3. 07/16/2014 AgreementAMY NEAVILIN, CPA
CLERK OF CIRCUIT COURT & COMPTROLLER
MONRO . COUNTY, RAW
DATE: August 12, 2014
TO: Peter Horton,
Director of Airports
ATTN. Judy Layne, Senior Coordinator
Airport Grants and Finance
FROM: Lindsey Ballard, D. CV"
At the July 16, 2014, Board of County Commissioner's meeting the Board granted approval and
authorized execution of Items:
Item C 15 Task Order #2014-001 with CDM Smith for Construction Administration Services (the
"Project") for the Florida Keys Marathon Airport Terminal Sewer Laterals.
Item C16 Contract with ESCO as a sole source provider for purchase of EMAS blocks for the
western end of the runway at the Key West International Airport.
Enclosed is a duplicate original of the above mentioned for your handling. Should you have any
questions, please feel free to contact our office.
cc: County Attorney (without document)
Finance
File,/
500 Whitehead Street Suite 101, PO Box 1980, Key West FL 33040 Phone: 305-295-3130 Fax: 305-295-3663
3117 Overseas Highway, Marathon, FL 33050 Phone: 305-289-6027 Fax: 305-289-6025
88820 Overseas Highway, Plantation Key, FL 33070 Phone: 852-7145 Fax: 305-852-7146
Monroe County
Key West International Airport
EMAS Improvements Departure end of Runway (27 end Safety Area)
Date: July 16, 2014
Engineered Arresting Systems Corporation (ESCO)
2239 High Hill Road
Logan Township, NJ 08085
ESCO will provide materials as identified herein and on -site support services to
facilitate the 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 support services as needed to assist
in the Contractor's (Contractor or General Contractor shall refer to the firm selected
and paid 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 Monroe County Board of County Commissioners (hereinafter referred to as The
Owner) agrees this Contract does not obligate ESCO to provide the overall design for
the EMAS project or its sub -base, to construct the bed, or install the EMAS, and the
Owner shall make arrangements separately for those services. However, as conditions
of ESCO's warranty, the Owner must retain control of their installers and contractors
and must require that those persons or entities cooperate to allow ESCO to review the
construction documents for compliance with ESCO's installation specifications and
Warranty Requirements. Contractor must perform installation of EMAS in accordance
with the requirements of the project design, drawings, specifications and installation
Statement of Work.
Total Price $3,217,733
ESCO shall provide:
1. 2010 EMAS blocks ($1,278.00 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 1/2010th of
the total price for blocks. Price for this item $2,568,780
2. Shipping: ESCO to ship blocks to the Airport to meet installation schedule
(completed no later than May 30, 2015). ESCO will furnish Owner with
evidence that the materials are insured against cargo loss and damage during
shipping to the Airport, and that the Owner is listed as an additional insured on
freight carrier's insurance policy. Shipping to be invoiced monthly based on
percentage of completion of shipping. Price for this item $263,602
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3. Installation support materials: debris deflector, backer rod, caulk, seam seal,
side coating, side vents and EMAS block adhesive. ESCO will also provide 1 %
(21) of the total number of blocks identified in Paragraph 1 above as spares to
replace reasonable losses during shipping. These replacement blocks will not
be separately priced, and any replacement blocks not used during the
installation will be loaded by Contractor (along with other unused materials and
shipping materials) and returned to ESCO without credit to the Owner.
Installation materials to be invoiced as they are stored at or near ESCO's Logan
Township, NJ facility. Price for this item $209,050
4. ESCO's onsite support services (installation advisors for the block installation).
Owner must make it a condition 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. ESCO
shall monitor the progress and quality of the work. ESCO shall notify Owner if
Contractor deviates from manufacturer's specifications for installation of an
EMAS or the Statement of Work. 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. Any material losses incurred during the installation by the
installer hired by the Owner shall be invoiced separately by ESCO at the same
unit price identified in paragraph 1 above, plus shipping. Pricing for the onsite
support service is predicated on installation of the EMAS block system being
completed no later than May 30, 2015and availability of eight (8) daylight hours
per workday, for five (5) consecutive days per week exclusive of weekends. If
the installation is delayed beyond that time or there are significant deviations
from availability of daylight hours, hours per day or days per week, ESCO shall
be entitled to an equitable adjustment of its compensation for providing onsite
support services. This support will be invoiced monthly based on the percent of
completion at that time. Price for this item $176,301
5. Terms & conditions: The Contract itself is not an authorization for ESCO to
ship goods or begin performance in any way. ESCO may begin performance
only after it has received a duly issued purchase order against the Contract. The
Owner will issue a purchase order against the Contract directly to ESCO within
ten (10) days of FAA grant award. All purchase orders shall be in written or
electronic form, bear the Contract number (if any) and comply with all other
contract requirements. The Owner will pay ESCO in accordance with the
Florida Prompt Payment Act, Florida Statues Section 218.735. ESCO shall not
be entitled to payment unless and until it submits to the Owner invoices with
supporting documentation acceptable to the Monroe County Clerk of Court, of
which may include partial and final releases and waivers of lien; releases and
waivers of lien from all contractors and subcontractors of ESCO and of any and
all parties required by the owner. Acceptability to the Clerk is based on
generally accepted accounting principles and such laws, rules and regulations as
may govern the Clerk's disbursal of funds. The County designates the Clerk of
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Courts as its agent under the Local Government Prompt Payment Act, Florida
Statues Section 218.735. Any amount unpaid 30 days after the invoice date, is
subject to interest at the rate of 1% per month or the maximum rate allowed by
law on the unpaid balance. Owner agrees to pay any expenses incurred in
collecting unpaid balance including attorney's fees and costs. The Owner agrees
to pay for EMAS blocks and installation materials, which are stored at or near
ESCO's Logan Township, NJ plant, provided ESCO furnishes the Owner with
evidence of quality and quantity of the EMAS blocks. Title and risk of loss
transfers at the time of invoicing. Price includes insurance policy, provided by
ESCO on behalf of the Owner, by adding the Owner as an additional insured on
such policy, against loss by damage to or disappearance of such blocks at any
time prior to successful shipment to the Key West International Airport.
6. Total price comprises 2010 (4' x 4') jet -blast -resistant (JBR) EMAS blocks
(EMAS arrestor bed size271' 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
$4,500.00 per month) or more than two weeks beyond target installation start in
the trailers onsite ($1,000.00 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 of
ESCO's installation support personnel.
9. WARRANTY & LIABILITY — NOTWITHSTANDING ANYTHING TO
THE CONTRARY HEREIN OR IN ANY OTHER DOCUMENT OR
AGREEMENT PERTAINING TO THE EMAS, ESCO IS NOT
PROVIDING ANY WARRANTY, INDEMNITY OR HOLD HARMLESS
TO ANY PARTY EXCEPT AS SPECIFICALLY PROVIDED IN ESCO'S
STANDARD LIMITED WARRANTY, WHICH IS
ATTACHEDHERETO. 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.
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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 either 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. and a 5 day work week.
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).
16. Purchase Orders. No provision of any Owner issued purchase order or other
Owner document shall alter or add to this Agreement.
WITNESS:
By�` .�
Title: n � .c-Q. CTCB'�
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
ENGINEERED ARRESTING
SYSTEMS CORPORATION
By:
G. Kent o so
President - Logan
E
FEAR
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Date Z 3�%
Exhibit 1— Federal 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.
Exhibit 3 — ESCO's Standard Limited Warranty
Exhibit 4 — Monroe County required contract clauses
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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, material men 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.
0
Product Countr of Origin
Application
Incorporate into all construction and equipment procurements. 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 U.S.C. Chapter 501
AIP 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
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Sponsor or the Federal Aviation Administration (FAA) to be pertinent to ascertain compliance
with such Regulations, orders, 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 15015100-15
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
12
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 AIP
Reference
Airport and Airway Improvement Act of 1982, Section 520
Title 49 47123
AC 150/5100-15, Para. 10.c.
DISADVANTAGED 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
W
Reference
49 CFR Part 20, Appendix A
ACCESS TO RECORDS AND REPORTS
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 AIP funds
Reference
49 CFR Part 18.36(i)
FAA Order 5100.38
ENERGY CONSERVATION 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.
-10-
Application
The FAA does not prescribe the exact language to be incorporated. The above clause represents
sample 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.
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 AIP 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
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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.
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 AIR
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 AIP program.
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Reference
Title 49 U.S.C. 47112(c)
Advisory Circular 150/5100-6d
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.
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 AIP 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
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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 AIR 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:
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 (EPA) List of Violating
Facilities;
b. To comply with all the requirements of Section 114 of the Clean Air Act, as amended, 42
U.S.C. 1857 et seq. and Section 308 of the Federal Water Pollution Control Act, as amended, 33
U.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 EPA indicating that a facility
to be used for the performance of or benefit from the contract is under consideration to be listed
on the EPA 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
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CUSTOMER INFORMATION
Customer Name M u/J 2 6 r COO a n y
Corporate/Headquarters:
Street I( ()D S +,^10,j ; bnJ S► 2 F E r
City, State, Zip k E Y IA/F- S T, C L.--3 3yLl L)
Telephone Number r-3 0S� 7 9 2- - Li H Li 1
Fax Number 3 d 5 2- y 5 y LI
Main Contact
Name O r i A� C' IL A L j
Telephone Number (30� L1 d 9 - 572 G 0
Email Address & C' Q A '-J — C L)O J T`!-- rL - G d J
Delivery Information
Delivery Location:
Street -�qqL( S0. 2o6SFL)Fl-T 6 L✓Q,
City, State, Zip j< E LAJ FL . 3 3 (\�, Liy
Telephone Number _ 5 Iy I- 5 2 O c)
Contact at Delivery Location c' /1 0,--- C 2 '
Invoice Recipient
Contact Name t) J IZ:a OF_ L 6.4 C" - H G R i L 6
Street 3 9 Q1 S C). f� yUSF_ j F_ LT & e- J Q.
City, State, Zip IG �_ �j %,J (- S r, F L . 3 3 ` r
Telephone Number L3 0-6� i' o i- 52 0 b
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EXHIBIT 2
INSURANCE
ESCO shall carry and maintain at least the minimum insurance as specified below until
completion and acceptance of the work.
INSURANCE REQUIREMENTS FOR
ESCO
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.
The acceptance and/or approval of ESCOs insurance shall not be construed as relieving
ESCO from any liability or obligation assumed under this contract or imposed by law.
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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.
PROPERTYBUILDER'S RISKANSTALLATION 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 EMAS 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 Lightning Vandalism
Sprinkler Leakage Sinkhole Collapse Falling Objects
Windstorm Smoke Explosion
Civil Commotion Aircraft and Vehicle Damage 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
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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 LIABILITYINSURANCE
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.
EXHIBIT 3
ENGINEERED ARRESTING SYSTEMS CORPORATION
ENGINEERED MATERIAL ARRESTING SYSTEM LIMITED WARRANTY
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:
1. 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".
2. 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.
3. INSTALLATION: The installer must have successfully completed a training
session conducted by ESCO during the initial phase of the installation. Installation must
be 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
with ESCO's specifications and approved project drawings and submittals.
4. 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, 2239 High Hill Road, Logan Township, NJ
08085, 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
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Owner shall give ESCO reasonable access to the EMAS that allows ESCO to perform its
warranty obligations on its most cost-effective basis possible.
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. Standing water in and around the EMAS bed,
2. Vehicular traffic,
3. Aircraft traffic in contact with the EMAS bed,
4. Damage caused by snow removal equipment that does not meet ESCO
specifications detailed under the clause "Applicable Documents",
5. 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,
6. Damage caused by wild life indigenous to the installation location,
7. 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",
8. Excessive build up of debris in and around the EMAS bed,
9. Impact or contact with other objects, spilled liquids or immersion in liquids
(including fuel dropped from over -flying aircraft),
10. Use of the EMAS for purposes other than those for which it is customarily used,
11. Improper maintenance, abuse or other neglect,
12. Exposure to chemicals other than de-icers and aircraft engine exhaust,
13. Jet Blast in excess of 100 mph, and
14. 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.
15. 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.
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16. Any subsequent failure of the base surface whether or not originally constructed
per the drawings and specifications.
APPLICABLE DOCUMENTS
Project Installation Drawing No.
Item P-555 Rev EMAS Bed Installation by Prime Contractor
EMAS Quality Control plan for EMAS installation at XXXX Airport, with associated
Quality Control Instructions.
SM- , Inspection, Maintenance and Repair Manual
Contract number
WARRANTY EXCLUSIVE/LIMITATION 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 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 for
the Logan Business Unit. No representative, employee, or agent of ESCO, or any person,
other than ESCO's President for the Logan Business Unit, 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:
Contract Administrator
Engineered Arresting Systems Corporation
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2239 High Hill Road
Logan Township, NJ 08085
Phone (856) 241-8620
Fax (856) 241-8621
Name (Please P int) of Authorized Airport Individual: / d
Signature: Date: �6LV
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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) Governing Law, Venue, Interpretation. 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) Attorney'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.
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5) Binding 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.
6) Authority. 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) Adjudication of Disputes or Disagreements. 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 patient records; 8) Title VIII of the
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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 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/Payment. 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. Pursuant to Florida Statute §119.0701, Contractor and its
subcontractors shall comply with all public records laws of the State of Florida, including
but not limited to:
(a) Keep and maintain public records that ordinarily and necessarily would be required
by Monroe County in the performance of this Agreement.
(b) Provide the public with access to public records on the same terms and conditions
that Monroe County would provide the records and at a cost that does not exceed the cost
provided in Florida Statutes, Chapter 119 or as otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law.
(d) Meet all requirements for retaining public records and transfer, at no cost, to
Monroe County all public records in possession of the contractor upon termination of this
Agreement and destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. All records stored electronically
must be provided to Monroe County in a format that is compatible with the information
technology systems of Monroe County.
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15) Non -Waiver of Immunity. 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) Privileges 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) Legal Obligations 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 by 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 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 Liability. 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.
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22) Section Headings. 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 negligent acts or willful misconduct of ESCO or any of its employees, agents,
contractors or other invitees on the Airport during the term of this Agreement, or (B)
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 Agreement, this section will survive the expiration of the
term of this lease or any earlier termination of this Agreement.
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