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Special Magistrate Services-Roger Azcona/RFQ FD 01-20-10-18 Renewal #1CITY OF OKEECHOBEE 55 SE THIRD AVENUE OKEECHOBEE, FL 34974 Phone: (863) 763-3372 www. cityofokeechobee. com December 14, 2020 Roger Azcona Law Office of Roger Azcona, Esq. Okeechobee City Council Mayor Dowling R. Watford, Jr. Wes Abney Monica Clark Bob Jarriel Bobby Keefe Subject: Letter Agreement to Renew Contract for Special Magistrate Services Dear Mr. Azcona, On January 15, 2019, the City entered into a Contract with you to serve as Special Magistrate to conduct Code Enforcement hearings ("Agreement"). The Agreement was for a term of two years and states that it may be renewed by both parties for additional term of two years. By signature of the parties below, this letter renews the Agreement under its original terms for an additional two years from the last date provided below. ATTEST: ooiki ane Gamiotea, CMIQ, City Clerk REVIEWEP7TX)BFFICIENCY: John'J. Fumero, City Attorney Dowling R. Watford, Jr., Mayor Date:-- it U(-Li'U Date: ona, Esquire Azcona, Esq. MAGISTRATE INDEPENDENT CONTRACTOR'S AGREEMENT THIS AGREEMENT is entered into this day of /. q 11 day of January, 2019, by and between CITY OF OKEECHOBEE, FLORIDA, a municipal corporation ("CITY") and ROGER AZCONA of LAW OFFICE OF ROGER AZCONA, ESQUIRE ("SPECIAL MAGISTRATE"). WITNESSETH: WHEREAS, the CITY is a municipal corporation in the State of Florida, having a responsibility to provide certain services to benefit the citizens of the CITY and to promote, protect, and improve the health, safety, and welfare of the citizens of the CITY; and WHEREAS, the CITY is desirous of utilizing an attorney to serve as a SPECIAL MAGISTRATE to conduct code enforcement hearings; and WHEREAS, the powers and duties of the Code Enforcement SPECIAL MAGISTRATE are set forth in Chapter 18, Articles 11 and III of the Code of Ordinances of the City of Okeechobee; code enforcement procedures are set forth in Chapter 70, Article 11, Division 8 of the City of Okeechobee Land Development Regulations; and WHEREAS, the SPECIAL MAGISTRATE is an attorney licensed to practice in the State of Florida, is currently a member in good standing of The Florida Bar, and is currently self- employed as the Law Office of Roger Azcona, Esquire. NOW, THEREFORE, for and in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows. - Recitals. THAT the foregoing recitals are true and correct and constitute a material inducement to the parties to enter into this Agreement. 2. Specific Provisions. THAT the parties hereby agree to the following specific provisions: A. General Scope of Services: The SPECIAL MAGISTRATE shall conduct scheduled code enforcement hearings in accordance with the above -referenced provisions of the City of Okeechobee Code of Ordinances, as may, from time to time, be amended. At the conclusion of the hearings, the SPECIAL MAGISTRATE shall immediately issue an order for each matter heard, containing findings of fact, based on the evidence of record, and conclusions of law, and shall order proper relief consistent with the powers granted to the SPECIAL MAGISTRATE. Additionally, the SPECIAL MAGISTRATE shall have the power to hear requests for reduction of accrued code enforcement fines, following which, the SPECIAL MAGISTRATE shall issue to the City Council, a report and recommendation as to a reduction request. The SPECIAL MAGISTRATE shall invite public comment at every hearing from the offender or any other interested person(s). B. Powers of SPECIAL MAGISTRATE: The SPECIAL MAGISTRATE shall have those powers set forth in the City of Okeechobee Code of Ordinances, as may, from time to time, be amended. Currently, those powers are enumerated as follows: (1) adopt rules for the conduct of hearings; (2) subpoena alleged violators and witnesses to its hearings; (2) subpoena evidence to hearings; (4) take testimony under oath; (5) issue orders having the force of law commanding whatever steps are necessary to bring a violation into compliance; and (6) hear requests for reduction of accrued code enforcement fines. C. Compensation: The SPECIAL MAGISTRATE shall be compensated for work completed at the hourly rate of $150.00 per hour. The CITY guarantees a minimum payment for the first one hour of the hearing, regardless of the actual time expended for the hearing. Should any session continue in excess of one hour, the compensation thereafter shall be computed at the rate of $37.50 for each quarter hour of hearing time. Additionally, the SPECIAL MAGISTRATE shall be compensated at the rate of $150.00 per hour for that time engaged in PAGE 1 OF 6 legal research, issuance of subpoenas, and administrative meetings with staff called by the CITY. There shall be no compensation for travel or per diem from the office/home of the SPECIAL MAGISTRATE to the site of the code enforcement hearing. It is contemplated, but not guaranteed, that there will be nine (9) code enforcement hearing dates per year. The SPECIAL MAGISTRATE shall maintain a time log indicating time expended for research/preparation/meetings/hearings and provide to the CITY along with the monthly invoices. The rate of compensation is subject to amendment by Resolution adoptior of the CITY from time to time, at the discretion of the CITY. D. Education: The CITY will fund periodic continuing legal education courses which are limited solely to code enforcement issues for the SPECIAL MAGISTRATE. The costs for such courses exclude overnight lodging, but include per diem travel and meals, in addition to registration fees. The amount to be funded shall be annually included in the CITY budget, at the sole discretion of the CITY. E. Reimbursement of Costs: The SPECIAL MAGISTRATE will be provided funds for issuance of subpoenas, but will not be reimbursed for any costs incurred in connection with the services provided in this Agreement that may occur in his office, such as document reproduction, telephone, staff expenses, or other overhead. F. Billing: A statement for legal services rendered and costs incurred shall be provided on a monthly basis, not later than the 15th day of each month for services rendered in the previous month. The SPECIAL MAGISTRATE will present an itemized bill, which identifies the hours billed for each task or issue. The CITY shall pay all invoices within thirty (30) days of receipt. Service statements shall be sent to the CITY at the address shown in paragraph 2.1.1) herein below. G. Term: This Agreement shall be for a term of two (2) years, beginning on the 1st day of December, 2018, and ending on the 30th day of November, 2020. This Agreement may be renewed by both parties for additional terms of two years, upon such terms as agreed upon. H. Termination. 1) Termination at Will: This Agreement may be terminated by either party at any time without cause by the giving written notice to the other party not less than ninety (90) days prior to the date of termination; provided, that this provision shall not be construed to relieve either party from its rights or obligations of this Agreement through the date of the actual termination. Said notice shall be delivered by certified mail, return receipt requested, or in person with proof of delivery. 2) Termination for Cause: This Agreement may be terminated by either party for cause by the CITY or SPECIAL MAGISTRATE giving written notice to the other party no less than 15 days prior to the date of termination; provided, that this provision shall not be construed to relieve either party from its rights or obligations of this Agreement through the date of the actual termination. Said notice shall be delivered by certified mail, return receipt requested, or in person with proof of delivery. Notices. All notices to the parties under this Agreement shall be in writing and sent certified mail to, or in person with proof of delivery to: 1) CITY: CITY OF OKEECHOBEE; Attention: City Administrator; 55 Southeast 3`d Avenue, Okeechobee, Florida 34974. 2) SPECIAL MAGISTRATE: ROGER AZCONA, Esquire, of LAW OFFICE OF ROGER AZCONA, ESQ.; 313 Northwest 4th Avenue, Okeechobee, Florida 34972. 3. General Provisions. THAT the parties hereby agree to the following general provisions: PAGE 2 OF 6 A. Representations of the SPECIAL MAGISTRATE. The SPECIAL MAGISTRATE represents that he has the technical expertise to perform the services contemplated by this Agreement in a timely and professional manner consistent with the standards of the legal profession. At all times the SPECIAL MAGISTRATE shall maintain his standing with the Florida Bar and immediately report to the City Administrator any disciplinary action or suspensions issued by the Florida Bar. B. Personal nature of Agreement; Assignment. The SPECIAL MAGISTRATE hereby warrants that he has the necessary technical expertise and training to perform his duties as outlined in this Agreement. The parties acknowledge that the CITY places great reliance and emphasis upon the knowledge, expertise and personal abilities of the SPECIAL MAGISTRATE. Accordingly, this Agreement is personal and the SPECIAL MAGISTRATE shall not assign, delegate, transfer, pledge, hypothecate, surrender, or otherwise encumber or dispose of any of his rights or duties under this Agreement. C. Indemnification and Hold Harmless Agreement. 1) The SPECIAL MAGISTRATE shall indemnify and hold the CITY harmless from any and all claims, liability, losses and causes of action which may arise out of the actions of negligence, in whole or in part of the SPECIAL MAGISTRATE, in the fulfillment of this Agreement, including all costs and judgments which may issue thereon. The SPECIAL MAGISTRATE acknowledges and agrees that the compensation paid pursuant to this Agreement includes consideration for such indemnification. 2) The indemnification provisions of this paragraph shall survive the termination of this Agreement. D. Sovereign Immunity. Nothing in this Agreement extends, or will be construed to extend, the CITY'S liability beyond that provided in Section 768.28, Florida Statutes. Nothing in this Agreement is a consent, or will be construed as consent, by the CITY to be sued by third parties in any matter arising out of this Agreement. E. Professional Independence of the SPECIAL MAGISTRATE. It is understood and agreed that the SPECIAL MAGISTRATE is not, and will not be deemed to be, an employee, joint venturer, or partner of the CITY. The SPECIAL MAGISTRATE is, and shall remain, an independent professional with respect to all services performed under this Agreement. No partnership relationship between the CITY and the SPECIAL MAGISTRATE is created or intended by this Agreement. The CITY shall rely on the discretion of the SPECIAL MAGISTRATE in the issuance of code enforcement orders, keeping in mind the intent of the CITY to strictly enforce all CITY codes, with the ability to permit limited exceptions in cases of hardship. F. Conflicts. 1) In the event a conflict arises between clients of the SPECIAL MAGISTRATE and the CITY, the SPECIAL MAGISTRATE shall immediately advise the City Administrator of such conflict and resign from such conflicting representation. 2) The SPECIAL MAGISTRATE shall not represent other clients in an adversarial position to the CITY while serving as a SPECIAL MAGISTRATE. G. Records; Access. 1) The legislature has amended Chapter 119 Florida Statutes, Section 119.0701 thereof, to expand the obligation of local government to include into all Agreements certain language that relates to public records, which is made a part of this Agreement. PAGE 3 of 6 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 AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS FOR THE CITY OF OKEECHOBEE AT: CITY CLERK'S OFFICE 55 S.E. 3RD Avenue Okeechobee, FL. 34972 (863) 763-3372 ext. 9814 Igamiotea@cityofokeechobee.com 2) The SPECIAL MAGISTRATE shall adhere to Florida public records laws, including the following: a) Keep and maintain public records required by the CITY to perform the services, and upon request of the custodian of records for the CITY, provide the CITY with a copy of the requested records or allow the records to be copied or inspected within a reasonable time at a cost that does not exceed the cost allowed in Chapter 119 or as otherwise provided by law. b) 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 this Agreement term and following completion of the Agreement if the SPECIAL MAGISTRATE does not transfer the records to the CITY. c) Upon completion of the Agreement, transfer, at no cost, to the CITY all public records in possession of the SPECIAL MAGISTRATE or thereafter keep and maintain public records required by the CITY to perform the service. If the SPECIAL MAGISTRATE transfers all public records to the CITY upon completion of the Agreement, the SPECIAL MAGISTRATE shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the SPECIAL MAGISTRATE keeps and maintains public records upon completion of the Agreement, the SPECIAL MAGISTRATE shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the CITY, upon request of the City Clerk, in a format that is compatible with the information technology systems of the CITY. 3) Noncompliance a) A request to inspect or copy public records relating to the CITY'S Agreement for services must be made directly to the CITY. If the CITY does not possess the requested records, the CITY shall immediately notify the SPECIAL MAGISTRATE of the request, and the SPECIAL MAGISTRATE must provide the records to the CITY or allow the records to be inspected or copied within a reasonable time. A reasonable time is defined as within eight (8) business days. b) If the SPECIAL MAGISTRATE does not comply with the request of the CITY for the records, the CITY shall enforce the Agreement provisions in accordance with the Agreement. c) If the SPECIAL MAGISTRATE fails to provide the public records to the CITY within a reasonable time, the SPECIAL MAGISTRATE may be subject to the penalties under Chapter 119.10. 4) Civil Action. a) If a civil action is filed against a SPECIAL MAGISTRATE to compel production of public records relating to the CITY'S Agreement for PAGE 4 OF 6 professional services, the court shall assess and award against the SPECIAL MAGISTRATE the reasonable costs of enforcement, including reasonable attorney fees, If: 1. The court determines that the SPECIAL MAGISTRATE unlawfully refused to comply with the public records request within a reasonable time; and 2. At least eight (8) business days before filing the action, the plaintiff provided written notice of the public records request, including a statement that the SPECIAL MAGISTRATE has not complied with the request, to the CITY and to the SPECIAL MAGISTRATE. b) A notice complies with the above if it is sent to the custodian of public records for the CITY and to the SPECIAL MAGISTRATE at the SPECIAL MAGISTRATE'S address listed on its Agreement with the CITY, or to the SPECIAL MAGISTRATE'S registered agent. Such notices must be sent by common carrier delivery service or by registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender and with evidence of delivery, which may be in an electronic format. c) A SPECIAL MAGISTRATE who complies with a public records request within eight (8) business days after the notice is sent is not liable for the reasonable costs of enforcement. H. Non -Discrimination. The SPECIAL MAGISTRATE shall assure that no person shall, on the grounds of race, color, creed, national origin, handicap, or sex, be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination in any activity under this Agreement. The SPECIAL MAGISTRATE shall take all measures necessary to effectuate these assurances. I. Severability. That, should any term or provision of this Agreement be held, to any extent, invalid or unenforceable, as against any person, entity or circumstance during the term hereof, by force of any statute, law, or ruling of any forum of competent jurisdiction, such invalidity shall not affect any other term or provision of this Agreement, to the extent that the Agreement shall remain operable, enforceable and in full force and effect to the extent permitted by law. J. Construction. Should any provision of this Agreement be subject to judicial interpretation, it is agreed that the court interpreting or considering such provision will not apply the presumption or rule of construction that the terms of this Agreement be more strictly Agreement through review by their respective counsel, if any, and/or the negotiation of specific language, and, therefore, the application of such presumption or rule of construction would be inappropriate and contrary to the intent of the parties. K. Compliance with Laws. The SPECIAL MAGISTRATE, its employees, subcontractors or assigns, shall comply with all applicable federal, state, and local laws and regulations relating to the performance of this Agreement. L. Amendment. No modification, amendment, or alteration in the terms or conditions of this Agreement will be effective unless contained in a written document executed with the same formality as this Agreement. M. Waivers. Failures or waivers to enforce any covenant, condition, or provision of this Agreement by the parties, their successors and assigns shall not operate as a discharge or, invalidate, such covenant, condition, or provision, or impair the enforcement rights of the parties, their successors and assigns. N. Attorney's Fees. In the event of any litigation to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs which are directly attributed to such litigation both at the trial and appellate level. PAGE 5 of 6 O. Complete Agreement. This Agreement states the entire understanding between the parties and supersedes any written or oral representations, statements, negotiations, or agreements to the contrary. The SPECIAL MAGISTRATE recognizes that any representations, statements or negotiations made by the CITY staff do not suffice to legally bind the CITY in a contractual relationship unless they have been reduced to writing, authorized, and signed by an authorized CITY representative. The Agreement shall bind the parties, their assigns, and successors in interest. P. Headings. All headings are for clarification only and are not to be used in any judicial construction of this Agreement or any paragraph. Q. Law; Venue. This Agreement shall be governed by the laws of the State of Florida. In the event it is necessary for either party to initiate legal action regarding this Agreement, venue shall be in Okeechobee CITY, Florida. 4. Special Provisions. A. This Agreement shall be construed to be a non-exclusive requirements Agreement and shall not be deemed to prohibit the CITY from retaining additional SPECIAL MAGISTRATE(S) to render services simultaneously for the CITY. IN WITNESS WHEREOF, the parties hereto have executed this document on the date first above written. AS TO THE CITY: - ATTEST: -, rV6�nl a ` AQ ane amiotega; C-ity C erk REVIEWED FOR LEGAL SUFFICIENCY: John R. Cook, City Attorney AS TO THE PROFESSIONAL: Dowling R. Watford, A., Mayor Date: iXiieyW Roge Azcona, Es%Kre La Office of Roget Azcona, Esq. SPECIAL MAGIST ATE Date: �� r PAGE 6 of 6