Loading...
HomeMy WebLinkAboutItem #20 Approval of Red Light Camera Hearing Officer Agreement and Resolution to Comply with the Mark Wandall Traffic Safety Act`i 000(>_ e flo,ida AGENDA ITEM COVER SHEET Meeting Date: August 20, 2013 Item # a Q Reviewed By: Contact Name: Robin G. Drage, Department Director: Assistant City Attorney Contact Number: 407 - 581 -9792 City Manager: Subject: Approval of Red Light Camera Hearing Officer Agreement and Resolution to Comply with the Mark Wandall Traffic Safety Act Background Summary: During the recent session, the Florida Legislature passed and the Governor signed into law CS /CS /HB7125, now known as Chapter 2013 -160 Laws of Florida amending certain provisions of the Mark Wandall Traffic Safety Act. The City Commission recently amended the City Code of Ordinances to comply with the new statutory provisions. The City Commission also recently approved an amendment to the Agreement with the City's traffic light camera vendor, American Traffic Solutions, LLC. In order to comply with the new statutory provisions, the City is required to provide a Hearing Officer, a Clerk for the Hearing Officer and a facility for hearings to contest Notices of Violation issued for red light camera violations. Issue: 1. Should the City Commission approve an agreement designating Mr. Frederick H. Wilsen as the Hearing Officer. 2. Should the City Commission approve a resolution appointing the City Clerk or his /her designee as the Clerk to the Hearing Officer. Recommendations: 1. The City Commission should approve the Hearing Officer Agreement to comply with the recent changes to the Mark Wandall Traffic Safety Act. 2. The City Commission should approve the Resolution to comply with the recent changes to the Mark Wandall Traffic Safety Act. Attachments: 1. Hearing Officer Agreement 2. Resolution designating the Clerk to the Hearing Officer Financial Impact: The Hearing Officer will be compensated at the greater of $125.00 per hour or $500.00 per day. At the present time, hearings will be set once per month, but additional hearings may be scheduled depending upon demand. Type of Item: El El X X El Public Hearing Ordinance First Reading Ordinance First Reading Resolution Commission Approval Discussion & Direction For Cleric's Dept Use ❑ Consent Agenda ❑ Public Hearing ❑ Regular Agenda X Original Document/Contract Attached for Execution by City Clerk ❑ Original Document/Contract Held by Department for Execution Reviewed by City Attorney X N/A Reviewed by Finance Dept. ❑ N/A Reviewed by ( ) ❑ N/A MEMORANDUM CLIENT - MATTER NUMBER 06286 -0044 TO: The Honorable Mayor and City Commissioners FROM: Scott A. Cookson, City Attorney DATE: August 13, 2013 RE: Traffic Light Safety Staff Report ISSUE 1. Whether the City Commission should approve an agreement designating Mr. Frederick H. Wilsen as the Hearing Officer. 2. Whether the City Commission should approve a resolution appointing the City Clerk or his /her designee as the Clerk to the Hearing Officer. BACKGROUND /DISCUSSION During the recent session, the Florida Legislature passed and the Governor signed into law CS /CS/HB7125, now known as Chapter 2013 -160 Laws of Florida amending certain provisions of the Mark Wandall Traffic Safety Act. The City Commission recently amended the City Code of Ordinances to comply with the new statutory provisions. The City Commission also recently approved an amendment to the Agreement with the City's traffic light camera vendor, American Traffic Solutions, LLC. In order to comply with the new statutory provisions, the City is required to provide a Hearing Officer, a Clerk for the Hearing Officer and a facility for hearings to contest Notices of Violation issued for red light camera violations. The Hearing Officer Agreement provides that Mr. Frederick H. Wilsen will be designated as the Hearing Officer. The Agreement is for a one year term. Either party can terminate the Agreement. Mr. Wilsen will be compensated the greater of $125.00 per hour or $500 per day for the hearings. It is anticipated that hearings will be scheduled one day per month, but additional hearings may be added depending upon demand. The Resolution provides that the City Clerk or his /her designee will be the Clerk for the Hearing Officer. HEARING OFFICER SERVICES AGREEMENT THIS AGREEMENT ( "Agreement ") made this day of , 20, by and between the City of Ocoee, Florida, a municipal corporation of the State of Florida, whose address is 150 N. Lakeshore Drive, Ocoee, Florida 34761 hereinafter referred to as "CITY" and Frederick H. Wilsen, whose address is , hereinafter referred to as "HEARING OFFICER ". NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties agree as follows: Qualifications HEARING OFFICER warrants that he is fully qualified to perform the duties of a hearing officer as provided in the Ocoee Code of Ordinances (the "Code ") and Chapter 316, Florida Statutes, and that HEARING OFFICER is a member in good standing of the Florida Bar. 2. Scope of Services HEARING OFFICER agrees to personally perform the duties of the hearing officer as provided in the Code and in Chapter 316, Florida Statutes. HEARING OFFICER shall hear all matters assigned to him, unless a conflict of interest exists, and shall prepare and file with the Hearing Officer Clerk final or recommended orders, as appropriate to the matter assigned, which include findings of fact and conclusions of law. HEARING OFFICER shall not delegate or assign his rights or obligations hereunder in whole or 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 HEARING OFFICER. 4. Compensation HEARING OFFICER shall be paid the greater of Five Hundred and no /100s Dollars ($500.00) per day or One Hundred and no /100s Dollars ($100.00) per hour for services performed by HEARING OFFICER pursuant to this Agreement. In the event that all hearings scheduled for a particular date are cancelled, HEARING OFFICER shall not be compensated for that date if he is notified at least 48 hours in advance. HEARING OFFICER shall be paid for a minimum two (2) hours of time for a cancelled hearing in the event that less than 48 hours notice is given. Payment by CITY shall be in compliance with the Florida Prompt Payment Act, as amended from time to time. HEARING OFFICER may perform legal work for other clients in his private practice so long as it does not conflict with HEARING OFFICER'S obligations under this Agreement. HEARING OFFICER shall promptly notify CITY of any conflicts or other reason which HEARING OFFICER feels would make it inappropriate for him to decide a case. Page 1 of 5 5. Term and Termination This Agreement shall be in effect for one year from the date on which the last of the parties executes this Agreement, unless terminated earlier pursuant to the terms of this paragraph. CITY may terminate this Agreement at any time by providing HEARING OFFICER written notice of termination. HEARING OFFICER may terminate this Agreement at any time by providing CITY written notice of his intent to terminate not less than thirty (30) days prior to the actual date of termination. Unless otherwise directed by CITY, HEARING OFFICER shall, prior to the termination date, complete all of his duties including, but not limited to, filing written orders, in any case heard by HEARING OFFICER. 6. Independent Contractor CITY and HEARING OFFICER intend that the relationship between them shall be that HEARING OFFICER is an independent contractor. No agent, employee, or servant of the HEARING OFFICER shall be or shall be deemed to be an agent, employee, or servant of 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 from CITY to HEARING OFFICER or employees, agents, or servants of HEARING OFFICER. 7. Audit CITY at its discretion may audit or inspect HEARING OFFICER'S books, financial records, ledgers, time sheets, and other records relating to services under this Agreement for a period of three (3) years after the termination of this Agreement. All records, books, and accounts related to the performance of this Agreement shall be subject to the applicable provisions of the Florida Public Records Act, Chapter 119, Florida Statutes. 8. Indemnification HEARING OFFICER shall be solely and entirely responsible for his tortious acts and for the tortious acts of his agents, employees, or servants during the performance of this Agreement. HEARING OFFICER agrees to indemnify, defend, and hold harmless CITY, its elected officials, agents, employees, and officers from and against all liabilities, claims, demands, and actions at law and equity including court costs and attorney's fees that may hereafter at any time brought by anyone for the purpose of enforcing a claim on account of any injury or damage allegedly caused or occurring to any person or property, in whole or in part, by any tortiuous, wrongful, or intentional acts or omissions of HEARING OFFICER, his agents or employees during the term of this agreement. Nothing contained in this Agreement shall be considered or deemed a waiver of CITY'S sovereign immunity protections as provided in Section 268.76, Florida Statutes, as may be amended from time to time or as a waiver of any other defense or immunities to lawsuits. 9. Entire Agreement This Agreement supersedes any prior agreements between the parties and is the sole basis for agreement between the parties. No addition to or alteration of the terms of this Agreement whether by written or verbal understanding of the parties, their elected officials, officers, agents, or employees Page 2 of 5 shall be valid unless made in the form of a written amendment to this agreement and formally approved by the parties. 10. Notices Any notices required or allowed to be delivered shall be in writing and be deemed to be delivered (whether or not actually received) (i) when hand delivered to the official hereinafter designated, or (ii) the next business day after being sent by nationally recognized overnight delivery service for next business day delivery, all addressed to the party at the address set forth opposite the party's name below, or at such address as the party shall have specified by written notice to the other party delivered in accordance herewith. HEARING OFFICER: Frederick H. Wilsen ,FL 407 - 298 -1574 CITY: City of Ocoee Attn: City Manager 150 North Lakeshore Drive Ocoee, FL 34761 407 - 905 -3100 11. Governing Law and Venue The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the parties hereunder, shall be governed by the laws of the State of Florida. Any action involving matters or disputes arising out of or relating to this Agreement shall be brought in Orange County, Florida. 12. Entire Agreement, Representation and Prior Agreements There are no representations, warranties or covenants other than those set forth in this Agreement, which sets forth the entire understanding between the CITY and HEARING OFFICER, and supersedes any previous arrangements or agreement, whether written or oral, between them. 13. No Waiver No waiver 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. Amendments No modification, amendment, or alteration in the terms or conditions contained herein shall be binding upon the parties hereto unless in writing and executed by all the Parties to this Agreement. 15. Counterparts This Agreement may be signed in counterparts, each of which may be deemed an original, and all of which together constitute one and the same agreement. Page 3 of 5 16. Severability If any provision of this Agreement is declared invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable provision will be stricken from the Agreement, and the balance of the Agreement will remain in full force and effect as long as doing so would not affect the overall purpose or intent of the Agreement. (Signatures on following page) Page 4 of 5 IN WITNESS WHEREOF, the parties hereto have accepted, made and executed this Agreement upon the terms and conditions above stated on the day and year first above written. WITNESS: HEARING OFFICER: Frederick H. Wilsen Print Name: Print Name: ATTEST: Beth Eikenberry, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this _ day of , 2013. SHUFFIELD, LOWMAN & WILSON, P.A. IN Scott A. Cookson, City Attorney CITY: CITY OF OCOEE, FLORIDA S. Scott Vandergrift, Mayor APPROVED BY THE OCOEE CITY COMMISSION ON UNDER AGENDA ITEM NO. Page 5 of 5 RESOLUTION NO. A RESOLUTION OF THE CITY OF OCOEE, FLORIDA, PROVIDING FOR THE DESIGNATION OF THE CITY CLERK OR HIS/HER DESIGNEE TO ACT AS CLERK TO THE LOCAL HEARING OFFICER FOR RED LIGHT CAMERA HEARINGS; PROVIDING FOR SEVERABILITY; PROVIDING AN EFFECTIVE DATE WHEREAS, the Florida Legislature recently amended the Mark Wandall Traffic Safety Act (the "Act ") to require municipalities to appoint a local hearing officer (the "Local Hearing Officer ") to hear cases related to red light camera Notices of Violation; and WHEREAS, the Act requires municipalities to designate by resolution a City employee to act as the clerk to the Local Hearing Officer (the "Red Light Camera Hearing Clerk ") • and WHEREAS, the City Commission of the City of Ocoee desires to designate the City Clerk or his /her designee to serve as the Red Light Camera Hearing Clerk. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: SECTION 1. Authority The City Commission of the City of Ocoee has the authority to adopt this Resolution pursuant to Article VIII of the Constitution of the State of Florida and Chapter 166, Florida Statutes. SECTION 2. Appointment The City Commission hereby appoints the City Clerk or his /her designee to act as the Red Light Camera Hearing Clerk. SECTION 3. Severability If any section, subsection, sentence, clause, phrase or portion of this Resolution is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. SECTION 4. Effective Date This Resolution shall become effective immediately upon passage and adoption. PASSED AND ADOPTED this day of , 20 APPROVED: ATTEST: Beth Eikenberry, City Clerk CITY OF OCOEE, FLORIDA S. Scott Vandergrift, Mayor (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this day of , 20 SHUFFIELD LOWMAN & WILSON, P.A. City Attorney APPROVED BY THE OCOEE CITY COMMISSION ON THE ABOVE DATE UNDER AGENDA ITEM NO. 2-