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Agenda 09/23/2008 Item #16E 5Item #16E5 September 23, 2008 1 of 60 EXECUTIVE SUMMARY Recommendation to Approve Agreements #08 -5076 and #08 -5077 for the Attorney Special Magistrate and Appraiser Special Magistrate for the Collier County Value Adjustment Board Hearings for Tax Year 2008 and Authorize Necessary Budget Amendments. OBJECTIVE: To Approve agreement for the Attorney Special Magistrate and agreements for the Appraiser Special Magistrates for the Collier County Value Adjustment Board Hearings for Tax Year 2008 and authorize necessary budget amendments. CONSIDERATIONS: In 2002, the Florida Legislature amended Section 194.035, Florida Statutes, to require all counties having a population of more than 75,000 to appoint Special Magistrates for the purpose of taking testimony and making recommendations to the Value Adjustment Board. Accordingly, the Purchasing Department issued RFP# 08 -5076 for the Attorney Special Magistrate services on April 23, 2008 and RFP# 08 -5077 for the Appraiser Special Magistrate services on May 5, 2008. A staff selection committee convened on July 23, 2008 and selected one (1) individual, Davia Mazur, Esq. to serve as Attorney Special Magistrate and three (3) firms; Coastal Consulting Group, South Florida Valuation Services, and Machinery Capital Assets to serve as Appraiser Special Magistrates for the 2008 Tax Year. On August 4, 2008, the Value Adjustment Board convened and affirmed the aforementioned selections. A fourth firm, Coastal Engineering Consultants, Inc., initially selected as Appraiser Special Magistrate subsequently withdrew their offer due to the loss of personnel assigned to this service. The Office of the County Attorney has prepared the Agreements for the provision of these services, which includes the conduct of hearings on petitions regarding exemptions, classifications and real and personal property valuations. Copies of the proposed agreements are attached hereto. In summary, the agreements require that the Special Magistrates conduct hearings on petitions during the time period of October 1, 2008 through December 31, 2008. All hearings are to be conducted in accordance with the rules of procedure adopted by the Collier County Value Adjustment Board, the Department of Revenue Administrative Rules and applicable Florida Statutes. The agreements provide that the Special Magistrate shall make a recommendation to the Value Adjustment Board after hearing each petition. The Agreement provides that the Attorney Special Magistrate will be paid on an hourly basis, at a rate of $125.00 per hour. The Appraiser Special Magistrates will be paid on an hourly basis at the rate of $125.00 per hour with the exception of South Florida Valuation Services, Inc. which the hourly rate is $95.00 per hour. As is common practice among other counties, the agreement does not require that the Special Magistrate maintain commercial liability and professional liability insurance. Item #16E5 September 23, 2008 2 of 60 Although these requirements are usually standard in Collier County contracts, the nature of the services to be provided in this instance are such that the Office of the County Attorney deems the inclusion of these requirements unnecessary. Each Special Magistrate will be sitting in a quasi - judicial capacity and as such will enjoy qualified, and in some instances, absolute immunity for his /her actions in considering the petition, all evidence, and making written findings and recommendations. Consequently, staff is requesting that the Board waive any insurance requirements. FISCAL IMPACT: The total all inclusive cost for services under these agreements is estimated to be less than thirty thousand dollars ($30,000.00) per annum. This cost is shared with the District School Board, which by statute is responsible for two - fifths of these expenses. The County will pay these costs and invoice the School Board for its respective share. These expenditures are not in the FY 2008 -09 Budget. The budget amendment authorization requested is for the FY 2008 -09 Budget and transfers budget appropriations from the General Fund (001) reserves to the Other General and Administrative fund center (103010) in the General Fund. LEGAL CONSIDERATIONS: The Agreements have been signed for form and legal sufficiency. This item is legally sufficient for Board consideration. -JAB GROWTH MANAGEMENT IMPACT: There is no impact on the Growth Management Plan. RECOMMENDATION: That the Board of County Commissions awards RFP# 08- 5076 to Davia Mazur, Esq. as Attorney Special Magistrate; awards RFP #08 -5077 to Coastal Consulting Group, South Florida Valuation Services, and Machinery Capital Assets to serve as Appraiser Special Magistrates and authorizes the Chairman to sign the agreements on behalf of the Board and authorize necessary budget amendments. PREPARED BY: Michael F. Hauer, CPPO - CPPB Purchasing Department Item #16E5 September 23, 2008 3 of 60 Recommendation to Approve Agreements #08 -5076 and 08 -5077 for the Attorney and Appraiser Special Magistrates for the Collier County Value Adjustment Board Prepared By: Department Date Purchasing 9/10/2008 4:45:18 PM Approved By Department Approval Date Adminstrative Approved 9116/2008 4:03 PM Services Approved By: Department Approval Date County Attorney Approved 9/16/2008 5:01 PM Approved By Department Approval Date Office of Management Approved 9/16/2008 5:17 PM and Budget Approved By Department Approval Date County Approved 9116/2008 6:53 PM Manager's Office ATTACHMENTS: Name: Description'. IYee', 0 Executive Summary Special lMaa strates.for Executive Summary Executive Summary VAS aac D Davia Mazur, . Attorney Special. Magistrate Agreement Agreement Agreement.ptlf 0 Coastal_ Consulting. Group, Appraiser Special Magistrate Agreement Agreement ...., Agreeneii f 0 Machinery Capital Assets, Item #16E5 September 23, 2008 Apprratiser Sgeciet a istrat_e Q Agreement,.pof Agreement Q re i ent 0 S$outh_FloriCa_Valuation Services, Appraiser Special Agreement Agreement Magistrate Agreementpdf v Item #16E5 September 23, 2008 5 of 60 ATTORNEY SPECIAL MAGISTRATE AGREEMENT THIS AGREEMENT has been made and entered into on this day of , 2008, by and between Davia Mazur, Esq. hereinafter referred to as "Special Magistrate," and COLLIER COUNTY, a political subdivision of the State of Florida, and the DISTRICT SCHOOL BOARD OF COLLIER COUNTY, hereinafter collectively referred to as the "Value Adjustment Board" (VAB). WITNESSETH 1. Commencement. This Agreement will commence upon execution of this Agreement by the last signing party, and shall terminate upon completion of the assignment and payment for same, unless renewed in accordance herewith. 2. Assignment. The Special Magistrate shall conduct hearings on petitions to the Value Adjustment Board regarding exemptions, classifications and untimely petitions for the 2008 tax year. The Special Magistrate will conduct these hearings in accordance with the Rules of Procedure adopted by the Collier County Value Adjustment Board, administrative rules promulgated by the Florida Department of Revenue, and applicable Florida Statutes. The VAB Rules of Procedure are attached hereto as Exhibit A and incorporated herein as a part of this Agreement. Hearings on untimely -filed petitions will commence after September 15, 2008, and will continue until completed. All other petitions will be scheduled during the period of October 1, 2008 through December 31, 2008. The Special Magistrate shall prepare in writing his /her findings of fact, conclusions of law, and recommendation to the Value Adjustment Board using the forms approved by the VAB. Time is of the essence in this regard as the VAB intends to meet as soon as possible after the completion of the hearings for purposes of adopting all recommendations by its Special Magistrates. To the extent reasonably practicable the Special Magistrate will render his /her recommendation within 72 hours, but, in no event, more than seven (7) business days after the hearing. By execution of this Agreement, the Special Magistrate has agreed to be available from September 15 to December 31, 2008 for purposes of hearing petitions and rendering recommendations on same. The Special Magistrate shall be compensated on an hourly basis for the time needed to complete his /her recommendations subject to the time limitations imposed in Paragraph 4 below. For hearings on untimely petitions, the Special Magistrate will be expected to orally announce her decision immediately upon conclusion of the hearing and provide the written decision within the time frame set forth in the prior paragraph. Upon the Special Magistrate deciding that the petition is timely filed, the Clerk will notify the petitioner of a hearing date for future consideration of the petition. Item #16E5 September 23, 2008 6 of 60 The VAB does not warrant that the Special Magistrate will be scheduled to serve any particular number of days or hear a specific number of cases. However, in some instances a Special Magistrate may be scheduled to hear an exceptional number of petitions on one day, or during consecutive days. In these extraordinary instances the Special Magistrate may request additional time to complete her /his recommendations. Any request for additional time must be approved in writing by the VAB Clerk. 3. Standards and Requirements. The Special Magistrate will comply with all Florida laws and administrative rules, and constitutional principles of due process when conducting the value adjustment hearings. The Collier County VAB and the County Attorney may provide additional direction or guidance to the Special Magistrate, such as its Rules and Procedures, for the conduct of the hearings. This guidance will be followed by the Special Magistrate to the extent that such guidance does not impede upon the Special Magistrate's independent decision- making. The Special Magistrate will consider only acceptable appraisal practices when hearing all petitions but shall not engage in the re- appraisal of properties. The Special Magistrate will be responsible for preserving the record and his /her recommendations as required by Florida Statutes, F.A.C. Rule 12D -10 and the VAB Rules of Procedure. All recommendations shall be forwarded to the Clerk to the Board along with the evidentiary record for each hearing. The VAB will be responsible for providing a verbatim transcript and back -up audio recording of all proceedings. The Special Magistrate will be responsible for operating the audio recording equipment, if necessary. By execution of this Agreement, the Special Magistrate represents that s /he meets the requirements of s. 194.035, Fla. Stat. (2004) and will maintain all licensure required by this statute through completion of the Assignment. 4. Compensation. The Special Magistrate will be paid an hourly rate of one hundred twenty -five dollars ($125.00) per hour for services rendered in accordance with this Agreement. The Special Magistrate will maintain a record of time for his /her performance under this Agreement and shall submit an invoice to the VAB after completion of all scheduled hearings and recommendations to the VAB. This invoice shall be signed and certified by the Special Magistrate as being accurate. Upon receipt of a proper invoice, the VAB will pay the Special Magistrate. Any time required for research and preparation beyond the hours required to conduct hearings shall not exceed twice the number of hours required for hearings without documentation of the need for such additional hours and advance approval by the County Attorney's Office. Hours spent for preparation and research in excess of this standard and without advance approval will be deemed excessive and unreasonable and subject to non - payment. Item #16E5 September 23, 2008 7 of 60 Time spent traveling to the location of the hearing in excess of one hour will be compensated at the hourly rate. If the Agreement is renewed in accordance with Paragraph 7, the parties may agree to increase the hourly rate for services, provided such increase does not exceed ten percent (10 %) during any renewal period. The VAB Attorney may approve such compensation increase without approval of the VAB. The compensation paid to the Special Magistrate shall be borne three -fifths (3/5s) by the COUNTY and two -fifths (2/5s) by the SCHOOL BOARD. After payment of compensation to the Special Magistrate, the COUNTY will calculate the SCHOOL BOARD's share of the compensation paid and prepare an invoice for the SCHOOL BOARD. The SCHOOL BOARD agrees to pay the COUNTY within thirty (30) days of receipt of this invoice. 5. Costs and Expenses. The VAB shall provide the hearing rooms for all Special Magistrate hearings and shall be responsible for the costs of recording all hearings before the Special Magistrate. The VAB will provide the Special Magistrate with sufficient forms for the completion of his /her findings of facts and conclusions of law for each hearing. All clerical expenses incurred by the Special Magistrate in the performance of this Agreement shall be the sole responsibility of the Special Magistrate. 6. Termination. If the Special Magistrate fails to perform his /her services in a manner consistent with this Agreement, the VAB may terminate this Agreement immediately for cause. The VAB reserves the right, in its absolute discretion, to refrain from scheduling any hearings with the Special Magistrate and to discontinue the services of the Special Magistrate at any time for convenience. If the VAB elects to terminate this Agreement for convenience, such election may be made with no less than 24 hours notice to the Special Magistrate. In recognition of the special time constraints attendant to VAB hearings, the parties hereto agree that 24 hours notice is reasonable in this instance. The VAB, and the VAB Attorney, shall be the sole judge of non- performance. Due to the inability of the VAB to meet and act quickly under these provisions, it hereby delegates its rights to terminate this Agreement, both with and without cause, to the VAB Attorney. In the event the Special Magistrate is terminated for cause, which may include the failure to provide his /her recommendation in a timely manner, the Special Magistrate agrees to complete all outstanding recommendations within five (5) calendar days from termination. 7. Renewal. Unless terminated pursuant to Section 6, this Agreement shall extend through the completion of the 2010 VAB hearings. This Agreement may be renewed annually thereafter for each consecutive year upon written notice by the VAB to the Special Magistrate prior to the expiration of this Agreement, provided the total number of renewals does not exceed five. The Special Magistrate will have thirty (30) days from the date of notice to accept or decline renewal of this Agreement. Item #16E5 September 23, 2008 8 of 60 8. No Improper Use. The Special Magistrate agrees he /she will not use, or suffer or permit any person to use in any manner, County facilities for any improper, immoral or offensive purpose, or for any purpose in violation of any federal, state, county or municipal ordinance, rule order or regulation. In the event of such violation by the Special Magistrate, the VAB shall have the right to suspend further work by the Special Magistrate or terminate this Agreement. 9. Unlawful Solicitation and Assignment of Agreement. By execution of this agreement, the Special Magistrate warrants that he /she has not employed, retained, paid or agreed to pay any company or person, other than a bona fide employee, to solicit or secure this Agreement contingent upon, or resulting from, the award or making of this Agreement. The Special Magistrate further warrants that no part of the total of the fees payable under the terms of this Agreement shall be paid directly or indirectly to any employee of the County as wages, compensation, or gift in exchange for acting as officer, agent, employee, subcontractor, or consultant to the Special Magistrate in connection with any services performed under the terms of this Agreement. The Special Magistrate further warrants that there shall be no transfer or assignment of any part of this Agreement, except with the express written approval of the VAB. 10. Relationship. Nothing contained herein shall create or be construed as creating a partnership between the VAB and the Special Magistrate. Nor shall this Agreement be construed as to constitute the Special Magistrate as an agent or employee of the VAB. 11. Non - discrimination. No person on the grounds of handicap, sex, race, color, religion, national original or age, will be excluded from participation in, be denied benefits of or be otherwise subjected to discrimination in the performance of this Agreement. 12. Liquidated Damages. Time is of the essence in adopting the Special Magistrate recommendations and concluding the VAB season before December 25th. Consequently the failure of Special Magistrates to complete their recommendations in accordance with Paragraph 3 will result in damages to the COUNTY and the SCHOOL BOARD. The parties acknowledge and agree that actual damages are uncertain and too difficult to ascertain and that the following amount of liquidated damages is reasonable and agreeable to both parties, and not intended as a penalty. The parties therefore agree that $300 /day will be deducted from any payments due a Special Magistrate for each day a completed recommendation is late (beyond seven business days). 13. Records. The Special Magistrate shall maintain records of all accounts, invoices for reimbursable expenses and supporting documentation for any research or reports, for a period of five (5) years from completing the performance of this Agreement. Such records shall be sufficient to permit a proper pre- and post -audit in accordance with generally accepted accounting practices. access to all documents and materials in 119, Florida Statutes, and will permit the where they are kept after reasonable notice. Item #16E5 September 23, 2008 9 of 60 The Special Magistrate shall allow public accordance with the provisions of Chapter inspection of such records at the location 14. Interpretation and Construction. This Agreement shall be governed by, and construed in accordance with, the laws of the state of Florida; and this written Agreement along with the 2008 Application for Attorney Special Magistrate submitted by the undersigned party, which is incorporated herein by reference, shall constitute the entire agreement between the parties, and there are no other prior or contemporaneous, oral or written agreements, understandings or promises related to this Agreement. 15. Amendment. This Agreement may be modified only by written amendment executed by all parties hereto. 16. Notice. When any party desires to give notice to the other, it must be given in writing and sent by regular mail or facsimile to the party for whom it is intended, as specified below: VALUE ADJUSTMENT BOARD C/o VAB Attorney Office of County Attorney 3301 Tamiami Trail East 8th Floor (Bldg F) Naples, Florida 34112 Telephone: (239) 252 -8400 Facsimile: (239) 252 -6300 SPECIAL MAGISTRATE Davia Mazur, Esa. 9630 NW 39"' Court Cooper City, Florida 33024 (954) 328 -1932 (954) 922 -2131 (fax) Copy to: Clerk to Value Adjustment Board c/o Patricia Morgan, Supervisor Clerk of Courts 3301 Tamiami Trail East 4th Floor (Bldg F) Telephone: (239) 774 -8399 Facsimile: (239) 774 -8408 I Item #16E5 September 23, 2008 10 of 60 17. Goveming Law. This Agreement shall be governed by Florida law. IN WITNESS WHEREOF, the parties have hereunto affixed their signatures by their duly authorized representatives. As to SPECIAL MAGISTRATE: Si. ature TP/J.� .i �Ni4s P' ame Signature / +n1/1' �a Print Name As to VALUE ADJUSTMENT: BOARD: ATTEST: DWIGHT E. BROCK, CLERK , Deputy Clerk Witnesses: Signature Print Name Signature Print Name Of NO Date: BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY By: Tom Henning , Chairman Date: Approved as to form & legal sufflciency County, ney, COLLIER COUNTY DISTRICT SCHOOL BOAR By: RobM C. Spencer Financial Officer Item #16E5 September 23, 2008 11 of 60 EXHIBIT "A" VALUE ADJUSTMENT BOARD RULES OF PROCEDURE CHAPTER 1: ORGANIZATION 1. The Board is a separate and distinct governmental body created by statute and is composed of three members of the Board of County Commissioners and two School Board Members. 2. One of the County Commissioners is required to the elected as Chairman of the Board. 3. The members of the Board may be temporarily replaced by other members of the respective boards (i.e. the Commission and School Board) on appointment by their respective chairpersons. 4. Any three members of the Board constitute a quorum, except that each quorum must include at least one Commissioner and one School Board member. No meeting of the Board can take place without a quorum. 5. Two -fifths on the expenses of the Board are borne by the School Board and three -fifths by the County Commission. 6. As used herein, the word "Board" may include "Special Magistrates." CHAPTER 2: POWERS AND DUTIES 1. The Board must meet not earlier than 30 days, nor later than 60 days after the mailing of the "Notices of Proposed Property Taxes" by the Property Attorney under section 194.011 (1), Florida Statutes; provided, however, that no Board hearing may be held before approval of all or any part of the assessment rolls by the Departments of Revenue. The Board is required to meet for the following purposes: (a) Hearing taxpayers' petitions relating to the amount of assessments. (b) Hearing complaints relating to Homestead exemptions. (c) Hearing appeals from exemptions denied, or disputes arising from exemption granted, upon the filing of exemption applications (i.e. other than Homestead exemptions) (d) Hearing appeals concerning ad valorem tax deferrals and classifications. Item #16E5 September 23, 2008 12 of 60 Notwithstanding the foregoing, the Board may meet prior to the approval of the assessment rolls by the Department of Revenue, but not earlier than July 1, to hear appeals pertaining to the denial by the Property Attorney of exemptions, agricultural classifications and deferrals under (b), (c), and (d). In such event, the Board may not certify any assessments under Section 193.122 until after the Department has approved such assessments in accordance with Section 193.1142 and after all hearings have been held with respect to the Particular parcel under appeal. 2. The Board was authorized by state law to impose a filing fee not to exceed $15.00 for each separate parcel of property, real or personal, covered by taxpayers petitions (i.e. with certain exceptions pertaining to denials of Homestead exemption and tax deferrals). Petitions filed without the appropriate filing fee are deemed invalid and must be rejected. 3. The Board is required to appoint special magistrates for the purpose of taking testimony and making recommendations to the Board, which recommendations the Board may act upon without further hearing. The Board has chosen to act upon such recommendations without further hearings. Appeals to the full Board by Taxpayers and the Property Attorney requesting de novo review of special magistrates" decisions will be denied. Special magistrates must meet the criteria set forth in s. 194.035, Fla. Stat. 4. The Board is required to remain in session from day to day until all petitions, complaints, appeals, and disputes are heard. If all or any part of an assessment roll is disapproved by the Florida Department of Revenue, the Board is required to reconvene to hear petitions, complaints, appeals and disputes filed upon the finally approved roll or part of a roll. 5. The Board has no power to fix the original valuation of property for ad valorem tax purposes or to grant an exemption not authorized by law. The Board is bound by the same standards as the County Property Attorney in determining value and the granting of exemptions. With certain exceptions, all property, real and personal, must be assessed at fair market value as of January 1 of the tax year. The Board, or its special magistrates, may not reduce an assessment below fair market value (i.e. in order to "equalize" it with other assessments), but for purposes of reviewing a petition, the Board may consider assessments among comparable properties within homogeneous area or neighborhoods. 6. The Board has no power to grant relief either by adjustment of the value of a property or by the granting of an exemption on the basis of hardship of a particular taxpayer. 7. The Board, in determining the valuation of a specific property, may not consider the ultimate amount of tax required by the various taxing authorities. 8. The powers, authorities, duties and functions of the Board, insofar as they are appropriate, apply equally to real property and tangible personal property. Item #16E5 September 23, 2008 13 of 60 9. The Board may not extend the time for the filing of petitions. However, the failure to meet the statutory deadline for filing a petition is not a absolute bar to consideration of such a petition by the Board when the Board determines that the petitioner has demonstrated good cause for failure to timely file, justifying consideration, and that the delay will not in fact be prejudicial to the performance of its functions in the taxing process. The issue of whether a petitioner's late filing can demonstrate "good cause" will be heard and determined by the Special Magistrate. If the Special Magistrate finds that good cause has been shown, she /he will proceed to hear the merits of the petition. 10. The Board is required to hear disputed or appealed applications for exemption and must grant such exemptions, in whole or in part, in accordance with the criteria established by law. In addition, the Board may review previously granted exemptions on its own motion or upon motion of the Property Attorney. Review of an exemption application upon motion of the Board cannot be help heard until the application has had at least five (5) calendar day notice of the Board's intent to review the application. 11. The Board is required to comply with all valid rules and regulations promulgated by the Florida Department of Revenue. CHAPTER 3: PRE- HEARING EVIDENCE EXCHANGE 1. At least 10 days before the scheduled hearing, the taxpayer /petitioner must provide the Property Attorney with a written list and summary of evidence, along with copies of the all documentation to be presented at the hearing. Two copies of the complete package provided to the Property Attorney must be delivered by the Petitioner to the Clerk to the Board. 2. No later than five (5) days after the Property Attorney receives the taxpayer /petitioner's documentation, the Property Attorney must provide the taxpayer /petitioner with a written list and summary of its evidence to be presented at hearing. This list and summary must likewise be accompanied with copies of the documentation to be presented. The evidence list must contain the property record card if provided by the Clerk. When computing the five day period, Saturdays, Sundays and legal holidays shall not be included. 3. If the taxpayer /petitioner does not provide the information to the Property Attorney at least ten (10) days prior to the hearing pursuant to Section 1 above, the Property Attorney need not provide the information to the taxpayer /petitioner pursuant to Section 2. Except that if the Property Attorney requests in writing any evidentiary materials of the taxpayer /petitioner, and the taxpayer /petitioner refuses to provide the requested materials prior to the hearing, such information shall not be presented or considered at the scheduled hearing by the Special Magistrate or the VAB. (Fla. Stat. 194.034(1) (d)) 4. If the Property Attorney does not provide the information within the time required under Section 2, the taxpayer /petitioner will be entitled to reschedule the hearing. Item #16E5 September 23, 2008 14 of 60 In such event, the taxpayer must notify the Clerk no later than twenty -four (24) hours, excluding weekends and holidays, after the day of required production that the Property Attorney did not fully comply, the details of such non - compliance, and request a reschedule in writing. After receipt of this written notice, the Clerk will re- schedule the hearing. 5. The documentation exchanged under Section 1 and 2 above must be delivered by regular or certified mail, personal delivery, overnight mail, facsimile or e-mail. The date of transmission by e-mail or fax to an address provided by the addressee shall be deemed to constitute the date of delivery to the recipient. For such purpose, three e- mail or fax attempts to the address provided by the addressee will be deemed sufficient. If the taxpayer /petitioner designates delivery by U.S. Mail or does not specifically designate the desired manner for receiving the Property Attorney's information, the information shall be deposited into the mail by the Property Attorney. The taxpayer /petitioner and the Property Attorney may agree to a different method or timing of the exchange. 6. The information must be sent to the taxpayer /petitioner or agent at the address shown on the petition form; however, it may be submitted to an e-mail or fax address if so indicated by the taxpayer /petitioner. 7. In computing any period of time prescribed by these rules, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday. If the tenth day before a hearing is a Saturday, Sunday, or legal holiday, the information under subsection 2 shall be provided no later than the previous business day. 8. The summary of any testimony submitted pursuant to Sections 1 and 2 shall be sufficiently detailed as to reasonably inform a party of the general subject matter of the witness testimony, and shall contain the name and address of the witness. 9. No taxpayer /petitioner may present nor shall the VAB or a special magistrate accept for consideration any "testimony or other evidentiary materials" that were requested of the taxpayer /petitioner in writing by the Property Attorney of which the taxpayer "had knowledge and denied to the Property Attorney." (Section 194.034(1) (d), Florida Statutes.) Item #16E5 September 23, 2008 15 of 60 CHAPTER 4: CONDUCT OF HEARINGS; PROCEDURES 1. Proceedings of the Board must be conducted in compliance with the Florida Sunshine Law (i.e. Section 268.011, Florida Statutes): (a) Reasonable notice must be given to the public prior to a Board meeting. (b) All Board meetings at which any official action may be taken must be help in the open. 2. Board and special magistrate hearings are required to the conducted in accordance with the applicable provisions of Chapter 194 and 196, Florida Statutes, and administrative rules promulgated by the Florida Department of Revenue. Chapter 120, Florida Statutes, does not apply to VAB proceedings, including hearings before the Special Magistrates. 3. Upon the filing of a petition by a taxpayer, the Clerk of the Board is required to deliver to the person so filing, an acknowledgment of receipt of such petition and must promptly furnish a copy of same to the Property Attorney. Late filed petitioner must be noted by the Clerk and brought to the attention of the Board. The only petitions subject to rejection are those not accompanied by the appropriate filing fee under section 194.013. 4. The Clerk of the Board will prepare a schedule of appearances before the Board (Special Magistrates) based on petitions (including applications for Homestead Exemptions denied by the Property Attorney) timely filed with him. The Clerk must notify each petitioner of the scheduled time of his appearance in writing by U.S. mail or Personal delivery so that the notice is received by the taxpayer no less than twenty (20) calendar days prior to the day of such schedule appearance. The Clerk is deemed to have prima facie complied with such notice requirements if the notice is deposited in the U.S. Mail twenty -five (25) days prior to the day of such scheduled appearance. The Clerk will include a copy of the property record card with the notice in all cases, whether or not requested by the taxpayer. The Clerk will not schedule hearings in personal roe cases, unless a return is filed within the time prescribed by the Board. 5. The petitioner has the right to reschedule his or her hearing ONE time by submitting to the Clerk a written request to reschedule NO LESS THAN FIVE (5) calendar days before the day of the originally scheduled hearing. 6. The Board and its special magistrates act in a quasi - judicial capacity with respect to the conduct of these hearings. 7. Board members and special magistrates should disqualify themselves on their own initiative or upon motion of any party interest or other cause for which a judge may be recused, with respect to any appeal coming before the Board. Item #16E5 September 23, 2008 16 of 60 8. No Board member or special magistrate should communicate ex parte with any taxpayer or the Property Attorney relative to the merits of any case. However, this should not preclude a Board member or special magistrate from communicating with a taxpayer or the Property Attorney for proposes of obtaining additional raw data upon which a finding might be based. Any communications concerning the proper conclusion to be drawn from any such raw data would constitute a discussion of the merits and results in an ex parte communication prohibited by law. 9. (a) Any taxpayer may be represented by an attorney or agent before the Board or special magistrate, or may appear on his own behalf. (b) A condominium homeowners' association (or qualified incorporated mobile home park association) may appear before the Board or Special Magistrate to present testimony and evidence regarding the assessment of condominium units which said association represents. Said testimony and evidence must also be considered by the Board or Special Magistrate with respect to petitions filed by individual condominium unit owners, unless the owner requests otherwise. 10. (a) Irrelevant, immaterial or unduly repetitious evidence may be excluded by the Board or special magistrate but all other evidence of a type commonly relied upon by reasonable prudent persons in the conduct of their affairs is admissible, whether or not such evidence would be admissible in a court of law. (b) Any part of a taxpayer's evidence may be received in written from, and all testimony of parties and witnesses is required to be made under oath upon the request of either party. The Special Magistrate or court reporter will administer the oath to all persons providing testimony, including parties. Witnesses for either party may be cross — examined by the other party when testimony is taken. (c) Hearsay evidence may be admitted for the purpose of supplementing or explaining other evidence, but it is not sufficient in itself to support a finding unless it would be admissible over objection in a civil action in the courts of this State. 11. The Property Attorney's determinations are entitled to a "presumption of correctness ", and petitioning taxpayers have the burden to prove that the Property Attorney's determinations are incorrect. (a) In the non - valuation cases (e.g. exemption and agricultural classification cases), this presumption of correctness can be property rebutted only by evidence which excludes very reasonable hypothesis of a legal assessment. Item #16E5 September 23, 2008 17 of 60 (b) In valuation cases, the Property Attorney's valuation is still presumed correct, but the presumption is lost if the taxpayer establishes by a Preponderance of the evidence that either the Property Attorney (a) failed to property consider all of the valuation criteria mandated by statute in computing the assessment, or (b) derived the assessment arbitrarily based on appraisal practices different from those generally applied to comparable property within the same class and county. If the taxpayer overcomes the initial presumption of correctness, in the forgoing manner, he or she then has the burden to prove by a preponderance of the evidence that the assessment exceeds fair market value. If, however, the taxpayer cannot overcome the property attorney's initial presumption of correctness, then the taxpayer, in order to obtain relief, must prove that the assessment is excessive by clear and convincing evidence. In no case involving valuation, however, does the taxpayer have the burden of proving that the assessment is "not supported by any reasonable hypothesis of a legal assessment." 12. If the Property Attorney's assessed value is determined to be erroneous, the VAB can establish the assessment if there exists competent, substantial evidence in the record. If not, the VAB must remand to the Property Attorney with the appropriate directions for a redetermination of value. 13. The Clerk of the Board is required to maintain a verbatim record of all proceedings and must preserve all documentary evidence and listings for a period of not less than four (4) years. The Board and its special magistrates should insist that all documentary evidence relied upon by any party be incorporated into the Board's files. In the event a party refuses to relinquish possession of any such documentary evidence, the Board and its special magistrates should not consider the same in making a finding of fact or conclusion of law. 14. No petitioner may present, nor may the Board or special magistrate accept, testimony or other evidentiary materials for consideration that were requested of the petitioner in writing by the Property Attorney of which the petitioner had knowledge, and denied to the Property Attorney. No evidence shall be considered by the Board or special magistrate except when presented during the time scheduled for the petitioner's hearing, or at a time when the petitioner has been given reasonable notice. 15. Every decision of the Board or recommendation by a Special Magistrate must contain specific and detailed findings of fact, including both ultimate findings of fact and basic and underlying findings of fact. Item #16E5 September 23, 2008 18 of 60 Each basic and underlying finding must be properly annotated to its supporting evidence. (a) An ultimate finding is a determination of fact is usually expressed in the language of a statutory standard and must be supported by and flow rationally from adequate basic and underlying findings. (b) Basic and underlying findings are those findings on which the ultimate findings rest and which are supported by evidence. Basic and underlying findings are more detailed than the ultimate findings, but less detailed than a summary of evidence. (c) Reasons are those clearly stated grounds upon which the Board or Property Attorney acted. 16. All decisions made must include the nature of the change made and indicate the just, taxable and exempt value before and after the change. 17. The Special Magistrate shall render a written recommendation in a form provided by the Clerk of the Board, within five (5) days of the hearing. This recommendation may, but need not, be rendered at the conclusion of the hearing. All recommendations are presented to the Board at a publicly noticed meeting and approved by the Board without further hearing. 18. All final decisions by the Board must be issued within twenty (20) calendar days of the last day the Board is in session, and the clerk, upon issuance thereof, must notify by first class mail each taxpayer, the Property Attorney and the Department of Revenue of the decision of the Board. If no decision is rendered in a case, the reason therefore must be placed in the records, compiled by the Clerk and maintained along with the verbatim record. Item #16E5 September 23, 2008 19 of 60 APPRAISER SPECIAL MAGISTRATE AGREEMENT THIS AGREEMENT has been made and entered into on this day of , 2008, by and between The Coastal Consulting Group. Inc. hereinafter referred to as "Special Magistrate," and COLLIER COUNTY, a political subdivision of the State of Florida, and the DISTRICT SCHOOL BOARD OF COLLIER COUNTY, hereinafter collectively referred to as the "Value Adjustment Board" (VAB). WITNESSETH 1. Commencement. This Agreement will commence upon execution of this Agreement by the last signing party, and shall terminate upon completion of the assignment and payment for same. 2. Assignment. The Special Magistrate shall conduct hearings on petitions to the Value Adjustment Board regarding valuation of real property for the 2008 tax year. The Special Magistrate will conduct these hearings in accordance with the Rules of Procedure adopted by the Collier County Value Adjustment Board, administrative rules promulgated by the Florida Department of Revenue, and applicable Florida Statutes. The VAB Rules of Procedure are attached hereto as Exhibit A and incorporated herein as a part of this Agreement. These hearings will commence on or after October 1, 2008, and may continue each following day until completed. The Special Magistrate shall prepare in writing his /her findings of fact, conclusions of law, and recommendation to the Value Adjustment Board using the forms approved by the VAB. Time is of the essence in this regard as the VAB intends to meet as soon as possible after the completion of the hearings for purposes of adopting all recommendations by its Special Magistrates. To the extent reasonably possible the Special Magistrate will render his /her recommendation within 72 hours, but, in no event, more than seven (7) business days after the hearing. To this end, the VAB has requested in its solicitation of interest, and the Special Magistrate has represented, his /her availability from October 1 to December 31, 2008. The Special Magistrate shall be compensated on an hourly basis for the time needed to complete his recommendations subject to the time limitations imposed in Paragraph 4 below. The VAB does not warrant that the Special Magistrate will be scheduled to serve any particular number of days or hear any number of cases. However, in some instances a Special Magistrate may be scheduled to hear an exceptional number of petitions on one day, or during consecutive days. In these extraordinary instances the Special Magistrate may request additional time to complete her /his recommendations. Any request for additional time must be granted in writing by the VAB Clerk. 3. Standards and Requirements. The Special Magistrate will comply with all Florida laws and administrative rules, and constitutional principles of due process when conducting the value adjustment hearings. The Collier County VAB and the County Attorney may provide additional direction or guidance to the Special Magistrate, such as Item #16E5 September 23, 2008 20 of 60 its Rules and Procedures, for the conduct of the hearings. This guidance will be followed by the Special Magistrate to the extent that such guidance does not impede upon the Special Magistrate's independent decision - making. The Special Magistrate will consider only acceptable appraisal practices when hearing all petitions but shall not engage in the re- appraisal of properties. The Special Magistrate will be responsible for preserving the record and his /her recommendations as required by Florida Statutes, F.A.C. Rule 12D -10 and the VAB Rules of Procedure. All recommendations shall be forwarded to the Clerk to the Board along with the evidentiary record for each hearing. The VAB will be responsible for providing a verbatim transcript and back -up audio recording of all proceedings. The Special Magistrate will be responsible for operating the audio recording equipment, if necessary. By execution of this Agreement, the Special Magistrate represents that s /he meets the requirements of s. 194.035, Fla. Stat. (2004) and will maintain all licensure required by this statute through completion of the Assignment. 4. Compensation. The Special Magistrate will be paid an hourly rate of one hundred twenty -five dollars ($125.00) for services rendered in accordance with this Agreement. The Special Magistrate will maintain a record of time for his /her performance under this Agreement and shall submit an invoice to the VAB after completion of all scheduled hearings and recommendations to the VAB. This invoice shall be signed and certified by the Special Magistrate as being accurate. Any time required for research and preparation beyond the hours required to conduct hearings shall not exceed twice the number of hours required for hearings without documentation of the need for such additional hours and advance approval by the County Attorney's Office. Hours spent for preparation and research in excess of this standard and without advance written approval will be deemed excessive and unreasonable and subject to non - payment. Time spent traveling to the location of the hearing in excess of one hour will be compensated at the hourly rate. The compensation paid to the Special Magistrate shall be borne three -fifths (3/5s) by the COUNTY and two -fifths (2/5s) by the SCHOOL BOARD. After payment of compensation to the Special Magistrate, the COUNTY will calculate the SCHOOL BOARD's share of the compensation paid and prepare an invoice for the SCHOOL BOARD. The SCHOOL BOARD agrees to pay the COUNTY within thirty (30) days of receipt of this invoice. Item #16E5 September 23, 2008 21 of 60 If the Agreement is renewed in accordance with Paragraph 7, the parties may agree to increase the hourly rate for services, provided such increase does not exceed twenty percent (20 %) during any renewal period. The VAB Attorney may approve such compensation increase without approval of the VAB. 5. Costs and Expenses. The VAB shall provide the hearing rooms for all Special Magistrate hearings and shall be responsible for the costs of recording all hearings before the Special Magistrate. The VAB will provide the Special Magistrate with sufficient forms for the completion of his /her findings of facts and conclusions of law for each hearing. All clerical expenses incurred by the Special Magistrate in the performance of this Agreement shall be the sole responsibility of the Special Magistrate. 6. Termination. If the Special Magistrate fails to perform his /her services in a manner consistent with this Agreement, the VAB may terminate this Agreement immediately for cause. The VAB reserves the right, in its absolute discretion, to refrain from scheduling any hearings with the Special Magistrate and to discontinue the services of the Special Magistrate at any time for convenience. If the VAB elects to terminate this Agreement for convenience, such election may be made with no less than 24 hours notice to the Special Magistrate. In recognition of the special time constraints attendant to VAB hearings, the parties hereto agree that 24 hours notice is reasonable in this instance. The VAB, and the VAB Attorney, shall be the sole judge of non- performance. Due to the inability of the VAB to meet and act quickly under these provisions, it hereby delegates its rights to terminate this Agreement, both with and without cause, to the VAB Attorney. In the event the Special Magistrate is terminated for cause, which may include the failure to provide his /her recommendation in a timely manner, the Special Magistrate agrees to complete all outstanding recommendations within five (5) calendar days from termination. 7. Renewal. Unless terminated pursuant to Section 6, this Agreement shall extend through the completion of the 2010 VAB hearings and the 30 -day acceptance period provided herein. This Agreement may be renewed annually thereafter for each consecutive year upon written notice by the VAB to the Special Magistrate prior to the expiration of this Agreement, provided the total number of renewals does not exceed five. The Special Magistrate will have thirty (30) days from the date of notice to accept or decline renewal of this Agreement. 8. No Improper Use. The Special Magistrate agrees he /she will not use, or suffer or permit any person to use in any manner, County facilities for any improper, immoral or offensive purpose, or for any purpose in violation of any federal, state, county or municipal ordinance, rule order or regulation. In the event of such violation by the Special Magistrate, the VAB shall have the right to suspend further work by the Special Magistrate or terminate this Agreement. Item #16E5 September 23, 2008 22 of 60 9. Unlawful Solicitation and Assignment of Agreement. By execution of this agreement, the Special Magistrate warrants that he /she has not employed, retained, paid or agreed to pay any company or person, other than a bona fide employee, to solicit or secure this Agreement contingent upon, or resulting from, the award or making of this Agreement. The Special Magistrate further warrants that no part of the total of the fees payable under the terms of this Agreement shall be paid directly or indirectly to any employee of the County as wages, compensation, or gift in exchange for acting as officer, agent, employee, subcontractor, or consultant to the Special Magistrate in connection with any services performed under the terms of this Agreement. The Special Magistrate expressly acknowledges that the VAB is entering into this Agreement due to the qualifications and experience of _The Coastal Consulting Group, Inc., and further agrees that there shall be no transfer or assignment of any part of this Agreement, except with the express written approval of the VAB, and all hearings will be conducted by Scott H. Watson, MAI. 10. Relationship. Nothing contained herein shall create or be construed as creating a partnership between the VAB and the Special Magistrate. Nor shall this Agreement be construed as to constitute the Special Magistrate as an agent or employee of the VAB. 11. Non - discrimination. No person on the grounds of handicap, sex, race, color, religion, national original or age, will be excluded from participation in, be denied benefits of or be otherwise subjected to discrimination in the performance of this Agreement. 12, Liquidated Damages. Time is of the essence in adopting the Special Magistrate recommendations and concluding the VAB season before December 25th. Consequently the failure of Special Magistrates to complete their recommendations in accordance with Paragraph 3 will result in damages to the COUNTY and the SCHOOL BOARD. The parties acknowledge and agree that actual damages are uncertain and too difficult to ascertain and that the following amount of liquidated damages is reasonable and agreeable to both parties, and not intended as a penalty. The parties therefore agree that $300 /day will be deducted from any payments due a Special Magistrate for each day a completed recommendation is late (beyond seven business days). 13. Records. The Special Magistrate shall maintain records of all accounts, invoices for reimbursable expenses and supporting documentation for any research or reports, for a period of five (5) years from completing the performance of this Agreement. Such records shall be sufficient to permit a proper pre- and post -audit in accordance with generally accepted accounting practices. The Special Magistrate shall allow public access to all documents and materials in accordance with the provisions of Chapter 119, Florida Statutes, and will permit the inspection of such records at the location where they are kept after reasonable notice. Item #16E5 September 23, 2008 23 of 60 14. Interpretation and Construction. This Agreement shall be governed by, and construed in accordance with, the laws of the state of Florida; and this written Agreement along with the terms and conditions of RFP 08 -5077, "Appraiser Special Magistrate for 2008 Collier County VAB," and the response thereto submitted by the undersigned party, which is incorporated herein by reference, shall constitute the entire agreement between the parties, and there are no other prior or contemporaneous, oral or written agreements, understandings or promises related to this Agreement. 15. Amendment. This Agreement may be modified only by written amendment executed by all parties. 16. Notice. When any party desires to give notice to the other, it must be given in writing and sent by regular mail or facsimile to the party for whom itt intended, as specified below: VALUE ADJUSTMENT BOARD Go VAB Attorney Office of County Attorney 3301 Tamiami Trail East 8"' Floor (Bldg F) Naples, Florida 34112 Telephone: (239) 252 -8400 Facsimile: (239) 252 -6300 SPECIAL MAGISTRATE The Coastal Consulting Group, Inc. 1314 East Las Olas Blvd, Suite 801 Fort Lauderdale, Florida 33301 (954) 776 -9938 (954) 776-0970 (fax) Copy to: Clerk to the Value Adjustment Board c/o Patricia Morgan, Supervisor Clerk of Courts 3301 Tamiami Trail East 4"' Floor (Bldg F) Naples, Florida 34112 Telephone: (239) 774 -8399 Facsimile: (239) 774 -8408 17. Governing Law. This Agreement shall be governed by Florida law. IN WITNESS WHEREOF, the parties have hereunto affixed their signatures ty their duly authorized representatives. As to SPECIAL MAGISTRATE: Witnesses: Signature 17@'�'Lv'oR �II�b2 P p't Na(ne p Signature f� c �I Print �Q�zz f t.saN Q2GS DATE: [NAME) Item #16E5 September 23, 2008 24 of 60 As to VALUE ADJUSTMENT BOARD: ATTEST: DWIGHT E. BROCK, CLERK al , Deputy Clerk DATE: BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY By: Tom Henning, Chairman Witnesses: Apprwed as to form & legal sufficiency County Att r ey Signature Print Name Signature Print Name DATE: COLLIER COUNTY DISTRICT SCHOOL BOARD By: n obert Spencer, Financial Officer Collier County District School Board EXHIBIT "A" VALUE ADJUSTMENT BOARD RULES OF PROCEDURE Item #16E5 September 23, 2008 25 of 60 CHAPTER 1: ORGANIZATION 1. The Board is a separate and distinct governmental body created by statute and is composed of three members of the Board of County Commissioners and two School Board Members. 2. One of the County Commissioners is required to the elected as Chairman of the Board. 3. The members of the Board may be temporarily replaced by other members of the respective boards (i.e. the Commission and School Board) on appointment by their respective chairpersons. 4. Any three members of the Board constitute a quorum, except that each quorum must include at least one Commissioner and one School Board member. No meeting of the Board can take place without a quorum. 5. Two -fifths on the expenses of the Board are borne by the School Board and three -fifths by the County Commission. 6. As used herein, the word "Board" may include "Special Magistrates." CHAPTER 2: POWERS AND DUTIES 1. The Board must meet not earlier than 30 days, nor later than 60 days after the mailing of the "Notices of Proposed Property Taxes" by the Property Attorney under section 194.011 (1), Florida Statutes; provided, however, that no Board hearing may be held before approval of all or any part of the assessment rolls by the Departments of Revenue. The Board is required to meet for the following purposes: (a) Hearing taxpayers' petitions relating to the amount of assessments. (b) Hearing complaints relating to Homestead exemptions. (c) Hearing appeals from exemptions denied, or disputes arising from exemption granted, upon the filing of exemption applications (i.e. other than Homestead exemptions) (d) Hearing appeals concerning ad valorem tax deferrals and classifications. Item #16E5 September 23, 2008 26 of 60 Notwithstanding the foregoing, the Board may meet prior to the approval of the assessment rolls by the Department of Revenue, but not earlier than July 1, to hear appeals pertaining to the denial by the Property Attorney of exemptions, agricultural classifications and deferrals under (b), (c), and (d). In such event, the Board may not certify any assessments under Section 193.122 until after the Department has approved such assessments in accordance with Section 193.1142 and after all hearings have been held with respect to the Particular parcel under appeal. 2. The Board was authorized by state law to impose a filing fee not to exceed $15.00 for each separate parcel of property, real or personal, covered by taxpayers petitions (i.e. with certain exceptions pertaining to denials of Homestead exemption and tax deferrals). Petitions filed without the appropriate filing fee are deemed invalid and must be rejected. 3. The Board is required to appoint special magistrates for the purpose of taking testimony and making recommendations to the Board, which recommendations the Board may act upon without further hearing. The Board has chosen to act upon such recommendations without further hearings. Appeals to the full Board by Taxpayers and the Property Attorney requesting de novo review of special magistrates" decisions will be denied. Special magistrates must meet the criteria set forth in s. 194.035, Fla. Stat. 4. The Board is required to remain in session from day to day until all petitions, complaints, appeals, and disputes are heard. If all or any part of an assessment roll is disapproved by the Florida Department of Revenue, the Board is required to reconvene to hear petitions, complaints, appeals and disputes filed upon the finally approved roll or part of a roll. 5. The Board has no power to fix the original valuation of property for ad valorem tax purposes or to grant an exemption not authorized by law. The Board is bound by the same standards as the County Property Attorney in determining value and the granting of exemptions. With certain exceptions, all property, real and personal, must be assessed at fair market value as of January 1 of the tax year. The Board, or its special magistrates, may not reduce an assessment below fair market value (i.e. in order to "equalize" it with other assessments), but for purposes of reviewing a petition, the Board may consider assessments among comparable properties within homogeneous area or neighborhoods. 6. The Board has no power to grant relief either by adjustment of the value of a property or by the granting of an exemption on the basis of hardship of a particular taxpayer. 7. The Board, in determining the valuation of a specific property, may not consider the ultimate amount of tax required by the various taxing authorities. 8. The powers, authorities, duties and functions of the Board, insofar as they are appropriate, apply equally to real property and tangible personal property. Item #16E5 September 23, 2008 27 of 60 9. The Board may not extend the time for the filing of petitions. However, the failure to meet the statutory deadline for filing a petition is not a absolute bar to consideration of such a petition by the Board when the Board determines that the petitioner has demonstrated good cause for failure to timely file, justifying consideration, and that the delay will not in fact be prejudicial to the performance of its functions in the taxing process. The issue of whether a petitioner's late filing can demonstrate "good cause" will be heard and determined by the Special Magistrate. If the Special Magistrate finds that good cause has been shown, she /he will proceed to hear the merits of the petition. 10. The Board is required to hear disputed or appealed applications for exemption and must grant such exemptions, in whole or in part, in accordance with the criteria established by law. In addition, the Board may review previously granted exemptions on its own motion or upon motion of the Property Attorney. Review of an exemption application upon motion of the Board cannot be help heard until the application has had at least five (5) calendar day notice of the Board's intent to review the application. 11. The Board is required to comply with all valid rules and regulations promulgated by the Florida Department of Revenue. CHAPTER 3: PRE - HEARING EVIDENCE EXCHANGE 1. At least 10 days before the scheduled hearing, the taxpayer /petitioner must provide the Property Attorney with a written list and summary of evidence, along with copies of the all documentation to be presented at the hearing. Two copies of the complete package provided to the Property Attorney must be delivered by the Petitioner to the Clerk to the Board. 2. No later than five (5) days after the Property Attorney receives the taxpayer /petitioner's documentation, the Property Attorney must provide the taxpayer /petitioner with a written list and summary of its evidence to be presented at hearing. This list and summary must likewise be accompanied with copies of the documentation to be presented. The evidence list must contain the property record card if provided by the Clerk. When computing the five day period, Saturdays, Sundays and legal holidays shall not be included. 3. If the taxpayer /petitioner does not provide the information to the Property Attorney at least ten (10) days prior to the hearing pursuant to Section 1 above, the Property Attorney need not provide the information to the taxpayer /petitioner pursuant to Section 2. Except that if the Property Attorney requests in writing any evidentiary materials of the taxpayer /petitioner, and the taxpayer /petitioner refuses to provide the requested materials prior to the hearing, such information shall not be presented or considered at the scheduled hearing by the Special Magistrate or the VAB. (Fla. Stat. 194.034(1) (d)) 4. If the Property Attorney does not provide the information within the time required under Section 2, the taxpayer /petitioner will be entitled to reschedule the hearing. Item #16E5 September 23, 2008 28 of 60 In such event, the taxpayer must notify the Clerk no later than twenty -four (24) hours, excluding weekends and holidays, after the day of required production that the Property Attorney did not fully comply, the details of such non - compliance, and request a reschedule in writing. After receipt of this written notice, the Clerk will re- schedule the hearing. 5. The documentation exchanged under Section 1 and 2 above must be delivered by regular or certified mail, personal delivery, overnight mail, facsimile or e -mail. The date of transmission by e-mail or fax to an address provided by the addressee shall be deemed to constitute the date of delivery to the recipient. For such purpose, three e- mail or fax attempts to the address provided by the addressee will be deemed sufficient. If the taxpayer /petitioner designates delivery by U.S. Mail or does not specifically designate the desired manner for receiving the Property Attorney's information, the information shall be deposited into the mail by the Property Attorney. The taxpayer /petitioner and the Property Attomey may agree to a different method or timing of the exchange. 6. The information must be sent to the taxpayer /petitioner or agent at the address shown on the petition form; however, it may be submitted to an e-mail or fax address if so indicated by the taxpayer /petitioner. 7. In computing any period of time prescribed by these rules, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday. If the tenth day before a hearing is a Saturday, Sunday, or legal holiday, the information under subsection 2 shall be provided no later than the previous business day. 8. The summary of any testimony submitted pursuant to Sections 1 and 2 shall be sufficiently detailed as to reasonably inform a party of the general subject matter of the witness testimony, and shall contain the name and address of the witness. 9. No taxpayer /petitioner may present nor shall the VAB or a special magistrate accept for consideration any `testimony or other evidentiary materials" that were requested of the taxpayer /petitioner in writing by the Property Attorney of which the taxpayer "had knowledge and denied to the Property Attorney." (Section 194.034(1) (d), Florida Statutes.) Item #16E5 September 23, 2008 29 of 60 CHAPTER 4; CONDUCT OF HEARINGS; PROCEDURES 1. Proceedings of the Board must be conducted in compliance with the Florida Sunshine Law (i.e. Section 268.011, Florida Statutes): (a) Reasonable notice must be given to the public prior to a Board meeting. (b) All Board meetings at which any official action may be taken must be help in the open. 2. Board and special magistrate hearings are required to the conducted in accordance with the applicable provisions of Chapter 194 and 196, Florida Statutes, and administrative rules promulgated by the Florida Department of Revenue. Chapter 120, Florida Statutes, does not apply to VAB proceedings, including hearings before the Special Magistrates. 3. Upon the filing of a petition by a taxpayer, the Clerk of the Board is required to deliver to the person so filing, an acknowledgment of receipt of such petition and must promptly furnish a copy of same to the Property Attorney. Late filed petitioner must be noted by the Clerk and brought to the attention of the Board. The only petitions subject to rejection are those not accompanied by the appropriate filing fee under section 194.013. 4. The Clerk of the Board will prepare a schedule of appearances before the Board (Special Magistrates) based on petitions (including applications for Homestead Exemptions denied by the Property Attorney) timely filed with him. The Clerk must notify each petitioner of the scheduled time of his appearance in writing by U.S. mail or Personal delivery so that the notice is received by the taxpayer no less than twenty (20) calendar days prior to the day of such schedule appearance. The Clerk is deemed to have prima facie complied with such notice requirements if the notice is deposited in the U.S. Mail twenty -five (25) days prior to the day of such scheduled appearance. The Clerk will include a copy of the property record card with the notice in all cases, whether or not requested by the taxpayer. The Clerk will not schedule hearings in personal rp operty cases, unless a return is filed within the time prescribed by the Board. 5. The petitioner has the right to reschedule his or her hearing ONE time by submitting to the Clerk a written request to reschedule NO LESS THAN FIVE (5) calendar days before the day of the originally scheduled hearing. 6. The Board and its special magistrates act in a quasi - judicial capacity with respect to the conduct of these hearings. 7. Board members and special magistrates should disqualify themselves on their own initiative or upon motion of any party interest or other cause for which a judge may be recused, with respect to any appeal coming before the Board. Item #16E5 September 23, 2008 30 of 60 8. No Board member or special magistrate should communicate ex parte with any taxpayer or the Property Attorney relative to the merits of any case. However, this should not preclude a Board member or special magistrate from communicating with a taxpayer or the Property Attorney for proposes of obtaining additional raw data upon which a finding might be based. Any communications concerning the proper conclusion to be drawn from any such raw data would constitute a discussion of the merits and results in an ex parte communication prohibited by law. 9. (a) Any taxpayer may be represented by an attorney or agent before the Board or special magistrate, or may appear on his own behalf. (b) A condominium homeowners' association (or qualified incorporated mobile home park association) may appear before the Board or Special Magistrate to present testimony and evidence regarding the assessment of condominium units which said association represents. Said testimony and evidence must also be considered by the Board or Special Magistrate with respect to petitions filed by individual condominium unit owners, unless the owner requests otherwise. 10. (a) Irrelevant, immaterial or unduly repetitious evidence may be excluded by the Board or special magistrate but all other evidence of a type commonly relied upon by reasonable prudent persons in the conduct of their affairs is admissible, whether or not such evidence would be admissible in a court of law. (b) Any part of a taxpayer's evidence may be received in written from, and all testimony of parties and witnesses is required to be made under oath upon the request of either party. The Special Magistrate or court reporter will administer the oath to all persons providing testimony, including parties. Witnesses for either party may be cross — examined by the other party when testimony is taken. (c) Hearsay evidence may be admitted for the purpose of supplementing or explaining other evidence, but it is not sufficient in itself to support a finding unless it would be admissible over objection in a civil action in the courts of this State. 11. The Property Attorney's determinations are entitled to a "presumption of correctness ", and petitioning taxpayers have the burden to prove that the Property Attorney's determinations are incorrect. (a) In the non - valuation cases (e.g. exemption and agricultural classification cases), this presumption of correctness can be property rebutted only by evidence which excludes very reasonable hypothesis of a legal assessment. Item #16E5 September 23, 2008 31 of 60 (b) In valuation cases, the Property Attorney's valuation is still presumed correct, but the presumption is lost if the taxpayer establishes by a preponderance of the evidence that either the Property Attorney (a) failed to property consider all of the valuation criteria mandated by statute in computing the assessment, or (b) derived the assessment arbitrarily based on appraisal practices different from those generally applied to comparable property within the same class and county. If the taxpayer overcomes the initial presumption of correctness, in the forgoing manner, he or she then has the burden to prove by a preponderance of the evidence that the assessment exceeds fair market value. If, however, the taxpayer cannot overcome the property attorney's initial presumption of correctness, then the taxpayer, in order to obtain relief, must prove that the assessment is excessive by clear and convincing evidence. In no case involving valuation, however, does the taxpayer have the burden of proving that the assessment is "not supported by any reasonable hypothesis of a legal assessment." 12. If the Property Attorney's assessed value is determined to be erroneous, the VAB can establish the assessment if there exists competent, substantial evidence in the record. If not, the VAB must remand to the Property Attorney with the appropriate directions for a redetermination of value. 13. The Clerk of the Board is required to maintain a verbatim record of all proceedings and must preserve all documentary evidence and listings for a period of not less than four (4) years. The Board and its special magistrates should insist that all documentary evidence relied upon by any party be incorporated into the Board's files. In the event a party refuses to relinquish possession of any such documentary evidence, the Board and its special magistrates should not consider the same in making a finding of fact or conclusion of law. 14. No petitioner may present, nor may the Board or special magistrate accept, testimony or other evidentiary materials for consideration that were requested of the petitioner in writing by the Property Attorney of which the petitioner had knowledge, and denied to the Property Attorney. No evidence shall be considered by the Board or special magistrate except when presented during the time scheduled for the petitioner's hearing, or at a time when the petitioner has been given reasonable notice. 15. Every decision of the Board or recommendation by a Special Magistrate must contain specific and detailed findings of fact, including both ultimate findings of fact and basic and underlying findings of fact. Item #16E5 September 23, 2008 32 of 60 Each basic and underlying finding must be properly annotated to its supporting evidence. (a) An ultimate finding is a determination of fact is usually expressed in the language of a statutory standard and must be supported by and flow rationally from adequate basic and underlying findings. (b) Basic and underlying findings are those findings on which the ultimate findings rest and which are supported by evidence. Basic and underlying findings are more detailed than the ultimate findings, but less detailed than a summary of evidence. (c) Reasons are those clearly stated grounds upon which the Board or Property Attorney acted. 16. All decisions made must include the nature of the change made and indicate the just, taxable and exempt value before and after the change. 17. The Special Magistrate shall render a written recommendation in a form provided by the Clerk of the Board, within five (5) days of the hearing. This recommendation may, but need not, be rendered at the conclusion of the hearing. All recommendations are presented to the Board at a publicly noticed meeting and approved by the Board without further hearing. 18. All final decisions by the Board must be issued within twenty (20) calendar days of the last day the Board is in session, and the clerk, upon issuance thereof, must notify by first class mail each taxpayer, the Property Attorney and the Department of Revenue of the decision of the Board. If no decision is rendered in a case, the reason therefore must be placed in the records, compiled by the Clerk and maintained along with the verbatim record. • Item #16E5 September 23, 2008 33 of 60 APPRAISER SPECIAL MAGISTRATE AGREEMENT THIS AGREEMENT has been made and entered into on this day of , 2008, by and between Machinery Capital Assets hereinafter referred to as "Special Magistrate," and COLLIER COUNTY, a political subdivision of the State of Florida, and the DISTRICT SCHOOL BOARD OF COLLIER COUNTY, hereinafter collectively referred to as the "Value Adjustment Board" (VAB). WITNESSETH 1. Commencement. This Agreement will commence upon execution of this Agreement by the last signing party, and shall terminate upon completion of the assignment and payment for same. 2. Assignment. The Special Magistrate shall conduct hearings on petitions to the Value Adjustment Board regarding valuation of real estate or tangible personal property for the 2008 tax year. The Special Magistrate will conduct these hearings in accordance with the Rules of Procedure adopted by the Collier County Value Adjustment Board, administrative rules promulgated by the Florida Department of Revenue, and applicable Florida Statutes. The VAB Rules of Procedure are attached hereto as Exhibit A and incorporated herein as a part of this Agreement. These hearings will commence on or after October 1, 2008, and may continue each following day until completed. The Special Magistrate shall prepare in writing his /her findings of fact, conclusions of law, and recommendation to the Value Adjustment Board using the forms approved by the VAB. Time is of the essence in this regard as the VAB intends to meet as soon as possible after the completion of the hearings for purposes of adopting all recommendations by its Special Magistrates. To the extent reasonably possible the Special Magistrate will render his /her recommendation within 72 hours, but, in no event, more than seven (7) business days after the hearing. To this end, the VAB has requested in its solicitation of interest, and the Special Magistrate has represented, his /her availability from October 1 to December 31, 2008. The Special Magistrate shall be compensated on an hourly basis for the time needed to complete his recommendations subject to the time limitations imposed in Paragraph 4 below. The VAB does not warrant that the Special Magistrate will be scheduled to serve any particular number of days or hear any number of cases. However, in some instances a Special Magistrate may be scheduled to hear an exceptional number of petitions on one day, or during consecutive days. In these extraordinary instances the Special Magistrate may request additional time to complete her /his recommendations. Any request for additional time must be granted in writing by the VAB Clerk. 3. Standards and Requirements. The Special Magistrate will comply with all Florida laws and administrative rules, and constitutional principles of due process when conducting the value adjustment hearings. The Collier County VAB and the County Attorney may provide additional direction or guidance to the Special Magistrate, such as Item #16E5 September 23, 2008 34 of 60 its Rules and Procedures, for the conduct of the hearings. This guidance will be followed by the Special Magistrate to the extent that such guidance does not impede upon the Special Magistrate's independent decision - making. The Special Magistrate will consider only acceptable appraisal practices when hearing all petitions but shall not engage in the re- appraisal of properties. The Special Magistrate will be responsible for preserving the record and his /her recommendations as required by Florida Statutes, F.A.C. Rule 12D -10 and the VAB Rules of Procedure. All recommendations shall be forwarded to the Clerk to the Board along with the evidentiary record for each hearing. The VAB will be responsible for providing a verbatim transcript and back -up audio recording of all proceedings. The Special Magistrate will be responsible for operating the audio recording equipment, if necessary. By execution of this Agreement, the Special Magistrate represents that s /he meets the requirements of s. 194.035, Fla. Stat. (2004) and will maintain all licensure required by this statute through completion of the Assignment. 4. Compensation. The Special Magistrate will be paid an hourly rate of one hundred twenty -five dollars ($125.00) for services rendered in accordance with this Agreement. The Special Magistrate will maintain a record of time for his /her performance under this Agreement and shall submit an invoice to the VAB after completion of all scheduled hearings and recommendations to the VAB. This invoice shall be signed and certified by the Special Magistrate as being accurate. Any time required for research and preparation beyond the hours required to conduct hearings shall not exceed twice the number of hours required for hearings without documentation of the need for such additional hours and advance approval by the County Attorney's Office. Hours spent for preparation and research in excess of this standard and without advance written approval will be deemed excessive and unreasonable and subject to non - payment. Time spent traveling to the location of the hearing in excess of one hour will be compensated at the hourly rate. The compensation paid to the Special Magistrate shall be borne three -fifths (3/5s) by the COUNTY and two -fifths (2/5s) by the SCHOOL BOARD. After payment of compensation to the Special Magistrate, the COUNTY will calculate the SCHOOL BOARD's share of the compensation paid and prepare an invoice for the SCHOOL BOARD. The SCHOOL BOARD agrees to pay the COUNTY within thirty (30) days of receipt of this invoice. Item #16E5 September 23, 2008 35 of 60 If the Agreement is renewed in accordance with Paragraph 7, the parties may agree to increase the hourly rate for services, provided such increase does not exceed twenty percent (20 %) during any renewal period. The VAB Attorney may approve such compensation increase without approval of the VAB. 5. Costs and Expenses. The VAB shall provide the hearing rooms for all Special Magistrate hearings and shall be responsible for the costs of recording all hearings before the Special Magistrate. The VAB will provide the Special Magistrate with sufficient forms for the completion of his /her findings of facts and conclusions of law for each hearing. All clerical expenses incurred by the Special Magistrate in the performance of this Agreement shall be the sole responsibility of the Special Magistrate. 6. Termination. If the Special Magistrate fails to perform his /her services in a manner consistent with this Agreement, the VAB may terminate this Agreement immediately for cause. The VAB reserves the right, in its absolute discretion, to refrain from scheduling any hearings with the Special Magistrate and to discontinue the services of the Special Magistrate at any time for convenience. If the VAB elects to terminate this Agreement for convenience, such election may be made with no less than 24 hours notice to the Special Magistrate. In recognition of the special time constraints attendant to VAB hearings, the parties hereto agree that 24 hours notice is reasonable in this instance. The VAB, and the VAB Attorney, shall be the sole judge of non- performance. Due to the inability of the VAB to meet and act quickly under these provisions, it hereby delegates its rights to terminate this Agreement, both with and without cause, to the VAB Attorney. In the event the Special Magistrate is terminated for cause, which may include the failure to provide his /her recommendation in a timely manner, the Special Magistrate agrees to complete all outstanding recommendations within five (5) calendar days from termination. 7. Renewal. Unless terminated pursuant to Section 6, this Agreement shall extend through the completion of the 2010 VAB hearings and the 30 -day acceptance period provided herein. This Agreement may be renewed annually thereafter for each consecutive year upon written notice by the VAB to the Special Magistrate prior to the expiration of this Agreement, provided the total number of renewals does not exceed five. The Special Magistrate will have thirty (30) days from the date of notice to accept or decline renewal of this Agreement. 8. No Improper Use. The Special Magistrate agrees he /she will not use, or suffer or permit any person to use in any manner, County facilities for any improper, immoral or offensive purpose, or for any purpose in violation of any federal, state, county or municipal ordinance, rule order or regulation. In the event of such violation by the Special Magistrate, the VAB shall have the right to suspend further work by the Special Magistrate or terminate this Agreement. Item #16E5 September 23, 2008 36 of 60 9. Unlawful Solicitation and Assignment of Agreement. By execution of this agreement, the Special Magistrate warrants that he /she has not employed, retained, paid or agreed to pay any company or person, other than a bona fide employee, to solicit or secure this Agreement contingent upon, or resulting from, the award or making of this Agreement. The Special Magistrate further warrants that no part of the total of the fees payable under the terms of this Agreement shall be paid directly or indirectly to any employee of the County as wages, compensation, or gift in exchange for acting as officer, agent, employee, subcontractor, or consultant to the Special Magistrate in connection with any services performed under the terms of this Agreement. The Special Magistrate expressly acknowledges that the VAB is entering into this Agreement due to the qualifications and experience of Machinery Capital Assets, Inc., and further agrees that there shall be no transfer or assignment of any part of this Agreement, except with the express written approval of the VAB, and all hearings will be conducted by Gerald A. Lagace, ASA. 10. Relationship. Nothing contained herein shall create or be construed as creating a partnership between the VAB and the Special Magistrate. Nor shall this Agreement be construed as to constitute the Special Magistrate as an agent or employee of the VAB. 11. Non - discrimination. No person on the grounds of handicap, sex, race, color, religion, national original or age, will be excluded from participation in, be denied benefits of or be otherwise subjected to discrimination in the performance of this Agreement. 12. Liquidated Damages. Time is of the essence in adopting the Special Magistrate recommendations and concluding the VAB season before December 25th. Consequently the failure of Special Magistrates to complete their recommendations in accordance with Paragraph 3 will result in damages to the COUNTY and the SCHOOL BOARD. The parties acknowledge and agree that actual damages are uncertain and too difficult to ascertain and that the following amount of liquidated damages is reasonable and agreeable to both parties, and not intended as a penalty. The parties therefore agree that $300 /day will be deducted from any payments due a Special Magistrate for each day a completed recommendation is late (beyond seven business days). 13. Records. The Special Magistrate shall maintain records of all accounts, invoices for reimbursable expenses and supporting documentation for any research or reports, for a period of five (5) years from completing the performance of this Agreement. Such records shall be sufficient to permit a proper pre- and post -audit in accordance with generally accepted accounting practices. The Special Magistrate shall allow public access to all documents and materials in accordance with the provisions of Chapter 119, Florida Statutes, and will permit the inspection of such records at the location where they are kept after reasonable notice. Item #16E5 September 23, 2008 37 of 60 14. Interpretation and Construction. This Agreement shall be governed by, and construed in accordance with, the laws of the state of Florida; and this written Agreement along with the terms and conditions of RFP 08 -5077, "Appraiser Special Magistrate for 2008 Collier County VAB," and the response thereto submitted by the undersigned party, which is incorporated herein by reference, shall constitute the entire agreement between the parties, and there are no other prior or contemporaneous, oral or written agreements, understandings or promises related to this Agreement. 15. Amendment. This Agreement may be modified only by written amendment executed by all parties. 16. Notice. When any party desires to give notice to the other, it must be given in writing and sent by regular mail or facsimile to the party for whom it is intended, as specified below: VALUE ADJUSTMENT BOARD c/o VAB Attorney Office of County Attorney 3301 Tamiami Trail East 8th Floor (Bldg F) Naples, Florida 34112 Telephone: (239) 252 -8400 Facsimile: (239) 252 -6300 SPECIAL MAGISTRATE Machinery Capital Assets 1841 Ingram Avenue Sarasota Florida 34232 (941) 364 -9209 (941) 955 -5161 (fax) Copy to: Clerk to the Value Adjustment Board c/o Patricia Morgan, Supervisor Clerk of Courts 3301 Tamiami Trail East 0 Floor (Bldg F) Naples, Florida 34112 Telephone: (239) 774 -8399 Facsimile: (239) 774 -8408 17. Governing Law. This Agreement shall be governed by Florida law. IN WITNESS WHEREOF, the parties have hereunto affixed their signatures by their duly authorized representatives. As to SPECIAL MAGISTRATE: �L • L. ar Print DATE: As to VALUE ADJUSTMENT BOARD: ATTEST: DWIGHT E. BROCK, CLERK , Deputy Clerk DATE: BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY Tom Henning, Chairman Witnesses: Signature Print Name Signature Print Name DATE: COLLIER COUNTY DISTRICT SCHOOL BOARD By: Robert pencer, Financial Officer Collier unty District School Board Item #16E5 September 23, 2008 38 of 60 Approved as to form & legal sufficiency ouMy Att ay Item #16E5 September 23, 2008 39 of 60 EXHIBIT "A" VALUE ADJUSTMENT BOARD RULES OF PROCEDURE CHAPTER 1: ORGANIZATION 1. The Board is a separate and distinct governmental body created by statute and is composed of three members of the Board of County Commissioners and two School Board Members. 2. One of the County Commissioners is required to the elected as Chairman of the Board. 3. The members of the Board may be temporarily replaced by other members of the respective boards (i.e. the Commission and School Board) on appointment by their respective chairpersons. 4. Any three members of the Board constitute a quorum, except that each quorum must include at least one Commissioner and one School Board member. No meeting of the Board can take place without a quorum. 5. Two -fifths on the expenses of the Board are borne by the School Board and three - fifths by the County Commission. 6. As used herein, the word "Board" may include "Special Magistrates." CHAPTER 2: POWERS AND DUTIES 1. The Board must meet not earlier than 30 days, nor later than 60 days after the mailing of the "Notices of Proposed Property Taxes" by the Property Attorney under section 194.011 (1), Florida Statutes; provided, however, that no Board hearing may be held before approval of all or any part of the assessment rolls by the Departments of Revenue. The Board is required to meet for the following purposes: (a) Hearing taxpayers' petitions relating to the amount of assessments. (b) Hearing complaints relating to Homestead exemptions. (c) Hearing appeals from exemptions denied, or disputes arising from exemption granted, upon the filing of exemption applications (i.e. other than Homestead exemptions) (d) Hearing appeals concerning ad valorem tax deferrals and classifications. Item #16E5. September 23, 2008 40 of 60 Notwithstanding the foregoing, the Board may meet prior to the approval of the assessment rolls by the Department of Revenue, but not earlier than July 1, to hear appeals pertaining to the denial by the Property Attorney of exemptions, agricultural classifications and deferrals under (b), (c), and (d). In such event, the Board may not certify any assessments under Section 193.122 until after the Department has approved such assessments in accordance with Section 193.1142 and after all hearings have been held with respect to the Particular parcel under appeal. 2. The Board was authorized by state law to impose a filing fee not to exceed $15.00 for each separate parcel of property, real or personal, covered by taxpayers petitions (i.e. with certain exceptions pertaining to denials of Homestead exemption and tax deferrals). Petitions filed without the appropriate filing fee are deemed invalid and must be rejected. 3. The Board is required to appoint special magistrates for the purpose of taking testimony and making recommendations to the Board, which recommendations the Board may act upon without further hearing. The Board has chosen to act upon such recommendations without further hearings. Appeals to the full Board by Taxpayers and the Property Attorney requesting de novo review of special magistrates" decisions will be denied. Special magistrates must meet the criteria set forth in s. 194.035, Fla. Stat. 4. The Board is required to remain in session from day to day until all petitions, complaints, appeals, and disputes are heard. If all or any part of an assessment roll is disapproved by the Florida Department of Revenue, the Board is required to reconvene to hear petitions, complaints, appeals and disputes filed upon the finally approved roll or part of a roll. 5. The Board has no power to fix the original valuation of property for ad valorem tax purposes or to grant an exemption not authorized by law. The Board is bound by the same standards as the County Property Attorney in determining value and the granting of exemptions. With certain exceptions, all property, real and personal, must be assessed at fair market value as of January 1 of the tax year. The Board, or its special magistrates, may not reduce an assessment below fair market value (i.e. in order to "equalize" it with other assessments), but for purposes of reviewing a petition, the Board may consider assessments among comparable properties within homogeneous area or neighborhoods. 6. The Board has no power to grant relief either by adjustment of the value of a property or by the granting of an exemption on the basis of hardship of a particular taxpayer. 7. The Board, in determining the valuation of a specific property, may not consider the ultimate amount of tax required by the various taxing authorities. 8. The powers, authorities, duties and functions of the Board, insofar as they are appropriate, apply equally to real property and tangible personal property. Item #16E5 September 23, 2008 41 of 60 9. The Board may not extend the time for the filing of petitions. However, the failure to meet the statutory deadline for filing a petition is not a absolute bar to consideration of such a petition by the Board when the Board determines that the petitioner has demonstrated good cause for failure to timely file, justifying consideration, and that the delay will not in fact be prejudicial to the performance of its functions in the taxing process. The issue of whether a petitioner's late filing can demonstrate "good cause' will be heard and determined by the Special Magistrate. If the Special Magistrate finds that good cause has been shown, shelhe will proceed to hear the merits of the petition. 10. The Board is required to hear disputed or appealed applications for exemption and must grant such exemptions, in whole or in part, in accordance with the criteria established by law. In addition, the Board may review previously granted exemptions on its own motion or upon motion of the Property Attorney. Review of an exemption application upon motion of the Board cannot be help heard until the application has had at least five (5) calendar day notice of the Board's intent to review the application. 11. The Board is required to comply with all valid rules and regulations promulgated by the Florida Department of Revenue. CHAPTER 3: PRE - HEARING EVIDENCE EXCHANGE 1. At least 10 days before the scheduled hearing, the taxpayer /petitioner must provide the Property Attorney with a written list and summary of evidence, along with copies of the all documentation to be presented at the hearing. Two copies of the complete package provided to the Property Attorney must be delivered by the Petitioner to the Clerk to the Board. 2. No later than five (5) days after the Property Attorney receives the taxpayer /petitioner's documentation, the Property Attorney must provide the taxpayer /petitioner with a written list and summary of its evidence to be presented at hearing. This list and summary must likewise be accompanied with copies of the documentation to be presented. The evidence list must contain the property record card if provided by the Clerk. When computing the five day period, Saturdays, Sundays and legal holidays shall not be included. 3. If the taxpayer /petitioner does not provide the information to the Property Attorney at least ten (10) days prior to the hearing pursuant to Section 1 above, the Property Attorney need not provide the information to the taxpayer /petitioner pursuant to Section 2. Except that if the Property Attorney requests in writing any evidentiary materials of the taxpayer /petitioner, and the taxpayer /petitioner refuses to provide the requested materials prior to the hearing, such information shall not be presented or considered at the scheduled hearing by the Special Magistrate or the VAB. (Fla. Stat. 194.034(1) (d)) 4. If the Property Attorney does not provide the information within the time required under Section 2, the taxpayer /petitioner will be entitled to reschedule the hearing. Item #16E5 September 23, 2008 42 of 60 In such event, the taxpayer must notify the Clerk no later than twenty -four (24) hours, excluding weekends and holidays, after the day of required production that the Property Attorney did not fully comply, the details of such non - compliance, and request a reschedule in writing. After receipt of this written notice, the Clerk will re- schedule the hearing. 5. The documentation exchanged under Section 1 and 2 above must be delivered by regular or certified mail, personal delivery, overnight mail, facsimile or e-mail. The date of transmission by e-mail or fax to an address provided by the addressee shall be deemed to constitute the date of delivery to the recipient. For such purpose, three e- mail or fax attempts to the address provided by the addressee will be deemed sufficient. If the taxpayer /petitioner designates delivery by U.S. Mail or does not specifically designate the desired manner for receiving the Property Attorney's information, the information shall be deposited into the mail by the Property Attorney. The taxpayer /petitioner and the Property Attorney may agree to a different method or timing of the exchange. 6. The information must be sent to the taxpayer /petitioner or agent at the address shown on the petition form; however, it may be submitted to an e-mail or fax address if so indicated by the taxpayer /petitioner. 7. In computing any period of time prescribed by these rules, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday. If the tenth day before a hearing is a Saturday, Sunday, or legal holiday, the information under subsection 2 shall be provided no later than the previous business day. 8. The summary of any testimony submitted pursuant to Sections 1 and 2 shall be sufficiently detailed as to reasonably inform a party of the general subject matter of the witness testimony, and shall contain the name and address of the witness. 9. No taxpayer /petitioner may present nor shall the VAB or a special magistrate accept for consideration any "testimony or other evidentiary materials' that were requested of the taxpayer /petitioner in writing by the Property Attorney of which the taxpayer "had knowledge and denied to the Property Attorney." (Section 194.034(1) (d), Florida Statutes.) Item #16E5 September 23, 2008 43 of 60 CHAPTER 4: CONDUCT OF HEARINGS; PROCEDURES 1. Proceedings of the Board must be conducted in compliance with the Florida Sunshine Law (i.e. Section 268.011, Florida Statutes): (a) Reasonable notice must be given to the public prior to a Board meeting. (b) All Board meetings at which any official action may be taken must be help in the open. 2. Board and special magistrate hearings are required to the conducted in accordance with the applicable provisions of Chapter 194 and 196, Florida Statutes, and administrative rules promulgated by the Florida Department of Revenue. Chapter 120, Florida Statutes, does not apply to VAB proceedings, including hearings before the Special Magistrates. 3. Upon the filing of a petition by a taxpayer, the Clerk of the Board is required to deliver to the person so filing, an acknowledgment of receipt of such petition and must promptly furnish a copy of same to the Property Attorney. Late filed petitioner must be noted by the Clerk and brought to the attention of the Board. The only petitions subject to rejection are those not accompanied by the appropriate filing fee under section 194.013. 4. The Clerk of the Board will prepare a schedule of appearances before the Board (Special Magistrates) based on petitions (including applications for Homestead Exemptions denied by the Property Attorney) timely filed with him. The Clerk must notify each petitioner of the scheduled time of his appearance in writing by U.S. mail or Personal delivery so that the notice is received by the taxpayer no less than twenty (20) calendar days prior to the day of such schedule appearance. The Clerk is deemed to have prima facie complied with such notice requirements if the notice is deposited in the U.S. Mail twenty -five (25) days prior to the day of such scheduled appearance. The Clerk will include a copy of the property record card with the notice in all cases, whether or not requested by the taxpayer. The Clerk will not schedule hearings in personal property cases, unless a return is filed within the time prescribed by the Board. 5. The petitioner has the right to reschedule his or her hearing ONE time by submitting to the Clerk a written request to reschedule NO LESS THAN FIVE (5) calendar days before the day of the originally scheduled hearing. 6. The Board and its special magistrates act in a quasi - judicial capacity with respect to the conduct of these hearings. 7. Board members and special magistrates should disqualify themselves on their own initiative or upon motion of any party interest or other cause for which a judge may be recused, with respect to any appeal coming before the Board. Item #16E5 September 23, 2008 44 of 60 8. No Board member or special magistrate should communicate ex parte with any taxpayer or the Property Attorney relative to the merits of any case. However, this should not preclude a Board member or special magistrate from communicating with a taxpayer or the Property Attorney for proposes of obtaining additional raw data upon which a finding might be based. Any communications concerning the proper conclusion to be drawn from any such raw data would constitute a discussion of the merits and results in an ex parte communication prohibited by law. 9. (a) Any taxpayer may be represented by an attorney or agent before the Board or special magistrate, or may appear on his own behalf. (b) A condominium homeowners' association (or qualified incorporated mobile home park association) may appear before the Board or Special Magistrate to present testimony and evidence regarding the assessment of condominium units which said association represents. Said testimony and evidence must also be considered by the Board or Special Magistrate with respect to petitions filed by individual condominium unit owners, unless the owner requests otherwise. 10. (a) Irrelevant, immaterial or unduly repetitious evidence may be excluded by the Board or special magistrate but all other evidence of a type commonly relied upon by reasonable prudent persons in the conduct of their affairs is admissible, whether or not such evidence would be admissible in a court of law. (b) Any part of a taxpayer's evidence may be received in written from, and all testimony of parties and witnesses is required to be made under oath upon the request of either party. The Special Magistrate or court reporter will administer the oath to all persons providing testimony, including parties. Witnesses for either party may be cross — examined by the other party when testimony is taken. (c) Hearsay evidence may be admitted for the purpose of supplementing or explaining other evidence, but it is not sufficient in itself to support a finding unless it would be admissible over objection in a civil action in the courts of this State. 11. The Property Attorney's determinations are entitled to a "presumption of correctness ", and petitioning taxpayers have the burden to prove that the Property Attorney's determinations are incorrect. (a) In the non - valuation cases (e.g. exemption and agricultural classification cases), this presumption of correctness can be property rebutted only by evidence which excludes very reasonable hypothesis of a legal assessment. Item #16E5 September 23, 2008 45 of 60 (b) In valuation cases, the Property Attorney's valuation is still presumed correct, but the presumption is lost if the taxpayer establishes by a preponderance of the evidence that either the Property Attorney (a) failed to property consider all of the valuation criteria mandated by statute in computing the assessment, or (b) derived the assessment arbitrarily based on appraisal practices different from those generally applied to comparable property within the same class and county. If the taxpayer overcomes the initial presumption of correctness, in the forgoing manner, he or she then has the burden to prove by a preponderance of the evidence that the assessment exceeds fair market value. If, however, the taxpayer cannot overcome the property attorney's initial presumption of correctness, then the taxpayer, in order to obtain relief, must prove that the assessment is excessive by clear and convincing evidence. In no case involving valuation, however, does the taxpayer have the burden of proving that the assessment is "not supported by any reasonable hypothesis of a legal assessment." 12. If the Property Attorney's assessed value is determined to be erroneous, the VAB can establish the assessment if there exists competent, substantial evidence in the record. If not, the VAB must remand to the Property Attorney with the appropriate directions for a redetermination of value. 13. The Clerk of the Board is required to maintain a verbatim record of all proceedings and must preserve all documentary evidence and listings for a period of not less than four (4) years. The Board and its special magistrates should insist that all documentary evidence relied upon by any party be incorporated into the Board's files. In the event a party refuses to relinquish possession of any such documentary evidence, the Board and its special magistrates should not consider the same in making a finding of fact or conclusion of law. 14. No petitioner may present, nor may the Board or special magistrate accept, testimony or other evidentiary materials for consideration that were requested of the petitioner in writing by the Property Attorney of which the petitioner had knowledge, and denied to the Property Attorney. No evidence shall be considered by the Board or special magistrate except when presented during the time scheduled for the petitioner's hearing, or at a time when the petitioner has been given reasonable notice. 15. Every decision of the Board or recommendation by a Special Magistrate must contain specific and detailed findings of fact, including both ultimate findings of fact and basic and underlying findings of fact. Item #16E5 September 23, 2008 46 of 60 Each basic and underlying finding must be properly annotated to its supporting evidence. (a) An ultimate finding is a determination of fact is usually expressed in the language of a statutory standard and must be supported by and flow rationally from adequate basic and underlying findings. (b) Basic and underlying findings are those findings on which the ultimate findings rest and which are supported by evidence. Basic and underlying findings are more detailed than the ultimate findings, but less detailed than a summary of evidence. (c) Reasons are those clearly stated grounds upon which the Board or Property Attorney acted. 16. All decisions made must include the nature of the change made and indicate the just, taxable and exempt value before and after the change. 17. The Special Magistrate shall render a written recommendation in a form provided by the Clerk of the Board, within five (5) days of the hearing. This recommendation may, but need not, be rendered at the conclusion of the hearing. All recommendations are presented to the Board at a publicly noticed meeting and approved by the Board without further hearing. 18. All final decisions by the Board must be issued within twenty (20) calendar days of the last day the Board is in session, and the clerk, upon issuance thereof, must notify by first class mail each taxpayer, the Property Attorney and the Department of Revenue of the decision of the Board. If no decision is rendered in a case, the reason therefore must be placed in the records, compiled by the Clerk and maintained along with the verbatim record. Item #16E5 September 23, 2008 47 of 60 APPRAISER SPECIAL MAGISTRATE AGREEMENT THIS AGREEMENT has been made and entered into on this day of , 2008, by and between South Florida Valuation Services. Inc. hereinafter referred to as "Special Magistrate," and COLLIER COUNTY, a political subdivision of the State of Florida, and the DISTRICT SCHOOL BOARD OF COLLIER COUNTY, hereinafter collectively referred to as the "Value Adjustment Board" (VAB). WITNESSETH 1. Commencement. This Agreement will commence upon execution of this Agreement by the last signing party, and shall terminate upon completion of the assignment and payment for same. 2. Assignment. The Special Magistrate shall conduct hearings on petitions to the Value Adjustment Board regarding valuation of real estate or tangible personal property for the 2008 tax year. The Special Magistrate will conduct these hearings in accordance with the Rules of Procedure adopted by the Collier County Value Adjustment Board, administrative rules promulgated by the Florida Department of Revenue, and applicable Florida Statutes. The VAB Rules of Procedure are attached hereto as Exhibit A and incorporated herein as a part of this Agreement. These hearings will commence on or after October 1, 2008, and may continue each following day until completed. The Special Magistrate shall prepare in writing his /her findings of fact, conclusions of law, and recommendation to the Value Adjustment Board using the forms approved by the VAB. Time is of the essence in this regard as the VAB intends to meet as soon as possible after the completion of the hearings for purposes of adopting all recommendations by its Special Magistrates. To the extent reasonably possible the Special Magistrate will render his /her recommendation within 72 hours, but, in no event, more than seven (7) business days after the hearing. To this end, the VAB has requested in its solicitation of interest, and the Special Magistrate has represented, his /her availability from October 1 to December 31, 2008. The Special Magistrate shall be compensated on an hourly basis for the time needed to complete his recommendations subject to the time limitations imposed in Paragraph 4 below. The VAB does not warrant that the Special Magistrate will be scheduled to serve any particular number of days or hear any number of cases. However, in some instances a Special Magistrate may be scheduled to hear an exceptional number of petitions on one day, or during consecutive days. In these extraordinary instances the Special Magistrate may request additional time to complete her /his recommendations. Any request for additional time must be granted in writing by the VAB Clerk, 3. Standards and Requirements. The Special Magistrate will comply with all Florida laws and administrative rules, and constitutional principles of due process when conducting the value adjustment hearings. The Collier County VAB and the County Attorney may provide additional direction or guidance to the Special Magistrate, such as Item #16E5 September 23, 2008 48 of 60 its Rules and Procedures, for the conduct of the hearings. This guidance will be followed by the Special Magistrate to the extent that such guidance does not impede upon the Special Magistrate's independent decision- making. The Special Magistrate will consider only acceptable appraisal practices when hearing all petitions but shall not engage in the re- appraisal of properties. The Special Magistrate will be responsible for preserving the record and his /her recommendations as required by Florida Statutes, F.A.C. Rule 12D -10 and the VAB Rules of Procedure. All recommendations shall be forwarded to the Clerk to the Board along with the evidentiary record for each hearing. The VAB will be responsible for providing a verbatim transcript and back -up audio recording of all proceedings. The Special Magistrate will be responsible for operating the audio recording equipment, if necessary. By execution of this Agreement, the Special Magistrate represents that s /he meets the requirements of s. 194.035, Fla. Stat. (2004) and will maintain all licensure required by this statute through completion of the Assignment. 4. Compensation. The Special Magistrate will be paid an hourly rate of ninety - five dollars ($95.00) for services rendered in accordance with this Agreement. The Special Magistrate will maintain a record of time for his /her performance under this Agreement and shall submit an invoice to the VAB after completion of all scheduled hearings and recommendations to the VAB. This invoice shall be signed and certified by the Special Magistrate as being accurate. Any time required for research and preparation beyond the hours required to conduct hearings shall not exceed twice the number of hours required for hearings without documentation of the need for such additional hours and advance approval by the County Attorney's Office. Hours spent for preparation and research in excess of this standard and without advance written approval will be deemed excessive and unreasonable and subject to non - payment. Time spent traveling to the location of the hearing in excess of one hour will be compensated at the hourly rate. The compensation paid to the Special Magistrate shall be borne three -fifths (3/5s) by the COUNTY and two -fifths (2/5s) by the SCHOOL BOARD. After payment of compensation to the Special Magistrate, the COUNTY will calculate the SCHOOL BOARD's share of the compensation paid and prepare an invoice for the SCHOOL BOARD. The SCHOOL BOARD agrees to pay the COUNTY within thirty (30) days of receipt of this invoice. Item #16E5 September 23, 2008 49 of 60 If the Agreement is renewed in accordance with Paragraph 7, the parties may agree to increase the hourly rate for services, provided such increase does not exceed twenty percent (20 %) during any renewal period. The VAB Attorney may approve such compensation increase without approval of the VAB. 5. Costs and Expenses. The VAB shall provide the hearing rooms for all Special Magistrate hearings and shall be responsible for the costs of recording all hearings before the Special Magistrate. The VAB will provide the Special Magistrate with sufficient forms for the completion of his /her findings of facts and conclusions of law for each hearing. All clerical expenses incurred by the Special Magistrate in the performance of this Agreement shall be the sole responsibility of the Special Magistrate. 6. Termination. If the Special Magistrate fails to perform his /her services in a manner consistent with this Agreement, the VAB may terminate this Agreement immediately for cause. The VAB reserves the right, in its absolute discretion, to refrain from scheduling any hearings with the Special Magistrate and to discontinue the services of the Special Magistrate at any time for convenience. If the VAB elects to terminate this Agreement for convenience, such election may be made with no less than 24 hours notice to the Special Magistrate. In recognition of the special time constraints attendant to VAB hearings, the parties hereto agree that 24 hours notice is reasonable in this instance. The VAB, and the VAB Attorney, shall be the sole judge of non- performance. Due to the inability of the VAB to meet and act quickly under these provisions, it hereby delegates its rights to terminate this Agreement, both with and without cause, to the VAB Attorney. In the event the Special Magistrate is terminated for cause, which may include the failure to provide his /her recommendation in a timely manner, the Special Magistrate agrees to complete all outstanding recommendations within five (5) calendar days from termination. 7. Renewal. Unless terminated pursuant to Section 6, this Agreement shall extend through the completion of the 2010 VAB hearings and the 30 -day acceptance period provided herein. This Agreement may be renewed annually thereafter for each consecutive year upon written notice by the VAB to the Special Magistrate prior to the expiration of this Agreement, provided the total number of renewals does not exceed five. The Special Magistrate will have thirty (30) days from the date of notice to accept or decline renewal of this Agreement. 8. No Improper Use. The Special Magistrate agrees he /she will not use, or suffer or permit any person to use in any manner, County facilities for any improper, immoral or offensive purpose, or for any purpose in violation of any federal, state, county or municipal ordinance, rule order or regulation. In the event of such violation by the Special Magistrate, the VAB shall have the right to suspend further work by the Special Magistrate or terminate this Agreement. Item #16E5 September 23, 2008 50 of 60 9. Unlawful Solicitation and Assignment of Agreement. By execution of this agreement, the Special Magistrate warrants that he /she has not employed, retained, paid or agreed to pay any company or person, other than a bona fide employee, to solicit or secure this Agreement contingent upon, or resulting from, the award or making of this Agreement. The Special Magistrate further warrants that no part of the total of the fees payable under the terms of this Agreement shall be paid directly or indirectly to any employee of the County as wages, compensation, or gift in exchange for acting as officer, agent, employee, subcontractor, or consultant to the Special Magistrate in connection with any services performed under the terms of this Agreement. The Special Magistrate expressly acknowledges that the VAB is entering into this Agreement due to the qualifications and experience of Machinery Capital Assets, Inc., and further agrees that there shall be no transfer or assignment of any part of this Agreement, except with the express written approval of the VAB, and all hearings will be conducted by Gerald A. Lagace, ASA. 10. Relationship. Nothing contained herein shall create or be construed as creating a partnership between the VAB and the Special Magistrate. Nor shall this Agreement be construed as to constitute the Special Magistrate as an agent or employee of the VAB. 11. Non - discrimination. No person on the grounds of handicap, sex, race, color, religion, national original or age, will be excluded from participation in, be denied benefits of or be otherwise subjected to discrimination in the performance of this Agreement. 12. Liquidated Damages. Time is of the essence in adopting the Special Magistrate recommendations and concluding the VAB season before December 25th. Consequently the failure of Special Magistrates to complete their recommendations in accordance with Paragraph 3 will result in damages to the COUNTY and the SCHOOL BOARD. The parties acknowledge and agree that actual damages are uncertain and too difficult to ascertain and that the following amount of liquidated damages is reasonable and agreeable to both parties, and not intended as a penalty. The parties therefore agree that $300 /day will be deducted from any payments due a Special Magistrate for each day a completed recommendation is late (beyond seven business days). 13. Records. The Special Magistrate shall maintain records of all accounts, invoices for reimbursable expenses and supporting documentation for any research or reports, for a period of five (5) years from completing the performance of this Agreement. Such records shall be sufficient to permit a proper pre- and post -audit in accordance with generally accepted accounting practices. The Special Magistrate shall allow public access to all documents and materials in accordance with the provisions of Chapter 119, Florida Statutes, and will permit the inspection of such records at the location where they are kept after reasonable notice. Item #16E5 September 23, 2008 51 of 60 14. Interpretation and Construction. This Agreement shall be governed by, and construed in accordance with, the laws of the state of Florida; and this written Agreement along with the terms and conditions of RFP 08 -5077, "Appraiser Special Magistrate for 2008 Collier County VAB," and the response thereto submitted by the undersigned party, which is incorporated herein by reference, shall constitute the entire agreement between the parties, and there are no other prior or contemporaneous, oral or written agreements, understandings or promises related to this Agreement. 15. Amendment This Agreement may be modified only by written amendment executed by all parties. 16. Notice. When any party desires to give notice to the other, it must be given in writing and sent by regular mail or facsimile to the party for whom it is intended, as specified below: VALUE ADJUSTMENT BOARD c/o VAB Attorney Office of County Attorney 3301 Tamiami Trail East e Floor (Bldg F) Naples, Florida 34112 Telephone: (239) 252 -8400 Facsimile: (239) 252 -6300 SPECIAL MAGISTRATE South Florida Valuation Services, Inc. Post Office Box 33621 Palm Beach Gardens, Florida 33420 (561) 313 -1067 (561) 575 -4536 (fax) Copy to: Clerk to the Value Adjustment Board c/o Patricia Morgan, Supervisor Clerk of Courts 3301 Tamiami Trail East 4'" Floor (Bldg F) Naples, Florida 34112 Telephone: (239) 774 -8399 Facsimile: (239) 774 -8408 17. Governing Law. This Agreement shall be governed by Florida law. IN WITNESS WHEREOF, the parties have hereunto affixed their signatures by their duly authorized representatives. As to SPECIAL MAGISTRATE: Wiitnra�—qc±w Print � DATE: d y J 2c)oY [NAME] 'A nom( feel As to VALUE ADJUSTMENT BOARD: ATTEST: DWIGHT E. BROCK, CLERK In , Deputy Clerk DATE: BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY Ll7 Tom Henning, Chairman Witnesses: Signature Print Name Signature Print Name DATE: COLLIER COUNTY DISTRICT SCHOOL BOARD By: u.vv --- Robert . Spencer, Financial Officer Collier County District School Board Item #16E5 September 23, 2008 52 of 60 Appr,wed ae to form & lep4l eufflolency o cA ,f2.eL � ounty �ney Item #16E5 September 23, 2008 53 of 60 EXHIBIT "A" VALUE ADJUSTMENT BOARD RULES OF PROCEDURE CHAPTER 1: ORGANIZATION 1. The Board is a separate and distinct governmental body created by statute and is composed of three members of the Board of County Commissioners and two School Board Members. 2. One of the County Commissioners is required to the elected as Chairman of the Board. 3. The members of the Board may be temporarily replaced by other members of the respective boards (i.e. the Commission and School Board) on appointment by their respecti *e chairpersons. 4. Any three members of the Board constitute a quorum, except that each quorum must in ude at least one Commissioner and one School Board member. No meeting of the Board can take place without a quorum. 5. Two -fifths on the expenses of the Board are borne by the School Board and three -fifths by the County Commission, 6. A used herein, the word "Board" may include "Special Magistrates." CHAPT :R 2: POWERS AND DUTIES 1. The Board must meet not earlier than 30 days, nor later than 60 days after the mailing bf the "Notices of Proposed Property Taxes" by the Property Attorney under section 194.011 (1), Florida Statutes; provided, however, that no Board hearing may be held bef re approval of all or any part of the assessment rolls by the Departments of Revenue. The Board is required to meet for the following purposes: (a) Hearing taxpayers' petitions relating to the amount of assessments. (f) Hearing complaints relating to Homestead exemptions. (c�) Hearing appeals from exemptions denied, or disputes arising from exemption granted, upon the filing of exemption applications (i.e. other than Homestead exemptions) (c�) Hearing appeals concerning ad valorem tax deferrals and classifications. Item #16E5 September 23, 2008 54 of 60 Notwithstanding the foregoing, the Board may meet prior to the approval of the assessment rolls by the Department of Revenue, but not earlier than July 1, to hear appeals pertaining to the denial by the Property Attorney of exemptions, agricultural classifications and deferrals under (b), (c), and (d). In such event, the Board may not certify any assessments under Section 193.122 until after the Department has approved such assessments in accordance with Section 193.1142 and after all hearings have been held with respect to the Particular parcel under appeal. 2. The Board was authorized by state law to impose a filing fee not to exceed $15.00 or each separate parcel of property, real or personal, covered by taxpayers petition (i.e. with certain exceptions pertaining to denials of Homestead exemption and tax deferrals). Petitions filed without the appropriate filing fee are deemed invalid and must be rejected. 3. The Board is required to appoint special magistrates for the purpose of taking testimony and making recommendations to the Board, which recommendations the Board may act upon without further hearing. The Board has chosen to act upon such recommendations without further hearings. Appeals to the full Board by Taxpayers and the Property Attorney requesting de novo review of special magistrates" decisions will be denied. Special magistrates must meet the criteria set forth in s. 194.035, Fla. Stat. 4. The Board is required to remain in session from day to day until all petitions, complaints, appeals, and disputes are heard. If all or any part of an assessment roll is disapproved by the Florida Department of Revenue, the Board is required to reconvene to hear petitions, complaints, appeals and disputes filed upon the finally approved roll or part of a roll. 5. The Board has no power to fix the original valuation of property for ad valorem tax purposes or to grant an exemption not authorized by law. The Board is bound by the same standards as the County Property Attorney in determining value and the granting of exemptions. With certain exceptions, all property, real and personal, must be assessed at fair market value as of January 1 of the tax year. The Board, or its special magistrates, may not reduce an assessment below fair market value (i.e. in order to "equalize" it with other assessments), but for purposes of reviewing a petition, the Board may consider assessments among comparable properties within homogeneous area or neighborhoods. 6. The Board has no power to grant relief either by adjustment of the value of a property or by the granting of an exemption on the basis of hardship of a particular taxpayer. 7. The Board, in determining the valuation of a specific property, may not consider the ultimate amount of tax required by the various taxing authorities. 8. The powers, authorities, duties and functions of the Board, insofar as they are appropriate, apply equally to real property and tangible personal property. Item #16E5 September 23, 2008 55 of 60 9. The Board may not extend the time for the filing of petitions. However, the failure to meet the statutory deadline for filing a petition is not a absolute bar to consideration of such a petition by the Board when the Board determines that the petitioner has demonstrated good cause for failure to timely file, justifying consideration, and that the delay will not in fact be prejudicial to the performance of its functions in the taxing process. The issue of whether a petitioner's late filing can demonstrate "good cause" will be heard and determined by the Special Magistrate. If the Special Magistrate finds that good cause has been shown, she /he will proceed to hear the merits of the petition. 10. The Board is required to hear disputed or appealed applications for exemption and must grant such exemptions, in whole or in part, in accordance with the criteria established by law. In addition, the Board may review previously granted exemptions on its own motion or upon motion of the Property Attorney. Review of an exemption application upon motion of the Board cannot be help heard until the application has had at least five (5) calendar day notice of the Board's intent to review the application. 11. The Board is required to comply with all valid rules and regulations promulgated by the Florida Department of Revenue. CHAPTER 3: PRE- HEARING EVIDENCE EXCHANGE 1. At least 10 days before the scheduled hearing, the taxpayer /petitioner must provide the Property Attorney with a written list and summary of evidence, along with copies of the all documentation to be presented at the hearing. Two copies of the complete package provided to the Property Attorney must be delivered by the Petitioner to the Clerk to the Board. 2. No later than five (5) days after the Property Attomey receives the taxpayer /petitioner's documentation, the Property Attorney must provide the taxpayer /petitioner with a written list and summary of its evidence to be presented at hearing. This list and summary must likewise be accompanied with copies of the documentation to be presented. The evidence list must contain the property record card if provided by the Clerk. When computing the five day period, Saturdays, Sundays and legal holidays shall not be included. 3. If the taxpayer /petitioner does not provide the information to the Property Attorney at least ten (10) days prior to the hearing pursuant to Section 1 above, the Property Attorney need not provide the information to the taxpayer /petitioner pursuant to Section 2. Except that if the Property Attorney requests in writing any evidentiary materials of the taxpayer /petitioner, and the taxpayer /petitioner refuses to provide the requested materials prior to the hearing, such information shall not be presented or considered at the scheduled hearing by the Special Magistrate or the VAB. (Fla. Stat. 194.034(1) (d)) 4. If the Property Attorney does not provide the information within the time required under Section 2, the taxpayer /petitioner will be entitled to reschedule the hearing. Item #16E5 September 23, 2008 56 of 60 In such event, the taxpayer must notify the Clerk no later than twenty -four (24) hours, excluding weekends and holidays, after the day of required production that the Property Attorney did not fully comply, the details of such non - compliance, and request a reschedule in writing. After receipt of this written notice, the Clerk will re- schedule the hearing. 5. The documentation exchanged under Section 1 and 2 above must be delivered by regular or certified mail, personal delivery, overnight mail, facsimile or e-mail. The date of transmission by e-mail or fax to an address provided by the addressee shall be deemed to constitute the date of delivery to the recipient. For such purpose, three e- mail or fax attempts to the address provided by the addressee will be deemed sufficient. If the taxpayer /petitioner designates delivery by U.S. Mail or does not specifically designate the desired manner for receiving the Property Attorney's information, the information shall be deposited into the mail by the Property Attorney. The taxpayer /petitioner and the Property Attorney may agree to a different method or timing of the exchange. 6. The information must be sent to the taxpayer /petitioner or agent at the address shown on the petition form; however, it may be submitted to an e-mail or fax address if so indicated by the taxpayer /petitioner. 7. In computing any period of time prescribed by these rules, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday. If the tenth day before a hearing is a Saturday, Sunday, or legal holiday, the information under subsection 2 shall be provided no later than the previous business day. 8. The summary of any testimony submitted pursuant to Sections 1 and 2 shall be sufficiently detailed as to reasonably inform a party of the general subject matter of the witness testimony, and shall contain the name and address of the witness. 9. No taxpayer /petitioner may present nor shall the VAB or a special magistrate accept for consideration any "testimony or other evidentiary materials" that were requested of the taxpayer /petitioner in writing by the Property Attorney of which the taxpayer "had knowledge and denied to the Property Attorney." (Section 194.034(1) (d), Florida Statutes.) Item #16E5 September 23, 2008 57 of 60 CHAPTER 4: CONDUCT OF HEARINGS; PROCEDURES 1. Proceedings of the Board must be conducted in compliance with the Florida Sunshine Law (i.e. Section 268.011, Florida Statutes): (a) Reasonable notice must be given to the public prior to a Board meeting. (b) All Board meetings at which any official action may be taken must be help in the open. 2. Board and special magistrate hearings are required to the conducted in accordance with the applicable provisions of Chapter 194 and 196, Florida Statutes, and administrative rules promulgated by the Florida Department of Revenue. Chapter 120, Florida Statutes, does not apply to VAB proceedings, including hearings before the Special Magistrates. 3. Upon the filing of a petition by a taxpayer, the Clerk of the Board is required to deliver to the person so filing, an acknowledgment of receipt of such petition and must promptly furnish a copy of same to the Property Attorney. Late filed petitioner must be noted by the Clerk and brought to the attention of the Board. The only petitions subject to rejection are those not accompanied by the appropriate filing fee under section 194.013. 4. The Clerk of the Board will prepare a schedule of appearances before the Board (Special Magistrates) based on petitions (including applications for Homestead Exemptions denied by the Property Attorney) timely filed with him. The Clerk must notify each petitioner of the scheduled time of his appearance in writing by U.S. mail or Personal delivery so that the notice is received by the taxpayer no less than twenty (20) calendar days prior to the day of such schedule appearance. The Clerk is deemed to have prima facie complied with such notice requirements if the notice is deposited in the U.S. Mail twenty -five (25) days prior to the day of such scheduled appearance. The Clerk will include a copy of the property record card with the notice in all cases, whether or not requested by the taxpayer. The Clerk will not schedule hearings in personal property cases, unless a return is filed within the time prescribed by the Board. 5. The petitioner has the right to reschedule his or her hearing ONE time by submitting to the Clerk a written request to reschedule NO LESS THAN FIVE (5) calendar days before the day of the originally scheduled hearing. 6. The Board and its special magistrates act in a quasi - judicial capacity with respect to the conduct of these hearings. 7. Board members and special magistrates should disqualify themselves on their own initiative or upon motion of any party interest or other cause for which a judge may be recused, with respect to any appeal coming before the Board. Item #16E5 September 23, 2008 58 of 60 8. No Board member or special magistrate should communicate ex parte with any taxpayer or the Property Attorney relative to the merits of any case. However, this should not preclude a Board member or special magistrate from communicating with a taxpayer or the Property Attorney for proposes of obtaining additional raw data upon which a finding might be based. Any communications concerning the proper conclusion to be drawn from any such raw data would constitute a discussion of the merits and results in an ex parte communication prohibited by law. (a) Any taxpayer may be represented by an attorney or agent before the Board or special magistrate, or may appear on his own behalf. (b) A condominium homeowners' association (or qualified incorporated mobile home park association) may appear before the Board or Special Magistrate to present testimony and evidence regarding the assessment of condominium units which said association represents. Said testimony and evidence must also be considered by the Board or Special Magistrate with respect to petitions filed by individual condominium unit owners, unless the owner requests otherwise. 10. (a) Irrelevant, immaterial or unduly repetitious evidence may be excluded by the Board or special magistrate but all other evidence of a type commonly relied upon by reasonable prudent persons in the conduct of their affairs is admissible, whether or not such evidence would be admissible in a court of law. (b) Any part of a taxpayer's evidence may be received in written from, and all testimony of parties and witnesses is required to be made under oath upon the request of either party. The Special Magistrate or court reporter will administer the oath to all persons providing testimony, including parties. Witnesses for either party may be cross — examined by the other party when testimony is taken. (c) Hearsay evidence may be admitted for the purpose of supplementing or explaining other evidence, but it is not sufficient in itself to support a finding unless it would be admissible over objection in a civil action in the courts of this State. 11. The Property Attorney's determinations are entitled to a "presumption of correctness ", and petitioning taxpayers have the burden to prove that the Property Attorney's determinations are incorrect. (a) In the non - valuation cases (e.g. exemption and agricultural classification cases), this presumption of correctness can be property rebutted only by evidence which excludes very reasonable hypothesis of a legal assessment. Item #16E5 September 23, 2008 59 of 60 (b) In valuation cases, the Property Attorney's valuation is still presumed correct, but the presumption is lost if the taxpayer establishes by a Preponderance of the evidence that either the Property Attorney (a) failed to property consider all of the valuation criteria mandated by statute in computing the assessment, or (b) derived the assessment arbitrarily based on appraisal practices different from those generally applied to comparable property within the same class and county. If the taxpayer overcomes the initial presumption of correctness, in the forgoing manner, he or she then has the burden to prove by a preponderance of the evidence that the assessment exceeds fair market value. If, however, the taxpayer cannot overcome the property attorney's initial presumption of correctness, then the taxpayer, in order to obtain relief, must prove that the assessment is excessive by clear and convincing evidence. In no case involving valuation, however, does the taxpayer have the burden of proving that the assessment is "not supported by any reasonable hypothesis of a legal assessment." 12. If the Property Attorney's assessed value is determined to be erroneous, the VAB can establish the assessment if there exists competent, substantial evidence in the record. If not, the VAB must remand to the Property Attorney with the appropriate directions for a redetermination of value. 13. The Clerk of the Board is required to maintain a verbatim record of all proceedings and must preserve all documentary evidence and listings for a period of not less than four (4) years. The Board and its special magistrates should insist that all documentary evidence relied upon by any party be incorporated into the Board's files. In the event a party refuses to relinquish possession of any such documentary evidence, the Board and its special magistrates should not consider the same in making a finding of fact or conclusion of law. 14. No petitioner may present, nor may the Board or special magistrate accept, testimony or other evidentiary materials for consideration that were requested of the petitioner in writing by the Property Attorney of which the petitioner had knowledge, and denied to the Property Attorney. No evidence shall be considered by the Board or special magistrate except when presented during the time scheduled for the petitioner's hearing, or at a time when the petitioner has been given reasonable notice. 15. Every decision of the Board or recommendation by a Special Magistrate must contain specific and detailed findings of fact, including both ultimate findings of fact and basic and underlying findings of fact. Item #16E5 September 23, 2008 60 of 60 Each basic and underlying finding must be properly annotated to its supporting evidence. (a) An ultimate finding is a determination of fact is usually expressed in the language of a statutory standard and must be supported by and flow rationally from adequate basic and underlying findings. (b) Basic and underlying findings are those findings on which the ultimate findings rest and which are supported by evidence. Basic and underlying findings are more detailed than the ultimate findings, but less detailed than a summary of evidence. (c) Reasons are those clearly stated grounds upon which the Board or Property Attorney acted. 16. All decisions made must include the nature of the change made and indicate the just, taxable and exempt value before and after the change. 17. The Special Magistrate shall render a written recommendation in a form provided by the Clerk of the Board, within five (5) days of the hearing. This recommendation may, but need not, be rendered at the conclusion of the hearing. All recommendations are presented to the Board at a publicly noticed meeting and approved by the Board without further hearing. 18. All final decisions by the Board must be issued within twenty (20) calendar days of the last day the Board is in session, and the clerk, upon issuance thereof, must notify by first class mail each taxpayer, the Property Attorney and the Department of Revenue of the decision of the Board. If no decision is rendered in a case, the reason therefore must be placed in the records, compiled by the Clerk and maintained along with the verbatim record.