HomeMy WebLinkAboutItem 03 Approval of Agreement with Violations Hearing Special Magistrate .110-141C
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AGENDA ITEM COVER SHEET
Meeting Date: September 7, 2021
Item # 3
Reviewed By:
Contact Name: Chief S. Plasencia Department Director: Chief . Plas c'a
Contact Number: 407-554-7223 City Manager: Rob Fran .
Subject: Approval of Agreement with Violations Hearing Special Magistrate # ' .-
)Background Summary:
On May 1, 2018, the City adopted Ordinance 2018-018 which established the Violations Hearing
Special Magistrate (the "Special Magistrate"). Under that Ordinance, the Special Magistrate hears and
considers contests of designated City Code violations, including but not limited to violations relating to
nuisance fire alarms, noise and parking violations.
The City has a need for a Special Magistrate to hear red-light camera violations and certain Code
Enforcement matters. City Staff and the City Attorney recommend that the City engage James "Skip"
Fowler to serve as Special Magistrate. Mr. Fowler's duties as Special Magistrate will encompass both
red-light camera violations and certain code enforcement matters. The City Attorney has determined
that Mr. Fowler has the requisite experience, availability and desire to perform such services.
Issue:
Should the Honorable Mayor and Board of City Commissioners approve an Agreement with attorney
James "Skip" Fowler to serve as Special Magistrate to hear matters relating to City Code violations,
red-light camera violations and certain code enforcement matters?
Recommendations:
It is staff's recommendation that the Honorable Mayor and Board of City Commissioners approve the
agreement with attorney James "Skip" Fowler to serve as Special Magistrate.
Attachments:
Special Magistrate Services Agreement
Financial Impact:
The hourly fee for the Violations Hearing Special Magistrate is $180.00 per hour.
Type of Item: (please mark with an"x")
Public Hearing For.Clerk's Dept Use:
Ordinance First Reading ; x Consent Agenda
Ordinance Second Reading Public Hearing
Resolution Regular Agenda__.
X Commission Approval
Discussion&Direction
Original Document/Contract Attached for Execution by City Clerk
Original Document/Contract Held by Department for Execution
Reviewed by Assistant City Logan Opsahl N/A
Attorney
Reviewed by Finance Dept. VO/z.�(,�� N/A
Reviewed by () N/A
SPECIAL MAGISTRATE SERVICES AGREEMENT
THIS SPECIAL MAGISTRATE SERVICES AGREEMENT ("Agreement") is entered into
on the day of September 2021, by and between the CITY OF OCOEE, a Florida municipal
corporation, whose address is 150 N. Lakeshore Drive, Ocoee, Florida 34761 ("Ocoee"), and James A.
"Skip" Fowler, Esq., as a Partner of the law firm of Fowler and Fowler, Feeney & Associates, P.A
("Fowler"), and the law fuiu of Fowler, Feeney & Associates, P.A., whose address is 28 W. Central
Boulevard, Suite 400, Orlando, Florida 32801 (Fowler and Fowler, Feeney & Associates, P.A, are
collectively referred to hereafter as"Special Magistrate").
RECITALS
A. Whereas, the role of Special Magistrate is to include presiding over certain various red-
light camera violations hearings and certain code enforcement matters; and
B. •Whereas, Ocoee desires to engage the services of Special Magistrate to allow Special
Magistrate to perform the duties described herein and subject to the terms and conditions
set forth herein.
AGREEMENT
NOW, THEREFORE, for and in consideration of the foregoing, the mutual promises,
covenants, and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,the parties hereto agree as follows:
1. Qualifications. Special Magistrate warrants that it is fully qualified to perform the
duties of Special Magistrate as described herein and under Florida law, and that Fowler warrants
that he is a member in good standing of the Florida Bar.
2. Special Magistrate. Special Magistrate agrees to personally perform the duties of
the Violations Hearing Special Magistrate to hear notices of violations of City Code, as set forth
in the Code. The Special Magistrate shall also hear matters relating to red light camera
violations, certain Code Enforcement violations, and all other matters assigned to it, unless a
conflict of interest exists, and shall prepare and file with the City Manager or designee a written
order stating findings and the amount of fine, if applicable. Special Magistrate shall not delegate
or assign its rights or obligations hereunder in whole or in part.
3. City Responsibilities. City shall provide an appropriate location to conduct the
proceedings. City shall also provide staff to operate a recording device, schedule hearings, and
perform the administrative tasks related to the hearings. All office and overhead expenses not
provided by City including but not limited to travel, shall be borne by Special Magistrate.
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4. Compensation. Special Magistrate shall be paid One Hundred Eighty and no/100s
Dollars ($180.00) per hour for services performed by Special Magistrate. In the event all
hearings scheduled for a particular date are cancelled, Special Magistrate shall not be
compensated for that date if he is notified at least 48 hours' in advance., Special Magistrate shall
be paid for a minimum of two (2) hours in the event that less than 48 hours' notice of
cancellation is given. Special Magistrate may perform legal work for other clients so long as it
does not conflict with Special Magistrate's obligations under this Agreement. Special Magistrate
shall promptly notify the City of any conflicts or other reason which Special Magistrate feels
would make it inappropriate for Special Magistrate to decide a case.
5. Term and Termination. This Agreement shall consist of one (1) initial one (1)
year term beginning September 1, 2021 ("Effective Date"), with four (4) separate one (1) year
renewable extensions, for a maximum of five (5) years total under this Agreement unless
terminated earlier. Either party may terminate this Agreement at any time by providing thirty
(30) days written notice of its intent to terminate to the other. Unless otherwise directed by City,
Special Magistrate shall,prior to the termination date, complete all of its duties including, but not
limited to, filing written orders, in any case heard by Special Magistrate.
b. Independent Contractor. City and Special Magistrate intend that the relationship
between them shall be that of Special Magistrate as an independent contractor. Special
Magistrate and no agent or employee of the Special Magistrate shall be deemed to be an agent or
employee of the City. None of the benefits provided by City to its employees including, but not
limited to, Worker's Compensation insurance and unemployment insurance, are available to
Special Magistrate or the agents or employees of Special Magistrate.
7. Insurance. Special Magistrate shall provide evidence of both General Liability
and Professional Liability Insurance in the form of a certificate of insurance issued on behalf of
the City and naming the City as an additional insured, by a company or companies, acceptable to
the City at the minimum limits and coverages with deductible amounts acceptable to the City.
8. Audit. City, at its discretion, may audit or inspect Special Magistrate's books,
financial records, ledgers, time sheets, or other records relating to services under this Agreement
for a period of three (3)years following termination of this Agreement.
9. Public Records. The City is a public agency subject to Chapter 119, Florida
Statutes. The Special Magistrate agrees to comply with Florida's Public Records Law.
Specifically,the Contractor shall:
a. Keep and maintain public records required by the City to perform the
services.
b. Upon request from the City's custodian of public records, provide the City
with a copy of the requested records or allow the records to be inspected or copied within a
reasonable time at a cost that does not exceed the cost provided in chapter 119, Florida Statutes,
or as otherwise provided by law.
c. Ensure that public records that are exempt or confidential and exempt
from the public records disclosure requirements are not disclosed except as authorized by law for
the duration of the Agreement term and following completion of the Agreement if the Special
Magistrate does not transfer the records to the City.
d. Upon completion of the Agreement, Special Magistrate agrees to transfer
at no cost to the City all public records in possession of the Special Magistrate or keep and
maintain public records required by the City to perform the service. If the Special Magistrate
transfers all public record to the City upon completion of the Agreement, the Special Magistrate
shall destroy any duplicate public records that are exempt or confidential and exempt from public
records disclosure requirements. If the Special Magistrate keeps and maintains public records
upon completion of the Agreement,the Special Magistrate shall meet all applicable requirements
for retaining public records. All records stored electronically must be provided to the City, upon
request from the City's custodian of public records, in a format that is compatible with the
information technology systems of the City.
e. A Special Magistrate who fails to provide the public records to City within
a reasonable time may be subject to penalties under section 119.10,Florida Statutes.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS AT 407-905-3100, EXTENSION 1022, CCDL@ci.ocoee.fl.us, WITH
AN OFFICE LOCATED AT 150 NORTH LAKESHORE DRIVE, OCOEE,FLORIDA 34761.
10. Entire Agreement. This Agreement contains the entire understanding and
agreement between the parties hereto with respect to the subject matter hereof. The Agreement
may be modified only by written instrument signed by all parties hereto.
11. Notice. Any notice required or allowed to be delivered under this Agreement
shall be provided in writing and sent to the address on page 1 of this Agreement.Notice shall be
sent by hand delivery or sent by a nationally recognized overnight delivery service for next
business day delivery.
12. Governing Law and Venue. This Agreement is to be governed by, and construed
and enforced in accordance with, the laws of the State of Florida. In the event any litigation or
other formal legal or equitable proceeding (collectively, the "Litigation") between any of the
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Parties hereto, or their affiliates, heirs, agents, successors, or assigns, is instituted in connection
with the construction, interpretation, or enforcement of this Agreement, th p e party commencing
such litigation shall be required to institute the same in state courts within the jurisdiction and
venue of Orange County,Florida
13. No Waiver. No wavier of any provision of this Agreement shall be effective
unless it is in writing and signed by the party against whom it is asserted. Any such written
waiver shall only be applicable to the specific instance to which it relates and shall not be
deemed to be a continuing or future waiver.
14. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be original as against any party whose signature appears thereon, and all of
which together shall constitute one and the same Agreement.
15. Severability. If any provision of this Agreement is ultimately determined to be
invalid or unenforceable, such provision shall be deemed limited by construction in scope and
effect to the minimum extent necessary to render the same valid and enforceable, and, in the
event no such limiting construction is possible, such invalid or unenforceable provision shall be
deemed severed from this Agreement without effecting the validity of any other provision
hereof.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed by their authorized representatives on the day and year first above written.
FOWLER CITY OF OCOEE,a Florida Municipal
Corporation
By: .
rint Na e: 9 Robert Frank, City Manager
ate: ..
Attest:
Melanie Sibbitt, City Clerk
FOWLER,FEENEY&AS OCIATES .A.
Pr' t Name: •
tie: ,D4i--
ate: o56>w•�„�
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA;
APPROVED AS TO FORM AND
LEGALITY this — day of
2021.
SHUFFIELD LOWMAN&WILSON,P.A.
By:
City Attorney
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