Attachment 1-UASTS draft OTA v4 - clean.docx

OTHER TRANSACTION AGREEMENT

BETWEEN

THE FEDERAL AVIATION ADMINISTRATION (FAA)

AND

[Test Site Sponsor]

FOR

THE OPERATION OF A UAS TEST SITE IN ACCORDANCE WITH

SECTION 44803 OF TITLE 49 OF THE UNITED STATES CODE

ARTICLE 1. PARTIES

This is an Other Transaction Agreement (hereinafter referred to as the “OTA” or “Agreement”) established between the Federal Aviation Administration (FAA) and the [INSERT TEST SITE SPONSOR] (“Sponsor” or “Entity”) for the [INSERT TEST SITE = NAME]. The FAA and [INSERT TEST SITE SPONSOR] may be referred to herein, individually, as a “Party” or, collectively, as the “Parties”. This OTA prescribes the roles and responsibilities of the Parties concerning the test activity described herein.

ARTICLE 2. SCOPE

a. Purpose:

The purpose of this Agreement between (INSERT TEST SITE SPONSOR) and the FAA is to set out the legally binding terms and conditions under which the entity will operate the UAS Test Site under the FAA UAS test site program and in accordance with 49 U.S.C. §44803. The objective of the FAA UAS test site program is to enable a broad variety of development, testing, and evaluation activities related to public and civil unmanned aircraft systems (UAS) and associated technologies; and to the extent consistent with aviation safety and efficiency, support the safe integration of unmanned aircraft systems into the National Airspace System (NAS). The FAA Reauthorization Act of 2024 (P.L. 118-63) extended the UAS test site program through September 30, 2028: https://www.congress.gov/bill/118th-congress/house-bill/3935/text.

b. Definitions:

For purposes of this Agreement, the following definitions apply:

i. FAA Contracting Officer – The Government’s agent authorized to enter into contract and agreements and authorized to obligate funds. Responsible for overall contract and agreement administration, reviewing and approving contract change orders, payment applications, and ensuring compliance with the terms and conditions, as well as the plans and specifications of contracts and agreements. The CO has the sole authority to make changes to the contract or agreement.

ii. FAA Contracting Officer’s Representative (COR) – Serves as the primary point of contact at the FAA for the Test Site Sponsor. The COR is the Contracting Officer’s authorized representative for contract administration functions. The COR is not authorized to make changes to the scope, price, schedule, or terms and conditions of the contract or agreement. Confirms successful performance and certifies receipt of services/deliverables. Coordinates with the UAS Sponsor’s Program Manager. The COR has no authority, expressed or implied, to make changes to the contract or agreement documents.

iii. FAA UAS Test Site Program Manager (FAA Test Site Program Manager) – FAA representative from the UAS Integration Office – Research, Engineering, and Analysis Division (AUS-300) who, through coordination with the COR, leads all FAA engagements with assigned Test Site(s). Has no authority, expressed or implied, to make changes to the contract documents and must coordinate with the COR and CO on all contractual matters.

iv. FAA-designated UAS Test Site (Test Site) – The Test Site is the program name for the use of the unmanned aircraft systems test ranges designated by the Administrator under 49 U.S.C. §44803 and how the FAA refers to each of the entities that operates a test range under the test site program.

v. Test Range – The test range, in accordance with 49 U.S.C. §44801(10), means a defined geographic area where research and development are conducted as authorized by the Administrator of the FAA and includes test ranges designated by the Administrator under 49 U.S.C. §44803. Test ranges must:

1. Be an instrumentality of a State, local, Tribal, or territorial government or other public entity;

2. Be approved by the chief executive officer of the State, local, territorial, or Tribal government for the principal place of business of the applicant, prior to seeking designation by the Administrator;

3. Undertake and ensure testing and evaluation of innovative concepts, technologies, and operations that will offer new safety benefits, including developing and retaining an advanced aviation industrial base within the United States; and

4. Meet any other requirements established by the Administrator.

vi. FAA-designated UAS Test Site Sponsor (Test Site Sponsor) – State, local, Tribal, or territorial government or other public entity accountable for the test site and meeting the test range sponsor obligations as outlined in 49 U.S.C.§44803 and this OTA. Any 44803 COA will be issued to the Test Site Sponsor.

vii. UAS Test Site Director [position can be identified for the Test Site Sponsor] (Test Site Director) – Test Site Sponsor representative for the Test Site. Primary point of contact for the FAA Test Site Program Manager.

c. Specific goals and objectives to be accomplished:

The objective of the UAS test site program is to provide verification of the safety of public and civil UAS, operations, and related navigation procedures before the integration into the NAS.

The FAA will authorize the Test Site Sponsor to implement and operate the Test Site subject to the terms and conditions of this OTA, the responsibilities of sponsors under 49 U.S.C. §44803 and the terms and conditions of the Test Site COA(s) issued by the FAA to the Test Site Sponsor. The FAA will provide oversight of the operation and support any testing as the FAA deems appropriate. The FAA must receive routine test data, including safety and performance data, from the operations of the Test Site, including research, development, testing, and evaluation activities, to support the FAA's development of the regulatory body needed for UAS. A risk-based approach will be implemented by the Test Site Sponsor, and approved by the FAA, from development through implementation of each unique series of activities.

The Test Site Sponsor will operate and manage the UAS Test Site, principally located in [INSERT LOCATION]. The Test Site Sponsor must utilize airspace, infrastructure, and policies and procedures, either already existing or to be developed in coordination with the FAA, to perform the work specified in this Agreement. The Test Site must be configured and operated with safety as its highest priority. A Test Site is not, by default, special-use airspace; therefore, existing Federal Regulations and procedures are in place to protect all air traffic and the public. The Test Site Sponsor must use a Safety Management System (SMS) approach to integrate the management of safety risk into planning, operations and decision making. Additionally, a Safety Risk Management (SRM), approach must be used for the entire phase of preparation, management and actual UAS flights as defined in this Agreement. The FAA’s Aviation Safety SRM process for UAS is outlined in FAA Order 8040.6(X) and may be used as a reference.

For purposes of restricted areas, special use airspace, or other similar type airspace, the Test Site Sponsor is considered the using agency with respect to any restricted area established by the FAA. The Test Site Sponsor must ensure that all activities remain within the geographical boundaries and altitude limitations established for any restricted area, special use airspace or other similar type of airspace covering the test range.

d. Management of the project:

The FAA retains the right to conduct oversight of all operations conducted under this Agreement including on-site visits, and may halt, suspend or modify operations at any time and for any reason, including, but not limited to, failure to comply with the terms of this Agreement, not having the requisite authority to conduct an operation, noncompliance with any authority to conduct the operation, or risk to aviation safety.

e. Roles and responsibilities:

Parties are bound by a duty of good faith and best effort in achieving the goals of the Agreement.

f. Obligations of the Parties:

Obligations of Test Site Sponsor:

The UAS Test Site Sponsor must assist the FAA in its effort to safely and efficiently integrate UAS and associated technologies into the NAS. The Test Site Sponsor accepts the risk and high consequence decision of the analyses which eventually leads to NAS operation. Any mishaps will be reported to the FAA and other appropriate government agencies in accordance with current aviation practices and requirements.

The Test Site Sponsor must, as necessary, provide any supporting documentation and information and obtain any required Certificates of Waivers or Authorization, or any other exemptions, waivers or approvals required by statute or regulation, to conduct an activity, and obtain any required COA, exemptions, waivers or approvals prior to conducting the activity.

The Test Site Sponsor will need to ensure that any operations that involve counter-UAS have the required legal authority to conduct that operation and must obtain approvals from the FAA and any other Federal agencies, if necessary. Any activities conducted by the Test Site that lack the requisite authority will be deemed outside of the scope of this OTA.

Test Site Sponsor must develop and implement maintenance processes and procedures and maintain risk assessment documentation sufficient to meet any airworthiness requirements. Additionally, the Test Site Sponsor and its customers must:

i. Follow the Original Equipment Manufacturers (OEM) maintenance, service bulletins, overhaul, replacement, inspection, and life limit requirements for the UAS and its components. Each UAS operated at the Test Site must comply with all OEM safety bulletins.

ii. Maintenance must be performed by qualified individuals who have been trained in proper techniques and procedures for these UAS. All maintenance must be recorded in the aircraft records, including a brief description of the work performed, date of completion, and the name of the person performing the work.

iii. After conducting any maintenance or alterations that affect the UAS operation or flight characteristics, such as replacement of a flight critical component, the Test Site Sponsor and its customers must perform a functional test flight prior to conducting further operations. Functional test flights must be conducted in VLOS of a Pilot in Command (PIC).

iv. Maintenance records shall be made available to the FAA upon request.

Test Site Sponsor must:

i. “Provide access to all interested private and public entities seeking to carry out research, development, testing and evaluation activities at the test range designated pursuant to this section, to the greatest extent practicable, consistent with safety and any operating procedures established by the test range sponsor, including access by small business concerns (as such term is defined in section 3 of the Small Business Act (15 U.S.C. 632));

ii. Ensure all activities remain within the geographical boundaries and altitude limitations established for any restricted area, special use airspace, or other similar type of airspace covering the test range;

iii. Ensure no activity is conducted at the designated test range in a careless or reckless manner;

iv. Establish safe operating procedures for all operators approved for activities at the test range, including provisions for maintaining operational control and ensuring protection of persons and property on the ground, subject to FAA approval;

v. Exercise direct oversight of all operations conducted at the test range;

vi. Consult with the FAA on the nature of planned activities at the test range and whether temporary segregation of the airspace is required to contain such activities consistent with aviation safety;

vii. Protect proprietary technology, sensitive or classified data, or sensitive research of any civil or private entity when using the test range;

viii. Maintain detailed records of all ongoing and completed activities conducted at the test range and all operators conducting such activities, for inspection by, and reporting to, the FAA consistent with the requirements of this Agreement;

ix. Make all original records available for inspection upon request by the FAA; and

x. Provide recommendations, on a quarterly basis until the program terminates, to the FAA to further enable public and private development, testing, and evaluation activities at the test ranges to contribute to the safe integration of unmanned aircraft systems into the national airspace system.

xi. Conduct activities and provide evidence of the following to maintain eligibility as an FAA-designated UAS Test Site:

a. Development and testing:

i. Submit quarterly reports (Appendix A, Table 1: Items 9-12) detailing the development, testing, and scaling of UAS and AAM technologies. These reports must include activities including at least one or more of the following:

1. Beyond Visual Line of Sight (BVLOS) and autonomous operations: Documentation of BVLOS flights, including the number of flights, flight hours, and specific performance objectives of increasingly autonomous operations. These operations must go beyond what is generally permissible under standard Part 107 rules. They should involve complex waivers, exemptions, and the unique authority granted to FAA-designated UAS Test Sites by Congress.

2. Advanced air mobility (AAM) and other sophisticated operations: A summary of initiatives undertaken, including defined progress metrics, to support the growth and integration of the AAM ecosystem.

3. Testing and evaluation of emerging technologies: A log of new concepts, technologies, or operational procedures tested and evaluated. This includes reporting on the methodology, results, and analysis of safety benefits derived from these tests.

b. Innovation and collaboration

i. As part of its quarterly reports, a test site must submit documentation demonstrating collaboration and innovation through:

1. Partnership documentation: A list of partnerships with industry, research, and regulatory bodies, including descriptions of the technologies explored and integrated.

2. Strengthening the aviation industrial base: A report detailing contributions to UAS, AAM, and advanced flight operations breakthroughs. This may include patents filed, academic papers published, or development projects supported that strengthen the domestic aviation industrial base.

c. Operational efficiency

i. Test sites must, as part of their quarterly reports, demonstrate efficient use of FAA resources by:

1. Documenting test outcomes: Documenting meaningful contributions to safe and secure UAS and AAM advancements, citing how test data and development efforts have directly supported FAA policy or regulatory development.

2. Improving communication and processes: Providing a record of streamlined communication and processes with the FAA, including measurable improvements in efficiency for FAA interactions. This includes a summary of how test site processes maximize the productivity and focus of tangible outcomes for the FAA.

Obligations of the FAA:

The FAA may issue COAs, waivers, exemptions, or any other vehicle available under its regulatory scheme or powers to authorize the operation of a Test Site and/or UAS flights for the purpose of conducting UAS R&D at Test Sites.

The FAA will provide feedback during all phases of the development of this project if applicable, including the requirements, design, implementation, evaluation, and oversight stages. Additionally, the FAA will provide personnel to oversee operations, processes and procedures at the UAS Test Ranges as the FAA deems appropriate.

The FAA may authorize Test Site Sponsors to host research, development, testing, and evaluation activities, other than activities directly related to the integration of unmanned aircraft systems into the NAS, so long as the activity is necessary to inform the development of regulations, standards, or policy for integrating new types of flight systems into the NAS. Any authorized research, development, testing, and evaluation activities may be identified in the Appendices of this OTA and may include additional terms and conditions as necessary to conduct the activity.

g. Type of Agreement:

This Agreement is an “other transaction” issued under 49 U.S.C. §106 (1) and is legally binding. It is not a contract, grant, or cooperative agreement and is not a procurement conducted under the AMS. Nothing in this Agreement shall be construed as incorporating by reference or implication any provision of Federal acquisition law or regulation.

This Agreement is not intended to constitute, create, give effect to, or otherwise recognize a joint venture, partnership, formal business organization, or agency agreement of any kind, and the rights and obligations of the Parties shall be only those expressly set forth herein.

ARTICLE 3. EFFECTIVE DATE and TERM

The effective date of this Agreement is the date on which it is signed by the FAA Contracting Officer. This Agreement shall continue in effect until September 30, 2028, or until earlier terminated by the parties as provided herein.

ARTICLE 4. PRIVACY

The Test Site Sponsor must:

a. Create and maintain a privacy policy governing all activities conducted under the Agreement, including the operation and relevant activities of the UAS authorized by the Test Site Sponsor.

b. Make its privacy policies publicly available.

c. Have a mechanism to receive and consider comments from the public on its privacy policies.

d. Conduct an annual review of test site operations to verify compliance with stated privacy policy and practices and share those outcomes annually in a public forum with an opportunity for public feedback.

e. Update its privacy policies as necessary to remain operationally current and effective.

f. Ensure the requirements of its privacy policies are applied to all operations conducted under this Agreement.

g. Maintain a record of all UAS, including manufacturer/model/serial number, operating at the Test Site.

h. Require each operator approved for activities at the Test Site to have a written plan for the operator’s use and retention of data collected by the UAS.

i. Comply with Applicable Privacy Laws.

For purposes of this Agreement, the term “Applicable Law” shall mean (i) a law, order, regulation, or rule of an administrative or legislative government body with jurisdiction over the matter in question, or (ii) a ruling, order, decision or judgment of a court with jurisdiction over the matter in question.

The Test Site Sponsor and its team members must operate in accordance with all Applicable Law regarding the protection of an individual’s right to privacy (hereinafter referred to as “Privacy Laws”).

If the U.S. Department of Justice or a state’s law enforcement authority files criminal or civil charges over a potential violation of a Privacy Law, the FAA may take appropriate action including suspending or modifying the relevant operational authority (e.g., Certificate of Operation, or Agreement) until the proceedings are completed. If the proceedings demonstrate the operation was in violation of the Privacy Law, the FAA may terminate the relevant operational authority.

i. Change in Law If during the term of this Agreement an Applicable Law comes into effect that may have an impact on UAS, including impacts on the privacy interests of individuals or entities affected by any operation of any UAS operating at the Test Site, such Applicable Law is applicable to the Agreement and the FAA may update or amend the Agreement to reflect these changes.

ii. Transmission of Data to the FAA The Test Site Sponsor should not provide or transmit to the FAA or its designees any data other than the data requested by the FAA pursuant to Article 5 of this Agreement.

ARTICLE 5. DELIVERABLES AND REPORTING REQUIREMENTS

The Test Site Sponsor agrees to deliver to the FAA certain “data” deliverables at no cost to the FAA (the “Data Deliverables”). The term “data” is defined in Article 6. The Data Deliverables are specified in Appendix A.

ARTICLE 6. INTELLECTUAL PROPERTY

a. Rights in Data The Government retains Unlimited Rights in all data, required in Appendix A, that is delivered under this agreement. "Data" means recorded information, regardless of form or method of recording, which includes but is not limited to, technical data, computer software, trade secrets, and mask works. The term does not include financial, administrative, cost, pricing or management information.

"Unlimited rights" means the rights of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so.

The Test Site Sponsor must also clearly mark any information that it deems to contain proprietary data. The proprietary legend may not conflict with the data rights provided to the Government.

The Test Site Sponsor will provide the applicable licenses/data rights as part of the Deliverables as specified in Appendix A. If the FAA requires additional or different licenses and/or data rights to any of the deliverables, the FAA and the Test Site Sponsor will negotiate the data rights and/or license rights. The FAA will incorporate the modifications into Appendix A - Deliverables.

b. Rights in Inventions The parties do not contemplate the conception, discovery, and/or development of inventions under this Agreement. Should the parties require rights to intellectual property, or the parties discover or anticipate inventions under this Agreement for specific activities, then the parties agree to negotiate in good faith an agreement covering the terms and conditions for the invention or license.

c. Rights to Intellectual Property Generated With Government Funding If the FAA orders work from the Test Site through a separate funded contract or funded or unfunded agreement, if the intellectual property rights applicable to that effort differ from the rights under this agreement, then those terms will be included in the terms and conditions associated with that contract or agreement.

d. Copyright The Test Site Sponsor must not assert copyright in any deliverables. The Test Site Sponsor may request the right to assert copyright and submit the request in writing to the Contracting Officer. The Contracting Officer determines whether the FAA will provide the consent to copyright.

e. Trademark In the event the Test Site Sponsor, or any entity under its control, owns or holds rights to grant license in any trademarks, service marks, trade names, and/or domain names for “Test Site ”, “UAS Test Site” or “UAS Test Range” or substantially similar name in the field of unmanned aerial systems or other aviation related fields, now or in the future, the Test Site Sponsor agrees to grant to the FAA a perpetual, non-exclusive, irrevocable, royalty free, fully paid up, worldwide license to use such trademarks, service marks, trade names, and/or domain names. In the event that any of the Test Site Sponsor’s team members own or hold rights to grant license in any trademarks, service marks, trade names, and/or domain names for “Test Site,” “UAS Test Site,” or “UAS Test Range,” the Test Site Sponsor further agrees to use best efforts to assist the FAA in obtaining a perpetual, non-exclusive, irrevocable, royalty-free, fully paid-up, worldwide license or non-assertion covenant from such team member.

f. Additional Intellectual Property Definitions "Computer software" means:

i. Computer programs that comprise a series of instructions, rules, routines, or statements, regardless of the media in which they are recorded, that allow or cause a computer to perform a specific operation or series of operation; and,

ii. Recorded information comprising source code listings, design details, algorithms, processes, flow charts, formulas, and related material that would enable the computer program to be produced, created, or compiled.

Computer software does not include computer databases or computer software documentation.

"Computer software documentation" means owner's manuals, user's manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

"Data" means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. The term does not include information incidental to contract administration, such as financial, administrative, cost or pricing, or management information.

"Proprietary Data" means data developed exclusively at private expense and outside of any Government contract, grant, or cooperative agreement.

"Technical data" means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer databases and computer software documentation). This term does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration. The term includes recorded information of a scientific or technical nature that is included in computer databases.

ARTICLE 7. LEGAL AUTHORITY

The FAA enters into this OTA under the authority of 49 U.S.C. § 106(l), which authorizes other transactions on such terms and conditions as the FAA Administrator determines to be appropriate. The type of OTA is a memorandum of agreement, which is a legally binding document. The OTA as used in this definition includes this Agreement along with any Appendices. In the event of a conflict between the Agreement and the Appendices, the Agreement governs.

The FAA authority for Test Sites derives from 49 U.S.C. § 44803 as established via the FAA Modernization and Reform Act of 2012” (FMRA), Public Law (P.L). 112-95 (2012); the FAA Extension, Safety, and Security Act of 2016 (FESSA 2016), P.L. 114-190 (2016); the FAA Reauthorization Act of 2018”, P.L. 115-254 (2018); and FAA Reauthorization Act (FAARA) of 2024, P.L. 118-63 (2024).

The FAA authority for the Test Sites will sunset on September 30, 2028, unless extended. If the authority is not extended this agreement will be terminated.

ARTICLE 8. POINTS OF CONTACT

a. FAA Contracting Officer: (CO) Attn: Kristin Frantz Federal Aviation Administration 1701 Columbia Avenue Atlanta, GA 30337 Phone: (404) 305-5779 Email: Kristin.T.Frantz@faa.gov

b. FAA Supervisory Contracting Officer: (CO) Attn: Karina Espinosa Federal Aviation Administration 1701 Columbia Avenue Atlanta, GA 30337 Phone: (404) 305-5782 Email: Karina.Espinosa@faa.gov

c. FAA Contracting Officer Representative: (COR) Attn: Vishal Gupta Federal Aviation Administration 490 L’Enfant Plaza, S.W. (Suite 500) Washington, DC 20024 Phone: (609) 338-9923 Email: Vishal.Gupta@faa.gov

d. Test Site Program Manager Attn: James Reynolds Federal Aviation Administration 490 L’Enfant Plaza, S.W. (Suite 500) Washington, DC 20024 Phone: (610) 955-7822 Email: james.r.reynolds01@faa.gov

e. Test Site Sponsor Attn: [INSERT DIRECTOR ADDRESS ] Phone: [INSERT DIRECTOR PHONE NUMBER] Email: [INSERT DIRECTION EMAIL]

ARTICLE 9. FUNDING AND PAYMENT

No funds are obligated under this Agreement. The FAA and the Test Site Sponsor are participating in a mutually beneficial activity that furthers the FAA mission and the Test Site Sponsor’s efforts, and in which each Party bears the cost of its participation, with no exchange of funds between the parties.

Each Party shall bear the full cost it incurs in performing, managing, and administering its responsibilities under this Agreement and its subject matter, regardless of whether such costs were incurred before or after the date of this Agreement.

The Parties can enter into separate contracts or agreements that may include funding. Those contracts and agreements will also incorporate the scope of this Agreement. Any separate funded contract or agreement entered into under the auspices of this Agreement will be kept in the contract file.

ARTICLE 10. LIMITATION OF FUNDS

No funds are obligated under this Agreement. The Government’s liability to make payments to [Insert name of Test Site] is $0. ARTICLE 11. APPROVAL OF TEAM MEMBERS

The responsible FAA Contracting Officer Representative shall be notified 30 days in advance of the Test Site Sponsor changing their organizational structure by entering into any subcontract or agreement with any contractors, consultants, teammates, independent consultants, state entities (hereinafter “subordinates”) as outlined in Appendix A. Any subordinates required by the Test Site Sponsor in connection with the services covered by this Agreement shall be limited to individuals or firms that have agreed to be bound to the terms of this Agreement.

The requirements of this Agreement must flow down to any subcontract or agreements.

ARTICLE 12. AUDITS AND NONCOMPLIANCE, INFORMATION INCIDENTS AND UNAUTHORIZED ACTIVITY

During the term of this agreement, FAA may provide the Test Site Sponsor or the Test Site Sensitive Unclassified Information (SUI) or Controlled Unclassified Information (CUI) as defined in FAA Order 1600.75, Protecting Sensitive Unclassified Information, 32 CFR part 2002, and applicable regulations. The Test Site Sponsor must cooperate with any FAA investigations or audits. The Test Site Sponsor must include the FAA’s right to access all information, facilities, and personnel involved in this Agreement in any agreements with subcontractors or suppliers. The Test Site Sponsor and its subordinates further agree to take other action as required in regard to confirmed or suspected compromises of any SUI/CUI or any FAA-provided information shared under this Agreement in compliance with applicable laws and regulations and agrees to cooperate with and provide access to the U.S. Department of Transportation (USDOT) or FAA cybersecurity personnel and associated support contractors, and critical partners with jurisdictional authority including the USDOT Office of the Inspector General, Department of Homeland Security (DHS), Federal Protective Service (FPS), Federal Bureau of Investigation (FBI) and State and Local Law Enforcement (SLLE).

In the event of a confirmed or suspected compromise of any SUI/CUI or any FAA-provided information shared under this Agreement, the Test Site Sponsor must notify the responsible FAA Contracting Officer and any appropriate FAA POCs outlined in this Agreement or any other security agreements.

Upon notification of a Security Incident in accordance with this section, the Test Site Sponsor must provide FAA with full access to any affected or potentially affected facility and/or Information System, including access by additional parties and undertake any and all response actions the FAA determines are required to ensure the protection of FAA information, including providing all requested images, log files, and event information to facilitate rapid resolution of any Security Incident.

The FAA, at its sole discretion, may obtain, and the Test Site Sponsor will permit, the assistance of other federal agencies and/or third-party contractors or firms to aid in response activities related to any Security Incident. Additionally, the FAA, at its sole discretion, may require the Test Site Sponsor to retain, at the Test Site Sponsor’s expense, a Third Party Assessing Organization (3PAO), acceptable to the FAA, with expertise in incident response, compromise assessment, and federal security control requirements, to conduct a thorough vulnerability and security assessment of all affected systems.

Response activities related to any Security Incident undertaken by the FAA, including activities undertaken by the Test Site Sponsor, other federal agencies, and any third-party contractors or firms at the request or direction of FAA, may include inspections; investigations; forensic reviews; data analyses and processing; and final determinations of responsibility for the Security Incident and/or liability for any additional response activities. The Test Site Sponsor shall be responsible for all costs and related resource allocations required for all such response activities related to any breach, including the cost of any penetration testing.

ARTICLE 13. CHANGES, MODIFICATIONS

Either Party may request modifications to this Agreement through the mutual, written consent of the Parties.

Changes and/or modifications to this Agreement shall be in writing and signed by a FAA Contracting Officer and the authorized Test Site representative or their designees. The modification shall cite the subject Agreement and shall state the exact nature of the modification. No oral statement by any person shall be interpreted as modifying or otherwise affecting the terms of this Agreement.

ARTICLE 14. SUSPENSION AND TERMINATION

The FAA may suspend this Agreement and the accompanying appendices, or any operations or information exchange for any reason, including specifically the noncompliance with operational, technical, environmental, or security requirements. Additionally, if the Test Site Sponsor does not have the requisite authority to conduct the activity, or alternatively fails to conform with the terms and conditions of this agreement, the FAA and any other implicated federal agency reserve the right to take any actions consistent with law, including, but not limited to, terminating this OTA. In the event of such a suspension or termination, the Test Site Sponsor shall be notified by an FAA Contracting Officer as soon as practicable.

The FAA, in its sole discretion, will determine when and if it will resume suspended activities or if the FAA will terminate this Agreement and the operational, technical, environmental, and security agreements associated with this Agreement. The FAA has the ability to unilaterally suspend the Test Site Sponsor’s qualification as a UAS Test Site under 49 U.S.C. § 44803 at any time the Test Site Sponsor fails to maintain the requirements outlined in Article 2. The FAA can revoke the Test Site Sponsor’s qualification as a UAS Test Site under 49 U.S.C. § 44803 if they fail to remedy the failure to maintain the requirements outlined in Article 2.

In addition to any other termination rights provided by this Agreement, either party may terminate this Agreement at any time prior to its expiration date, with or without cause, and without incurring any liability or obligation to the terminated party by giving the other party at least thirty (30) days prior written notice of termination.

Upon the termination of this Agreement or upon the FAA’s request at any other time, the Test Site Sponsor agrees to destroy all FAA-provided information and any amalgamated data that includes any FAA-provided information, in accordance with this Agreement and the accompanying appendices.

ARTICLE 15. ORDER OF PRECEDENCE

This Agreement and its attachments must be read and interpreted as a consistent whole. In the event of any inconsistency between the terms of the Agreement, the inconsistency shall be resolved by giving preference in the following order:

a. The Agreement

b. The Appendices Some, all, or none of the information contained within the Test Site Sponsor’s application submissions for the Test Site Selection process may be incorporated into the Agreement at the discretion of the FAA.

If there is any conflict between the terms of a Test Site COA and this Agreement, its Attachments, or the Test Site Sponsor’s application submission for the Test Site selection process, the terms of the Test Site COA will take precedence.

ARTICLE 16. CONSTRUCTION AND ENTIRETY OF THE AGREEMENT

This Agreement sets forth and addresses the programmatic aspects associated with the goals, objectives, and purpose of this engagement and provides requirements, guidelines, and procedures for the proposed activities. This Agreement, and its appendices, sets forth the detailed terms of and conditions for the Agreement.

This Agreement is only valid in conjunction with the appendices approved and endorsed by the Parties.

Each party acknowledges that all parties hereto participated equally in the negotiation and drafting of this Agreement and any amendments thereto, and that, accordingly, this Agreement shall not be construed more stringently against one party than against the other.

ARTICLE 17. DISPUTES

U.S. Federal Law governs this OTA for all purposes, including but not limited to determining the validity of this OTA, the meaning of its provisions, and the rights and obligations of the Parties. Except where there is a pre-existing statutory or regulatory system in place (e.g., under FOIA), where possible, disputes will be resolved by informal discussion between the Parties and their points of contact. If they are unable to come to agreement, the dispute will be referred to the signatory authorities on the OTA for joint resolution and, if necessary, to obtain a final decision. Nothing in this Article prevents either Party from pursuing any other right or remedy available by law upon the issuance of the final FAA decision pursuant to 49 U.S.C. §46110.

ARTICLE 18. WARRANTIES

Goods, services, information, interconnections, facilities, or equipment provided by FAA under this Agreement are provided “as is.”

The FAA makes no express or implied warranty as to the availability, accuracy, validity, latency, integrity, and/or condition of any such goods, services, information, interconnections, facilities or equipment under, or as a result of, this Agreement, including as a result of the use of information generated hereunder, or as the merchantability or fitness for a particular purpose of such research, information or resulting product, or that the goods, services, information, interconnections, facilities or equipment will accomplish the intended results or are safe for any purpose including the intended purpose, or that any of the above will not interfere with privately owned rights of others.

ARTICLE 19. INSURANCE

The Test Site Sponsor shall arrange by insurance or otherwise for the full protection of the FAA from and against all liability to third parties arising out of, or related to, the Test Site Sponsor’s performance of this Agreement.

The FAA assumes no liability under this Agreement for any losses arising out of any action or inaction by the Test Site Sponsor, its employees, or contractors, or any third party acting on its behalf. The Test Site Sponsor agrees to hold the United States harmless against any claim by third persons for injury, death, or property damage, including environmental, arising out of or in connection with its performance under this Agreement.

ARTICLE 20. LIMITATION OF LIABILITY

Limitation of Damages: Neither the FAA, nor its contractors shall be liable for special, consequential, or incidental damages attributed to such goods, services, information, interconnections, facilities, or equipment provided under this Agreement or such research, information, or resulting products made or developed as a part of the Agreement. If there is a state statute that limits the liability of the Test Sites Sponsor, then that should be provided by the Test Sites Sponsor to the FAA CO. The Test Site Sponsor is responsible for providing this documentation and a legal review from the attorneys of the sovereign responsible for that jurisdiction explaining the limits of liability under the statutory scheme, and updating both the documentation and legal reviews should the statutory scheme of the jurisdiction be modified through statute or judicial opinion. Any FAA liability would need to be established through applicable federal law.

Tort Liability of U.S. Government: The U.S. Government will not be responsible for any property of the Test Site Sponsor consumed, damaged, destroyed, or otherwise harmed in the performance of this Agreement. Any liability of the U.S. Government is determined pursuant to the Federal Tort Claims Act, 28 U.S.C. 2671 et seq.

Personal Injury and Damage to Property: The Test Site Sponsor agrees to save and hold the U.S. Government, its officers, agents, and employees harmless from liability of any nature or kind, including costs and expenses, for, or on account of, any or all suits or damages of any character whatsoever resulting from injuries or damages sustained by any person or persons or property in the performance of this Agreement. The Test Site Sponsor will perform its responsibilities under the Agreement at its own risk. In no event shall the FAA be liable for claims for consequential, punitive, special, and incidental damages, claims for lost profits, or other indirect damages.

No Private Right or Cause of Action: This Agreement does not confer any right, or benefit of any kind, substantive or procedural, that may be enforceable by any third party against the Parties, the United States, or the officers, employees, agents, or associate personnel thereof. Nothing in this Agreement is intended to restrict the authority of either Party to act as provided by law, statute, or regulation, or restrict any Party from administering or enforcing any laws within its authority or jurisdiction.

ARTICLE 21. LOWER TIER AGREEMENTS

The Test Site Sponsor shall include Articles 6 (“Intellectual Property”) through 26 (“Publicity and Press Releases”) suitably modified in all lower tier Agreements, regardless of tier.

ARTICLE 22. COMPLIANCE WITH LAWS AND REGULATIONS

The Parties must comply with all applicable laws and regulations (including Executive Orders), including but not limited to safety; security; export control and supply chain; environmental protection and compliance; suspension and debarment; and regulations.

The Test Site Sponsor must comply with Title VI of the Civil Rights Act of 1964 relating to Nondiscrimination in Federally assisted programs and provide a certification to that effect.

FAA Acquisition Management System (AMS) AMS Clause 3.8.9-2 “Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment” is attached in Appendix C and incorporated by reference into this Agreement. The full text of the applicable clauses can be found at https://fast.faa.gov/contractclauses.cfm.

If any export control requirements are applicable, the Parties shall comply with all U.S. export control laws and regulations, including the International Traffic in Arms Regulations (ITAR) 22 C.F.R. Parts 120 through 130, and the Export Administration Regulations (EAR), 15 CFR Parts 730 through 799, in performing work under this agreement or any Annex to this Agreement. In absence of available license exemptions or exceptions, the Test Site Sponsor shall be responsible for obtaining the appropriate license or other approvals, if required, for exports of hardware, technical data and software, or for the provision of technical assistance.

The Test Site Sponsor shall be responsible for obtaining FAA security approvals, and export licenses, if required, before utilizing foreign persons in the performance of work under this agreement, including instances where work is performed on site at FAA and where the foreign person will have access to export controlled technical data or software.

The Test Site Sponsor will be responsible for all record keeping requirements associated with the use of license and license exemptions or exceptions.

The Test Site Sponsor will be responsible for ensuring that this provision applies to its Related Entities.

RECORDS MANAGEMENT: The Test Site Sponsor will comply with the requirements of FAA Order 1350.14B, Records Management Program, or its successor order.

ARTICLE 23. OFFICIALS NOT TO BENEFIT

No member of or delegate to Congress, or resident commissioner, will be admitted to any share or part of this Agreement, or to any benefit arising from it.

ARTICLE 24. INFORMATION AND DATA PROTECTION, USE AND DISCLOSURE

The parties agree to protect from release information that is proprietary, privileged, or otherwise confidential. The FAA will protect data and or information in its possession in accordance with requirements and procedures set forth under the Freedom of Information Act, 5 USC §552(b), and any other applicable law, including but not limited to the Trade Secrets Act, 18 USC § 1905. Each party agrees to mark data or information as “proprietary” in a manner that is immediately apparent. Each party shall maintain, and to the extent necessary reproduce, any and all restrictive markings set forth on, applied to, and/or associated with, the information provided by the other party.

The FAA may deliver materials to the Test Site Sponsor that is considered to be SUI or CUI. This information is unclassified and must be protected by the Test Site Sponsor in accordance with FAA Order 1600.75, 32 CFR part 2002, and applicable regulations.

State, Local, or Tribal Territories Public Records Law Release by the FAA of SUI or CUI to [insert test site] does not constitute a public release of information for purposes of the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

If the Test Site Sponsor receives a public records request under a governmental transparency law for any FAA information or data, the Test Site Sponsor must consult with the FAA prior to any release of information. The Test Site Sponsor must notify the FAA as soon as is practical, but no later than five (5) working days of receipt of any public records request. The Test Site Sponsor will provide the FAA at least five (5) working days to respond with any objections to release. If the Test Site Sponsor determines it will release information despite FAA objections, the Test Site Sponsor will provide notice to the FAA at least five (5) working days before the planned date of disclosure.

The Test Site Sponsor will protect SUI or CUI provided by the FAA from disclosure pursuant to any state, local, or tribal territory transparency and public records laws to the full extent the law permits.

The Test Site Sponsor must not release any SUI or CUI to any external party or any unauthorized party, including but not limited to any individual or entity without a “need to know”. “Need to know” will be determined by the FAA. Any request for release of information must be coordinated with the responsible FAA Contracting Officer prior to release.

ARTICLE 25. SECURITY

The Parties agree to work together to ensure the security of all endeavors and interactions taking place under this Agreement.

The Test Site Sponsor will ensure that its respective systems, personnel, and facilities are designed, managed, and operated in compliance with all relevant federal laws, regulations, and policies.

The FAA can require that certain R&D activities, information exchanges, or operational activities require enhanced security structures and procedures. This may require specific security procedures for systems, personnel, or facilities.

ARTICLE 26. PUBLICITY AND PRESS RELEASES

Media and Press Releases and No Endorsement.

A. The Test Site Sponsor must provide any publicity, press releases, advertisements, reports, talking points, articles, social media or online platform posts or comments, publicly posted reports, and chat comments or references, that involve any form of media (to include but not limited to text, video, or photo) that references or refers to the FAA or the activities or services included under the scope of the Agreement. The request must be submitted to the FAA CO for approval at least ten business days prior to the proposed publication date. The Test Site Sponsor must also provide notice of any interviews or provide the interview content that refers to the FAA or the license or services under the scope of the Agreement to the FAA CO for approval at least ten business days prior to the interview. The Test Site Sponsor must obtain approval by the FAA CO in writing. If the FAA disapproves of the messaging or press release, and such information is released, then the FAA reserves the right to publicly issue appropriate corrections or clarifications to such information.

ARTICLE 27. PRIORITY OF USE

Any schedule, milestone, or effort entered into under this Agreement is estimated by the Parties based on their current understanding of the availability of the FAA and Test Site Sponsor goods, services, information, interconnection, facilities, or equipment. The Parties agree that FAA’s use of goods, services, information, interconnection, facilities, or equipment shall have priority over any use planned and implemented under this Agreement. Additionally, service interruptions to any services, information, or personnel may occur due to any reason including, but not limited to, operational necessity, safety, and security concerns and/or hardware failure.

The FAA, in its sole discretion, shall determine whether to exercise the aforementioned priority. The FAA reserves the right to interrupt or cut the supplied services, information, or personnel without prior coordination with the Test Site Sponsor. Test Site Sponsor will be notified by a representative of FAA as soon as practicable.

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