A meeting of the Manatee County Port Authority will be held Thursday, June 15, 2023, at 9:00 am, or as soon thereafter as is practicable, in the third-floor meeting room of the Port Manatee Intermodal Center, 1905 Intermodal Circle, Palmetto, FL 34221, located at the intersection of South Dock Street and Reeder Road at SeaPort Manatee.

Anyone wishing to attend this meeting who does not have an appropriate SeaPort Manatee identification badge may enter SeaPort Manatee by the north or south gate by displaying photo identification, generally a driver’s license.

MANATEE COUNTY PORT AUTHORITY AGENDA

June 15, 2023

9:00 a.m.

The Manatee County Port Authority may take action on any matter during this meeting, including those items set forth within this agenda. The chairperson, at the option of the chairperson, may take business out of order if the chairperson determines that such a change in the agenda’s schedule will expedite the business of the Port Authority.

CALL TO ORDER

Invocation – Chaplain Jeff Holton, Anchor House Pledge of Allegiance

Audience Introduction

1. Presentation – Captain Michael P. Kahle, U.S. Coast Guard Sector St. Petersburg

   
   

2. Presentation – Christopher Hayes, U.S. Customs and Border Protection

   
   

3. Consent Agenda

Public Comments

Executive Director Comments Commissioner Comments

According to Section 286.0105, Florida Statutes, any person desiring to appeal any decision made by the Port Authority with respect to any matter considered at this meeting will need a record of the proceedings, and for such purpose may need to ensure that a verbatim record of the proceedings is made, which includes the testimony and evidence upon which the appeal is to be based.

George Kruse, Chairman

James Satcher 1st Vice-Chairman; Jason Bearden 2nd Vice Chairman

Mike Rahn 3rd Vice-Chairman; Amanda Ballard, Member; Vanessa Baugh, Member; Kevin Van Ostenbridge, Member

AGENDA ITEM 1.: PRESENTATION – CAPTAIN MICHAEL P. KAHLE,

U.S. COAST GUARD SECTOR ST. PETERSBURG BACKGROUND:

As Sector Commander, Captain Kahle serves as Captain of the Port, Officer in Charge of Marine Inspection, Search and Rescue Mission Coordinator, Federal On-Scene Coordinator and Federal Maritime Security Coordinator while directing Coast Guard operations along the West Coast of Florida and throughout the Tampa Bay region. Sector St. Petersburg is comprised of 2,700 Active Duty, Reserve, Civilian, and Auxiliary personnel, as well as 12 multi-mission units, including five boat stations, six cutters, and an Aids to Navigation Team.

Previously, Captain Kahle served as a Secretary of Defense Executive Fellow, where he directly engaged with senior executives across leading U.S. companies to identify organizational best practices and foster collaboration between industry and the DoD/DHS.

Captain Kahle’s operational assignments include Response Department Head and Deputy Sector Commander at Sector Juneau, AK; Commanding Officer of Coast Guard Station Monterey, CA; Deployable Team Leader and Dive Officer at Maritime Safety and Security Team Boston, MA, and Communications Officer and Search and Rescue Coordinator at Sector Southeastern New England (formerly, Group Woods Hole, MA).

He also served in staff assignments as CAG Director to the Vice Commandant of the Coast Guard; Performance Analysis Division Chief for the Coast Guard’s Office of Performance Management and Assessment, and the Chief of Officer Promotions for the Personnel Service Center’s Officer Personnel Management Division.

Captain Kahle is a 2000 graduate of the United States Coast Guard Officer Candidate School in New London, CT. He also holds a Bachelor of Science in Biological Sciences

from the University of California, Santa Barbara, and a Master of Arts in Public Administration from The George Washington University.

He is married to Alicia Kahle and they have three children, Madison, Ryan, and Connor.

AGENDA ITEM 2.: PRESENTATION – CHRISTOPHER HAYES, U.S.

CUSTOMS AND BORDER PROTECTION BACKGROUND:

Christopher Hayes has served at the Area Port of Tampa since September 2021 and is currently Acting Chief for Tactical Operations. Prior to serving as Acting Chief, Mr. Hayes served as a Supervisory CBP Officer providing leadership to the Trade Team and the Anti-Terrorism Contraband Enforcement Team (ATCET).

SCBPO Hayes began his federal career at the Port of NY/Newark in 2008. He served on A- TCET, Non-Intrusive Inspections (NII) and Passenger Operations in both the air and sea environments. Hayes also served as the port’s assistant Emergency Medical Services coordinator and was instrumental in implementing enhanced screening procedures for travelers from Ebola Affected Countries in 2014-2015.

In April 2015, Hayes accepted a position in Preclearance - Dublin, Ireland. As a CBP Officer in Dublin, Hayes served as an acting Supervisory CBPO (SCBPO), scheduling officer, member of the port’s Emergency Response Group, the U.S. Embassy Intra- Agency Housing Board and as the CBP representative to the Dublin Airport Law Enforcement Committee.

After departing Dublin in 2017, Hayes was promoted to Supervisory CBP Officer at the Port of Savannah where he supervised NII, Scheduling & Training, Passenger/Crew Operations and served as Chief of Staff. SCBPO Hayes served as the port’s lead representative for the construction of a Federal Inspection Station at Savannah / Hilton Head International Airport and lead a pilot program utilizing facial recognition technology to process cargo ship crewmembers.

Prior to joining CBP, Hayes worked an Emergency Medical Technician for Lutheran Medical Center within the New York City Emergency Medical Services system and has served as an instructor for CBP’s Emergency Medical Technician training program in Summit Point, WV.

SCBPO Hayes attended Muhlenberg College in Allentown, PA and is married with one son.

June 15, 2023

1. CONSENT AGENDA

   
   

   1. Warrant List

      
      

   2. Minutes – May 23, 2023

      
      

   3. Budget Resolution

      
      

   4. Asset Deletion

      
      

   5. Ratify/Affirm Orion Contract for Dredging

      
      

   6. RS&H Additional Design Analysis for the Hopper at Berth 6

      
      

   7. Agreement with Saab Technologies Ltd. Inc. for a Management Information System

RECOMMENDATION:

Move to approve the Consent Agenda incorporating the language as stated in the recommended motions on the cover sheets for the Consent Agenda items.

Total warrants (checks) for period reported 1,408,161.87

MANATEE COUNTY PORT AUTHORITY REGULAR MEETING

COUNTY ADMINISTRATION CENTER, HONORABLE PATRICIA M. GLASS CHAMBERS

1112 Manatee Avenue West Bradenton, Florida

May 23, 2023

https://www.youtube.com/channel/UC4KFtzaC9Z87D5mn_SKKtBA

Present were:

George W. Kruse, Chairman

James A. Satcher III, First Vice-Chairman Jason Bearden, Second Vice-Chairman Mike Rahn, Third Vice-Chairman Vanessa Baugh

Amanda Ballard

Kevin Van Ostenbridge

Also present were:

Carlos Buqueras, Executive Director Jennifer R. Cowan, Port Authority Attorney

Danielle Heaton, Accounting, Clerk of the Circuit Court Robin Toth, Deputy Clerk, Clerk of the Circuit Court

Chairman Kruse called the meeting to order at 9:22 a.m.

AGENDA PA20230523DOC001

PUBLIC COMMENTS

Glen Gibellina displayed photographs of various Ports in the United States that use renewable solar energy. He asked the Chairman to direct the Port to research renewable solar energy at Port Manatee.

There being no further public comment, Chairman Kruse closed public comment.

Discussion ensued regarding whether this is a feasible operation going forward, Florida Power and Light (FPL) currently operates hundreds of acres of solar panel fields, the FPL Power Plant in Parrish is operating with a solar panel field, there is a community in Lakewood Ranch that is in the process of installing their own solar field and the community will be powered from that solar field, there are energy efficient homes in Hunter’s Point residential neighborhood that operate off the grid and are totally sufficient off of solar, and it is not common to look at solar energy models around the United States. PA20230523DOC002

1. CONSENT AGENDA PA20230523DOC003

   No Items were pulled from the Consent Agenda.

   There being no public comment, Chairman Kruse closed public comment.

   
   

   A motion was made by Member Rahn, seconded by Member Ballard and carried 7-0, to approve the Consent Agenda, incorporating the language as stated in the recommended motions on the cover sheets for the Consent Agenda.

   
   

   1. WARRANT LIST

      Accepted the Warrant Listing from April 12, 2023, to May 9, 2023 PA20230523DOC004

   2. MINUTES

      Approved the Minutes of April 25, 2023

   3. BUDGET AMENDMENT

      Adopted Budget Resolution PA-23-17, budgeting $200,000 of Port cash for maintenance dredging of Berths 4, 5, 6, 7, 8, 9 and 10 within 25 feet of the berth wall (Cost savings are realized by piggybacking off the U.S. Army Corps of Engineer’s maintenance dredge of the channel); and transfers $16,646 from the budget of the Port Security Camera System Upgrade (Operating) to the budget of the Port Security System Upgrade (Capital) PA20230523DOC005

   4. DELEGATION OF AUTHORITY TO EXECUTIVE DIRECTOR

      Adopted Resolution PA-23-16, granting limited and temporary delegation of authority to any approval or authorization, and the execution of contracts and other documents as may be reasonable and necessary, when there are more than 30 calendar days between regularly scheduled Authority meetings (rescinding and replacing any prior years’ resolution authorizing the same or similar authority) PA20230523DOC006

   5. WAREHOUSE 6 MODERNIZATION CHANGE ORDER 1

      Approved and executed Change Order 1 between Halfacre Construction Company and Manatee County Port Authority, amending the payment terms from ten (10) days to payment in accordance with the Florida Prompt Payment Act, Section 218.70-218.80 of Florida Statutes PA20230523DOC007

   6. MANBIRTEE KEY MEMORANDUM OF UNDERSTANDING

      Approved execution by David St. Pierre, SeaPort Manatee Director of Public Safety and Security, of Memorandum of Understanding (MOU) between the U.S. Coast Guard and SeaPort Manatee on the Manbirtee Key Zone Watch Program (established by MOU approved 12/20/07), updating the current Captain, points of contact, fees and other minor changes PA20230523DOC008

   7. WAREHOUSE 12 STORMWATER TREATMENT CAPACITY

      Ratified the National Stormwater Trust, Inc., Capacity Purchase Agreement (approved 6/4/21), and approved and authorized the Chairman to execute Schedule A No. 1, Purchase of Additional Capacity (additional .57 acres of stormwater capacity), for the Warehouse 12 Cargo Pad project, in the amount of $427,500, between National Stormwater Trust, Inc., and Manatee County Port Authority, subject to review and approval of Florida Department of Transportation (FDOT) PA20230523DOC009

   8. HOPPER AT BERTH 6 STRUCTURE DESIGN

      Executed Professional Services Authorization 23-04 to RS&H, Inc., in the amount of

      $29,292, to design a heavy motor structure on the ground for the hopper at Berth 6 (to support the heavy motor at the end of the discharge chute, which was not anticipated in the original concept plans) PA20230523DOC010

   9. PERIMETER FENCING CONTRACT AWARD

      1. Executed Contract for perimeter fencing in the amount of $1,227,292, between

         U.S. Fence and Gate Inc., and Manatee County Port Authority, subject to receipt of required bonds and insurance; authorized the Notice of Proceed to be issued for Phase I, subject to receipt of required bonds and insurance and authorize the Notice to Proceed to be issued for Phase II, so long as the Environmental Historic and Preservation approval by Federal Emergency Management Agency (FEMA) is obtained; and

      2. Executed Change Order 1 between U.S. Fence and Gate, Inc., and Manatee County Port Authority, decreasing the contract amount by $127,774, bringing the total for Phase I to $500,000 and Phase II to $599,488, for a new contract total of $1,099,488 PA20230523DOC011

(End Consent Agenda)

EXECUTIVE DIRECTOR COMMENTS

Carlos Buqueras, Executive Director, noted the June 15, 2023, Port Authority meeting is scheduled at 9:00 a.m., at Port Manatee. Several speakers are scheduled to make presentations related to security, customs, regulations, Coast Guard and the federal agencies that oversee the Port.

ADJOURN

There being no further business, Chairman Kruse adjourned the meeting at 9:32 a.m.

Minutes Approved:        

June 15, 2023

CONSENT

AGENDA ITEM 3.C: BUDGET RESOLUTION BACKGROUND:

This resolution budgets the following:

• 2022 Port Security Grant Program (PSGP) is funded $750,000 (or 75% of project costs) by Homeland Security and $250,000 of Port cash (25% of project costs) for a Cyber Security Information Management System.

• Decreases the budgets of various completed Port capital improvement projects and transfers to Port cash $47,659. Also, decreases $11,567 of the PSGP revenue and expense budgets to close out the Access Control System and Security Radios projects.

ATTACHMENT:

Budget Resolution PA-23-18.

COST AND FUNDING SOURCE:

Budgets $750,000 PSPG 2022 grant funding and $250,000 Port cash; transfers $47,659 back to port cash; decreases $11,567 of PSGP project budgets.

CONSEQUENCES IF DEFERRED:

Delay in budget allocations.

LEGAL COUNSEL REVIEW: N/A RECOMMENDATION:

Move to adopt Budget Resolution PA-23-18.

RESOLUTION PA-23-18 AMENDING THE ANNUAL BUDGET

FOR MANATEE COUNTY PORT AUTHORITY FOR FISCAL YEAR 2022-2023

WHEREAS, Sections 129.06 and 180.016, Florida Statutes, authorizes the Manatee County Port Authority to amend its budget for the current fiscal year as follows:

1. Appropriations for expenditures in any fund may be decreased and other appropriations in the same fund correspondingly increased, provided the total appropriations of the fund are not changed.

   
   

2. Appropriations from reserves may be made to increase the appropriation for any particular expense in the same fund, or to create an appropriation in the fund for any lawful purpose.

   
   

3. Unanticipated revenues, including increased receipts for enterprise or propriety funds, may be appropriated for their intended purpose, and may be transferred between funds to properly account for the unanticipated revenue.

NOW, THEREFORE, BE IT RESOLVED by the Manatee County Port Authority that the 2022-2023 budget is hereby amended in accordance with Section 129.06 and 180.016, Florida Statutes as described on the attached summary and specified in the budget adjustment batch files which are listed below:

ADOPTED with a quorum present and voting this the 15th day of June 2023.

ATTEST: ANGELINA M. COLONNESO MANATEE COUNTY PORT AUTHORITY

CLERK OF CIRCUIT COURT

By:                 

BUDGET AMENDMENT RESOLUTION NO. PA-23-18 AGENDA DATE: June 15, 2023

1. Fund: 2022 PSGP – 75%

   Fund: Port Cash – 25%

   
   

   Section: Cyber Security Information Management System

   
   

   Description: Budgets $750,000 PSGP grant funding and $250,000 Port cash for a Cyber Security Information Management System.

   
   

   Batch ID: BAAL061523A Reference: BU23000465

   
   

2. Fund: Port Capital Improvements Port Capital Grants

   
   

   Section: Drop Trailer Lot

   Warehouse 10 Roof Upgrade South Gate Expansion

   Access Control System Capital Security Radios Capital

   
   

   Description: Budgets a decrease of revenue and expense and transfers back to Port cash $47,659 to close out various completed projects. Also, the PSGP budgets are decreased $11,567 to close the Access Control and Security Radios projects.

   
   

   Batch ID: BAAL061523A Reference: BU23000467

   June 15, 2023

   
   

   CONSENT

   AGENDA ITEM 3.D: DELETION OF PORT ASSETS BACKGROUND:

   Several old, obsolete assets which are no longer in use and are uneconomical to upgrade or repair are considered surplus and should be removed from the Manatee County Port Authority Fixed Assets Listing. The surplus assets will be offered for public bid, auctioned, destroyed, and/or E-scrapped.

   
   

   ATTACHMENT:

   
   

   Asset Deletion - June 15, 2023

   
   

   COST AND FUNDING SOURCE:

   
   

   N/A.

   
   

   CONSEQUENCES IF DEFERRED:

   
   

   Delay in updating property records.

   
   

   LEGAL REVIEW: N/A

   
   

   RECOMMENDATION:

   
   

   Remove assets as listed on the attached Asset Deletion – June 15, 2023, from the Fixed Assets Listing.

   Asset Deletion - June 15, 2023

   
   

   
   

   Asset # Description

   Serial/VIN# Date

   Purchased

   
   

   Cost Value Status Remarks

   35876	1997 Ford F 250	1FTEF276XVNC53332	07/30/97	$ 16,896.60	$ -	Obsolete	Surplus/Scrap
   35877	1997 Ford F 250	1FTEF2767VNC99636	07/30/97	$ 16,896.60	$ -	Obsolete	Surplus/Scrap
   35878	1994 Ford F150	1FTEF2765VNC23879	07/30/97	$ 16,896.60	$ -	Obsolete	Surplus/Scrap
   47356	John Deer Tractor 5205	LV5205C523312	12/21/04	$ 15,484.03	$ -	Obsolete	Surplus/Scrap
   55426	Radio, Fluid Mesh	1100411275	09/01/11	$ 3,357.54	$ -	Obsolete	Surplus/Scrap
   55458	GPS Analytic Target Sensor	none	09/01/11	$ 50,420.57	$ -	Obsolete	Surplus/Scrap
   55461	GPS Automated PTZ Controler	none	09/01/11	$ 7,408.18	$ -	Obsolete	Surplus/Scrap
   56655	Camera, Bosch VG5, 724-ECE2	777640012	01/31/13	$ 2,333.87	$ -	Obsolete	Surplus/Scrap
   56707	UPS, TSI Outdoor	12120244	01/31/13	$ 5,208.92	$ -	Obsolete	Surplus/Scrap

   June 15, 2023

   
   

   CONSENT

   AGENDA ITEM 3.E: RATIFY &AFFIRM ORION MARINE

   CONSTRUCTION DREDGING

   
   

   BACKGROUND:

   
   

   Orion Marine Construction, Inc. (Orion) was engaged in dredging the harbor channel and Port inner harbor for the U.S. Army Corp of Engineers (Corp). To take advantage of Orion’s proximity to the Port, mobilization fee cost savings, and timing factor, Orion was contracted to complete mechanical clamshell dredging within 25 feet of the berth walls which the Corp does not perform. The initial contract was for $154,000 which is within the Executive Director’s approval threshold per Manatee County Port Authority Procurement Policy, Section 1.02 Authority. Orion estimated that the job would be completed within four days. Due to unanticipated delays, the job was completed in six days. The total fee was $217,000 and is submitted for Port Authority information.

   
   

   ATTACHMENT:

   
   

   Contract Agreement with Orion Marine Construction, Inc. Change Order

   
   

   COST AND FUNDING SOURCE:

   
   

   $217,000 of Port cash

   
   

   CONSEQUENCES IF DEFERRED:

   
   

   Delay in affirming the fees for dredging

   
   

   LEGAL COUNSEL REVIEW: Yes

   
   

   RECOMMENDATION:

   
   

   Move to ratify and affirm the fees paid to Orion Marine Construction Inc. for mechanical clamshell dredging within 25 feet of the Port’s berth walls in the amount of $217,000.

   SEAP6RT Manatee	MANATEE COUNTY PORT AUTHORITY Mail lnovice To: 300 TAMPA BAY WAY PALMETTO, FL 34221 SEND SEPARATE INVOICES FOR EACH SHIPMENT	PURCHASE PA005931 ORDER NO.: Page 1 of 1 PAGE: 05/30/23
   		ORDER DATE:NET 45
   		TERMS: ]:li,;;o,·l'WID'. SHIP VIA: DESTINATION
   		F.O.B.: CONFIRMED TO:

   V021625 VENDOR

   ORION MARINE CONSTRUCTION INC

   5440 W Tyson Ave TAMPA, FL 33611

   crnckee@orionmarinegroup.com

   P999 SHIP TO

   PORT MANATEE PURCHASING PORT MANATEE PURCHASING

   
   

   Requested by:D. FITZ-PATRICK

   l1TEM !QUANTITY lu/M I DESCRIPTION UNIT PRICE TOTAL PRICE

   0001 28,000 EA DEMOBILIZATION - DREDGING HIGH SPOTS WITHIN

   THE BERTHING AREAS WITHIN 25 FEET OF THE WALL ABOVE 41 FEET MLLW.

   442-6012413-534000/6012413-0000 28,000.00

   0002 168,000 EA CLAMSHELL DREDGING AND HYDRAULIC OFFLOADING

   TO DISPOSAL AREA - 6@ $28,000. FINAL QUANTITY BILLED TO BE BASED ON ACTUAL.

   1.00

   
   

   1.00

   28,000.00

   
   

   168,000.00

   442-6012413-534000/6012413-0000 168,000.00

   0003

   21,000 EA GATOR STANDBY - 6@ $3,500. FINAL TO BE BASED ON ACTUAL.

   1.00 21,000.00

   442-6012413-534000/6012413-0000 21,000.00

   
   

   217,000.00

   R082024

   
   

   Requisition#:      

   
   

   A PACKING LIST MUST ACCOMPANY EVERY SHIPMENT. FLORIDA SALES TAX EXEMPT. CERT. NO. 85-801262206C-6

   F.E.T. EXEMPT. CERT. NO. 59-6000727

   
   

   
   

   CONTRACT AGREEMENT

   
   

   THIS CONTRACT made as of this 15th day of May 2023, by and between MANATEE COUNTY PORT AUTHORITY whose address is 300 Tampa Bay Way, Suite 1, Palmetto, FL 34221 ("Owner") and ORION MARINE CONSTRUCTION, INC., a Florida Corporation, whose address is 1715 N. Westshore Blvd., Suite 875, Tampa, Florida 33607 ("Contractor"). Contractor and Owner are each individually referred to herein as a Party and collectively referred to herein as the Parties.

   
   

   WITNESSETH

   
   

   WHEREAS, Owner desires to contract to Contractor, and Contractor desires to perform, certain construction services, pursuant to the terms and conditions set forth herein.

   
   

   NOW THEREFORE, in consideration of the above Recitals, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:

   
   

   1. Contract Work:

      1. Contractor shall furnish all plant, supervision, services, equipment, labor and materials, and all other things necessary to perform the work necessary to complete the following: Mechanical Clamshell dredging within the 25 ft offset of Port Manatee Berthing Areas and as set forth on Contractor's proposal dated 5/10/2023, attached hereto and incorporated herein as Exhibit A - Proposal.

   2. Contractor's Representations:

      1. Contractor represents that it is fully qualified to perform this Contract.

   3. Time of Performance:

      1. TIME IS OF THE ESSENCE. Contractor shall commence the Contract Work within twenty (20) calendar days after notification by Owner, and shall endeavor to efficiently, promptly and properly perform the Contract Work so as not to cause a significant delay or interference with the work of Owner.

      2. Contractor will coordinate its Work with the work of Owner.

   4. Payment:

      1. Contract Price: The total estimated sum payable to Contractor for performance of the Contract Work, subject to additions and deductions by change order or other Contract provisions, is One Hundred and Fifty Four Thousand Dollars ($154,000) ("Contract Price"). Contractor shall only be entitled to payment for work actually performed.

      2. Payment: Payment shall be per the Florida Prompt Payment Act.

      3. No payment received by Contractor shall be used to satisfy or secure any indebtedness other than one owed by Contractor to a person furnishing labor or materials for use in performing the Contract Work.

      4. Upon final completion, acceptance of the work and receipt of the Contractor's Affidavit, Authority shall pay in full. Contractor's acceptance of final payment from Authority shall constitute a full waiver and release by Contractor of all claims against Authority arising out of or relating to the project. All payments shall be made upon approval of an application for payment by the Authority and in accordance with the Florida Prompt Payment Act.

   5. Changes:

      1. Owner may, by written order or by agreement with Contractor, request changes in the Contract Work without nullifying this Contract.

      2. Adjustments in the Contract Price and/or time to complete the Work, if any, resulting from such changes shall be set forth in a mutually agreeable written Contract change order. If Contractor considers any action or inaction by Owner, other than a formal written order, to be a change, Contractor shall notify Owner within twenty (20) calendar days of said action or inaction and seek confirmation from Owner.

   6. Dispute Resolution:

      b. a. Disputes between Owner and Contractor shall first be negotiated, in good faith, by Owner and Contractor. All claims, disputes, and other matters and questions between Owner and Contractor, which cannot be resolved through good faith negotiation, shall be submitted to mediation before a mediator agreed to by both Parties. In the event of litigation between the Parties, the Parties EXPRESSLY AGREE TO WAIVE THEIR RIGHT TO A TRIAL BY JURY DUE TO THE SPECIALIZED NATURE OF CONSTRUCTION LITIGATION.

   7. Delays:

      1. If the progress of the Contract Work is delayed, for any reason, without the fault or responsibility of Contractor, an equitable adjustment to the Contract Time shall be made by change order.

         B. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS CONTRACT, WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND WHETHER OR NOT THERE IS A FAILURE OF ANY AGREED REMEDY. THIS EXCLUSION SHALL NOT APPLY TO ANY INSTANCE(S) OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.

   8. Owner's Obligations:

      1. Owner shall designate one or more persons as its authorized representative(s) on site and off site. Such authorized representative(s) shall be the only person(s) Contractor shall look to for instructions, orders or directions, except in an emergency. Owner shall allocate storage areas, if available, for Contractor's materials and equipment.

   9. Contractor's Obligations:

      1. Contractor shall designate one or more persons who shall be Contractor's authorized representative(s) on site. Such authorized representative(s) shall have full authority to bind Contractor regarding the performance of this Agreement.

   10. Assignment:

       1. Neither this Agreement nor the monies to become due thereunder shall be assignable by Contractor without the prior written consent of Owner, and any assignment without such consent in writing shall vest no right or action in the assignee against Owner; Contractor shall not sublet the whole or any part of this Agreement without prior written consent of Owner. The contract obligations assumed by Owner in this Contract are not intended to benefit any third party. In the event Contractor is a corporation or other business entity, a sale or other transfer of a majority interest therein, whether at one time or from time to time, shall be deemed to be an assignment hereunder, and therefore, shall be subject to the provisions of this paragraph.

l l. Equal Opportunity:

a. Contractor shall not discriminate against any employee or applicant for employment because of race, religion, sex (including pregnancy, gender identity, and sexual orientation), color, national origin, age, disability or genetic information. The aforesaid provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Contractor agrees to post hereafter, in conspicuous places, available for employees and applicants for employment, notices, prepared by Contractor, and approved by the government when required, setting forth the provisions of this Article. In the event of Contractor's noncompliance with the equal opportunity provisions of this Contract, this Contract may be terminated for default. Contractor shall include this provision in all of its contracts under this Contract. The requirements of this Article 11 shall be in addition to any Equal Opportunity provisions required by law.

1. No Guaranty of Work:

   1. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, CONTRACTOR DISCLAIMS ANY AND ALL REPRESENTATIONS AND/OR

      WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE CONTRACT WORK INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.

2. Recourse by Owner:

   1. If Contractor (1) fails or refuses to supply sufficient properly skilled workers or proper materials,

      (2) hinders or delays the Owner, (3) fails to make prompt payment to its workers, subcontractors or suppliers, or (4) disregards laws, ordinances, rules, regulations or orders of a public authority having jurisdiction, and fails to commence to cure such default within five (5) days of receipt of written notice, then Contractor shall be in default and Owner shall have the right to any or all of the following remedies provided thirty (30) days advance written notice of the intention to take such action is given to Contractor and Contractor fails, within said notice period, to diligently commence to cure the defect:

      1. Supply such workers, materials, and/or other facilities as Owner reasonably deems necessary for the completion of the Contract Work, or any part thereof and charge the cost thereof to Contractor, who shall be liable for the payment of same;

      ii. Withhold payment of any monies due Contractor pending corrective action to the extent required by and to the satisfaction of Owner; or

      111. Obtain specific performance or interlocutory mandatory injunctive relief requiring performance of Contractor's obligations hereunder.

3. Bankruptcy:

   Either Party shall notify the other, in writing, within three (3) calendar days of filing bankruptcy. Upon the appointment of a receiver for Owner/Contractor or upon Owner/Contractor making an assignment for the benefit of creditors, Owner/Contractor may terminate this Contract upon giving three (3) business days written notice, by certified mail, to Contractor and its surety, if any. If an order for relief is entered under the bankruptcy code with respect to Owner/Contractor, either Party may terminate this Contract by giving three (3) business days written notice, by certified mail, to the other Party, its trustee, and its surety, if any, unless Owner/Contractor, surety, or trustee: (a) promptly cures all defaults; (b) provides adequate assurances of future performance; (c) compensates Owner/Contractor for actual pecuniary loss resulting from such defaults; and (d) assumes the obligations of Owner/Contractor.

4. Suspension or Termination:

   1. Owner may, upon good cause, order Contractor to suspend, delay, or interrupt all or any part of the Contract Work; provided, such time period does not exceed thirty (30) days. Contractor shall notify Owner in writing within ten (10) calendar days of receipt of Owner's order of the effect of such order upon the Contract Work, and the Contract Time shall be adjusted by change order for any increase in the time caused by the suspension, delay, or interruption. If the duration of the suspension, delay, or interruption exceeds thirty (30) days, Contractor shall have the right to terminate this Contract and recover payment for all Work performed prior to termination and for all expenses reasonably incurred as a result of or arising out of the suspension, delay, interruption. Notwithstanding anything to the contrary, Owner may, without cause, terminate this Contract, in whole or in part, at any time upon fifteen (15) day written notice to Contractor. On the effective date of any termination, Contractor shall promptly discontinue performance of the Contract Work. In the event of any such termination, and subject to all other provisions of this Contract, Contractor is entitled to payment for all Contract Work completed prior to termination and for all expenses reasonably incurred as a result of or arising out of the termination. Contractor shall not be paid for loss of anticipate overhead, profits, or revenue or other economic loss arising out of such termination.

   2. Upon receipt of any termination notice, Contractor shall promptly make every reasonable effort to procure cancellation of all subcontracts and supply contracts; or, shall assign to Owner such of its subcontracts and supply contracts as it chooses.

5. Indemnification:

   To the fullest extent permitted by law, Contractor shall indemnify, defend, and hold harmless the City, its elected officials, officers, and employees, from any and all liabilities, damages, losses and costs, including but not limited to reasonable attorney's fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of Contractor, its employees, agents, officers, subcontractors and other persons employed or utilized by Contractor in the performance of this Contract. Contractor expressly agrees that it will not claim, and waives any claim, that this article violates section 725.06, Florida Statutes, or is unenforceable pursuant to section 725.06, Florida Statutes. This indemnification obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this section. This indemnification provision shall include claims made by an employee of Contractor or any subcontractor against the Owner and Contractor waives any entitlement to immunity under section 440.11, Florida Statutes. Nothing contained herein shall be construed as a waiver of any immunity or limitation of liability the Owner may be entitled to under the doctrine of sovereign immunity or section 768.28, Florida Statutes. This indemnification provision shall survive the termination of this Contract however

   terminated. Contractor's obligation to indemnify, defend, and hold harmless shall not be limited by the amount of any insurance required to be obtained or maintained under the Contract Documents.!.. Notwithstanding the foregoing, the Contractor's obligations to indemnify, defend and hold harmless shall be limited to one million dollars ($1,000,000) or the Contract Price, whichever is greater, in accordance with section 725.06, Florida Statutes.

   
   

   Subject to the limitations set forth in this Section, Contractor shall assume control of the defense of any claim asserted by a third party against Owner and, in connection with such defense, shall appoint lead counsel, in each case at Contractor's expense. Owner shall have the right, at its option, to participate in the defense of any third party claim, without relieving Contractor of any of its obligations hereunder. Each party shall cooperate, and cause its agents to cooperate, in the defense or prosecution of any third party claim and shall furnish or cause to be furnished such records and infonnation, and attend such conferences, discovery proceedings, hearings, trials, or appeals, as may be reasonably requested in connection therewith.

   In the event of any loss, damage, claim or iajury contemplated by this Article, Owner may withhold from any payment due or thereafter to become due to Contractor an amount reasonably sufficient to protect, secure and indemnify it from any and all such claims, expenses (including legal fees and disputes proceeding costs), losses or damage. In the alternative, Owner, at its option, may accept from Contractor a surety bond in an amount, and from a surety, satisfactory to Owner and guaranteeing the indemnity protection required hereunder.

6. Contract Interpretation and Litigation:

   1. Integrated Agreement.

      1. This Contract represents the entire, complete, and integrated agreement between the Parties with respect to the matters covered herein, and supersedes all prior negotiations, representations, or agreements, either written or oral.

   2. Governing Law, Venue.

      1. This Contract shall be governed by the law of the State of Florida. Any suit relating to this Contract shall be commenced a court of competent jurisdiction located in the State of Florida. Owner and Contractor hereby consent to jurisdiction and venue in Florida. Venue for the purposes of any suit, action, or other preceding arising out of, or relating to, this Contract shall be solely within the Twelfth Judicial Circuit, in and for Manatee County, Florida for state actions and solely in the United States District Court of the Middle District of Florida, Tampa Division for federal actions. In the event of any dispute that occurs between the parties, which results in litigation and a subsequent award or decree against either party it is agreed that entitlement to post judgment interest to either party and their attorney shall be fixed by the proper court at a rate of 5% per annum simple interest. Under no circumstances shall either party be entitled to

         prejudgment interest and the parties expressly acknowledge to the extent allowed by law they hereby opt out of any provision offederal or state statutes not in agreement with this.

   3. Severability.

      1. If any term of this Agreement is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.

   4. Non-Waiver.

      1. The failure of either Party hereof to insist, in any one or more instances, upon the performance of any of the terms, covenants or conditions of this Contract, or to exercise or partially exercise any rights herein, shall not be construed as a waiver or relinquishment of such term, covenant, condition or right hereunder or in respect to further performance.

   5. Prevailing Party.

      1. Should either Party employ an attorney to institute suit or demand arbitration to enforce any of the provisions hereof, to protect its interest in any matter arising under this Contract, or to collect damages for the breach of the Contract, the prevailing Party shall be entitled to recover from the other Party its reasonable attorneys' fees, costs, and expenses expended or incurred therein.

   6. No Third-Party Beneficiaries.

      1. This Contract is solely for the benefit of the Parties and is not for the benefit of any third person, or entity.

   7. Successors and Assigns.

      1. This Contract shall be binding upon the successors, heirs and assigns of each of the Parties.

   8. Notice.

      Notice to the Parties hereto shall be deemed to be properly given if and when sent by hand delivery, nationally recognized overnight air courier or posted registered or certified mail, postage prepaid, return receipt requested, addressed to the respective addresses of the parties herein provided.

   9. Modifications.

      1. This Contract may not be changed in any way except as herein provided and no terms or provisions hereof may be waived by a Party except in writing signed by its duly authorized officer or agent.

   10. Descriptions.

       1. The marginal description of any term or provision of this Contract is for convenience only and shall not be deemed to limit, restrict or alter the content, meaning or effect thereof.

7. Insurance:

   1. Upon request, Contractor shall provide Owner with certificate of insurance in such form as listed in Exhibit B - Insurance.

8. Public Records.

   All comments, papers, letters, maps, books, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristic, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by the Authority are public records of the Authority in accordance with the Florida Constitution and Florida Statutes. Every person has the right to examine, inspect and/or copy any such public records not specifically made exempt therefrom by provisions of the Florida Statutes. Any financial or proprietary information relating to the Contractor transmitted to the Authority may be a public record subject to disclosure to a requesting third person.

   
   

   The Contractor agrees to comply with the Florida Public Records Act, as applicable, including, but not limited to Section 119.0701 of the Florida Statutes. Documents which are considered public records

   herein under Florida law include, but are not limited to: records related to the entry, management and implementation of the Contract itself; emails/correspondence between the Authority and the Contractor related to the Contract; emails or correspondence from all other entities related to the Contract (i.e., subcontractors, suppliers, vendors, etc.); billing and related documents; plans or other documents that may be necessary, reports, etc.; subcontracts; and all vendor invoices. The Contractor agrees, to the extent required by law, to:

   1. Keep and maintain public records that ordinarily and necessarily would be required by the public agency in performing the services of the Contract;

   2. Provide the public with access to the public records under the same terms and conditions that the Authority would provide the records and at a cost that does not exceed the cost provided for by law;

   3. Ensure that the public records that are exempt or confidential, and exempt from public record disclosure requirements, are not disclosed, except as authorized by law; and

   4. Meet all requirements where retained public records and transfer, at no cost, to the Authority, all public records in possession of the Contractor, upon termination or completion of the Contract and destroy any duplicate public records that are exempt or confidential, or exempt from public record disclosure requirements.

      
      

      Furthermore, the Contractor agrees that all records stored electronically shall be provided to the Authority in a format that is compatible with the information technology systems of the Authority. The Contractor shall promptly provide the Authority with a copy of any request to inspect or copy public records that Contractor receives and a copy of the Contractor's response to each request. The Contractor understands and agrees that failure to provide access to the public records shall be a material breach of the Contract and grounds for termination.

      IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: (941) 722-6621, RECORDSCUSTODIAN@SEAPORT MANATEE.ORG, PORT MANATEE, 300 TAMPA BAY WAY, SUITE ONE, PALMETTO, FL 34221.

      
      

      
      

9. Survival. All representations, indemnifications, warranties and guarantees made in or required by or given in accordance with this Contract, as well as continuing applications indicated in the Contract, shall survive final payment completion, acceptance of Work or termination or completion of Contract or termination of the services by Contractor.

2_L Electronic Signatures. This Contract and any Contract Documents may be executed by electronic signature technology and such electronic signature shall act as the Parties' legal signatures on this Contract and Contract Documents and shall be treated in all respects as an original handwritten signature.

1. E-Verify. Contractor shall utilize the U.S. Department of Homeland Security's E-Verify System to verify the employment eligibility of: (a) all persons employed by Contractor throughout the term of this Contract; and (b) all persons, including subcontractors, retained or hired by Contractor, regardless of compensation, to perform work under this Contract.

2. Port Manatee Access Requirements. Port Manatee is regulated under the provision of the Maritime Transportation Security Act of 2002 (MTSA). Individuals accessing the port must comply with provisions of the applicable regulations and the associated elements of Port Manatee's approved Facility Security Plan. These provisions include: (1) Individuals requiring unescorted access must possess a TWIC credential and be able to demonstrate verifiable port business. Individuals employed by businesses with current port licenses or permits may enroll their TWIC in the access control system. For current prices please see Tariff Item 411 of the Port Manatee Tariff No. 3, available at portmanatee.com. (2) Obtaining a federal Transportation Workers Identification Credential (TWIC). This requires submission to federal security screening. Information on the TWIC enrollment process is available at www.tsa.gov/twic. The cost for TWIC processing is

   $125.25.

   
   

   The Authority will not provide TWIC escort service. Additional information for temporary access or any other questions are available by contacting Port Manatee Access Control - Security office at 941-722-6455. Contractor is responsible to include all costs associated with installation of part of their submission. These costs may include but are not limited to: Worker Credentialing: Port Manatee is regulated under the provisions of the Maritime Transportation Security Act (MTSA) all workers will be required to obtain a Transportation Worker Identification Credential (TWIC) and a Port Manatee Access Credential. Fees associated with these credentials are the responsibility of the Contractor. Current Fees: TWIC $125.25 The Authority will not provide TWIC escort service.

   
   

3. ADDITIONAL TERMS AND CONDITIONS

a) Public Entity Crimes/Scrutinized Companies

The Contractor is confirming that neither the Contractor nor its subcontractors have been placed on the convicted vendors list as described in Section 287.133 , Florida Statutes. A person or affiliate who has been placed on the convicted vendor list, following a conviction for a public entity crime, may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases ofreal property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with a public entity, and may not transact business with any public entity in excess of the threshold amount as provided in Section 287.017, Florida Statutes for CATEGORY TWO, for a period of 36 months from the date of being placed on the convicted vendor list.

Contractor is confirming that neither Contractor nor its subcontrators have been placed on the Scrutinized Companies that Boycott Israel List or is engaged in a boycott of Israel, as described in Section 287.135, Florida Statutes.

c) Conflicts oflnterest

The Contractor represents that it presently has no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance or services required hereunder. The Contractor further represents that no person having any such interest shall be employed by him/her during the agreement term and any extensions.

The Contractor shall immediately notify the Authority's representative, in writing, by certified mail, of all potential conflicts of interest for any prospective business association, interest, or other circumstance, which may influence or appear to influence the Contractor's judgment or quality of services being provided hereunder. Such written notification shall identify the prospective business association, interest or circumstance, the nature of work that the Contractor may undertake and request an opinion of the Authority as to whether the association, interest or

circumstance would, in the opinion of the Authority, constitute a conflict of interest if entered into by the Contractor. The Authority agrees to notify the Contractor of its opinion, by certified mail, within thirty (30) days of receipt of notification by the Contractor.

Neither the Authority nor any of its contractors or their subcontractors shall enter into any contract, subcontract or arrangement in connection with the Project in which any member, officer or employee of the Authority or the locality during tenure of for two (2) years thereafter has any interest, direct or indirect. If any such present or former member, officer or employee involuntarily acquires or had acquired prior to the beginning of tenure any such interest, and if such interest is immediately disclosed to the Authority, with prior approval of the Department of Transportation, may waive the prohibition contained in this paragraph provided that any such present member, officer, or employee shall not participate in any action by the Authority or the locality relating to such contract, subcontract or arrangement.

The Contractor agrees to insert the following provision in its subcontracts:

"No member, officer or employee of the Authority or of the locality during his tenure or for 2 years thereafter shall have any interest, direct or indirect, in this contract or the proceeds thereof."

1. Foreign Country of Concern

   The Contractor and any Subcontractors agrees to comply with section 286.101, Florida

   Statutes. Contractor must disclose any current or prior interest of, any contract with, or any grant or gift received from a Foreign Country of Concern, as defined below, if such interest, contract, or grant or gift has a value of $50,000 or more and such interest existed at any time or such contract or grant or gift was received or in force at any time during the previous five (5) years. For purposes of this section, "Foreign Country of Concern" means the People's Republic of China, the Russian Federation, the Islamic Republic oflran, the Democratic People's Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicolas Maduro, or the Syrian Arab Republic, including any agency of or any other entity under significant control of such foreign country of concern.

   
   

2. Unauthorized Aliens

   The Contractor represents that it does not employ unauthorized aliens. The Authority shall consider the employment by the Contractor of unauthorized aliens a violation of Section 274A of the Immigration and Nationality Act.

   
   

3. Appropriations Clause

   The Contractor certifies that he/she understands that the Authority, an entity of government, is subject to the appropriation of funds by its legislative body in an amount sufficient to allow continuation of its performance in accordance with the terms and conditions of this contract for each and every fiscal year following the fiscal year in which this contract is executed and entered into and for which this contract shall remain in effect. The Authority shall, upon receipt of notice that sufficient funds are not available to continue its full and faithful performance of this contract, provide written notice to the consultant of such event within thirty (30) days and, be thereafter released at all further obligations in any way related to the contract.

   
   

4. Legal Requirements

All applicable provisions of federal, state, county, and local laws including all ordinances, rules, and regulations shall govern the development, submittal and evaluation of all Bids received in response to these specifications, and shall govern any and all claims between person(s) submitting a Bid and the Authority, by and through its officers, employees and authorized representatives. A lack of knowledge by the Contractor concerning any of the aforementioned shall not constitute a

cognizable defense against the legal effect thereof. The Contractor agrees that it will not discriminate on the basis of race, creed, color, national origin, sex, age or disability.

IN WITNESS WHEREOF, the parties hereto have executed this Contract under seal, the day and year first above written.

MANATEE COUNTY PORT AUTHORITY

Owner

Attest:

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By _JJ/4 c 7

Name                           Name Carlos

Title E)cec.., v,.,'f- i v-e

ORION MARINE CONSTRUCTION, INC.

Contractor

Attest:

By

Name                      Name:_B_r_ia_n_Y_a_ks h        _

Title: Project Manager

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May 10th, 2023

Dan Fitzpatrick

SeaPort Manatee 1705 Piney Point Rd Palmetto, FL 34221

A-Proposal 5440 West Tyson Avenue

NIT

Tampa, FL 33611

813.839.8441

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Subject: Manatee Harbor Maintenance Dredging

Orion Marine Construction Inc. (Orion) is pleased to provide a proposal to SeaPort Manatee for performing mechanical dredging of berths at Manatee Harbor. The proposal includes a lump sum demobilization cost as and a day rate for mechanical dredging and hydraulic offloading utilizing pipeline in place from the USACE Project into the Port Manatee Disposal Area.

As requested, Orion will dredge high spots within the berthing areas within 25 feet of the wall above 41 feet MLLW. Material will be loaded into sealed hoppers and hydraulically offloaded using an offloader barge connected to pipeline installed by Gator Dredging. To minimize impacts to Gator Dredging operations, this work will be scheduled to take place after substantial completion of work by Gator Dredging for the USACE.

Based on the pre-dredge survey and the desired depths, this proposal assumes a duration of 5 days to perform the required dredging subject to actual pre-dredge survey quantities and required footprint to be dredged. Upon receive of notice to proceed, Orion will work as directed during daylight hours until the template is cleared per survey's provided by GBA and at the direction of SeaPort Manatee.

Work will proceed utilizing a list of priority berths as indicated by SeaPort Manatee as follows: Berth 10, Berth 4 ands, Berth 8 and 9 Corner, Berth 6, Berth 7, Berth7 and 8 Corner, Berth 9, Berth 12, and Berth 14. Work is currently scheduled to begin in conjunction with the completion of Gator Dredging work, estimated to be completed by May 19th with work for SeaPort Manatee to begin immediately after, with an estimated duration of 4 days completing on May 24th.

PRICING:

Clamshell Dredging - Port Manatee

*Final quantity billed to be based on actual time required.

www.orionmarinegroup.com

Alaska◊ Arlantic Seaboard Canada◊ Caribbean Basin◊ Gulf Coast ◊ West Coast

O0RI0N

5440 West Tyson Avenue

Tampa, fl 33611

813.839.8441

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Special Conditions/Provisions:

1. Orion Marine Construction is responsible for all turbidity monitoring and related documentation with related agencies, and Orion will comply with turbidity requirements.

2. Upon Notice to Proceed and at the conclusion of work for Gator Dredging, Orion Marine Construction will tow the dredge in from the outer channel to begin work at the berthing areas. Day rate begins when dredge begins moving into the harbor to begin dredging at the berths.

3. Any standby time related to vessel traffic, coordination with Gator Dredging and AMCC Pipeline, or awaiting surveys and release by Seaport Manatee will continue to be paid at the daily rate.

4. Orion will utilize Nine Tails Marine Observers to perform required marine mammal monitoring.

5. All work will be comply with the requirements of the Department of the Army Permit SAJ- 1998-01210-IP-PTR

6. Estimated schedule subject to change based on Gator Dredging progress and completion of USACE contract work.

7. This proposal is subject to a mutually agreed upon contract.

   
   

   We trust this proposal meets with your requirements and if you have any additional questions, please do not hesitate to contact us. We appreciate this opportunity and look forward to working with you.

   
   

   Best Regards,

   
   

   ORION MARINE CONSTRUCT/ON, INC.

   
   

   Brian Yaksh Project Manager

   EXHIBITB INSURANCE

   
   

   
   

   1. Contractor's Liability Insurance

      
      

      1. Minimum insurance limits shall be as follows:

1. Comprehensive General Liability, including completed operations:

Bodily Injury/Property Damage - $1,000,000 each occurrence; $2,000,000 aggregate Products/Complete Operations - $1,000,000 each occurrence; $1,000,000 aggregate Premises-Operations (including Explosion, Collapse and Underground coverage) Independent Contractors

Products and Completed operations,

Contractual Liability on a "blanket basis" designating all written contracts Broad Form Property Damage

Action Over Indemnity

Per Project Aggregate Limit

1. Protection & Indemnity:

   
   

   Subject to SP-23 or equivalent Crew and Employee

   Collision or Collision/rowers liability Marine Contractual liability

   Pollution liability

   $1,000,000 each occurrence

   
   

2. Hull & Machinery:

   
   

   In an amount equal to the fair market value of the vessel, on terms equivalent to the broadest coverage available from American underwriters, provided, any deductible not exceed $25,000.

   
   

3. Marine Cargo Insurance:

   
   

   For any cargo aboard the vessel (including risks of loading and discharging), in an amount equal to its full actual delivered value, plus freight, on terms equivalent to the broadest coverage available from American underwriters, provided, any deductible not exceed $25,000.

   
   

4. Comprehensive Automobile Liability:

Bodily Injury - $1,000,000 each occurrence Property Damage - $1,000,000 each occurrence

VI. Employer's Liability:

Each Accident - $1,000,000 Disease-Policy Limit - $1,000,000

Disease-Each Employee - $1,000,000

VIL Workmen's Compensation coverage shall include Longshoremen and Harbor Worker's and/or Jones Act endorsement when applicable and shall provide benefits in accordance with the laws of the State, Commonwealth or Territory in which the Work llllder this Contract is to be perfmmed and of the jurisdiction of hire of any employee of Contractor.

viii. Excess Liability of$5,000,000, over the following policies required hereunder:

Commercial General Liability; Protection & Indemnity; Hull & Machinery; Employer's Liability; Crew and Employee or Maritime Employer's Liability, whichever the case may be; and Auto Liability.

CHANGE ORDER

THIS CHANGE ORDER made as of this 31st day of May 2023, by and between MANATEE COUNTY PORT AUTHORITY whose address is 300 Tampa Bay Way, Suite 1, Palmetto, FL 34221( "Owner") and ORION MARINE CONSTRUCTION, INC., a Florida Corporation, whose address is 1715 N. Westshore Blvd., Suite 875, Tampa, Florida 33607 ("Contractor"). Contractor and Owner are each individually referred to herein as a Party and collectively referred to herein as the Parties.

RECITALS

WHEREAS, the Parties entered into CONTRACT on May 15, 2023, for Contractor to perform mechanical dredging of berths at Manatee Harbor.

WHEREAS, the Contractor's estimated duration of mechanical dredging was four (4) working days.

WHEREAS, due to unanticipated delays, the job was completed in six (6) working days.

NOW THEREFORE, in consideration of the above Recitals, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the CONTRACT is amended as follows:

1. Contract Price. The total estimated sum payable to Contractor for performance of the Contract Work, subject to additions and deductions by change order or other Contract provisions, is Two Hundred and Seventeen Thousand Dollars ($217,000) ("Contract Price"). Contractor shall only be entitled to payment for work actually performed.

   
   

   Except as modified, amended, or changed by this CHANGE ORDER, all of the terms and conditions of the CONTRACT and any amendments thereto shall remain in full force and effect.

   
   

   IN WITNESS WHEREOF, the Parties have executed this CHANGE ORDER on the day and year written above.

   
   

   Manatee County Port Authority

   
   

   : e &/2-L--

   Name: Ca..rl os :JsiA.1'.l-<.er .s.

   Title: GxecJ f,ve j);,evtc.Q,_

   Orion Marine Construction, Inc. Contractor

   
   

   By:         Name: Brian Yaksh

   Title: Project Manager

   June 15, 2023

   
   

   CONSENT

   AGENDA ITEM 3.F.: RS&H ADDITIONAL DESIGN ANALYSIS FOR THE

   HOPPER AT BERTH 6

   
   

   BACKGROUND:

   
   

   On February 16, 2023, the Authority approved Professional Services Authorization (PSA) No. 23-02 to RS&H, Inc. in the amount of $348,571 for design and construction phase engineering services for a hopper at Berth 6. On May 23, 2023, the Authority approved (PSA) No. 23-04 in the amount of $29,292 to design a structure on the ground to support the heavy motor at the end of the discharge chute. RS&H has submitted (PSA) No. 23-05 in the amount of $34,718 for additional engineering analysis and design as detailed in the attached Scope of Services, bringing the total to $412,581.

   
   

   ATTACHMENT:

   
   

   Professional Services Authorization (PSA) No. 23-05

   
   

   COST AND FUNDING SOURCE:

   
   

   FDOT funding of $17,359 and Port funding of $17,359

   
   

   CONSEQUENCES IF DEFERRED:

   
   

   Delay in approval of professional services

   
   

   LEGAL COUNSEL REVIEW: Yes

   
   

   RECOMMENDATION:

   
   

   Move to approve and authorize the Chairman to execute Professional Services Authorization (PSA) No. 23-05 to RS&H, Inc. in the amount of $34,718 for additional engineering analysis and design of a hopper at Berth 6, pending the approval of FDOT.

   PROFESSIONAL SERVICES AUTHORIZATION (PSA) NO. 23-05

   
   

   Pursuant to the Port Manatee Professional Services Continuing Contract dated June 16, 2020, between the Manatee County Port Authority, hereinafter referred to as the "Authority" and

   
   

   RS&H, Inc.,

   
   

   hereinafter referred to as the "Consultant", the Authority hereby authorizes and the Consultant hereby agrees to perform the hereinafter identified professional services for the project, facility or program identified as:

   
   

   Berth 6 Hopper

   
   

   The professional services and additional terms hereby authorized by the Authority and agreed to by the Consultant are set forth in the attached proposal dated May 16, 2023, for the above entitled project, facility or program. These professional services will be paid through FDOT Grant 02278 ("Grant"). The Consultant acknowledges it has received a copy of the Grant and will comply with the Grant's terms.

   
   

   The total fees and expenses for these professional services must not exceed:

   
   

   $34,718.00.

   
   

   DATED:        

   
   

   MANATEE COUNTY PORT AUTHORITY

   
   

   By:       

   Executive Director

   CONSULTANT fi2

   By: / Name, Title: Michael S. Dixon/ Vice President

   
   

   CONTRACT MANAGER

   George Isiminger

   Senior Director of Engineering and Construction

   
   

   Grant Contract#: 02278

   If applicable, the Authority has considered and hereby approves this Supplemental Professional Engineering Services Authorization with a quorum present and voting this 15th day of June, 2023.

   
   

   Attest:

   
   

   By:           

   MANATEE COUNTY PORT AUTHORITY

   
   

   By:         

   
   

   Clerk of the Circuit Court Chairman

   SCOPE OF SERVICES

   Engineering Services

   For

   Hopper Repair Additional Structural, Mechanical, and Electrical Design Effort for Existing Conveyor – CV1

   PORT MANATEE

   Manatee County, Florida

   PROJECT DESCRIPTION

   The intent of the overall project is to provide design and construction administration services for new 600-ton Hopper at Berth 6. RS&H, Inc. is the CONSULTANT and Manatee County Port Authority is the AUTHORITY as referenced in this scope of services.

   
   

   Additional Structural, Mechanical, and Electrical Design for CV1

   1. In the original scope and fee for this project, there was minimal engineering effort for the existing Conveyor – CV1. The CONSULTANT understood that CV1 had to be strengthen at the impact zone and that skirt boards and a dust suppression system had to be incorporated.

   2. During the design, it became apparent that several major systems and other systems along CV1 also had to be relocated as they were in the vicinity of the impact zone and they would not function properly. Major systems that have to be relocated include: (1) Belt Scale and (2) Belt Switches (NS & FS). In addition, several other items had to be relocated including: (1) Wind Hoop; (2) Belt Scale Junction Box; and (3) Cable Stanchion.

   3. As this additional engineering analysis and design were not part of the original scope or fee, additional design services are required and fee requested for this effort.

   4. This supplemental agreement is for structural, mechanical, and electrical analysis and design, and cost estimate of relocating major and other systems along existing Conveyor – CV1 to be out of the impact zone for the new Hopper Conveyor CV- 1B.

   5. Estimate that this additional effort will take four (4) weeks to complete.

END SCOPE OF SERVICES

05/17/2023 Port Manatee – Hopper Expansion 2023

June 15, 2023

CONSENT

AGENDA ITEM 3.G: AGREEMENT WITH SAAB TECHNOLOGIES LTD

INC. FOR A MANAGEMENT INFORMATION SYSTEM

BACKGROUND:

On October 20, 2022, the Authority accepted the award from The Department of Homeland Security of $750,000 (or 75% of project costs) under the 2022 Port Security Grant Program (PSGP) for an Information Management System. On January 10, 2023, a Request for Proposal was published for a system to include a comprehensive vessel reservation system, billing management, lease management, deposits, inventory control, cargo management, transfer notification, etc. One proposal was received from Saab Technologies Ltd Inc.which has served the maritime community for 37 years assisting 130 organizations, including government and private port authorities, maritime safety administrations, pilot authorities, and tug operations around the world. Florida clients include Jacksonville Port Authority and Port Everglades. The contract includes software licenses, configuration services, implementation, and training in the base amount of $794,000, and five years of support and maintenance with the first annual payment in the amount of $107,000. The balance of $99,000 will be earmarked for contingency for additional cost/services which will require Executive Director approval.

ATTACHMENT:

Information Management System Agreement Between the Authority and Saab Technologies Ltd. Inc.

COST AND FUNDING SOURCE:

FEMA Department of Homeland Security grant funding of $750,000 and $250,000 from port cash

CONSEQUENCES IF DEFERRED:

Delay in Management Information System implementation

LEGAL COUNSEL REVIEW: Yes

RECOMMENDATION:

Move to approve and authorize the Chairman to execute the Information Management System Agreement between Saab Technologies Ltd. Inc. and the Manatee County Port Authority in the total amount of $1,000,000, which includes $99,000 contingency for additional cost/services requiring the approval of the Executive Director.

Information Management System Agreement Between the Authority and Saab Technologies Ltd. Inc.

June 15, 2023

This Information Management System Agreement (“Agreement”), entered into and effective as of June 15, 2023 (“Effective Date”), is by and between the Manatee County Port Authority, a Florida dependent special district having an address of SeaPort Manatee, 300 Tampa Bay Way, Suite One, Palmetto, Florida 34221-6608 (“Authority”) Saab Technologies Ltd. Inc., a Canadian corporation duly registered to conduct business in the State of Florida with a principal address of 3500 Gilmore Way, Suite 300, Burnaby, BC V5G 0B8 CA (“Contractor”) (collectively, the “Parties”).

WITNESSETH:

WHEREAS, the Authority owns certain property located in Manatee County, Florida, consisting of ten berths that handle various commodities (“Port”); and

WHEREAS, the Authority bills customers for various services at the Port, including waterborne, leases, storage, electric reimbursements, franchise fees, licenses, labor, and security; and

WHEREAS, the Authority has issued a Request For Proposals (“RFP”), RFP-2023IMS, to procure an information management system relating to the invoicing of the services provided by the Authority at the Port; and

WHEREAS, the Authority and the Contractor, as the successful proposer to the RFP, desire to enter into this Agreement whereby the Contractor will be responsible for providing an information management system.

NOW THEREFORE, in consideration of the covenants and conditions herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Effective Date and Term. The term of this Agreement (the “Term”) shall be five (5) years beginning June 15, 2023, and continuing through and including June 15, 2028. The Contractor or the Authority may extend the Term two (2) additional five (5)-year period(s), provided that written consent of the other party is obtained. If either party desires to so extend the Term of this Agreement, the Party desiring to extend shall submit a written request to the other Party to extend the Term at least five (5) years but not more than ninety (90) days prior to the

   expiration of the Term. The other Party shall then, within thirty (30) days of receipt of such notice, render a decision on the first Party’s request and notify the Party in writing of its decision. If the extension is approved, the Term shall be extended an additional period beginning on June 15, 2028, and continuing until June 15, 2033. All terms and conditions of this Agreement shall apply throughout the Term as extended unless amended by mutual written agreement of the Parties. There shall be no other extension of the Term thereafter under this Agreement.

   
   

2. Services to be Performed. This Agreement’s Scope of Services are those provided for in the RFP and the Contractor’s response to the RFP dated January 10, 2023, which are attached hereto and incorporated by reference. The Contractor, at its sole expense, shall obtain all required federal, state, and local licenses, occupational and otherwise, required to successfully providing the services set forth herein. The Contractor, at its sole expense, shall comply with all laws, ordinances, judicial decisions, orders, and regulations of federal, state, county, and city, as well as their respective departments, commissions, boards, and officers, which are in effect at the time of execution of this Agreement or are adopted at any time following the execution of this Agreement.

   
   

3. Fees. The Authority shall pay certain fees for the Contractor’s services as set forth in Exhibit A, entitled “Fees,” which is attached hereto and incorporated herein by reference. Compensation for services completed by the Contractor will be paid in accordance with Section 218.70, Florida Statutes, and Florida’s Local Government Prompt Payment Act.

   
   

4. Non-Transferability. This Agreement and the rights herein granted may not be assigned, sold, leased or transferred, in whole or in part, without the prior written consent of the Authority, which such consent shall not be unreasonably withheld, conditioned or delayed. For purposes of this section, an assignment shall include any transfer of any rights under this Agreement, whether voluntary or involuntary or by operation of law, including any merger or consolidation or change in control of the Contractor made without the Authority’s prior written consent. The terms and provisions of this Agreement shall be binding upon the Parties and their respective partners, successors, heirs, executors, administrators, assigns, and legal representatives. The Authority may assign its rights and obligations under this Agreement to any successor to the rights and functions of the Authority or to any governmental agency to the extent required by applicable laws or governmental regulations or to the extent the Authority deems necessary or advisable under the circumstances.

   
   

5. Indemnification. The Parties recognize that Contractor is an independent contractor. Subject to the limitations of liability as set out in article 2 of the Definitions and General Terms and Conditions, Contractor agrees to assume liability for and indemnify, hold harmless, and defend the Authority, its commissioners, officers, employees, agents, and attorneys of, from, and against all liability and expense, including reasonable attorneys' fees in connection with any and all claims, demands, damages, actions, causes of action, and suits in equity of whatever kind or nature,

   including claims for personal injury, property damage, relief, or loss of use, relating to any claim of a third party arising out of or occurring in connection with Contractor’s negligence, willful misconduct, or material breach of this Agreement. Contractor's liability hereunder shall include all attorneys' fees and costs incurred by the Authority, in the enforcement of this indemnification provision. This indemnification provision includes claims made by any employees of Contractor against the Authority, and Contractor hereby waives its entitlement, if any, to immunity under section 440.11, Florida Statutes. Nothing contained in this contract, and specifically this provision requiring Contractor to indemnify the Authority, is intended to nor shall it be construed as an additional waiver of sovereign immunity by the Authority beyond the Authority’s expressed written contractual obligations contained within this contract, nor shall it be construed as a waiver of any defenses or limitations to any claims, including those based on the doctrine of sovereign immunity or section 768.28, Florida Statutes. The obligations contained in this section shall survive the termination of this Agreement, however terminated, and shall not be limited by the amount of any insurance required to be obtained or maintained under this Agreement.

   Subject to the limitations set forth in this section, Contractor shall assume control of the defense of any claim asserted by a third party against the Authority for which Contractor is obligated to indemnify, defend, and hold harmless the Authority under this section and, in connection of such defense, shall appoint lead counsel in each case at Contractor’s expense. The Authority shall have the right, at its option, to participate in the defense of any third party claim, without relieving Contractor of any of its obligations hereunder. If Contractor assumes control of the defense of any third party claim in accordance with this section, Contractor shall obtain the prior written consent of the Authority before entering into any settlement of such claim. Notwithstanding anything to the contrary in this section, Contractor shall not assume or maintain control of the defense of any third party claim, but shall pay the fees of counsel retained by the Authority and all expenses, including experts’ fees, if (a) an adverse determination with respect to the third party claim would, in the good faith judgment of the Authority, be detrimental in any material respect to the Authority’s reputation; (b) the third party claim seeks an injunction or equitable relief against the Authority; or (c) Contractor has failed or is failing to prosecute or defend vigorously the third party claim. Each party shall cooperate, and cause its agents to cooperate, in the defense or prosecution of any third party claim and shall furnish or cause to be furnished such records and information, and attend such conferences, discovery proceedings, hearings, trials, or appeals, as may be reasonably requested in connection therewith.

   
   

6. Insurance. Contractor shall maintain a policy or policies of insurance throughout the entire term of this Agreement, including any Renewal Term(s) as follows:

   
   

   Commercial General Liability with minimum required limits of $2,000,000. All insurance policies shall be from responsible companies duly authorized to do business in the State of Florida and have a minimum rating of "A-"as assigned by AM Best. The Authority shall be

   named as an additional insured on such policy(ies) and shall be given thirty (30) days’ written notice of cancellation, non-renewal, or adverse change to any policies. Contractor shall provide a certificate of insurance, in a form satisfactory to Authority, evidencing that it has met the insurance requirements of this Agreement.

   
   

7. Conflicts of Interest. The Contractor represents that it has completely disclosed to the Authority all facts bearing upon any possible interests, direct or indirect, that the Contractor believes any member, director, officer, employee or agent of the Authority presently has, or will have, in this Agreement or in the performance of this Agreement. The Contractor shall comply with all codes of conduct and/or conflict of interest policies provided for in the Port’s procurement policy, Port Tariff, and state and federal statutes as may be amended from time to time. The Contractor covenants that it presently has no interest, and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of its obligations under this Agreement. The Contractor represents to the Authority that Contractor has no present, and will have no future, conflict of interest between providing the Authority the services contemplated by this Agreement and any interest the Contractor may presently have, or will have in the future, with respect to any other person or entity that has any interest adverse or potentially adverse to the Authority, as determined in the reasonable judgment of the Authority. The provisions of this section shall remain fully effective indefinitely after the expiration or termination of this Agreement.

   
   

8. Record Keeping.

   
   

   1. The Contractor and the Authority acknowledge that this Agreement requires the Contractor to provide certain records, documents or instruments (collectively, “records”) that may include proprietary or confidential information, the disclosure of which to third parties may be damaging to the Contractor or other third parties who contract with the Contractor. At the time of providing such records, the Contractor’s highest-ranking officer shall certify in writing as to the confidentiality of any such records submitted to the Authority that are deemed confidential and proprietary by the Contractor and include a statement specifying the legal basis (including specifying the applicable legal citation) of treating such records as confidential and proprietary in light of Florida’s Public Records Act. To the extent possible under law, the Authority shall hold such records and information in strict confidence and shall use such records and information only in connection with this Agreement, except where required to be disclosed under any applicable federal or state law requiring public disclosure of information relating to the business of the Authority or any order of a court or public agency having jurisdiction requiring disclosure. The Contractor shall comply with any policy or policies adopted by the Authority from time to time concerning the treatment of confidential information of third parties provided to the Authority. The Contractor shall not discuss this Agreement, or any matters pertaining thereto, with the public press, representatives of the public media, public bodies or representatives of public bodies,

      without the Authority’s prior written consent. The Contractor shall have the right, however, without the Authority’s further consent, to communicate with persons (including third parties) or public bodies where necessary to perform under this Agreement.

      
      

   2. Pursuant to section 119.0701, Florida Statutes, for any tasks performed by Contractor on behalf of the Authority, Contractor shall: (a) keep and maintain all public records, as that term is defined in chapter 119, Florida Statutes (“Public Records”), required by the Authority to perform the work contemplated by this Agreement; (b) upon request from the Authority’s custodian of public records, provide the Authority with a copy of the requested Public Records or allow the Public Records to be inspected or copied within a reasonable time at a cost that does not exceed the costs provided in chapter 119, Florida Statutes, 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 for the duration of the term of this Agreement and following completion or termination of this Agreement, if Contractor does not transfer the records to the Authority in accordance with (d) below; and (d) upon completion or termination of this Agreement, (i) if the Authority, in its sole and absolute discretion, requests that all Public Records in possession of Contractor be transferred to the Authority, Contractor shall transfer, at no cost, to the Authority, all Public Records in possession of Contractor within thirty

      (30) days of such request or (ii) if no such request is made by the Authority, Contractor shall keep and maintain the Public Records required by the Authority to perform the work contemplated by this Agreement. If Contractor transfers all Public Records to the Authority pursuant to (d)(i) above, Contractor shall destroy any duplicate Public Records that are exempt or confidential and exempt from Public Records disclosure requirements within thirty (30) days of transferring the Public Records to the Authority and provide the Authority with written confirmation that such records have been destroyed within thirty (30) days of transferring the Public Records. If Contractor keeps and maintains Public Records pursuant to (d)(ii) above, Contractor shall meet all applicable requirements for retaining Public Records. All Public Records stored electronically must be provided to the Authority, upon request from the Authority’s custodian of public records, in a format that is compatible with the information technology of the Authority. If Contractor does not comply with a Public Records request, or does not comply with a Public Records request within a reasonable amount of time, the Authority may pursue any and all remedies available in law or equity including, but not limited to, specific performance. The provisions of this section only apply to those tasks in which Contractor is acting on behalf of the Authority.

      IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: (941) 722-6621, RECORDSCUSTODIAN@SEAPORT MANATEE.ORG, PORT MANATEE, 300 TAMPA BAY WAY, SUITE ONE, PALMETTO, FL 34221.

9. Performance Audit. The Authority at its expense, from time to time, may conduct a performance audit of marketing, operating, maintenance and other obligations and functions of the Contractor, and the Contractor shall cooperate with the Authority in the performance of the audit.

   
   

10. Termination.

    
    

    1. Either party may terminate this Agreement for cause at any time immediately upon written notice to the other party if the other party: (a) fails to fulfill or abide by any of the terms or conditions in this Agreement; (b) fails to perform in the manner called for by this Agreement; or (c) does not provide work or services in accordance with the specifications under this Agreement. The terminating party shall provide written notice to the other party, detailing the nature of the breach and providing thirty (30) days in which to cure the breach. If, upon expiration of the cure period, the breach is not cured, this Agreement shall be deemed terminated as of the date of such expiration.

       
       

    2. If this Agreement is terminated by the Authority for cause, in addition to all other remedies, Contractor shall be liable for all expenses incurred by the Authority in reprocuring elsewhere the same or similar items or services offered by Contractor.

       
       

    3. In the event the Authority, in its sole discretion, determines that sufficient budgeted funds are not available to appropriate for payments due to Contractor under this Agreement, the Authority shall notify Contractor of such occurrence and this Agreement shall terminate on the last day of the current fiscal period without any penalty or expense to the Authority.

       
       

11. Force Majeure. Neither party shall be liable for its non-performance or delayed performance if caused by Force Majeure. Force Majeure shall be defined as a fire, flood, act of God, war, terrorism, riot, national emergency, sabotage, civil disturbance, strike, labor dispute, pandemic, epidemic, governmental act, law, ordinance, rule, order or regulation, or events which are not the fault or are beyond the control of the party. For the avoidance of doubt, Force Majeure shall not include (1) financial distress or the inability of either party to make a profit or avoid a financial loss; (2) changes in market prices or conditions; or (3) a party’s financial inability to perform its obligations hereunder. The obligations of the party affected by the event of Force Majeure (the “Affected Party”) shall be suspended, to the extent that those obligations are affected by the event of Force Majeure, from the date the Affected Party first gives notice in respect of that event of Force Majeure until cessation of that event of Force Majeure (or the consequences thereof). The Affected Party shall use commercially reasonable efforts to resume, with the shortest possible delay, compliance with obligations under this Agreement. Upon the cessation of the event of Force Majeure, the Affected Party shall promptly give notice to the other party of such cessation.

    If an event of Force Majeure shall continue for more than thirty (30) consecutive calendar days, then the other party shall have the right to terminate this Agreement without penalty

    
    

12. Notice. All notices required or made pursuant to this Agreement shall be made in writing and must be delivered by email (with a requirement that the recipient acknowledge receipt), third party overnight courier (including overnight couriers’ services such as Federal Express) or Certified Mail, Return Receipt Requested, postage paid addressed to the party to whom notice is given at the following addresses:

    To the Authority:

    
    

    Manatee County Port Authority. Address: Attention:

    300 Tampa Bay Way, Suite One Palmetto, Florida 34221

    Telephone: (941) 722-6621

    Facsimile: (941) 729-1463 Email:

    
    

    Copy to: Port Counsel

    Bryant Miller Olive P.A.

    201 North Franklin Street, Suite 2700

    Tampa, FL 33602

    Telephone: (813) 273-6677 Email: jcowan@bmolaw.com

    
    

    To the Contractor:

    
    

    Managing Director, Saab Technologies Ltd. 300, 3500 Gilmore Way

    Burnaby, BC Canada V5G 0B8

    
    

    Facsimile: (604) 689-7119

    or to such other address as either party may, from time to time designate to the other in writing.

    
    

13. Entire Agreement. This Agreement, including the Request for Proposal dated January 10, 2023 and the Contractor’s Response dated February 3, 2023, and any exhibits or other agreements expressly incorporated herein by reference, contains the entire understanding of the Parties with respect to its subject matter. To the extent there is a conflict between the Request for Proposal dated January 10, 2023 or the Contractor’s Response dated February 3, 2023, and this Agreement, this Agreement shall govern. It is expressly understood that this Agreement shall

    supersede and replace any other agreements between the Parties for an Information Management System. No oral statement or prior written matter shall have any force or effect. The Parties hereby acknowledge that they are not relying on any representations or agreements other than those contained in this Agreement. This Agreement shall not be amended or modified except by a written instrument executed by the Contractor and the Authority. There are no understandings, representations, warranties, or agreements between the Parties with respect to the subject matter hereof unless set forth explicitly in this Agreement.

    
    

14. Severability. If any term, covenant, condition or provision (or part thereof) of this Agreement or the application thereof to any person or circumstances shall, at any time or to any extent, be judicially determined to be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision (or remainder thereof) to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant, condition and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. It is understood that the Authority shall not be subject to any liability to the Contractor in the event any term herein is found to be invalid or unenforceable.

    
    

15. Grant. The Contractor has reviewed the Department of Homeland Security Grant Agreement # EMW-2022-PU-00480-S01 with the Authority (“Grant Agreement”). The Contractor understands and represents that the Information Management System will be funded from the Grant Agreement for the originally authorized purposes of the Grant Agreement and that Contractor will comply with all applicable federal requirements and federal guidance and the applicable requirements of the Grant Agreement.

    
    

16. E-Verify. The Parties acknowledge that Contractor is a Canadian. To the fullest extent possible as a Canadian entity, for any non-exempt employees working in the United States, the Contractor shall utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility of all new employees hired by the Contractor during the term of this Agreement. The Contractor shall expressly require any subcontractors performing work or providing services pursuant to the contract to likewise utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility of all new employees hired by the subcontractor during the term of this Agreement.

    
    

17. Applicable Law. This Agreement shall be construed by and controlled under the laws of the State of Florida. The Parties consent to jurisdiction over them in the State of Florida and agree that venue for any state action arising under this Agreement shall lie solely in the courts located in Manatee County, Florida, and for any federal action shall lie solely in the United States District Court for the Middle District of Florida.

18. Waiver. No waiver of any default or failure to perform shall be valid unless set forth in writing by the waiving party and shall not constitute a waiver of any other default or failure to perform under this Agreement, or of any rights or remedies to which either Party may be entitled to on account of any such default or failure to perform.

    
    

19. Headings and Section References. The headings and section references in this Agreement are inserted only for the purpose of convenience and shall not be construed to expand or limit the provisions contained in such sections.

    
    

20. No Third Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties and shall not be construed as a benefit to any third parties, including but not limited to the general public, constituents or citizens of the Authority, nor shall it be construed as enforceable by any third parties.

    
    

21. Computation of Time. Any reference in this Agreement to time periods shall by computed by calendar days unless otherwise specified. In the computation thereof, any time period which end on a Saturday, Sunday, or legal holiday shall extend to 5:00 p.m. of the next business day. The computations stated in this paragraph shall only apply to time periods referenced in this Agreement and shall not apply to any deadlines for which a date certain is provided.

    
    

22. Authority. The Parties represent and warrant that each is authorized to enter into this Agreement without the consent and joinder of any other party and that the individuals executing this Agreement have full power and authority to bind their respective party to the terms hereof.

    
    

23. Contractor’s Terms & Conditions. Contractor’s standard client terms and conditions are attached to and made part of this Agreement as Exhibit B. In the event of a conflict between a term included in Exhibit B and any other term of the Agreement, the conflicting term that is not included in Exhibit B shall control and govern.

THE REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY.

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by themselves or by their respective duly authorized officers as of the date and year first above written to be effective on the Effective Date.

ATTEST: ANGELINA “ANGEL” COLONNESO MANATEE COUNTY PORT

Clerk of Circuit Court AUTHORITY

By:   By:                    Chairman

PORT AUTHORITY

WITNESSES:

Saab Technologies Ltd.

By:                

Witness 1 - Print Name:

Sheila Xu

Printed:

Pavel Skournik

Witness 2 - Print Name:

Controller

Tanya Dobryak

Title:

Managing Director

“CONTRACTOR”

Executive Assistant & Office Manager

Exhibit A

Exhibit B Terms and Conditions

EXHIBIT B

PARTY OBLIGATIONS

The Parties’ obligations are as described in this Master Agreement and the attached agreements and any other agreements entered. The “Definitions and General Terms and Conditions” as attached shall apply to the entire Agreement and to any addendum, statement of work or change request regarding the Licensed Software.

NOTICES

Intentionally Blank

SCHEDULE A - CONSOLIDATED FEES AND TERMS

1. Software Solution Agreement Clause 2.3: Software Solution Fees:

   
   

   
   

   Description	Fee Amount
   Project fees including software license, configuration services, implementation and training	$794,000 USD
   TOTAL COST	$794,000 USD

   
   

   NOTE: All fees are net and exclude any applicable taxes or duties. All travel costs to be charged extra.

2. Software Solution Agreement Clause 2.5 Software Solution Fee Schedule

   B.1.0. NOTE: Due to the Covid-19 situation the schedule below is tentative, will be planned as during the Requirements Analysis, and will need to remain flexible for the entirety of the project. Typically the project duration would be 9 to 12 months and Saab will make every effort to ensure an agreeable timeline with the client and make mutually agreed adjustments.

   
   

   Description	Payment Amount	Due Date
   Down payment	$160,000 USD	On signing
   Requirements Analysis Milestone 1	$160,000 USD	Milestone 1
   Installation of preparation system in Licensor’s environment Milestone 2	$160,000 USD	Milestone 2
   Completion of Mid project review Milestone 3	$160,000 USD	Milestone 3
   System Deployment in Licensee’s test environment Milestone 4	$80,000 USD	Milestone 4
   System Acceptance Milestone 5	$74,000 USD	Milestone 5
   Start of M&S (Maintenance & Support)	As per Maintenance and Support Agreement	At start of Term per M&S Agreement
   Hosting (optional) client has declined	As per Hosting Agreement	As per Hosting Agreement

   Master Agreement

   
   

3. Maintenance and Support Agreement Clause 1.4 (d) Non-Software Defect Support Services.

   Included Non-Software Defect Support Service Hours (annually) = 48

4. Maintenance Services and Support Services Net Fee

Annual Fee

Year one $107,000 USD per year Year two $110,210 USD per year Year three $113,516 USD per year Year four $116,922 USD per year Year five $120,429 USD per year

Daily Rate is as per Saab Client Wiki updated annually, currently $1775.00 USD

NOTE: All fees are net and exclude any applicable taxes or duties

Software Solution Agreement

A. SOFTWARE SOLUTION AGREEMENT

PARTY OBLIGATIONS

1. Licensor shall:

   
   

   1. Use commercially reasonable efforts to provide, in a timely manner the necessary software configuration services and implementation services to meet the deliverables set out in Schedule A (the “Deliverables”), which is incorporated by reference into this Agreement,

      
      

   2. Appoint a representative responsible for the engagement who will liaise with Licensee regarding the software configuration services and other related services and the Deliverables.

      
      

2. Licensee shall:

   
   

   1. Appoint a representative responsible for the engagement who will liaise with Licensor regarding the Deliverables;

   2. Provide servers and other equipment described in Schedule B, “Licensee Provided Hardware & Software” for the installation of the Licensed Software;

      Attachment A: Software Solution Agreement

      
      

   3. Provide timely access to facilities, information, staff and premises as necessary for the Licensor to provide its services and

   4. Make all payments as and when required under this Agreement.

ARTICLE 2

FEES/EXPENSES

1. Licensee will pay the following fees for the Software Solution:

   Software Solution Fees as set out in the Master Agreement, Schedule A, Clause A

   
   

2. All Travel and Lodging (T&L) expenses for Licensor’s staff will be billed to the Licensee at

   cost plus 10% administrative fee.

   
   

3. Licensor will invoice Licensee and Licensee will pay such invoices according to the following schedule:

   Software Solution Net Fee Schedule as set out in the Master Agreement, Schedule A, Clause B

   
   

4. All invoices shall be submitted in accordance with the Florida Prompt Payment Act, section 218.70, et seq, Fla. Statutes. All payments shall be due on the date established by the Florida Prompt Payment Act. Payment due date for purchase of goods or services other than construction services is net forty-five (45) days from the date an invoice submitted in accordance with the Florida Prompt Payment Act is received by the Licensee In the event of

   a disputed invoice, only that portion so contested will be withheld from payment and the undisputed portion shall be due and payable on the terms set forth herein. The Licensee does not pay sales tax and will provide sales tax exemption information at the written request of Contractor, where necessary.

   
   

5. Any work charged on the basis of actual time spent will be billed at the Licensor’s then current published daily rate, plus travel expenses and other costs incurred plus a 10% administrative fee. Licensor shall not perform or charge for any additional work without the written approval of Licensee.

EXPIRATION/ ACCEPTANCE/ TERMINATION

1. This Agreement shall expire when Licensee accepts the Software Solution in accordance with this Agreement and Licensor receives full payment for the Software Solution.

   
   

2. If a Deliverable is omitted or does not meet the description set out in Schedule A, Licensee will provide written notice to Licensor, within five Business Days of receipt of the Deliverable, setting out reasonable particulars of any deficiency and Licensor will endeavor, using commercially reasonable efforts to re-work the Deliverable to address the deficiency. In no event will Licensor be required to incur costs or expenses in reworking such Deliverable in any amount more than the amount paid to Licensor in initially creating the Deliverable. For the purposes of this clause Schedule A will include any changes agreed to by the parties under Clause 3.7 to be provided with the Deliverables. This clause may not be used to obligate the Licensor to meet the specific design details of a Deliverable where the functional objective has been achieved via an equivalent or better approach.

   
   

3. If Licensee fails to provide written notice of deficiency or acceptance, or fails to respond

   to Licensor, in writing within the five Business Day period in Clause 3.2, or uses a Deliverable in a production environment, Licensee’s acceptance of such Deliverable will be deemed to have been given on such date.

   
   

4. Licensee will have deemed to have accepted the Software Solution at the earlier of when:

   
   

   1. A signed acceptance is provided by the licensee.

      
      

   2. The full Software Solution is being used in a production environment.

      
      

   3. The Licensor notifies the Licensee that all the Schedule A deliverables have been delivered and, after the five business day period under the terms of Clause 3.2, there are no outstanding written notices of deficiencies.

      
      

5. Acceptance shall not be withheld solely due to defects which are classed as Major,

   Minor

   or Trivial according to the definitions in Clause 1.3.4 of the related Maintenance and Support Agreement, provided the Licensor undertakes to correct the defects in a reasonable time following the acceptance of the Software Solution.

   
   

6. Licensor will have no further obligation to perform any services under this Agreement upon acceptance by Licensee in accordance with this Article 3.

7. From time to time, the Licensee may request a change, deletion or modification to any

   of the Deliverables. Any changes to the obligations of either party, or to any other material aspect of the Deliverables will require a written change order signed by authorized representatives of both parties that describes the changes and any related cost or schedule adjustments.

   
   

8. A party may terminate this Agreement (i) on 30 days written notice for a material breach

   of this Agreement by the other party provided that if such material breach is remedied to the reasonable satisfaction of the non-defaulting party within such 30 day period such notice shall be void, or (ii) immediately in the event of the insolvency, bankruptcy or voluntary dissolution of the other party.

   
   

9. In the event of the termination or expiration of this Agreement, Licensee shall pay, upon invoice from Licensor and in accordance with the Florida Prompt Payment Act, section 218.70, et seq, Fla. Statutes, all amounts due and owing to Licensor for Services provided under this Agreement.

   
   

10. Survival. Those clauses, which by their nature ought reasonably to survive the expiration or termination of this Agreement, shall survive, including, without limitation, Article 1.2(d), Article 2 of this Agreement and Article 1 and Article 5 from the Definition and General Terms and Conditions.

DEFINITIONS AND GENERAL TERMS AND CONDITIONS

The “Definitions and General Terms and Conditions” as attached shall apply to this Agreement.

SCHEDULE A - DELIVERABLES

This Schedule A is made pursuant to the Software Solution Agreement, and will be governed by the terms of the Agreement unless expressly stated otherwise.

Saab will deliver the Seaport Manatee system in accordance with the Seaport Manatee requirements as listed in Attachment 4 of the Saab RFP proposal dated February 3, 2023, configured in a standard methodology, to meet the Licensee’s specific business processes and business rules.

SCHEDULE B - LICENSEE PROVIDED HARDWARE & SOFTWARE

The Licensor recommends that the Licensee purchases the required hardware components for the project from local vendors, so that they may obtain local hardware warranty and support.

The following are the recommended server and client configurations for a system implementation with a moderate budget. Actual server and client configurations will be discussed during the Requirements Analysis process. The Licensee is responsible for acquiring the appropriate hardware and all necessary non-Saab Technologies’ software including licenses in accordance with the following specification.

Licensee is also responsible for providing access to and licensing any external data feeds, such as IHS Ship Database or AIS data, necessary to meet the Licensee's system requirements.

MSSQL DB Server

The minimum requirements for a database server includes the following:

• 2 GHz (64-bit processor) or faster multi-core CPU

• 16 GB RAM or above

• 500 GB free disk space

• 1Gb/s network adapter

• Windows Server 2016 64-bit or above

• SQL Server SQL Server 2016 Standard Edition or later

  App Server (including MARS)

  The minimum requirements for an application server includes the following:

• 2 GHz (64-bit processor) or faster multi-core CPU

• 16 GB RAM or above

• 100 GB free disk space

• 1Gb/s network adapter

• Windows Server 2016 64-bit or above

  Web Portal Server

  The minimum requirements for an application web server includes the following:

• 2 GHz (64-bit processor) or faster multi-core CPU

• 8 GB RAM or above

• 50 GB free disk space

• 1Gb/s network adapter

• Windows Server 2016 64-bit or above

  Note: Virtualization is supported, provided each server hardware allocation meets the requirements.

  Desktop client

  The minimum requirements for a desktop running client side installed software (e.g. WinClient, AdminTool):

• 2 GHz (64-bit processor) or faster multi-core CPU

  
  

  
  

• 8 GB RAM or above

• 1 GB free disk space

• 100Mb/s network adapter

• Windows 10

  Web Client App

  Port CONTROL Web App is standards-compliant and tested to work with two last versions of following major browsers:

• Chrome, Firefox, Safari, Edge

  Note: Browser Microsoft IE is not longer supported by our Web Application

  Mobile Device for KleinMobile App

  The minimum requirements for a device running KleinMobile App

• Apple iPhone or iPad running iOS 12 or higher

SOFTWARE LICENSE AGREEMENT TERMS OF LICENSE

1. Grant of License

   1. Subject to the payment of the License Fee and the Licensee having an active Maintenance & Support Agreement and the Licensee’s compliance with all the terms and conditions of this Agreement and the related Software Solution and Maintenance & Support Agreement, Licensor grants to Licensee a perpetual, non-exclusive, limited, terminable, non-sub licensable license to install the Licensed Software at Seaport Manatee and operate the Licensed Software for its internal business purposes within the Territory of Seaport Manatee, Florida, USA.

      
      

   2. The Licensed Software means only the following modules:

      
      

      Visit Management

      
      

      Web-Agent Portal

      
      

      Resource Management Mobile Management Cargo Management Property Management Billing Management Common Operating Picture System Management

2. Restriction on Use

   The Licensee agrees to the following restrictions:

   
   

   1. Licensee shall not (and shall not permit any third party to) modify or reverse engineer (or attempt to modify or reverse engineer) the Licensed Software in any respect; and to the extent that Licensee is permitted by the law of its jurisdiction to modify the Licensed Software then Licensee warrants that it will provide written notice to Licensor reasonably in advance of any attempt to do so, and providing such notice shall be a material term of this Agreement;

      
      

   2. Any modifications (whether approved by Licensor or otherwise) made to the Licensed Software and all related Intellectual Property Rights arising from any such modifications are, and shall be from conception, creation or first reduction to practice, the sole and exclusive property of Licensor, and if made by or on behalf of Licensee, Licensee shall, at the Licensee’s expense, do all things necessary and sign all necessary documents in order to vest all rights, title and interest in such modifications (and related Intellectual Property Rights) with Licensor;

   3. Licensee shall not create any derivative works of or improvements to the Licensed Software;

      
      

   4. Licensee shall not (and shall not permit any third party to) copy, sublicense, reproduce, publish or distribute the Licensed Software in any manner. The Licensee may make copies of the Licensed Software database for internal training, reporting and testing purpose. Nothing contained in this Clause shall impair Licensee’s ability to comply with public records requests pursuant to section 119.0701, Florida Statutes;

      
      

   5. Notwithstanding Clause 1.2(d) or any other term of this Agreement, the maximum number of Licensed Software databases which the Licensee may operate for its business purposes in any production environment is one; and

      
      

   6. The maximum number of named users using permitted copies of the Licensed Software to access the Licensed Software database that Licensee may operate at any one time shall be < 200 >.

3. Term

   The term of this Agreement shall commence upon delivery of the Licensed Software by Licensor in whatever form and, unless and until terminated in accordance with this Agreement, will continue for perpetuity.

   
   

4. Termination

   1. A party will have the right to terminate this Agreement:

      
      

      1. Immediately in the event of the insolvency, bankruptcy or voluntary dissolution of the other party; or

         
         

      2. If the other party fails to comply with any material provision contained in this Agreement and has not cured the said breach within 30 days of receipt of written notice thereof, provided that notwithstanding the foregoing, Licensor may immediately terminate this Agreement on written notice if the Licensee violates any provision relating to the grant of the license in Clause 1.1 or the restrictions on the use of the Licensed Software in Clause 1.2. or if the related Software Solution Agreement is terminated for any reason prior to the acceptance of the Software Solution.

         
         

   2. Any written notice provided under Clause 1.4(a) (ii) will specify reasonable details of any breach or non-compliance on which the notice is based and which may assist the other party in curing the cause of the breach.

   
   

5. Effect of Termination

   Immediately upon termination of this Agreement all licenses granted by Licensor to Licensee under this Agreement shall terminate, Licensee shall cease all use of the Licensed Software and shall delete the Licensed Software from any computer, network or system containing any copy, including without limitation any back-up or archival copies regardless of the storage medium, and confirm by a certificate of a senior officer of Licensee that such destruction or return has occurred within 10 days of any termination. Notwithstanding this Clause, nothing shall impair Licensee’s ability to comply with the public records laws of the State of Florida and Licensee may retain any documents that it considers to be public records at its sole discretion.

   
   

6. Ownership of Intellectual Property Rights

   All right, title and interest in, and to the Licensed Software (and any derivative work, modification or enhancements to the Licensed Software) and any related Intellectual Property Rights associated with the Licensed Software are, and shall remain, the exclusive property of Licensor at all times.

   
   

7. Proprietary Notices & Goodwill

Licensee shall not obscure, change or remove any proprietary notice appearing on or in the Licensed Software, and Licensee shall reproduce all such proprietary notices on any copies of the Licensed Software provided by Licensor. Licensee shall use its reasonable efforts to protect and preserve the goodwill and image of the Licensed Software and to conduct business in a manner that as much as reasonable reflects favorably on the Licensed Software and the reputation of Licensor, and its suppliers.

LICENSE FEE

1. License Fee and Payment

   
   

   On signing this Agreement, the Licensee will pay to Licensor a one-time license fee for the Licensed Software as specified in Clause 2 of the Software Solution Agreement (the “License Fee”).

   
   

2. Software Audit

   Licensor may, at any time, conduct an audit of the operations, systems, computers and networks of Licensee to confirm Licensee’s use of the Licensed Software in compliance, and in accordance, with the terms and conditions of this Agreement.

   
   

3. Compliance

   If an audit performed under Clause 2.2 finds that Licensee is not complying, or has not complied with the terms or conditions of this Agreement, including, but not limited to, use by unauthorized users, use by Licensee in excess of the number of authorized users, named users, install locations, or other use or distribution outside the scope of the license granted in Clause 1.1, Licensor may exercise any or all of the following rights, separately or together at any time, at its discretion (without limiting or exhausting Licensor’s other rights under this Agreement, in law or equity):

   
   

   1. Licensor shall require Licensee to reimburse Licensor for the cost of the audit within 30 days of notification;

      
      

   2. Licensor shall require Licensee to pay, within 30 days of notification, any fees and amounts that would have otherwise been payable for use of the Licensed Software in excess of the license granted or used outside the scope of the license granted as such fees and amounts are calculated by Licensor; or

      
      

   3. Licensor may terminate this Agreement pursuant to Clause 1.4(a) (ii).

WARRANTY

1. Licensor warrants that the Licensed Software Solution will operate in accordance with the specifications as described in Schedule A, Deliverables as long as the Licensee maintains a valid current Maintenance and Support Agreement.

   
   

2. As Licensee’s sole and exclusive remedy for a breach of the warranty in Clause 3.1, Licensor shall use commercially reasonable efforts to fix or repair any defects in the Licensed Software in accordance with the terms of the Maintenance and Support Agreement.

   
   

3. Limitation of Warranties – See Article 1 of the DEFINITIONS AND GENERAL TERMS AND CONDITIONS incorporated into this Agreement.

DEFINITIONS AND GENERAL TERMS AND CONDITIONS

The “Definitions and General Terms and Conditions” as attached shall apply to this Agreement.

C. MAINTENANCE AND SUPPORT AGREEMENT MAINTENANCE SERVICES AND SUPPORT SERVICES

1. Licensee’s Obligations

   Licensee will provide Licensor with full, complete and timely information, support and access to Licensee’s hardware, facilities and personnel as required by Licensor to provide the Maintenance Services, Support Services and remote access to the Licensee’s system.

   
   

2. Licensor’s Obligations

   1. Subject to (i) the receipt of the applicable Maintenance Services and Support Services Fee and (ii) Licensee being (at all times) in compliance with the terms of this Agreement, Licensor will provide Licensee with the Maintenance Services and Support Services.

      
      

   2. Licensor will not be held responsible for any delays or failures in providing the Maintenance Services or Support Services due to any changes or problems that are beyond the control of Licensor including, (i) acts or omissions of Licensee or third parties not under the control of Licensor; (ii) problems resulting from third party software, hardware or services used by Licensee; (iii) changes in Licensee’s technical environment; (iv) delays in travel or manufacturing schedules of suppliers or shippers; or (v) events Force Majeure (as described in Clause 5.5 of the DEFINITIONS AND GENERAL TERMS AND CONDITIONS).

      
      

   3. Licensor may charge additional amounts for Maintenance Services and Support Services in the event that the Licensee changes the configuration of the Licensed Software, provided both parts mutually agree, in writing, to such changes and such additional charges. The rates and costs for such changes or additional services shall be at the Licensor’s then current published daily rate, plus travel expenses and other costs incurred plus a 10% administrative fee. Licensor will invoice Licensee for such costs. All invoices shall be submitted in accordance with the Florida Prompt Payment Act, section 218.70, et seq, Fla. Statutes.

   
   

3. Maintenance Services

   1. Maintenance Releases:

      Licensor will issue a new release of the Licensed Software a minimum of once per calendar year. The Licensee will be notified of releases and the accessibility of these on the Licensor's FTP server or similarly accessible internet secure data transfer site. The Licensor will develop release notes and installation instructions to assist the Licensor. The Licensee is responsible for installation and deployment of the new release into the test and/or production environment. Upon request from the Licensee, the Licensor will support deployment of releases and this work effort will be chargeable to available NDS hours or billable at the published daily rate. These releases will contain corrective modifications and may contain preventive, perfective and adaptive modifications as defined below. Corrective maintenance: Reactive modification of a software product performed after delivery to correct discovered production problems.

      Preventive maintenance: Modification of a software product after delivery to detect and correct latent faults in the software product, before they become production problems.

      Perfective maintenance: Modification of a software product after delivery to improve performance, functionality and/ or maintainability. Licensor may improve its licensed modules by adding additional features at its discretion.

      Adaptive maintenance: Licensor may, at its discretion, provide any combination of software fixes, updates, or patches that respond to environmental changes external to the Licensed Software, such as porting to new software, hardware or different operating systems recommended by Licensor, but without affecting functionality of the Licensed Software.

      Licensee will have access to documentation on the planned release through Licensor’s customer portal.

      
      

   2. Customer Advisory Group (CAG) & Technical User Group (TUG):

      Licensor will host regular Customer Advisory Group (“CAG”) and Technical User Group (“TUG”) meetings. The CAG provides a forum for Licensee’s input to the planning process and strategic direction for the Licensor’s product suite. The TUG is a technically focused forum that provides input for imminent releases. The Licensor will enroll the Licensee’s appointed personnel in the CAG and TUG. Licensee will be responsible for their personnel’s travel and accommodation costs to attend any CAG or TUG meeting.

      
      

   3. Maintenance Delivery:

      1. 24/7 support for Critical Software Defects - Licensor will make available to Licensee a telephone service for access to qualified Licensor personnel capable of analyzing Software Defects. The Licensor’s telephone service will be available 24 hours per day and 7 days (“24/7”) a week to respond to any Software Defects deemed to be Critical based on the classification in Clause 1.3.4.

         
         

         
         

      2. Non-critical Software Defects – The Licensor will respond to Licensee’s reports of Software Defects not deemed to be Critical based on the classification in Section

         1.3.4. during Licensor’s normal business hours (Pacific Standard Time).

         
         

      3. Issue Tracker Software Access – Licensor will provide online issue tracker software for the Licensee to report Software Defects and related comments and/or questions. Licensor will respond to Licensee, in writing, through this online tool to provide a written account of actions taken on reported issues.

         
         

      4. Maintenance Service Matrix:

         
         

         Maintenance Support	Telephone	Online issue tracker software
         Critical Software Defects	24/7	24/7
         Major Software Defects	Business Hours	24/7
         Minor Software Defects	-	24/7
         Trivial Software Defects	-	24/7

         
         

      5. Primary Support - Licensor will provide primary support remotely by way of a direct TCP/IP link into Licensee’s servers, (data base, application and web). Licensee will provide Licensor access through its firewall and maintain appropriate remote access software on their network. Routine maintenance, issues arising with the Licensed Software, Software Defect fixes, and updates may all be provided in this manner.

         
         

      6. Remedies - Licensor will analyze all identified Software Defects and use commercially reasonable efforts to fix these Software Defects remotely. Where Software Defects cannot be resolved remotely, Licensor may provide on-site service, with all out-of- pocket expenses being paid by Licensee

      
      

   4. Software Defect Severity Classification

      Severity for Software Defects shall be reported by the Licensee, acting reasonably, using the following classification guidelines, provided that if Licensee does not specify a level, the level shall be deemed to be Minor:

      
      

      1. Critical - A Software Defect that affects the core functionality of the Licensed Software from operating and for which there is no workaround. It prevents use of the Licensed Software at all or may result in material data corruption or loss.

         
         

      2. Major – A Software Defect that prevents the core functionality of the Licensed Software from operating and for which there is a workaround (technically or by

         
         

         way of alternative business process). Use of the Licensed Software can proceed in a degraded mode.

         
         

      3. Minor – A Software Defect that prevents non-core functionality of the Licensed Software from operating. It prevents use of the Licensed Software module or feature.

         
         

      4. Trivial - A Software Defect that prevents non-core functionality of the Licensed Software from operating (technically or by way of alternative business process), that is non-compliant with the standards for presentation (layouts and forms) and that does not affect the operational integrity of the Licensed Software.

      
      

      Any issue arising outside of the Licensee’s production environment for the Licensed Software is deemed to be either Minor or Trivial. A Software Defect that was originally reported as Critical or Major, but has been temporarily solved with a work-around, shall be automatically reduced in severity to Minor.

      
      

   5. Table for Response times:

      
      

      Type of response Software Defect severity	First Response	Commence Work	Resolution
      Critical	< = 1 Hour	< = 1 Hour	Patch
      Major	Next business day	Next business day	Next release or patch
      Minor	Within 1 week	Based on release schedule	Subsequent releases
      Trivial	Within 1 week	Based on release schedule	Subsequent releases

      
      

   6. Maintained Versions

      
      

      Licensor will provide the Maintenance Services only for the current version of the Licensed Software and the immediately prior version of the Licensed Software. Licensee acknowledges and agrees that Maintenance Services may include the requirement by Licensee to move to the then current version of the Licensed Software in order to resolve a particular issue (and that Licensor shall have no responsibility in respect of such issue unless and until Licensee moves to the most current version).

      
      

   7. No Guarantee

      
      

      Licensor does not guarantee that all or any Software Defects or problems with the Licensed Software or Support Services can be resolved or that all requests can be completed. Any problem or issue reported by the Licensee which is not the result of a Software Defect will be considered to be a “Non-Software Defect Support” issue for which the Licensee will pay all costs related to identifying and remedying of the problem

      
      

      
      

      or issue including Licensor’s technician’s time, travel and lodging (T&L ) expenses and other costs incurred plus 10% administrative fee.

      
      

4. Support Services

Licensor will use commercially reasonable efforts to provide the following "Support Services”:

1. Telephone Support - Licensor will make available to Licensee a telephone service for access to qualified Licensor personnel, capable of providing the Non- Software Defect Support required, during Licensor’s normal business hours. (Pacific Standard Time).

   
   

2. Issue Tracker Software Access - Licensor will provide online issue tracker software for the Licensee to report Non-Software Defect Support issues and related comments and/or questions. Licensor will respond to Licensee, in writing, through this online tool to provide a written account of actions taken on reported issues.

   
   

3. Email Access - Licensor will provide Non-Software Defect support through email communication on an ongoing basis.

   
   

4. Non-Software Defect Support Services – The number of hours of Non-Software Defect Support per year as specified in the Master Agreement, Schedule A, Clause D, “Non-Defect Support Hours” are included in this agreement. This is explicitly to be used for support and not for work. Licensor will keep track of all hours of service rendered and report these hours to Licensee on a monthly basis. Credited Non- Defect Support hours will accrue for each year of the term and may only be used in the year in which they accrue. Unused hours expire on each anniversary of the Effective Date. Additional Non-Software Defect Support will be provided at the Licensor’s then current published daily rate, travel expenses and other costs incurred plus 10% administrative fee.

SERVICES FEES AND PAYMENT TERMS

1. Term

   
   

   The term of this Agreement shall commence on the completion of deployment or system acceptance, whichever is the later date and shall continue thereafter for a period ending 60 months, unless and until terminated as provided hereunder (the "Initial Term").

   
   

2. The Licensor will provide the Maintenance Services and Support Services as described in this Agreement including the definition of defect and non-defect support.

   
   

3. Upon expiration of the Initial Term, this Agreement shall automatically renew for additional successive 12 month terms unless and until Licensee provides written notice of nonrenewal at least 90 days prior to the end of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term"), or unless and until sooner terminated as provided hereunder. If the Term is renewed for any Renewal

   
   

   Saab Maritime Traffic Management Page 24 of 33

   
   

   
   

   Term(s) pursuant to this Clause, the terms and conditions of this Agreement during each such Renewal Term shall be the same as the terms in effect immediately prior to such renewal, subject to any change in the amount of fees payable hereunder by the Licensee during the applicable Renewal Term as set forth in this Agreement. In the event Licensee provides timely notice of its intent not to renew this Agreement, then, unless otherwise terminated in accordance with its terms, this Agreement shall terminate on the expiration of the then-current Term.

   
   

4. Termination

   Licensor will have the right to terminate this Agreement:

   
   

   1. Immediately in the event that the Licensee fails to pay the Maintenance Services and Support Services Fee as required under this Agreement; In this case, Licensor has the right to invoice all remaining amounts under this contract at once, plus a penalty of 10%;

      
      

   2. Immediately in the event of the insolvency, bankruptcy or voluntary dissolution of the Licensee; or

      
      

   3. On 30 days written notice if an event of Force Majeure (as described in Clause 5.5 of the DEFINITIONS AND GENERAL TERMS AND CONDITIONS) persists

      for more than 60 days provided that no refunds of any pre-paid amounts will be paid by Licensor; or

      
      

   4. If the Licensee has materially breached any provision contained in this Agreement and has not cured the breach within 30 days of receipt of written notice thereof. In this case Licensor has the right to invoice all remaining amounts under this contract at once, plus a penalty of 10%.

      
      

5. License Agreement

   
   

   This Agreement shall automatically terminate without notice if the License Agreement expires or terminates for any reason.

   
   

6. Effect of Termination

   Upon termination of this Agreement for any reason, Licensor will immediately cease providing any Maintenance Services and Support Services. No refund for License Fees or Maintenance and Support Fees are applicable.

   
   

7. Maintenance Services and Support Services Fees

   Licensee shall pay Licensor the Maintenance Services and Support Services Fees listed below:

   
   

   1. The Licensee shall pay to Licensor each year an annual Maintenance Services and Support Services Fee as defined in Schedule A, Section E of the Master Agreement (the “Maintenance Services and Support Services Net Fee”) upon invoice from Licensor. All invoices shall be submitted and payable in accordance with the Florida Prompt Payment Act, section 218.70, et seq, Fla. Statutes.

      
      

   2. The Maintenance Services and Support Services Fee is based on the Licensed Software.

      
      

   3. The Licensor shall not provide any Maintenance Services and Support Services to the Licensee unless the Maintenance Services and Support Services Fee is paid in full on or before the due date.

      
      

   4. All subsequent Maintenance Services and Support Services Fees are due and payable prior to each anniversary date following the initial fee payment in accordance with Clause 2.7(a).

      
      

   5. If the Licensee ceases, at any time, to pay the Maintenance Services and Support Services Fee for the Maintenance Services and Support Services, in order to re- initiate the Maintenance Services and Support Services, Licensee shall pay all of the amounts that otherwise would have been payable for the period of time in which no Maintenance Services and Support Services Fees were paid and prepay the then current Maintenance Services and Support Services Fee for the next 12 month period.

      
      

   6. Payment shall be in United States dollars and will be due in accordance with Clause 2.7(a). If a payment is late, Licensor shall be entitled to suspend performance under this Maintenance and Support Agreement and, at its option, terminate the Agreement.

      
      

8. Increases in Maintenance Services and Support Services Fee

   After the first year of the Term, the Maintenance Services and Support Services Fee may, upon mutual written agreement of Licensor and Licensee, be increased in each subsequent year to a maximum of 3% annually above the Maintenance Services and Support Services Fee charged in the immediately previous year.

   
   

9. Additional Services

Any request for services outside the scope of this Agreement, including training or changes to the Software Solution, will be submitted in writing by Licensee for Licensor’s written approval, prior to the commencement of work on the changes or provision of the additional services. The rates and costs for such changes or additional services shall be at the Licensor’s then current published daily rate, plus travel expenses and other costs incurred plus a 10% administrative fee. Approval via email or Licensor’s web based issue tracking system will constitute written approval for the purposes of this clause. Additional functionality, changes, modules, etc. purchased in the future may increase the annual maintenance fee from that time forward.

DEFINITIONS AND GENERAL TERMS AND CONDITIONS

The “Definitions and General Terms and Conditions” as attached shall apply to this Agreement.

D. DEFINITIONS AND GENERAL TERMS AND CONDITIONS

The following definitions and terms and conditions shall form part of the Agreement including the Solution Agreement, License Agreement, Maintenance and Support Agreement and any addendums, statement of work or change requests regarding the Licensed Software entered into by the parties unless otherwise expressly agreed to in writing.

DEFINITIONS

Capitalized terms used in this Agreement shall have the meaning ascribed below:

“Agreement” means the Master Agreement and any agreements referenced in the Master Agreement as included in the Agreement and all subsequent addendums and other any change requests, work orders or other agreements entered into by the Parties regarding the Licensed Software, except that where the term is used in one of the Related Agreements, it shall only mean that particular Related Agreement.

“Configuration” means the process of adapting the Licensed Software to Licensee’s requirements without changing Source Code

“Core Functionality” means execution of Licensee’s routine workflow

“Enhancement” means an improvement to an existing feature or addition of a new feature

“Intellectual Property Rights” means any copyright, copyright registration, copyright registration application, patent right (including but not limited to issued or granted patents and patent applications), trademark, trademark registration and application, trade name, trade name registration and application, registered and unregistered design right, right of priority, confidential processes and information, trade secret, know how, invention, inventor’s notes, drawings and designs and any right in any of the foregoing, by whatever names those various rights may be known as anywhere in the world, and all such other rights of a like nature, arising now and in the future;

“License Fee” is the fee specified in the License Agreement for the License purchase.

“License Agreement” means the License Software Agreement between the Licensor and Licensee attached to Agreement.

“Licensed Software” means an Object Code version of the modules of the Licensor’s software and the architecture and structure of the related

database that has been licensed to the Licensee pursuant to the License Agreement;

“Marks” means Licensor’s trademarks, trade names, service marks, logos, designs and service names;

“Non-Software Defect Support” is service provided by the Licensor at the request of the Licensee in regards to the use of the Licensed Software, which is not directly related to supporting and correcting a Software Defect or not included as part of additional Maintenance Services Work under this Agreement.

“Object Code” means computer code that is readable and usable by machines but not generally readable by humans without reverse assembly, reverse compiling or reverse engineering;

“Person” means any individual, company, partnership, trustee, trust or unincorporated association, joint venture, syndicate, sole proprietorship, executor, administrator, or other legal representatives, regulatory body or agency, government, governmental agency, authority or entity, however designated or constituted;

“Related Agreement” means an agreement, other than the Master Agreement, referenced in the Agreement.

“Software Defect” is an error, flaw, failure, or fault in the licensed software that produces an incorrect or unexpected result, or causes it to behave in unintended ways

“Software Solution” means the instance of the Licensed Software configured and installed in accordance with the Software Solution agreement.

“Source Code” means computer code and related system documentation that is in human-readable form, including all comments and any procedural code such as job control language;

“Territory” means the territory specified in Clause 1.1

1. of the License Agreement; and

“Warranty” has the meaning given in Clause 3.1 of the License Agreement.

INTERPRETATION

1. The words “hereof”, “herein”, “hereunder” or “hereto” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or Clause unless otherwise stated. All references to Section or Clause numbers refer, unless expressly stated otherwise, to the Section or

   
   

   
   

   Clause in the same Agreement having those numbers.

2. In this Agreement reference to something in the masculine form includes the feminine and neuter forms and reference to the singular includes the plural and vice versa and modifications to the provisions of this Agreement may be made as the context requires.

3. The word “including”, when followed by any general statement, term or matter, is not to be construed to limit such general statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, but rather is to be construed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter.

4. The headings used in this Agreement are for convenience and reference only and shall not affect the construction or interpretation of this Agreement.

5. In the event of an inconsistency or conflict between these General Terms and Conditions and the Master Agreement or an attached Related- Agreement, schedule, or exhibit thereto, the wording of the Related-Agreement (or schedule or exhibit thereto) shall prevail.

WARRANTY

1. Limitation of Warranties

Except as expressly set out in the attached agreements, licensor makes no other warranties, conditions or representations with respect to the licensed software or otherwise under this agreement, and the warranties expressly provided in the attached agreements are in lieu of all other warranties, representations and conditions, express or implied, including but not limited to the implied warranties of merchantability or fitness for a particular purpose. Without limiting the foregoing, licensor does not warrant that the licensed software will meet the requirements of licensee, be non- infringing or that the operation of any licensed software will be free from interruption or errors.

NOTHING CONTAINED HEREIN SHALL BE CONSTRUED AS A WAIVER OF THE PARTIES’ IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING.

INDEMNITY AND LIMITATION OF LIABILITY

1. No Consequential Damages

   Except for infringement claims set out Clause 2.4, in no event shall licensor be liable to licensee under any theory of law, including, contract, negligence,

   
   

   strict liability or other legal or equitable theory, for a loss of profits, Business, Revenue or customers, or for any indirect, special, incidental, punitive or consequential damages of any kind, even if licensor has been advised of the possibility of such damages.

   
   

2. Limitation to Liability

   Except for infringement claims set out in Clause 2.4, in any circumstances where licensor becomes liable to licensee under this agreement or in relation to the licensed software, in no event will the licensor’s total aggregate liability for any and all damages arising out of, or related to this agreement, for any and all claims related to the license granted to the licensee for the licensed software exceed the amount actually received by licensor as the license fee under this agreement.

   
   

3. Licensor

   
   

   For the purposes of Clauses 2.1 and 2.2, “Licensor” shall include the Licensor and its directors, officers, employees, owners, affiliates, distributors, licensors, suppliers, agents, representatives or other licensees.

   
   

4. Infringement Claims

   1. Licensor shall defend, at its expense, any action brought against Licensee to the extent that such action is based upon a claim that the Licensed Software infringes any copyright or patent rights for any patent issued as at the Effective Date of any third party in the Territory, and Licensor will pay any settlement amount or final judgment awarded by a court against Licensee attributable to such claim provided that in the event of any such claim:

      1. Licensor shall have sole control and rights to approve of any such defense, action or settlement negotiations;

      2. Licensee notifies Licensor promptly in writing of such claim, makes no admissions of liability or otherwise compromises Licensor’s defense or settlement of such claim; and

      3. Licensee, at Licensor’s expense (except for reasonable work effort of Licensee’s employees to obtain information), provides Licensor with all relevant information available to Licensee in connection with the claim.

   2. If the Licensed Software as delivered to Licensee is held to infringe the copyright or patent rights of any patent issued as at the Effective Date in

      
      

      
      

      the Territory of any third party and Licensee is enjoined from using that Licensed Software, or if Licensor reasonably believes that the Licensed Software so infringes, Licensor may, at its expense, do one of the following: (i) procure for Licensee the right to continue to use the Licensed Software free from any liability for that infringement, (ii) replace the Licensed Software with a non-infringing substitute which substantially provides materially the same functionality of the Licensed Software, or (iii) if Licensor determines that Clause (b)(i) and (b)(ii) are not commercially feasible, terminate this Agreement.

   3. Clauses 1.1, 2.4(a) and 2.4(b) state the entire liability of licensor for any infringement or violation of any right of any third party.

   4. Licensor hereby waives its entitlement, if any, to immunity under section 440.11, Florida Statutes. Nothing contained in this contract, and specifically this provision requiring Licensor to indemnify the Licensee, is intended to nor shall it be construed as an additional waiver of sovereign immunity by Licensee beyond the Licensee’s expressed written contractual obligations contained within this Agreement, nor shall it be construed as a waiver of any defenses or limitations to any claims, including those based on the doctrine of sovereign immunity or section 768.28, Florida Statutes.

      
      

5. Limits on Indemnity

Licensor will have no liability or obligation under Clause 2.4(a) for infringement of any third party Intellectual Property Rights and will not be responsible for the Licensed Software related to:

1. Any combination of the Licensed Software with non-Licensor hardware, equipment or software by a Person other than Licensor;

2. Any modification of the Licensed Software (or part thereof) unless such modification was made by the Licensor; or

3. Any misuse or use of the Licensed Software contrary to the terms and condition of this Agreement or if Licensee is otherwise in breach of this Agreement.

CONFIDENTIAL INFORMATION

3.1 Confidential Information

For the purposes of this Agreement, “Confidential Information” shall mean all information and materials, whether in written, oral, electronic, graphic or any other form, furnished or disclosed by or on behalf of the Licensor to the Licensee, including any information issued, used, disclosed or developed in connection with the Licensed Software including any materials provided pursuant to any separate support and maintenance agreement for the Licensed Software between the parties. The Licensor and the Licensee acknowledge that this Agreement requires

the Licensor to provide certain records, documents or instruments (collectively, “records”) that may include proprietary or confidential information, the disclosure of which to third parties may be damaging to the Licensor or other third parties who contract with the Licensor. At the time of providing such records, the Licensor’s highest-ranking officer shall certify in writing as to the confidentiality of any such records submitted to the Licensee that are deemed confidential and proprietary by the Licensor and include a statement specifying the legal basis (including specifying the applicable legal citation) of treating such records as confidential and proprietary in light of Florida’s Public Records Act. To the extent possible under law, the Licensee shall hold such records and information in strict confidence and shall use such records and information only in connection with this Agreement, except where required to be disclosed under any applicable federal or state law requiring public disclosure of information relating to the business of the Licensee or any order of a court or public agency having jurisdiction requiring disclosure. The Licensor shall comply with any policy or policies adopted by the Licensee from time to time concerning the treatment of confidential information of third parties provided to the Licensee. The Licensor shall not discuss this Agreement, or any matters pertaining thereto, with the public press, representatives of the public media, public bodies or representatives of public bodies, without the Licensee’s prior written consent. The Licensor shall have the right, however, without the Licensee’s further consent, to communicate with persons (including third parties) or public bodies where necessary to perform under this Agreement.

PERSONNEL

1. Personnel

Neither party will, during the term of the Agreement and for 1 year afterwards, hire any employee of the other party without obtaining the prior written approval of the other party. A party breaching this provision shall pay to the other party 100% of the annual compensation of any such consultant or employee, including, without limitation, bonuses, such amount being a genuine pre-estimate of damages and not a penalty. Nothing contained herein shall impair the Licensee’s competitive procurement requirements under applicable Florida law.

MISCELLANEOUS

1. Assignment Prohibited

   Neither Licensee or Licensor may assign any of its rights, interest or obligations (in whole or in part) in

   the other party, which consent may be withheld for any reason, and any attempt by Licensee or Licensor to assign, sub-license or

   
   

   
   

   delegate any rights, duties or obligations which arise under this Agreement without such consent will be void and will be deemed a material breach of this Agreement. Any assignee will agree to be bound by the terms and conditions of this Agreement in writing prior to any assignment.

   
   

2. Taxes Extra

   Licensee agrees to pay all applicable sales or use taxes and other charges of any kind (except for taxes calculated or payable upon Licensor’s net income or capital) imposed by any federal, regional, provincial, state or local governmental entity for products or services provided by Licensor under this Agreement. Licensee shall indemnify and hold Licensor harmless from all claims and liability arising from Licensee’s failure to pay any such taxes or charges. Licensee, as a public entity, is exempt from certain sales taxes and will provide related documentation to Licensor upon request.

3. Further Assurances

   Licensee shall promptly execute and deliver to Licensor at the cost of Licensee such further documents and assurances and take such further actions as Licensor may from time to time reasonably request in order to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights, interests and remedies intended to be created in favour of Licensor.

4. Governing Law

   This Agreement shall be construed by and controlled under the laws of the State of Florida. The Parties consent to jurisdiction over them in the State of Florida and agree that venue for any state action arising under this Agreement shall lie solely in the courts located in Manatee County, Florida, and for any federal action shall lie solely in the United States District Court for the Middle District of the State of Florida, Tampa Division.

   
   

5. Force Majeure

   A party shall not be liable and not deemed to be in default for any delay or failure in its performance under this Agreement or interruption of service resulting directly or indirectly from any event beyond the reasonable control of the affected party, including, but not limited to, natural acts, civil or military authority, acts of public enemy, wars, riots, civil disturbances, accidents, fire, explosions, earthquakes, floods, strikes, lockouts, labor disturbances, shortages of suitable parts, labor or transportation, or delays caused by suppliers, and

   
   

   the party responsible for performance will be excused from performance of the obligation affected by such event to the extent and for as long as such circumstances prevail. The lack of money, credit or financing shall be deemed to not be an event beyond a party’s reasonable control.

6. Export Controls

   Licensee will comply with all export laws, restrictions and regulations having application to it, whether of Canada, the United States or any foreign agency or authority, and has not and will not export, re-export or otherwise transmit, download or use, directly or indirectly, any software, information, data, or other materials received under this Agreement in violation of any such applicable restrictions, laws or regulations.

   
   

7. No Implied Waivers

   Any failure by a party to enforce at any time any of the provisions of this Agreement, including without limitation the termination provisions of the Agreement, shall not be construed to be a waiver of such provision or of the right of such party thereafter to enforce such provision or exercise any other rights available to it under this Agreement or at law.

   
   

8. Severability

   If any provision of this Agreement is unenforceable or invalid for any reason whatsoever, such unenforceability or invalidity will not affect the enforceability or validity of the remaining provisions of this Agreement or the enforceability or validity of any other agreement incorporated in this Agreement, and such unenforceable or invalid provision will be severed from the remainder of this Agreement. Termination of any work order or of any agreement incorporated in this Agreement will similarly not affect the enforceability or validity of the remaining provisions of this Agreement or the enforceability or validity of any other agreement incorporated in this Agreement,

   
   

9. Headings

   Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement

   
   

10. Entire Agreement

    This Agreement will be interpreted in accordance with its terms and without any strict construction in favor of or against either party. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements,

    
    

    
    

    written or oral, including, without limitation, the terms of any purchase order. No amendment to or modification of this Agreement will be binding unless agreed to in writing and signed by a duly authorized representative of both parties.

    
    

11. Counterparts

    This Agreement may be executed in one or more counterparts, each of which shall be deemed an

    
    

    original, but all of which together shall constitute one and the same instrument.

    
    

12. Survival

    Those clauses, which by their nature ought reasonably to survive the expiration or termination of this Agreement, shall survive.

    
    

13. Grant

    
    

    The Licensor has reviewed the U.S. Department of Homeland Security Grant Agreement # EMW-2022-PU-00480-S01 with the Licensee (“Grant Agreement”). The Licensor understands and represents that the Agreement will be funded from the Grant Agreement for the originally authorized purposes of the Grant Agreement and that Licensor will comply with all applicable U.S. federal requirements and federal guidance and the applicable requirements of the Grant Agreement.

    
    

14. E-Verify.

    
    

    The Licensor shall utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility of all new employees hired by the Licensor during the term of this Agreement. The Licensor shall expressly require any subcontractors performing work or providing services pursuant to the contract to likewise utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility of all new employees hired by the subcontractor during the term of this Agreement.

    
    

15. Public Records.

    
    

    Pursuant to section 119.0701, Florida Statutes, for any tasks performed by Licensor on behalf of the Licensee, Licensor shall: (a) keep and maintain all public records, as that term is defined in chapter 119, Florida Statutes (“Public Records”), required by the Licensor to perform the work contemplated by this Agreement; (b) upon request from the Licensee’s custodian of public records, provide the Licensee with a copy of the requested Public Records or allow the Public Records to be inspected or copied within a reasonable time at a cost that does not exceed the costs provided in chapter 119, Florida Statutes, 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 for the duration of the term of this Agreement and following completion or termination of this Agreement, if

    Licensor does not transfer the records to the Licensee in accordance with (d) below; and (d) upon completion or termination of this Agreement, (i) if the Licensee, in its sole and absolute discretion, requests that all Public Records in possession of Licensor be transferred to the Licensee, Licensor shall transfer, at no cost, to the Licensee, all Public Records in possession of Licensor within thirty (30) days of such request or (ii) if no such request is made by the Licensee, Licensor shall keep and maintain the Public Records required by the Licensor to perform the work contemplated by this Agreement. If Licensor transfers all Public Records to the Licensee pursuant to (d)(i) above, Licensor shall destroy any duplicate Public Records that are exempt or confidential and exempt from Public Records disclosure requirements within thirty (30) days of transferring the Public Records to the Licensee and provide the Licensee with written confirmation that such records have been destroyed within thirty (30) days of transferring the Public Records. If Licensor keeps and maintains Public Records pursuant to (d)(ii) above, Licensor shall meet all applicable requirements for retaining Public Records. All Public Records stored electronically must be provided to the Licensee, upon request from the Licensee’s custodian of public records, in a format that is compatible with the information technology of the Licensee. If Licensor does not comply with a Public Records request, or does not comply with a Public Records request within a reasonable amount of time, the Licensee may pursue any and all remedies available in law or equity

    including, but not limited to, specific performance. The provisions of this section only apply to those tasks in which Licensor is acting on behalf of the Licensee.

    IF THE LICENSOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE LICENSOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: (941) 722-6621, RECORDSCUSTODIAN@SEAPORT MANATEE.ORG, PORT MANATEE, 300 TAMPA BAY WAY, SUITE ONE, PALMETTO, FL 34221.

    
    

16. Fiscal Non-Funding.

In the event the Licensee, in its sole discretion, determines that sufficient budgeted funds are not available to appropriate for payments due to Licensor under this Agreement, the Licensee shall notify Licensor of such occurrence and this Agreement shall terminate on the last day of the current fiscal period without any penalty or expense to the Licensee.