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HomeMy WebLinkAbout2012 11 19 Consent 211 NGN Agreement for Legal Services for Oak Forest and TLBD COMMISSION AGENDA Informational Consent X ITEM 211 public Hearings g Regular November 19, 2012 KS RS Special Meeting City Manager Department REQUEST: The Community Development Department, Urban Beautification Division, is requesting Commission authorization to enter into a contractual services agreement with Nabors, Giblin & Nickerson, P.A. (NG&N), for the Oak Forest Wall Neighborhood Improvements Assessment Program in the amount of $3,000 and the Tuscawilla Lighting and Beautification District Neighborhood Improvements Assessment Program in the amount of $3,000, a total of$6,000, for legal services performed in fiscal year 2013 which relate to the fiscal year 2014 assessments. SYNOPSIS: NG&N has provided legal services for the City's Special Assessment Districts since their inception. Approval is needed to enter into a new services agreement with NG&N for the Oak Forest Wall and Beautification District (OFWBD) Neighborhood Improvements Assessment Program and for the Tuscawilla Lighting and Beautification District (TLBD) Neighborhood Improvements Assessment Program. NG&N has agreed to lower base costs for Special Assessment Legal Services by a total of$500 for this contract period. CONSIDERATIONS: SPECIAL ASSESSMENT PROGRAM FUNDS: OFWBD Maintenance Fund (191) Debt Service Fund (214) Consent 211 PAGE 1 OF 3- November 19, 2012 TLBD Debt Service Fund Ph1 (211) Debt Service Fund Ph2 (213) Maintenance Fund(184) Staff believes that retaining NG&N as a sole source vendor protects the City's intellectual property investment due to the firm's history with both the TLBD and OFWBD Special Assessment Programs over the past 13 or more years. According to the City's Sole Source Vendor Criteria, NG&N qualifies as a sole source vendor due to their history, comprehensive experience and intimate knowledge of the City's Special Assessment Programs. FISCAL IMPACT: Funding in the amount of$3,000 for the TLBD Improvements Assessment Program Legal Services is budgeted and will continue to come from the TLBD Maintenance Fund (184), TLBD Debt Service Fund Phl (211) and TLBD Debt Service Fund Ph2 (213). Funding in the amount of $3,000 for the OFWBD Improvements Assessment Program Legal Services is budgeted and will continue to come from the OFWBD Maintenance Fund (191) and the OFWBD Debt Service Fund (214). The agreement would be for an initial one (1) year term with up to five (5) extensions of one (1)year each. COMMUNICATION EFFORTS: This Agenda Item has been electronically forwarded to the Mayor and City Commission, City Manager, City Attorney/Staff, and is available on the City's Website, LaserFiche, and the City's Server. Additionally, portions of this Agenda Item are typed verbatim on the respective Meeting Agenda which has also been electronically forwarded to the individuals noted above, and which is also available on the City's Website, LaserFiche, and the City's Server; has been sent to applicable City Staff, Media/Press Representatives who have requested Agendas/Agenda Item information, Homeowner's Associations/Representatives on file with the City, and all individuals who have requested such information. This information has also been posted outside City Hall, posted inside City Hall with additional copies available for the General Public, and posted at five (5) different locations around the City. Furthermore, this information is also available to any individual requestors. City Staff is always willing to discuss this Agenda Item or any Agenda Item with any interested individuals. RECOMMENDATION: Staff recommends that the Commission authorize an annual contract with Nabors, Giblin & Nickerson, P.A., in the amount of$3,000, for the TLBD Improvements Assessment Program, and $3,000 for the OFWBD Improvements Assessment Program, a total of $6,000, for services to be performed in fiscal year 2013 which relate to the fiscal year 2014 assessments. Staff also recommends that the Commission authorize the City Manager and the City Attorney to draft and execute any and all documents necessary pursuant to the approval of this agenda item. Consent 211 PAGE 2 OF 3- November 19,2012 ATTACHMENTS: A) Agreement - Special Assessment Program Legal Services (FY 2013) Consent 211 PAGE 3 OF 3- November 19, 2012 AGREEMENT FOR ASSESSMENT PROGRAM LEGAL SERVICES THIS AGREEMENT FOR ASSESSMENT PROGRAM LEGAL SERVICES ("Agreement")is made and entered into by and between the City of Winter Springs, a Florida municipal corporation("City"),located at 1126 East State Road 434, Winter Springs, Florida 32708, and Nabors, Giblin & Nickerson, P.A., a Florida Corporation("Service Provider"),located at 1500 Mahan Drive,Suite 200,Tallahassee,Florida 32308. WITNESSETH: WHEREAS, City wishes to obtain Assessment Program Legal Services for the City of Winter Springs Oak Forest Wall and Beautification District and the Tuscawilla Lighting and Beautification District Neighborhood Improvements Assessment Programs;and WHEREAS,Service Provider is willing to provide such Assessment Program Legal Services for the City under the terms and conditions stated herein. NOW,THEREFORE,for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the parties covenant and agree as follows: 1.0 GENERAL PROVISIONS 1.1 Recitals. The foregoing recitals are deemed to be true and accurate and are fully incorporated herein by this reference. 1.2 Engagement. The City hereby engages Service Provider and Service Provider agrees to perform the Services outlined in this Agreement for the stated fee arrangement. No prior or present agreements or representations shall be binding upon any of the parties hereto unless incorporated in this Agreement. 1.3 Due Diligence. Service Provider acknowledges that it has investigated prior to execution of this Agreement and satisfied itself as to the conditions affecting the Services,the availability of materials and labor, the cost thereof,the requirements to obtain necessary insurance as set forth herein, and the steps necessary to complete the Services within the time set forth herein. Service Provider warrants unto the City that it has the competence and abilities to carefully and faithfully complete the Services within the time set forth herein. Service Provider will perform its Services with due and reasonable diligence consistent with sound professional practices. 1.4 CCNA Services. Service Provider warrants unto the City that the Services being performed pursuant to this Agreement do not constitute professional services as defined by section 287.055,Florida Statutes. 2.0 TERM AND DEFINITIONS 2.1 This contract shall be for a term of twelve (12) months commencing on December 1, 2012 and terminating on November 30,2013. By mutual agreement of both parties hereto,the term of this Agreement may be extended for five(5)additional one-year terms,provided the City determines,in its discretion,that Service Provider has adequately performed during the previous term of this Agreement. In the event this Agreement is extended,the contract price may be adjusted to allow for consumer price increases based on Bureau of Labor and Statistics - Producer Price Index not to exceed three percent(3%). The adjustment will be based on the annual contract period from the same period of the previous year and calculated 30 days prior to renewal. The Agreement may be terminated, in whole or part, at any time and without penalty, by either party hereto upon at least 30 days written notice to the non-terminating party prior to the termination taking effect;EXCEPT that non-performance on the part of the Service Provider will be grounds for immediate termination. Unless otherwise provided in said notice, all work being performed by Service Provider at the time of receipt of the notice shall immediately cease and no further work shall be provided by Service Provider under this Agreement. 2.2 Definitions. The following words and phrases used in this Agreement shall have the following meaning ascribed to them unless the context clearly indicates otherwise: 1 a. "Agreement" or "Contract" shall be used interchangeably and shall refer to this Agreement, as may be amended, which shall constitute authorization for the Service Provider to provide Assessment Program Legal Services approved by the City. b. "Effective Date" shall be December 1, 2012, and it shall be the date on which this Agreement shall go into effect. The Agreement shall not go into effect until said date. C. "Service Provider" shall mean Nabors,Giblin&Nickerson,P.A., a Florida Corporation,and its principals,officers,employees,and agents. d. "Public Record" shall have the meaning given in Chapter 119, Florida Statutes, as may be amended. e. "Work"or"Services" shall be used interchangeably and shall include the performance of the work agreed to by the parties in this Agreement. f. "City Project Manager" or"Designated Representative" or"Project Director" shall mean the City of Winter Springs City Manager, or his designee, who is to provide the general administration of the contract. 3.0 SCOPE OF SERVICES 3.1 Service Provider shall provide those Assessment Program Legal Services for the City of Winter Springs set forth in the Annual Critical Events Schedule ("CES") attached hereto as Exhibit "A" and fully incorporated herein by this reference, including the furnishing of all labor, equipment, tools, materials, incidentals and the performing of all operations necessary as described in the CES. All Services provided under this Agreement shall further be consistent with Service Provider's confirmation letter dated October 4, 2012, attached hereto as Exhibit `B" and fully incorporated herein by this reference. In the event of a conflict between the Scope of Work and Service Provider's confirmation letter,the CES shall control. 4.0 CHANGES IN THE SCOPE OF WORK 4.1 City may make changes in the Services at any time by giving written notice to Service Provider. If such changes increase (additional services) or decrease or eliminate any amount of Work, City and Service Provider will negotiate any change in total cost or schedule modifications. If the City and the Service Provider approve any change, the Contract will be modified in writing to reflect the changes. All change orders shall be authorized in writing by City's and Service Provider's designated representative. 4.2 All of City's amendments thereto shall be performed in strict accordance with the terms of this Agreement insofar as they are applicable. 5.0 SCHEDULE 5.1 Service Provider shall perform services in conformance with the schedule reasonably established by the City Project Manager. Service Provider shall complete all of said services in a timely manner and will keep City apprized of the status of work on at least a monthly basis or as otherwise reasonably requested by the City. Should Service Provider fall behind on the established schedule,it shall employ such resources so as to comply with the schedule. 5.2 No extension for completion of services shall be granted to Service Provider without City's prior written consent. 2 6.0 METHODS OF PAYMENT FOR SERVICES AND EXPENSES OF SERVICE PROVIDER 6.1 Compensation. For the Services provided pursuant to this Agreement, the City agrees to pay Service Provider a sum not to exceed Six Thousand and no/100 Dollars ($6,000.00). If this contract is extended,the total annual amount paid to Service Provider shall not exceed that above mentioned number adjusted by the Producer Price Index as set forth in paragraph 2.1 of this contract. 6.2 Additional Services. From time to time during the term of this Agreement,City may request that Service Provider perform additional Services not required under the Scope of Work. The City and Service Provider shall enumerate any additional services provided under this Agreement in writing and shall establish the rate or sum of compensation due to Service Provider prior to Service Provider performing those additional services. 6.3 Payment. Upon receipt of a proper invoice from Service Provider, the City agrees to pay the Service Provider the invoice amount providing said amount accurately reflects the terms and conditions of this Agreement. Invoices shall be submitted to the City on a quarterly basis unless otherwise agreed to in writing by the City. Further,there shall be no other compensation paid to the Service Provider and its principals, employees, and independent professional associates and consultants in the performance of Work under this Agreement unless agreed to in writing by the City. The City agrees to make all payments due within thirty (30) days of receipt of a proper invoice delivered by Service Provider. The Service Provider may only bill the City for actual work performed. 7.0 RIGHT TO INSPECTION 7.1 City or its affiliates shall at all times have the right to review or observe the services performed by Service Provider. 7.2 No inspection, review, or observation shall relieve Service Provider of its responsibility under this Agreement. 8.0 AUDIT AND INSPECTIONS All Service Provider's records with respect to any matters covered by this Agreement shall be made available to the City, at any time during normal business hours, as often as the City deems necessary, to audit, examine,and make excerpts or transcripts of all relevant data. Any deficiencies noted in audit reports must be fully cleared by the Service Provider within thirty(30) days after receipt by the Service Provider. Failure of the Service Provider to comply with the above audit requirements will constitute a material breach of this Agreement and may result,at the sole discretion of the City,in the withholding of payment for services provided under this Agreement. 9.0 PROFESSIONALISM AND STANDARD OF CARE 9.1 Service Provider shall do,perform and carry out in a professional manner all Services required to be performed by this Agreement. Service Provider shall also use the degree of care and skill in performing the Services that are ordinarily exercised under similar circumstances by reputable members of Service Provider's profession working in the same or similar locality as Service Provider. 10.0 SUBMITTAL OF PROGRESS REPORTS 10.1 Service Provider shall submit a monthly written progress report as to the status of all Work set forth in this Agreement. The report shall in a sufficient manner demonstrate that any funds expended were used to provide the agreed-upon Services. If the detail is not sufficient in the City Project Manager's reasonable discretion to permit the City to determine the Work performed or the manner in which it is being performed, the City may seek more detail from the Service Provider. 11.0 WARRANTY OF PROFESSIONAL SERVICES 11.1 The Service Provider(for itself and any of its employees, contractors, partners, and agents used to perform the Services) hereby warrants unto the City that all of its employees (and those of any of its contractors, 3 partners, and agents used to perform the Services) have sufficient experience to properly complete the Services specified herein or as may be performed pursuant to this Agreement. In pursuit of any Work,the Service Provider shall supervise and direct the Work, using its best skill and attention and shall enforce strict discipline and good order among its employees. The Service Provider shall comply with all laws, ordinances, rules, regulations, and lawful orders of any public authority bearing on the performance of the Work. 12.0 CORPORATE REPRESENTATIONS BY SERVICE PROVIDER 12.1 Service Provider hereby represents and warrants to the City the following: a. Service Provider is duly registered and licensed to do business in the State of Florida and is in good standing under the laws of Florida, and is duly qualified and authorized to carry on the functions and operations set forth in this Agreement. b. The undersigned signatory for Service Provider has the power, authority, and the legal right to enter into and perform the obligations set forth in this Agreement and all applicable exhibits thereto, and the execution, delivery, and performance hereof by Service Provider has been duly authorized by the board of directors and/or president of Service Provider. In support of said representation, Service Provider agrees to provide a copy to the City of a corporate certificate of good standing provided by the State of Florida prior to the execution of this Agreement. C. Service Provider is duly licensed under all local, state and federal laws to provide the Services stated in paragraph 3.0 herein. In support of said representation, Service Provider agrees to provide a copy of all said licenses to the City prior to the execution of this Agreement. 13.0 WORK IS A PRIVATE UNDERTAKING 13.1 With regard to any and all Work performed hereunder,it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the City and Service Provider is such that the Service Provider is an independent contractor and not an agent of the City. The Service Provider,its contractors, partners, agents, and their employees are independent contractors and not employees of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor, between the City, on one hand, and the Service Provider, its contractors,partners, employees, or agents, during or after the performance of the Work under this Agreement. 14.0 PROGRESS MEETING 14.1City Project Manager may hold periodic progress meetings on a monthly basis, or more frequently if required by the City, during the term of work entered into under this Agreement. Service Provider's Project Manager and all other appropriate personnel shall attend such meetings as designated by the City Project Manager. 15.0 SAFETY 15.1 Service Provider shall be solely and absolutely responsible and assume all liability for the safety and supervision of its principals,employees,contractors,and agents while performing Services provided hereunder. 16.0 INSURANCE 16.1Liability Amounts. During the term of this Agreement, Service Provider shall be responsible for providing the types of insurance and limits of liability as set forth below. a. The Service Provider shall maintain comprehensive general liability insurance in the minimum amount of$1,000,000 as the combined single limit for each occurrence to protect the Service Provider from claims of property damages which may arise from any Services 4 performed under this Agreement whether such Services are performed by the Service Provider or by anyone directly employed by or contracting with the Service Provider. b. The Service Provider shall maintain comprehensive automobile liability insurance in the minimum amount of $1,000,000 combined single limit bodily injury and minimum $1,000,000 property damage as the combined single limit for each occurrence to protect the Service Provider from claims for damages for bodily injury,including wrongful death,as well as from claims from property damage, which may arise from the ownership, use, or maintenance of owned and non-owned automobiles, including rented automobiles whether such operations be by the Service Provider or by anyone directly or indirectly employed by the Service Provider. c. The Service Provider shall maintain, during the life of this Agreement, adequate Workers' Compensation Insurance in at least such amounts as are required by law and Employer's Liability Insurance in the minimum amount of$1,000,000 for all of its employees performing Work for the City pursuant to this Agreement. 16.2Special Requirements. Current,valid insurance policies meeting the requirements herein identified shall be maintained during the term of this Agreement. A copy of a current Certificate of Insurance shall be provided to the City by Service Provider upon the Effective Date of this Contract which satisfied the insurance requirements of this paragraph 16.0. Renewal certificates shall be sent to the City 30 days prior to any expiration date. There shall also be a 30-day advance written notification to the City in the event of cancellation or modification of any stipulated insurance coverage. The City shall be an additional named insured on all stipulated insurance policies as its interest may appear,from time to time. 16.3Independent Associates and Consultants. All independent contractors or agents employed by Service Provider to perform any Services hereunder shall fully comply with the insurance provisions contained in these paragraphs for sections 15.0 and 16.0. 17.0 COMPLIANCE WITH LAWS AND REGULATIONS 17.1 Service Provider shall comply with all requirements of federal, state,and local laws,rules,regulations, standards,and/or ordinances applicable to the performance of Services under this Agreement. 18.0 DOCUMENTS 18.1 Public Records. It is hereby specifically agreed that any record,document,computerized information and program, audio or video tape, photograph, or other writing of the Service Provider and its independent contractors and associates related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or the Service Provider. Said record, document, computerized information and program, audio or video tape,photograph,or other writing of the Service Provider is subject to the provisions of Chapter 119,Florida Statutes, and may not be destroyed without the specific written approval of the City's City Manager. Upon request by the City, the Service Provider shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal working hours of the Service Provider be open and freely exhibited to the City for the purpose of examination and/or audit. 18.2The Service Provider acknowledges that the City is a Florida municipal corporation and subject to the Florida Public Records Law. Service Provider agrees that to the extent any document produced by Service Provider under this Agreement constitutes a Public Record; Service Provider shall comply with the Florida Public Records Law. 19.0 ASSIGNMENT 19.1 Service Provider shall not assign or subcontract this Agreement, or any rights or any monies due or to become due hereunder without the prior,written consent of City. 5 19.2If upon receiving written approval from City, any part of this Agreement is subcontracted by Service Provider, Service Provider shall be fully responsible to City for all acts and/or omissions performed by the subcontractor as if no subcontract had been made. 19.3If City determines that any subcontractor is not performing in accordance with this Agreement, City shall so notify Service Provider who shall take immediate steps to remedy the situation. 19.4If any part of this Agreement is subcontracted by Service Provider,prior to the commencement of any Work by the subcontractor, Service Provider shall require the subcontractor to provide City and its affiliates with insurance coverage as set forth by the City. 20.0 TERMINATION; DEFAULT BY SERVICE PROVIDER AND CITY'S REMEDIES 20.1 The City reserves the right to revoke and terminate this Agreement and rescind all rights and privileges associated with this Agreement, without penalty, in the following circumstances, each of which shall represent a default and breach of this Agreement: a. Service Provider defaults in the performance of any material covenant or condition of this Agreement and does not cure such other default within fourteen(14) calendar days after written notice from the City specifying the default complained of, unless, however, the nature of the default is such that it cannot, in the exercise of reasonable diligence, be remedied within fourteen (14) calendar days, in which case the Service Provider shall have such time as is reasonably necessary to remedy the default, provided the Service Provider promptly takes and diligently pursues such actions as are necessary therefore;or b. Service Provider is adjudicated bankrupt or makes any assignment for the benefit of creditors or Service Provider becomes insolvent,or is unable or unwilling to pay its debts;or c. Service Provider has acted negligently, as defined by general and applicable law, in performing the Services hereunder;or d. Service Provider has committed any act of fraud upon the City;or e. Service Provider has made a material misrepresentation of fact to the City while performing its obligations under this Agreement;or f Service Provider is experiencing a labor dispute which threatens to have a substantial, adverse impact upon performance of this Agreement without prejudice to any other right or remedy City may have under this Agreement. 20.2Notwithstanding the aforementioned,in the event of a default by Service Provider,the City shall have the right to exercise any other remedy the City may have by operation of law, without limitation, and without any further demand or notice. In the event of such termination, City shall be liable only for the payment of all unpaid charges,determined in accordance with the provisions of this Agreement, for Work properly performed prior to the effective date of termination. 21.0 FORCE MAJEURE 21.1 Any delay or failure of either party in the performance of its required obligations hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm; explosion; riot; war; sabotage; strikes (except involving Service Providers labor force); extraordinary breakdown of or damage to City's affiliates' generating plants, their equipment, or facilities; court injunction or order; federal and/or state law or regulation; order by any regulatory agency;or cause or causes beyond the reasonable control of the party affected;provided that prompt notice of such delay is given by such party to the other and each of the parties hereunto shall be diligent in 6 attempting to remove such cause or causes. If any circumstance of Force Majeure remains in effect for sixty days, either party may terminate this Agreement. 22.0 GOVERNING LAW&VENUE 22.1This Agreement is made and shall be interpreted, construed, governed, and enforced in accordance with the laws of the State of Florida. Venue for any state action or litigation shall be Seminole County, Florida. Venue for any federal action or litigation shall be Orlando,Florida. 23.0 HEADINGS 23.11'aragraph headings are for the convenience of the parties only and are not to be construed as part of this Agreement. 24.0 SEVERABILITY 24.1In the event any portion or part thereof of this Agreement is deemed invalid, against public policy, void, or otherwise unenforceable by a court of law, the parties, at the sole discretion and option of the City, shall negotiate an equitable adjustment in the affected provision of this Agreement. The validity and enforceability of the remaining parts of this Agreement shall otherwise be fully enforceable. 25.0 INTEGRATION; MODIFICATION 25.1 The drafting, execution, and delivery of this Agreement by the Parties have been induced by no representations, statements,warranties,or agreements other than those expressed herein. This Agreement embodies the entire understanding of the parties, and there are no further or other agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof unless expressly referred to herein. Modifications of this Agreement shall only be made in writing signed by both parties. 26.0 WAIVER AND ELECTION OF REMEDIES 26.1 Waiver by either party of any terms or provision of this Agreement shall not be considered a waiver of that term,condition,or provision in the future. 26.2No waiver,consent,or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each party hereto. 27.0 THIRD PARTY RIGHTS 27.1Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than City and Service Provider. 28.0 PROHIBITION AGAINST CONTINGENT FEES 28.1 Service Provider warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Service Provider,to solicit or secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation, individual, or firm other than a bona fide employee working solely for the Service Provider, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. 29.0 NO JOINT VENTURE 29.1Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties and neither party are authorized to,nor shall either party act toward third persons or the public in any manner which would indicate any such relationship with the other party. 7 30.0 ATTORNEY'S FEES 30.1 Should either party bring an action to enforce any of the terms of this Agreement,the prevailing parry shall be entitled,to the extent permitted by law,to recover from the non-prevailing parry the costs and expenses of such action including,but not limited to,reasonable attorney's fees,whether at settlement,trial or on appeal. 31.0 COUNTERPARTS 31.1This Agreement may be executed in any number of counterparts,each of which when so executed and delivered shall be considered an original agreement;but such counterparts shall together constitute but one and the same instrument. 32.0 DRAFTING 32.1 City and Service Provider each represent that they have both shared equally in drafting this Agreement and no party shall be favored or disfavored regarding the interpretation of this Agreement in the event of a dispute between the parties. 33.0 NOTICE 33.1 Any notices required to be given by the terms of this Agreement shall be delivered by hand or mailed, postage prepaid to: For Service Provider: Nabors,Giblin&Nickerson,P.A. 1500 Mahan Drive,Suite 200 Tallahassee,FL 32308 (850)224-4070 For City: City of Winter Springs City Manager's Office 1126 East State Road 434 Winter Springs,FL 32708 Phone: (407)327-1800 33.2Either party may change the notice address by providing the other party written notice of the change. 34.0 SOVEREIGN IMMUNITY 34.1 Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. As such, the City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further,the City shall not be liable for any claim or judgment, or portion thereof,to any one person for more than two hundred thousand dollars ($200,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence,exceeds the sum of three hundred thousand dollars ($300,000.00). This paragraph shall survive termination of this Agreement. 35.0 INDEMNIFICATION 35.1 For all Services performed pursuant to this Agreement, the Service Provider agrees to the fullest extent permitted by law, to indemnify and hold harmless the City and its commissioners, employees, officers, and city 8 attorneys (individually and in their official capacity)from and against all claims,losses, damages,personal injuries (including but not limited to death), or liability (including reasonable attorney's fees through any and all administrative,trial and appellate proceedings),directly or indirectly arising from: a. any default under this Agreement by Service Provider; b. any negligent act, omission or operation of work related to all Services performed under this Agreement by Service Provider, and its employees, principals,agents,independent contractors,and consultants. c. the acts, errors, omissions, intentional or otherwise, arising out of or resulting from Service Provider's and its employees, partners, contractors, and agents on the performance of the Services being performed under this Agreement; d. Service Provider's,and its employees,partners,contractors, and agents failure to comply with the provisions of any federal, state, or local laws, ordinance, or regulations applicable to Service Provider's and its employees, partners, contractors,and agents performance under this Agreement; e. any fraud and misrepresentation conducted by Service Provider and its employees,partners,contractors,and agents on the City under this Agreement. 35.2 The indemnification provided above shall obligate the Service Provider to defend at its own expense or to provide for such defense,at the option of the City,as the case may be,of any and all claims of liability and all suits and actions of every name and description that may be brought against the City or its commissioners, employees, officers, and City Attorney which may result from any negligent act, omission or operation of work related to the Services under this Agreement whether the Services be performed by the Service Provider, or anyone directly or indirectly employed by them. In all events the City and its commissioners,employees,officers,and City Attorney shall be permitted to choose legal counsel of its sole choice, the fees for which shall be reasonable and subject to and included with this indemnification provided herein. 36.0 ORDER OF PRECEDENCE 36.1 In case of any inconsistency in any of the documents bearing on the Agreement between the City and the Service Provider,the inconsistency shall be resolved by giving precedence in the following order: a. Addenda to this Agreement subsequent to the Effective date of this Agreement; b. This Agreement; C. Exhibits to this Agreement. 36.2 Any inconsistency in the work description shall be clarified by the City and performed by the Service Provider. 37.0 AGREEMENT INTERPRETATION 37.1 At its discretion, during the course of the work, should any errors, ambiguities, or discrepancies be found in the Agreement or specifications,the City at its sole discretion will interpret the intent of the Agreement and work descriptions and the Service Provider hereby agrees to abide by the City's interpretation and agrees to carry out the work in accordance with the decision of the City. 37.2 When the material, article, or equipment is designated by a brand name and more than one brand name is listed, it will be understood that the work is based on one brand name only. The Service Provider will be responsible for all coordination necessary to accommodate the material, article, or equipment being provided without additional cost to the City. A substitute material, article, or equipment is allowed if it is reasonably equivalent to the brand name specified. The City has full discretion to decide whether a substitute is reasonably 9 equivalent. Service Provider must notify the City prior to use of the substitute for a specified brand name and allow the City to make a determination before Service Provider uses the substitute. IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed by Their duly authorized representatives as of the date first written above. CITY: SERVICE PROVIDER: The City of Winter Springs,Florida, Nabors,Giblin&Nickerson,P.A., a Florida municipal corporation. a Florida corporation. Kevin L.Smith,City Manager Print Name: Date: Title: Date: Attest: Andrea Lorenzo-Luaces,City Clerk 10 E CITY OF WINTER SPRINGS TUSCAWILLA (PHASE I & II) AND OAK FOREST ANNUAL CRITICAL EVENTS SCHEDULE FISCAL YEAR 2013-2014 (2"and 4'h Monday at 5:15pm) Event Date NBS prepares and monitors the Critical Events Schedule to meet statutory deadlines NBS assists in administration and maintenance of the Assessment Program including the Assessment Roll Database Throughout Contract Term NBS provides advice and assistance with Assessment Roll issues Throughout Contract Term NBS obtains_property record updates from the Property Appraiser's Office July 2013 NBS reconciles Subdivisions and Combinations with Property Appraiser's Office July 2013 NG&N provides Draft Assessment Resolution to NBS &City for review July 12, 2013 Prepayment period ends July 12, 2013 City sends list of prepayments to NBS July 16, 2013 NBS & City provide comments on Draft Assessment Resolution to NG&N July 17, 2013 NBS finalizes Fiscal Year 2013-14 Assessment Calculations By July 25, 2013 NG&N provides Assessment Resolution foragenda July 25, 2013 Public Hearing to adopt Annual Assessment Resolutions August 12, 2013 NBS confirms and finalizes Updated Rates, Payoff Information and Debt Service to create Final Rolls By August 23, 2013 NBS exports and transmits the Annual Assessment Rolls to the Tax Collector By August 29, 2013 City certifies Non-Ad Valorem Assessment Rolls to Tax Collector By August 30, 2013 EXHIBIT FORT LAUDERDALE a 208 S.E.Sixth Street Fort Lauderdale,Florida 33301 TAMPA Nabors (954)525-8000 Tel Suite 1060 a ® (954)525-8331 Fax 2502 Rocky Point Drive Tampa,Florida 33607 (813)281-2222 Tol a TALLAHASSEE (813)281-0129 Fax Suite 200 NckersonP.A. 1500 Mahan DrNe Ta[lahassee,Florida 32308 (850)224-4070 Tel (850).224-4073 Fax VIA ELECTRONIC MAIL October 4, 2012 Steven T. Richart, Urban Beautification Manager City of Winter Springs 1125 E. SR 434. Winter Springs, Florida 32708 Re: City of Winter Springs - Annual Assessments for November 2013 Ad Valorem Tax Bill Dear Mr. Richart:. We are providing this letter to confirm our role and responsibilities in assisting the City in the annual administration and maintenance of existing special assessment. programs; in conformance with the requirements of City Ordinance No. 98-764, enacted on July 27, 1998, and Section 197.3632, Florida Statutes, relating to the collection of special assessments on the ad valorem tax bill to be mailed in November 2013. The scope of our services is as follows: (1) Our work is related to the following special assessment areas implemented within the City: - Tuscawilla Improvement Area(implemented on August 23, 1999) Tuseawilla Service Area(implemented on August 23; 1999) - Oak Forest Assessment Area (implemented on May 10, 2000) W Tuscawilla (Phase 1l)l) Assessment Area(implemented on November 14, 2005) (2) Provide assistance, advice and guidance to the City and other consultants engaged by the City to ensure conformance with existing assessment documents., assessment related bond documents, case law criteria and statutory requirements, as needed. (3) Develop all required legal documents necessary to annually impose the assessment rates including the annual assessment rate resolution and any required notices. Steven T. Rieba.rt, Urban.Beautification Manager October 4, 2012 Page 2 (4) Assist in the administration of the procedures required to conform with the requirements of City Ordinance No. 98-704 and Section 197.3632, Florida Statutes, relating to the collection of special assessments on the ad valorem tax bill to be mailed in. November 2013. (5) Provide advice regarding issues related to reallocation of assessment amounts upon future subdivisions as needed. The fee will be $3,000 for the Tuscawilla Project (both pleases) and $3,000 for the Oak Forest Project for a total of $6,000, plus any out-pocket disbursements for copies, couriers, telephone and travel (not to exceed $250 in total expenses). In reviewing our files for prior years, we have reduced our fee once again since the City has done an excellent job at ensuring that detailed electronic records for these programs are available for our due diligence and we recognize the current economic difficulties for goverm-nental agencies and their budgets. For purposes of estimating each parcel's annual assessment, annual collections costs (including that of the tax collector, our annual fee and others) were included - therefore, our fee for each assessment area should result in no additional expense to the City and is borne by the assessment areas which incur our services. If you or any other officials have questions regarding this letter, please feel free to contact me at any time. Very truly wars, op er M. Traber