26-035-RFP_SCADA_Upgrade_-_Sample_Contract_-_Attachment_F.pdf

Rev. 2017.04.18 1

CONTRACT BETWEEN

KENTON COUNTY AIRPORT BOARD

AND

This contract is made as of _______ 202_, between the Kenton County Airport Board, a Municipal corporation, established pursuant to the provisions of Chapter 183 of the Kentucky Revised Statutes (“KCAB”), operator of the Cincinnati/Northern Kentucky International Airport (”CVG”), located in Boone County, Kentucky and____________________________, authorized to do business in the Commonwealth of Kentucky, with business offices located at ___________________________ (“Contractor”).

SCOPE OF SERVICES

Contractor must furnish work and services as specifically assigned by KCAB including the furnishing of labor, material, equipment, personnel, supervision, tools, and all other items and facilities necessary to provide Supervisory Control and Data Acquisition (SCADA) Upgrades and Maintenance at CVG. Contractor must provide all hardware, equipment, wiring, cabling, connectivity, interfaces, software, services, labor, material, tools, training, manuals, drawings, schematics, consulting services, support and all other items required to design, implement, operate, maintain and upgrade, in a first class and professional manner, a SCADA System (“System”) as more particularly described in the Request for Proposal (#26-035-RFP) and the Contractor’s response to same which are incorporated in their entirety by reference, and portions of both are attached as Exhibit A. Contractor must provide the work and services consistent with this Contract and the provisions set forth on Exhibit A. When there is a conflict in the terms of the Contract and Exhibit A, the terms of this Contract prevail.

COMMENCEMENT AND COMPLETION

This Contract commences on __________and continues until _5-year term_, unless terminated earlier pursuant to the provisions set forth herein. KCAB, at its sole discretion, may extend the term for maintenance services for so long as the Contractor continues to market, upgrade or provide maintenance services to others related to the System.

PAYMENT AND REIMBURSEMENT

KCAB agrees to pay Contractor and the Contractor agrees to accept from KCAB in payment for the work and services performed by Contractor under this Contract an amount not to exceed $_____________, which amount is subject to payments and adjustments as provided herein. This amount is payable by KCAB upon satisfactory completion of the work and services by Contractor. The Contractor must submit to KCAB one invoice for payment upon completion of the work and services described herein. The invoice must contain a detailed description of the work and services performed by Contractor, and a list of the materials used by Contractor in performing the work and services. Subject to the provisions set forth below, KCAB must pay to Contractor the amount set forth in Contractor’s invoice on or before 30 days from the receipt of the invoice by KCAB. If KCAB does not approve Contractor’s invoice, KCAB must pay such amount as it deems owing to Contractor and give Contractor written notice of why approval is not given. In addition to any other rights and remedies available to KCAB, in the event the Contractor has incurred any liability to KCAB, whether Contractor’s liability is liquidated or unliquidated, present or future, accrued or contingent, whether arising from or under this Contract or otherwise, and whether the liability is based in contract, tort or otherwise, KCAB may without notice to Contractor set off any amount of such liability against any liability of KCAB to Contractor arising from or under this Contract.

TESTING AND ACCEPTANCE

The Contractor and KCAB must develop, in writing, an implementation schedule for the delivery of the System on the date determined by KCAB and the performance of the Contractor’s services under this Contract, (“Implementation Schedule”), together with a system acceptance test document describing the series of system tests necessary to demonstrate compliance with KCAB’s System requirements (“System Acceptance Test Document”). The testing is more particularly described in Exhibit A.

The Contractor must notify KCAB when the System has been installed and is ready to undergo acceptance tests. The system acceptance tests must be conducted according to the System Acceptance Test Document on a date determined by KCAB. A representative of Contractor and a representative of KCAB must be present for the system acceptance tests and each must sign off on the form provided as part of the test procedure whether each item of the test passed or failed. If the System does not fulfill the requirements of the System Acceptance Test Document, or otherwise conform to Exhibit A, as determined by KCAB, the Contractor must correct the defects at no additional cost to KCAB by the date determined by KCAB. On the specified date, Contractor must repeat the acceptance tests for the applicable part of the System that failed. If Contractor has been provided two or more opportunities to correct the defect under the above described procedure and the defect(s) still exists, as determined by KCAB, KCAB has the right to accept the functional part of the System and make an equitable adjustment in the contract price for the defect, or reject the System entirely. The term “Acceptance Date” as used under this Contract means the date KCAB designates in writing to Contractor that it has accepted the System.

PURCHASE OF EQUIPMENT AND LICENSE TO USE SOFTWARE

On the Acceptance Date, all right, title and interest in the hardware, equipment, wiring, cabling, interfaces, material, manuals, drawings, schematics and other items consisting of the System, and such other items supplied by Contractor from time to time under this Contract in connection with operating, maintaining or upgrading the System transfers and vests in KCAB; excepting only the software for the System.

With respect to System software, KCAB has a perpetual, non-exclusive license to use the System software and any upgrades and modifications to the System software for its use at CVG. Termination or cancellation of this Contract does not affect the System software license granted to KCAB.

USER MATERIALS

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Contractor must provide KCAB with all user documentation, manuals and materials related to the System (“User Materials”). KCAB may make additional copies of the User Materials for its use in operating the system. All copies will include Contractor’s confidential notices as they appear on the copies provided by Contractor.

CONFIDENTIAL INFORMATION

Any documents provided to the Contractor by KCAB pursuant to this Contract, including but not limited to reports, surveys, calculations, plans, maps, estimates, and other work product including any exhibits, and any information, reports or data which may be given to or assembled by Contractor pursuant to the terms of this Contract, must be kept strictly confidential, and not made available or disclosed to any individual or organization by Contractor without the prior written approval of KCAB.

WARRANTY

For a period of _____ year(s) following the Acceptance Date, the Contractor warrants and represents that the System: (i) is free from defects, errors, and malfunctions in material, design and workmanship; (ii) is suitable for KCAB’s normal use and service; and (iii) conforms to the requirements of Exhibit B (the “SLA”).

The Contractor must provide all of the Maintenance Services during the Warranty at no additional charge other than as agreed upon for the Warranty.

The Contractor’s Warranty does not apply to modifications that are made to the System by KCAB unless acting at the direction of Contractor.

During the Warranty, if any aspect of the System fails to meet the foregoing warranties, Contractor must immediately either repair or replace the nonconformity at no additional charge to KCAB.

The Contractor further warrants and represents that Contractor will perform its services consistent with the level of care and skill ordinarily exercised by other contractors in their industry under similar circumstances at the time the Contractor’s services are performed. Contractor must exercise due and proper care in the hiring of persons for the performance of the services under this Contract.

MAINTENANCE OF SYSTEM

The Contractor must provide the System maintenance, service and support specified in the Service Level Agreement (“SLA”) attached as Exhibit B and incorporated by reference. These services will be at no additional charge during the Warranty period. After the Warranty period, and at the sole discretion of KCAB, Contractor must provide maintenance, service and support as specified in the SLA for an annual sum not to exceed $_______.__. The Maintenance Services specifically include, but are not limited to, all software upgrades and new releases of the software.

LAWS AND ORDINANCES

This Contract is governed by and construed in accordance with the laws of the Commonwealth of Kentucky. Contractor must comply with all present and future federal, state, local laws, and advisory circulars, applicable to the rendering of the services and the System. Further, Contractor must comply with all present and future rules and regulations of KCAB and any other governmental agency. KCAB and Contractor agree that any legal or equitable action for claims, debts or obligations arising out of or related to this Contract must be brought solely in the Circuit Court of Boone County, Kentucky or United States District Court for the Eastern District of Kentucky, Covington Division, and that either Court has personal jurisdiction over the parties and venue of the action is appropriate in each Court.

ASSIGNMENT

Contractor may not sublet, subcontract, assign or transfer any work under this Contract without the express written consent of KCAB. Any subletting, subcontracting, assignment or transfer of any work under this Contract is expressly made subject to all terms, conditions, or provisions of this Contract. In the event a subcontractor is approved, payment for the performance of work is the responsibility of and must be made directly by Contractor unless otherwise specifically provided for and approved in writing by KCAB.

TERMINATION

KCAB may terminate this Contract at any time, without forfeiture, waiver or release of any rights of KCAB upon default or breach by the Contractor in the performance of the work to be provided by Contractor under this Contract or in the non-observance or non-compliance with any of the terms and conditions of this Contract, or if KCAB determines, in KCAB's reasonable discretion, that the services rendered or work performed by Contractor is unsatisfactory in any way. KCAB may give Contractor immediate written notification of such termination at any time. Upon notice of such termination, Contractor must immediately cease or cause to be ceased all services or work under this Contract.

Contractor must invoice and be paid for only those services rendered and work performed through the date of termination, which are reasonably satisfactory to KCAB. Notwithstanding the above, Contractor is not relieved of liability to KCAB for damages sustained by KCAB by reason of any breach or default of this Contract by Contractor and KCAB may withhold any payments to Contractor for the purpose of set off for any damages sustained by KCAB.

For any other cause whatsoever, or for no cause, KCAB has the right to terminate this Contract at any time upon thirty (30) days’ written notice to Contractor of such termination. Contractor must cease or cause to be ceased all services or work upon those services rendered and work performed through the date of termination and must provide any and all documents and reports relating thereto to KCAB as applicable upon payment therefor.

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BACK-UP AND RETURN OF DATA

Contractor must record a back-up copy of all data appearing on KCAB’s System account on a daily basis. Contractor must destroy data and records associated with KCAB’s account only upon written notification by KCAB.

Within twenty-four (24) hours from expiration or termination of the Contract, whichever occurs first, Contractor must provide KCAB a complete copy of all KCAB data in a standard database (such as SQL) or text delimited format, destroy all copies of KCAB data and any backups or disaster recovery copies in Contractor’s possession, and provide a certificate of destruction to KCAB. Data destruction methods must conform to U.S. Department of Defense data destruction requirements.

PERSONNEL

Contractor represents that it has or will secure at its own expense, all personnel required to properly perform the services under this Contract.

The personnel may not be employees of KCAB. Except for any legally prohibited reasons, KCAB has the right at all times to require Contractor to remove and/or replace any personnel working on KCAB's property. The employees of Contractor are under the sole control and direction of Contractor, who is directly responsible for their acts and omissions. It is understood that the Contractor is obligated to frequently inspect the quality and effectiveness of its work and when inspections indicate that there is a deficiency, the Contractor must correct the deficiency without hesitation. Contractor must perform, or supervise the performance, all the work and services required under this Contract, and all personnel engaged in the work must be fully licensed, certified and qualified and authorized under state and local law to perform the services. All services must be performed in a professional manner by persons skilled in their respective trades, and in accordance with generally accepted professional practice.

CLAIMS FOR INFRINGEMENT

Contractor warrants that the goods and services furnished are delivered free of any claim of any third party for infringement of any patent, copyright, trademark, trade dress, or similar matter. Contractor must indemnify, defend and hold harmless KCAB for any such infringement claims, demands, suits, or actions (including all reasonable costs of investigation, defense, attorney’s fees, court costs and expert fees). If, in any suit arising from such claim, the continued use, in whole or in part, of the System is enjoined by any court of competent jurisdiction, Contractor must at KCAB’s option, in addition to all other remedies available to KCAB against Contractor, either: (1) procure for KCAB the right to continue using the System, or (2) modify the System so that it becomes non-infringing, or (3) replace the System or portions of the System so that it becomes non-infringing, or (4) remove the System and refund the contract price.

LIABILITY, INDEMNITY AND INSURANCE

A. Notice: Each party must give to the other prompt and timely written notice of any claim made or suit instituted coming to its knowledge which in any way directly or indirectly, contingently or otherwise, affects or might affect either, and each has the right to participate in the defense of the same to the extent of its own interest.

B. Professional Liability: To the fullest extent permitted by law, Contractor agrees to indemnify and hold KCAB, its Board of Directors, officers and employees harmless from and against any and all liabilities, demands, suits, claims, losses, fines or judgments, including all reasonable costs of investigation and defense thereof (including, but not limited to, attorney’s fees, court costs and expert fees) arising by reason of or resulting from the negligent acts, errors or omissions of Contractor, its directors, officers, agents or employees in the performance and furnishing of its professional services under this Contract. KCAB must give Contractor reasonable notice of any such claim or action. Contractor in carrying out its obligations under this paragraph must use counsel reasonably acceptable to KCAB. The provisions of this paragraph survive the expiration or earlier termination of this Contract.

C. General Liability: Contractor shall protect, defend, indemnify and hold KCAB and its directors, officers, employees, agents, servants, and representatives harmless from and against any and all liabilities, demands, suits, claims, losses, fines, causes of action, costs, damages, expenses, or judgments arising by reason of the injury or death of any person or damage to any property, or other damages, including all reasonable costs of investigation and defense thereof (including, but not limited to, attorney’s fees, court costs and expert fees) arising out of the acts or omissions of Contractor, Contractor’s officers, employees, agents, contractors, subcontractors, suppliers, licensees or invitees regardless of where the injury, death or damage may occur; unless such injury, death or damage is caused by the sole negligence of KCAB, its directors, officers or employees. Upon the filing of any claim with KCAB for damages arising out of incidents for which Contractor is required to hold KCAB harmless, then and in that event, KCAB or its agents or representatives shall give Contractor written notice of the claim. Upon receipt of this notice, Contractor is responsible for settling, compromising, or defending against (“handle”) the claim. Contractor must acknowledge receipt of the claim in writing notifying KCAB and the agent or representative giving the notice in writing of Contractor's intent to handle the claim within 10 days of delivery of the notice. If Contractor does not respond within the 10 day period, then the Contractor is responsible for, and must promptly pay all costs and fees, including reasonable attorney’s fees and expert’s fees incurred by KCAB as a result of Contractor’s failure to respond and handle the claim in accordance with the terms herein. KCAB has the right to defend against any such claim and if KCAB elects to do so, Contractor is responsible for KCAB’s legal fees, costs, and expenses in addition to any resulting liability. Any final judgment rendered against KCAB for any cause for which Contractor is liable hereunder is conclusive against Contractor as to liability and amount, where the time for appeal therefrom has expired. The provisions of this paragraph survive the expiration or termination of this Contract

D. In addition to Contractor's undertaking as stated above, and as a means of further protecting KCAB, its directors, officers, agents, servants, representatives, and employees, Contractor must at all times during the term of this Contract carry the following insurance.

1. Professional Liability Insurance: The Contractor must obtain and maintain continuously in effect at all times during the term hereof, at its sole cost and expense, professional liability insurance (errors and omissions) protecting Contractor from and against liability which may occur by reason of any errors, omissions, or negligent acts of its directors, officers, employees and agents in the performance of professional services under this Contract. Contractor must ensure this coverage is in a minimum amount of at least $1,000,000 at all times. Coverage must be maintained for a period of five (5) years after all services and

Rev. 2017.04.18 4 work required under this Contract is completed by Contractor, or after the Contractor has left the job site, whichever occurs last.

2. Commercial General Liability and Umbrella Liability Insurance:

a. Contractor, at its expense, must procure and maintain commercial general liability (CGL) and, if necessary, commercial umbrella insurance with a limit of not less than $2,000,000 each occurrence. If the CGL and/or umbrella insurance contains a general aggregate limit, it must apply separately to operations under this Contract.

b. If Contractor performs work or services under this Contract on the aircraft ramps, taxiways, or runways of CVG, Contractor, at its expense, must procure and maintain CGL and, if necessary, commercial umbrella insurance with a limit of not less than $10,000,000 each occurrence. If the CGL and/or umbrella insurance contains a general aggregate limit, it must apply separately to operations under this Contract.

c. If Contractor operates motor vehicles or mobile equipment unescorted on the aircraft ramps, taxiways, or runways of

CVG, Contractor, at its expense, must procure and maintain CGL and, if necessary, commercial umbrella insurance with a limit of not less than $10,000,000 each occurrence. If the CGL and/or umbrella insurance contains a general aggregate limit, it must apply separately to operations under this Contract.

d. CGL insurance must be written on Insurance Services Office (“ISO”) occurrence form CG 00 01 (or a substitute form providing equivalent coverage) and include coverage arising from, but not limited to: premises, operations, contractors, subcontractors, consultants, products, completed operations, property damage, personal injury, death, advertising injury, and liability assumed under an insured contract.

3. Automobile and Umbrella Liability Insurance:

a. If Contractor uses motor vehicles at CVG, Contractor must, at its expense, procure and maintain automobile liability insurance and, if necessary, commercial umbrella insurance with a limit of not less than $2,000,000 each accident.

This insurance must cover liability arising out of any auto (including owned, hired and non-owned autos) while at CVG. Automobile liability insurance must be written on ISO form CA 00 01, CA 00 12, CA 00 20 (or a substitute form providing equivalent coverage).

b. If Contractor performs work or services under this Contract on the aircraft ramps, taxiways, or runways of CVG, Contractor, at its expense, must procure and maintain automobile liability insurance and, if necessary, commercial umbrella insurance with a limit of not less than $10,000,000 each accident. If necessary, the policy must be endorsed to provide contractual liability coverage equivalent to that provided in CA 00 01.

c. If Contractor operates motor vehicles unescorted on the aircraft ramps, taxiways, or runways of CVG, Contractor, at its expense, must procure and maintain automobile liability insurance and, if necessary, commercial umbrella insurance with a limit of not less than $10,000,000 each accident. If necessary, the policy must be endorsed to provide contractual liability coverage equivalent to that provided in CA 00 01.

4. Workers’ Compensation and Employer’s Liability Coverage: Contractor must, at its expense, procure and maintain a Kentucky workers’ compensation insurance policy. Contractor must, at its expense, procure and maintain an employer’s liability insurance policy if required under the laws of the Commonwealth of Kentucky and if required the commercial umbrella and/or employer’s liability limits may not be less than $1,000,000 each accident for bodily injury by accident and $1,000,000 each employee for bodily injury by disease.

5. Unemployment Insurance: Contractor, at its expense, must procure and maintain statutory unemployment insurance protection for all its employees.

6. Contractor agrees that the required insurance is not intended to limit the Contractor’s liability in the event the Contractor is deemed to be negligent in causing bodily injury or property damage during the course of its operation.

E. Additional Insured: Contractor must include the Kenton County Airport Board as an insured under the CGL, using ISO additional insured endorsements CG 20 10 and CG 20 37 or substitute form providing equivalent coverage, and under the commercial umbrella, if any.

This insurance applies as primary insurance with respect to any other insurance or self-insurance programs afforded to the Kenton County Airport Board. There may be no endorsements or modifications of the CGL to make it excess over other available insurance;

alternatively, if the CGL states that it is excess or pro-rata, that policy must be endorsed to be primary with respect to the Kenton County Airport Board as additional insured. Contractor must also include the Kenton County Airport Board as an insured under the commercial auto policy, using ISO designated insured endorsement CA 20 48. KCAB is not liable for any premiums charged for this coverage, and the inclusion of KCAB as additional insured is not intended to and does not make KCAB a partner or joint venture with Contractor in Contractor’s operations at CVG.

F. Cross Liability Coverage: Contractor agrees that all insurance policies contain cross liability coverage as provided under standard ISO forms’ separation of insured clause.

G. Subcontractors: Contractor must cause each subcontractor to purchase and maintain insurance of the type specified under this Contract.

When requested by KCAB, Contractor must furnish copies of certificates of insurance coverage for each subcontractor.

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H. Right to Amend Insurance: KCAB has the right to change the insurance coverage and the insurance limits required of the Contractor when it is determined to be necessary by KCAB; provided that KCAB provides Contractor with thirty (30) days advance notice. KCAB is not responsible for any increased costs associated therewith.

I. Proof of Insurance: Prior to execution of the Contract, Contractor must furnish KCAB with certificates evidencing existence of valid policies of insurance with the coverages specified, including evidence of unemployment insurance and KY worker’s compensation insurance, and naming KCAB additional insured. These certificates must state that the coverages may not be amended so as to decrease the protection below the limits specified or be subject to cancellation without at least thirty (30) calendar days’ advance written notice to KCAB. A renewal policy or renewal certificate must be delivered to KCAB's Risk Manager at least thirty (30) calendar days prior to a policy’s expiration date, except for any policy expiring on or after the expiration date of this Contract.

J. Failure to Maintain Insurance: In the event Contractor at any time fails to have in effect the insurance required under the provisions of this Contract, upon written notice to the Contractor of its intention to do so, KCAB has the right (but not the obligation) to secure the required insurance at the cost and expense of the Contractor. In the event Contractor at any time fails to furnish KCAB with the certificate or certificates required, KCAB may, at any time, after fifteen (15) calendar days’ written notice to Contractor of its intention to do so, secure the required certificate or certificates at the cost of the Contractor. Contractor agrees to reimburse KCAB for the costs thereof plus fifteen percent (15%) for administrative overhead. This is without prejudice to any other right KCAB may have in law or equity, including the right to terminate this Contract.

K. Primary Insurance: Contractor’s insurance must be primary and non-contributory with respect to any other insurance available to or for the benefit of KCAB. Any KCAB insurance or self-insured retention is considered excess insurance only. Contractor’s insurance policies must contain a severability of interest clause.

L. KCAB Review of Insurance: All policies required under this Contract must be satisfactory to KCAB including the quality of the insurer, deductible, or retentions. By requiring insurance, KCAB does not represent that coverage, and limits will necessarily be adequate to protect Contractor, and the coverage limits are not a limitation on Contractor’s liability under the indemnities granted to KCAB under this Contract. Failure of KCAB to demand the certificates or other evidence of full compliance with these insurance requirements or failure of KCAB to identify a deficiency from evidence that is provided is not considered to be a waiver of Contractor's or its subcontractors’ obligation to maintain such insurance.

M. Prohibiting Contractor's Access: KCAB has the right, but not the obligation, of prohibiting Contractor from entering the project site until the certificates or other evidence of insurance has been placed in complete compliance with these requirements and approved by KCAB.

STANDARD OF CARE

Contractor warrants that all services performed under this Contract must be performed according to the terms and covenants of this Contract and Exhibit A. Contractor must perform such services consistent with the level of care and skill ordinarily exercised by other Contractors in their industry under similar circumstances at the time the services are performed. Contractor agrees to exercise due and proper care in the hiring of persons skilled in or capable of the performance of the services provided for hereunder. Contractor agrees and acknowledges that each such employee may be subject to a 10-year background check, a fingerprint based criminal history check, and/or a threat assessment, as set forth in the Rules and Regulations or as otherwise determined by KCAB.

Contractor must advise each of its employees of any and all safety and health requirements relating to the services or the use of equipment or materials in connection with the services, including, without limitation, the safety and health requirements imposed by or promulgated under the 1970 Williams-Steiger Occupational Health Act (OSHA).

NO PERSONAL LIABILITY

No director, officer, or employee of KCAB may be charged personally or held contractually liable by or to the other party under any term or provision of this Contract.

CLAIMS FOR CHANGED CONDITIONS

During the term of this Contract, the facts, conditions and/or data relating to the work and services provided may dictate a change which may alter the scope of the services. In the event there are changes that would decrease the need for services required of the Contractor under this Contract, KCAB and Contractor must adjust the terms of this Contract as mutually agreed by the parties. Claims for additional compensation which may arise from these changes or any revision to the Services proposed by Contractor must be presented in writing to KCAB before work commences under any changed condition. In any case, where Contractor deems any extra compensation is due it for any work not covered in this Contract, Contractor must notify KCAB in writing of its intention to make claim for extra work before Contractor begins the work on which the claim is based. If notification is not given and KCAB is not afforded a strict accounting of actual cost, then Contractor agrees it has waived any claim for extra compensation. Notice by Contractor to KCAB and the fact that KCAB has kept account of the costs does not in any way prove the validity of any claim for additional compensation. Contractor is not required to undertake work under changed conditions without prior written Contract or authorization by KCAB for extra compensation attributable to the changed conditions.

INTEREST OF KCAB

No director, officer, or employee of KCAB who exercises any function or responsibilities in review of or approval of the work or services to be provided by Contractor under this Contract (i) may participate in any decision relating to this Contract which affects such individual's personal interest or the interest of any corporation, partnership or association in which such individual is, directly or indirectly, interested or (ii) have any interest, directly or indirectly, in this Contract or the proceeds thereof.

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INTEREST OF CONTRACTOR

Contractor covenants that it presently has no financial interest and may not acquire any financial interest, directly or indirectly, which would conflict in any manner or degree with its performance under this Contract. Contractor further covenants that in the performance of this Contract no person having such a financial conflict of interest may be employed.

USE OF LOGO/MARKS

Contractor may not use the name, logo or design, of the Cincinnati/Northern Kentucky International Airport, the Kenton County Airport Board, CVG, or any trademark or service mark utilized by KCAB; nor use any photograph or video of the Cincinnati/Northern Kentucky International Airport, its property, or its facilities without the express written consent of KCAB. Contractor must submit any proposed use of the above media material to KCAB for approval prior to the publication or public use of the material. KCAB, in its sole discretion, may grant or withhold consent to use the above media material and must provide a response granting or withholding consent to the Contractor within thirty (30) days of receiving the proposed media material from the Contractor. The provisions of this paragraph survive the expiration or earlier termination of this Contract.

CONFIDENTIAL INFORMATION

Any documents provided to the Contractor by KCAB pursuant to this Contract, including but not limited to personal information reports, surveys, calculations, plans, maps, estimates, and other work product including any exhibits thereto, and any information, reports or data which may be given to or assembled by Contractor pursuant to the terms of this Contract, shall be kept strictly confidential, and may not be made available or disclosed to any individual or organization by Contractor without the prior written approval of KCAB.

GOVERNMENT PROVISIONS

The Government Provisions in the attached Exhibit C are incorporated and are a part of the Contract.

MISCELLANEOUS

A. Notices. All notices, requests, demands or other communications required under this Contract must be in writing unless otherwise noted and are deemed to have been duly given if delivered in person, or deposited in the United States mail, postage prepaid, certified, with return receipt requested to KCAB at Cincinnati/Northern Kentucky International Airport, Attn.: Chief Executive Officer, P. O. Box 752000, Cincinnati, Ohio, 45275-2000 or to Contractor at address first set forth above. Either party may change the address at which it receives written notice by notifying the other party in writing.

B. Captions. The headings of the paragraphs of this Contract are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of any provisions of this Contract and do not affect in any manner the terms and provisions or the interpretation or construction of the terms and provisions.

C. Severability. In the event that any covenant, condition or provision is held to be invalid by any Court of competent jurisdiction, the invalidity of any such covenant, condition or provision does not affect the validity of any other covenant, condition or provision; provided that the validity of any such covenant, condition or provision does not materially prejudice either KCAB or Contractor in its prospective rights and obligations contained in the valid covenants, conditions, or provisions of this Contract.

D. Agent for Service of Process. It is expressly understood and agreed that if the Contractor is not a resident of the Commonwealth of

Kentucky or is an association or partnership without a member who is a resident of said Commonwealth, or is a foreign corporation, the Contractor must appoint an agent for service of process in the Commonwealth of Kentucky. In the event of any failure on the part of the agent, or the inability of the agent to perform or the Contractor's failure to appoint an agent when required, the Contractor designates the Secretary of State, Commonwealth of Kentucky, its agent for the purpose of service of process in any Court action between it and KCAB arising out of or based upon this Contract, and the service will be made as provided by the laws of the Commonwealth of Kentucky for service upon a non-resident.

E. Incorporation of Attachments. All attachments referred to in this Contract are intended to be and are specifically made a part of this

Contract.

F. Incorporation of Required Provisions. Contractor agrees to incorporate into the Contract, any and all provisions, assurances, statutes, rules and regulations which may now or during the term of this Contract be required by the Federal Aviation Administration (FAA) or other governmental agency as a prerequisite to or a condition of KCAB and/or Contractor receiving any federal or state grant or loan or other governmental assistance. Contractor further agrees to execute all certifications and/or documents required by the FAA, or other governmental agency, to assure compliance with the foregoing, or that may be a prerequisite to or a condition of KCAB and/or Contractor receiving any federal or state grant or loan or other governmental assistance. In the event that the FAA or its successors requires modifications or changes in this Contract as a condition precedent to the granting of the funds for the improvement of CVG, or otherwise, Contractor agrees to consent to such amendments, modifications, revisions, supplements or deletions of any of the terms, conditions or requirements of this Contract as may be reasonably required.

G. Relationship of Parties. Nothing in this Contract is deemed or construed by the parties, or by any third party, as creating a relationship of principal and agent, partners, joint venturers, or any other similar such relationship between the parties. The parties intend to create the relationship of independent contractor. Neither the method used to compute compensation due under the Contract nor any other act of the parties creates any relationship between them other than that of independent contractor.

H. Amendment. This Contract may not be amended and/or modified unless the amendment and/or modification is in writing and signed by both parties to this Contract.

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I. Waiver of Rights by KCAB. Neither any failure nor any delay on the part of KCAB in exercising any rights, power or privilege under this

Contract, or under any document or instrument delivered or executed pursuant to this Contract, operates as a waiver thereof, and a single or partial exercise of any rights, power, or privilege does preclude any right, power or privilege.

J. Successors and Assigns Bound. This Contract is binding upon and inure to the benefit of the successors and assigns of the parties hereto, where permitted by this Contract.

K. Joint Cooperation. Contractor must maintain the closest collaboration and cooperation with representatives of KCAB and KCAB will be at all times entitled to be advised, at its request of the status of the work performed by Contractor and of the details thereof.

L. Representative of KCAB: The Chief Executive Officer, or his/her designee, is designated as the official representative of KCAB in all matters pertaining to this Contract and has the right and authority to act on behalf of KCAB with respect to all action required of KCAB in this Contract.

M. Contract Construction. The parties acknowledge that this Contract was reached through informed negotiation and that each party was represented by, or had access to, legal counsel. The parties agree that neither KCAB nor Contractor is entitled to any preference in the construction of this Contract as both are deemed to be authors of this Contract.

N. Electronic Signatures and Delivery. The Parties consent to the use of both manual and electronic signatures to execute this Contract, and any subsequent amendments, extensions, change orders, or other agreements, to the same legal effect and extent as if entirely manually signed. Electronic delivery of any counterpart of this Contract is as effective and legally binding as physical delivery with all counterparts constituting one agreement.

ENTIRE CONTRACT

The drafting, execution and delivery of this Contract by the parties have been induced by no representations, statements, warranties, or contracts other than those expressed herein. This Contract including all attachments embodies the entire understanding of the parties and there are no further contracts or understandings, written or oral, in effect between the parties relating to the subject matter hereof unless expressly referred to herein.

KENTON COUNTY AIRPORT BOARD CONTRACTOR

By: By:

Its: Chief Executive Officer Its:

Attest:

Secretary-Treasurer

Rev. 2017.04.18 10

Exhibit A

Rev. 2017.04.18 11

Exhibit B

SERVICE LEVEL AGREEMENT FOR

THE SCADA SYSTEM

FOR THE KENTON COUNTY AIRPORT BOARD

I. OVERVIEW:

A. This Service Level Agreement (“SLA”) governs the System availability, response times, maintenance, service levels and terms and conditions (“Service”), associated with the (“System”) that Contractor shall provide to the Kenton County Airport Board (“KCAB”). Contractor must endeavor to maintain all components and service to the System at 100% at all times. This SLA provides the terms of Service and financial remedies for Contractor’s failure to comply with the service levels and terms and conditions of this SLA.

B. This SLA has the same term as the contract signed between Contractor and KCAB dated C. Contractor must provide all personnel, hardware, equipment, wiring, cabling, connectivity, interfaces, software, services, labor, material, tools, training, manuals, drawings, schematics, consulting services, support and all other items required to service, maintain, upgrade, and repair in a first class and professional manner the System.

D. The Contractor bears all expenses for parts, equipment, software, travel expenses, personnel, and related maintenance costs.

II. DEFINITIONS:

A. Failure – Any interruption in the normal functioning of any part of the System the Contractor provided to KCAB.

B. System Component – Any hardware, software, material, power source, or other apparatus Contractor provided to KCAB as part of the System.

III. NOTICE OF SYSTEM SERVICE FAILURES

A. It is the sole responsibility of the Contractor to monitor the continuity of service to the System, detect System Component Failures, and respond to and repair such System Component Failures within a satisfactory time frame as stipulated in section IV.D. of this

SLA.

B. In the event of a System Component Failure, KCAB will notify Contractor of such System Service Failure and request service via telephone call at or email at . Failure of KCAB to detect a System Component Failure and report it to the Contractor does not affect the period of time for System availability or the amount of penalty assessed against the Contractor for purposes of Section V.

IV. SERVICE COVERAGE:

A. System Availability Requirements:

1. The System Components must be online, available, and fully functioning without Failure % of each month.

2. The System Components must be online, available, and fully functioning without Failure % of each month.

3. The System Components must be online, available, and fully functioning without Failure % of each month.

B. Contractor must provide appropriate service responses as set forth in sections IV.D. 24 hours per day, 7 days a week, 365 days per year (366 days in leap years).

C. Prioritization: In the event of multiple System Component Failures at one time, the Contractor must respond and repair each

System Component in the order of priority as shown below, unless directed otherwise by KCAB:

1. System Component #1

2. System Component #2

3. System Component #3

D. Response Time Requirements:

1. On-site Response:

a. In the event of System Component Failure, Contractor must dispatch (#) trained service technician(s) to respond on-site to repair the System Component Failure. The technician(s) must arrive on-site at CVG within of KCAB’s notice to Contractor of such Failure.

b. On-site Response technicians must work diligently to repair and remedy any System Service Failures. Contractor must continue to work diligently until the Failure has been repaired or remedied to the satisfaction of

KCAB.

2. Remote Response:

a. In the event of System Component Failure, Contractor must respond remotely via Virtual

Private Network within of KCAB’s notice to Contractor to repair the System Component service interruption.

b. If Contractor provides remote response via Virtual Private Network for , (period of time) and a System Component Failure is still present, the Contractor must immediately dispatch (#) trained service technician(s) to respond on-site to repair the System Component Failure. The technician(s) must arrive on-site at CVG within of Contractor dispatching the service technician(s).

3. Phone Technician Support:

a. In the event of System Service Failure, Contractor must provide telephone Support to KCAB personnel until the System Service Failure is resolved and the System is returned to its normal operating capacity.

Rev. 2017.04.18 12

b. If Contractor provides telephone support to KCAB personnel for (period of time) and a System Component Failure is still present, the Contractor must use a Virtual Private Network to repair System Component Failure within (period of time). If Contractor is unable to correct the Failure after using such Virtual Private Network for ___ (period of time, then the Contractor must immediately dispatch (#) trained service technician(s) to respond on-site to repair the System Component Failure. The technician(s) must arrive on-site at CVG within of Contractor dispatching the service technician(s).

For purposes of Section III and IV, in addition to the notice provisions set forth in the Agreement, KCAB may give notice to the Contractor for any Failure via telephone communication or email. Contractor appoints the following contact person for receiving any such notice:

Phone:_________________ Email: _________________

V. REMEDIES FOR SERVICE FAILURE:

A. For each (period of time) the Service does not meet the requirements specified in Section IV.A. of this SLA, KCAB may withhold % of the contractually billed amount for the month in which the service failure occurred.

B. Failure to Adhere to Response Time Requirements:

1. For each (period of time) the Service does not meet the Response Time Requirements specified in Section

IV.D1 of this SLA, KCAB may withhold % of the contractually billed amount for the month in which the service failure occurred.

2. For each (period of time) the Service does not meet the Response Time Requirements specified in Section IV.D2 of this SLA, KCAB may withhold % of the contractually billed amount for the month in which the service failure occurred.

3. For each (period of time) the Service does not meet the Response Time Requirements specified in Section IV.D3 of this SLA, KCAB may withhold % of the contractually billed amount for the month in which the service failure occurred.

C. If the Service does not meet the requirements specified in Section IV.A. or IV.B. for a consecutive period of , KCAB may withhold % of the monthly bill.

D. If the Service does not meet the requirements specified in Section IV.D. for a consecutive period of KCAB may withhold 100% of the bill for the month in which the Failure occurred and terminate the contract with the Contractor.

The parties acknowledge and agree that the exact monetary value of any losses, damages and/or injuries suffered by KCAB due to the Contractor's failure to perform in a timely and/or acceptable manner is extremely difficult and impractical to calculate. Therefore, the parties agree that the amounts set forth above as liquidated damages represent a fair and reasonable estimate of the monetary value of such losses, damages and/or injuries to KCAB. Nothing herein diminishes KCAB’s right to terminate this Agreement or exercise any other remedy available to KCAB whether in law or in equity for failure of the Contractor to perform the items enumerated in this Section V.

VI. REMEDIES FOR FAILURE TO MEET COMPLETION DATE

For each _________ the Service is not available after the Completion Date stated on page 1 of this Contract, KCAB may withhold ________ of the contractually billed amount of for the failure.

VI. PERFORMANCE, TRACKING AND REPORTING:

A. Contractor must maintain daily records (“System Records”) of the System Service performance and submit a copy of the records to

KCAB with an invoice for the corresponding period of time.

B. Failure for the System Records to comply with section IV. may result in the applicable financial or contractual penalties against the

Contractor.

VII. DATA RETENTION AND BACK-UP REQUIREMENTS:

A. Contractor must back-up the System memory each (period of time) to prevent data loss in the event of System

Component Failure.

B. The cost of any loss of data, damage to System Components or any property of KCAB is the exclusive responsibility of the

Contractor. In the event KCAB determines that Contractor, for whatever reason, cannot adequately remedy data loss or damage, then KCAB, in its sole discretion, may elect to remedy any such data loss or damage through the use of any third party agent and/or contractor KCAB elects.

VIII. MODIFICATIONS TO SERVICE LEVEL AGREEMENT:

Any changes in the services provided under this SLA must be mutually agreed upon by both parties in a written amendment to this SLA.

Rev. 2026.03.17

EXHIBIT C

GOVERNMENT PROVISIONS (AIP) ADDENDUM

This Government Provisions Addendum is incorporated into the Contract between the Kenton County Airport Board and Contractor/Consultant (used interchangeably below).

A. Access to Records and Reports. The Consultant must maintain an acceptable cost accounting system.

The Consultant agrees to provide the Owner, the Federal Aviation Administration and the Comptroller General of the United States or any of their duly authorized representatives access to any books, documents, papers and records of the Consultant which are directly pertinent to the specific contract for the purpose of making audit, examination, excerpts and transcriptions. The Consultant agrees to maintain all books, records and reports required under this contract for a period of not less than three years after final payment is made and all pending matters are closed.

B. Breach of Contract Terms. Any violation or breach of terms of this Contract on the part of the Consultant or their subcontractors may result in the suspension or termination of this Contract or such other action that may be necessary to enforce the rights of the parties of this Contract.

KCAB will provide Consultant written notice that describes the nature of the breach and corrective…