A meeting of the Manatee County Port Authority will be held during a meeting of the Board of County Commissioners of Manatee County Tuesday, May 24, 2022, at 9:30 am, or as soon as is practicable, in the Patricia M. Glass Commission Chambers on the first floor of the County Administrative Center at 1112 Manatee Avenue West, Bradenton, Florida

MANATEE COUNTY PORT AUTHORITY AGENDA

May 24, 2022 – 9:30 am

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

CALL TO ORDER

Public Comments

1. Consent Agenda

Public Comments

Executive Director Comments Commissioner Comments

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

Reggie Bellamy, Chairman

George Kruse, 1st Vice-Chairman; Misty Servia, 2nd Vice-Chairman; James Satcher, 3rd Vice-Chairman; Vanessa Baugh, Member;

Kevin Van Ostenbridge, Member; Carol Whitmore, Member

May 24, 2022

1. CONSENT AGENDA

   
   

   1. Warrant List

      
      

   2. Minutes April 21, 2022

      
      

   3. Budget Resolution

      
      

   4. Delegation of Authority to Executive Director

      
      

   5. Kinder Morgan Rent Modification Agreement

      
      

   6. Foreign Trade Zone for Apex Engineered Products

      
      

   7. South Gate Expansion Project Change Order No. 1

      
      

   8. Ratify & Affirm Emergency Procurement with Drymon Refrigeration

      
      

   9. Berth 6 Additional Engineering Services

      
      

   10. Stantec Intermodal Container Yard Professional Services Authorization

RECOMMENDATION:

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

Manatee County Port Authority Warrant (Check) Listing

04/14/2022 to 05/11/2022

Manatee County Port Authority Warrant (Check) Listing

04/14/2022 to 05/11/2022

Manatee County Port Authority Warrant (Check) Listing

04/14/2022 to 05/11/2022

Total warrants (checks) for period reported 866,304.76

MANATEE COUNTY PORT AUTHORITY REGULAR MEETING

PORT MANATEE INTERMODAL CENTER, THIRD FLOOR

1905 Intermodal Circle Palmetto, Florida

April 21, 2022

Present were:

Reggie Bellamy, Chairman

James A. Satcher III, Third Vice-Chairman Vanessa Baugh

Carol Whitmore

Absent was/were:

George W. Kruse, First Vice-Chairman Misty Servia, Second Vice-Chairman Kevin Van Ostenbridge

Also present were:

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

Susan Schroeder, Finance Department, Clerk of the Circuit Court Vicki Tessmer, Board Records Supervisor, Clerk of the Circuit Court

Chairman Bellamy called the meeting to order at 9:00 a.m.

INVOCATION

The Invocation was led by Chaplain Matt Ennis, Anchor House, followed by the Pledge of Allegiance.

Members of the audience introduced themselves. There being no public comment, Chairman Bellamy closed.

Mr. Buqueras noted Consent items 3D and 3J required attest language on the signature pages.

AGENDA PA20220421DOC001

1. PRESENTATION – WORLD DIRECT SHIPPING

   Daniel Blazer, World Direct Shipping, provided an overview of their operations, customers they serve, partnerships, the possibility of extended rail operations to improve distribution with CSX, more volume coming into SeaPort Manatee and demands for 200 containers per week which will grow to 400 containers per week, possibility of future companies seeking access to the lines, World Direct Shipping has a third ship coming in, so they can operate 24 hours a day, since they have their own terminal services and stevedores. He confirmed his company is the largest non-residential land owner in Manatee County.

   
   

   Discussion ensued regarding homeland security requirements, the airport near the Port, 8000 additional feet of rail lines, the Transportation Worker Identification Credential (TWIC) security measures, CSX can bring in a lot of business, share in growing SeaPort Manatee, and there are configurations that can be changed at the Port, without having to use the TWIC badge. PA20220421DOC002

   APRIL 21, 2022 (Continued)

   
   

2. PRESENTATION – PORT MANATEE RAILROAD

   Mark Meyer, Port Manatee Railroad, Regional Rail, used a slide presentation to provide an overview of the company including corporate history, they have been in Manatee County for a year, their operating areas in the eastern U.S., they provide pickup and delivery for long haul railroads, regional rail focus in Florida is to shorten the local delivery of trucks, freight services, industrial development, transloading, and warehousing, relationship with Carver, bridge the gap between ports and long haul rail, familiar with working with government entities to get funding, and rail preservation can help with traffic congestion issues. They have located a spot that will be perfect for the CSX operation, and will avoid the TWIC area.

   He discussed their location and the possibility of an intermodal yard, and a site for an interim intermodal yard. They will need to expand their services, and they have the ability to do this. They will support World Direct Shipping and CSX to make this happen.

   
   

   Discussion ensued regarding regional rail, support future plans, future tracks to support the operations with the best place to load cargo, and minimal impacts to traffic when the tracks are operational.

   
   

   Mr. Buqueras stated the financial components are still being worked out. The Port owns the land and there are plans to move the material that is currently in the location. The State may allow the Port to reimburse the funds after the project has been paid in full up front.

   
   

   Discussion continued regarding non-TWIC areas, the fence is the secure area, the Port may have to realign property to take it out of the TWIC area, it is common to have areas outside the TWIC, and there are security protocols in place to collaborate with the Coast Guard. PA20220421DOC003

   CONSENT AGENDA PA20220421DOC004

3. A motion was made by Member Baugh, seconded by Whitmore, and carried 4 to 0 with Members Kruse, Servia and Van Ostenbridge absent, , to approve the Consent Agenda incorporating the language as stated in the recommended motions on the cover sheets for the Consent Agenda

   1. WARRANT LIST PA20220421DOC005

      Accepted Warrant Listing from February 10, 2022 to April 13, 2022

   2. MINUTES

      Approved the Minutes of February 17, 2022

   3. BUDGET AMENDMENT

      Adopted Budget Amendment Resolution PA-22-07 PA20220421DOC006

   4. STANTEC INTRETMODAL CONTAINER YARD

Executed Professional Services Authorization (PSA) No. 22-07 with Stantec Consulting Services, Inc., in the amount of $29,800 for revisions to the intermodal container yard expansion project for design and permitting for new tug shore power PA20220421DOC007

E PORT MANATEE TARIFF NO. 3

Approved rewording items 170 (Application of Tariff and Supplements) and 290 (Contracts for Goods or Services) in Port Manatee Tariff No 3 PA20220421DOC008

1. UNCOLLECTIBLE ACCOUNTS

   Approved the write-off in the amount of $65,649.67 the account listed on the Manatee County Port Authority Uncollectible Accounts` PA20220421DOC009

2. PUBLIC TRANSPORTATION GRANT AGREEMENT

   Adopted Resolution PA-22-08 authorizing the execution of the Public Transportation Grant Agreement with the Florida Department of Transportation (FDOT) for continued

   APRIL 21, 2022 (Continued)

   
   

   berth rehabilitation and reconstruction initiatives (FDOT, $5 million, SeaPort Manatee,

   $1,666,667) PA20220421DOC010

3. DELETION OF PORT ASSETS

   Removed assets as listed on the attached Asset Deletion – April 21, 2022, from the Fixed Assets Listing PA20220421DOC011

4. CARVER MARINE LEASE AMENDMENT

   Executed Lease Amendment Seven with Carver Maritime LLC extending improvements deadline until December 31, 2022, on the Bay Street North Parcel PA20220421DOC012

5. PROFESSIONAL SERVICES AUTHORIZATION

   Executed Professional Services Authorization (PSA) No. 22-08 to AECOM Technical Services, Inc., for the planning and design of a 150,000 square foot warehouse in the amount of $718,724, subject to the review and approval of FDOT PA20220421DOC013

   (End Consent Agenda)

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

   EXECUTIVE DIRECTOR COMMENTS:

   Carlos Buqueras, Executive Director, used a slide presentation to highlight the following:

   • New record numbers with over 30 percent growth at the Port

   • Port Master Plan update meeting was held April 6

   • Congressional staff visited the port, including Senator Boyd and his staff

   • Mr. Buqueras recognized as one of the 2022 Power 100 by the Tampa Bay Business Journal Guide

   • Growth at SeaPort Manatee has not been at the expense of other Ports

   • South Gate will be closed

   • Container yard ribbon cutting ceremony May 19, 2022 following the Port Authority meeting

   • Two new cranes are arriving April 22 PA20220421DOC014

     Member Whitmore

   • Recognized Logistec and Del Monte for being long term tenants

     
     

     Brian Sutton, Logistec, thanked the Board for their recognition and is excited for the arrival of the new cranes.

     
     

     Mr. Buqueras responded that the access to the rail intermodal will be an open system to anyone who wants to use it.

     Member Satcher

   • Applauded growing business at the Port with private companies

     Chairman Bellamy

   • Encouraged by the arrival of the new cranes and thanked those in partnership with the tenants

   • Congratulated Mr. Buqueras for being recognized by the Tampa Bay Business Journal

     ADJOURN

     There being no further business, Chairman Bellamy adjourned the meeting at 10:10 a.m. Minutes Approved:           

     May 24, 2022

     
     

     CONSENT

     AGENDA ITEM 1.C: BUDGET RESOLUTION

     
     

     BACKGROUND:

     
     

     This resolution budgets the following:

     
     

   • $590,000 of Port cash to replace the refrigeration system in warehouse 4 cold storage due to a catastrophic failure.

   • $86,310 of Port cash for additional funding needed for design of additional expansion of the Intermodal Container Yard.

   • $35,900 of Port cash for additional funding needed for flood proofing to the South Gate Expansion project that is required by FEMA due to the base flood elevation being increased after contract execution.

ATTACHMENT:

Budget Resolution PA-22-10.

COST AND FUNDING SOURCE:

Budgets $712,210 Port cash.

CONSEQUENCES IF DEFERRED:

Delay in budget allocations.

LEGAL COUNSEL REVIEW: N/A RECOMMENDATION:

Move to adopt Budget Resolution PA-22-10

RESOLUTION PA-22-10 AMENDING THE ANNUAL BUDGET

FOR MANATEE COUNTY PORT AUTHORITY FOR FISCAL YEAR 2021-2022

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

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

   
   

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

   
   

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

NOW, THEREFORE, BE IT RESOLVED by the Manatee County Port Authority that the 2021-2022 budget is hereby amended in accordance with Section 129.06, Florida Statutes as described on the attached summary and specified in the budget adjustment batch files which are listed below:

ADOPTED with a quorum present and voting this the 24th day of May,2022.

ATTEST: ANGELINA M. COLONNESO MANATEE COUNTY PORT AUTHORITY

CLERK OF CIRCUIT COURT

By:                 

BUDGET ADMENDMENT RESOLUTION NO. PA-22-10 AGENDA DATE: May 24, 2022

1. Fund: Port Cash Section: Port Maintenance

   Description: Budgets $590,000 for the replacement of 4 condensing units and 8 air handler cooler units for chiller operations in warehouse 4.

   
   

   Batch ID: BAAL052422A Reference: BU22000415

   
   

   2)

   Fund: Port Cash

   
   

   Section: Intermodal Container Yard

   
   

   Description: Budgets an additional $86,310 for additional engineering fees. Batch ID: BAAL052422A Reference: BU22000416

   
   

   3)

   Fund: Port Cash

   
   

   Section: South Gate Expansion

   
   

   Description: Budgets $35,900 for the flood proofing measures required by FEMA.

   
   

   Batch ID: BAAL052422A Reference: BU22000417

   May 24, 2022

   
   

   CONSENT

   AGENDA ITEM 1.D.: DELEGATION OF AUTHORITY TO

   EXECUTIVE DIRECTOR

   
   

   BACKGROUND:

   
   

   During certain periods of the year, the Port Authority may have certain months in which it has no regularly scheduled meetings. During that time, matters normally requiring approval and authorization of the Authority may arise. In order to enable the Executive Director and the Port staff to maintain continuity of services in the routine business of the Port and avoid delay in the conduct of Port business, as well as avoiding the loss of business opportunities, the Executive Director and staff recommend adoption of this proposed resolution granting the Executive Director limited authority to act during these periods. This resolution is expressly limited in its scope.

   
   

   ATTACHMENTS:

   
   

   Resolution No. PA-22-09

   
   

   COST AND FUNDING SOURCE:

   
   

   N/A.

   
   

   CONSEQUENCES IF DEFERRED:

   
   

   Loss of continuity of routine business and delay in conduct of business.

   
   

   LEGAL COUNSEL REVIEW: Yes RECOMMENDATION:

   
   

   Move to adopt Resolution PA-22-09.

   RESOLUTION NO. PA-22-09

   
   

   A RESOLUTION OF THE MANATEE COUNTY PORT AUTHORITY FOR LIMITED AND TEMPORARY DELEGATION OF AUTHORITY DURING EXTENDED PERIODS BETWEEN AUTHORITY MEETINGS

   
   

   WHEREAS, the Manatee County Port Authority (hereinafter the “Authority”) may have months without scheduled meetings; and

   
   

   WHEREAS, the Authority recognizes that matters requiring approval and authorization by the Authority may arise during extended periods without scheduled meetings and, to the extent possible, wish to maintain continuity in the routine business of the Authority and wish to maintain and avoid delay in the furnishing of services as a result of the extended periods without regular meetings.

   
   

   NOW, THEREFORE, BE IT RESOLVED BY THE PORT AUTHORITY OF MANATEE COUNTY AS FOLLOWS:

   
   

   1. Purpose: Except as specifically limited below, the delegation of authority provided in this Resolution shall apply to any approval or authorization, and the execution of contracts and other documents as may be reasonable and necessary, when there is more than thirty (30) calendar days between regularly scheduled Authority meetings, to accomplish only the following:

      
      

      1. Avoid delays in furnishing services or implementing or continuing approved programs; and

         
         

      2. Avoid additional costs or expenses or the likelihood of additional costs or expenses, including but not limited to the use of personnel and resources of the Authority as well as the costs of goods and services; and

         
         

      3. Provide for the fair and reasonable treatment of citizens and organizations doing business with the Authority.

         
         

   2. To accomplish those purposes set out in Paragraph A, the Authority delegates to

      the Executive Director of the Port, or in his absence the Deputy Executive Director, authority to:

      
      

      1. Approve, authorize and sign contracts, work assignments, purchase orders, change orders, and all documents and papers related thereto that are beyond the dollar limits provided by policies of the Authority but are otherwise purchased in accordance with applicable Laws, Ordinances and policies; and

         
         

      2. Approve any refunds owed by the Authority to third parties at the request of a department director upon presentation of documentation of the amount due and owing; and

         
         

      3. Schedule and publish notice of public hearings and special meetings upon a determination by the Executive Director of the Port or Deputy Executive Director of the Port that it appears to be in the best interest of the Authority to proceed without delay; and

      4. Approve any budget amendments required in support of the authorizations provided in Paragraphs B and C, and any prior authorizations of the Authority; and

         
         

      5. Approve, authorize and sign documents and forms reasonably required to implement or continue any program, plan or activity previously authorized by the Authority.

         
         

   3. To accomplish those purposes set out in Paragraph A, the Authority hereby delegates to the Port Authority Attorneys authority to:

      
      

      1. Initiate litigation, adversarial administrative proceedings, or appellate proceedings, including extraordinary writ proceedings, where, in the opinion of the Port Authority Attorneys, it is necessary to do so in order to preserve the status quo or the legal rights or protect the interests of the Authority; and

         
         

      2. Retain expert witnesses or consultants where, in the opinion of the Port Authority Attorneys, it is necessary to do so in order to preserve the status quo or the legal rights or protect the interests of the Authority; and

         
         

      3. Agree to continuances or extensions of time in on-going or threatened litigation, adversarial administrative proceedings, or appellate proceedings where, in the opinion of the Port Authority Attorneys, it is necessary to do so in order to preserve the status quo or the legal right or protect the interests of the Authority.

         
         

   4. To accomplish the purposes set out in Paragraph A, the Clerk of the Circuit Court, or his duly authorized deputy, as Clerk to the Authority, and as custodial of funds and comptroller, is requested and authorized, upon approval by the Executive Director of the Port or Port Authority Attorneys to:

      
      

      1. Take any action reasonably and necessarily required pursuant to the authority delegated under Paragraphs B and C; and

         
         

      2. Proceed with all matters of a routine nature usually submitted to the Authority on the Clerk’s consent agenda, including but not limited to making of all payments lawfully due and owing by check, voucher, warrant, cash or wire transfer, or other appropriate means, the release of cash deposits, and payment of any revenue refunds in excess of established approval limits.

         
         

   5. Limitations: This Resolution shall not apply to:

      
      

      1. Any legislative matter or other action that must be considered at an advertised public hearing; and

         
         

      2. Any new contracts retaining architects, engineers, landscape architects, surveyors, or other professional consultants. However, this limitation does not include any work assignment, time extension, or matters related to established contracts, or experts retained pursuant to C.3 above; and

      3. Any lease or contract providing for the sale, acquisition or exchange of any interest in real property, except documents necessary for closing contracts signed by the Authority, and except that any acquisition of property for utility easement or right-of- way as a part of or in avoidance of or settlement of eminent domain proceedings for an amount not to exceed the highest appraised value assigned by a duly certified appraiser may be authorized and executed by the Executive Director of the Port or his designee at the request of the Port Authority Attorneys; and

         
         

      4. Any new program or activity not previously authorized by the Authority; and

         
         

      5. Any matter involving the expenditure of funds in excess of funds that may lawfully be budgeted for such purpose.

         
         

   6. Records: A record of all actions taken under this Resolution shall be maintained

      and made a part of the record of the Authority via placement on the first consent agenda after the extended recess.

      
      

   7. Interpretations: This Resolution is not intended to apply to or limit any authority previously delegated by the Authority. This Resolution is intended to be broadly interpreted to accomplish the purposes set out in Paragraph A.

      
      

   8. Effective Period: This Resolution shall take effect upon adoption but the

      delegation of authority shall only extend to actions that need to be taken when there is more than thirty (30) calendar days between regularly scheduled Authority meetings.

      
      

   9. Any prior years’ resolution authorizing the same or similar authority is rescinded and replaced by this resolution.

      
      

      ADOPTED with a quorum present and voting this 24th day of May, 2022.

      
      

      ATTEST: ANGELINA M. COLONNESO MANATEE COUNTY PORT AUTHORITY

      CLERK OF CIRCUIT COURT

      
      

      By:                 

      
      

      3

      May 24, 2022

      
      

      CONSENT

      AGENDA ITEM 1.E.: KINDER MORGAN RENT MODIFICATION

      AGREEMENT

      
      

      BACKGROUND:

      
      

      The Port Authority and Kinder Morgan Port Manatee Terminal LLC, a longtime Port tenant, entered into two leases covering certain real property at Port Manatee. The lease documents provide for periodic rent adjustments which shall not exceed 25% of the preceding rent. The rent of 2.79 acres is increased 25%.

      
      

      ATTACHMENT:

      
      

      Port Manatee Lease Rent Modification Agreement

      
      

      COST AND FUNDING SOURCE:

      
      

      N/A

      
      

      CONSEQUENCES IF DEFERRED:

      
      

      Delay in rental increases

      
      

      LEGAL COUNSEL REVIEW: Yes

      
      

      RECOMMENDATION:

      
      

      Move to approve and authorize the Chairman to execute the Port Manatee Lease Rent Modification Agreement between the Manatee County Port Authority and Kinder Morgan Port Manatee Terminals LLC.

      PORT MANATEE LEASE RENT MODIFICATION AGREEMENT

      
      

      THIS PORT MANATEE LEASE RENT MODIFICATION AGREEMENT ("Agreement") made

      
      

      and entered into by and between the MANATEE COUNTY PORT AUTHORITY, a political entity of the State of Florida, with its principal place of business located Port Manatee, 300 Tampa Bay Way, Suite One, Palmetto, Florida 34221 ("Authority") and KINDER MORGAN PORT MANATEE TERMINAL, LLC, a Delaware limited liability company authorized to do business in the State of Florida, with a place of business located at 500 National Street, Palmetto, FL 34221 ("Kinder Morgan"; Authority and Kinder Morgan are sometimes hereinafter referred to as a "Party" or collectively, the "Parties").

      WHEREAS, the Authority and Kinder Morgan's predecessors in interest entered into a ce1iain Lease dated September 19, 1991 (the "Lease"), and subsequent amendments, modifications and supplements covering real property located at Port Manatee in Manatee County, Florida, which are identified below:

      1. Port Manatee Lease Supplement dated September 17, 1992.

      2. Second P01i Manatee Lease Supplement dated March 28, 1995.

      3. Pmi Manatee Lease Rent Modification Agreement dated February 17, 2000.

      4. Pmi Manatee Document Assumption Agreement dated November 15, 2001.

      5. P01i Manatee Lease Rent Modification Agreement dated October 20, 2011.

WHEREAS, all of the above referenced lease documents, including the Lease, amendments, modifications and supplements identified in the foregoing recitals and all prior agreements that have been referred to in the Lease, amendments, modifications and supplements which cannot be found but represent the present state of the agreements between the Parties are hereinafter collectively referred to as the "Lease Documents"; and

WHEREAS, Kinder Morgan acquired all of the rights, titles, interests, claims, and demands of Pakhoed Dry Bulk Terminals, Inc. - Pmi Manatee Terminal ("Pakhoed") and as a result Kinder Morgan assumed all rights, privileges, immunities, powers, franchises, obligations, restrictions, disabilities,

liabilities, debts and duties of Pakhoed, including the rights and obligations under the Lease Documents; and

WHEREAS, the Lease Documents provide for periodic rent adjustments based upon the Parties' good faith negotiations and prior to February 7, 2000, Kinder Morgan and the Authority agreed that the periodic rent adjustments on all Authority real properties should be every ten years. The periodic rent adjustment shall be based on an appraisal by the Authority every ten years on the land included within the Lease Documents and the annual rent period shall be equal to 10% of the appraised valuation. Rent adjustments shall never be less than the initial rent of the Lease Documents and the rental for any ten-year period shall never exceed 25% of the annual rent paid during the preceding ten-year period. The appraisal shall exclude all improvements placed on the demised premises by Kinder Morgan, but include all improvements, if any, placed upon the demised premises by the Authority. In the event the Authority fails to furnish an appraisal, it shall be presumed that an appraiser employed by it would yield a rental equal to the rent paid during the preceding ten-year period; and

WHEREAS, Kinder Morgan and the Authority agree that except to the extent herein specifically modified regarding the periodic rent adjustments, the Lease Documents shall remain in full force and effect; and

WHEREAS, Kinder Morgan and the Authority have not yet adjusted the rent for the ten-year period beginning October 1, 2020 and expiring September 30, 2030, and wish to do so as of the effective date, with the rent adjustment to be effective beginning January 1, 2022; and

WHEREAS, Kinder Morgan and the Authority believe it is likely that a current appraisal of the parcels of real property covered by the Lease Documents for the current ten-year period is likely to exceed 25% of the amount of rent paid by Kinder Morgan and its predecessors for the preceding ten-year period; and

WHEREAS, to avoid the cost and inconvenience of obtaining a current appraisal of the market value of all of the real property covered by the Lease Documents, Kinder Morgan and the Authority have negotiated an amicable settlement and agreed to enter into this Agreement to memorialize the rent adjustment for said real property for a ten-year period beginning October 1, 2020 and expiring on September 30, 2030, with the rent adjustment to be effective begitming January 1, 2022; and

WITNESSETH that for and in consideration of the foregoing premises, recitals and the mutual covenants contained herein, it is agreed by and between the Parties as follows:

1. RECITALS. The recitals are true and correct and are incorporated herein.

   
   

2. RENT ADJUSTMENT. Kinder Morgan shall pay to the Authority beginning January 1, 2022, rent in the amount of$60,937.50 per year for all of the real prope1iy covered by the Lease Documents for a period ending September 30, 2030. Rent shall be payable in monthly installments beginning January 1, 2022, in the amount of $5,078.13 per month, together with any applicable Florida sales taxes thereon.

3. ASSIGNMENT OR TRANSFER. All of the interests, rights, and privileges granted to Kinder Morgan in and by this Agreement and the Lease Documents shall not be assigned, and no portion of the right, title, interest, claim or demand relating to Port Manatee real property shall be transferred by Kinder Morgan without the prior express written approval of the Authority which shall not be unreasonably withheld.

4. SAVINGS CLAUSE. Except as herein provided, nothing herein contained shall be construed as altering the Lease Documents and said Lease Documents remain in full force and effect.

5. AUTHORITY TO EXECUTE. Each of the Parties hereto covenants to the other party that it has lawful authority to enter into this Agreement, and that the governing or managing body of each of the Pmiies has approved this Agreement and that the governing or managing body of each of the Pmiies has authorized the execution of this Agreement in the manner hereinafter set f01ih.

M_y

IN WITNESS WHEREOF, the Parties have caused this PORT MANATEE LEASE RENT MODIFICATION AGREEMENT to be duly executed in duplicate, this ;21/-(-1.._ day of

.2022.

ATTEST: ANGELINA M. COLONESSO. CLERK OF CIRCUIT COURT

By:

MANATEE COUNTY PORT AUTHORITY

B                         CHAIR

By:cµy

KINDER MORGAN PORT MANATEE TERMINAL, LLC

May 24, 2022

CONSENT

AGENDA ITEM 1.F.: FOREIGN TRADE ZONE FOR APEX ENGINEERED

PRODUCTS

BACKGROUND:

The Port Authority received from the United State Foreign Trade Zones Board in 1990 approval to establish, operate and maintain a Foreign Trade Zone. Port staff have negotiated an “Operations Agreement” with Apex Engineered Products (Apex) to operate and manage the Foreign Trade Zone at a specific site within the Port’s boundary for manufacturing and assembly of heat exchanges and other related products. Apex will pay

$14,000 for the right to operate the Zone.

ATTACHMENT:

Operations Agreement – Foreign Trade Zone 169 for Foreign Trade Zone Site and User/Operator

COST AND FUNDING SOURCE:

N/A

CONSEQUENCES IF DEFERRED:

Delay in approving Apex to operate the Zone

LEGAL COUNSEL REVIEW: Yes

RECOMMENDATION:

Move to approve and authorize the Chairman to execute the Operations Agreement – Foreign Trade Zone 169 for Foreign Trade Zone Site and User/Operator with Apex Engineered Products.

OPERATIONS AGREEMENT FOREIGN TRADE ZONE 169 FOR

FOREIGN TRADE ZONE SITE AND

USER/OPERATOR

ZONE GRANTEE

MANATEE COUNTY PORT AUTHORITY 300 TAMPA BAY WAY, SUITE 1 PALMETTO, FLORIDA 34221 USA PHONE (941) 722-6621

www.seaportmanatee.com

THIS OPERATIONS AGREEMENT (“Agreement”) is made by and between the Manatee County Port Authority whose principal address is 300 Tampa Bay Way, Suite 1, Palmetto, FL 34221 (hereinafter referred to as the "ZONE GRANTEE") and APEX ENGINEERED PRODUCTS, whose Florida address is 2114 PINEY POINT ROAD, PALMETTO, FLORIDA 34221, ("ZONE USER/OPERATOR")(collectively, the “Parties”).

WITNESSETH

WHEREAS, the ZONE GRANTEE has received an Original Grant dated November 21, 1990, from the United States F oreign Trade Zones Board (the "Board") to establish, operate, and maintain Foreign Trade Zone 169 (the "Zone"); and

WHEREAS the ZONE USER/OPERATOR sublets property within the Zone at the Zone Site known as Carver Maritime Building with a physical address of 2114 Piney Point Road, Palmetto, Florida 34221, and more particularly described in Exhibit A hereto (the "Zone Site"); and

WHEREAS, the ZONE USER/OPERATOR has formulated and developed a plan, method, system, and design for the operation of the Zone Site; and

WHEREAS the ZONE GRANTEE deems it practicable to limit its participation in the everyday operations of the Zone Site and to place the operation of the Zone Site under the supervision of the ZONE USER/OPERATOR; and

WHEREAS, the ZONE USER/OPERATOR, upon the terms and conditions herein set forth, desires to undertake the development and exclusive operational management of foreign trade

zone activities within the Zone Site herein described in accordance with standards of operation, required by the U.S. Customs and Border Protection (“USCBP”) and the Board, including those related to occupancy and use.

NOW, THEREFORE, the parties hereto, in consideration of the mutual agreements herein contained and promises herein expressed, and for o t h e r good and valuable consideration acknowledged by each of them to be satisfactory and adequate, do hereby agree as follows:

I. AUTHORITY GRANTED/ACCEPTED

1. Recitals: The above recitals are true and correct and are incorporated herein by

   
   

   reference.

   
   

2. Authority Granted: The ZONE GRANTEE grants ZONE USER/OPERATOR the

   
   

   exclusive authority to utilize the Zone Site as identified above as a foreign trade zone subject to the terms, conditions, agreements, and restrictions herein set for the term hereof and for any extensions thereof.

3. Authority Accepted: Upon approval by USCBP, ZONE USER/OPERATOR

   
   

   assumes responsibility for the operation and management of the Zone Site’s foreign trade zone operations and agrees to operate and manage the Zone Site in accordance with the terms and conditions of this Agreement, the effective Zone Schedule, and any other applicable standards of operations, rules or regulations that now exist, or which may in the future be instituted or amended by USCBP, the Board, or any other federal, state, county, or local authority relating to occupancy and

   use of the Zone Site during the term hereof, including any extension thereof.

   
   

4. Grantee Liability: ZONE GRANTEE shall not be held liable for violations by ZONE

USER/OPERATOR.

ll. STANDARDS OF OPERATION

1. Foreign Trade Zone Operations Manual/Foreign Trade Zone Tariff: ZONE

   
   

   USER/OPERATOR shall establish standards of operation and management set out in a Foreign Trade Zone Operations Manual so as to conform to requirements of the Board, USCBP, the ZONE GRANTEE, and applicable federal, state, and local laws, regulations, and ordinances, and shall require conformance thereto of all persons, firms and corporations admitted by it to such premises. ZONE USER/OPERATOR shall also prepare in written form, a ZONE USER/OPERATOR Tariff that will state charges for Zone Site operations and shall afford to all entities desiring to use the Zone Site uniform treatment under the circumstances. Said ZONE USER/OPERATOR Tariff shall be forwarded to the ZONE GRANTEE. The ZONE USER/OPERATOR's Tariff shall be a separate and distinct tariff adopted by the ZONE USER/OPERATOR for use within the Zone Site and shall in no way impair the ZONE GRANTEE's ability to charge dockage, wharfage and other fees within the Zone as set forth within provided for in the "Port Manatee Tariff No. 3" available at www.seaportmanatee.com.

2. Right of Entry: Representatives of the ZONE GRANTEE, the Board, USCBP

   
   

   and other authorized local, state and federal officers, shall have the right to enter the Zone Site at any time for the authorized and lawful purpose of examining the same, conferring with the ZONE

   USER/OPERATOR, its agents, invitees and employees on such premises, inspecting and checking operations, supplies, equipment, security, safety and merchandise and determining whether the business is being conducted in accordance with the procedures established in accordance with this Agreement. All such entries shall be in accordance with ZONE GRANTEE'S established security procedures and with reasonable advance notice to ZONE USER/OPERATOR.

3. Zone Operator Activity: ZONE USER/OPERATOR shall be responsible for the

   
   

   timely filing of all USCBP documents prepared by OPERATOR or by any customs house broker on behalf of ZONE USER/OPERATOR. The ZONE USER/OPERATOR shall be responsible for the scheduling of onsite inspections by USCBP personnel, as appropriate, and preparing and retaining such inventory and records to assure USCBP of the ZONE USER/OPERATOR compliance. In order to expedite shipments, ZONE GRANTEE agrees to undertake the prompt execution of USCBP forms 214 and 216 or their equivalents, relating to the ZONE USER/OPERATOR's use of the Zone Site.

4. Performance: ZONE USER/OPERATOR agrees to promptly undertake its best

   
   

   efforts to initiate foreign trade zone operations. ZONE GRANTEE agrees to provide necessary support for ZONE USER/OPERATOR'S efforts.

5. Expansion: ZONE USER/OPERATOR will respond in a timely manner to future

   
   

   growth in market demand for leased space and facilities within the Zone Site including expansion for facilities as deemed necessary and economically practicable by ZONE USER/OPERATOR in consultation with ZONE GRANTEE.

6. Compliance with Applicable Laws. In addition to compliance with the standards

and regulations provided for in Section 2.1, above, ZONE USER/OPERATOR shall comply with all other federal, state, regional and county laws, statutes, ordinances, rules and regulations applicable to its activities and operations within the Zone, including such rules and regulations of general application at SeaPort Manatee as adopted by the ZONE GRANTEE.

1. IMPROVEMENTS

   
   

   1. Improvements: ZONE USER/OPERATOR agrees that it shall be solely

      
      

      responsible for the construction of any necessary improvements and facilities at the Zone Site as required by the Board, USCBP, and ZONE GRANTEE. ZONE USER/OPERATOR further agrees to commence business as soon as practicable following the ZONE USER/OPERATOR's completion of any such improvements.

   2. Improvements Generally: ZONE USER/OPERATOR agrees that it will not

      
      

      construct any additional facility on the Zone Site or make any substantial alterations to existing improvements referred to in Section 3.1, unless plans and specifications for such alterations or additional improvements are first concurred with by the ZONE GRANTEE, USCBP and any other federal, state, or local agency, as required by law. All constructions and improvements by ZONE USER/OPERATOR shall be subject to applicable state, federal, local and land use regulations.

   3. Repairs and Maintenance: ZONE USER/OPERATOR shall be solely responsible

   
   

   for keeping the premises in a clean and orderly condition consistent with the nature of the operations in the Zone as required by USCBP.

2. RECORDKEEPING

   1. Reporting: Upon request, ZONE USER/OPERATOR agrees to submit to the ZONE

      
      

      GRANTEE, reports containing data required by the Board and USCBP. All such reports and statements shall be signed by appropriate ZONE USER/OPERATOR officials certifying the accuracy of the information provided. ZONE USER/OPERATOR shall be responsible for preparing a narrative and photographs, as required, for the Annual Report to the Board. A copy of all submittal reports, statements, narratives, and photographs submitted to the Board by the ZONE USER/OPERATOR shall also be submitted to the ZONE GRANTEE. Submittal to the ZONE GRANTEE may be subject to Florida's Public Records laws. Notwithstanding the foregoing, financial and operations information concerning Zone operations may be exempt from Florida's Public Records laws as confidential and/or trade secret material. All financial and accounting records concerning Zone Site operations shall be retained by the ZONE USER/OPERATOR for five (5) years after the act or occurrence recorded or after the merchandise covered by such records has been forwarded from the Zone, whichever is longer.

   2. Confidentiality: Details of business operations of individual firms operating and using

      
      

      the Zone Site shall be kept confidential except for such information determined to be a public record or public information under federal, state or local laws.

   3. Notification: ZONE USER/OPERATOR shall promptly notify ZONE GRANTEE of

      
      

      any audit, investigation or additional reporting requirement instituted by USCBP, the Board, or any federal, state, county, or local government agency that concerns foreign trade zone operations within

      the ZONE SITE. ZONE USER/OPERATOR agrees to furnish copies of all such requests for documentation, together with any response thereto.

   4. Audit: ZONE GRANTEE or their designated representative reserve the right to audit

      
      

      ZONE USER/OPERATOR’s books, financial statements, records, inventory control system and operational procedures relating to the Zone Site’s foreign trade zone operations periodically during the term and at the conclusion of term of this Agreement. The audit, if deemed necessary, at the conclusion of the term of this Agreement or upon termination of this Agreement shall be at ZONE USER/OPERATOR’s cost. In the event that any audit, inspection or examination by the Board, USCBP, or ZONE GRANTEE discloses that the books, records or operational procedures of ZONE USER/OPERATOR are not in conformance with the requirements of the federal, state, county and local law and/or this Agreement, ZONE GRANTEE may order the immediate correction of the documents or procedures. In the event that it is anticipated that such correction will take in excess of thirty (30) working days, ZONE USER/OPERATOR shall submit a plan of performance to ZONE GRANTEE for the correction of such discrepancy which shall be approved by ZONE GRANTEE and, if necessary, by the Board and USCBP, and OPERATOR shall proceed with all due diligence to correct the deficiency in accordance with the approved plan.

   5. Record Retention: All papers, letters, maps, books, photographs, films, sound

      
      

      recordings, data processing software, or other material, regardless of the physical form, characteristic, or means of transmission, made or received pursuant to law or in connection with the transaction of official business by the Authority are public records of the Authority in accordance with the Florida

      Constitution and Florida Statutes. Every person has the right to examine, inspect, and copy any such

      public records not specifically made exempt by provisions of the Florida Statutes. Any financial or proprietary information relating to ZONE USER/OPERATOR transmitted by ZONE USER/OPERATOR to the Authority may be a public record subject to disclosure to a requesting third person (not a party to this Agreement). If the Authority receives a request by a third party for the disclosure of any such public records relating to ZONE USER/OPERATOR, the Authority shall immediately notify ZONE USER/OPERATOR of said request; however, in no event will the Authority delay production of the public records in order to provide notice to ZONE USER/OPERATOR. The Authority will comply with said request to the extent required by Legal Requirements, unless ZONE USER/OPERATOR institutes an appropriate legal proceeding or suit against the Authority and/or the third person to restrain or otherwise prevent the particular public records’ disclosure. If ZONE USER/OPERATOR institutes any such legal proceeding or suit and the Authority incurs any attorneys’ fees, costs, damages, or penalties in connection with or because of the legal proceeding or suit, ZONE USER/OPERATOR shall pay to the Authority an amount equal to the total amount of said reasonable attorneys’ fees, costs, damages, or penalties. ZONE USER/OPERATOR further agrees to comply with the Florida Public Records Act, as applicable, including, but not limited to Section 119.0701, Florida Statutes. Documents which may be considered public records under Florida law include, but are not limited to: records related to the entry, management and implementation of the Agreement itself; emails/correspondence between the Authority and ZONE USER/OPERATOR related to the Agreement; emails or correspondence from all other entities related to the Agreement (i.e., subcontractors, suppliers, vendors, etc.); billing and related documents; plans or other documents that may be necessary, reports, etc.; subcontracts; and all vendor invoices. ZONE USER/OPERATOR

      agrees, to the extent required by law, to:

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

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

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

      4. meet all requirements where retained public records and transfer, at no cost, to the Authority, all public records in possession of ZONE USER/OPERATOR, upon termination or completion of the Agreement and destroy any duplicate public records that are exempt or confidential, or exempt from public record disclosure requirements.

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

   IF ZONE USER/OPERATOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO ZONE USER/OPERATOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT THE AUTHORITY AT (941) 722-6621, E-MAIL ADDRESS: TDAUGHTERY@PORTMANATEE.COM, MAILING ADDRESS: 300 TAMPA

   BAY WAY, SUITE ONE, PALMETTO, FLORIDA 34221

3. ADVERTISING

   
   

   ZONE USER/OPEATOR may advertise that its operations are within a foreign trade zone; however, no designs, advertising. signs or forms of publicity referring to the Zone shall be used unless the same shall have been first approved in writing by the ZONE GRANTEE as meeting its standards (including wording, form. color, number. location and size). The ZONE GRANTEE may advertise that the ZONE USER/OPERATOR'S operations are within a foreign trade zone, however, the ZONE GRANTEE agrees to consult with the ZONE USER/OPERATOR to assure the accuracy of published data concerning the Zone Site. Should the ZONE GRANTEE or ZONE USER/OPERATOR fail to approve or disapprove in writing any advertising materials within fourteen (14) days after submission, such materials shall be deemed approved. ZONE GRANTEE reserves the right to respond to press inquiries concerning Zone Site activities and operations. ZONE USER/OPERATOR, if approached by the press for comment about the Zone Site, Zone operations or the Zone project, will forward all such requests for comment to ZONE GRANTEE without responding.

4. ADMINISTRATIVE EXPENSES

   
   

   1. Administrative Charges: In consideration of the granting of this authorization

      
      

      to operate the Zone Site, ZONE USER/OPERATOR agrees to pay, or cause to be paid, all costs, expenses and taxes (if any) of the Zone Site operation incurred by the ZONE USER/OPERATOR including, but not limited to, construction, permitting fees, installations,

      improvements, security, utilities, maintenance and personnel costs, and any other charges provided for in Port Manatee Tariff No. 3. In addition to the payment by the ZONE USER/OPERATOR of all such costs, expenses and taxes (if any) in connection with the operation of the Zone Site, ZONE USER/OPERATOR agrees to pay the ZONE GRANTEE an annual, non-refundable fee of $14,000.00 which shall be due on J u n e 1, 2022, receipt of which is hereby acknowledged by the ZONE GRANTEE. In the event this Agreement is renewed, USER/OPERATOR shall pay the ZONE GRANTEE the annual, non-refundable fee of $14,000.00 on or before June 1.

   2. USCBP Administration Expense: ZONE USER/OPERATOR shall pay, or cause to

      
      

      be paid, the full cost of all USCBP administrative fees attributable to the Zone Site operation. If practicable, the ZONE GRANTEE shall ask USCBP to bill ZONE USER/OPERATOR, directly for USCBP expense attributable to the Zone Site. If direct billing is not practicable, ZONE USER/OPERATOR shall reimburse ZONE GRANTEE within 30 days of receipt of an invoice from the ZONE GRANTEE for all said expenses attributable to Zone Site operations. Such fees shall include, but not be limited to, activation fees, deactivation fees, alteration fees, transaction fees, annual fees and any reimbursable charges for services rendered at or for the Zone operation by USCBP personnel.

   3. USCBP Bond Expense: ZONE USER/OPERATOR shall pay the full cost of any

   
   

   USCBP Bond required by USCBP for operation of the Zone Site. If practicable, the ZONE GRANTEE shall ask USCBP to accept the bond directly from ZONE USER/OPERATOR. If

   USCBP refuses to accept said bond directly from ZONE USER/OPERATOR, ZONE USER/OPERATOR shall reimburse ZONE GRANTEE within thirty ( 30) days of receipt of an invoice from the ZONE GRANTEE for all said expenses attributable to the Zone Site operation including any and all payments to USCBP for violations of customs laws and regulations governing foreign trade zone operation. Said bonds shall be in a form satisfactory to USCBP and a copy shall be provided to ZONE GRANTEE. Said bonds shall require thirty (30) days advance written notification to USCBP and ZONE GRANTEE of any termination, cancellation or material change during the term of this Agreement.

5. INDEMNIFICATION

   
   

   ZONE USER/OPERATOR agrees to defend, protect, indemnify and hold harmless the ZONE GRANTEE from and against any and all loss, damage and liability including attorneys' fees and costs, whether insured or not, arising out of or incident to ZONE USER/OPERATOR'S foreign trade zone operations hereunder. This includes ZONE USER/OPERATOR liabilities under the Operators USCBP Bond including liquidated damages and other penalty cases for violations

   of laws or regulations governing foreign trade zone operations.

   
   

6. RECOGNITION OF SUCCESSOR

   
   

   The ZONE GRANTEE agrees that it shall not unreasonably refuse to recognize any successor to the ZONE USER/OPERATOR as long as it is a subsidiary, affiliate, or parent of ZONE USER/OPERATOR and: (a) demonstrates a net worth equal to or greater than that of the ZONE USER/OPERATOR; (b) demonstrates experience operating in a Foreign Trade Zone; and (c)

   agrees to assume and perform under the same terms of this Agreement. In any event, notice of the closing of a sale, sublease or other change of interest in said business to be conducted herein must be given i n writing by ZONE USER/OPERATOR to the ZONE GRANTEE at least sixty

   (60) days prior to such closing and shall contain the names and addresses of every person acquiring any interest in said business or operations. If the successor in interest is unable or unwilling to demonstrate the financial, operational and contractual assurances provided for above, the ZONE GRANTEE shall have the option and right to cancel this Agreement within thirty (30) days after receipt of the notice from ZONE USER/OPERATOR.

7. TERM AND RENEWAL

   
   

   Unless terminated as herein provided, this Agreement shall remain in effect for one (1) year, commencing on the 1st day of June, 2022 (“Effective Date”) and shall thereafter be

   automatically extended for a term of one (1) year upon the same terms and conditions hereof, unless terminated as hereafter provided. At the end of the first one (1) year term, the ZONE USER/OPERATOR and the ZONE GRANTEE will meet to discuss the desirability of a second one (1) year automatic extension (each a “Renewal Term”).

8. RIGHTS/OBLIGATIONS OF PARTIES UPON TERMINATION

   
   

   1. Termination by ZONE USER/OPERATOR: ZONE USER/OPERATOR shall

      
      

      have the right, at any time, to terminate this Agreement and all rights and obligations hereunder upon sixty (60) days prior written notice. In order to exercise this right, all merchandise in the Zone Site must be properly disposed of and all USCBP requirements satisfied.

   2. Termination by ZONE GRANTEE: If in the event the ZONE USER/OPERATOR

      
      

      fails to fulfill its obligations by a material breach of the terms and conditions of this Agreement as set out herein, ZONE GRANTEE shall notify the ZONE USER/OPERATOR in writing of said breach, that the ZONE USER/OPERATOR is in default under this Agreement, and that the ZONE GRANTEE is exercising its right to terminate the Agreement and all rights and obligations within 60 days. The ZONE USER/OPERATOR shall have a period not to exceed fifteen (15) days in order to cure such default provided the ZONE USER/OPERATOR gives the ZONE GRANTEE written notice of its intention to diligently cure such default. If the curing of such default requires activity over a period of time and the ZONE USER/OPERATOR has commenced the curing of such default and diligently continued the performance of the cure to the satisfaction of the ZONE GRANTEE within the said fifteen (15) day period, then the fifteen (15) day period may be extended for such further period of times as agreed to in writing by the parties. If such cure is not satisfactorily commenced or performed by the ZONE USER/OPERATOR within the cure period, then the ZONE GRANTEE may terminate this Agreement and all rights and obligations hereunder.

   3. Lack of Activity: In the event there has been no foreign trade zone activity at the

      
      

      Zone Site after one year from the date of the grant of authority from the Board to establish a Zone at the Zone Site, either the ZONE USER/OPERATOR or ZONE GRANTEE may terminate this Agreement upon giving at least sixty (60) days written notice to the other party before the effective date of the termination.

   4. Withdrawal of Grant: If the grant authorizing the Zone Site to ZONE GRANTEE shall

      
      

      be revoked or canceled without fault of ZONE GRANTEE, this Agreement shall terminate and ZONE USER/OPERATOR shall have no claim against GRANTEE by reason of such revocation or cancellations, and ZONE USER/OPERATOR shall have no further interest in the subject matter of this Agreement.

   5. Survival of ZONE USER/OPERATOR Obligations: Not withstanding anything to the

   
   

   contrary herein, upon termination or expiration of this Agreement for any reason whatsoever, OPERATOR shall not be released or relieved from fulfilling any and all of its obligations or duties which arose or accrued during the term of this Agreement, and ZONE USER/OPERATOR specifically represents and warrants to ZONE GRANTEE that upon termination or expiration of this Agreement for any reason whatsoever, ZONE USER/OPERATOR shall completely perform and fulfill any and all of its obligations or duties which arose or accrued during the term of this Agreement. Specifically, ZONE USER/OPERATOR agrees, represents and warrants that all foreign-status merchandise located at the Zone Site has either been subject to payment of customs, duties, and fees or has been transferred, in bond to another activated foreign trade zone site, that its indemnity obligations and bond obligations shall survive termination or expiration of the Agreement for any reason.

9. INDEPENDENT CONTRACTOR STATUS

   
   

   The ZONE GRANTEE and ZONE USER/OPERATOR are not and shall not be considered as joint ventures, partners or agents of each other and neither shall have the power to bind or

   obligate the other. The ZONE GRANTEE and ZONE USER/OPERATOR agree not to represent to anyone that they are agents of one another or have any authority to act on behalf of one another. ZONE GRANTEE makes no representations or warranties as to the particular privileges and benefits which may accrue to ZONE USER/OPERATOR from foreign trade zone operations as those privileges and benefits may vary as a result of changes in federal law, determinations of the Board and the USCBP, and in operational decisions of ZONE USER/OPERATOR. ZONE

   GRANTEE shall be in no way liable for any costs or losses sustained by ZONE USER/OPERATOR as a result of the establishment or its use of the Zone Site as a foreign trade zone.

10. EFFECTIVE DATE OF CONTRACT

    
    

    This Agreement shall become effective upon execution by both parties hereto.

    
    

11. NOTICES

    
    

    All notices to the ZONE GRANTEE shall be sent by certified mail, return receipt requested, addressed to the ZONE GRANTEE at the address stated herein. All notices to ZONE USER/OPERATOR shall be sent by certified mail, return receipt requested, addressed to the ZONE USER/OPERATOR at the address stated herein. The date of delivery as evidenced by the postal return receipt shall be deemed the date of service of the notice.

    If to ZONE USER/OPERATOR:

    
    

    Address: APEX ENGINEERED PRODUCTS

    2114 Piney Point Road Palmetto, FL 34221

    
    

    Email:

    
    

    If to the ZONE GRANTEE:

    
    

    Manatee County Port Authority Attn: Executive Director

    Address: 300 Tampa Bay Way, Suite One

    Palmetto, Florida 3421 Attn: Executive Director

    Email: cbuqueras@portmanatee.com Telephone: (941) 722-6621

    Facsimile: (941) 729-1463

    
    

    Copy to: Jennifer Cowan, Port Counsel

    Bryant Miller Olive, P.A.

    Address: 201 North Franklin Street, Suite 2700 Tampa, Florida 33602

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

    Facsimile: (813) 223-2705

    
    

12. MISCELLANEOUS

1. Construction and Venue: This Agreement shall be governed by and construed in

   
   

   accordance with the Foreign Trade Zone Act, regulations adopted by the Board thereunder and all Amendments thereto, and all applicable federal, State of Florida, regional and county laws, statutes, ordinances, rules and regulations. The Parties consent to jurisdiction over them in the State of Florida and agree that venue for any state action arising under this Agreement shall lie solely in

   the courts located in Manatee County, Florida, and for any federal action shall lie solely in the

   United States District Court, Middle District, Tampa Division.

   
   

2. Counterparts: This Agreement may be executed in any number of counterparts,

   
   

   each of which when so executed and delivered shall be deemed an original, but such counterparts together shall constitute but one and the same Agreement.

3. Further Instruments and Actions: Each party shall deliver such further instruments

   
   

   and take such further action as may be reasonably requested by the other in order to carry out the provisions and purposes of this Agreement.

4. Headings: Headings and captions in the Agreement are solely for the convenience of

   
   

   reference and shall not affects its interpretation.

   
   

5. Integration: This instrument contains the entire agreement of the parties and no

   
   

   representation, inducements, promises or agreements, oral or otherwise, not embodied herein shall be of any force or effect.

6. Severability: If any provision of this Agreement is declared void or defective, that

   
   

   declaration will not affect the validity of any other provision of the Agreement.

   
   

7. Waiver: No failure of either party hereto to exercise any right or power given

   
   

   hereunder or to insist upon strict compliance by the other party of any obligation hereunder and no custom or practice at variance with the terms hereof, shall constitute a waiver of the party's right to demand exact compliance with the terms hereof.

8. Gender: All terms and words used in this Agreement, regardless of the number

   
   

   and gender in which they are used, shall be deemed and construed to include any other number,

   singular or plural, any other gender, masculine, feminine or neuter as the context or sense of this Agreement of any paragraph or clause herein may require.

9. Amendment: This Agreement cannot be changed orally but only by an agreement

   
   

   in writing executed by all parties hereto.

   
   

10. Administration: The ZONE GRANTEE authorizes the Manatee County Port

    
    

    Authority's Executive Director, or his designee, to administer the terms and conditions of this Agreement on behalf of the ZONE GRANTEE and to make all managerial decisions as they relate to the provisions and conditions within this Agreement.

11. Interference with Existing Commerce: The ZONE USER/OPERATOR shall at no

    
    

    time restrict or adversely limit the flow of commerce and other traffic at Port Manatee tortuously or unlawfully.

12. Mutual Drafting: This Agreement is the product of mutual drafting, each party having

    
    

    been represented by or having the opportunity to be represented by counsel, and therefore shall not be construed against either party.

13. Authority: The Parties represent and warrant that each is authorized to enter into this

    
    

    Agreement without the consent and joinder of any other party and that the individuals executing this Agreement have full power and authority to bind their respective party to the terms hereof.

14. No Third Party Beneficiaries: This Agreement is entered into solely for the benefit of

    
    

    the Parties and shall not be construed as a benefit to any third parties, , nor shall it be construed as enforceable by any third parties.

15. E-Verify: ZONE USER/OPERATOR shall utilize the U.S. Department of Homeland

Security’s E-Verify System to verify the employment eligibility of: (a) all persons employed by ZONE USER/OPERATOR throughout the term of this Agreement; and (b) all persons, including subcontractors, retained or hired by ZONE USER/OPERATOR, regardless of compensation, to perform work under this Agreement.

The remainder of this page is left blank intentionally.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by

their duly authorized officers as of this   day of             ,2022.

ATTEST:

ANGELINA M. COLONNESO

Clerk of the Circuit Court

By:             _

ZONE GRANTEE:

MANATEE COUNTY PORT AUTHORITY

By:                 _

Chairman

ZONE USER/OPERATOR

APEX ENGINEERED PRODUCTS:

By: fYJvirk Gro..5sc

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By.:  

Title:  17-t·

Date: /2 ;z 2-

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May 24, 2022

CONSENT

AGENDA ITEM 1.G: SOUTH GATE EXPANSION PROJECT CHANGE ORDER NO. 1

BACKGROUND:

On October 21, 2021, the Port Authority approved the contract with Ajax Paving Industries for Phase 2 Services for the South Gate Expansion Project in the amount of $955,289.98 bringing the total contract cost to $1,103,586.98. Change Order 1 in the amount of $35,873.88 is for flood proofing measures required by FEMA due to the base flood elevation being increased after contract execution.

ATTACHMENT:

Change Order No. 1

COST AND FUNDING SOURCE:

Port Cash $35,873.88

CONSEQUENCES IF DEFERRED:

South Gate will be closed until flood proofing measures are in place

LEGAL COUNSEL REVIEW: Yes

RECOMMENDATION:

Move to approve and authorize the Chairman to execute the Change Order No. 1 increasing the contract between the Manatee County Port Authority and Ajax Paving Industries in the amount of

$35,873.88 for flood proofing measures.

May 9, 2022

George Isiminger, PE, Director and Port Engineer

Manatee County Port Authority

300 Tampa Bay Way, Suite 1, Palmetto, FL 34221

Telephone: 941-721-2330, Email: gisiminger@portmanatee.com

South Gate Expansion Project, Progressive Design Build

Subject: Change Order Request #01: Flood Proofing Measures Required by Manatee County

George,

In accordance with Progressive Design Build Contract General Condition Article 9.1, Ajax is hereby submitting this change order request for flood proofing measures required by Manatee County due to FEMA raising the Base Flood Elevation (BFE) after contract execution. Manatee County alerted us to this changed condition while applying for the Manatee County Building Permit. The building permit has been conditionally approved contingent on acceptable flood proofing measures.

The Progressive Design Build Team have contacted FEMA qualified vendors and created the attached report. We agree Option 2: Flood Stop Barriers that are reusable and will encompass the entire concrete booth island is the best value solution. The other options require reinforced footer construction and would delay the project. Manatee County has already given email approval for the Flood Stop system. See below for the scope, amount and contract time adjustment for the change order request.

Scope: This change order includes: additional RS&H design fees, Flood Stop Barrier Units, Connections Required, Freight, Taxes, and contract allowable markup’s.

Amount: $35,873.88; See table for Change Order breakdown:

Contract Time Adjustment: Ajax does not request additional dates be added, as this option allows construction to continue as previously designed and the quoted delivery time is within allowable contract time. If the delivery extends beyond allowable contract time, Ajax requests the Port grant additional time so liquated damages are not imposed.

ACCEPTED BY

Signature:                 Port Manatee:               Date:            

Ajax Paving Industries of Florida, LLC

7860 Professional Place, Temple Terrace, FL 33637

Signature:

Ajax Paving: Felipe Jaramillo, PE Date: May 9, 2022

Main: 813-769-1990 Fax: 941-486-3500

www.ajaxpaving.com

An Equal Opportunity Employer

May 4, 2022 AJAX

RS&H Project No.: 1004-0095-101

Port Manatee South Gate Floodproofing Options

F l o o d P r o o f i n g O p t i o n s

1. MANATEE COUNTY REQUIREMENT

   The flood zone for Manatee County changed in August 2021. The County received new Flood Insurance Rate Maps (FIRM) on 8/10/2021 which indicated a new Base Flood Elevation (BFE) for Port Manatee – increasing the BFE by 1’. On the 2014 FIRM the Port’s BFE was 8’ NAVD and in August 2021 the BFE went up to 9’. For the new guard booth to be compliant with the 8/10/2021 standards the Finished Floor for the guard booth must meet 10’ NAVD, otherwise known as the Flood Protection Elevation (FPE).

   
   

   In addition, as this guard booth will have an HVAC unit installed, the County requires:

   1. The elevation of the mechanical equipment on the plans

   2. The Finished Floor needs to meet FPE @ 10’ NAVD or the structure needs flood proofing

      
      

2. OPTIONS

   The following options were researched to meet the Manatee County flood proofing requirements:

   
   

   • Raise guard booth to obtain a Finish Floor Elevation (FFE) of 10’ NAVD

   • Provide perimeter flood protection for entire island/guard booth

   • Provide flood protection on the island around the guard booth

   
   

3. EXECUTIVE CONCLUSION

   As raising the guard booth to FFE 10’NAVD would cause additional work to the existing guard booth and significant increased cost, flood proofing solutions were determined to be the best options. In order to continue with the construction schedule and not have structures permanently attached to the guard booth island, a perimeter flood protection around the entire island was selected.

   F l o o d P r o o f i n g O p t i o n s

   
   

4. DETAILED ANALYSIS

   This analysis compares and contracts the various options and provides a recommended solution for flood proofing as required by Manatee County.

   
   

   OPTION 1 - RAISE GUARD BOOTH TO FFE 10’ NAVD

   
   

   The existing guard booth FFE is at 8.25’ NAVD. To obtain 10’ NAVD for the new guard booth, the existing guard booth, existing canopy, and the roadway would have to be elevated ~1.75’. This effort would have been a significant cost to the project and the analysis was abandoned as too costly.

   
   

   
   

   OPTION 2 - PROVIDE PERIMETER FLOOD PROTECTION FOR ENTIRE ISLAND/GUARD BOOTH

   
   

   This option would provide a flood protection barrier around the entire island. The pavement at the new guard booth is set at 7.12’ NAVD indicating a 2.88’ flood barrier would be required. PS Industries fabricates a 3.00’ FloodStop flood barrier that would function well in this application.

   
   

   FloodStop Barriers is a rapidly deployable flood barrier system that is ideal for flood protection. These barriers are assembled through a series of weighted interlocking pods. When assembled, some of the pods are prefilled, and the remaining pods self-fill with rising floodwater as flooding occurs. This, combined with the weighted connection keys, ensures an assembled barrier will always be denser than floodwater. The system is easily assembled

   F l o o d P r o o f i n g O p t i o n s

   
   

   by a single person, self-balancing where no bolting is required, and when floodwaters recede – the pods simply empty themselves.

   
   

   For this application, we would recommend the FS 36 FloodStop Barrier and install them around the entire guard booth island.

   
   

   
   

   These systems are readily available with lead time 4-6 weeks. Estimated cost for entire system is $18,370.00 and estimated cost for shipping is $6,850.00. See appendix for full pricing information.

   F l o o d P r o o f i n g O p t i o n s

   
   

   OPTION 3 - PROVIDE FLOOD PROTECTION ON THE ISLAND AROUND THE GUARD BOOTH

   
   

   This option would provide a flood protection barrier around the guard booth only and be attached to the island. The FFE for the new guard booth is set at 7.87’ NAVD indicating a

   2.13’ flood barrier would be required. Two options for flood proofing the guard booth were analyzed. FRA manufactures a flood panel and flood logs. Costs and delivery time for each system vary.

   
   

   The Flood Log flood barrier is a modular system designed to withstand high velocity water loads and is highly resistant to heavy impact forces. The system comprises of “C” shaped support posts and hollow aluminum beams which slide into each post. The “C” shaped posts would have to be permanently mounted to the island and the concrete in this area would have to be reinforced. The aluminum beams are removable and stored during non-storm events.

   F l o o d P r o o f i n g O p t i o n s

   
   

   For this application, six (6) “C” channels would be permanently mounted to the island and the panels would slide in between these “C” channels.

   
   

   
   

   These systems are not readily available and have a 12 – 14 week lead time. Estimated cost for entire system is $16,875.00. See appendix for full pricing information.

   
   

   The second “around the guard booth option” explored was the custom door + window flood barrier panels. These panels have a high-density foam core, fiberglass skin and a structural coating with stainless steel anchors. They are secured to the concrete island and would need to have a mounting point every ~6”.

   
   

   F l o o d P r o o f i n g O p t i o n s

   
   

   For this application mounting points in the concrete will have to be provided at ~6” on center.

   
   

   
   

   These systems are not readily available and have an 8 - 10 week lead time. Estimated cost for entire system is $13,575.00. See appendix for full pricing information.

   
   

   Option	Price	Availability	Ease of Installation	Flexibility	Permanent Features
   1–Raise Booth	Significant	N/A	N/A	No	Yes
   2-Perimeter	$18,370.00	4-6 weeks	Yes	Yes	No
   3a–Flood Log	$16,875.00	12-14 weeks	Somewhat	No	Yes
   3b–Flood Panel	$13,575.00	8-10 weeks	Somewhat	No	Yes

   
   

5. RECOMMENDATION

   Despite the slightly increased cost for the perimeter flood protection for the entire island -

   $18,370.00 vs $16,875.00/$13,575.00, the availability, ease of installation, flexibility to use in multiple locations, and lack of permanent features are clear betterments and rationalization for recommending the Option 2 - Provide perimeter flood protection for entire island/guard booth for this application.

   F l o o d P r o o f i n g O p t i o n s

   
   

6. APPENDICES

F l o o d P r o o f i n g O p t i o n s

OPTION 2 -Perimeter Flood Protection Entire Island

FLOODSTOP BARRIERS

FLOOD PROTECTION THAT LOCKS QUICKLY INTO PLACE

FloodStop Barriers is a unique, rapidly deployable flood barrier system that can be used for a variety of applications. Ideal for flood protection, reservoir deployment and road traffic delineation (traffic control), these barriers are assembled through a series of weighted interlocking pods. When assembled, some of the pods are prefilled, and the remaining pods self-fill with rising floodwater as flooding occurs. This, combined with the weighted connection keys, ensures an assembled barrier will always be denser than floodwater. With the system’s versatility and easy deployment, these barriers are the perfect solution for municipalities, businesses or households and are an excellent alternative to sandbags. FloodStop Barriers are manufactured by Barrier Solutions.

AVAILABLE IN THREE PRODUCT VARIATIONS

• FS25 FloodStop Barrier* (25" high)

• FS36 FloodStop Barrier (36" high)

  
  

  EASY DEPLOYMENT WHEN YOU NEED IT MOST

• Rapidly deployed – easily assembled by a single person

• Self-balancing – no bolting required

• Multi-hub connection pod – allows for easy connection to walls and cornering

• Lightweight and multifunctional

• When floodwaters recede, pods empty themselves

  
  

  DESIGNED WITH YOUR UNIQUE APPLICATIONS IN MIND

• Flood protection – rapid response, semi-permanent or permanent options available

• Reservoir deployment – including spill kit and fluid containment

• Road traffic delineation (traffic control)

• Recyclable and reusable

*The FS25 FloodStop Barrier requires longer lead times as this product currently ships from overseas.

FS25 FloodStop*

FS36 FloodStop

701.746.4519 | 877.446.1519 | www.psfloodbarriers.com | 4psinfo@psindustries.com

Rev072321

CAPABILITIES STATEMENT

COMPANY    DATA   

PS Flood Barriers™ is a division of PS Industries™ Incorporated, an industry-leading manufacturer of flood protection products, industrial doors (PS Access Solutions™) and safety/fall protection products (PS Safety Access™) for more than 40 years. With custom fabrication capabilities, we serve a wide variety of industries, including the military, energy, agriculture, food processing, and all types of manufacturing.

PS Flood Barriers’ foundation is built on innovative design, solid engineering and high-quality manufacturing. In 1997, we learned about the incredible power of water firsthand during the Red River’s disastrous flood in our hometown of Grand Forks, ND. We put those lessons to good use, and today we have a host of flood barrier products to protect facilities, critical infrastructure and assets from devastating flooding.

CORE COMPETENCIES

MANUFACTURING

PS Industries is an Original Equipment Manufacturer (OEM) with more than 100,000 square feet of manufacturing space. The company is capable of performing a wide variety of operations in-house, including:

DESIGN/ENGINEERING

State-of-the-art design/engineering resources and in-house design/engineering staff allow products to be created from concept through

• Fiber optic laser cutting

• Waterjet cutting

• Industrial metal cutting saw

• CNC punch press

• Precision drilling

• Tube bending

• CNC sheet metal processing

  • Shears

  • Press brakes

  • Folding machine

• AWS-certified welders

• Robotic welding

• Industrial liquid paint application

• Powder coating (large capacity 7.5 ft. width x 6 ft. height x 30 ft. length)

• Assembly, packaging and shipping

All products are designed and manufactured under one roof in our facility in Grand Forks, North Dakota, USA.

completion. These resources include:

• Experienced engineers

• Dedicated and experienced design staff

• Finite Element Analysis (FEA)

• 3D CAD modeling

• In-house fixture design and fabrication

• Extensive testing capabilities

• Research and develop new products

  
  

  PAST PERFORMANCE

  • Langley AFB, Newport News, VA

  • National Archives, Washington, DC

  • Department of Homeland Security, Mobile, AL

  • United Nations, New York, NY

  • Con Edison, New York, NY

  • Port Authority of New York

& New Jersey, New York, NY

• New York City Housing, New York, NY

• Baylor College of Medicine, Houston, TX

• Bechtel Headquarters, Houston, TX

• Bristol-Myers Squib, Pennington, NJ

  DIFFERENTIATORS

  • Custom-engineered solutions

  • Concept through completion

  • Industry-proven performance

    
    

    CONNECTIONS CERTIFICATIONS   

  • We are registered with SAM.gov

  • We are set up with FedBizOpps.gov

  • Our CAGE Code is 43360

  • Our DUNS number is 078633861

  • NAICS codes

    • 332321 Metal Window and Door Manufacturing

    • 332312 Fabricated Structural Metal Manufacturing

    • 332323 Ornamental and Architectural Metal Work Manufacturing

  • ISO 9001:2015 (Certified Quality Management System)

  • National Flood Barrier Testing & Certification Program – Platinum Level

  • FM/ANSI 2510 Approved on five products

  • UL10C NFPA 252 for Fire Rated Flood Doors

  • Certified Welders (mild steel, stainless steels, aluminum)

701.746.4519 | 877.446.1519 | www.psfloodbarriers.com | www.psindustries.com | 4psinfo@psindustries.com 1150 South 48th Street | Grand Forks, ND 58201

PS FLOOD BARRIERS™ SUCCESS STORIES

PS Flood Barriers™ has been a part of more than 1,985 projects, helping companies and organizations do business with confidence.

13

2 11

6 21

18 3

498

7

11 2

7

6 16

21 26

23 53

34

76

10

192 54

85 2 45

2 30

28 8

8

5

14 44 35

7 3 3 1

29 36

28

18 5

20

American Samoa

1. Jamaica 1

   16 208

   10

   38 5

   Australia Bahamas Bermuda Canada

   100

   Fiji

   13 Mexico 7

2. Oman 1

3. Singapore 5

17

1

Trinidad & Tobago

1

5

United Kingdom

Applebee’s Arby’s

Arizona Diamondbacks Stadium AT&T

Bank of America

Baylor College of Medicine

Bechtel Headquarters, Houston, Texas Bloomingdale’s

Bristol-Myers Squibb Capital One Children’s of Alabama Colorado (state of) Commerce Bank

Con Edison, Exelon, Chicago, Illinois Con Edison, New York, New York CVS

Department of Homeland Security Disney World

Duke Energy Dunkin’ Donuts Facebook Family Dollar Federal Reserve FedEx

Florida Marlins Stadium Florida Power & Light General Mills Herberger’s

Hyatt Hotel Hyatt Place Hyatt Regency Javits Center

John F. Kennedy Center for the Performing Arts

Johnson & Johnson KFC

Lakewood Church

Langley AFB, Newport News, Virginia McDonald’s

Miami Dolphins Stadium MillerCoors

NASA

National Archives

New York City Housing Authority New York School

Construction Authority

North Dakota State University Novartis Pharmaceutical Planet Fitness

Port Authority of New York & New Jersey

Revel

Ritz-Carlton Sherwin-Williams

Starbucks Taco Bell TD Bank Texas A&M

Town & Country Under Armour

United Nations, New York, New York

United States Coast Guard, Woods Hole, Massachusetts

University of Nebraska-Lincoln US Embassy

Verizon Wireless

Vertex Pharmaceuticals Wells Fargo

Wisconsin (state of) World Trade Center

Xcel Energy, Monticello, Minnesota YMCA

701.746.4519 | 877.446.1519 | www.psfloodbarriers.com | www.psindustries.com | 4psinfo@psindustries.com

1150 South 48th Street | Grand Forks, ND 58201

Rev120418

TO:

RS&H JOHN RICE

301 E PINE ST SUITE 350

ORLANDO, FL 32801

SHIP TO:

RS&H

301 E PINE ST SUITE 350

ORLANDO, FL 32801

PROPOSAL NO. : 0023844-R0 PROPOSAL DATE: 5/3/2022 PROPOSED BY: MITCH THORSEN

EMAIL: mthorsen@psindustries.com

PROPOSAL VALID FOR: 30 DAYS

PHONE: 407-893-5843

EMAIL: JOHN.RICE@RSANDH.COM

PROJECT NAME: PORT MANATEE FS

MATERIAL REQUEST: N/A

EST. PROJECT COMPLETE:

N/A

Confirm "Ship To" address! Address shown above is where your order will be shipped.

PALMETTO, FL

CUSTOMER RFQ/PO#      

FLOOD BARRIER PROPOSAL

1150 S. 48th Street, Grand Forks, ND 58201 Phone: 701.746.4519 Toll Free: 877.446.1519

www.psindustries.com

PRICE

........................................................................................................

1) Total Price: The total price (for material only) of this proposal is

............................................................................ $18,370.00

All applicable Duties and Taxes are the responsibility of the purchaser and are not included in this proposal .

2) Itemized Price. Itemized prices are detailed in the next section of this Proposal, FLOOD BARRIER PROPOSAL.

PAYMENT TERMS

1. Progress Payment 1: Ten percent (10%) of the total price due with order.

2. Progress Payment 2: Twenty-five percent (25%) of the total price due upon PS INDUSTRIES™ INCORPORATED delivering the first shop drawing(s).

3. Final Payment: Balance due upon delivery.

4. Freight Payment Terms: PPD ADD

ESTIMATE DELIVERY

...............................................................................................................................................

1. Shop Drawings lead time: After acknowledged receipt of order and Progress Payment 1

   
   

   .....................................

   
   

   N/A

   ...........................................................................................................

2. Fabrication and Delivery lead time: Current fabrication schedule is

.........................................................................

6 WEEKS

Lead times are estimates only and subject to change daily. (Resubmittals will increase lead times)

A projected delivery schedule will be estimated after acknowledged receipt of all necessary final approved shop drawings, Progress Payment 2, credit approval, and any other information deemed necessary by PS INDUSTRIES™ INCORPORATED.

EXTRAS

1. Freight. F.O.B. ORIGIN 58201. Estimated freight (for budgeting purposes only) is $6850. Actual freight will be calculated and charged to Buyer at time of shipment.

   (Freight is not included in this proposal. Actual freight will be calculated and charged to the customer at time of invoice)

2. Insurance. PS INDUSTRIES™ INCORPORATED maintains Commercial General Liability insurance, which excludes additional insured, waiver of subrogation, and primary and noncontributory coverages. Specific limits and coverage will be provided upon request. Any supplemental endorsements or coverage requested by Buyer, if available, will only be provided for an additional charge.

Accepted by:

Signature         

Print Name              

*This signature block acknowledges details on all pages of this proposal.

Title                  

Date                  

Page 1 of 5 Rev. Date: 02/15/22

1150 S. 48th Street, Grand Forks, ND 58201 Phone: 701.746.4519 Toll Free: 877.446.1519

www.psindustries.com

PROPOSAL NO.: 0023844-R0

1150 S. 48th Street, Grand Forks, ND 58201 Phone: 701.746.4519 Toll Free: 877.446.1519

www.psindustries.com

PROPOSAL NO.: 0023844-R0

FLOOD BARRIER PROPOSAL (TERMS & CONDITIONS)

1. ACCEPTANCE AND CONTRACT TERMS

   
   

   1. Acceptance. This Proposal is an offer. Buyer may accept this offer by signing (i) a copy of this Proposal; (ii) a purchase order; (iii) a supply agreement, subcontract, or other contract form between Buyer and PS INDUSTRIES INCORPORATED (Seller); or (iv) a contract with Buyer’s customer that includes the Products listed in this Proposal ; provided that any signed purchase order, supply agreement, subcontract, or other contract form between Buyer and Seller must accept and specifically incorporate by reference this Proposal, and otherwise be acceptable to Seller.

   2. Contract Terms. The express terms and conditions in this Proposal (including any related exhibits, schedules, attachments, and appendices) will exclusively govern and control Buyer’s and Seller's respective rights and obligations regarding the subject matter of this Proposal. This Proposal is expressly limited to such terms and conditions. Without limiting the foregoing, any additional, contrary, or different terms contained in any purchase order , supply agreement, subcontract, or other contract form, or in any other request or communication by Buyer, or any attempt to modify, supersede, supplement, or otherwise alter the terms and conditions in this Proposal, will not be binding on Seller unless each such term has been fully approved in writing, as evidenced by an authorized Seller representative signing said writing and placing his or her initials next to each approved paragraph.

      
      

2. FLOOD BARRIER PRODUCTS

   
   

   1. Products. Seller offers to design, engineer, fabricate, and furnish to Buyer the flood barrier products (“Products”) itemized in FLOOD BARRIER PROPOSAL (PRODUCTS), as detailed on Approval Drawings, for the prices listed and subject to the terms and conditions in this Proposal.

   2. Design. This Proposal is based upon the information Buyer has supplied to Seller, as detailed on the Approval Drawings , and will change if such information changes. Seller is not responsible for field conditions, including but not limited to the design or condition of the in-place structures. Seller designs its Products to be anchored, or welded, into in-place structures, consisting of either 8-inch grout filled concrete masonry unit or cast-in-place concrete with a minimum strength of 3,000 pounds per square inch, or structural steel framing. If actual field conditions differ , Buyer’s local qualified engineer must review and approve the fastening system or modify the mounting structure to accommodate the fastenings system provided. All water pressure and operating loads are transferred to in-place structures, which others (not Seller) must design, engineer, and build with the capacity to accept loads of the Products and transferred by the Products. No allowances are included in the design of the Products, including but not limited to hydrodynamic loads, debris impact loads, or wave loads, unless otherwise provided in this Proposal. Seller exclusively uses compressible seals, which are not dependent on inflation devices. Seller (or its suppliers) may make improvements or changes in the Products at any time.

   3. Standards and Specifications. This Proposal is based on Seller's specifications and manufacturing methods. Seller engineers its Products to conform to the design requirements of the International Building Code (“IBC”) and applies representative load combinations and equivalent safety factors recommended by industry standards including ASCE /SEI 7 and 24, FEMA (ref. IBC), FM Global, AISC, ADM, and ACI.

   4. Performance. Unless otherwise provided in this Proposal, requirements, terminology, tolerances, and performance standards applicable to the Products those specified as Type 2 Closures in Chapter 7, Section 701.1.2 of the U.S. Army Corps of Engineers, Engineer Pamphlet 1165-2-314 (15 December 1995). Closures will form essentially dry barriers or seals, allowing only slight seepage during the hydrostatic pressure conditions of flooding to the design flood elevation. Actual seepage will vary. Buyer is responsible to address seepage, including but not limited to consulting with Buyer’s local qualified engineer and /or utilizing sump- or bilge-type pumps.

   5. Maintenance. Seller recommends that the owner, operator, or other end user implement an annual maintenance program to inspect the gaskets, barriers, and all latching devices, which may routinely require replacement of parts, touch-up painting, and other maintenance. Seller disclaims all responsibility for performance of the Products if the recommended maintenance program is not strictly adhered to.

   6. Exclusions. Unless listed on the cover sheet of this Proposal, this Proposal excludes freight, unloading, storage, installation, field verification, field testing, field painting, touch-up paint, taxes, levies, duties, tariffs, liquidated damages, professional engineer-stamped calculations, bond costs, and assessments of any nature due. Buyer is responsible for all items and services not expressly listed in this Proposal.

      
      

3. DELIVERY

   
   

   1. Schedule. Seller will use all reasonable efforts to deliver the Products on the dates requested by Buyer , but time is not of the essence and if, despite Seller reasonable efforts , Seller is unable for any reason to fulfill any delivery of the Products on the specified date, Seller will not be liable to Buyer. Seller will not reimburse Buyer for liquidated damages or actual damages incurred by reason of late deliveries.

   2. Terms. Domestic delivery of the Products will be F.O.B. ORIGIN 58201, PPD ADD, unless otherwise provided in this Proposal. International shipments are Ex Works . Buyer assumes all responsibility for shipments of Products requiring any government import clearance.

   3. Force Majeure. Any delay or failure of Seller to perform its obligations regarding the subject matter of this Proposal will be excused to the extent that the delay or failure was caused by an event beyond Seller control, without Seller fault or negligence, and that by its nature could not have been foreseen by Seller or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities).

   4. Title / Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Products at the origin (58201). As collateral security for the payment of the purchase price of the Products, Buyer grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Products, wherever located, and whether now existing or hereafter created or acquired, and in all additions thereto and replacements or modifications thereof, as well as all related proceeds (including insurance proceeds).

   5. Inspection of Products. Buyer shall inspect the Products within ten (10) days of receipt (“Inspection Period”). Buyer accepts the Products as-is unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Products” means only: (i) one or more of the Products shipped is different than identified in this Proposal ; or (ii) one or more of the Products’ label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Products, Seller will, in its sole discretion: (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the price for such Nonconforming Products. In either event, Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller facility located in Grand Forks, North Dakota 58201. If Seller exercises its option to replace Nonconforming Products, Seller will furnish to Buyer the replacement Products according to this Proposal after receiving Buyer’s shipment of Nonconforming Products . The remedies set forth in this paragraph are Buyer’s exclusive remedies for the delivery of Nonconforming Products . Except as provided in this paragraph, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products to Seller. Cosmetic conditions, including but not limited to oil canning or rippling of flat surfaces of metal-faced door panels, are not a cause for rejection.

   6. Limited Warranty. Subject to the terms of this Limited Warranty , Seller warrants to the original user or consumer (the “Owner”) of a Seller's product (the “Product”) that, for a period of one (1) year from the date of shipment, the Product will be free from defects in material and workmanship under normal use and service, and provided the Product is installed, operated and maintained in accordance with instructions supplied by Seller. The terms and limitations of this Limited Warranty apply to all repaired or replacement Products for a term equal to the balance of the warranty remaining on the Product that was repaired or replaced as of the date of such repair or replacement. PS Flood Barrier Product Warranty Registration: For PS Flood Barrier™ Products, this Limited Warranty will only be valid if the Owner completes the Warranty Registration card included in the Product Operation & Maintenance Manual within thirty (30) days of Product installation. To request a copy of the Warranty Registration card , contact Seller. Warranty Exclusions: Notwithstanding anything to the contrary, this Limited Warranty does not cover any of the following : (1) Normal wear and tear (including, but not limited to, normal wear and tear to gaskets and weather seals); damage or accidents resulting from freight damage, from failure to follow precautionary safety measures, or applied paint failure; abuse, misuse or unauthorized modification of the Product; misapplication; improper installation; or any defects, damage or other harm that is not the result of the acts or omissions of Seller. (2) Cost of field labor or other charges incurred by Owner in removing and/or re- affixing the Product or any part or component thereof . (3) Transportation costs. Unauthorized modification of or to the Product voids this Limited Warranty . Authorized modifications, received in writing from Seller, as long as the modification is accomplished in strict accordance with Seller instructions, does not void warranty. To request product modifications contact Seller . Claim Procedure: To make a claim under this Limited Warranty , the claim must be received by Seller before the expiration of the above stated Limited Warranty period together with proof of purchase . An authorized Seller representative must be given a reasonable opportunity to inspect and investigate the alleged Product defect prior to any work being done that affects the Product or its installation . Seller reserves the right to charge reasonable amounts for travel and labor associated with investigation of claims. Seller may also require photographs of the alleged Product defect or return of the Product or part to a designated Seller location, freight prepaid. A return goods authorization must be received prior to the return of the Product or part . Please contact Seller to determine the designated location for return and to obtain the return goods authorization. Exclusive Remedy: In the event of a warranty claim that Seller determines to be covered by this Limited Warranty, Seller will replace or repair, at Seller’s discretion, the Product or any part of the Product found to be defective. Disclaimers: The above warranty and remedy is the sole express warranty and remedy given by Seller on its Product. No warranties or representations at any time made by any representative from Seller shall vary or expand the provisions hereof. TO THE EXTENT PERMITTED BY LAW, ALL EXPRESS AND IMPLIED WARRANTIES (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT) OTHER THAN THE EXPRESS LIMITED WARRANTY SET FORTH ABOVE ARE EXPRESSLY

      1150 S. 48th Street, Grand Forks, ND 58201 Phone: 701.746.4519 Toll Free: 877.446.1519

      www.psindustries.com

      PROPOSAL NO.: 0023844-R0

      DISCLAIMED. UPON THE EXPIRATION OF THE ABOVE STATED LIMITED WARRANTY PERIOD, ANY AND ALL APPLICABLE IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ARE DISCLAIMED. SOME STATES DO NOT ALLOW LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO OWNER. LIABILITY LIMITATION: In no

      event will Seller liability to Owner or any other person or entity exceed the price paid to Seller for the defective Product. IN NO EVENT SHALL PS INDUSTRIES INCORPORATED BE LIABLE TO OWNER OR ANY OTHER PERSON OR ENTITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES OF ANY DESCRIPTION, WHETHER ARISING OUT OF WARRANTY (INCLUDING ANY IMPLIED WARRANTIES) OR ANY OTHER CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, INCLUDING ARISING FROM INSPECTION OR REMEDY DELAYS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO OWNER. THIS WARRANTY GIVES OWNER SPECIFIC LEGAL RIGHTS AND OWNER MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.

      
      

4. PAYMENT

   
   

   1. Price. Buyer shall purchase the Products from Seller at the prices listed in FLOOD BARRIER PROPOSAL (PRODUCTS). All prices are contingent on acceptance of all the terms and conditions in this Proposal, and subject to change if said terms and conditions change. All prices are exclusive of sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes, unless otherwise provided in this Proposal.

      
      

   2. Payment Schedule. Buyer shall pay Seller according to the following schedule, net thirty (30) days by C.O.D., certified funds, or as otherwise agreed and subject to credit approval:

      1. Progress Payment 1: Ten percent (10%) of the total price due with order.

      2. Progress Payment 2: Twenty-five percent (25%) of the total price due upon Seller delivering the first shop drawing(s).

      3. Final Payment: Balance due upon delivery.

         
         

   3. Terms. Buyer shall pay interest on all late payments at the lesser of the rate of eighteen percent (18%) per annum, or the highest rate permissible under applicable law, calculated daily (0.05% per day) and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including attorneys’ fees. In addition to all other available remedies, Seller may suspend production, shipment, or delivery of any of the Products, and any other services if Buyer fails to pay any amounts when due under this Proposal and such failure continues for seven (7) days following written notice. Seller reserves the right to require full or partial payment in advance. Once payment has been received or acceptable arrangements have been made, orders will be rescheduled based on the then-current fabrication schedule. Buyer shall not withhold payment of any amounts due and payable by reason of any set- off of any claim or dispute with Seller. Seller does not authorize any form of retainage. Seller’s entitlement to payment is absolute and not contingent upon Buyer receiving payment.

      
      

5. CANCELLATION / CHANGES / POSTPONING SHIPMENT

   
   

   1. Cancellation by Buyer. Following acceptance of this Proposal, Buyer’s cancellation of this Proposal is subject to fees based upon the production status of the Products as follows :

      1. Ten percent (10%) of the total price if the drawing process has started.

      2. Thirty-five percent (35%) of the total price if Seller has delivered the first shop drawing(s) to Buyer.

      3. Seventy-five percent (75%) of total price if Seller has started fabrication.

      4. One hundred percent (100%) of the total price if Seller has completed fabrication.

         NOTE: If specialty hardware has been ordered that is specific to the project, the cost of that material will be added to the cancellation fee.

         
         

   2. Changes by Buyer. Following acceptance of this Proposal, any changes to the Products will be subject to fees as quoted by Seller upon receipt of said changes.

      
      

   3. Postponing Shipments. Buyer may request to delay a shipment, beyond the scheduled ship date, by contacting Seller no later than ten (10) business days prior to the scheduled ship date. Buyer may delay the shipment for up to seven (7) calendar days at no charge. A $100 per day storage fee will be assessed begining on the eight (8th) calendar day, and each subsequent calendar day, until shipment leaves Seller's facility.

      
      

   4. Cancellation by PS INDUSTRIES INCORPORATED. In addition to all other available remedies, Seller may terminate any agreement formed after this Proposal has been accepted with immediate effect upon written notice to Buyer , if Buyer: (i) fails to pay any amount when due under this Proposal and such failure continues for seven (7) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with this Proposal; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

      
      

   5. Survival. Subject to the terms and conditions in this Proposal, (i) the representations and warranties contained in this Proposal will survive expiration, cancellation, or termination; and (ii) sections I, IV, V, and VI of this Proposal, as well as any other provision that should survive in order to give proper effect to the intent of this Proposal , will survive expiration, cancellation, or termination.

      
      

6. MISCELLANEOUS

   
   

   1. Limitation of Liability. Seller will not be liable to Buyer or any third party for any loss of use, revenue or profit, or loss of data or diminution in value, or for any consequential, indirect, incidental, special, exemplary, or punitive damages, whether based upon breach of contract, tort (including negligence), strict liability, or otherwise, regardless of whether such damages were foreseeable and whether or not Seller has been advised of the possibility of such damages, and notwithstanding the failure of any remedy of its essential purpose. Seller’s aggregate liability, whether based upon breach of contract, tort (including negligence), strict liability, or otherwise, will not exceed the total of the amounts paid to Seller for the Products sold under this Proposal.

      
      

   2. Indemnification. Buyer shall, at its expense, defend, indemnify, and hold harmless Seller and its officers , directors, employees, agents, affiliates, successors, and assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, legal fees, and costs of enforcing any right to indemnification, and the cost of pursuing any insurance providers, arising out of or connected to (i) the subject matter of this Proposal; (ii) the Products; (iii) Buyer’s acts, omissions, misconduct, or breach of contract, or (iv) any claim that Buyer’s use or possession of the Products infringes or misappropriates the intellectual property right of any third party.

      
      

   3. Entire Agreement. Upon acceptance, this Proposal, including and together with any related exhibits, schedules, attachments, and appendices, will constitute the sole and entire agreement between Seller and Buyer regarding the subject matter of this Proposal, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral.

      
      

   4. Severability. If any term of this Proposal is unenforceable in any jurisdiction, such unenforceability will not affect any other term of this Proposal or invalidate or render unenforceable such term in any other jurisdiction.

      
      

   5. Counterparts. This Proposal may be accepted and executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

      
      

   6. Third Parties. Upon acceptance, this Proposal is binding on and will benefit Buyer and Seller and their respective successors and assigns as permitted by this paragraph. Nothing in this Proposal, express or implied, confers on any other person or entity other than Buyer and Seller any legal or equitable right, benefit, or remedy of any nature whatsoever. Buyer shall not assign, transfer, delegate, or subcontract any of its rights or obligations regarding the subject matter of this Proposal without the prior written consent of Seller. Any purported assignment, transfer, delegation, or subcontract in violation of this paragraph will be null and void. No assignment, transfer, delegation, or subcontract will relieve Buyer of any of its obligations under this Proposal. Seller may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations regarding the subject matter of this Proposal without Buyer’s prior written consent .

      1150 S. 48th Street, Grand Forks, ND 58201 Phone: 701.746.4519 Toll Free: 877.446.1519

      www.psindustries.com

      PROPOSAL NO.: 0023844-R0

   7. Amendments. No amendment to or modification of this Proposal is effective unless it is in writing , identified as an amendment or modification to this Proposal, and signed by an authorized representative of Buyer and Seller in accordance with paragraph I(b) of this Proposal.

      
      

   8. Waiver. Buyer waives any claim arising out of or connected to the Products unless made in writing within ninety (90) days from date of shipment of the Products. No waiver by Seller of anything in this Proposal will be effective unless explicitly set forth in writing and signed by Seller . Seller’ failure to exercise, or delay in exercising, any right, remedy, power, or privilege regarding the subject matter of this Proposal will not operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise thereof, or the exercise of any other right, remedy, power, or privilege.

      
      

   9. Remedies. Unless otherwise provided in this Proposal, all rights and remedies created upon acceptance of this Proposal are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available between the parties.

      
      

   10. Dispute Resolution. Any dispute, controversy, or claim arising out of or connected to the subject matter of this Proposal, or the breach, termination, or invalidity thereof, which is not resolved between the parties themselves, will be finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association , effective on the date of this Proposal, by a single arbitrator who will be appointed in accordance with such rules. The place of arbitration will be Minneapolis, Minnesota. The arbitration will be conducted in the English language. Judgment upon the award of the arbitrator may be entered in any court having jurisdiction. This Proposal will be governed by, interpreted, and construed in accordance with the laws of the State of North Dakota.

       
       

   11. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Proposal must be in writing and addressed to the other party at its address set forth in this Proposal (or to such other address that the receiving party may designate in writing as required by this paragraph). All notices must be delivered by personal delivery, certified mail (return receipt requested, postage prepaid), or electronic mail. Such notice is effective only (a) on receipt by the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.