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MASTER SERVICES AGREEMENTh irFLIGHT TECH ENGINEERING Master Services Agreement for the City of Clearwater and FIyUSA PV, LLC This Master Services Agreement ("Agreement") is made as of this I/ day of April, 2023 by and among the City of Clearwater, a municipal corporation of the State of Florida ("Clearwater"), FIyUSA PV, LLC, a Florida limited liability company ("FIyUSA") and Flight Tech Engineering, LLC, a Colorado limited liability company ("Flight Tech" or "FTE"). Clearwater, FIyUSA and Flight Tech are sometimes individually referred to herein as a "Party" and collectively as the "Parties". RECITALS -1- Flight Tech is an FAA authorized third -party Navigation Services Provider and flight operations consulting firm with expertise in assessing, designing, and implementing instrument flight procedures (each, a "Flight Procedure" and collectively, "Flight Procedures") to airports and heliports across the United States. Flight Tech also conducts ongoing maintenance of such Flight Procedures in accordance with Flight Tech's FAA approved maintenance program ("Maintenance"). Flight Tech provides airport and aircraft operators with a broad array of survey, feasibility, performance, and other consulting services for both private and public applications ("Consulting Services"). -11- Clearwater is the owner of the Clearwater Air Park (KCLW). -111- Clearwater as "Lessor" and FIyUSA as "Lessee" are each a party to that certain Lease and Property Operation Agreement dated effective as of January 17, 2023 whereby FIyUSA leases the Clearwater Airpark (KCLW) from Clearwater ("Clearwater Airpark Lease"). Under the terms of the Clearwater Airpark Lease, FIyUSA is responsible for obtaining Flight Procedures for the Clearwater Airpark (KCLW) with ownership of the Flight Procedures to be vested in Clearwater. -IV- Under and subject to the terms of this Agreement, FIyUSA agrees to pay all fees and other amounts due to Flight Tech hereunder and each SOW for Services and Deliverables. Clearwater MSA/SOW Revision #3 (04/04/2023) Page l 1 AGREEMENT NOW, THEREFORE, in consideration of the agreements made herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Clearwater, FIyUSA and Flight Tech agree as follows: ARTICLE 1. STATEMENT OF WORK, TIMING, COMPENSATION AH services and deliverables (each, a "Service" and collectively, the "Services" and/or each, a "Deliverable" and collectively, the "Deliverables") provided by Flight Tech under this Agreement (whether Flight Procedures, Maintenance, or Consulting Services), including all fees and cost reimbursements therefor, will be performed and delivered by Flight Tech as set forth in individual Statements of Work agreed to and executed by authorized representatives of each of the Parties (each, an "SOW" and collectively, "SOWs") from time to time during the term of this Agreement. Each SOW will reference and be governed by and subject to the terms of this Agreement. No SOW may change any of the terms of this Agreement. Furthermore, each SOW will become incorporated into and become binding provisions of this Agreement. All Agreement documents are interpreted together as one agreement. If there is an irreconcilable conflict among the provisions of these documents, the following order of precedence applies: (a) any document executed by the Parties after execution of this Agreement that is expressly intended to amend or supersede the terms of this Agreement; (b) this Agreement, including any amendments or modifications thereto; (c) an SOW issued pursuant to this Agreement and any supplemental terms included or incorporated by reference therein; then (d) other documents agreed to in writing by the Parties. A. Description of Services: FTE shall render the Services and/or prepare the Deliverables to Clearwater described and agreed to in each SOW and perform the tasks included therein (each, a "Task" and collectively, the "Tasks"), at the specified billing rates set forth in each respective SOW. FTE shall be solely responsible for the conduct, actions, and supervision of its officers, directors, members, employees, and subcontractors (collectively, "Personnel"). All Services and Deliverables shall be performed and rendered in a manner consistent with the generally accepted standards of the industry. B. Resources: Unless otherwise expressly provided, Flight Tech will be solely responsible for the means, methods, and procedures of performing this Agreement and each SOW, providing all resources and facilities, including, but not limited to, computers, aviation design software, telecommunications systems, storage systems, office facilities, Personnel and other resources necessary to provide the Services and Deliverables. Any services, functions or responsibilities not specifically described in Clearwater MSA/SOW Revision #3 (04/04/2023) Page 12 an SOW that are incidental to or reasonably necessary to accomplish such SOW will be deemed to be implied by and included within the scope of such SOW to the same extent and in the same manner as if specifically described in such SOW. C. Changes: Clearwater and FIyUSA have the right to jointly request additions to or deletions from the Services and/or Deliverables set forth in any SOW. Upon a request for any such change, the Parties shall negotiate the change to the fee resulting from such request, based on the formula used to establish the existing fee, or where appropriate using the Flight Tech standard hourly consulting rate. Any changes to an SOW shall only become effective when agreed to and approved by the Parties in writing. ARTICLE 2. INVOICING, ADDITIONAL SERVICES, COST REIMBURSEMENT A. Flight Tech shall invoice FIyUSA for such fees as described within each respective SOW or as agreed upon by both Parties upon the completion of such Service, Deliverable, or Task. It is specifically agreed that payment of all fees and other amounts due under this Agreement and each SOW are the sole responsibility of FIyUSA. B. FIyUSA agrees to pay FTE amounts invoiced within thirty (30) days of the submission of an invoice for the amounts owed thereunder. ARTICLE 3. PAYMENT Payment shall be made by check via United States first-class or certified mail to the following: Flight Tech Engineering, LLC Attn: Accounting PO Box 3596 Englewood, CO 80155 Direct deposit information is available upon request. ARTICLE 4. EFFECTIVE DATE AND TERM The effective date of this Agreement is the date on which it is signed by all of the Parties; provided, however, in the event this Agreement is not counter -signed and returned by both Clearwater and FIyUSA to FTE on or before April 30, 2023, Flight Tech withdraws this Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 3 Agreement and any SOW attached hereto, all of which shall be null and void. In the event this Agreement is counter -signed and returned by Clearwater and FIyUSA to FTE on or before April 30, 2023, this Agreement shall continue in effect indefinitely, or until terminated by the Parties in accordance with Article 8. Subject to the foregoing, the term of any individual SOW for the completion of Services, Deliverables, or Tasks contained therein shall be governed by the respective SOW. ARTICLE 5. AIRPORT ENVIRONMENT CHANGE NOTIFICATIONS Due to reliance on automated weather reporting capabilities, government/airport owned navigational facilities, visual aids, changing airport conditions, FAA TERPS criteria updates, uncontrolled obstacles affecting the Vertical Guidance Surface (VGS), 20:1 Visual, or 34:1 Visual surfaces, OE/AAA submittals made before and after Flight Procedure FAA approval, and other forces outside of FTE's control, FTE cannot guarantee that any Flight Procedure approach minimums, procedure routes, or capabilities will remain unchanged both before and after FAA approval of such Flight Procedure. As information is made available to FTE, it will make updates in accordance with its FAA approved maintenance program. Furthermore, FTE cannot guarantee the performance or completion factor of aircraft using any Flight Procedure due to pilot and equipage differences, weather factors, and safety factors outside of FTE's control. During the term of this Agreement, Clearwater shall notify FTE of any changes affecting the airport environment or Flight Procedures as soon as reasonably possible after its discovery. If necessary, Flight Tech will respond by issuing an FDC Temporary NOTAM specific to the Flight Procedures. If the terrain or obstacle status changes after submission and/or FAA approval of any Flight Procedure, a modification to the Flight Procedure may be required. For Flight Procedures Clearwater owns under the terms of an SOW and this Agreement, modifying the Flight Procedure is considered an amendment and may require a new flight validation and FAA approval process subject to the time and materials costs and fees in the applicable SOW or as agreed to by the Parties, and Flight Tech shall invoice FIyUSA (and copy Clearwater) in accordance with Article 2 of this Agreement. ARTICLE 6. CHANGES, MODIFICATIONS Mutually agreed upon changes and/or modifications to this Agreement shall be in writing and signed by FTE and Clearwater and FIyUSA. 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. Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 4 ARTICLE 7. POINTS OF CONTACT Flight Tech Engineering, LLC Attn: Alec Seybold P.O. Box 3596 Englewood, CO 80155 (303) 957-6010 FIyUSA PV, LLC Attn: Barry Shevlin 380 Park Place Blvd., Suite 150 Clearwater, FL 33759 (727) 424-6679 City of Clearwater Attn: City Manager P.O. Box 4748 Clearwater, FL 33758 (727) 562-4040 With a copy of all Clearwater notices to go to: City of Clearwater Attn: City Manager 600 Cleveland Street, Suite 600 Clearwater, FL 33756 (727) 562-4040 City of Clearwater Marina and Aviation Director 25 Causeway Blvd, Suite 102 Clearwater, FL 33767 (727) 562-4040 ARTICLE 8. TERMINATION A. FTE or Clearwater and FIyUSA acting together may terminate this Agreement for convenience by providing ninety (90) days prior written notice of termination to the other Parties, provided FIyUSA shall remain liable for any unpaid amounts due to Flight Tech hereunder. In addition, should a termination occur during Flight Tech's performance of a Service, Deliverable, or Task, the compensation provided for such Service, Deliverable, or Task shall be reasonably prorated through the effective date of the termination based on the percentage of the Service, Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 5 Deliverable, or Task already performed by Flight Tech through the effective date of the termination. B. Either Flight Tech or Clearwater and FIyUSA, acting jointly, may also terminate this Agreement for cause by providing written notice to the defaulting Party or Parties, as applicable, and if the defaulting Party or Parties, as applicable, fails to fulfill its obligations (such as and including FIyUSA's payment obligations) and/or the defaulting Party or Parties, as applicable, otherwise breaches this Agreement, provided that the non -defaulting Party or Parties, as applicable, first advises the defaulting Party or Parties, as applicable, in writing of its breach and gives ten (10) days to cure such breach, except in the case of a breach by a Party or Parties, as applicable, related to safety, health, or security in which case the non -defaulting Party or Parties, as applicable, may immediately terminate this Agreement or any SOW without notice. In the event of breach of this Agreement by the defaulting Party or Parties, as applicable, and its termination by the non -defaulting Party or Parties, as applicable, the non -defaulting Party or Parties, as applicable, may collect reasonable costs, statutory interest, and attorney's fees in addition to any amount owed, other damages or other remedies to which such Parties or Party may be entitled. C. If this Agreement, or the Maintenance of any Flight Procedure provided for in an SOW, or such SOW itself, terminates, the Flight Procedure will be cancelled as required by the FAA. ARTICLE 9. OWNERSHIP AND POSSESSION OF WORK PRODUCT, DELIVERABLES, CONFIDENTIALITY A. Should Clearwater, under the terms of an SOW, agree to own any Service or Deliverable, Clearwater's ownership shall be subject to the applicable terms of this Agreement and the respective SOW, including the restrictions and limitations agreed to in Article 15 below. It is specifically agreed by the Parties that Clearwater shall be the sole owner of all Services and Deliverables provided under this Agreement and any SOW and that FIyUSA shall have no ownership thereof or therein. Unless otherwise expressly provided for in such SOW, all data, information, reports, drawings, renderings or other such documents or materials, whether or not electronic, ("Work Product"), except for data, programs, or other material previously owned by or licensed to FTE, shall be owned by Clearwater and delivered to it upon the termination of such SOW or this Agreement or when otherwise requested by Clearwater. Flight Tech may retain a copy of all Work Product for its records. Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 6 B. Should Clearwater, under the terms of an SOW, agree to subscribe to any Service or Deliverable therein, Clearwater shall not own the Service or Deliverable but is hereby granted a non-exclusive, non -transferable, non -assignable, non- sublicensable, limited right and license to use such Service or Deliverable subject to the applicable terms and conditions of this Agreement including the restrictions and limitations agreed to in Article 15 below. It is specifically agreed by the Parties that Clearwater shall be the sole licensee of all such Services and Deliverables provided under this Agreement and any SOW and that FIyUSA shall have no such license rights. In such case, Flight Tech is the owner of (a) all right, title, and interest in such Service or Deliverable; (b) any content, data and other materials made available through use of such Service or Deliverable; and (c) all modifications and enhancements of any of the foregoing, including all copyright rights, patent rights and other intellectual property rights in each of the foregoing. Under no circumstances may Clearwater or any other person acting by or through Clearwater (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of any such Service or Deliverable; or (ii) modify, translate, or create derivative works based on any element of such Service or Deliverable or any related Work Product or documentation. Upon any termination or expiration of the term of such SOW or this Agreement, the foregoing right and license shall terminate and Clearwater shall immediately cease use of the Service or Deliverable. C. All information, documents and material provided by a Party to the other Party or Parties and not within the public domain shall be treated as confidential and shall not be reproduced, transmitted, used, or disclosed by the other Party or Parties except in furtherance of its obligations under this Agreement or with the written consent of the other Party or Parties or as otherwise required by law. ARTICLE 10. WARRANTY, DISCLAIMER, LIMITATION OF LIABILITY Flight Tech represents and warrants for the sole benefit of Clearwater (and not FIyUSA) as follows: (a) that any Flight Procedure included in the Services and Deliverables, as of the date of final delivery to Clearwater following and conditioned upon FAA approval, will have been approved by the FAA either as a Special procedure pursuant to relevant FAA criteria, including FAA Order (FAAO) Nos.: 8260.3, 8260.19, 8260.58, and 8260.60 as amended (plus any criteria waivers as required), and not processed under Title 14, Code of Federal Regulations (14 CFR), Part 97, or as a public Instrument Flight Procedure processed under Title 14, Code of Federal Regulations (14 CFR), Part 97; (b) that any Maintenance of such Flight Procedure included in the Services and Deliverables will be performed in accordance with Flight Tech's FAA authorized maintenance program; and (c) that any Consulting Services included in the Services and Deliverables will be rendered Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 7 and provided in accordance with commercially reasonable standards and practices. Flight Tech's sole liability and obligation, and Clearwater's exclusive and sole remedy in the event the foregoing FAA approval of any Flight Procedure is suspended or revoked by the FAA during the term of this Agreement or an applicable SOW due to any deficiency directly caused by Flight Tech is for Flight Tech to use commercially reasonable efforts to secure prompt re -approval of the Flight Procedure by the FAA at no cost to Clearwater, it being specifically agreed that Flight Tech shall have no liability or obligation, and Clearwater shall have no remedy, in the event the Flight Procedure is suspended or revoked for any other reason, including for acts or omissions directly or indirectly attributable to Clearwater's or any other party's misuse of or failure to properly implement use of the Flight Procedure (or any Maintenance thereof). Flight Tech's sole liability and obligation, and Clearwater's exclusive and sole remedy in the event of Clearwater's claim that the Consulting Services have not been rendered and provided in accordance with commercially reasonable standards and practices is to provide corrections to the Consulting Services at no cost to Clearwater. Flight Tech's sole liability and obligation, and Clearwater's exclusive and sole remedy in the event of Clearwater's claim that any Maintenance of an FAA approved Flight Procedure included in the Services and Deliverables has not been performed in accordance with Flight Tech's FAA authorized maintenance program is to provide corrections to the Maintenance at no cost to Clearwater. EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 10, FLIGHT TECH MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE RELATING TO THE SERVICES OR DELIVERABLES INCLUDING, BUT NOT LIMITED TO, THEIR ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR ERROR -FREE OPERATION. FURTHERMORE, FLIGHT TECH HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF FLIGHT TECH HAS BEEN MADE AWARE OF SUCH PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS OTHERWISE SPECIFICALLY AGREED TO IN THIS ARTICLE 10, THE SERVICES AND DELIVERABLES ARE PROVIDED ON AN 'AS IS' BASIS AND CLEARWATER AND FLYUSA ASSUME ALL RISK WITH RESPECT TO USE OF THE SERVICES AND DELIVERABLES. THE ENTIRE LIABILITY OF FLIGHT TECH AND ITS MEMBERS, EMPLOYEES, OFFICERS, DIRECTORS, AND AFFLIATES (COLLECTIVELY, THE "REPRESENTATIVES") FOR ANY REASON SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID TO FLIGHT TECH FOR THE SPECIFIC SERVICES AND/OR DELIVERABLES GIVING RISE TO THE LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FLIGHT TECH AND ITS REPRESENTATIVES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR INVESTMENT, OR THE LIKE) ARISING UNDER THIS AGREEMENT, OR RELATED TO THE SERVICES OR DELIVERABLES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF FLIGHT TECH OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. THE Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 8 LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN AMONG FLIGHT TECH AND CLEARWATER AND FLYUSA. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS ARTICLE 10 WERE ARRIVED AT IN CONSIDERATION OF THE MUTUAL AGREEMENTS OF THE PARTIES SET FORTH HEREIN AND ARE INTEGRAL TO THE FEES CHARGED HEREUNDER FOR THE SERVICES AND DELIVERABLES PROVIDED HEREUNDER AND RECOGNIZE THAT WERE FLIGHT TECH TO ASSUME ANY FURTHER LIABILITY BEYOND THAT AGREED TO HEREIN, SUCH FEES WOULD BE SUBSTANTIALLY HIGHER. ARTICLE 11. INSURANCE Except as may be expressly required of any Party in a specific SOW, Flight Tech will maintain the following insurance: • Workers Compensation and Employer's Liability. • Commercial General Liability. • Automobile Liability. • Professional Liability. Furthermore, if under the terms of an SOW, Clearwater or FIyUSA is required to provide an aircraft to Flight Tech for the accomplishment of any Task, Clearwater or FIyUSA will ensure that the liability insurance coverage for such aircraft and its owner/operator includes Flight Tech as an additional named insured with a waiver of subrogation against Flight Tech. Clearwater or FIyUSA shall provide Flight Tech with a written Declaration or Certificate of Insurance acceptable to Flight Tech evidencing same prior to use of the aircraft with respect to any Task. ARTICLE 12. OPERATOR RESPONSIBILITIES Should any SOW include one or more Flight Procedures which are classified as Special procedures, Clearwater and any Approved Third -Party (as defined in Article 15 below) is solely responsible for obtaining an FAA Letter of Authorization (LOA), Operation Specification (OpSpec), Navigation Specification, (NavSpec) or other required FAA approval. A condition of such authorization may require additional crew training, aircraft equipment or performance capabilities, and/or the use of landing aids, communications, or weather services not generally available for public use. Clearwater and any Approved Third -Party (as defined in Article 15 below) is solely responsible for proper use of and assumes all risks with respect to use of any Flight Procedures, whether Special or public. Flight Data Center (FDC) Notices to Airmen (NOTAMs) may be used to promulgate safety - of -flight information relating to private special flight procedures. Pilots may access NOTAMs online or through an FAA Flight Service Station (FSS). FSS specialists will not automatically provide NOTAM information to pilots or dispatchers for Special procedures Clearwater MSA/SOW Revision #3 (04/04/2023) Page 19 during telephone pre-flight briefings. When authorized by the FAA to use Special Flight Procedures, pilots must specifically request FDC NOTAM information for the particular Special procedure they plan to use. Furthermore, should the Flight Procedures include one or more Special procedures, such Flight Procedures require a tailored chart and navigation database subscription from a third -party provider selected by Clearwater. As part of this Agreement, Flight Tech agrees to provide the Flight Procedures' ARINC 424 data to Clearwater's navigation and chart database provider; however, FIyUSA is solely responsible for all tailored and/or test database creation and subscription costs therefor. Unless otherwise specifically stated in the Agreement or any SOW, the following services are not provided under this Agreement: development of aircraft operator training programs (e.g., Advanced Qualification Programs), production grade approach charts, take -off and landing performance data, one engine inoperative missed approach, and one engine inoperative departure procedures. The Flight Procedures will utilize satellite -based navigation to provide lateral and vertical course and range guidance. When flown as designed, the Flight Procedures are intended to provide obstacle clearance in instrument conditions, and for approaches, down to the Minimum Descent Altitude (MDA), Decision Altitude (DA), or Missed Approach Point (MAP) (for a "Fly Visual", "Proceed Visually", "Proceed VFR", or RNAV Visual Flight Procedure (RVFP) segment) at which time: if the pilot can acquire and maintain the applicable required visual references, a landing can be initiated. Descent below the MDA/DA or beyond the MAP is not allowed if the required visual references cannot be identified and maintained until landing, in which case initiation of the missed approach is required. If the required visual references are obtained, it is the responsibility of the pilot in command (PIC) to determine if a transition to a stabilized visual approach to the runway can be made. For a "Fly Visual", "Proceed Visually", "Proceed VFR", or RVFP segment, obstacle and terrain avoidance from the MAP to the landing surface may be the responsibility of the pilot and a missed approach procedure may NOT be provided between the MAP and the landing surface. If the PIC perceives that conditions are unsafe while in flight, or believes the assigned course is unreasonably hazardous, the PIC should reject the approach and divert to another airport or hold at the established point. Air traffic controllers and FTE do not have the capability for determining whether a given weather situation is "safe for landing;" the final decision as to whether to undertake the landing is solely with the PIC. It is the responsibility of Clearwater or any Approved Third -Party (as defined in Article 15 below) and/or the PIC to discontinue use of the Flight Procedures if any of the following scenarios arise: Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 10 i. Navigational facilities required for navigation are out of service, impaired, or unavailable; ii. Satellite reception for the Flight Procedures is lost or degraded below the capability required by the GPS/FMS or aircraft operations manual; iii. The airport environment and/or runway is not suitable for landing; iv. Runway Friction Values do not meet the minimum required to safely land the aircraft per the Aircraft Flight Manual (AFM); v. Weather conditions are below the approach minimums established for use; vi. Tailwind limitations have been exceeded for the approach procedure or the approved aircraft/company operations manual; vii. The aircraft, PIC, or flight crew does not meet the necessary equipment or training requirements per the FAA 8260-7B and/or the aircraft manufacturer minimum equipment list; viii. An active FDC NOTAM exists that states the approach is `NA'; ix. The local altimeter setting is not received (and an approved alternate is not available); x. Aircraft not properly configured for landing; xi. The PIC and/or flight crew does not meet the regulatory and/or company requirements to conduct the Flight Procedures; xii. Active NOTAMs have not been reviewed; or xiii. For any other reason in which the PIC cannot safely continue the Flight Procedure. Engine -Out SIDs, Engine -Out Missed Approach, and Balked Landing Extraction Procedures are considered non-standard operating scenarios based on FAA Advisory Circular 120-91 guidance. An engine -out (EO) is considered an emergency event and may require immediate evasive action by the flight crew. Services and Deliverables designed for non- standard or emergency scenarios are not based on standard TERPS obstacle clearance criteria and have reduced margins requiring strict adherence to the instructions to ensure obstacle and terrain clearance is achieved. Extraction procedures must be reviewed by an in-house or third -party aircraft performance provider (i.e., AeroData) to ensure the aircraft is capable of flying the procedure within the maximum weight limit allowable. ARTICLE 13. INDEMNIFICATION FIyUSA agrees to save, defend, indemnify and hold harmless Flight Tech and its subcontractors from and against all claims, demands and liabilities (including claims and demands by and liabilities to third parties), and costs and expenses (including attorneys' fees) incident thereto or incident to successfully establishing the right to indemnification (a) arising from or related to Clearwater's or FIyUSA's or any other party's use of the Services or Deliverables; (b) arising from or related to injury to or death of any person or Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 11 persons, including employees of Clearwater or FIyUSA's (but not employees of Flight Tech), or arising from or related to loss of or damage to any property, whether or not arising in tort or occasioned by the negligence of Flight Tech, except to the extent due solely to the willful or reckless misconduct of Flight Tech or (c) arising from or related to Clearwater's or FIyUSA's breach of this Agreement. For purposes of this Article 13, the term 'Flight Tech' includes its parent company, its divisions, subsidiaries and affiliates, the assignees of each, and their respective directors, officers, employees, members, and agents. Except to the extent sovereign immunity may be deemed to be waived by entering into this Agreement, nothing herein is intended to serve as a waiver of sovereign immunity by Clearwater nor shall anything included herein be construed as consent by Clearwater to be sued by third parties in any matter arising out of this Agreement. Clearwater is a political subdivision as defined in Section 768.28, Florida Statutes, and shall be responsible for the negligent or wrongful acts or omissions of its employees pursuant to Section 768.28, Florida Statutes. ARTICLE 14. FORCE MAJEURE If the performance of any part of this Agreement (except for FIyUSA's payment obligations under this Agreement) by a Party is prevented, restricted, interfered with or delayed by an event or circumstance of force majeure (including, fire, flood, epidemic, pandemic, embargo, power shortage or failure, acts of war, insurrection, riot, terrorism, strike, lockout or other labor disturbance or acts of God) that is not within the reasonable control, directly or indirectly, of the Party seeking to have its performance excused thereby, the Party or Parties so affected shall, upon giving written notice to the other Party or Parties, be excused from such performance to the extent of such prevention, restriction, interference or delay; provided that the affected Party or Parties shall use their respective reasonable efforts to avoid or remove such causes of non-performance and shall continue performance with the utmost dispatch whenever such causes are removed. The Parties agree that a Party's financial inability or other inability to obtain funds sufficient to perform its obligations hereunder shall not be grounds for obtaining relief under this Article 14. ARTICLE 15. EXCLUSIVE USE BY CLEARWATER Clearwater and FIyUSA agree that, except for Flight Procedures publicly -available in accordance with (CFR 14) Part 97, or as may be expressly permitted in a specific SOW, the Services, Deliverables, and Work Product developed and provided hereunder are for Clearwater's exclusive use and are not intended or developed for resale or distribution to or use by any party other than Clearwater and accordingly Clearwater agrees that Clearwater will not directly or indirectly duplicate, distribute, resell, rent, license, lease, or otherwise charge for, or convey to, or allow use of the Services, Deliverables, and Work Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 12 Product by any third -party (including without limitation Clearwater's affiliates or subsidiaries or lessee of Clearwater's aircraft) without Flight Tech's prior written consent which Flight Tech may withhold or grant in its sole discretion (in the event of such consent, an "Approved Third -Party"). Should a specific SOW expressly permit a then Approved Third -Party's use of any Services, Deliverables, and Work Product, such Approved Third - Party use shall be subject to and conditioned upon execution of a use and hold harmless agreement between Flight Tech and such Approved Third -Party in a form designated by Flight Tech. Approved Third -Party use of the Services, Deliverables, and Work Product is further subject to and conditioned upon Approved Third -Party's receipt of all FAA authorizations and approvals as may be required. ARTICLE 16. PROFESSIONAL REGISTRATION This Agreement does not include the production and stamp and seal of drawings, specifications, or calculations. ARTICLE 17. STANDARD OF CONDUCT Flight Tech will perform or cause to be performed the Services, Deliverables, and/or Tasks in accordance and compliance with all laws, regulations, and applicable codes (federal, state and local) and within the provisions of this Agreement, using best efforts to conduct the Services in an expeditious and timely manner. ARTICLE 18. CHOICE OF LAW, JURISDICTION, VENUE, SERVICE OF PROCESS This Agreement shall be governed by and construed and interpreted according to the laws of the State of Colorado. In the event of any litigation or suit arising out of or relating to this Agreement, such litigation or suit may be brought in the courts of the State of Colorado, County of Jefferson, or, if it has or can acquire jurisdiction, in the United States District Court for the District of Colorado, and each of the Parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the litigation or suit shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. ARTICLE 19. NOTICE Any notice, request or other communication to be given by a Party to the other Parties Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 13 under this Agreement shall be in writing and personally delivered or sent certified or registered mail return receipt requested, to the addresses set forth in Article 7 of this Agreement, or such other address as a Party may from time to time designate by giving the other Party or Parties written notice. ARTICLE 20. ASSIGNMENT AND SUBCONTRACTING This Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the Parties and their respective successors and assigns in accordance with the terms hereof. No Party may assign or transfer this Agreement or any rights or obligations hereunder, in whole or in part, without the prior written consent of the other Parties, except that Flight Tech may make such an assignment or transfer without Clearwater's or FIyUSA's consent to a successor to all or substantially all of the business of Flight Tech, whether by way of merger, consolidation, sale of stock, sale of assets or other transaction. Any assignment or attempted assignment by a Party in violation of the terms of this Article 20 shall be null, void and of no legal effect. Flight Tech may not sub -contract its obligations hereunder without the written consent of Clearwater, which shall not be unreasonably withheld, conditioned, or delayed. ARTICLE 21. OTHER TERMS Survival. The following provisions of this Agreement shall survive the expiration, termination, or completion of this Agreement and shall remain in effect after any such termination, expiration or completion: Articles 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, and 21. Non -Solicitation. Clearwater and FIyUSA shall not hire or solicit the services or employment of any employees or independent contractors of Flight Tech directly involved in the performance or provision of the Services or Deliverables during the Term of the Agreement or related SOW and for one (1) year thereafter. This restriction will not prohibit Clearwater and FIyUSA from hiring personnel as a result of general recruiting strategies that are not directed specifically towards Flight Tech's employees or independent contractors, including but not limited to the placement of general advertisements or posting of positions on the Internet. Taxes. FIyUSA shall be responsible for the payment of all applicable taxes and other governmental charges including but not limited to all sales, use, or excise taxes, and all customs duties, fees, or tariffs, for its purchase and receipt of the Services and Deliverables. Flight Tech may invoice FIyUSA for taxes that Flight Tech is required to collect or pay in connection with providing and performing the Services and Deliverables. Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 14 Independent Contractor. Flight Tech shall at all times be an independent contractor under this Agreement, and nothing herein shall be deemed to cause this Agreement to create an agency, franchise, partnership, or joint venture among the Parties. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Clearwater, FIyUSA and Flight Tech or any employee or agent of Flight Tech. The employees furnished by Flight Tech to perform the Services and Deliverables shall be and are Flight Tech's employees exclusively and shall be paid by Flight Tech for all services in connection with this Agreement. Waivers. No waiver by any Party of any default or breach of this Agreement, whether intentional or not, shall be deemed to extend to any prior or subsequent default or hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. Construction. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word "including" shall mean including without limitation. Incorporation of Exhibits, Schedules and Recitals. The Recitals to this Agreement and any Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof. Entire Agreement. This Agreement constitutes the entire agreement among the Parties as to its subject matter, and supersedes all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. In the event that Clearwater and FIyUSA issue a purchase order in connection with the Flight Procedures and/or this Agreement, this Agreement will govern and take precedence over all terms and conditions contained in or referenced in such purchase order. Attorneys' Fees. In the event of litigation concerning this Agreement or any agreement or schedule provided for hereunder, the prevailing party in such litigation shall be entitled to recover its costs and reasonable attorney fees from the non -prevailing party. Counterparts. This Agreement may be executed in one or more counterparts, each of Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 15 which, whether an original or delivered electronically (including PDF counterparts), shall be deemed an original but all of which together will constitute one and the same instrument. Authority. The individuals executing this Agreement on behalf of Clearwater and FIyUSA represent and warrant to Flight Tech that he or she is duly authorized to execute this Agreement on behalf of Clearwater and FIyUSA, as applicable, and that this Agreement constitutes the valid, binding and enforceable obligation of Clearwater and FIyUSA. [signature page follows] Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 16 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below. FLIGHT TECH or FTE: FLYUSA: FLIGHT TECH ENGINEERING, LLC FLYUSA PV, LLC Richard T. Digitally signed by }} Richard T. Scott Scott l Date: 2023.04.05 09:54:28 -06'00 By: By: Barry L. Shevlin Name: Richard Scott Name: (type or print) (type or print) Manager Title: Chief Operating Officer Title: 4/5/2023 4/5/2023 Date: Date: Countersigned: Appro ed as to fo CITY OF CLEARWATER SIGNATURES: Matthew J. Mytych, • q. Assistant City Attorney CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation. By: Poirrier City Manager Rosemarie Call City Clerk Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 17 EXHIBIT A — STATEMENT OF WORK FLIGHT TECH ENGINEERING Instrument Flight Procedure Development Submitted to the City of Clearwater and FIyUSA PV, LLC This Statement of Work ("SOW") is agreed to by and among the City of Clearwater, a municipal corporation of the State of Florida ("Clearwater"), FIyUSA PV, LLC, a Florida limited liability company ("FIyUSA") and Flight Tech Engineering, LLC ("Flight Tech" or "FTE") and attached as Exhibit A to that certain Master Services Agreement ("Agreement") dated March 31, 2023, by and among Clearwater, FIyUSA and FTE. Clearwater, FIyUSA and Flight Tech are sometimes individually referred to herein as a "Party" and collectively as the "Parties". RECITALS -I- Flight Tech is an FAA approved third -party Navigation Services Provider and flight operations consulting firm with expertise in assessing, designing, and implementing instrument flight procedures (each, a "Flight Procedure" and collectively, "Flight Procedures") to airports and heliports across the United States. Flight Tech also conducts ongoing maintenance of such Flight Procedures in accordance with Flight Tech's FAA approved maintenance program ("Maintenance"). Flight Tech provides airport and aircraft operators with a broad array of survey, feasibility, performance, and other consulting services for both private and public applications ("Consulting Services"). -11- Clearwater desires to engage FTE to provide Services and/or Deliverables (whether Flight Procedure, Maintenance, or Consulting Services) under the terms and conditions of the Agreement and this SOW, more specifically to design, develop, and maintain the KCLW RNAV (GPS) RWY 16 instrument approach procedure and an IFR departure procedure as privately -owned publicly -available Flight Procedures developed in accordance with (CFR 14) Part 97 (each, individually a "KCLW Public Procedure" and collectively, the "KCLW Public Procedures") at Clearwater Air Park (KCLW) in Clearwater, Florida. The KCLW Public Procedures shall be owned solely by Clearwater, not FIyUSA. -III- Under and subject to the terms of this SOW and the Agreement, FIyUSA agrees to pay all fees and other amounts due to Flight Tech hereunder for Services and Deliverables agreed to in this SOW. Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 18 AGREEMENT NOW, THEREFORE, in consideration of the agreements made herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Clearwater, FIyUSA and Flight Tech agree to this SOW as follows: KCLW PUBLIC PROCEDURES OWNERSHIP Flight Tech shall undertake the design, development, submission and Maintenance of the KCLW Public Procedures which shall be sponsored and owned by Clearwater. FIyUSA agrees to pay Flight Tech all fees and other amounts due under this SOW but FIyUSA will neither sponsor nor own the KCLW Public Procedures. The Parties further agree to the fees to be paid by FIyUSA to Flight Tech that are set forth in the Fee Schedule below. In accordance with FAA Advisory Circular (AC) 90-110 (as revised), Flight Tech shall design, develop, flight validate, and submit the KCLW Public Procedures via the FAA's IFP Gateway as Part 97 publicly -available Flight Procedures. This is ideally suited to situations where standard design criteria can be utilized, and multiple users are intended to be served by the KCLW Public Procedures. This allows aircraft operators to fly the KCLW Public Procedures without having to apply for a Letter of Authorization (LOA) or add the procedures to an OpSpec. The design method is limited to space -based approaches such as RNAV (GPS) and RNAV (RNP). Flight Procedures for public use and distribution typically take longer to implement due to additional FAA approvals, charting, and ARINC processing requirements. After FAA approval, Flight Tech shall maintain the KCLW Public Procedures on behalf of Clearwater in accordance with Flight Tech's FAA authorized Maintenance program. KCLW PUBLIC PROCEDURES DESIGN TARGETS The actual weather minimums for the KCLW Public Procedures will be determined after an initial assessment and FAA approval process. The following procedure target points have been established to serve as a general estimate based on preliminary terrain assessments. Area Navigation (RNAV) approaches utilizing Global Positioning System (GPS) technology have been selected to achieve straight -in lines of minima. Obstacles in the Vertical Guidance Surface (VGS), 20:1, or 34:1 visual surfaces may cause additional procedure constraints, including restrictions to nighttime use. The design targets for the KCLW Public Procedures are as follows: (1) Public RNAV (GPS) RWY 16 Instrument Approach Procedure: ■ A Localizer Performance (LP) line of minima. • Aircraft Speed Category A -C. • Height Above Threshold (HAT) between 250-500 ft. Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 19 • Visibility: 1 to 1 1/2 statute miles (SM). • Vertical Descent Angle: 3.00 to 3.77 degrees. • Straight -in Aligned or Offset Final Approach Course (similar to LDA for obstacle avoidance). • Night Landing Capable (if no visual segment obstacles exist and runway lighting available). • Standard Missed approach climb gradient (CG)200-425 ft/nm. (2) Public IFR TAKEOFF MINIMUMS AND (OBSTACLE) DEPARTURE PROCEUDRE: • IFR TAKEOFF MINIMUMS AND (OBSTACLE) DEPARTURE PROCEDURE for RWY 16/34 that connects to the enroute structure. Assessment of the KCLW Public Procedures consists of building the new procedures in FTE's Instrument Procedure Design Software that utilizes the latest airport obstacle survey, Digital Obstacle File (DOF), US digital terrain elevation, and flight navigation data. The analysis will determine the minimums required, resulting criteria deviations, and any FAA waivers needed. APPROVAL OVERVIEW All flight paths, altitudes, and weather minimums developed as part of the KCLW Public Procedures package submission to the FAA are considered subject to change. After careful review by FAA Flight Standards office and Flight Procedures and Airspace Group (FPAG), a final decision will be made by the FAA Procedure Review Board (PRB). While Flight Tech will do its best to match the initial submission, unforeseen factors may cause a difference between the initial submission and final approved packet. Flight Tech will provide updates to Clearwater and FIyUSA should changes occur. Furthermore, development of the KCLW Public Procedures may rely on specific waivers being issued from the FAA. FTE will make every effort to advance the design as submitted; however, it is at the FAA's sole discretion to grant, or deny, any waivers contained therein. As such, FTE cannot guarantee final approval by the FAA of any Flight Procedure. Should approval not occur, FIyUSA understands and agrees to compensate FTE on a time and materials basis pursuant to the General Consulting Pricing detailed in the Fee Schedule below, for the work done under this SOW. PROCEDURE IMPLEMENTATION PROCESS — DESIGN TASKS The following Tasks outline the different stages of the KCLW Public Procedures assessment, development, and submission process. Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 20 A) Timeline The authorization process for publicly -available Flight Procedures submitted through the FAA's IFP Gateway, (i.e., the KCLW Public Procedures) takes approximately 18-24 months. B) Initial Coordination - Task 1 Prior to designing the KCLW Public Procedures, Flight Tech FTE will meet with all stakeholders to determine the aircraft, avionics, training, and airspace requirements needed to facilitate the most effective Flight Procedures. Approach procedures can have varying levels of accuracy (WAAS, Baro VNAV, etc.) which affects the resulting minimums (ceiling/visibility). If future improvements to infrastructure or avionics are anticipated, those capabilities can also be assessed and planned for. Below is a list of the proposed coordination events that will take place. C) Planned Outreach Meetings ■ Aircraft Operator: FTE will hold meetings with local operators and relevant stakeholders to determine their level of aircraft equipage and capabilities. Each operator/fleet type has the potential for different levels of procedure accuracy which drive Flight Procedure minimums. This requirement gathering process will determine aircraft speed limitations, final descent limitations, and climb gradients necessary for the KCLW Public Procedures. • Airport Owner: FTE will meet with Clearwater and airport staff to outline the design Tasks and gather AGIS Survey information. A discussion and review of recent changes to runway protection surfaces, planned development around the airfield, local weather patterns, noise abatement preferences, airfield restrictions, and categorical exclusion (CATEX) planning will occur. • Tampa Approach (TPA): FTE will coordinate with Tampa airspace personnel to solicit feedback on current enroute transitions, approach, and departure flows, holding areas, and airspace improvements. FAA ATC is a key partner in any new Flight Procedure proposals and will ultimately provide the approval to move forward with new submissions. D) Development & Submission - Task 2 The development and submission process of Task 2 begins by reviewing existing onsite survey data to determine if there have been any changes to low close -in obstacles that may affect the approach and/or departure. Flight Tech will use the surveys in developing the new KCLW Public Procedures and preparation of the 8260 procedure packets. At the end of Task 2, the KCLW Public Procedures will be ready for flight validation (Task 3). Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 21 Detailed list of Task 2: Task 2 Development & Implementation Review of existing AGIS and on-site survey data Prepare Initial IAP/DP Concept Including Design Workspace Prepare FAA RAPT Submission Paperwork & Submission to FAA AFS Submit WAAS Channel Request Complete Environmental Pre-screening Prepare CATEX filing to FAA Environmental Non -Approved Criteria Waiver consultation w/ AFS NFDC Waypoint Request (new reservation or modification) Final IAP Procedure Development based on ATC/AFS/PRB coordination Complete 8260-1, 7A, 9 Forms for IAP Complete 8260-15 Forms for Departure Prepare TARGETS workspace for FAA validation Complete 8260-2 Radio Fix and Holding Data Records for IAP/DP Package Submission: Create IAP Overlay & Obstacle Maps Package Submission: Prepare Flight Inspection Graphic (FLIP) Package Submission: Prepare ARINC 424 package (8260-10 & ARI File) Package Submission: Compile overview letter and IFP documents for FAA IFP Gateway submission FAA Procedure Review Board (Coordination & change control) E) Task 2 Deliverables FTE will prepare an FAA Form 8260 procedure package that documents the procedure minimums and coding for each phase of the flight segments (Initial, Intermediate, Final, Missed Approach, and Departure) for the KCLW Public Procedures to be submitted by Flight Tech to the IFP Gateway. Unless specifically stated in this SOW, the costs associated with the following services are not covered as part of this SOW: development of aircraft operator training programs (e.g., Advanced Qualification Programs), production grade approach charts, take -off and landing performance data, single engine missed approach, and development of single engine departure procedures. F) Flight Validation - Task 3 Upon completion of development in Task 2, the KCLW Public Procedures must be inspected by an appropriately equipped aircraft (e.g., GPS/LP/WAAS equipped with a test navigation database) prior to submission to the FAA. This confirms the flyability of the procedures, avionics compatibility, and ensures any unknown Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 22 obstacles are clear of the flight path. Flight Tech shall provide the necessary aircraft to accomplish the flight validation process in accordance with the fees set forth in the Fee Schedule below. FIyUSA shall be responsible for all costs incurred for the provision of aircraft, flight crews, fuel, test database, and all other associated costs for the flight validation which shall be provided by Flight Tech. Flight Tech shall provide an FAA qualified observer who performs the procedure validation checks and data collection necessary for the FAA submission. The flight validation is only performed once as part of the initial inspection unless there is an amendment to the procedure. The entirety of the KCLW Public Procedures will be flown including the missed approach and controlling obstacles will be documented. Post processing of GPS NMEA data, controlling obstacles, and the inspection report will be included in the final procedure packet submission to the FAA. ONGOING MAINTENANCE OVERVIEW After the successful flight validation in Task 3 and final FAA approval of the KCLW Public Procedures, the FAA requires all Flight Procedures (whether publicly -available or Special) to be continually monitored for changes to the airport and airspace environment to ensure the safety, quality, and currency of the procedures. The Maintenance provisions of this SOW are necessary to keep the KCLW Public Procedures active and must remain in place upon the approval of the KCLW Public Procedures. Continuous NOTAM and OE/AAA monitoring, Biennial Procedure Reviews (BPRs), and recurring airborne obstacle assessments (540 -Day Inspections) shall be provided by FTE utilizing its approved Maintenance program on file with the FAA. The following provides an overview of each recurring Task of the Maintenance provisions of this SOW: A) Obstacle Evaluation/Airport Airspace Analysis (OE/AAA) and NOTAM Monitoring (Continuous) This is an ongoing Task that occurs continuously and utilizes Airport/Airspace analysts and TERPS specialists who verify the latest obstacle submissions from the FAA OE/AAA filing website. The most common data points FTE reviews are FCC antenna tower proposals and new building construction. The goal of this process is to ensure a new construction proposal does not threaten the KCLW Public Procedures' minimums or safety of flight which is why this Task is so critical. The second component is a weekly review of all applicable airspace NOTAMs from the FAA (cranes & NAVAID impacts, etc.). This data is reviewed to determine the impact to the KCLW Public Procedures. If changes that affect the safety of the KCLW Public Procedures are identified, an FDC Temporary NOTAM may be issued by Flight Tech concerning use of the KCLW Public Procedures. For permanent Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 23 conditions, a procedure amendment may also be issued if required and billed to FIyUSA on a time and materials basis in accordance with the General Consulting Pricing of the Fee Schedule below. OE/AAA maintenance commences and is payable annually upon FAA approval of the first KCLW Public Procedure. B) Periodic Obstacle Review and Evaluation (540 -Day Inspection) The FAA requires all RNAV approach procedures (both Special and public) to be inspected every 540 days to ensure the final and missed approach segments of the procedure are clear of any potential new obstacles. Depending on the terrain and accessibility, this may be performed using air or ground assessment techniques and Flight Tech maintains FAA authorization to perform both functions. At KCLW, portions of the 540 -Day Inspection could be performed from the ground but will require airport owner assistance for accessing private property (if controlling obstacles are off airport property). Should the 540 -Day Inspection reveal previously unaccounted for obstacles, a procedure amendment may be required including the possible need for a subsequent flight validation, each of which shall be billed to FIyUSA on a time and materials basis in accordance with the General Consulting Pricing of the Fee Schedule below. C) Biennial Procedure Review (BPR) The final maintenance component is a biennial review of the KCLW Public Procedures. This requires a full review of changes to the FAA criteria and regulations to determine if any updates to the KCLW Public Procedures need to be applied. The review will be performed by an FTE TERPS specialist. If the results of the review indicate a need to amend a KCLW Public Procedure, changes will be coordinated (including FDC NOTAMs) in advance with Clearwater and FAA stakeholders. The expenses for such amendment including the possible need for a subsequent flight validation shall be billed to FIyUSA on a time and materials basis in accordance with the General Consulting Pricing of the Fee Schedule below. NOTICES & LIMITATIONS A) Guarantees Due to reliance on automated weather reporting capabilities, government/airport owned navigational facilities, visual aids, changing airport conditions, FAA TERPS criteria updates, uncontrolled obstacle environments outside of the airport boundaries, OE/AAA submissions, weather, and other forces outside of FTE's control, FTE cannot guarantee the KCLW Public Procedures' minimums, routes, or capabilities will remain unchanged. Hight Tech will utilize the best available data at the time of FAA submission to achieve the lowest possible minimums. If the terrain Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 24 or obstacle status changes after submission and/or FAA approval of the KCLW Public Procedures, an amendment may be required which may necessitate a subsequent flight validation and FAA approval process. As information is made available to FTE, it will make updates in accordance with its FAA approved Maintenance program. Furthermore, FTE cannot guarantee the performance or completion factor of aircraft using the approach due to pilot and equipage differences, weather factors, and safety factors outside of its control. It is up to the pilot in command to ultimately determine if the procedure can be safely flown. B) Expense Variances The scope of this proposal only covers the initial development and ongoing Maintenance costs described in this SOW. Additional costs, including but not limited to environmental assessments, additional site visits, travel, flight inspections due to local obstacle changes or BPR results, modifications to the KCLW Public Procedures due to aircraft/operator requests, and any other expense not within the scope of this SOW are the responsibility of FIyUSA. Should any of these occur, FTE will prepare a cost estimate based on the time and materials rate in the General Consulting Pricing of the Fee Schedule below and provide to FIyUSA (and copy Clearwater). C) Charting and NavData Services Flight Tech Engineering will provide the necessary FAA forms, ARINC 424 data, and protype procedure depictions necessary for the charting and encoding of the KCLW Public Procedures. FTE does not provide the final procedure chart or the database encoding for use in end user's GPS/FMS. The FAA performs this function for public procedures and makes the information available to OEM navigation and charting providers. D) Future Airport & Runway Changes Availability of the KCLW Public Procedures is dependent on Clearwater maintaining clear Vertical Guidance Surfaces (VGS) and nighttime use is dependent on clear 20:1 surfaces. Flight Tech will utilize the best available data at the time of procedure submission to achieve the lowest possible minimums. If the terrain or obstacle status changes after submission and/or FAA approval of the procedures, a contract amendment will be required. Modifying the procedure is considered an amendment and may require a new flight validation and FAA approval process. E) Procedure Cancellation Process Should one or more of the KCLW Public Procedures be deemed necessary for cancellation, the following process will occur. Flight Tech Engineering in coordination with Clearwater and FAA AFS-400/Flight Procedures and Airspace Group (FPAG) will determine the timing of the cancellation which may include the Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 25 need for an environmental review including the submission of an Environmental Pre -Screen form and CATEX determination. FTE will notify FAA AFS -400, and if they are in concurrence, will immediately issue an FDC NOTAM suspending use of the applicable KCLW Public Procedure (s). Note: In the unlikely circumstance that a lapse of Maintenance to one or more of the KCLW Public Procedures occurs in excess of sixty (60) calendar days, a complete procedure review will be conducted before reissue, or such procedure will be canceled. Flight Tech will prepare an original 8260 -series form per Order 8260.19, chapter 8 with the required information including cancellation reason. The form will be sent to the FAA AFS -400 for processing and distribution. Form 8260-2, Radio Fix and Holding Data Record (Fix Data) applicable to the KCLW Public Procedure(s) will also be included. Flight Tech will continue to maintain the KCLW Public Procedure(s) until canceled by the FPAG. FEE SCHEDULE The pricing outlined in this section includes the activities, milestones, Tasks, Services, and Deliverables required to design, develop, submit, and maintain the KCLW Public Procedures at Clearwater Air Park. The costs to develop and maintain the KCLW Public Procedures can be broken down into two categories of Tasks: one-time (development) and recurring (Maintenance). KCLW Public Procedures One -Time Development Costs Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 26 Implementation - Task 1: FAA & end user coordination, preliminary design review, ATC & environmental meetings. $7,506.00 Implementation - Task 2: RWY 16 approach procedure and IFR departure procedure development, environmental review, ARINC 424 encoding, FAA submission package & implementation. $24,276.00 flight Validation ` ` Amount Flight Tech Provided Aircraft w/Flight Tech Evaluator - Task 3: Includes Garmin test database, travel, evaluator crew, aircraft use, process & submit FAA inspection reports. $17,312.00 Grand Total $49,094.00 Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 26 KCLW Public Procedures Recurring Maintenance Fees e.�''wV n Maid�.- Description` Frequency Amount OE/AAA Obstacle & NOTAM Monitoring Service Continuous (billed annually) $18,451.55/yr. 540 -Day Inspection & FAA report submission Every 540 Days $4,460.00* IFP Biennial Procedure Review Every Two Years $1,500.00 per procedure* * The 540 -Day Inspection and BPR fees are based on an evaluation that results in no changes to the respective KCLW Public Procedure. If ATC, aircraft technology, operating environment, or FAA criteria changes require an amendment to either KCLW Public Procedure, which may also necessitate a subsequent flight validation, the pricing for such will be based on the time and materials rate for General Consulting Pricing below. Milestone Payments Over the course of the project, FTE will invoice FIyUSA (and copy Clearwater) for the one-time development costs based on the following milestone achievements. Payments are due to FTE within thirty (30) days of the receipt of such invoices in accordance with Articles 2 and 3 of the Agreement. One Execution of Master Services Agreement $16,364.64 Two Completion of Flight Validation of each KCLW Public Procedure $8,182.34 per procedure Three FAA Approval of each KCLW Public Procedure (Signed 8260 Forms delivered to Clearwater) $8,182.34 per procedure Payments for Maintenance and Periodic Reviews Payment for OE/AAA maintenance services are due upon FAA approval of the first KCLW Public Procedure and will be billed on an annual basis as agreed upon by Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 27 Clearwater, FIyUSA and FTE. Payment for the 540 -Day Inspection and BPRs are due after completion of each Task. The decision to continue with payments for Maintenance will be made jointly by Clearwater and FIyUSA either sixty (60) days prior to the end of the annual Maintenance period and/or sixty (60) days prior to the recurring 540 -Day Inspection or BPR. In the event that payment for any aspect of the Maintenance of either, or both, of the KCLW Public Procedures is not made, FTE will continue maintaining the respective KCLW Public Procedure(s) for the duration of the previous payment's term but will begin the FAA outreach process to deactivate/cancel the respective KCLW Public Procedure(s) as required by the FAA. Maintenance Pricing Review Pricing for Maintenance services such as OE/AAA filings and NOTAM monitoring is based on historical estimates of previous activity. Each OE/AAA filing and NOTAM that has the potential to impact the KCLW Public Procedures must be uploaded to the flight procedure design system and reviewed by an FTE TERPS specialist. On an annual basis, FTE will review the amount of time spent to monitor and maintain the KCLW Public Procedures and reserves the right to modify each component of the Maintenance pricing (i.e., OE/AAA, 540 -Day Inspection, BPR) as necessary. General Consulting Pricing Flight Tech will provide professional Consulting Services for any additional services outside of the agreed upon scope of this SOW at the request of Clearwater and FIyUSA and shall quote for such additional services on a time and materials basis using the rates below. Rated . Task Description Fee Term GCR 1 Standard Consulting Fee for Aeronautical Engineer - Level 1 (TERPS & ARINC coding, Standard procedure design, Air Carrier/operator assistance, includes access to IFP design software) $245/hr. Time & Materials GCR2 Standard Consulting Fee for Project Manager & Flight Eval Specialist $275/hr. Time & Materials GCR3 Standard Consulting Fee for Sr. Aeronautical Engineer (Criteria Development, Waiver language, Regulatory Compliance, Air Carrier/operator assistance) $325/hr. Time & Materials [signature page follows] Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 28 IN WITNESS WHEREOF, the Parties have executed this SOW as of the last date set forth below. FLIGHT TECH or FTE: FLIGHT TECH ENGINEERING, LLC Richard T. By: Scott Digitally signed by Richard T. Scott Date: 2023.04.05 09:53:51 -06'00' Name: Richard Scott (type or print) Title: Chief Operating Officer Date: 4/5/2023 Countersigned: Approved as to form: FLYUSA: FLYUSA PV, LLC By: Barry L. Shelvin Name: (type or print) Manager Title: 4/5/2023 Date: CITY OF CLEARWATER SIGNATURES: Matthew J. Mytych,`Esq. Assistant City Attorney CITY OF CLEARWATER, FLORIDA, a Florida municipal corporation. By: Jeiilfifer Poirrier City Manager Rosemarie Call City Clerk Clearwater MSA/SOW Revision #3 (04/04/2023) Page 1 29