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HomeMy WebLinkAbout2013 08 12 Other: Referenced by Attorney Garganese Date: August 12, 2013 During the August 12, 2013 City Commission Regular Meeting, at the beginning of the Consent Agenda, the attached information was referenced by City Attorney Anthony A. Garganese. B L BROWN, GARGANESE, WEISS & D'AGRESTA, P.A. D Attorneys at Law 111 N. Orange Ave.,Suite 2000 P.O.Box 2873 Anthony A. Garganese Orlando,Florida 32802-2873 Board Certified City,County&Local Government Phone(407)425-9566 Fax(407)425-9596 agarganese@orlandolaw.net MEMORANDUM TO: City Commission and City Manager of Winter Springs Azz,--------------- FROM: Anthony A. Garganese, City Attorney Date: August 12, 2013 Re: Compliance with Ch. 2013-154, Laws of Florida This past session,the Florida Legislature adopted Ch. 2013-154, Laws of Florida. This law became effective on July 1, 2013 upon approval by the Governor. The purpose of this memorandum is to address the portion of the law that deals with public records which will be codified as section 119.0701, Florida Statutes. Particularly, the law now requires the City to insert a "public records contract clause" into all future agreements with business entities providing services to the City and acting on the City's behalf. In essence, each such agreement must expressly include a provision that requires the contractor to comply with the public records law including keeping and maintaining public records, providing access to public records on the same terms as the City, ensuring that confidential and exempt records are not publicly disclosed, requiring transfer to the City, at no cost, at certain times and requiring electronic transfer of public records in compatible form with the City's IT department. The new law will apply to stand alone contracts and routine purchase orders that are used as the sole contract with a contractor by the City. In due course, purchase orders should be revised to comply with the new law. THIS SAMPLE CONTRACT CLAUSE WAS DRAFTED FOR PURPOSES OF COMPLYING WITH THE NEW REQUIREMENTS SET FORTH IN SECTION 119.0701, FLORIDA STATUTES (2013); CH. 2013-154, LAWS OF FLORIDA. ADDITIONAL SAFEGUARDS ARE ALSO ADDED. MY OFFICE WILL BE ATTEMPTING TO SUBSTANTIALLY INSERT THIS CLAUSE INTO ALL FUTURE CITY CONTRACTS. In accordance with section 119.0701, Florida Statutes, Contractor agrees that all documents, transactions, writings, papers, letters, tapes, photographs, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to this Agreement or in connection with any funds provided by the City pursuant to this Agreement may be considered public records pursuant to Ft.Lauderdale (954) 670-1979 • Kissimmee (321)402-0144 • Cocoa(866)425-9566 Website:www.orlandolaw.net • Email: firm @orlandolaw.net City of Winter Springs 8/12/2013 Page -2— Chapter 119, Florida Statutes. Contractor agrees to keep and maintain any and all public records that ordinarily and necessarily would be required by the City in order to perform the services required by this Agreement. Contractor also agrees to provide the public with access to public records on the same terms and conditions that the City would provide the records and at a cost that does not exceed the cost provided by Chapter 119, Florida Statutes or as otherwise provided by law. Contractor shall also ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. In addition, Contractor shall meet all requirements for retaining public records and transfer,at no cost, to the City all public records in possession of the Contractor upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the City in a format that is compatible with the information technology systems of the City. If Contractor does not comply with a public records request,the City shall have the right to enforce the provisions of this Paragraph. In the event that Contractor fails to comply with the provisions of this Paragraph, and the City is required to enforce the provisions of this Paragraph, or the City suffers a third party award of attorney's fees and/or damages for violating the provisions of Chapter 119, Florida Statutes due to Contractor's failure to comply with the provisions of this Paragraph,the City shall be entitled to collect from Contractor prevailing party attorney's fees and costs, and any damages incurred by the City,for enforcing this Paragraph against Contractor. And, if applicable, the City shall also be entitled to reimbursement of any and all attorney's fees and damages which the City was required to pay a third party because of Contractor's failure to comply with the provisions of this Paragraph. This Paragraph shall survive the termination of this Agreement.