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HomeMy WebLinkAbout09553RESOLUTION NO. 9553 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND TRANSPORTATION SECURITY AGENCY RELATING TO THE LOAN OF CITY'S AIRPORT SECURITY EQUIPMENT AND RATIFYING THE EXECUTION AND DELIVERY THEREOF BY THE CITY MANAGER WHEREAS, the Transportation Security Administration (TSA) was created to assume security responsibilities relating to aviation security effective February 17, 2002, and WHEREAS, the Federal Aviation Administration forwarded by letter dated February 8, 2002 the Transaction Agreement -Loan of Equipment ( "Agreement ") directing that due to statutory guidelines the Agreement be executed and returned by February 14, 2002, and WHEREAS, the City Manager, Director of Aviation and City Attorney reviewed the Agreement and accepted it in substance and form, and WHEREAS, due to time constraints, the City Manager executed and delivered the Agreement in the name of the City. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Transportation Agreement -Loan of Equipment between the City of Pueblo and Transportation Security Agency relating to the lease of City's airport security equipment, a copy of which is attached hereto, having been approved by the City Attorney as to form, is hereby approved. SECTION 2. The execution and delivery of the Transaction Agreement -Loan of Equipment by the City Manager is hereby approved, confirmed and ratified. INTRODUCED: March 25, 2002 BY Patrick Avalos C9VNCIL � � PERSON APPROVED: _ PRESIDENT OF CITY COUNCIL ATTESTED BY: C Y CLERK /(L0. 1 95s3 Background Paper for Proposed RESOLUTION AGENDA ITEM # ID C DATE: March 18, 2002 DEPARTMENT: AVIATION -JOHN O'NEAL TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND TRANSPORTATION SECURITY AGENCY RELATING TO THE LOAN OF CITY'S AIRPORT SECURITY EQUIPMENT AND RATIFYING THE EXECUTION AND DELIVERY THEREOF BY THE CITY MANAGER ISSUE Should City Council approve an Agreement between the City of Pueblo and the Transportation Security Agency relating to the loan of City's Airport Security Equipment? RECOMMENDATION Approval of this Resolution. BACKGROUND The Airport received a proposed agreement to loan equipment to the FAA/TSA on February 12, 2002. This agreement was for the loan of the Airport's security screening equipment. Due to the statutory deadlines that were imposed on the FAA/TSA, they requested that the signed agreement be submitted and received by them before 2:00 p.m. on February 24, 2000. The City Manager and City Attorney were both apprised of the situation and, after a review of the agreement, the City Manager executed the agreement which was sent to the FAA/TSA. FINANCIAL IMPACT The FAA/TSA related in their letter that the agreement would be undefined to the extent that the costs for maintenance and repair will not be specified as well as the limitation of government liability. They requested we respond via separate correspondence to propose a not -to- exceed ceiling for reimbursement of costs for repair and maintenance by March 4, 2002. The City has sent their proposal letter requesting the not -to- exceed ceiling be set at $1,000 per quarter but we have not received a response from the FAA/TSA as of this date. U.S. Department of Transportation Federal Aviation Administration Pueblo Memorial Airport Attn: Mr. John O'Neal Pueblo Memorial Airport Department of Aviation 31201 Brian Circle Pueblo, CO 81001 To Whom It May Concern: 800 Independence Ave., S Washington, DC 2MI February 8, 2002 SUBJECT: Proposed Agreement to Loan Equipment to the FAA /TSA; Agreement #: DTFA01- 02- A -EQ045 Three copies of the subject proposed agreement are enclosed. Please have an authorized official sign three and return to the undersigned. Also, please complete Section C.13 of the agreement to annotate the authorized negotiator(s). Should you choose to have a person other than someone noted in C.13 sign this agreement, the FAA /DOT shall interpret such a gesture as indication on the part of your company that said person also has the authority to negotiate and make binding agreements for your company. Please note that the agreement will be undefinitized to the extent that the costs for maintenance and repair will not be specified. Likewise, the limitation of government liability will not be definitized at time of execution. We request that you respond via separate correspondence to propose a not -to- exceed ceiling for each of the following proposed CLINs: OLIN 0002, CLIN 0002a, and CLIN 0002b. These are the not -to- exceed ceilings for reimbursement of costs for repair and maintenance. Request that you submit this proposal to the undersigned on or before March 4, 2002. The government's liability will not exceed the not -to -eceed ceiling amounts definitized for the above -noted CLINs. Additionally, the government's liability is subject to the availability of funds. Due to the statutory deadlines imposed on FAA /TSA in regards to assuming the security screening responsibilities, we must request that you respond as quickly as possible and not later than February 14, 2002. The FAA /TSA requests that your signed agreement be submitted to (and received by) the undersigned on or before 2:00 p.m. on Thursday February 14, 2002. Please submit the signed agreement to the undersigned at the following address: REVOIFEB 12 Zoo? FAA Headquarters, ASU -370 Room 406 800 Independence Ave. SW Washington, DC 20591 Because it will not be possible for TSA to perform security screening without the appropriate equipment, the government reserves the right to not assume (or to postpone assumption of) security screening responsibilities for any air carrier and /or airport that does not have a signed loan agreement with the Government by February 14, 2002. The government anticipates that air carriers and airports will be cooperative in this matter and provide the government access to the requisite equipment and space to perform the security screening activities. If you have any questions, I can be reached at (202) 267 -3626; and my telefax number is (202) 493 -5148. In addition to mailing the original signed agreements, we would greatly appreciate you faxing the signed agreement as quickly as possible. Sincerely, m McNulty ntracting Officer, ASU -370 Enclosure a/s 2 • � r DTFA01- 02- A -EQ045 DTFA01- 02- A -EQ045 OTHER TRANSACTION AGREEMENT -LOAN OF EQUIPMENT Pueblo Memorial Airport (PUB) of Pueblo, Colorado (hereinafter referred to as the "owner" of the equipment) agrees to loan certain equipment, on a temporary and no -cost basis, to the Transportation Security Agency (TSA) who is assuming the responsibility for screening passengers, passenger baggage, and cargo on all commercial flights originating out of all commercial service airports in the United States. The "owner of the equipment" agrees to loan/provide the following type of equipment to the FAA/TSA in support of this effort: - Explosive Trace Detection Equipment - Advanced Technology (AT) & Explosive Detection System (EDS) Equipment - Walk - Through Metal Detectors - Conventional X -Ray Machines - Handwands - Communication Equipment CONTENTS OF AGREEMENT: Section A: Background Information/Authority Section B: Contract Line Items (CLINs) Section C: Terms and Conditions Section D: Terms and Conditions applicable to Reimbursable Maintenance Section E: Attachments to Agreement ACCEPTANCE BY BOTH PARTIES: As an authorized representative of Pueblo Memorial Airport, who has the authority to represent and make commitments for the company, I hereby certify that the equipment noted in Attachments E -1 is either owned or leased by this company. Furthermore, I hereby bind the company to the terms and conditi as set forth in this agreement. '02 Z A Z D to Print Name also: GOVERNMENT ACCEPTANCE OF TERMS AND CONDITIONS: a - -0 c3-- Date Officer, ASU -370 DTFA01- 02- A -EQ045 SECTION A — BACKGROUND INFORMATION Background Information: Pursuant to Public Law 107 -71, "The Aviation & Transportation Security Act" (ATSA), the Transportation Security Administration (TSA) was created to assume security responsibilities relating to aviation security and over other modes of transportation. ATSA also calls for the TSA to assume security screening operations at all commercial service airports in the United States. Assumption of the screening function by TSA is scheduled to become effective on February 17, 2002. With a very short amount of time to assume the screening function, and a need for the transition to be as seamless as possible, the Government is seeking the cooperation of the "owners" of the screening equipment during the transition period. This agreement would be a temporary measure to allow the parties to fully determine what equipment and other needs are involved in the screening function and provide adequate time for the parties to negotiate appropriate purchase, transfers, rentals or disposal. TSA and FAA expect the owners of the screening to continue to provide these items, on a no -cost basis to the government, until negotiations can occur, but for at least 120 days. ATSA also provides TSA authority to levee a `user fee" on the airlines to the extent that the costs of providing aviation security are not sufficiently covered by statutorily authorized passenger fees. Until such time as TSA is adequately established, the FAA is assisting TSA with the contractual aspects of assuming the screening responsibilities. Both parties to this agreement recognize that TSA will be unable to perform the screening function without the appropriate equipment. The government and the "owner of the equipment" will work in good faith to effect this transition. The government will be assuming the operation of equipment already approved for screening operations by the FAA. If it finds that such equipment previously used by the owners or screeners is inadequate to carry out the screening functions, the government will provide the owner written notification describing the inadequate nature of the equipment. The owner will work with the government in good faith in an attempt to remedy any inadequate equipment issues. The government reserves the right to postpone assumption of the screening function for any air carrier and at any location where the government has inadequate equipment to effectively carry out said screening function. The government also reserves the right to postpone assumption of the screening function in those instances where the "owner of the equipment" provides inadequate cooperation to support transition of the screening function. The purpose of this agreement is to provide TSA with use of equipment, currently being utilized by the owners, at selected airports to allow TSA's contract and government screeners to screen passengers, passenger baggage, and cargo. Authority: This agreement is entered into pursuant to the authority of 49 U.S.C. 106(1)(6) and (m). DTFA01- 02- A -EQ045 Definitions: For purposes of this agreement, the party that is "loaning" equipment to the government is referred to as the "owner" of the equipment. This term is being used although in some instances, the party may actually be leasing the equipment. The terms "owner" and "owner of the equipment" are used throughout this agreement. The terms refer to that party to this agreement that is not the FAA or TSA (i.e., the party that is not the government). DTFA01 -02- A -EQ045 SECTION B — CONTRACT LINE ITEMS CLIN 0001— Equipment Loan: The "owner of the equipment" agrees to loan the equipment [specified in Attachment E -1] to the Government (the FAA and TSA) for the period of time commencing on the date of this agreement and ending on June 30, 2002. The "owner of the equipment" agrees to provide this equipment to the Government on a no -cost basis through June 30, 2002. The parties hereto understand that the equipment will be used by TSA's screeners to screen passengers, passenger baggage, and cargo. CLIN 0002 — Maintenance of the Loaned Equipment: For the period of time commencing on the date of this agreement and ending on June 30, 2002, the "owner of the equipment" agrees to continue to perform all routine and scheduled maintenance on the equipment provided hereunder (including all repairs). These maintenance and repair services shall be performed on a reimbursable basis. The owner shall NOT earn or accrue any feelprofit for performance of these services. The government will hold the "owner of the equipment" harmless for any and all failures of the screening function resulting from misuse of the equipment. The government further agrees to use the equipment in accordance with manufacturer /supplier instructions and to train government employees/contractors or other users of the equipment in the proper use of the equipment. To perform the maintenance on and the repair of the loaned equipment, the owner is authorized to incur costs up to (but not -to- exceed) $ (SUBJECT TO THE AVAILABILITY OF FUNDS). OPTIONAL CLINs: The FAA shall have the right to exercise the following CLINs on a unilateral basis provided that TSA has not yet completed the negotiations described in the second paragraph of Section A herein (Background). CLIN 0001 a — Equipment Loan: The "owner of the equipment" agrees to loan that equipment [specified in Attachment E -1] to the Government (the FAA and TSA) for the period of time commencing on July 1, 2002, and ending on October 31, 2002. The "owner of the equipment" agrees to provide this equipment to the Government on a no- cost basis through October 31, 2002. The parties hereto understand that the equipment will be used by TSA's screeners to screen passengers, passenger baggage, and cargo. Ft e government will hold the "owner of the equipment" harmless for any and all failures of the screening function resulting from misuse of the equipment. The government further agrees to use the equipment in accordance with manufacturer /supplier instructions and to train government employees/contractors or other users of the equipment in the proper use of the equipment. CLIN 0002a — Maintenance of the Loaned Equipment: For the period of time commencing on July 1, 2002, and ending on October 31, 2002, the "owner of the equipment" agrees to continue to perform all routine and scheduled maintenance on the equipment provided hereunder (including all repairs). These maintenance and repair services shall be performed on a reimbursable basis. The owner shall NOT earn or accrue any fee /profit for performance of these services. The government will hold the "owner of the equipment" harmless for any and all failures of the screening function 4 DTFA01- 02- A -EQ045 resulting from misuse of the equipment. The government further agrees to use the equipment in accordance with manufacturer /supplier instructions and to train government employees/contractors or other users of the equipment in the proper use of the equipment. To perform the maintenance on and the repair of the loaned equipment, the owner is authorized to incur costs up to (but not -to- exceed) $ (SUBJECT TO THE AVAILABILITY OF FUNDS). CLIN 0001b — Equipment Loan: The "owner of the equipment" agrees to loan that equipment [specified in Attachment E -1] to the Government (the FAA and TSA) for the period of time commencing on November 1, 2002, and ending on February 28, 2003. The "owner of the equipment" agrees to provide this equipment to the Government on a no- cost basis through February 28, 2003. The parties hereto understand that the equipment will be used by TSA's screeners to screen passengers, passenger baggage, and cargo. men prove ereun er me u e government will hold the "owner of the equipment" harmless for any and all failures of the screening function resulting from misuse of the equipment. The government further agrees to use the equipment in accordance with manufacturer /supplier instructions and to train government employees/contractors or other users of the equipment in the proper use of the equipment. CLIN 0002b — Maintenance of the Loaned Equipment: For the period of time commencing on November 1, 2002, and ending on February 28, 2003, the "owner of the equipment" agrees to continue to perform all routine and scheduled maintenance on the equipment provided hereunder (including all repairs). These maintenance and repair services shall be performed on a reimbursable basis. The owner shall NOT earn or accrue any feelprofit for performance of these services. The government will hold the "owner of the equipment" harmless for any and all failures of the screening function resulting from misuse of the equipment. The government further agrees to use the equipment in accordance with manufacturer /supplier instructions and to train government employees/contractors or other users of the equipment in the proper use of the equipment. To perform the maintenance on and the repair of the loaned equipment, the owner is authorized to incur costs up to (but not -to- exceed) $ (SUBJECT TO THE AVAILABILITY OF FUNDS). DTFA01- 02- A -EQ045 SECTION C — TERMS AND CONDITIONS The terms and conditions included in this section apply to ALL aspects of the agreement. C.1 Undefinitized Aspects of This Agreement This agreement is entered into on an undefinitized basis to the extent described in this clause. At time of execution, the agreement will NOT include Attachment E -1 (the list of equipment). The FAA attempted to obtain this data (the list of equipment) from each air carrier and each airport prior to execution of this agreement. However, the data that was received from the air carriers and airports was, in general, not adequately accurate to include as an attachment to this agreement. Therefore, the parties will work in good faith to definitize the list of equipment (Attachment E -1) as quickly as possible subsequent to execution of this agreement. Additionally, at time of execution, the agreement does not specify the not -to- exceed ceilings for CLINs 0002, 0002a, and 0002b. The parties will work in good faith to definitize the not -to- exceed ceilings for each of these CLINs as quickly as possible subsequent to execution of this agreement. (End of clause) C.2 Termination Rights At any point in time, either party may terminate this agreement by providing written notice [to the other party] at least 30 days prior to the effective date of said termination. This written notice must be via certified retur- receipt U.S. Mail addressed to the Contracting Officer. In those instances where the "owner" chooses to terminate this agreement, the government reserves the right to transfer the screening responsibility back to that entity who was responsible for performing the screening function prior to February 17, 2002. The screening function would transfer back to that entity effective the date that the government no longer has access to adequate equipment to perform the screening function. (End of clause) C.3 AMS Clause 3.2.435 Option to Extend the Term of the Agreement (a) The Government may extend the term of this agreement by written notice to the owner of the equipment provided, that the Government shall give the owner written notice of its intent to extend at least 15 days before the agreement expires. (b) If the Government exercises this option, the extended agreement shall be considered to include this option provision. (c) The total duration of this agreement, including the exercise of any options under this clause, will not exceed 375 days. (End of clause) 6 DTFA01- 02- A -EQ045 CA AMS Clause 3.2.5 -1 Officials Not to Benefit (April 1996) No member of or delegate to Congress, or resident commissioner, shall be admitted to any share or part of this agreement, or to any benefit arising from it. However, this clause does not apply to this agreement to the extent that this agreement is made with a corporation for the corporation's general benefit. (End of clause) C.5 AMS Clause 33.1 -15 Assignment of Claims (April 1996) (a) The Contractor may assign its rights to be paid amounts due or to become due as a result of the performance of this contract to a bank, trust company, or other financing institution, including any Federal lending agency. The assignee under such an assignment may thereafter further assign or reassign its right under the original assignment to any type of financing, institution described in the preceding sentence. (b) Any assignment or reassignment authorized under this clause shall cover all unpaid amounts payable under this contract, and shall not be made to more than one party, except that an assignment or reassignment may be made to one party as agent or trustee for two or more parties participating in the financing of this contract. (c) The Contractor shall not furnish or disclose to any assignee under this contract any classified document (including this contract) or information related to work under this contract until the Contracting Officer authorizes such action in writing. (End of clause) C.6 AMS Clause 3.8.42 Condition of Leased/Loaned Equipment Each piece of equipment furnished under this agreement shall be furnished as is, where is, and shall comply with commercial and acceptable business practices, unless annotated otherwise in Attachment E -1 hereto. Within 30 days after execution of this agreement, for purposes of this loan agreement only, the Government shall accept or reject the equipment offered for loan. If the government determines that any equipment furnished is not acceptable, the government shall promptly inform the Contractor in writing. (End of clause) C.7 AMS Clause 3.8.43 Marking of Leased/Loaned Equipment (a) The Government may place nonpermanent identification markings or decals, on each piece of equipment provided under this agreement. The Government shall use markings or decals that are removable without damage to the equipment. (b) The Contractor may use placards for temporary identification of equipment except that the placards may not contain any references to the Contractor that may be construed as advertising or endorsement by the Government of the Contractor. (End of clause) DTFA01 -02- A -EQ045 - C.8 AMS Clause 3.10.1 -7 Bankruptcy (April 1996) In the event the Contractor enters into proceedings relating to bankruptcy, whether voluntary or involuntary, the Contractor agrees to furnish, by certified mail or electronic commerce method authorized by the contract, written notification of the bankruptcy to the Contracting Officer responsible for administering the contract. This notification shall be furnished within 30 days of the initiation of the proceedings relating to bankruptcy filing. This notification shall include the date on which the bankruptcy petition was filed, the identity of the court in which the bankruptcy petition was filed, and a listing of Government contract numbers and contracting offices for all Government contracts against which final payment has not been made. This obligation remains in effect until final disposition of equipment under this agreement. (End of clause) C.9 AMS Clause 3.9.1 -1 Contract Disputes (August 1999) (a) All contract disputes arising under or related to this contract shall be resolved through the Federal Aviation Administration (FAA) dispute resolution system at the Office of Dispute Resolution for Acquisition (ODRA) and shall be governed by the procedures set forth in 14 C.F.R. Parts 14 and 17, which are hereby incorporated by reference. Judicial review, where available, will be in accordance with 49 U.S.C. 46110 and shall apply only to final agency decisions. A contractor may seek review of a final FAA decision only after its administrative remedies have been exhausted. (b) The filing of a contract dispute with the ODRA may be accomplished by mail, overnight delivery, hand delivery, or by facsimile. A contract dispute is considered to be filed on the date it is received by the ODRA. (c) Contract disputes are to be in writing and shall contain: (1) The contractor's name, address, telephone and fax numbers and the name, address, telephone and fax numbers of the contractor's legal representative(s) (if any) for the contract dispute; (2) The contract number and the name of the Contracting Officer; (3) A detailed chronological statement of the facts and of the legal grounds for the contractor's positions regarding each element or count of the contract dispute (i.e., broken down by individual claim item), citing to relevant contract provisions and documents and attaching copies of those provisions and documents; (4) All information establishing that the contract dispute was timely filed; (5) A request for a specific remedy, and if a monetary remedy is requested, a sum certain must be specified and pertinent cost information and documentation (e.g., invoices and cancelled checks) attached, broken down by individual claim item and summarized; and (6) The signature of a duly authorized representative of the initiating party. (d) Contract disputes shall be filed at the following address: (1) Office of Dispute Resolution for Acquisition, AGC -70, DTFA01- 02- A -EQ045 Federal Aviation Administration, 400 7th Street, S.W., Room 8332, Washington, DC 20590, Telephone: (202) 366 -6400, Facsimile: (202) 366 -7400; or (2) other address as specified in 14 CFR Part 17. (e) A contract dispute against the FAA shall be filed with the ODRA within two (2) years of the accrual of the contract claim involved. A contract dispute by the FAA against a contractor (excluding contract disputes alleging warranty issues, fraud or latent defects) likewise shall be filed within two (2) years after the accrual of the contract claim. If an underlying contract entered into prior to the effective date of this part provides for time limitations for filing of contract disputes with the ODRA which differ from the aforesaid two (2) year period, the limitation periods in the contract shall control over the limitation period of this section. In no event will either party be permitted to file with the ODRA a contract dispute seeking an equitable adjustment or other damages after the contractor has accepted final contract payment, with the ekception of FAA claims related to warranty issues, gross mistakes amounting to fraud or latent defects. FAA claims against the contractor based on warranty issues must be filed within the time specified under applicable contract warranty provisions. Any FAA claims against the contractor based on gross mistakes amounting to fraud or latent defects shall be filed with the ODRA within two (2) years of the date on which the FAA knew or should have known of the presence of the fraud or latent defect. (f) A party shall serve a copy of the contract dispute upon the other party, by means reasonably calculated to be received on the same day as the filing is to be received by the ODRA. (g) After filing the contract dispute, the contractor should seek informal resolution with the Contracting Officer. (h) The FAA requires continued performance with respect to contract disputes arising under this contract, in accordance with the provisions of the contract, pending a final FAA decision. (i) The FAA will pay interest on the amount found due and unpaid from (1) the date the Contracting Officer receives the contract dispute, or (2) the date payment otherwise would be due, if that date is later, until the date of payment. Simple interest on contract disputes shall be paid at the rate fixed by the Secretary of the Treasury that is applicable on the date the Contracting Officer receives the contract dispute and then at the rate applicable for each 6 -month period as fixed by the Treasury Secretary until payment is made. 0) Additional information and guidance about the ODRA dispute resolution process for contract disputes can be found on the ODRA Website at http: / /www.faa..gov. (End of clause) C.10 Personnel Suitability Requirements Pursuant to existing federal regulation, the "owner of the equipment" agrees to implement adequate security procedures with respect to background/security checks for all personnel used to maintain and repair the equipment being loaned to the government under this agreement. That is to say, with respect to security screening and background investigations for such personnel working at operating airports, the same regulation shall apply to the owner as those that applied DTFA01- 02- A -EQ045 prior to the date of this execution. The owner shall ensure that appropriate screening and background investigations are obtained for all personnel used for such tasks. (End of clause) C.11 Modifications to this Agreement This agreement may be modified to define the undefinitized attachment hereto (Attachment E -1), and to implement other changes, via written bilateral agreements (modifications) that include the signatures of authorized personnel of both parties (the Contracting Officer for the government). (End of clause) C.12 AMS Clause 3.2.2.3 -15 Authorized Agents/Negotiators (April 1996) The "owner of the equipment" represents that the following persons are authorized to bind the owner on its behalf with the Government in connection with this submittal [list names, titles, and telephone numbers of the authorized agents/negotiators]: Lee B. Evett, City Manager, City of Pueblo, phone, #:.(719).584 -0800 Thomas Jagger, City Attorney, City of Pueblo, phone # (719) 545 -4412 (End of Clause) C.13 Administrative Matters This agreement is being awarded and administered by the FAA on behalf of TSA. The FAA may transfer responsibility for administration of this agreement to TSA at a future date. Written notification will be provided when and if that occurs. The government point of contact at time of award is as follows: Jim McNulty Contracting Officer, ASU -370 FAA Headquarters 800 Independence Ave. SW Washington, DC 20591 Phone number: (202) 267 -3626 The government also reserves the right to assign a government technical representative for this agreement. The technical representative would have the authority to provide direction of a technical nature. The technical representative would NOT have the authority to make financial obligations or commitments for the government. (End of Clause) 10 DTFA01- 02- A -EQ045 SECTION D — TERMS AND CONDITIONS APPLICBLE TO THE REIMBURSABLE MAINTENANCE PORTION OF THIS AGREEMENT The terms and conditions included in this section apply only to the reimbursable aspect of this agreement. The only costs that the government has agreed to reimburse to the owner are the costs associated with maintaining and repairing the equipment being loaned to the government under this agreement. D -1 FUNDING AND PAYMENT a. The government authorizes the "owner" to incur costs for maintenance and repair of the loaned equipment not -to- exceed $ . The government agrees to reimburse the "owner" for the costs incurred to perform such maintenance and repair of the loaned equipment. Reimbursement does not include reimbursement of any fee or profit for the owner or civil penalties assessed against the owner. Reimbursement will not exceed the specified not -to- exceed ceiling limitation. As funding permits and as the parties may later agree, the not -to- exceed ceiling may be increased. Note: This agreement may be incrementally funded pursuant to the availability of funds. b. In order to be reimbursed, the owner of the equipment shall submit a properly executed original and (1) copy of a request for payment (invoice) to the FAA at the billing address identified below. A properly submitted invoice shall contain the following information: (a) owner's name (e.g., the name of the air carrier), (b) invoice number and date, (c) number of this Other Transaction Agreement, and (d) complete mailing address or electronic funds transfer information of to whom and where the payment will be sent. Such invoices may not be submitted more than monthly, and shall only include reasonable, allowable and allocable costs as defined in the Acquisition Management System (AMS). The Agreements Officer will make payment within thirty (30) days after receipt of an approved invoice. c. The owner will be reimbursed for costs incurred pursuant to the terms and conditions of this agreement and the FAA Cost Principles as specified in AMS Cost Principles Procurement Guidance section T3.3.2 "Cost Principles ". Upon request, the Contracting Officer will provide a copy of the FAA "Cost Principles ". Billing Address: Attn: AFM -220, Accounts Payable Branch 800 Independence Avenue, SW Washington, DC 20591 D-2 LIMITATION OF GOVERNMENT LIABILITY The total Government's liability under this Agreement is limited to the amount of funds obligated hereunder (See paragraph a of Section D -1, Funding and Payment), including written modifications to this Agreement, unless otherwise stated in such modifications hereto. Claims for damages of any nature whatsoever pursued under this Agreement shall be limited to direct damages only up to the aggregate amount of funding obligated under this Agreement at the time the dispute arises (See paragraph a of Section D -1, Funding and Payment). In no event shall the FAA or the owner be liable to the other for claims for 11 DTFA01- 02- A -EQ045 consequential, punitive, special and incidental damages, claims for lost profits, or other indirect damages with respect to operations under this Agreement. D-3 AUDITS The Government shall have the right to examine or audit relevant financial records for a period not to exceed three (3) years after expiration of the terms of this Agreement. Relevant financial records include all records relative to the reimbursable maintenance charges including the owner's records pertaining to that period of time immediately prior to the date of execution of this agreement. The Government will perform incurred cost audits of the costs incurred pursuant to the effective date and term of Article 4 hereunder. The owner must maintain an established accounting system that complies with generally accepted accounting principles. Commercial companies should ensure their record retention policies comply with this policy. D4 TERMINATION FOR NON - PERFORMANCE OF MAINTENANCE AND REPAIR a. The government reserves the right to terminate this agreement should the owner of the equipment fail to adequately maintain and repair the equipment being loaned hereunder. In the event of any such termination for non - performance of maintenance and repair, the government reserves the right to transfer the screening responsibility back to that entity who was responsible for performing the screening function prior to February 17, 2002. The screening function would transfer back to that entity effective the date that the government terminates this agreement for such non - performance. b. In the event of termination or expiration of this Agreement, any FAA funds which have not been spent or obligated for allowable expenses prior to the date of termination, and are not reasonably necessary to cover termination expenses shall be de- obligated from this Agreement. (End of Clause) D -5 AVAILABILITY OF FUNDS Funds are not presently available for this contract. The government's obligation under this agreement is contingent upon the availability of funds from which payment can be made. No legal liability on the part of the government for any payment may arise until funds are made available to the Contracting Officer for this agreement and until the owner receives notice of such availability, to be confirmed in writing by the Contracting Officer. (End of clause) 12 DTFA01- 02- A -EQ045 SECTION E — ATTACI IAMNTS TO AGREEMENT Attachment E -1: List of Equipment The equipment listed in attachment E -1 shall be provided to the Government pursuant to the terms of this agreement. The attachment segregates the equipment by airport. 13 DTFA01- 02- A -EQ045 Attachment E -1: List of Equipment Walk - Through Metal Detector: Sentrie A T, Serial #23415 Conventional % -Ray Machine: Scanray System Four Model 01 -0401, Serial #46302 Handwand: Sentrie LHS+ Communication Equipment: Viking hands free alarm speaker, Model #E -20A, Serial #36000040 14