practice his/her profession, skill, or business.
14. Assignment and Subconsultant. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.
15. Independent Consultant. Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided. Any personnel performing the work governed by this Agreement on behalf of Consultant shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Agreement and as required by law.
Consultant shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance.
16. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Additional Insured
The City of San Bernardino, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Consultant’s and its subconsultants’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents. b. Commercial General Liability
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5 (i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City.
(ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following:
Insurance Services Office Commercial General Liability
coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX)
exclusion deleted
(7) Contractual Liability with respect to this Contract (8) Broad Form Property Damage
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(v) The policy shall give City, its elected and appointed officials, officers, employees, agents, and City-designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured.
c. Automobile Liability
(i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
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6 (ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(iii) The policy shall give City, its elected and appointed officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention. d. Workers’ Compensation/Employer’s Liability
(i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section. e. Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. f. Privacy/Network Security (Cyber)
At all times during the performance of the work under this Agreement, the Consultant shall maintain privacy/network security insurance for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and the (4) introduction, implantation
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7 or spread of malicious software code, in a form and with insurance companies acceptable to the City.
g. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/$4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $1,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
Cyber Liability $1,000,000 per occurrence and
aggregate
h. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. i. Policy Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of the premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
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8 (ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to provide waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. j. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or
companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
k. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including, but not limited to, the provisions concerning indemnification.
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9 (ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. (iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. l. Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.
17. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with counsel reasonably approved by the City), indemnify and hold the City, its elected and appointed officials, officers, employees, agents, and authorized volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project, or this Agreement, including without limitation the payment of all damages, expert witness fees, attorneys’ fees and other related costs and expenses. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, the City Council, members of the City Council, its employees, or authorized volunteers. Consultant’s indemnification obligation shall survive the expiration or earlier termination of this Agreement. b. If Consultant’s obligation to defend, indemnify, and/or hold harmless arises out of Consultant’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s indemnification obligation
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10 shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant in the performance of the services or this Agreement, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant’s liability for such claim, including the cost to defend, shall not exceed the Consultant’s proportionate percentage of fault.
18. California Labor Code Requirements. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws, if applicable. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1).
If the Services are being performed as part of an applicable “public works” or “maintenance” project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements.
19. Verification of Employment Eligibility. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same.
20. Laws and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of San Bernardino, State of California.
21. Termination or Abandonment
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11 a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days’ written notice to Consultant.
In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.
22. 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’s Office in enforcing this Agreement on behalf of the City shall be considered as “attorneys’ fees” for the purposes of this Agreement.
23. Responsibility for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City’s representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant’s professional services occurs, Consultant shall, at no cost to City, provide all other services necessary to rectify and correct the matter to the sole satisfaction of the City and to participate in any meeting required with regard to the correction.
24. Prohibited Employment. Consultant shall not employ any current employee of City to perform the work under this Agreement while this Agreement is in effect.
25. Costs. Each Party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
26. Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and
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12 Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.
27. Organization. Consultant shall assign Robert Choi as Project Manager.
The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.
28. Limitation of Agreement. This Agreement is limited to and includes only the work included in the Project described above.
29. Notice. Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to the following addresses and shall be effective upon receipt thereof:
CITY:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Andrea Russell, Director of
Human Resources &
Risk Management
With Copy To:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
CONSULTANT:
Goldman Magdalin Straatsma, LLP
One Pointe Drive, Ste. 200
Brea, CA 92821
Attn: Robert Choi, Managing Partner
30. Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.
31. Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
32. Entire Agreement. This Agreement, including Exhibit “A,” represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each
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13 Party acknowledges that no representations, inducements, promises, or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This is an integrated Agreement.
33. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect.
34. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void.
35. Non-Waiver. The delay or failure of either Party at any time to require performance or compliance by the other Party of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance.
No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
36. Time of Essence. Time is of the essence for each and every provision of this Agreement.
37. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain, or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
38. Amendments. Only a writing executed by all of the Parties hereto or their respective successors and assigns may amend this Agreement.
39. City’s Right to Employ Other Consultants. City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.
40. Prohibited Interests. Consultant maintains and warrants that it has neither employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to
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14 rescind this Agreement without liability. For the term of this Agreement, no official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
41. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one single Agreement.
42. Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by doing so, the Parties hereto are formally bound to the provisions of this Agreement.
43. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature.
[SIGNATURES ON FOLLOWING PAGE]
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15 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND GOLDMAN MAGDALIN STRAATSMA, LLP
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF SAN BERNARDINO
APPROVED BY:
Rochelle Clayton
Acting City Manager
ATTESTED BY:
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
CONSULTANT
Signature
Robert Choi _____
Name
Managing Partner ________________
Title
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16 EXHIBIT A
SCOPE OF WORK
WORKERS’ COMPENSATION LEGAL SERVICES
The scope of work includes completion of the services and deliverables listed below.
WORKERS’ COMPENSTION LEGAL SERVICES
I.PURPOSE
The City of San Bernardino’s Human Resources Department ("City'') desires to retain a panel of attorneys who specialize in Workers’ Compensation litigation.
II.SPECIFICATIONS
A. The City would like to contract with “Best-in-Class” law firms to provide workers’ compensation litigation services. Vendors should demonstrate creative and effective litigation strategies, has expertise in temporary disability/causation medical consultation, rehabilitation/supplemental job displacement benefits voucher (SJDB), Agreed Medical Examiner (AME), Panel Qualified Medical Examiner (PQME), and case settlement.
1. Case Referrals
New case referrals will be assigned by the City’s Risk Management Division. Within five (5) business days upon referral of new cases, the Consultant shall send an email to the City’s Risk Management Division and the TPA acknowledging receipt of the file, confirming the designated attorney(s) assigned to the file, and disclosure of any conflicts of interest. The case acknowledgment email represents a non-billable event.
If available at the time of a new case referral, City’s Risk Management Division and/or the TPA transmittal shall include:
•All Division of Workers’ Compensation notices and filings •Personnel file
•Wage statement
•Job description or job analysis
•Claimant’s occupation, department, and supervisor contact information •Summary of claim and status
•Medical reports for the injury
•Investigative reports
•Claim payment history (medical and indemnity)
•Legal notices or filings, including TPA responses
•Case file notes
•Specific issues requiring defense
•Related information from the City’s Risk Management Division regarding issues that may impact strategy
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17 2. Reporting Requirements
The retained Consultant(s) shall observe the following guidelines for reporting and communication:
•Reports shall be as brief.
•Timely and pertinent status reports shall address only new development following a brief history.
•Reports shall point out key information contained in any attachments with an explanation of its significance to the case. Voluminous records only need be summarized, unless requested by the City’s Risk Management Division, the TPA or the City’s General Counsel.
•Email is the preferred method of communication.
•
Following the case acknowledgement, reporting requirements shall include:
•Initial Report - due within thirty (30) days of case referral Report contents must include:
oAnalysis - A written analysis of the case which provides the initial evaluation of the case and identifies the strengths and weaknesses of the case. It shall include:
a. Summary of the claim.
b. Legal opinion of compensability, whether the case should be tried or settled.
c. Pertinent statutes and/or case law.
d. An estimated settlement range or verdict range.
oInvestigation - The Consultant(s) shall identify any additional information needed to establish defenses in the action. To the extent possible, this investigation and information gathering shall be done by the TPA. oStrategy – Consultant(s) shall define the strategy to be used in each claim including:
a. The anticipated course of action to be taken.
b. The factors or elements which must be proved or disproved and the necessary discovery to establish these defenses or proof. c. The timing of discovery, filing of motions, negotiations, or other objectives.
d. The tactics to be used in defending the case and the advantages to be gained using these tactics.
e. If applicable, counsel will specifically address available defenses under California statutes.
•Litigation Budget - due with the Initial Report and with Status Reports oA litigation budget shall be provided with the initial report listing Consultant(s) best estimate for costs associated with those activities
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18 outlined in the initial report.
•Status Update – due bi-weekly
oConsultant(s) shall provide brief status updates to the City’s Risk Management Division bi-weekly to include the most up to date information pertaining to the case. Updates can be provided in written format, via an in-person or virtual meeting.
•Status Reports - due every ninety (90) days
oConsultant(s) shall provide concise status updates to the TPA and the City’s Risk Management Division whenever events change any fact, judgment or opinion bearing on the case. Status updates should be provided every ninety (90) days, even if there has been no activity. Reports should not repeat previously reported events. Reports shall include:
a. Discovery completed, including deposition summaries. b. Current evaluation of the case.
c. Current estimate of medical and indemnity exposure.
d. Settlement demand and offer, if any.
e. Significant discovery planned for the next three months to include recommended use of independent medical examinations,
utilization review, and expert medical advisors.
f. Suitability of dispositive motions.
g. Budget through current stage with explanation of budget deviations.
h. Other significant changes.
i. Timeline for resolution.
•Pre-Settlement Conference/Mediation Report - due twenty-one (21) days in advance
oConsultant(s) shall notify the TPA and the City’s Risk Management Division of a settlement conference, mediation or trial as soon as the date is set. Mediations may be attended by the City’s Risk Management Division who must be contacted reasonably in advance of scheduling a settlement conference or mediation to determine availability. oPre-mediation report to the City’s Risk Management Division and the TPA should include:
a. A brief synopsis of the case
b. Consultant(s) opinion as to the strengths and weaknesses of the case and associated exposure
c. Potential settlement range for the case
d. Consultant(s) opinion as to the outcome
e. Next steps should the case not settle
f. Updated litigation budget
•Pre-Hearing Report - due thirty (30) days before hearing oThirty (30) days prior to a hearing, Consultant(s) shall submit a detailed
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19 pre-hearing report to the City’s Risk Management Division and the TPA that should include an analysis of the issues, associated exposure, chances of prevailing, comments regarding jurisdiction and the assigned Judge of Compensation Claims, and possibility of resolving prior to a hearing. If resolution is possible, the Consultant(s) shall confer with the Consultant(s) Risk Management Division and the TPA to determine how the case can be reasonably resolved without unnecessary costs. •Post-Settlement Conference/Mediation/Hearing Report - due five (5) days after oFive (5) days post settlement conference, mediation or hearing, Consultant(s) shall submit a brief written summary or schedule a conference call with the TPA and the City’s Risk Management Division to discuss results and next steps.
3. General Litigation Guidelines
•Discovery
oThe method of discovery utilized shall be that which obtains the information required at the least cost and in the most efficient manner. The Consultant(s) shall not schedule depositions without first giving due consideration to the value of sworn or other recorded testimony in lieu of a deposition. Unless special circumstances exist, deposition transcripts other than that of the applicant shall not be ordered unless or until it is reasonably certain that the case will be tried, or they are needed for dispositive court filings such as motions for summary judgment. Decisions to proceed with discovery shall be made jointly by the Consultant(s), the City’s Risk Management Division and the TPA, considering the purpose, value of information sought, cost of proposed Discovery, and degree of potential for adverse consequences. Direct contact with the Departmental Employees shall be made with consent of and coordination through the City’s Risk Management Division.
•Use of Experts
oThe Consultant(s) must obtain authority and approval from the City’s Risk Management Division of all experts, including those retained to perform independent medical examinations or expert medical advisors, to assist with the defense of the case. Experts shall be retained by the Consultant(s) only after discussion with and approval of the City’s Risk Management Division and the TPA. The discussion shall include the objectives of retaining the expert, the expert’s qualifications and fees, the anticipated benefits, and a determination of the point in time when the expert’s use may be most effective.
•Settlements (Global)
oIn all cases, the Consultant(s) shall provide realistic options including
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20 compromise and settlement, and identify which option it believes to be best, comment on the reasonableness of a settlement demand and recommend a response. The Consultant(s) shall obtain authority for, and approval of all settlement offers or advanced payments before they are submitted to claimant’s counsel, the Division of Workers’ Compensation and/or its Appeals Board, or mediator, in accordance with City’s Settlement Guidelines. Settlement demands made by claimant or claimant’s counsel, and any counter offers, shall be communicated to the City’s Risk Management Division and the TPA immediately. The Consultant(s) is not authorized to act independently of any delegation of authority provided through the City’s Risk Management Division. The City’s Risk Management Division may consider settlement negotiations outside of formal mediations or settlement conferences but shall require up to thirty (30) days for the delegation of authority process for approval of settlement evaluations. oUpon case resolution, the Consultant(s) shall submit a brief final summary in an email to the City’s Risk Management Division and the TPA. This communication shall include copies of the signed settlement agreement, general release and resignation, settlement check due date with complete payable to and Tax ID information to include a copy of the claimant’s law firm’s W-9, along with any other documents or information that support resolution of an issue or the case in its entirety. Upon final conclusion and receipt of the settlement check, and approved settlement agreement, the Consultant(s) shall close its file and submit the final billing for each case in the next billing period.
•Multi-Forum, Fraudulent, and Overlapping Claims
oCoordination and sharing of information from litigated liability claims with the City’s Risk Management Division, the City’s general counsel and workers’ compensation attorneys are expected in cases where there is exposure to potential liability in other legal venues, such as EEOC claims, disability retirement program, workers’ compensation claims (overlapping), disability insurance, Medicare Set Aside, and Structured Settlement companies. The Consultant(s) is expected to work collaboratively with the City’s other defense counsel to develop strategies to resolve liabilities globally.
oThe Consultant(s) shall cooperate in the investigation of potentially fraudulent claims reported to the California Department of Insurance Fraud Division upon lawful request of this entity and in the recovery of Workers’ Compensation monies.
•Appeals, Continuances, Waivers
oThe Consultant(s) must obtain authority from the City’s Risk Management Division before filing a petition for reconsideration with the Appeals Board or filing a Writ of Review at the Appellate or Supreme
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21 Court level.
oThe Consultant(s) must obtain approval before waiving any rights of the City, such as third-party recovery, causes of action against a third party, restitution, settlement of liens and collateral benefits, such as the City’s health, dental, and leave benefits. Under no circumstances may the Consultant(s) make any agreement regarding retirement benefits. oThe Consultant(s) must coordinate requests for continuances or extensions of timelines or deadlines, other than routine discovery, in advance with the City’s Risk Management Division.
•Subrogation
oThe Consultant(s) and the City’s Risk Management Division shall consider the following factors in determining if subrogation shall be utilized and, if so, the strategy to be employed:
a. In consultation with the City’s Risk Management Division, an assessment of whether there are other business reasons or relationships which might affect a decision to subrogate; b. What the expected recovery amount is compared to the legal costs to affect such recovery;
c. The effect on potential recovery of third-party liability and comparative fault by employee and employer;
d. Legal action available to or taken by the injured party; e. The possibility of a statute of limitations defense; and f. The status and potential value of the workers’ compensation case.
oSettlement of third-party cases fall within the same authorization guidelines as all other workers’ compensation settlements. Non- workers’ compensation recoverable losses shall be considered, such as sick leave, Family Medical Leave Act (FMLA) salary continuation, property damage, and other insurance.
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CONSENT CALENDAR
City of San Bernardino
Request for Council Action
Date: July 3, 2024
To: Honorable Mayor and City Council Members
From: Rochelle Clayton, Acting City Manager;
Darren Goodman, Chief of Police
Department: Police
Subject: Agreement with Selman Chevrolet and West Coast Lights and Sirens for vehicle purchase and build out (All Wards) Recommendation:
It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize the following:
1. The City Manager or designee, to execute a Goods Purchasing Agreement with Selman Chevrolet.
2. The Director of Finance and Management Services issue a purchase order to Selman Chevrolet in an amount not to exceed $115,770.38.
3. The Director of Finance and Management Services issue a purchase order to West Coast Lights and Sirens Inc., in an amount not to exceed $20,976.98.
Executive Summary
The City completed an RFP to select a vendor to purchase two vehicles to be used for surveillance and enforcement related to illegal cannabis activity to further efforts of the Regional Marijuana Enforcement Team and support the scope of the Prop 64 grant. The City requests the authorization to use Prop 64 grant funds to purchase the vehicles.
Background
On June 22, 2023, the City of San Bernardino accepted the Proposition 64 Public Health and Safety Grant, Cohort 3, in the amount of $3,000,000. The Board of State and Community Corrections (BSCC) funded the grant based on tax revenue generated by the sales of legal adult-use cannabis products. Included in the Prop 64 (BSCC) grant budget proposal was $200,000 designated for the purchase of mobile
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surveillance equipment; a portion of which would be used for the purchase of two unmarked police vehicles with the surveillance equipment. The vehicle purchase has been approved by BSCC.
Discussion
The San Bernardino Police Department is entering into a memorandum of understanding with the San Bernardino County Sheriff’s Department for a regional marijuana enforcement team. This team will conduct illegal cannabis sales and cultivation enforcement, along with public education. Two police officers will be assigned to the regional team, bringing more personnel and assets for operations inside the City of San Bernardino.
These assigned officers will need to be equipped with two unmarked police vehicles, with accompanying equipment from West Coast Lights and Sirens Inc., for successful enforcement investigations and operations. After completing a Request for Proposal RFQ F-24-3000, Selman Chevrolet was identified as the vendor who met all bid specifications. The two vehicles will be purchased from Selman Chevrolet and then outfitted with appropriate police equipment at West Coast Lights and Siren, the city’s existing contracted vendor for this type of work.
2021-2025 Strategic Targets and Goals
The request to approve this funding aligns with Key Target No. 3: Improve the Quality of Life by securing two unmarked police vehicles for officers to conduct operations surrounding the investigation of illegal cannabis sales and cultivation sites in the City which are negatively impacting residents and business owners alike.
Fiscal Impact
There is no General Fund impact. The vehicles and surveillance equipment will be purchased using the Prop 64 Public Health and Safety Grant funds.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, California, authorize the following:
1. The City Manager or designee, to execute a Goods Purchasing Agreement with Selman Chevrolet.
2. The Director of Finance and Management Services issue a purchase order to Selman Chevrolet in an amount not to exceed $115,770.38.
3. The Director of Finance and Management Services issue a purchase order to West Coast Lights and Sirens Inc. in an amount not to exceed $20,976.98.
Attachments
Attachment 1 Selman Chevrolet proposal
Attachment 2 West Coast Lights and Siren Inc. proposal Attachment 3 Goods Purchasing Agreement with Selman Chevrolet
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Ward:
All Wards
Synopsis of Previous Council Actions:
June 21, 2023 Mayor and City Council adopted Resolution 2023-088 and accepted the Proposition 64 grant.
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PROPOSAL
Date
4/25/2024
Estimate #
15042Name / Address
CITY OF SAN BERNARDINO
POLICE DEPT
710 NORTH D STREET
SAN BERNARDINO, CA 92401
W E S T C O A S T L IG H T S & S IR E N S , IN C .
UNIT "B"
RIVERSIDE, CA 92507
Terms
Net 30
VEHICLE TYPE
SILVERADO
Phone # 951-779-9257
Fax # 951-779-9256
[email protected]
WCLS.US
Total
Subtotal
Sales Tax (8.0%)
Item Description Qty Cost Total
>>TO INSTALL THE FOLLOWING IN A 2023 CHEVY
SILVERADO<<
115.00/HOUR LABOR TO INSTALL THE FOLLOWING 34 115.00 3,910.00T >>LIGHTING & SIREN EQUIPMENT<<
MPS62U-RB MICROPULSE ULTRA 6, DUAL COLOR, CLEAR LENS,
SURFACE MOUNT- RED/BLUE
>>STEADY RED VISOR LIGHT<<
1 90.00 90.00T
MPS62U-RB MICROPULSE ULTRA 6, DUAL COLOR, CLEAR LENS,
SURFACE MOUNT- RED/BLUE
>> FLASHING RED/BLUE VISOR LIGHT<<
1 90.00 90.00T
MPSM6U-WIN ADHESIVE MOUNT KIT FOR (1) MPS6U LIGHT KIT
INCLUDES 90 , 67,46. & 30 DEGREES SHROUDS
2 40.04 80.08T
416900Z-BW CORNER LED,DUAL,INLINE FLASHER, HORIZ
OPTIC,BLUE/WHITE
>>PASS. SIDE HEADLIGHT<<
1 68.00 68.00T
416900Z-RW CORNER LED,DUAL,INLINE FLASHER, HORIZ OPTIC,
RED/WHITE
>>DR. SIDE HEADLIGHT<<
1 68.00 68.00T
PW100S4 PATHWAY SIREN/LIGHT CONTROLLER WITH
FOUR-BUTTON CONTROLLER, 100 W
1 480.00 480.00T
WCLS-ROTARY1 ROTARY SWITCH FOR PATHFINDER 1 225.00 225.00T ES100C ES100C SPEAKER W/O BRACKET 1 215.00 215.00T
ESB-L BRACKET KIT, ES100C 1 28.03 28.03T
FHL-CHG FLASHER, HEADLIGHT 1 75.46 75.46T