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HomeMy WebLinkAboutAllen Engineering, Inc. Addendum 2-2017 SECOND ADDENDUM TO AGREEMENT FOR ENGINEERING & SURVEYING, SERVICES THIS ADDENDUM is made and entered this 24th day of April 2017,by and between the CITY OF CAPE CANAVERAL, FLORIDA, a Florida municipal corporation ("City"), located at 105 Polk Avenue, Cape Canaveral, Florida 32920, and Allen Engineering, Inc.a Florida corporation("Engineer"),whose principal address is 106 Dixie Lane,Cocoa Beach, Florida 32931. WITNESSETH: WHEREAS, City continues to have a need to obtain engineering and surveying services from time to time on an as-needed, task-oriented basis; and WHEREAS, the City and Engineer previously entered into that certain Agreement for Engineering and Surveying Services dated June 14,2011 ("Agreement"); and WHEREAS, the City and Engineer previously entered into that certain Addendum ("Addendum") for Services dated January 2016 modifying the Agreement; and WHEREAS, pursuant to the terms of the Agreement and Addendum, City and Engineer desire to extend the Agreement for a one-year renewal term and to modify certain additional provisions of the Agreement as further set forth 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. Recitals. The foregoing recitals are hereby deemed true and correct and are hereby expressly incorporated herein by this reference as a material part of this Addendum. 2. Terms and Conditions. In accordance with the Agreement, City and Engineer hereby expressly agree to modify the following terms and conditions of the Agreement as follows: 1.1 Unless sooner terminated by either Party pursuant to the terms and conditions herein,this Second Addendum shall commence at 12:00 a.m. on June 14, 2017 and shall terminate at 11:59 p.m.on June 14,2018. The parties shall not have the option to renew the term. 14.0 DOCUMENTS 14.1 DOCUMENTS - PUBLIC RECORDS: Pursuant to Section 119.0701, Florida Statutes and other applicable public records laws,ENGINEER agrees that any records, documents, transactions, writings, papers, letters, computerized information and programs, maps, books, audio or video tapes, films, photographs, data processing Second Addendum to Agreement for Engineering&Surveying Services City of Cape Canaveral/Allen Engineering,Inc. Page 1 of 5 software,writings or other material(s),regardless of the physical form, characteristics, or means of transmission,of ENGINEER related,directly or indirectly,to the services provided to the CITY under this Agreement and made or received pursuant to law or ordinance or in connection with the transaction of official business by the CITY, may be deemed to be a public record, whether in the possession or control of CITY or the ENGINEER. Said records, documents, transactions, writings, papers, letters, computerized information and programs, maps, books, audio or video tapes, films, photographs, data processing software, writings or other material(s), regardless of the physical form, characteristics, or means of transmission of ENGINEER are subject to the provisions of Chapter 119,Florida Statutes, and may not be destroyed without the specific written approval of the CITY's designated custodian of public records. IF THE ENGINEER HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE ENGINEER'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CITY'S CUSTODIAN OF PUBLIC RECORDS/CITY CLERK AT (321)868- 1220, 105 POLK AVENUE,CAPE CANAVERAL,FLORIDA 32920. ENGINEER is required to and agrees to comply with public records laws.ENGINEER shall keep and maintain all public records required by CITY to perform the services as agreed to herein. ENGINEER shall provide the CITY, upon request from the CITY CLERK,copies of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided by law. ENGINEER shall ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the Agreement term. Upon completion of the Agreement, ENGINEER shall transfer to CITY, at no cost, all public records in possession of the ENGINEER,provided the transfer is requested in writing by the CITY CLERK. Upon such transfer,ENGINEER shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. However, if the CITY CLERK does not request that the public records be transferred,the ENGINEER shall continue to keep and maintain the public records upon completion of the Agreement and shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to CITY, upon request from the CITY CLERK, in a format that is compatible with the information technology systems of CITY. Should the CITY not possess public records relating to this Agreement which are requested to be inspected or copied by the CITY or any other person,the CITY shall immediately notify ENGINEER of the request and the ENGINEER shall then provide such records to the CITY or allow the records to be inspected or copied within a reasonable time. If the ENGINEER does not comply with a public records request,the CITY may enforce this Section to the extent permitted by law. ENGINEER acknowledges that if the ENGINEER does not provide the public records to the CITY within a reasonable time, the ENGINEER may be subject to penalties under Section 119.10, Florida Statutes. The ENGINEER acknowledges that if a civil action is filed Second Addendum to Agreement for Engineering&Surveying Services City of Cape Canaveral/Allen Engineering,Inc. Page 2 of 5 against the ENGINEER to compel production of public records relating to this Agreement, the court may assess and award against ENGINEER the reasonable costs of enforcement, including reasonable attorney fees. All public records in connection with this Agreement shall, at any and all reasonable times during the normal business hours of the ENGINEER,be open and freely exhibited to the CITY for the purpose of examination, audit, or otherwise. Failure by ENGINEER to grant such public access and comply with public records laws and/or requests shall be grounds for immediate unilateral cancellation of this Agreement by the CITY upon delivery of a written notice of cancellation. If the ENGINEER fails to comply with this Section,and the CITY must enforce this Section, or the CITY suffers a third party award of attorney's fees and/or damages for violating Chapter 119, Florida Statutes, due to ENGINEER's failure to comply with this Section, the CITY shall collect from ENGINEER prevailing party attorney's fees and costs, and any damages incurred by the CITY, for enforcing this Section against ENGINEER. And, if applicable, the CITY shall also be entitled to reimbursement of all attorneys' fees and damages which the CITY had to pay a third party because of the ENGINEER's failure to comply with this Section. The terms and conditions set forth in this Section shall survive the termination of this Agreement. a. Reuse of Documents. All documents including, but not limited to, drawings, specifications, and data, or programs stored electronically or otherwise, prepared by the Engineer and its independent ENGINEERs and associates pursuant to this Agreement or related exclusively to the Services described herein shall be owned by the City and may be reused by the City for any reason or purpose at any time. However, the City agrees that the aforesaid documents are not intended or represented to be suitable for reuse by the City or others on any undertaking other than the Work outlined in this Agreement. Any reuse for an undertaking other than for the Work without verification or adaptation by the Engineer, or its independent ENGINEERs and associates if necessary, to specific purposes intended will be at the City's sole risk and without liability or legal exposure to the Engineer. b. Ownership of Documents. The City and the Engineer agree that upon payment of fees due to the Engineer by the City for a particular design, report, inventory list, compilation, drawing, specification, model, recommendation, schedule or otherwise, said design, report, inventory list, compilation, drawing, specification, technical data, recommendation, model, schedule and other instrument produced by the Engineer in the performance of this Agreement, or any Work hereunder, shall be the sole property of the City, and the City is vested with all rights therein. The Engineer waives all rights of copyright in said design, report, inventory list, compilation, drawing, specification, technical data, recommendation, model, schedule and other instrument produced by the Engineer in the performance of this Agreement, and hereby assigns and conveys the same to the City whether in the possession or control of the Engineer or not. C. Preexisting Ownership Rights to Documents. Notwithstanding any provisions to the contrary contained in this Agreement, Engineer shall retain sole ownership Second Addendum to Agreement for Engineering&Surveying Services City of Cape Canaveral/Allen Engineering,Inc. Page 3 of 5 to its preexisting information not produced and paid for by the City under this Agreement including, but not limited to, computer programs, software, standard details, figures, templates and specifications. 31.0 NOTICE 31.1 Any notices required to be given by the terms of this Agreement shall be delivered by hand or mailed,postage prepaid to: For Engineer: Allen Engineering, Inc. Attention: Michael S. Allen, President or Michael Madonna, Secretary P.O. Box 321321 Cocoa Beach, FL 32932-1321 (321) 783-7443 Phone (321) 783-5902 Fax For Ci : City of Cape Canaveral Attention: City Manager 105 Polk Avenue Cape Canaveral, FL 32920 (321) 868-1220 Phone (321) 868-1224 Fax 31.2 Either party may change the notice address by providing the other party written notice of the change. 32.0 SOVEREIGN IMMUNITY 32.1 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. Second Addendum to Agreement for Engineering&Surveying Services City of Cape Canaveral/Allen Engineering,Inc. Page 4 of 5 3. Other Terms and Conditions. Any other terms and conditions not expressly modified by this Addendum shall remain unchanged and in full force and effect. 4. Conflict. In the event that any terms and conditions of the Agreement conflict with the provisions of this Addendum,this Addendum shall control. 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: ENGINEER: CITY OF CAPE CANAVERAL ALLE ENGINEE , INC. cD 0--�4 'y David L. Greene, City Manager Michael S. Allen, President ATTEST: � . Q is Goforth, Ci lerk n ¢ Second Addendum to Agreement for Engineering&Surveying Services City of Cape Canaveral/Allen Engineering,Inc. Page 5 of 5