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HomeMy WebLinkAboutcocc_agmt_special_magistrate_rgeller_fishback_dominick_201912AGREEMENT FOR SPECIAL MAGISTRATE THIS AGREEMENT made and entered into this 17th day of December, 2019, by and between the CITY OF CAPE CANAVERAL, a Florida municipal corporation, located at 100 Polk Avenue, Cape Canaveral, Florida 32920 (hereinafter referred to as the "City"), and The Law Firm of FISHBACK DOMINICK, whose address is located at 1947 Lee Road, Winter Park, Florida is (hereinafter referred to as the "Special Magistrate"). WITNESSETH: WHEREAS, the City solicited proposals for code enforcement special magistrate services; and WHEREAS, Special Magistrate responded to the City's request for proposals; and WHEREAS, the City desires to enter into an agreement with Special Magistrate for the provision of code enforcement special magistrate services as provided herein. NOW, THEREFORE, in consideration of the mutual terms and conditions, promises, covenants and payments hereinafter set forth, City and Special Magistrate agree as follows: ARTICLE 1 DEFINITIONS 1.1 City Manager. Whenever the term City Manager is used herein, it is intended to mean the City Manager of the City of Cape Canaveral or Designee. The City Manager is the administrative head of all departments of the City Government. In the administration of this contract, as contrasted with matters of policy, all parties may rely upon instructions or determinations made by the City Manager or Designee. 1.2 City Council. Whenever the term City Council is used herein, it is intended to mean the City Council of the City of Cape Canaveral, Florida, which is the governing body of the City of Cape Canaveral, Florida. 1.3 City. Whenever the term City is used herein, it is intended to mean the City of Cape Canaveral, Florida, a Florida municipal corporation. 1.4 Special Magistrate. Whenever the term Special Magistrate is used herein, it is intended to mean Richard S. Geller, Esquire, the person selected to perform the services of Special Magistrate pursuant to this Agreement, who is a member of the Florida Bar in good standing, has no less than five (5) years practice experience, which includes courtroom and administrative Page 1 of 8 Agreement for Special Magistrate hearing experience, and does not serve as a special magistrate for any other government agency consistent with the provisions of Article II, section 5(a), Florida Statutes. ARTICLE 2 SCOPE OF SERVICES 2.1 The Special Magistrate agrees to perform the functions specifically set forth in the Code of Ordinances of the City of Cape Canaveral, Florida to include holding hearings and assessing fines against violators of City codes and ordinances. Unless otherwise directed by the City, all hearings shall be held in the City Council Chambers at City Hall located at 100 Polk Avenue, Cape Canaveral, Florida 32920. 2.2 The Special Magistrate shall be vested with the authority granted to special magistrates pursuant to the City Code, Chapter 162, Florida Statutes and other applicable law. The Special Magistrate will function in a quasi-judicial capacity and shall be subject to the same duties, rights, and immunities as other judicial officers, including the duty to operate independently and impartially and to exercise discretion in formulating orders within the parameters of the jurisdiction granted. 2.3 The Special Magistrate agrees to perform the functions specifically set forth in Chapter 82, Article IX of the City Code regarding the International Property Maintenance Code and Chapter 2, Article VI of the City Code regarding general code enforcement. 2.4 The City hereby agrees to cooperate expeditiously and provide necessary administrative staff and financial support as may be reasonably required for the proper performance of the Special Magistrate's duties. 2.5 The City reserves the unconditional right at any time and at its discretion to appoint and assign special magistrate services to other duly qualified attorneys. ARTICLE 3 COMPENSATION AND METHOD OF PAYMENT 3.1 Compensation. City shall pay Special Magistrate a minimum base fee of Five Hundred Sixty -Two and 50/100 Dollars ($562.50) for attendance at each scheduled hearing ("Base Fee"). The Base Fee shall include preparation for the scheduled hearing and up to two and one-half hours of Special Magistrate time during the hearing. The Base Fee shall also include travel time to and from the hearing. Special Magistrate shall receive Two Hundred Twenty -Five and No/100 Dollars ($225.00) per hour for any additional time required to be expended by the Page 2 of 8 Agreement for Special Magistrate Special Magistrate in furtherance of his duties and responsibilities required by this Agreement. Special Magistrate shall not charge for routine office expenses such as phone calls, overhead, and clerical and secretarial services. However, Special Magistrate shall receive cost reimbursement for any reasonable out-of-pocket expenses such as postage, process servers, and copying charges. 3.2 Payment. City agrees that it will make its best efforts to pay Special Magistrate within thirty (30) calendar days of receipt and approval (as to form) of Special Magistrate's invoice. Invoices shall reflect the time, place, date, duration, and parties as to each hearing and shall reflect the number of hours expended for each such hearing. Payments under this agreement and interest on any late payments shall be governed by and construed in accordance with the Florida Prompt Payment Act, Section 218.70, et seq., Florida Statues, as amended. ARTICLE 4 CHANGES IN SCOPE OF WORK 4.1 City or Special Magistrate may request changes that would increase, decrease, or otherwise modify the scope of the services to be provided under this Agreement. Such changes and method of compensation must be agreed upon in writing in a document of equal dignity herewith prior to any deviation from the terms of this Agreement, including the initiation of any extra work. Such changes when properly executed shall become an Amendment to this Agreement. ARTICLE 5 MISCELLANEOUS 5.1 Term. The term of this Agreement shall commence upon the Effective Date and continue for a term of two (2) years. Upon mutual agreement of the parties, the Agreement may be renewed for three (3) additional one year terms unless terminated as provided herein. 5.2 Termination. Special Magistrate agrees to serve at the pleasure of the City Council. No pre -termination notice will be required by the City to terminate this Agreement. However, Special Magistrate may terminate this Agreement by providing thirty (30) days written notice of such termination to the City. Upon termination, the Special Magistrate shall be paid compensation for services performed to the date of termination. 5.3 Assignment. This Agreement, or any interest herein, shall not be assigned, transferred or otherwise encumbered, under any circumstances, by Special Magistrate, without the proper written consent of City. However, the Agreement shall run to the City of Cape Canaveral government and its successors. Page 3 of 8 Agreement for Special Magistrate 5.4 All Prior Agreements Superseded. This document incorporates and includes all prior negotiations, correspondence, conversations, agreements, or understandings applicable to these matters contained herein and the parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements whether oral or written. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and equal dignity herein. 5.5 Notices Any notice, payment or other communication under this Agreement required hereunder or desired by the party giving such notice shall be given in writing and shall be deemed to have been duly given, served and delivered, if delivered by hand or mailed by United States registered or certified mail or sent by facsimile, addressed as follows: If to Special Magistrate Richard S. Geller Fishback Dominick 1947 Lee Road Winter Park, Florida 32789 (407) 262-8400 If to City: City Manager City of Cape Canaveral 100 Polk Avenue City of Cape Canaveral, Florida 32920 (321)-868-1220 Each party hereto may change its mailing address by giving to the other party hereto, by hand delivery, United States registered or certified mail notice of election to change such address. 5.6 Conflict of Interest. Special Magistrate affirms that his/her retention shall not result in an actual or potential conflict of interest with any party who may be affected by the award of this contract. Should any potential or existing conflict be known by Special Magistrate, said Special Magistrate must specify the party with whom the conflict exists or might arise, the nature of the conflict, and whether the Special Magistrate would or would not step aside or resign from that engagement or representation creating the conflict. Special Magistrate shall not act as counsel to any third party or as an expert witness in any lawsuit in which the City is named as an adverse party. 5.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, and the parties stipulate that the venue shall be Brevard County, Florida. Page 4 of 8 Agreement for Special Magistrate 5.8 Public Records. The Special Magistrate shall allow public access to all documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida Statutes, and made or received by the Special Magistrate in conjunction with this Agreement. Specifically, the Special Magistrate shall: (a) Keep and maintain public records that ordinarily and necessarily would be required by the City in order to perform the service. (b) Upon request of 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 state law or as otherwise provided by law. (c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Special Magistrate does not transfer the records to the City. (d) Meet all requirements for retaining public records and transfer, at no cost, to the City all public records in possession of the Special Magistrate upon termination of the Agreement and destroy and duplicate public records that are exempt or confidential and exempt from the public records disclosure requirements. All records stored electronically must be provided to the City in a format that is compatible with the information technology system of the City. (e) IF THE SPECIAL MAGISTRATE HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE SPECIAL MAGISTRATE'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS MIA GOFORTH, CITY CLERK, AT (321) 868-1220 (X207), M.GOFORTH@CITYOFCAPECANAVERAL.ORG, 100 POLK AVENUE, CAPE CANAVERAL, FLORIDA 32920. 5.9 Miscellaneous. If any term or condition of this Agreement shall be invalid or unenforceable, the remainder of the terms and conditions of this Agreement shall remain in full force and effect. This Agreement shall not be more strictly construed against either party hereto by reason of the fact that one party may have drafted or prepared any or all of the terms and provisions hereof. 5.10 Independent Special Magistrate. Special Magistrate understands and agrees that Special Magistrate is an independent Special Magistrate and not a City employee and is not Page 5 of 8 Agreement for Special Magistrate entitled to any City benefits, insurances, or compensation other than as provided in this agreement. 5.11 Insurance and Bond. Special Magistrate shall provide and maintain, during the entire term of this Agreement, without cost to the City, insurance in the following types and limits with a company or companies authorized to do business in the State of Florida. Special Magistrate shall not commence work under the Agreement until City has received an acceptable certificate or certificates of insurance and endorsement evidencing the required insurance, which is as follows: (A) General Liability insurance on forms no more restrictive than the latest edition of the Commercial General Liability policy (CG 00 01 or CG 00 02) of the Insurance Services Office or equivalent without restrictive endorsements, with the following minimum limits and coverage limits fully available during the entire contract period: (B) General Liability Each Occurrence/General Aggregate $1,000,000 Professional Liability $1,000,000 Premises Operation $1,000,000 Personal & Adv. Injury $1,000,000 Medical Expense $5,000 Automobile liability insurance, including owned, non -owned and hired autos with the following minimum limits and coverage: Combined Single Limit $300,000 Or Bodily Injury (per person) $100,000 Bodily Injury (per accident) $100,000 Property Damage $50,000 (C) Workers' compensation insurance in accordance with Florida Statute, Chapter 440, and/or any other applicable law requiring workers' compensation (Federal, maritime, etc). (D) Additional Requirements: (1) City of Cape Canaveral shall be named and endorsed as an additional insured on the General liability policy. (2) The General Liability policy is to contain or be endorsed to name the City, its officers, officials and employees as additional insureds as respects to the liability arising Page 6 of 8 Agreement for Special Magistrate out of the activities performed under this Agreement. Such coverage shall be primary to the extent of Special Magistrate negligent acts or omissions or willful misconduct, and shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. In addition, a waiver of subrogation by the commercial liability insurer shall be provided that lists or names the additional insured as subject to the waiver. The additional insured shall be non- contributory. Coverage shall be on an "occurrence" basis and not "claims made." (3) Certificates of insurance shall provide for a minimum of thirty (30) days prior written notice to the City of any material change or cancellation of the required insurance, with ten (10) day written notice of cancellation due to non-payment of premium. (4) Certificates of insurance shall identify this Agreement in the Description of Operations section of the Certificate. (5) The Certificate holder section of each policy shall state: City of Cape Canaveral, 100 Polk Avenue, Cape Canaveral, Florida 32920. (6) Special Magistrate shall be solely responsible for all deductibles and self- insurance retention on Special Magistrate Liability Insurance policies. All of the policies of insurance so required to be purchased and maintained shall contain a provision or endorsement that the coverage afforded shall not be canceled, materially changed or renewal refused without thirty (30) calendar days written notice, or without ten (10) days written notice of cancellation due to non-payment of premium, being given to City by certified mail. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement for the purposes stated herein. SPECIAL MAGISTRATE: FISHBACK DOMINICK By. Richard S. Gel r Signed, sealed and delivered in the presence o tnesses: Page 7 of 8 Agreement for Special Magistrate CITY OF CAPE CANAVERAL: Bob Hoog, Mayor Mia Gofbr i, ity Clerk Approved by the City Council on December 17, 2019 Approved as to Form and Legality For the City of Cape Canaveral Only: Anthony A. Garganese, City Attorney Page 8 of 8 Agreement for Special Magistrate