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Res No 095-12-13652RESOLUTION NO. 95 -12 -13652 A Resolution authorizing the City Manager to execute a contract relating to Special Magistrate services; appointing Lewis S. Kimler, Esquire, as an additional Special Magistrate for the City of South Miami at a rate of $100.00 per hour; authorizing expenses to be charged to account number 001- 1640 -524 -3111, (Code Enforcement Professional Services Special Magistrate). WHEREAS, pursuant to Ordinance No. 6 -03 -1790, adopted by the South Miami City Commission on March 18, 2003 establishing a Special Magistrate at a rate of $100 per hour; and payment to be made from account No. 001 - 1640 -524 -3111 Code Enforcement Professional Services Special Magistrate, with a current balance of $1,100.00. WHEREAS, the use of Special Magistrate has proven to be an expeditious, cost effective and fair means of adjudicating issues relating to code violations; and WHEREAS, based on his background, experience, and interview, the City Manager recommends Lewis S. Kimler, Esq., to fill a term of one year to provide the Special Magistrate services to the City of South Miami commencing May 7, 2012, and ending May 7, 2013; and WHEREAS, the Mayor and City Commission have accepted the above recommendation. NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA; Section 1. Lewis S. Kimler, Esquire, is hereby appointed to serve as Special Magistrate for the City of South Miami at the rate of $100.00 per hour to be charged to account No. 001 - 1640 -524 -3111 Code Enforcement Professional Services Special Magistrate, Section 2. Special Magistrate services of Lewis S. Kimler, Esq., shall remain in effect for a period of one -year commencing May 7, 2012, and ending May 7, 2013, Section 3. Lewis S. Kimler, Esq., shall be authorized to conduct hearings as may be required in accordance Ordinance No. 6 -03 -1790 and concerning issues that arise under the City's Code of Ordinances, Land Development Code, the Florida Building Code and the Miami -Dade County Code. Section 4. If any section clause, sentence, or phrase of this resolution is for any reason held invalid or unconstitutional by a 6ourt of competent jurisdiction, the holding shall not affect the validity of the remaining portions of this resolution. Section 5. This resolution shall become effective immediately upon adoption by vote of the City Commission, PASSED AND ADOPTED this' st day of May , 2012. Page 1 of 2 Res. No. 95 -12 -13652 ATTEST: READ AND LANGUAG- THEREO TTORNEY AS TQZORM, COMMISSION VOTE 5 -0 Mayor Stoddard: Yea Vice Mayor Liebman: Yea Commissioner Newman: Yea Commissioner Harris: Yea Commissioner Welsh: Yea Page 2 of 2 South Miami AG- Amefica City CITY OF SOUTH MIAMI , 'x' OFFICE OF THE CITY MANAGER INTER- OFFICE MEMORANDUM 2061 To: The Honorable Mayor and Members of the ity Commission Via: Hector Mirabile, Ph.D, City Manager ! From: Caren a er, Ch f Coordinating fficer /Code Enforcement Manager Date: May I, 2012 Agenda Item # Subject: A Resolution authorizing the City Manager to execute a contract relating to Special Magistrate services; appointing Lewis S. Kimler, Esquire, as an additional Special Magistrate for the City of South Miami at a rate of $100.00 per hour; authorizing expenses to be charged to account number 001 -1640- 524 -3111 (Code Enforcement Professional Services Special Magistrate). Background: The City Commission adopted Ordinance No. 6 -03 -1790, establishing a Special Magistrate in an effort to preside over code enforcement violation hearings. The use 'of a Special Magistrate is a cost effective option of adjudicating issues relating to code violations that has proven to be fair and expeditious. This is an additional appointment to Bruce Blitman who is currently presiding over the City's Code Enforcement hearings and necessary due to an increase in intent to lien hearings for false alarms, excess trash, storm water, and upcoming vehicle impoundment cases. Lewis S. Kimler, Esq., currently presides over Baker Act/Marchman Act cases, Involuntary Placement cases, and Determination Incapacity at the Dade County Courthouse rendering recommendations to Probate Judges, Adult Protective Service, Surgical Procedure cases and T.B. Commitment cases. Mr. Kimler teachers interns Mental Health Law at Jackson Memorial Hospital. Pursuant to the above - referenced ordinance, staff recommends the appointment of Lewis S. Kimler, Esq.; his resume is attached. Lewis S. Kimler, Esq. will be appointed to serve for a period of one -year commencing May 7, 2012, and ending May 7, 2013, or until other successor is appointed by the City Commission. The negotiated fee to provide said services is $100.00 per hour. Expense: $2,200 (estimated expense through the end of FY 2012) Account: Funds are budgeted in account number 001 -1640"524-3111 with a balance of $1,100.00. Attachments: Resolution Resume Lewis S. Kimler Dade County Courthouse 73 West Flagler Street, Room 1609 Miami, Florida 33130 (305) 349 4697 Office /(954) 494 -1501 Cellular E -mail Address: Ikimier @jud11.ficourts.org JUDICIAL ADMINISTRATION Significant Credentials In a Public Sector Environment Probate Law Guardianship /Estates Baker Act/Marchman Act Private Practice Civil Law /Probate Law Circuit Court Experience Notably 30 years EMPLOYMENT OVERVIEW: 812004 - Present (Full -Time) Eleventh Judicial Circuit of Miami, Probate General Magistrate Division Currently presiding over Baker Act/Marchman Act cases. Travel to Jackson Memorial Hospital and other facilities to preside over Involuntary Placement cases. Preside over cases to Determination Incapacity at the Dade County Courthouse and render to the Probate Judges my recommendations. Teach Legal Interns Mental Health Law at Jackson Memorial Hospital. Preside over Adult Protective Service cases, Surgical Procedure cases, and T.B. commitment cases. 1978 - 7/2004 (Part-Time) Eleventh Judicial Circuit of Miami, Probate General Master Division Preside over Baker Act/Marchman Act cases. Travel to Jackson Memorial Hospital and other facilities to preside over Involuntary Placement cases. Preside over cases to Determination Incapacity at the Dade County Courthouse and render to the Probate Judges my recommendations. Teach Legal Interns Mental Health Law at Jackson Memorial Hospital. Preside over Adult Protective Service cases, Surgical Procedure cases, and T.B. commitment cases. 1978 - 7/2004 (Part -Time) Law Offices of Lewis. S. Kimler P.A. Attorney - Civil /Probate (Guardianship) Litigator Litigated Summary Judgment Hearings, Pretrial Conferences, Jury and Non -Jury trials before circuit judges in Miami -Dade County, Broward County and other jurisdictions. Attended mediation to settle civil cases consisted of personal injury cases, products liability cases, contract cases, mortgage cases. 1970 - 1974 (Full -Time) Public Defender's Office, Miami -Dade Assistant Public Defender County Head of the Appellate Division/ Mental Health Division Supervised five assistant public defenders; Reviewed Appellate briefs, prepared legal briefs for'cases in District Court of Appeals, Florida Supreme Court. Federal District Courts, Federal Appellate Courts, and U.S. Supreme Court 1969 - 1970 (Full -Time) State Attorney General's Office, Miami, Assistant Attorney General Florida Prepared legal briefs for cases in District Court of Appeals, Florida Supreme Court. Federal District Courts, Federal Appellate Courts, and U.S. Supreme Court. 1966 - 1969 (Part-Time) Miami High School, Miami, Florida Substitute Teacher As an educator, thirty students. 6 taught History to a class of Shenandoah Junior High School, Miami, Florida As an educator, taught English, History and Math classes. EDUCATION. University of Miami - B.A. Degree - 1966 University of Miami School of Law - J.D. Degree -1969 LECTURES /SEMINARS /PROFESSIONAL MEMBERSHIP. 1998 - Lectured at the University of Miami Psychiatric Medicine and Law Seminar Baker Act and March Act in Florida 1983 - Attended the Hampton Seminars, Incorporated in Sarasota, Florida and Lectured on Mental Health Law — Commitment and Addiction 1980 - Lectured at the Supreme Court Study Committee for Baker Act (Streamline the Court in the Mental Health Division) 1975 - Attended the Florida Bar Association Seminar and lectured on Baker Act Law in Tallahassee, Florida 1970 - Lectured at the Judicial Conference for Circuit Judges on Baker Act Laws and Procedures 1969 - Florida Bar Member I_ \YLVIAV ~�1 2007 - Maria M. Korvick Award of Excellence 1998 - Association for Retarded Citizens, South Florida Mayer Finkel Memorial Advocacy Award for his efforts furthering the civil and human rights of persons with mental retardation October 28, 1998 1969 - 1973 Awards — Assistant Public Defender of the Eleventh Judicial Circuit of Florida for devoting thousands of hours to the majesty of law giving life to precedent and liberty to the poor W Member Search Lewis Stephen Kimler Member in Good Standing ID Number: - 119348 Address: 10605 Indian Trl Page 1 of 1 The Florida Bar www.flaridabar.org Eligible to practice in Florida Cooper City, Florida 333285511 United States Phone: 954.4941501 Fax: 954.6804289 E -Mail: Ikimler @bellsouth.net vCa rd : County: Broward Circuit: 17 Admitted: 11/10/1969 10 -Year Discipline None History The Find A Lawyer directory provides limited basic information about attorneys licensed to practice in Florida and is provided as a public service by The Florida Bar. The information contained herein is provided "as is" with no warranty of any kind, express or implied. The Florida Bar, its Board of Governors, employees, and agents thereof are not responsible for the accuracy of the data. Much of the information is provided by the attorney and it is the attorney's responsibility to review and update the information. Publication of attorneys' contact information within this listing should not be construed as their consent to receive unsolicited communications in any form. Certain unauthorized uses of this data may result in civil or criminal penalties. The Find A Lawyer directory is not a lawyer referral service. 08 -09 -201 © 2005 The Florida Bar I Disclaimer I Top of page I llttp:// www. floridabar .org /names.nsf /0 /EEAA6C01 FE9DFEF785256A8300271 B3F ?Open... 4/25/2012 REFERENCES: Will be furnished upon request m CONTRACT BETWEEN CITY OF SOUTH MIAMI AND LEWIS S. KIMLER, ESQUIRE This contract is made and entered into this day of 20L, between the City of South Miami ( "City "), a Florida municipal corporation, located at 6130 Sunset Drive, South Miami, Florida 33143 and LEWIS S. KIMLER, Esq. ( "Special Master "), individually, located at 10605 Indian Trail, Cooper City, Florida 33328. WITNESSTH: WHEREAS, the City desires to engage and retain the services of the Special Master to perform Special Master services as described in this contract and the Special Master desires to accept the engagement; and, NOW THEREFORE, in consideration of the sum Ten dollars ($10.00), the mutual promises and covenants contained in this contract, and for other good and valuable consideration, the receipt and legal sufficiency of which is acknowledged by both parties, the parties agree as follows, 1. WHEREAS CLAUSES 1.l . The above whereas clauses are incorporated and made a part of this contract. 2. SCOPE OF WORK 2.1. The scope of work is provided within the City's Code of Ordinances, Chapter 2, section 2 -24 (powers, duties and qualifications) and 2 -25 (code enforcement procedures). 3. COMMENCEMENT DATE AND TERM 3.1. The term shall commence upon the date of the execution of this contract, but not earlier than May 7, 2012 and expires on May 7, 2013. 3.2. Work shall commence upon the issuance of an agenda, for the Special Master, by the City. Work shall proceed in substantial compliance with the scope of work. 4. PAYMENT 4.1. The City shall pay the Special Master one hundred dollars ($100.00) per hour as provided in the City's code of ordinances. 4.2. The City shall not be liable to pay, and shall not pay, charges for extra work, delay charges, or additional work, unless the City Manager specifically authorizes the extra or additional work, in a written order before the commencement of the work. In no event shall the total amount paid under this contract exceed the annual budgeted amount for the Special Masters unless approved by resolution of the commission. Page 1 of 5 i C SffeciAl Master 5. TRANSFER AND ASSIGNMENT 5.1. None of the work or services under this contract shall be subcontracted unless the Special Master obtains prior written consent from the City. Approved subcontractors shall be subject to each provision of this contract and the Special Master shall be responsible and indemnify the City for all subcontractors' acts, errors or omissions. 5.2. The Special Master shall not assign, transfer or however, claims for money by the Special Master from assigned, transferred or pledge to a bank, trust company, the City's approval. Written notice of any assignment, furnished by the Special Master to the City within ten pledge. 6. TERMINATION FOR DEFAULT pledge any interest in this contract, the City under this contract may be or other financial institution without transfer or pledge of funds shall be days of the assignment, transfer or 6.1. Either party may terminate this contract prior to the expiration of its term or any subsequent renewal term on account of a material breach of this contract by the other party. The contract shall not be terminated until the breaching party is given written notice of the breach and ten (10) days to cure the default. If the default is not cured within the ten (10) days cure period, then the contract shall automatically terminate upon the expiration of the ten (10) days following the receipt of the notice of breach. If the default is cured within ten (10) days of the notice, then the contract may not be terminated. If the same or similar breach occurs a second time, the contract may be terminated, at the option of the non - breaching party, without prior notice or opportunity to cure the default. 6.2. In the event that the Special Master is unable to complete the services identified in Paragraph 2.1 due to causes beyond the Special Master's control, the Special Master may terminate this contract prior to the expiration of the initial term or any subsequent renewal term upon not less than ten -days prior written notice to the City. 6.3. The City shall have no liability to the Special Master for future profits or losses in the event of termination or otherwise. 6.4. The rights and remedies of the City provided in this provision shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract. 7. TERMINATION FOR CONVENIENCE 7.1. The City may terminate this contract for convenience at any time by giving ten days written notice to the Special Master. The Special Master will be permitted to complete hearings and shall be paid for all satisfactory work completed. The City shall not be liable for future profits or losses. 7.2. In the event that the City improperly terminates the contract for cause, the termination shall be deemed a termination for convenience under this paragraph. Page 2 of 5 8. INTEREST PAYMENTS DUE TO LATE PAYMENT 8.1. The City shall make payment to the Special Master within thirty (30) days of receipt of the original written invoice. Interest shall accrue on unpaid invoices as provided by Florida Statute, currently sec. 218.74. 8.2. The Special Master shall not be entitled to any carrying charges or finance fee due to late payment by the City. 9. LIENS 9.1. The Special Master is prohibited from placing a lien on City's property. 10. INDEPENDENT CONTRACTOR 10.1. The Special Master is furnishing his services as an independent contractor and nothing in this contract shall create any employer- employee relationships, association, partnership or joint venture between parties. 10.2. As an independent contractor the Special Master agrees and acknowledges that he or she is not an employee of the City of South Miami and therefore not entitled to participate in benefits from City of South Miami Pension Plan or insurance plan. 11. INDEMNIFICATION 11.1. The Special Master shall defend, indemnify and hold the City harmless from any and all claims, liability, losses, expenses, and cause of action arising solely out of an act by the Special Master of intentional misconduct or malfeasance. 12. JURISDICTION AND VENUE 12.1. For the purpose of this contract, Florida law shall govern the terms of this contract and venue shall be in Miami -Dade County, Florida. 13. SOVEREIGN IMMUNITY AND NON -JURY TRIAL 13.1. The City does not waive sovereign immunity for any claim or for an award of prejudgment interest. 13.2. Trial by Jury. The parties waive their right to a jury trial as to any matters that arise out of this agreement 14. NOTICES 14.1. All notices given or required under this contract shall be deemed sufficient if sent by certified mail, return receipt requested, to the addresses of the Special Master and to the City Page 3 of 5 Master specified in this contract, unless either party shall specify to the other party a different address for the giving of the notices. 14.2. For the purposes of this contract, the addresses of the parties for all notices are as follows: To the City: City of South Miami 6130 Sunset Drive South Miami, FL 33143 Attention: City Manager To the Special Master: LEWIS S. KIMLER, Esq. 10605 Indian Trail, COOPER CITY, FLORIDA 33328 Attn: LEWIS S. KIMLER, Esq, 15. EXAMINATION AND RETENTION OF CONTRACTOR'S RECORD 15.1. The City, or any of its duly authorized representative, shall, until 3 years after final payment under this contract, have access to and the right to examine any of the Special Master's books, ledgers, documents, papers, or other records involving transactions related to this contract for the purpose of making, examination, excerpts, and copies.. OWNERSHIP OF DOCUMENTS All documents, reports, or other records, including electronic records, resulting from the services rendered by the Special Master under this contract shall be deemed the property of the City and the City shall have all rights incident to this ownership. The Special Master acknowledges that all documents prepared under this contract shall be public records, and shall be subject to public inspection and copying, as provided by Florida Statute, Chapterl 19. Upon conclusion of this contract, all documents shall be delivered by the Special Master to the City. The Special Master shall have the right to retain copies of the documents at the Special Master's expense. 16. SEVERABILITY 16.1. Should any paragraph or any part of any paragraph of this contract be determined to be void, invalid or unenforceable by any court of competent jurisdiction, for any reason, that determination shall not render void, invalid or unenforceable any other section or part of any section of this contract. 17. ENTIRE CONTRACT 17.1. The contract, when signed by all of the parties, constitutes the full and complete understanding of all parties and shall not be in any manner interpreted in contradiction of the express terms of the contract. This contract and the incorporated attachments, if any, constitute the entire understandings, oral or written, between the parties. Page 4 of 5 18. CONTINGENCY FEE AND CODE OF ETHICS WARRANTY 18.1. The Special Master warrants that neither he, nor any his principals, employees, agents, representatives or family members have paid or promised to pay a fee that is contingent upon the City awarding this contract to the Special Master, 18.2. The Special Master warrants that neither he nor any of his principals, employees, agents, representatives or family member has procured, or attempted to procure, this contract in violation of any of the provisions of the Miami -Dade County or the City of South Miami conflict of interest code or ethics ordinances. 18.3. A violation of this section shall result in the termination of the contract for cause and forfeiture of funds paid, or to be paid, to the Special Master. 19. MISCELLANEOUS 19.1. In the event a court must interpret any word or provision of this agreement, the word or provision shall not be construed against the party who drafted this agreement. IN WITNESS WHEREOF, the parties hereto, acting individually Trough their duly authorized officers, have executed this contract as of the date first ab e w itten. City of South Miami SpetL By: 7 v By: Dr. Hect r Mirabile LKIMLEaR, Esq, City Manager FMAI C CITY CLERK City Page 5 of 5 Master