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1. 07/15/2009 Agreement DANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DATE: July 30,2009 TO: Peter Horton, Director of Airports VIA: Bevette Moore, Director of Operations FROM: , Isabel C. DeSantis, D. C. J-..~~''0:) (1/,/7 -tv' j At the July 15, 2009 BOCC meeting, the Board approved the following: Contract between Monroe County and Engineered Arresting Systems Corporation (ESCO) as a sole source provider for purchase of an Engineered Materials Arresting System (EMAS) block system for the Runway Safety Area project at the Key West International Airport. In addition, I personally spoke with Mr. Horton & have been assured your office will handle all of the insurance requirements. Should you have any questions, please do not hesitate to contact this office. cc: County Attorney Finance File COUNTY of MONROE, FLORIDA Key West International Airport EMAS Improvements Departure end of Runway 09 (27 end Safety Area) A.I.P. (AlP, State Project Numbers) Date: ,2009 Engineered Arresting Systems Corporation (ESCO) 2239 High Hill Road Logan Township, NJ 08085 ESCO will provide materials as identified herein and on-site technical support for the complete and final installation of Engineered Materials Arresting System (EMAS) block system. ESCO agrees to furnish the materials and equipment defined below, transportation and insurance; and to provide on-site technical support as needed to assist in the Contractor's (Contractor or General Contractor shall refer to the firm selected by the Owner to perform the project construction) performance of its work to the satisfaction of and in compliance with the directions of the Owner and Owner's Engineer. The County of Monroe, Florida (hereinafter referred to as The Owner) agrees that ESCO shall have control over progress and quality of the work. Contractor must perform installation of EMAS in accordance with the requirements of the project design, drawings, specifications and installation Statement of Work. Total Price $ 3~578~000 ESCO shall provide: 1. 2~520 EMAS blocks ($1,105 each). Blocks will be invoiced on a monthly basis and be based on number of blocks stored and insured at or near ESCO's Logan Township, NJ facility when produced. Each block invoiced 1/2520th of the total price for blocks. Price for this item $ 2~ 784~600 2. Shipping: ESCO to ship blocks to the Airport to meet installation schedule (estimated winter 2009 or spring 2010). Shipping to be invoiced monthly based on percentage of completion of shipping. Price for this item $371~ 710 3. Installation support materials: debris deflector, backer rod, caulk, extruded silicone membrane & seam seal, side vents. ESCO will also provide a limited number of spare blocks to replace reasonable losses during shipping and installation. These blocks will not be separately priced, and any blocks not used during the installation will be loaded by Contractor (along with other unused materials and shipping materials) and returned to ESCO. Installation materials to be invoiced as they are stored at or near ESCO's Logan Township, NJ facility. Price for this item $179~150 4. ESCO's technical support (installation advisors for the block installation). As stated above, ESCO shall control the quality and progress of the EMAS installation. Owner must make it a condition -- 1 of their construction contract that Contractor will be trained by ESCO on the proper handling and placement of the EMAS material and related subjects during the initial phase of the installation and that the installation rate will be controlled by ESCO until proper training has been successfully completed. ESCO shall instruct Contractor, as hired and paid by Owner, on installation specifications and requirements prior to start of installation, instruct airport maintenance crew on EMAS bed maintenance as outlined in the IMR (Inspection Maintenance & Repair) manual, confirm installation is in compliance with the United States FAA Advisory Circular 150/5220-22A. Pricing for the technical support is predicated on installation of the EMAS block system being completed no later than August 31, 2010. If the installation is delayed beyond that time, ESCO shall be entitled to an equitable adjustment of its compensation for providing technical support. This support will be invoiced monthly based on the percent of completion at that time. Price for this item $242.540 5. Terms & conditions: The Owner will pay ESCO's invoice for materials and services received in accordance with the Local Government Prompt Payment Act, Florida Statute 218.74. The Owner agrees to pay for EMAS blocks and installation materials, which are stored in ESCO' s storage facility at or near ESCO's Logan Township, NJ plant, following Owner verification of quality and quantity of the EMAS blocks. ESCO will notify Owner when materials are available for inspection. Owner or his designee shall have the option to inspect such material. Owner inspection shall occur within 10 business days of the date of ESCO's notice. Title and risk of loss transfers at the time of invoicing. At no additional cost to the Owner, ESCO will furnish evidence that the stored EMAS blocks are insured against loss by damage to or disappearance of such blocks at anytime prior to successful shipment to the Key West International Airport, and that the Owner is listed as an additional insured on ESCO's insurance policy. Upon shipment, ESCO shall furnish the owner with evidence that the materials are insured against cargo loss or damage during shipping to the airport and that the owner is listed as an additional insured on the freight carrier's insurance policy. 6. Total price comprises 2,,520 (4' x 4') jet-blast-resistant (JBR) EMAS blocks (EMAS arrestor bed size 340' x 120' approximately), and associated installation support as described above. Prices will be prorated up or down if the final bed size approved by FAA is larger or smaller than described herein. 7. Notice to proceed (NTP) is granted upon full execution of this contract. Shipment of blocks will begin at a time mutually agreed upon between ESCO and the Owner as required to meet the Contractor's schedule. ESCO will make good faith, reasonable efforts to accommodate the schedule established by the contractor retained to construct the EMAS bed, provided that ESCO is given sufficient advance notice of the schedule. Owner understands price to be adjusted for extended storage if the blocks are stored for more than two months beyond the target date for installation in ESCO' s storage facility (cost approximately $TBD per month) or more than two weeks beyond target installation start in the trailers onsite ($TBD per trailer per month). 8. Once the blocks are shipped to the Airport, they are to be stored in trailers at a secured location until time for installation. Storage site at Airport to be provided by Owner at no charge to ESCO. Blocks will be shipped starting approximately 2 weeks prior to installation start. Contractor shall immediately assume responsibility for the control and condition of the blocks and installation materials at the airport. Loading and unloading of EMAS blocks and installation support materials shall be by Contractor under the guidance ofESCO's installation support personnel. 9. WARRANTY & LIABILITY - NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR IN ANY OTHER DOCUMENT OR AGREEMENT PERTAINING -- 2 TO THE EMAS, ESCO IS NOT PROVIDING ANY WARRANTY, INDEMNITY OR HOLD HARMLESS TO ANY PARTY EXCEPT AS SPECIFICALL Y PROVIDED IN ESCO'S STANDARD LIMITED WARRANTY, WHICH IS ATTACHED HERETO. THE OWNER ACKNOWLEDGES THAT IT HAS HAD THE BENEFIT OF COUNSEL IN UNDERSTANDING ITS RIGHTS UNDER THIS PURCHASE ORDER AND THE LIMITED WARRANTY EXTENDED TO IT BY ESCO. 10. Semi-annual inspections of the installed EMAS to be provided by ESCO for one year after date of final acceptance at no additional cost. 11. No sales/use or other taxes are included in the above figures, and under no circumstances shall ESCO be liable for any sales, use or similar tax. In the event sales and/or use taxes are levied against ESCO by the State, County, City or municipality, the Owner expressly assumes liability for any such sales/use or other taxes. 12. Either of ESCO or Owner shall have the right to terminate this Agreement following a material breach by the other party if the party seeking to terminate has provided the other party with sixty (60) days written notice specifying such breach and the other party has failed to cure. In such event, this Agreement shall terminate and ESCO shall be entitled to receive from Owner payment for the percentage of services performed through the date of termination, including EMAS blocks and installation materials produced and not shipped. 13. Airport work hours available from 10 pm to 6 am at minimum based on 5 days per week mInImum. 14. FAA contract clauses are attached hereto as Exhibit 1 and shall be incorporated as if fully restated herein. 15. ESCO shall provide insurance as required on the attached sheet prior to beginning delivery of materials (Exhibit 2). Y L. KOLHAGE, CLERK BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA \)-... ~ '-.: ~ chase Orders. No provision of any Owner issued purchase order or other Owner doc ,.' d to this Agreement. "",~ ...~~,\ ,;;;~\\ ""41 %~ ~; !~' By: Q.lW0Mt~ Deputy Clerk By ,1;.-.11- L4 'oJ.L4,e.<r Mayor/Chairperson -- 3 Exhibit 1 - F ederal Aviation Administration required contract clauses Exhibit 2 - INSURANCE ESCO shall carry and maintain at least the minimum insurance as specified below until completion and acceptance of the work. Insert or attach airport's insurance requirements. Exhibit 3 - ESCO's Standard Limited Warranty Exhibit 4 - Monroe County required contract clauses -- 4 EXHIBIT 1 FAA REQUIRED CONTRACT CLAUSES - EQUIPMENT BUY AMERICAN PREFERENCES (a) The Aviation Safety and Capacity Expansion Act of 1990 provides that preference be given to steel and manufactured products produced in the United States when funds are expended pursuant to a grant issued under the Airport Improvement Program. The following terms apply: 1. Steel and manufactured products. As used in this clause, steel and manufactured products include (1) steel produced in the United States or (2) a manufactured product produced in the United States, if the cost of its components mined, produced or manufactured in the United States exceeds 60 percent of the cost of all its components and final assembly has taken place in the United States. Components of foreign origin of the same class or kind as the products referred to in subparagraphs b. (1) or (2) shall be treated as domestic. 2. Components. As used in this clause, components means those articles, materials, and supplies incorporated directly into steel and manufactured products. 3. Cost of Components. This means the costs for production of the components, exclusive of final assembly labor costs. (b) The successful bidder will be required to assure that only domestic steel and manufactured products will be used by the Contractor, subcontractors, materialmen and suppliers in the performance of this contract, except those: 1. that the US Department of Transportation has determined, under the Aviation Safety and Capacity Expansion Act of 1990, are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; 2. that the US Department of Transportation has determined, under the Aviation Safety and Capacity Expansion Act of 1990, that domestic preference would be inconsistent with the public interest; or 3. that inclusion of domestic material will increase the cost of the overall project contract by more than 25 percent. BUY AMERICAN CERTIFICATE By submitting a bid/proposal under this solicitation, except for those items listed by the offeror below or on a separate and clearly identified attachment to this bid/proposal, the offeror certifies that steel and each manufactured product, are produced in the United States, as defined in the clause Buy American - Steel and Manufactured Products for Construction Contracts) and that components of unknown origin are considered to have been produced or manufactured outside the United States. Offerors may obtain from the owner a listing of articles, materials and supplies excepted from this prOVISIon. -- 5 I Product I Country of Origin Application Incorporate into all construction and equiplnent procurelnents. Paragraphs (a) and (b) should be placed in the solicitation. The Buy American certificate should be placed in the contract documents. Reference Section 9129 of the Aviation Safety and Capacity Expansion Act of 1990 Title 49 D.S.C. Chapter 501 AlP Program Guidance Letter 91-3 CIVIL RIGHTS ACT OF 1964, TITLE VI - CONTRACTOR CONTRACTUAL REQUIREMENTS During the performance of this contract~ the contractor~ for itself~ its assignees and successors in interest (hereinafter referred to as the "contractor") agrees as follows: 1.1 Compliance with Regulations. The contractor shall comply with the Regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation (hereinafter~ "DOT") Title 49~ Code of Federal Regulations~ Part 21 ~ as they may be amended from time to time (hereinafter referred to as the Regulations)~ which are herein incorporated by reference and made a part of this contract. 1.2 Nondiscrimination. The contractor~ with regard to the work performed by it during the contract~ shall not discriminate on the grounds of race~ color~ or national origin in the selection and retention of subcontractors~ including procurements of materials and leases of equipment. The contractor shall not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulations~ including employment practices when the contract covers a program set forth in Appendix B of the Regulations. 1.3 Solicitations for Subcontracts, Including Procurements of Materials and Equipment. In all solicitations either by competitive bidding or negotiation made by the contractor for work to be performed under a subcontract~ including procurements of materials or leases of equipment~ each potential subcontractor or supplier shall be notified by the contractor of the contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race~ color~ or national origin. 1.4 Information and Reports. The contractor shall provide all information and reports required by the Regulations or directives issued pursuant thereto and shall permit access to its books~ records~ accounts~ other sources of information~ and its facilities as may be determined by the Sponsor or the Federal Aviation Administration (FAA) to be pertinent to ascertain compliance with such Regulations~ orders~ -- 6 and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish this information, the contractor shall so certify to the sponsor or the FAA, as appropriate, and shall set forth what efforts it has made to obtain the information. 1.5 Sanctions for Noncompliance. In the event of the contractor's noncompliance with the nondiscrimination provisions of this contract, the sponsor shall impose such contract sanctions as it or the FAA may determine to be appropriate, including, but not limited to: a. Withholding of payments to the contractor under the contract until the contractor complies, and/or b. Cancellation, termination, or suspension of the contract, in whole or in part. 1.6 Incorporation of Provisions. The contractor shall include the provisions of paragraphs 1 through 5 in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations or directives issued pursuant thereto. The contractor shall take such action with respect to any subcontract or procurement as the sponsor or the FAA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the contractor may request the Sponsor to enter into such litigation to protect the interests of the sponsor and, in addition, the contractor may request the United States to enter into such litigation to protect the interests of the United States. Application Required in all contracts and subcontracts Reference 49 CFR Part 21 AC 150/5100-15 AIRPORT AND AIRWAY IMPROVEMENT ACT OF 1982, SECTION 520 - GENERAL CIVIL RIGHTS PROVISIONS The contractor assures that it will comply with pertinent statutes, Executive orders and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance. This provision obligates the tenant/concessionaire/lessee or its transferee for the period during which Federal assistance is extended to the airport a program, except where Federal assistance is to provide, or is in the form of personal property or real property or interest therein or structures or improvements thereon. In these cases the provision obligates the party or any transferee for the longer of the following periods: (a) the period during which the property is used by the airport sponsor or any transferee for a purpose for which Federal assistance is extended, or for another purpose involving the provision of similar services or benefits or (b) the period during which the airport sponsor or any transferee retains ownership or possession of the property. In the case of contractors, this provision binds the contractors from the bid solicitation period through the completion of the contract. This provision is in addition to that required of Title VI of the Civil Rights Act of 1964. Application Incorporate in all contracts funded under AlP --7 Reference Airport and Airway Improvement Act of 1982~ Section 520 Title 49 47123 AC 150/51 00-15~ Para. 10.c. DISADV ANT AGED BUSINESS ENTERPRISES Contract Assurance (~26.13) - The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the recipient deems appropriate. Prompt Payment (~26.29) - Refer to Article 9.2.7 of the Agreement. Application The contract assurance clause shall be incorporated verbatim. The prompt payment clause represents sample language that meets the requirements of 49 CFR Part 26.29. Recipients should refer to the language included their approved DBE program. Reference 49 CFR Part 26 LOBBYING AND INFLUENCING FEDERAL EMPLOYEES (1) No Federal appropriated funds shall be paid, by or on behalf of the contractor, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the making of any Federal grant and the amendment or modification of any Federal grant. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any Federal grant, the contractor shall complete and submit Standard Form-LLL, "Disclosure of Lobby Activities," in accordance with its instructions. Application Required in all contracts and subcontracts Reference 49 CFR Part 20~ Appendix A ACCESS TO RECORDS AND REPORTS -- 8 The Contractor shall maintain an acceptable cost accounting system. The Contractor agrees to provide the Sponsor, the Federal Aviation Administration and the Comptroller General of the United States or any of their duly authorized representatives access to any books, documents, papers, and records of the contractor which are directly pertinent to the specific contract for the purpose of making audit, examination, excerpts and transcriptions. The Contractor agrees to maintain all books, records and reports required under this contract for a period of not less than three years after final payment is made and all pending matters are closed. Application Incorporate into all procurement contracts that funded by AlP funds Reference 49 CFR Part 18.36(i) FAA Order 5100.38 ENERGY CONSERV A TION REQUIREMENTS The contractor agrees to comply with mandatory standards and policies relating to energy efficiency that are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Public Law 94-163). Application The regulation does not prescribe the language for the requirement. The above clause represents sample language that meets the intent of 49 CFR Part 18.36(i)(13) Reference 49 CFR Part 18.36 Public Law 94-163 BREACH OF CONTRACT TERMS Any violation or breach of terms of this contract on the part of the contractor or their subcontractors may result in the suspension or termination of this contract or such other action that may be necessary to enforce the rights of the parties of this agreement. The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. Application The FAA does not prescribe the exact language to be incorporated. The above clause represents salnple language that addresses the requirements of 49 CFR Part 18.36(i)(1). This provision requires grantees to incorporate administrative, contractual or legal remedies in instances where contractors violate or breach contract terms. Grantees should consult with their legal counsel to develop the appropriate clause that meets the minimum requirements of 49 CFR Part 18.36. -- 9 This provision is required in all contracts that exceed the simplified acquisition threshold, presently set at $100,000. Reference 49 CFR Part 18.36 RIGHTS TO INVENTIONS All rights to inventions and materials generated under this contract are subject to regulations issued by the FAA and the Sponsor of the Federal grant under which this contract is executed. Application Incorporate into all procurement contracts that funded by AlP funds Reference 49 CFR Part 18.36(i)(8) FAA Order 5100.38 TRADE RESTRICTION CLAUSE The contractor or subcontractor, by submission of an offer and/or execution of a contract, certifies that it: a. is not owned or controlled by one or more citizens of a foreign country included in the list of countries that discriminate against U.S. firms published by the Office of the United States Trade Representative (USTR); b. has not knowingly entered into any contract or subcontract for this project with a person that is a citizen or national of a foreign country on said list, or is owned or controlled directly or indirectly by one or more citizens or nationals of a foreign country on said list; c. has not procured any product nor subcontracted for the supply of any product for use on the project that is produced in a foreign country on said list. Unless the restrictions of this clause are waived by the Secretary of Transportation in accordance with 49 CFR 30.17, no contract shall be awarded to a contractor or subcontractor who is unable to certify to the above. If the contractor knowingly procures or subcontracts for the supply of any product or service of a foreign country on said list for use on the project, the Federal Aviation Administration may direct through the Sponsor cancellation of the contract at no cost to the Government. Further, the contractor agrees that, if awarded a contract resulting from this solicitation, it will incorporate this provision for certification without modification in each contract and in all lower tier subcontracts. The contractor may rely on the certification of a prospective subcontractor unless it has knowledge that the certification is erroneous. --10 The contractor shall provide immediate written notice to the sponsor if the contractor learns that its certification or that of a subcontractor was erroneous when submitted or has become erroneous by reason of changed circumstances. The subcontractor agrees to provide written notice to the contractor if at any time it learns that its certification was erroneous by reason of changed circumstances. This certification is a material representation of fact upon which reliance was placed when making the award. If it is later determined that the contractor or subcontractor knowingly rendered an erroneous certification, the Federal Aviation Administration may direct through the Sponsor cancellation of the contract or subcontract for default at no cost to the Government. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by this provision. The knowledge and information of a contractor is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. This certification concerns a matter within the jurisdiction of an agency of the United States of America and the making of a false, fictitious, or fraudulent certification may render the maker subject to prosecution under Title 18, United States Code, Section 1001. Application Incorporate into all contracts funded by AlP. Reference 49 CFR Part 30.13 FAA Order 5100.38 VETERAN'S PREFERENCE In the employment of labor (except in executive, administrative, and supervisory positions), preference shall be given to Veterans of the Vietnam era and disabled veterans as defined in Section 515( c)(1) and (2) of the Airport and Airway Improvement Act of 1982. However, this preference shall apply only where the individuals are available and qualified to perform the work to which the employment relates. Application Incorporate into all construction contracts financed under the AlP program. Reference Title 49 U.S.C. 47112(c) Advisory Circular 150/51 00-6d TERMINATION OF CONTRACT a. The Sponsor may, by written notice, terminate this contract in whole or in part at any time, either for the Sponsor's convenience or because of failure to fulfill the contract obligations. Upon receipt of such notice services shall be immediately discontinued (unless the notice directs otherwise) and all materials as may have been accumulated in performing this contract, whether completed or in progress, delivered to the Sponsor. --11 b. If the termination is for the convenience of the Sponsor, an equitable adjustment in the contract price shall be made, but no amount shall be allowed for anticipated profit on unperformed services. c. If the termination is due to failure to fulfill the contractor's obligations, the Sponsor may take over the work and prosecute the same to completion by contract or otherwise. In such case, the contractor shall be liable to the Sponsor for any additional cost occasioned to the Sponsor thereby. d. If, after notice of termination for failure to fulfill contract obligations, it is determined that the contractor had not so failed, the termination shall be deemed to have been effected for the convenience of the Sponsor. In such event, adjustment in the contract price shall be made as provided in paragraph 2 of this clause. e. The rights and remedies of the sponsor provided in this clause are in addition to any other rights and remedies provided by law or under this contract. Application Incorporate into all procurement contracts that funded by AlP funds that exceed $10,000. Reference 49 CFR Part 18.36(i)(2) FAA Order 5100.38 CERTIFICATION REGARDING DEBAREMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION The bidder/offeror certifies, by submission of this proposal or acceptance of this contract, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. It further agrees by submitting this proposal that it will include this clause without modification in all lower tier transactions, solicitations, proposals, contracts, and subcontracts. Where the bidder/offeror/contractor or any lower tier participant is unable to certify to this statement, it shall attach an explanation to this solicitation/proposal. Application Incorporate into all contracts that exceed $25,000, which funded under the AlP. Incorporate in all contracts for auditing services regardless of the contract amount. Reference 49 CFR Part 29 FAA Order 5100.38 CLEAN AIR AND WATER POLLUTION CONTROL Contractors and subcontractors agree: --12 a. That any facility to be used in the performance of the contract or subcontract or to benefit from the contract is not listed on the Environmental Protection Agency (EP A) List of Violating Facilities; b. To comply with all the requirements of Section 114 of the Clean Air Act, as amended, 42 D.S.C. 1857 et seq. and Section 308 of the Federal Water Pollution Control Act, as amended, 33 D.S.C. 1251 et seq. relating to inspection, monitoring, entry, reports, and information, as well as all other requirements specified in Section 114 and Section 308 of the Acts, respectively, and all other regulations and guidelines issued thereunder; c. That, as a condition for the award of this contract, the contractor or subcontractor will notify the awarding official of the receipt of any communication from the EP A indicating that a facility to be used for the performance of or benefit from the contract is under consideration to be listed on the EP A List of Violating Facilities; d. To include or cause to be included in any construction contract or subcontract which exceeds $100,000 the aforementioned criteria and requirements. Application Incorporate in all contracts and subcontracts that exceed $100,000. Reference 49 CFR Part 18.36(i)(12) Section 306 of the Clean Air Act Section 508 of the Clean Water Act --13 EXHIBIT 2 INSURANCE ESCO shall carry and maintain at least the minimum insurance as specified below until completion and acceptance of the work. Insert or attach airport's insurance requirements. --14 INSURANCE REQUIREMENTS FOR ESCO SUPPLY AND DELIVERY OF EMAS Prior to the commencement of work governed by this contract (including the pre- staging of personnel and material), the ESCO shall obtain, at its own expense, insurance as specified below. ESCO will ensure that the insurance obtained will extend protection to all Sub-Contractors engaged by ESCO. As an alternative, ESCO may require all Subcontractors to obtain comparable insurance. ESCO will not be permitted to commence work governed by this contract (including pre-staging of personnel and material) until satisfactory evidence of the required insurance has been furnished to the County as specified below. Delays in the commencement of work, resulting from the failure of ESCO to provide satisfactory evidence of the required insurance, shall not extend deadlines specified in this contract and any penalties and failure to perform assessments shall be imposed as if the work commenced on the specified date and time, except for ESCO's failure to provide satisfactory evidence. ESCO shall maintain the required insurance throughout the entire term of this contract and any extensions specified in any attached schedules. Failure to comply with this provision may result in the immediate suspension of all work until the required insurance has been reinstated or replaced. Delays in the completion of work resulting from the failure of ESCO to maintain the required insurance shall not extend deadlines specified in this contract and any penalties and failure to perform assessments shall be imposed as if the work had not been suspended, except for ESCO's failure to maintain the required insurance. ESCO will be held responsible for all deductibles and self insured retentions that may be contained in ESCO's Insurance policies. ESCO shall provide, to the County, as satisfactory evidence of the required insurance, either: . Certificate of Insurance or . A Certified copy of the actual insurance policy. The County, at its sole option, has the right to request a certified copy of any or all insurance policies required by this contract. All insurance policies must specify that they are not subject to cancellation, non- renewal, material change, or reduction in coverage unless a minimum of thirty (30) days prior notification is given to the County by the insurer. The acceptance and/or approval ofESCOs insurance shall not be construed as relieving ESCO from any liability or obligation assumed under this contract or imposed by law. The Monroe County Board of County Commissioners, its employees and officials will be included as "Additional Insured" on all policies, except for Workers' Compensation. Any deviations from these General Insurance Requirements must be requested in writing on the County prepared form entitled "Request for Waiver of Insurance Requirements" and approved by Monroe County Risk Management. PROPERTY /BUILDER'S RISK/INSTALLATION FLOATER Prior to the commencement of work governed by this contract, ESCO shall ensure that the EMAS blocks being purchased under this contract shall be insured on an "All Risk" basis, to include the perils of Flood and Wind, with limits no less than the Replacement Cost Value of EM AS blocks being purchased by the County. Coverage shall be maintained until the EMAS blocks are received by the County in Key West, Florida. As a minimum, coverage shall extend to the following perils: Fire Sprinkler Leakage Windstorm Civil Commotion Lightning Sinkhole Collapse Smoke Aircraft and Vehicle Damage Vandalism Falling Objects Explosion Flood In addition, ESCO shall provide, or arrange for the EMAS blocks to be insured as specified above while they are being transported to Key West, Florida. The Monroe County Board of County Commissioners shall be named as Loss Payee on all policies issued to satisfy the above requirements. COMMERCIAL GENERAL LIABILITY INSURANCE Prior to the commencement of work governed by this contract, ESCO shall obtain General Liability Insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum: . Premises Operations . Products and Completed Operations . Blanket Contractual Liability . Personal Injury Liability . Expanded Definition of Property Damage The minimum limits acceptable shall be: $1,000,000 Combined Single Limit (CSL) An Occurrence Form policy is preferred. If coverage is provided on a Claims Made policy, its provisions should include coverage for claims filed on or after the effective date of this contract. In addition, the period for which claims may be reported should extend for a minimum of twelve (12) months following the acceptance of work by the County. VEHICLE LIABILITY INSURANCE Recognizing that the work governed by this contract may require the use of vehicles, ESCO shall obtain Vehicle Liability Insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum, liability coverage for: . Owned, Non-Owned, and Hired Vehicles The minimum limits acceptable shall be: $1,000,000 Combined Single Limit (CSL) WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE Prior to the commencement of work governed by this contract, ESCO shall obtain Workers' Compensation Insurance with limits sufficient to respond to Florida Statute 440. In addition, ESCO shall obtain Employers' Liability Insurance with limits of not less than: $500,000 Bodily Injury by Accident $500,000 Bodily Injury by Disease, policy limits $500,000 Bodily Injury by Disease, each employee Coverage shall be maintained throughout the entire term of the contract. INSURANCE REQUIREMENTS FOR CONTRACTOR INSTALLING EMAS BLOCKS Prior to the commencement of work governed by this contract (including the pre- staging of personnel and material), the Contractor shall obtain, at its own expense, insurance as specified below. The Contractor will ensure that the insurance obtained will extend protection to all Sub-Contractors engaged by the Contractor. As an alternative, the Contractor may require all Subcontractors to obtain comparable insurance. The Contractor will not be permitted to commence work governed by this contract (including any employee training and pre-staging of personnel and material) until satisfactory evidence of the required insurance has been furnished to the County as specified below. Delays in the commencement of work, resulting from the failure of the Contractor to provide satisfactory evidence of the required insurance, shall not extend deadlines specified in this contract and any penalties and failure to perform assessments shall be imposed as if the work commenced on the specified date and time, except for the Contractor's failure to provide satisfactory evidence. The Contractor shall maintain the required insurance throughout the entire term of this contract and any extensions specified in any attached schedules. Failure to comply with this provision may result in the immediate suspension of all work until the required insurance has been reinstated or replaced. Delays in the completion of work resulting from the failure of the Contractor to maintain the required insurance shall not extend deadlines specified in this contract and any penalties and failure to perform assessments shall be imposed as if the work had ~ot been suspended, except for the Contractor's failure to maintain the required Insurance. The Contractor will be held responsible for all deductibles and self insured retentions that may be contained in the Contractor's Insurance policies. The Contractor shall provide, to the County, as satisfactory evidence of the required insurance, either: . Certificate of Insurance or . A Certified copy of the actual insurance policy. The County, at its sole option, has the right to request a certified copy of any or all insurance policies required by this contract. All insurance policies must specify that they are not subject to cancellation, non- renewal, material change, or reduction in coverage unless a minimum of thirty (30) days prior notification is given to the County by the insurer. The acceptance and/or approval of the Contractor's insurance shall not be construed as relieving the Contractor from any liability or obligation assumed under this contract or imposed by law. The Monroe County Board of County Commissioners, its employees and officials will be included as "Additional Insured" on all policies, except for Workers' Compensation. Any deviations from these General Insurance Requirements must be requested in writing on the County prepared form entitled "Request for Waiver of Insurance Requirements" and approved by Monroe County Risk Management. COMMERCIAL GENERAL LIABILITY INSURANCE Prior to the commencement of work governed by this contract, the Contractor shall obtain General Liability Insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum: · Premises Operations · Products and Completed Operations · Blanket Contractual Liability · Personal Injury Liability · Expanded Definition of Property Damage The minimum limits acceptable shall be: $1,000,000 Combined Single Limit (CSL) An Occurrence Form policy is preferred. If coverage is provided on a Claims Made policy, its provisions should include coverage for claims filed on or after the effective date of this contract. In addition, the period for which claims may be reported should extend for a minimum of twelve (12) months following the acceptance of work by the County. VEHICLE LIABILITY INSURANCE Recognizing that the work governed by this contract may require the use of vehicles, the Contractor shall obtain Vehicle Liability Insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum, liability coverage for: · Owned, Non-Owned, and Hired Vehicles The minimum limits acceptab,le shall be: $1,000,000 Combined Single Limit (CSL) WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE Prior to the commencement of work governed by this contract, the Contractor shall obtain Workers' Compensation Insurance with limits sufficient to respond to Florida Statute 440. In addition, the Contractor shall obtain Employers' Liability Insurance with limits of not less than: $500,000 Bodily Injury by Accident $500,000 Bodily Injury by Disease, policy limits $500,000 Bodily Injury by Disease, each employee Coverage shall be maintained throughout the entire term of the contract. EXHIBIT 3 En2ineered Material Arrestin2 System LIMITED Warrantv ENGINEERED ARRESTING SYSTEMS CORPORATION ("ESCO") warrants to the original purchaser (the "Owner") of the ESCO Engineered Material Arresting System ("EMAS") that, for a period of one year from the earlier of the date of acceptance, as evidenced by a final acceptance document signed by the Owner or 30 days from date ESCO notifies Owner that the EMAS is ready for acceptance, and subject to the limitations stated herein, the EMAS arrestor bed (excludes base surface preparation) conforms to the product specifications contained in the documents listed under section entitled Applicable Documents. This Warranty is expressly conditioned on the Owner's satisfying all of the following requirements: MAINTENANCE: ESCO requires that the Owner initiate and follow a preventative maintenance program in accordance with the ESCO Inspection, Maintenance and Repair Manual listed under the clause "Applicable Documents". RIGHT OF INSPECTION: The Owner shall provide ESCO with reasonable access to the EMAS after its installation for the purpose of conducting semi-annual inspections. Reasonable access shall include, without limitation, access during daylight hours to permit careful visual assessment of the condition of the EMAS and access to all records of maintenance carried out by the Owner. INST ALLA TION: The EMAS must be installed by an ESCO-authorized EMAS contractor in strict compliance with ESCO's specifications, and project drawings and submittals approved by ESCO. There must be no deviations from ESCO's specifications or the approved project drawings and submittals, without the prior written approval of ESCO. During the entire installation process and upon completion of the installation, the work must be inspected and approved by a technical representative of ESCO as conforming to ESCO' s specifications and approved proj ect drawings and submittals. NOTIFICATION: If the Owner believes that it has a claim arising from the failure of the EMAS to conform with this Warranty, the Owner must notify ESCO of the claim, within ten (10) days after discovering the conditions giving rise to the claim, and in any case before the Warranty period has expired. All such notices shall be given by certified mail addressed to Director of Quality Assurance, Attention: Warranty Claim Engineered Arresting Systems Corporation, 2550 Market Street, Aston, PA 19014-3426, USA. Failure to adhere to any of the conditions stated above shall void this Warranty. WARRANTY REMEDY If the Warranty set forth above is breached, ESCO will, at its sole option, either (1) correct the non-conformity at its own cost within a reasonable time after receiving notice of the breach, or (2) replace the non-conforming portion of the EMAS at its own cost within a reasonable time after receiving notice of the breach. The Owner shall give ESCO reasonable access to the EMAS that allows ESCO to perform its warranty obligations on its most cost-effective basis possible. --15 EXCLUSIONS ESCO shall not be liable for any damage to the EMAS or other property attributable to any of the following (or any combination thereof): 1. 2. 3. 4. 5. Standing water in and around the EMAS bed, Vehicular traffic, Aircraft traffic in contact with the EMAS bed, Acts of nature, including, but not limited to, lightning, flood, winds in excess of 100 mph, earthquake, hurricane, tornado, hail storm, or impact of objects or other violent storm or casualty, Repairs or alterations of the EMAS, unless performed by personnel trained and qualified by ESCO and in a manner meeting the ESCO specifications and procedures listed under the clause "Applicable Documents", Excessive build up of debris in and around the EMAS bed, Impact or contact with other objects, spilled liquids or immersion in liquids (including fuel dropped from over- flying aircraft), Use of the EMAS for purposes other than those for which it is customarily used, Improper maintenance, abuse or other neglect, Exposure to chemicals other than de-icers and aircraft engine exhaust, Jet Blast in excess of 100 mph, and Damage or defect due to faulty or improper workmanship, including installation of the product that is not in accordance with ESCO' s published specifications and installation recommendations in effect at the time of installation. Damage to the EMAS arrestor bed related to or caused by the base surface not being constructed per the drawings and specifications. ESCO must check and accept the base surface prior to the start of EMAS arrestor bed installation. Any subsequent failure of the base surface whether or not originally constructed per the drawings and specifications. NOTE SPECIAL EXCLUSION: Any EMAS blocks located within thirty-five (35) feet of the threshold (the first 6 rows) are not warranted against damage due to jet blast. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. APPLICABLE DOCUMENTS Project Installation Drawing No. TBD . Item P-555 Rev. TBD EMAS Bed Installation by Prime Contractor EMAS Quality Control Plan for EMAS installation at Control Instructions. SM- TBD , Inspection, Maintenance and Repair Manual P.O./Contract Number TBD . Airport, with associated Quality WARRANTY EXCLUSIVEILIMITATION OF LIABILITY THE EXPRESS WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND NO OTHER WARRANTIES OF ANY KIND, WHETHER STATUTORY, ORAL, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY. THE OWNER'S EXCLUSIVE --16 REMEDIES AND ESCO'S ONLY OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH DEFECTS OR NON-CONFORMITIES IN THE EMAS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THOSE STATED HEREIN. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN ANY CONTRACT DOCUMENT, ESCO'S TOTAL LIABILITY TO THE OWNER ARISING FROM OR RELATING TO DEFECTS OR NON-CONFORMITIES IN THE EMAS SHALL BE LIMITED TO THE ORIGINAL PURCHASE PRICE OF THE EMAS PAID TO ESCO. ESCO SHALL HAVE NO LIABILITY TO THE OWNER FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. REGARDLESS OF ANY STATUTORY LIMITATION PERIODS, ESCO SHALL NOT BE LIABLE FOR ANY BREACH OF WARRANTY OF WHICH IT IS NOT NOTIFIED AS REQUIRED BEFORE THE WARRANTY PERIOD HAS EXPIRED. NO WARRANTY MODIFICATIONS This Warranty may not be modified except in a writing signed by ESCO's President. No representative, employee, or agent of ESCO, or any person, other than the President of ESCO, has the authority to assume for ESCO any additional liability or responsibility in connection with the EMAS or this Warranty. To ensure registration of this Warranty, please return a signed copy to: Manager of Quality Assurance Engineered Arresting Systems Corporation 2239 High Hill Road Logan Township, NJ 08085 Phone (856) 241-8620 Fax (856) 241-8621 Name (Please Print) of Authorized Airport Individual: Title: Signature: Date: --17 EXHIBIT 4 1) Books" Records and Documents. ESCO shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Agreement for public records purposes during the term of the Agreement and for four years following the termination of this Agreement. If an auditor employed by the County or Clerk determines that monies paid to ESCO pursuant to this Agreement were spent for purposes not authorized by this Agreement, ESCO shall repay the monies together with interest calculated pursuant to Sec. 55.03, FS, running from the date the monies were paid to ESCO. 2) Governin!!: Law" Venue" Interoretation. Governing Law, Venue, Interpretation, Costs, and Fees: This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the County and ESCO agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. The County and ESCO agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. 3) Severability. If any term, covenant, condition or prOVISIon of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The County and ESCO agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. 4) Attornev's Fees and Costs. The County and ESCO agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out-of-pocket expenses, as an award against the non-prevailing party, and shall include attorney's fees, courts costs, investigative, and out-of-pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. 5) Bindin!!: Effect. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and ESCO and their respective legal representatives, successors, and assigns. --18 6) Authoritv. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and corporate action, as required by law. 7) Claims for Federal or State Aid. ESCO and County agree that each shall be, and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 8) Adiudication of Disputes or Disa2reements. County and ESCO agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If no resolution can be agreed upon within 30 days after the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. 9) Cooperation. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, County and ESCO agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. County and ESCO specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. 10) Nondiscrimination. County and ESCO agree that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. ESCO agrees to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101-6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee- 3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. 11) Covenant of No Interest. County and ESCO covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance --19 under this Agreement, and that only interest of each is to perform and receive benefits as recited in this Agreement. 12) Code of Ethics. County agrees that officers and employees of the County recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. 13) No Solicitation/Pavment. The County and ESCO warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, 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 it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of the provision, ESCO agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 14) Public Access. The County and ESCO shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and ESCO in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by ESCO. 15) Non-Waiver of Immunitv. Notwithstanding he provisions of Sec. 768.28, Florida Statutes, the participation of the County and ESCO in this Agreement and the acquisition of any commercial liability insurance coverage, self-insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the County be required to contain any provision for waiver. 16) Privilee:es and Immunities. All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the County, when performing their respective functions under this Agreement within the territorial limits of the County shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. 17) Lee:al Oblie:ations and Responsibilities: Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the County, except to the extent permitted by the Florida constitution, state statute, and case law. 18) Non-Reliance bv Non-Parties. No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third-party claim or entitlement to --20 or benefit of any service or program contemplated hereunder, and the County and ESCO agree that neither the County nor ESCO nor any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. 19) Attestations. ESCO agrees to execute such documents as the County may reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug- Free Workplace Statement. 20) No Personal Liabilitv. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 21) Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. 22) Section Headines. Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. 23) Mutual Review. This agreement has been carefully reviewed by ESCO and the County, therefore this agreement is not to be construed against either party on the basis of authorship. 24) Indemnification/Hold Harmless. Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, ESCO shall defend, indemnify and hold the County and the County's elected and appointed officers and employees harmless from and against (i) any claims, actions or causes of action, (ii) any litigation, administrative proceedings, appellate proceedings, or other proceedings relating to any type of injury (including death), loss, damage, fine, penalty or business interruption, and (iii) any costs or expenses (including, without limitation, costs of remediation and costs of additional security measures that the Federal Aviation Administration, the Transportation Security Administration or any other governmental agency requires by reason of, or in connection with a violation of any federal law or regulation, attorneys' fees and costs, court costs, fines and penalties) that may be asserted against, initiated with respect to, or sustained by, any indemnified party by reason of, or in connection with, (A) any activity of ESCO or any of its employees, agents, contractors or other invitees on the Airport during the term of this Agreement, (B) the negligence or willful misconduct of ESCO or any of its employees, agents, contractors or other invitees, or (C) ESCO's default in respect of any of the obligations that it undertakes under the terms of this Agreement, except to the extent the claims, actions, causes of action, litigation, proceedings, costs or expenses arise from the intentional or sole negligent acts or omissions, including but not limited to improper maintenance of the system or runway and/or improper use or misuse of the system, of the County or any of its employees, agents, contractors or invitees (other than ESCO). Insofar as the claims, actions, causes of action, litigation, proceedings, costs or expenses relate to events or circumstances that occur during the term of this lease, this section will survive the expiration of the term of this lease or any earlier termination of this lease. --21