Item V4 V.4
G BOARD OF COUNTY COMMISSIONERS
County of Monroe Mayor Sylvia Murphy,District 5
The Florida Keys l'U � � Mayor Pro Tern Danny Kolhage,District 1
�pw° Michelle Coldiron,District 2
Heather Carruthers,District 3
David Rice,District 4
County Commission Meeting
November 20, 2019
Agenda Item Number: V.4
Agenda Item Summary #6288
BULK ITEM: Yes DEPARTMENT: Airports
TIME APPROXIMATE: STAFF CONTACT: Richard Strickland (305) 809-5200
No
AGENDA ITEM WORDING: Approval to waive purchasing policies and enter into a contract
with sole source vendor Engineered Arresting Systems Corporation d/b/a Safran Aerosystems in the
amount of$337,252.00 to repair damage to the Runway 9 EMAS bed at the Key West International
Airport. The project will be funded by FAA Grant 37-58 (90%) and Airport Operating Fund 404
(10%).
ITEM BACKGROUND: The EMAS system is comprised of EMAS blocks and seam seal tape.
The seam seal protects the EMAS material from water intrusion which is detrimental to the EMAS
material, causing deterioration over time and decreasing its arresting performance.
PREVIOUS RELEVANT BOCC ACTION:
Ratification of FAA Grant agreement 43-12-0037-58-2019 on July 17, 2019.
CONTRACT/AGREEMENT CHANGES:
New agreement
STAFF RECOMMENDATION: Approval
DOCUMENTATION:
KWIA ESCO EMAS Repair Contract(legal stamped)
FINANCIAL IMPACT:
Effective Date: Upon Notice to Proceed (NTP)
Expiration Date: 16 weeks after NTP
Total Dollar Value of Contract: $337,252.00
Total Cost to County: 0.00
Current Year Portion: N/A
Packet Pg. 3072
V.4
Budgeted: YES
Source of Funds: FAA Grant 37-58 & Airport Operating Fund 404
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: No If yes, amount:
Grant: FAA Grant 37-58
County Match: Fund 404
Insurance Required: Yes
Additional Details:
REVIEWED BY:
Richard Strickland Completed 11/13/2019 11:49 AM
Budget and Finance Completed 11/13/2019 12:22 PM
Maria Slavik Completed 11/13/2019 1:21 PM
Patricia Eables Completed 11/13/2019 3:01 PM
Kathy Peters Completed 11/13/2019 3:03 PM
Board of County Commissioners Pending 11/20/2019 9:00 AM
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MONROE COUNTY
Key West International Airport
EMAS REPAIR RUNWAY 27
Date: October 2019
Engineered Arresting Systems Corporation (ESCO)
2239 High Hill Road
Logan Township,NJ 08085
ESCO will provide materials, supervision, contractor labor, handling and on-site support services
as stated and identified in the ESCO proposal to Key West International Airport (KWIA) dated (n
October 9, 2019 and attached as Exhibit 1. 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 performance of its work to the satisfaction of Monroe County (Owner).
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Total Price $337,252.00 U)
ESCO shall provide:
1. 11 EMAS blocks. Price for this item $33,000.00 0
2. Shipping: ESCO to ship blocks to the Airport. Price for this item $20,236.00
3. Installation (Materials, Supervision, Contractor Labor and Handling)
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Price for this item $284,016.00 0
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4. 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. All purchase orders shall be in written or electronic
form, bear the Contract number(if any) and comply with all other contract requirements. The E
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 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
I Packet Pg. 3074
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.
5. Total price comprises replacement of 11 (4' x 4')jet-blast-resistant (JBR) EMAS blocks
and associated installation.
6. Notice to proceed (NTP) is granted upon full execution of this contract.
7. 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
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to ESCO.
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8. WARRANTY & LIABILITY -- See Exhibit 1
9. 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.
10. Airport work hours available from 10 PM to 6 A . and a 5-day work week. W
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11. Monroe County contract clauses are attached hereto as Exhibit 3 and shall be incorporated W
as if fully restated herein.
11. ESCO shall provide insurance as required on the attached sheet prior to beginning delivery
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of materials (Exhibit 2).
12. Purchase Orders. No provision of any Owner issued purchase order or other Owner
document shall alter or add to this Agreement.
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V.4.a
IN WITNESS WHEREOF the parties hereto have executed this agreement on the day
and date first above written in two ( ) counterparts, each of which shall, without proof or
accounting for the other counterpart, be deemed an original contract.
(SEAL) BOARD OF COUNTY COMMISSIONERS
ATTEST: KEVIN MADOK, CLERK OF MONROE COUNTY, FLORIDA
I
Deputy Clerk ................................ ........................................................................ ...�. .m .®
Mayor/Chairperson
ENGINEERED T
WITNESS: SYSTEMS CORPORATION
Craig Scott
Title: President
�s
Exhibit I - ESCO proposal to Key West International Airport ( IA) dated October 9, 209
Exhibit 2 . INSURANCE
Exhibit 3 - Monroe County required contract clauses
�s
ON OE COUNTY ATTORNEYIS OFFICE
PROV AST F RI
PATRICIA EABLES
ASSISTANT COUNTY ATTORNEY
DATE:
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EXHIBIT
Al SYSTEMS
October 9,2019
Key West International Airport
3491 S.Roosevelt Blvd.
Key West,FL 33040
Attention Mr.Tyler Bethel
Subjecta Proposal 14208 to provide 11 EMASMAX Necks and Seam Seat materials for EMAS system on the EYW Runway 9 Departure
End
Reference;Proposal for EMAS Seam Seal Retrofit and repair of 11 blocks for EIVIAS system on the EYW Runway 9 Departure End
Dear Tyler;
Engineered Arresting Systems Corporation d/b/a Safran Aerosystems would like to offer the following turn-key option for your
consideration:A proposal for the seam seal removal from rows 20-55,installing self�aclhesive tape for rows 3-55,replacing side coating
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for rows 20.55 only as well as replacing of eleven(11)damaged Vticks on the 9 Departure end EMAS bed at EYW.
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The block replacement process will consist of the cleaning of the replacement locations and replacing with new blocks.Once the new
blocks have been replaced,the block joints will be sealed.
Pricing includes EMASMAX'r,Installation materials,Contract labor,Contractor equipment,Safran supervision and shipping are included 0
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in the quote.It is understood that Safran will be onsite until project completion to ensure adherence to Safran installation&dance and
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in order to certify and warranty all work. Safran is supplying the following proposal for the EMAS repalr:
® Eleven(11)EMASMAXI blocks-S33o000,00
® Installation(Materials,Contractor Labor and Supervision)-$284,016 00
• Shipping and handling costs to deliver the material to the airport $20,236 00 W
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Price for Seam Seal/Side Coating Retrofit&Eleven(11)block replacement-$337,252.00 (n
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Note
Safran will require sixteen(16)weeks from receipt of a Notice to Proceed(NTP)/Purchase Order(PO)to have the manpower and
materials ready to make the repair.
Please provide arrival address,name and telephone number for onsite point of contact and any airport specific operating Instructions.
We thank you for the opportunity to provide this proposal,and look forward to working with you on this project
Sincerely,
Mike C.Barnes,C.M.
Regional Director
Ph:(856)491-6315
Email:ngiii!kEeg.,bnai[ggsIdDzo�d�acaeiro�e,MM—
Sah airi AD11"05�yStUIP"S
Zodiac Arresiiing IS ys�erns tG90494-8000
2550 Ma kPISh'iedM Asiirxru F"A 19014 wow sifrain,.aernsystems,cocn
I Packet Pg. 3077
Terms&Conditions-
> This proposal is quoted firm-fixed price and valid for a period of thirty(30)days from proposal submittal date.
Payment terms:
> When drafting the purchase order(PO)for the repair,the following statement needs to be added to the PO:"Terms&conditions
stated In the Engineered Arresting Systems Corporation d/b/a Safran Aerasystems proposal dated October 9,2019 for the amount of
$337,252,00 shall supersede and replace the terms and conditions on a Key West International Airport purchase order
When arranging payment for this project,please utilize the following methods for providing funding:
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Wire Transfer: Mailing Address,
ABA#121000248 Safran Arresting Systems
Swift Code:WFBIUS65 2550 Market Street E
Account:2000002441319 Aston PA,19014
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420 Montgomery Street Attention:Mike Smith
San Francisco,CA 94104
No sales,use,or other taxes are included in above price. Any such taxes,if applicable,must be paid by the airport directly to the
taxing authority.Pricing does not include any bond fees.
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> Continuous Week Night Work(11'30 pm to am);any weekend work will be charged @$21,525 per shift shifts("call offs`,less
than 8 hour continuous shifts,shortened shifts,declined access or work night cancellations will incur additional charges).Please note
that the airport is respians9ble to provide access and escorting for all courses of action.Badging costs are not included,Airport is 91
responsible for escorting our personnel and our contractors Escorts provided by the airport;no bridging required.
The airport as chosen to replace the current seam seal from rows 20 to 55 with Eternaband Seam Seal and not In-Gap as
recommended.
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Airport will receive the tra'Jer of blocks and materials and provide staging location near the EMAS bed to be repaired;trailer will
arrive approximately one day before the start of the repair.Contractor will transport blocks/and materials from staging area to EMAS
bed Airport is to receive blocks and materials prior to the start of the repair(forklifts needed by the airport).Airport Is responsible to W
maintain security,provide flagmen and provide hghted X's(if required), Airport to provide a storage and staging area on asphalt or
concrete pavement at airport close to the EMAS
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The airport shall provide space at the airport for block storage and staging(to park trucks,stage blocks)at no cost to Safran. 0
Extended storage fees(TBD)could apply It installations are delayed from target Installation dates(TBD-mutually agreed upon E
between Safran and the airport).
Safran will provide a 90 day limited commercial warranty against defects in materials and workmanship provided Safran supervises
the repair and the process is completed in accordance with Safran standards(as validated and accepted by Safran representatives
upon completion of the repair),Safran will not accept ANY liability,Indemnity,consequential or Incidental damages or warranty other
than as stated in the Safran warranty. Seethe attached warranty for details.
The materials provided are in accordance with FAA Advisory Circular 150/5220 22&
AL"POSYSTIFF-115,
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SAFFpart RAIN
ENGINEERED ARRESTING SYSTEMS CORPORATION D/B/A SAFRAN AEROSYSTEMS
ENGINEERED MATERIAL ARRESTING SYSTEM LIMITED WARRANTY
ENGINEERED ARRESTING SYSTEMS CORPORATION d/b/a SAFRAN AEROSYSTEMS warrants to the original purchaser(the
"Owner") of the Safran Engineered Material Arresting System replacement materials ("EMAS Replacement Materials")
that, for a period of ninety days (90) from the date the EMAS Replacement Materials are installed, and subject to the CL
limitations stated herein, the EMAS Replacement Materials (excludes base surface preparation) shall conform to the
product specifications contained in the documents previously provided by Safran with the initial installation of the EMAS,
This Warranty is expressly conditioned on the Owner's satisfying all of the following requirements:
MAINTENANCE: Safran requires that the Owner initiate and follow a preventative main tena nce_program in accordance
with the Safran Inspection,Maintenance and Repair Manual listed under the clause"Applicable Documents".
RIGHT OF INSPECTION. The owner shall provide Safran with reasonable access to the EMAS Replacement Materials CL
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after their installation for the purpose of conducting inspections if necessary. Reasonable access shall include, M
without limitation,access during daylight hours to permit careful visual assessment of the condition of the EMAS U)
Replacement Materials and access to all records of maintenance carried out by the owner. CD
NOTIFICATION: If the Owner believes that it has a claim arising from the failure of the EMAS Replacement Materials to
conform with this Warranty,the Owner must notify Safran 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 0
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,Safran 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)a refund of the price of the <
non-conforming EMAS Replacement Material(s)at its own cost within a reasonable time after receiving notice of the 2
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breach.The Owner shall give Safran reasonable access to the EMAS that allows Safran to perform its warranty obligations 0
on its most cost-effective basis possible.
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EXCLUSIONS <
Safran shall not be liable for any damage to the EMAS Replacement Materials 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 Safran specifications detailed under the clause
"Applicable Documents"which were provided with the original EMAS installation;
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,
AEROSYSTEMS
Packet Pg. 3079
SAFRAN
7. Repairs or alterations of the EMAS,unless performed by personnel trained and qualified by Safran and in a manner
meeting the Safran specifications and procedures listed under the clause "Applicable Documents", which were
provided with the initial EMAS installation;
8. Excessive buildup 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;
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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; W
14. Damage or defect due to faulty or improper workmanship, including installation of the product that is not in
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accordance with Safran's published specifications and installation recommendations in effect at the time of 0
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installation; E
15. Damage to the EMAS Replacement Materials related to or caused by the base surface not being constructed per the U)
drawings and specifications. Safran must check and accept the base surface prior to the start of EMAS arrestor bed CD
installation;and
16. Any subsequent failure of the base surface whether or not originally constructed per the drawings and
specifications.
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APPLICABLE DOCUMENTS L)
Project Installation Drawings
Item P-555 EMAS Bed Installation by Prime Contractor CL
EMAS Quality Control plan for EMAS installation at the Airport,with associated Quality Control Instructions.
Inspection,Maintenance and Repair Manual,Current Version
WARRANTY EXCLUSIVE/LIMITATION OF LIABILITY W
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THE EXPRESS WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND NO OTHER WARRANTIES OF ANY KIND, HER
STATUTORY, ORAL, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
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FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY. THE OWNER'S EXCLUSIVE REMEDIES AND SAFRAN'S ONLY
OBLIGATIONS ARISING OUT DF OR IN CONNECTION WITH DEFECTS OR NON-CONFORMITIES IN THE EMAS
REPLACEMENT MATERIALS, 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, ZASA'S TOTAL LIABILITY TO THE OWNER ARISING FROM OR RELATING TO DEFECTS OR NOW
CONFORMITIES IN THEE REPLACEMENT MATERIALS SHALL BE LIMITED TO THE ORIGINAL PURCHASE PRICE OF THE
EMAS REPLACEMENT MATERIALS PAID TO SAFRAN. SAFRAN SHALL HAVE NO LIABILITY TO THE OWNER FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES. REGARDLESS OF ANY STATUTORY LIMITATION PERIODS, SAFRAN 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 Safran's President for the Logan Business Unit. No
representative, employee, or agent of Safran, or any person, other than the President for the Logan Business Unit of
AEROSYSTEMS
Packet Pg. 3080
Safran® has the authority to assume for Safran any additional liability or responsibility in connection with the EMAS or this
Warranty.
To ensure registration of this Warranty,please return a signed copy toy
Manager,Quality Assurance
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Engineered Arresting Systems Corporation
2550 Market Street
Aston, PA 19014
Phone(610)494-8000 Ext.2115
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Name(Please Print)of Authorized Airport Individual; ....... 91
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Signature Date: U)
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ACROSMEMS
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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. (n
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.
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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
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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
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extensions specified in any attached schedules. Failure to comply with this provision may result 0
in the immediate suspension of all work until the required insurance has been reinstated or W
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. E
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.
Packet Pg. 3082
V.4.a
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.
The Monroe County Board of County Commissioners its employees and officials will be
included as "Additional Insured" on all policies except for Workers' Compensation.
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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 SK/INSALLAIN 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:
a�
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
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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 E
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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 I Tired Vehicles
The minimum limits acceptable shall be:
$1,000,000 Combined Single Limit (CSL) irs
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WORKERS COMPENSATION AND EMPLOYER S LIABILITYINSURANCE W
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.
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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.
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EXHIBIT 3
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 (n
pursuant to See. 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 E
State of Florida applicable to contracts made and to be performed entirely in the State. U)
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 0
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
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application thereof to any circumstance or person) shall be declared invalid or unenforceable to 0
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any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and (n
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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 E
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, inN estigative, and out-of-pocket expenses in
appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement
I Packet Pg. 3085
V.4.a
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) 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.
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) 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 U
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 a
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 VII of the Civil Rights Act of
1964 (PL 88-352) which prohibits discrimination in employment on the basis of race, color,
religion, sex, and national origin; 2) Title IX of the Education Amendment of 1972, as amended
Packet Pg. 3086
(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 Vill of the Civil Rights Act of 1968(42 USC s. 3601 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. 12101 Note), as maybe amended from time to time, relating to
nondiscrimination in employment on the basis of disability; 10) Monroe County Code Chapter
14, Article II, which prohibits discrimination on the basis of race, color, sex, religion, national
origin, ancestry, sexual orientation, gender identity or expression, familial status or age; and 11) E
Any other nondiscrimination provisions in any Federal or state statutes which may apply to the
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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
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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 W
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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 W
public position, conflicting employment or contractual relationship; and disclosure or use of
certain information.
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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.
Packet Pg. 3087
14) Public Records Compliance. ESCO must comply with Florida public records laws,
including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the
Constitution of Florida. The County and ESCO shall allow and permit reasonable access to, and
inspection of, all documents, records, papers, letters or other "public record" 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 contract and related to contract
performance. The County shall have the right to unilaterally cancel this contract upon violation of
this provision by ESCO. Failure of ESCO to abide by the terms of this provision shall be deemed
a material breach of this contract and the County may enforce the terms of this provision in the
form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all
attorney's fees and costs associated with that proceeding. This provision shall survive any
termination or expiration of the contract.
ESCO is encouraged to consult with its advisors about Florida Public Records Law in order to
comply with this provision. :a
Pursuant to F.S. 119.0701 and the terms and conditions of this contract, ESCO is required to:
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(1) Keep and maintain public records that would be required by the County to perform the
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service. '@
(2) Upon receipt from the County's custodian of records, provide the County with a copy of
the requested records or allow the records to be inspected or copied within a reasonable time at a
cost that does not exceed the cost provided in this chapter or as otherwise provided by law.
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(3) Ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed except as authorized by law for the duration of the
contract term and following completion of the contract if the contractor does not transfer the
records to the County.
(4) Upon completion of the contract, transfer, at no cost, to the County all public records in W
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possession of ESCO or keep and maintain public records that would be required by the County to U
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perform the service. If ESCO transfers all public records to the County upon completion of the W
contract, ESCO shall destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. If ESCO keeps and maintains public records
upon completion of the contract, ESCO shall meet all applicable requirements for retaining public
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records. All records stored electronically must be provided to the County, upon request from the
County's custodian of records, in a format that is compatible with the information technology
systems of the County.
(5) A request to inspect or copy public records relating to a County contract must be made
directly to the County, but if the County does not possess the requested records, the County shall
immediately notify ESCO of the request, and ESCO must provide the records to the County or
allow the records to be inspected or copied within a reasonable time.
Packet Pg. 3088
V.4.a
If the Contractor does not comply with the County's request for records,. the County shall enforce
the public records contract provisions in accordance with the contract, notwithstanding the
County's option and right to unilaterally cancel this contract upon violation of this, provision by
the Contractor. A Contractor who fails to provide the public records to the County or pursuant to
a valid public records request within a reasonable time may be subject to penalties under Section
11 .10, Florida Statutes.
ESCO shall not transfer custody„ release, alter, destroy or otherwise dispose of any public records
unless or otherwise provided in this provision or as otherwise provided by law.
IF ESCO HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, �
FLORIDA STATUTES,TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TOT IS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS,
BRIAN BRADLEY, AT (305) 292-3470, BRADLEY-11RIAlyaMONItOECOUNTY-
L.GOV, MONROE COUNTY ATTORNEY'S OFFICE, 1111 12111 STRE ET, SUITE 408,
KEY WEST, FL 33040. E
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15) Non-Waiver of Immunity. Notwithstanding he provisions of Sec. 76 .2 , 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.
6) 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.
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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.
Packet Pg. 3089
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 E
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
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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 Headings. Section headings have been inserted in this Agreement as a matter of W
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convenience of reference only, and it is agreed that such section headings are not a part of this U
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Agreement and will not be used in the interpretation of any provision of this Agreement. W
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.
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24) Indemnification) old 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'
I Packet Pg. 3090
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 W
earlier termination of this Agreement. In no event shall liability exceed the value of the contract.
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Packet Pg. 3091