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11To: Via: From: Date: Subject: Background: Expense: Account: CITY OF SOUTH MIAMI OFFICE OF THE CITY MANAGER INTER-OFFICE MEMORANDUM 2001 The Honorable Mayor and Members of ~1ity Commission Hector Mirabile. Ph.D. City Mana geL1. ~ ~f Coordinating fficer/Code Enforcement Manager IJ May I, 2012 Agenda Item # __ .:c../...;:. 41 __ 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 001-1640-524-31 I I (Code Enforcement Professional Services Special Magistrate). 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 ~ecessary 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. $2,200 (estimated expense through the end of FY 2012) Funds are budgeted in account number 001-1640-524-31 I I with a balance of $1,100.00. Attachments: Resolution Resume 1 RESOLUTION NO. _____ _ 2 3 A Resolution authorizing the City Manager to execute a contract relating to Special 4 Magistrate services; appointing Lewis S. Kimler, Esquire, as an additional Special 5 Magistrate for the City of South Miami at a rate of $100.00 per hour; authorizing 6 expenses to be charged to account number 001-1640-524-3111, (Code Enforcement 7 Professional Services Special Magistrate). 8 9 WHEREAS, pursuant to Ordinance No. 6-03-1790, adopted by the South Miami City 10 Commission on March 18, 2003 establishing a Special Magistrate at a rate of $100 per hour; 11 and payment to be made from account No. 001-1640-524-3111 Code Enforcement 12 Professional Services Special Magistrate, with a current balance of$I,100.00. 13 14 WHEREAS, the use of Special Magistrate has proven to be an expeditious, cost 15 effective and fair means of adjudicating issues relating to code violations; and 16 17 WHEREAS, based on his background, experience, and interview, the City Manager 18 recommends Lewis S. Kimler, Esq., to fill a term of one year to provide the Special 19 Magistrate services to the City of South Miami commencing May 7, 2012, and ending May 20 7,2013; and 21 22 WHEREAS, the Mayor and City Commission have accepted the above 23 recommendation. 24 25 NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY 26 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA; 27 28 Section 1. Lewis S. Kimler, Esquire, is hereby appointed to serve as Special 29 Magistrate for the City of South Miami at the rate of $100.00 per hour to be charged to 30 account No. 001-1640-524-3111, Code Enforcement Professional Services Special 3 1 Magistrate. 32 33 Section 2. Special Magistrate services of Lewis S. Kimler, Esq., shall remain in 34 effect for a period of one-year commencing May 7, 2012, and ending May 7, 2013. 35 36 Section 3. Lewis S. Kimler, Esq., shall be authorized to conduct hearings as may 37 be required in accordance Ordinance No. 6-03-1790 and concerning issues that arise under 38 the City's Code of Ordinances, Land Development Code, the Florida Building Code and the 39 Miami-Dade County Code. 40 41 Section 4. If any section clause, sentence, or phrase of this resolution is for any 42 reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall 43 not affect the validity of the remaining portions ofthis resolution. 44 45 Section 5. This resolution shall become effective immediately upon adoption by vote 46 of the City Commission. 47 Page 1 of2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 PASSED AND ADOPTED this _ day of ____ , 2012. ATTEST: CITY CLERK READ AND APPROVED AS TO FORM ... LANGUAGE, LEGALITY, AND EXECUTION THEREOF CITY ATTORNEY APPROVED: MAYOR COMMISSION VOTE Mayor Stoddard: Vice Mayor Liebman: Commissioner Newman: Commissioner Harris: Commissioner Welsh: Page 2 of2 Lewis S. Kimler Dade County Courthouse 73 West Flagler Street, Room 1609 Miami, Florida 33130 (305) 349-7697 Office/(954) 494-1501 Cellular E-mail Address: Ikimler@jud11.flcourts.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: 8/2004 -Present (Full-Time) General Magistrate 1978 -7/2004 (Part-Time) General Master Eleventh Judicial Circuit of Miami, Probate 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. Eleventh Judicial Circuit of Miami, Probate 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 1978 -7/2004 (Part-Time) Attorney -Civil/Probate (Guardianship) Litigator 1970 -1974 (Full-Time) Assistant Public Defender Head of the Appellate Division/ Mental Health Division 1969 -1970 (Full-Time) Assistant Attorney General 1966 -1969 (Part-Time) Substitute Teacher 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. Law Offices of Lewis. S. Kimler P.A. 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. Public Defender's Office, Miami-Dade County 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 State Attorney General's Office, Miami, 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. Miami High School, Miami, Florida As an educator, taught History to a class of thirty students. 2 EDUCATION: Shenandoah Junior High School, Miami, Florida As an educator, taught English, History and Math classes. 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 AWARDS: 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 3 REFERENCES: Will be furnished upon request 4 CONTRACT BETWEEN CITY OF SOUTH MIAMI AND LEWIS S. KIMLER This contract is made and entered into this 7th day of May 2012, 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. individually, located at Dade County Courthouse, 73 West Flagler Street, Room 1609, Miami, FL. 33130, WITNESSTH: WHEREAS, the City desires to engage and retain the services of the Special Magistrate to perform Special Magistrate services as described in this contract and the Special Magistrate 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 1.1. The above whereas clauses are incorporated and made a part of this contract. 2. SCOPE OF WORK 2.1. The scope of work for this project shall be as provided within the City's Code of Ordinances, section 2-24 and 2-25. 3. COMMENCEMENT DATE AND TERM 3.1. The term shall commence upon date of the execution of this contract and expires in May 19,2012. 3.2. Work shall commence upon the issuance of an agenda by the City. Work shall proceed in substantial compliance with the schedule of services contained in the scope of work. 4. PAYMENT 4.1. The City shall pay the Special Magistrate one hundred dollars ($100.00) per hour as provided in 2-24(h) of the City's code of ordinances. City Consultant Page 1 of6 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 of two thousand seven hundred dollars ($2,700.00) unless approved by resolution of the commission. 5. TRANSFER AND ASSIGNMENT 5.1. None of the work or services under this contract shall be subcontracted unless the consultant obtains prior written consent from the City. Approved subcontractors shall be subject to each provision of his contract and the consultant shall be responsible and indemnify the City for all subcontractors' acts, errors or omissions. 5.2. The Special Magistrate shall not assign, transfer or pledge any interest in this contract, however, that claims for money by the Special Magistrate from the City under this contract may be assigned, transferred or pledge to a bank, trust company, or other financial institution without the City'S approval. Written notice of any assignment, transfer or pledge of funds shall be furnished within ten days by the Special Magistrate to the City. 6. TERMINATION FOR DEFAULT 6.1. Either party may terminate this contract prior to the expiration of the initial term or any subsequent renewal term on account of a material breach of this contract by the other party, which has not been cured within ten days from the date of receipt of written notice of breach from the party seeking termination. 6.2. Termination shall be effective as of the end of the notice period in the case of any uncured material breach. 6.3. The Special Magistrate 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 in the event that the Special Magistrate is unable to complete the services identified in Paragraph 2.1 due to causes beyond the Special Magistrate's control. 6.4. The City shall have no liability to the Special Magistrate for future profits or losses in the event of termination or otherwise. 6.5. The rights and remedies of th~ 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. City Consultant Page 2 of6 7. TERMINATION FOR CONVENIENCE 7.1. The City may terminate this contract for convenience at any time by giving ten day notice in writing to the Special Magistrate. The Special Magistrate 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 default, the termination shall be deemed a termination for convenience under this paragraph. 8. INTEREST PAYMENTS DUE TO LATE PAYMENT 8.1. The City shall make payment to the Special Magistrate within thirty (30) days of receipt of the original written invoice. Interest shall accrue on unpaid invoices as provided by Section 218.74, Florida Statutes. 8.2. The Special Magistrate shall not be entitled to any carrying charges of finance fee due to late payment by the City. 9. LIENS 9.1. The Special Magistrate is prohibited from placing a lien on City's property. 10. INDEPENDENT CONTRACTOR 10.1. The Special Magistrate is furnishing his services as an independent contractor and nothing in this contract shall create any association, partnership or joint venture between parties, or any employer-employee relationships. 10.2. As an Independent contractor Special Magistrate agrees and acknowledges that he is not an employee of the City of South Miami and therefore not entitled to participate in or directly benefit from City of South Miami Pension Plan or insurance plan. 11. INDEMNIFICATION 11.1. The Special Magistrate shall defend, indemnity 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 Magistrate of international misconduct or malfeasance. 12. JURISDICTION AND VENUE 12.1. For the purpose of this contract, Florida law shall govern the term of this contract. Venue shall be in Miami Dade County, Florida. City Consultant Page 3 of6 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 Magistrate and to the City 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: To the Special Magistrate: City of South Miami 6130 Sunset Drive South Miami, FL 33143 Attention: City Manager Lewis S. Kimler, Esq. Dade County Courthouse, 73 West Flagler Street, Room 1609 Miami, FL 33130 Attn: Lewis S. Kimler, Esq. 15. EXAMINATION AND RETENTION OF CONTRACTOR'S RECORD 15.1. The City, or any of their 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 Magistrate's books, ledgers, documents, papers, or other records involving transactions related to this contract for the purpose of making, examination, excerpts, and transcriptions. OWNERSHIP OF DOCUMENTS All documents, reports, or other records, including electronic records, resulting from the services rendered by the Special Magistrate under this contract shall be deemed the property of the City and the City shall have all rights incident to this ownership. The Special Magistrate acknowledges that all documents prepared under this contract shall be public records, and shall be subject to public inspection and copying, as provided by the Florida Statutes Chapter-119. Upon conclusion of this contract, all documents shall be delivered by the consultant to the City. The Special Magistrate shall have right to retain copies of the documents at the Special Magistrate's expense. City Consultant Page 4 of6 16. SEVERABILITY 16.1. Should any paragraph or any part of any paragraph of this contract be rendered void, invalid or unenforceable by any court of law, for any reason, the 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 or fulfilled in contradiction of its express terms. This contract and the incorporated attachments, if any, constitute the entire understandings, oral or written between the parties. 18. CONTINGENCY FEE AND CODE OF ETHICS WARRANTY 18.1. The Special Magistrate warrants that neither it, nor any principal, employee, agent, representative or family member promised to pay, and the Special Magistrate has not, and will not, pay a fee the amount of which is contingent upon the City awarding this contract to the Special Magistrate. 18.2. The Special Magistrate warrants that neither he, nor any principal, employees, agent, representative 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 of ethics ordinances. 18.3. A violation of this section shall result in the termination of the contract and forfeiture of funds paid, or to be paid, to the Special Magistrate. City Consultant Page 5 of6 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 through their duly authorized officers, have executed this contract as of the date first above written. The City of South Miami By: -------------------- Dr. Hector Mirabile City Manager ATTEST: CITY CLERK By: Maria Menendez Approved as to form: By: Special Magistrate By: -------------------- Lewis S. Kimler, Esq. City Consultant Page 6 of6 Member Search Page 1 of 1 The Florida Bar www.floridabar.org Lewis Stephen Kimler Member in Good Standing Eligible to practice in Florida ID Number: Address: Phone: Fax: E-Mail: vCard: County: Circuit: Admitted: 10-Year Discipline History -119348 10605 Indian Trl Cooper City, Florida 333285511 United States 954.4941501 954.6804289 Ikimler@bellsouth.net '? Broward 17 11/10/1969 None 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. 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