HomeMy Public PortalAboutDavis and Ashton, P.A. 2020PROFESSIONAL SERVICES AGREEMENT
(Special Magistrate Services)
THIS AGREEMENT ("Agreement") is entered into by and between the Town of Gulf Stream, a
Florida municipal corporation ("Town") and Davis and Ashton, P.A., slaw firm with attorneys licensed to
practice in the State of Florida ("Special Magistrate"), effective this b day of November, 2020.
RECITALS
WHEREAS, the Town is in need of special magistrate services for its code enforcement hearings
and other related hearings; and
WHEREAS, Special Magistrate has notified the Town of its interest to serve as a special magistrate;
and
WHEREAS, the Town Attorney reviewed the skill and experience of Special Magistrate and has
determined that Special Magistrate is qualified to provide the special magistrate services to the Town; and
WHEREAS, the purpose of this Agreement is to set forth certain terms and conditions for the provision
of the services to be provided by Special Magistrate to the Town.
NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained, the
sufficiency of which is hereby acknowledged by the parties, the Town and Special Magistrate agree as follows:
SECTION 1: INCORPORATION OF RECITALS. The foregoing Recitals are incorporated into this
Agreement as true and correct statements.
SECTION 2: SPECIAL MAGISTRATE'S SERVICES. Special Magistrate shall serve as a special magistrate
for code enforcement hearings and other related hearings. The Town will notify Special Magistrate of such
hearings and the dates upon which the Town seeks Special Magistrate to serve. This is not an exclusive contract.
The parties agree that Special Magistrate shall serve in an ex-officio capacity if Special Magistrate serves other
local governments as a special magistrate, and that such service to other local governments does not create duties
inconsistent with serving as the special magistrate to the Town.
SECTION 3: INDEPENDENT CONTRACTOR RELATIONSHIP. No relationship of employer or employee
is created by this Agreement, it being understood that Special Magistrate will act hereunder as an independent
contractor and none of the Special Magistrate's, officers, directors, employees, independent contractors,
representatives or agents performing services for Special Magistrate pursuant to this Agreement shall have any
claim under this Agreement or otherwise against the Town for compensation of any kind under this Agreement.
The relationship between the Town and Special Magistrate is that of independent contractors, and neither shall
be considered a joint venturer, partner, employee, agent, representative or other relationship of the other for any
purpose expressly or by implication.
SECTION 4: TERM AND TERMINATION.
a. Term. The term of this Agreement is for one year with three (3) one (1) year extensions.
The extensions may be exercised by the Town Manager on behalf of the Town, except that approval of
the Town Commission is also required after the first two years pursuant to Gulf Stream Town Code
Section 2-67 - Special Magistrate Term.
b. Termination without cause. Either party may terminate this Agreement at any time with
or without cause by giving not less than thirty (30) days prior written notice of termination.
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c. Termination for cause. Either party may terminate this Agreement at any time in the event that
the other party engages in any act or makes any omission constituting a material breach of any term or condition
of this Agreement. The party electing to terminate this Agreement shall provide the other party with written
notice specifying the nature of the breach. The party receiving the notice shall then have three (3) days from the
date of the notice in which to remedy the breach. If such corrective action is not taken within three (3) days, then
this Agreement shall terminate at the end of the three (3) day period without further notice or demand.
(24) Effect of Termination. Termination of this Agreement shall not affect any rights, obligations,
and liabilities of the parties arising out of transactions which occurred prior to termination. Notwithstanding the
foregoing, the parties acknowledge and agree that this Agreement (and all Exhibits hereto) are subject to
budgeting and appropriation by the Town of funds sufficient to pay the costs associated herewith in any fiscal
year of the Town. Notwithstanding anything in this Agreement to the contrary, in the event that no funds are
appropriated or budgeted by the Town's governing board in any fiscal year to pay the costs associated with the
Town's obligations under this Agreement, or in the event the funds budgeted or appropriated are, or are estimated
by the Town to be, insufficient to pay the costs associated with the Town's obligations hereunder in any fiscal
period, then the Town will notify Special Magistrate of such occurrence and either the Town or Special Magistrate
may terminate this Agreement by notifying the other in writing, which notice shall specify a date of termination
no earlier than twenty-four (24) hours after giving of such notice. Termination in accordance with the preceding
sentence shall be without penalty or expense to the Town of any kind whatsoever. Town shall pay Special
Magistrate for all services provided up to the elate of termination.
SECTION 5: COMPENSATION.
a. Payments. The Town agrees to compensate Special Magistrate for services provided in the amount of One
Hundred Ninety Dollars ($190.00) per hour. The Special Magistrate shall not charge for travel time to and from
the hearings.
b. Invoices. Special Magistrate shall render monthly invoices to the Town for services that have been
rendered in conformity with this Agreement in the previous month. Invoices will normally be paid within thirty
(30) days following the Town's receipt of the Special Magistrate's invoice. Invoices shall be submitted to:
Town of Gulf Steam
Attn: Town Clerk
100 Sea Road
Gulf Stream, FL 33483
SECTION 6: COMPLIANCE. Each of the parties agrees to perform its responsibilities under this Agreement in
conformance with all laws, regulations and administrative instructions that relate to the parties' performance of
this Agreement.
SECTION 7: DISPUTE RESOLUTION LAW. VENUE AND REMEDIES. All claims arising out of this Agreement
or its breach shall be submitted first to mediation. The parties shall share the mediator's fee equally. The mediation
shall be held in Palm Beach County. Agreements reached in mediation shall be enforceable as settlement agreements
in any court having jurisdiction thereof. This Agreement shall be governed by the laws of the State of Florida. Any
and all legal action necessary to enforce the Agreement will be held in Palm Beach County. No remedy herein conferred
upon any party is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by
statute or otherwise. No single or partial exercise by any party of any right, power, or remedy hereunder shall preclude
any other or further exercise thereof.
SECTION 8: WAIVER OF JURY TRIAL. TO ENCOURAGE PROMPT AND EQUITABLE RESOLUTION
OF ANY LITIGATION, EACH PARTY HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY IN ANY
LITIGATION RELATED TO THIS AGREEMENT.
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SECTION 9: AUTHORITY TO PRACTICE. Special Magistrate hereby represents and warrants that its
attorneys have and will continue to maintain all licenses and approvals required to conduct its business and provide
the services required under this Agreement, and that it will at all times conduct its business and provide the
services under this Agreement in a reputable manner. Proof of such licenses and approvals shall be submitted to
the Town upon request.
SECTION 10: SEVERABILITY. If any term or provision of this Agreement, or the application thereof to any
person or circumstances shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement,
or the application of such terms or provision, to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected, and every other term and provision of this Agreement shall be
deemed valid and enforceable to the extent permitted by law.
SECTION 11: PUBLIC ENTITY CRIMES. Special Magistrate acknowledges and agrees that a person or
affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not
submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity; may not submit
a bid, proposal, or reply on a contract with a public entity for the construction or repair of a public building or
public work; may not submit bids, proposals, or replies on leases of real property to a public entity; may not be
awarded or perform work as a contractor, supplier or sub -contractor under a contract with any public entity; and
may not transact business with any public entity in excess of the threshold amount provided in Section 287.017,
Florida Statutes, for CATEGORY TWO for a period of 36 months following the date of being placed on the
convicted vendor list. The Special Magistrate is not, and has never been, in violation of this requirement, and
agrees that it will advise the Town immediately if it becomes aware of any viol at ion of this statute.
SECTION 12: NOTICE. All notices required in this Agreement shall be sent by celtified mail, return receipt
requested, or by nationally recognized overnight courier, and if sent to the TOWN shall be sent to:
Town of Gulf Steam
Attn: Town Clerk
100 Sea Road
Gulf Stream, FL 33483
and if sent to the SPECIAL MAGISTRATE, shall be sent to:
Davis & Ashton, P.A.
701 Northpoint Parkway, Suite 205
West Palm Beach, FL 33407
Email: keith@davisashtonlaw.com
The foregoing names and addresses may be changed if such change is provided in writing to the other party.
SECTION 13: PUBLIC RECORDS. Special Magistrate shall comply with Florida' s Public Records Act, Chapter
119, Florida Statutes (§119.0701), and, if determined to be acting on behalf of the Town as provided under section
119.011(2), Florida Statutes, specifically agrees to:
(a) Keep and maintain public records required by the Town to perform the service.
(b) Upon request from the Town's custodian of public records or designee, provide the Town with a
copy of the requested record s or allow the records to be inspected or copied within a reasonable time at a
cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by
law.
(c) Ensure that public records that are exempt or confidential and exempt from public records disclosure
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requirements are not disclosed except as authorized by law for the duration of this Agreement and following
completion of this Agreement if Special Magistrate does not transfer the records to the Town.
(d) Upon completion of this Agreement, transfer, at no cost, to the Town all public records in
possession of Special Magistrate or keep and maintain public records required by the Town to perform the
service. If Special Magistrate transfers all public records to the Town upon completion of the Agreement,
Special Magistrate shall destroy any duplicate public records that are exempt or confidential and exempt
from public records disclosure requirements. If Special Magistrate keeps and maintains public records upon
completion of the Agreement, Special Magistrate shall meet all applicable requirements for retaining public
records. All records stored electronically must be provided to the Town, upon request from the Town's
custodian of public records or designee, in a format that is compatible with the information technology
systems of the Town.
IF 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 OR DESIGNEE AT: ATTENTION RITA TAYLOR, (561)
276-5116 OR RTAYLOR(dGULF-STREAM.ORG OR 100 SEA ROAD,
GULF STREAM, FL 33483.
SECTION 14: ENTIRETY OF AGREEMENT. The Town and Special Magistrate agree that this Agreement
sets forth the entire agreement between the parties, and that there are no promises or understandings other than
those stated herein. None of the provisions, terms and conditions contained in this Agreement may be added to,
modified, superseded, or otherwise altered, except by written instrument executed by the parties hereto.
SECTION 15: WAIVER. Failure of a party to enforce or exercise any of its right(s) under this Agreement
shall not be deemed a waiver of that parties' right to enforce or exercise said right(s) at any time thereafter.
SECTION 16: PREPARATION. This Agreement shall not be construed more strongly against either party
regardless of who was more responsible for its preparation.
SECTION 17: COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and will become effective and binding upon the parties as of the effective
date at such time as all the signatories hereto have signed a counterpart of this Agreement.
SECTION 18: PALM BEACH COUNTY IG. In accordance with Palm Beach County ordinance number 2011-009,
Special Magistrate acknowledges that this Agreement may be subject to investigation and/or audit by the Palm
Beach County Inspector General. Special Magistrate has reviewed Palm Beach County ordinance number 2011-009
and is aware of his rights and/or obligations under such ordinance.
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IN WITNESS WHEREOF, the parties hereto have made and executed this Professional Services
Agreement as of the day and year set forth above by the Town.
ATTEST:
By:
oz.
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
By:
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