HomeMy WebLinkAboutC2018-032 - 1/23/2018 - Approved INTERLOCAL AGREEMENT BETWEEN THE PORT OF CORPUS CHRISTI
AUTHORITY OF NUECES COUNTY,TEXAS AND THE CITY OF CORPUS CHRISTI,
TEXAS REGARDING PROFESSIONAL SERVICES FOR THE EVALUATION OF
DESALINATION PLANT
This Agreement Regarding Professional Services for the Evaluation of Desalination Plant
(the"Agreement")is made and entered into by and between the Port of Corpus Christi Authority
of Nueces County, Texas, a navigation district operating under Article XVI, Section 59 of the
Texas Constitution("Authority"),and the City of Corpus Christi,Texas,a municipal corporation
and home rule city of the State of Texas("City"). Authority and City are sometimes referred to in
this Agreement as"Parties"and individually as a"Party".
RECITALS
WHEREAS, on October24,2017,M&G Polymers USA,LLC("M&GPolymers")filed a
voluntary petition for relief under chapter 11 of the Bankruptcy Code in the Bankruptcy Court for
the District of Delaware (Case No. 17-12307) and, thereafter, on October 30, 2017, eleven other
debtors(including M&G Waters USA,LLC("M&G Waters")commenced chapter 11 cases before
the same Court (together with the chapter 11 case of M&G Polymers, the "M&G Bankruptcy"
and the 12 debtors collectively referred to as "M&G Debtors");
WHEREAS, on November 16, 2017,the M&G Debtors filed a Motion for Entry of Order
Approving Bidding Procedures for the Sale of Certain of the Debtors' Assets [Docket No. 173]
(the "Sale Procedures Motion");
WHEREAS, the Sale Procedures Motion sought Court approval of extensive procedures
governing the M&G Debtors' efforts to sell substantially all of their assets (the "Sale
Procedures");
WHEREAS,M&G Waters was formed to purchase,install and operate certain desalination
equipment and boilers(the "Desalination Assets")in Corpus Christi,Texas;
WHEREAS, under the Sales Procedure Motion,prospective bidders may bid on all or any
combination of the M&G Debtors' assets, including the Desalination Assets;
WHEREAS, by Order dated December 14, 2017, the Court granted Debtors' Sale
Procedures Motion [docket entry 490];
WHEREAS,the deadline by which prospective interested parties must submit preliminary
indications of interest(each a"Proposal'and,the date by which Proposals must be submitted,the
"Proposal Deadline") with respect to the Desalination Assets is January 30, 2018 at 5:00 p.m.
Eastern Time;
WHEREAS, the deadline by which prospective bidders must submit final binding bids
(each a"Final Bid"and,the date by which Final Bids must be received,the"Final Bid Deadline")
2018-032
1/23/18 1
M2018-018
Port of Corpus Christi INDEXED
is March 6,2018 at 5:00 pm Eastern Time;
WHEREAS,the Desalination Assets include a seawater desalination plant("Desalination
Plant") for industrial use with a design capacity of 22 million gallons per day (24,643 acre-feet
per year);
WHEREAS, Authority has contracted for professional services to evaluate the
Desalination Plant for possible acquisition;
WHEREAS, the City is not interested in submitting a proposal or bid within the M&G
Bankruptcy process, but the City desires to utilize work product of the professionals identified
herein in order to consider pursuing acquisition of the Desalination Assets after said assets are
purchased by a successful bidder within the M&G Bankruptcy;
WHEREAS, Authority and the City, exercising their mutual authority and furthering their
mutual interests, wish to enter into this Agreement in order to allow the City the right to use the
work product and all related information prepared by Authority's Engineer and Consultant
identified herein for any purpose deemed necessary by the City;
NOW THEREFORE, for and in consideration of the mutual promises and covenants set
forth herein, this Agreement is entered into by and between the City and Authority and based on
these consideration, undertakings and agreements, the receipt and sufficiency of which is hereby
acknowledged,the Parties agree, covenant and contract as follows:
ARTICLE 1
EVALUATION OF DESALINATION PLANT
1.1 Professional Services. Authority has engaged Amec Foster Wheeler Environment
& Infrastructure, Inc. ("Engineer" or "Amec") and Nova Infrastructure, LLC ("Consultant" or
"Nova") to perform certain professional services in connection with the acquisition of the
Desalination Plant, including but not limited to: (1) determining the cost to complete the
Desalination Plant, the value of the Desalination Plant as an industrial water source, the cost to
construct a mirror image system adjacent to the current Desalination Plant, and the cost to replace
storage tank capacity at the Desalination Plant; and (2) providing financial projections, capital
structure analysis and financing support for the transaction (collectively referred to as the
"Professional Services"). The following Professional Services agreements are attached and
incorporated into this Agreement as Exhibit A: (1) Professional Engineering Services Contract
between the Authority and Amec Foster Wheeler Environmental & Infrastructure executed by
Authority on October 23, 2017, with maximum amount of$45,000; (2) Amendment No. 1 to
Professional Services Contract for Supplemental Services Project Name: Regional Water Supply
Desalination Project No. 17-711A between Authority and Amec Foster Wheeler Environmental&
Infrastructure executed by Authority on December 13, 2017, with maximum amount of$40,000;
and (3) Consulting Services Contract between Authority and Nova Infrastructure,LLC, effective
December 6, 2017,for$15,000 per month for up to a three month term.
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CUL of Corpus Chrsu
1.2 City Right to Use. Authority grants City and the City's officers,employees,agents
and consultants, a perpetual license and full access and right to use any and all work product and
reports of Engineer and Consultant including the information referenced in said work product or
reports. The City and its officers, employees, agents and consultants may utilize any of the work
product, reports and information provided by Engineer or Consultant for any purpose deemed
necessary by the City including but not limited to use in any potential acquisition of the
Desalination Assets by the City after said assets are purchased through the M&G Bankruptcy. In
exchange, the City agrees to reimburse Authority for the following costs of Professional Services
paid by Authority: up to $85,000 for Professional Services provided by Amec;and up to$15,000
for Professional Services provided by Nova. The City will pay Authority within 60 days of receipt
of invoices from Authority for the Professional Services.
ARTICLE 2
EFFECTIVE DATE
2.1 Effective Date. This Agreement shall become effective the date it is signed by
both Parties (the"Effective Date")
ARTICLE 3
GENERAL PROVISIONS
3.1 No Joint Enterprise. This Agreement is not intended to and shall not create ajoint
enterprise between Authority and the City. The Parties are undertaking governmental functions
under this Agreement and the purpose of the Agreement is solely to further the public good,rather
than any pecuniary or proprietary purpose.
3.2 Agreement not for Benefit of Third Parties. This Agreement is made for the
exclusive benefit of Authority and the City and not for the benefit of any third party or parties.
3.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, and it shall be performable in Nueces County,
Texas.
3.4 Severability. If for any reason any section,paragraph,subdivision,clause,phrase,
word or provision of this Agreement shall be held invalid or unconstitutional by final judgment of
a court of competent jurisdiction, it shall not affect any other section, paragraph, subdivision,
clause, phrase, word or provision of this Agreement, for it is the intent of the Parties that every
section, paragraph, subdivision, clause, phrase, word or provision hereof be given full force and
effect for its purpose.
3.5 Successors. This Agreement shall be binding upon and shall inure to the benefit
of the Parties,their successors and permitted assigns.
3.6 Amendments. No amendments,modifications or other changes to this Agreement
shall be valid or effective without the written consent of the Parties.
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Guy of CoTu'Gloom
3.7 Immunity. It is expressly understood and agreed that nothing in this Agreement
waives or relinquishes the right of Authority or the City to claim any exceptions, privileges, or
immunities as may be provided by law.
3.8 Notices. All notices,demands or requests from the City to Authority shall be given
to the Port of Corpus Christi Authority of Nueces County, Texas, Attention: Sean Strawbridge,
Chief Executive Officer,P.O.Box 1541, Corpus Christi, Texas 78403, or at such other address as
Authority shall request in writing. All notices, demands or requests from Authority to the City
shall be given to the City of Corpus Christi, Attention: City Attorney, at 1201 Leopard Street,
Corpus Christi,Texas 78401,or at such other address as the City shall request in writing.
3.9 Payments. Any payment made by either the City or Authority for any of the
services provided pursuant to this Agreement shall be made out of current revenues available to
such party as required by the Interlocal Cooperation Act. All funding obligations of the City under
this Agreement are subject to the appropriation of funds in its annual budget.
3.10 Interlocal Cooperation Act. This Agreement is subject to the terms and
provisions of the Texas Interlocal Cooperation Act, (the "Act"), codified as Chapter 791 of the
Teas Government Code. Each party represents that this agreement has been duly passed and
approved by its governing body, as required by the Act.
(Signature Page Follows/
WL3I2225 4
City of Corpus Christi
IN WITNESS WHEREOF,the Parties have caused this Agreement to be executed by their
duly authorized representatives as of the respective dates set forth below the signature of each
Party's representative.
CITY OF CORPUS CHRISTI,TEXAS
F.ffrorti as to brill: 9. •1 tv I�
By: tb • IQ-0d-D
U«n gu l;9
Assistant G` Attorney
For City Attorney . a,D t 1
Date:
ATTEST:
1 ,4e
/4z,
RE ECCA HUERTA PORT OF CORPUS CHRISTI AUTHORITY
CITY SECRETARY
OF NUECES COUNTY,TEXAS
•
By: 4.011111.11111F
6i,,,,. 4 9p iers,
Date:
OIU HUKi i•
T COUNCIL 23 I
40
SECRETARY a
WL-312225 5
City of Corpus Christi
EXHIBIT A
(1) Professional Engineering Services Contract
between the Authority and Amec Foster Wheeler
Environmental & Infrastructure executed by Authority
on October 23, 2017
PROFESSIONAL ENGINEERING SERVICES CONTRACT
THIS CONTRACT(the"Contract")is made and entered into effective as of the 2nd day
of October,2017("Effective Date")by and between the Port of Corpus Christi Authority ofNueces
County, Texas ("Authority"), and Amec Foster Wheeler Environment & Infrastructure, Inc.
("Engineer"), each a "Party' and collectively as"Parties".
NOW THEREFORE, in consideration of the promises and mutual covenants contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged,the Parties hereby agree as follows:
I. CONTRACT: Authority hereby engages the Engineer and the Engineer hereby
accepts its engagement for the purpose of providing to Authority the engineering services
("Services") as are generally described in the"Scope of Services" set forth in Exhibit A to this
Contract which is incorporated herein by reference. Engineering designs, reports, drawings and
specifications prepared hereunder will be sealed by a Registered Professional Engineer licensed to
practice in the State of Texas and in accordance with applicable provisions of the Texas
Engineering Practice Act and Rules of the Texas Board of Professional Engineers.
2. PERIOD OF SERVICE: The Engineer shall complete the Services on or before
February 28, 20I8(the"Deadline"), unless the Authority agrees to extend the Deadline for good
ivtnu r; provided, however, that the Authority may terminate this Contract at any time in
accordance with Section 14. Time is of the essence in performance of this Contract. There will
be no obligation established between Authority and the Engineer for performance of the Services
until Authority provides the Engineer with a written notice to proceed which shall be issued upon
execution of this Contract and receipt by the Authority of appropriate Certificates of Insurance and !,
other documentation as may be required herein. The term of this Contract ("Term") shall begin !i
on the Effective Date and shall end on the first to occur of the following: (1) the Deadline,as the
same may have been extended by the Authority,(2)the date on which,in the opinion of Authority,
all of the Services have been rendered, (3) the date on which this Contract is terminated by the
Authority pursuant to Section 14, or (4) the date on which this Contract is terminated by the
Engineer pursuant to Section 14.
3. COORDINATION OF SERVICES BY AUTHORITY: Authority shall designate a
Project Representative who will, on behalf of Authority, coordinate with the Engineer and
administer this Contract. It shall be the responsibility of the Engineer to coordinate all assignment-
related activities with the Project Representative.
For the purposes of this Contract,the Project Representative shall be:
Sarah L. Garza
Port of Corpus Christi Authority
PO Box 1541, Corpus Christi,TX 78403
(361) 885-6163
sarah(tdnocca.com
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Professional Engineering Services Contract Form—September 2016
Authority may change the Project Representative at any time by giving the Engineer
written notice of such change.
4.NOTICES: Notices, demands, requests or other formal communication related to the
Contract shall be deemed to have been given when received, whether delivered personally or
mailed. E-mail communications may be considered as fennel notification provided the e-mail
message states the message is intended as a formal notice and the receiving Patty acknowledges
receipt of the message as a formal notification. Notices shall be addressed as follows:
If to the Authority: John P. LaRue
Executive Director
Port of Corpus Christi Authority
222 Power Street
Corpus Christi,Texas 78401 .II
E-mail: iohn(rdoocca.com
If to the Engineer: David R.Hoffinan,P.E.
Vice President
Amec Foster Wheeler plc Environmental&Infrastructure
3755 S. Capital of Texas Highway, Suite 375
Austin,Texas 78704
-___--- E-mail:david.hoffman@amec.com_
Either Party may change the mailing or E-mail address for notifications by providing
written notice of such change to the other Party.
5. CHANGES: This Contract may be changed or modified at the request of either the III
Engineer or the Authority, provided both Parties agree to the requested change, and a written
amendment or modification of this Contract is prepared and executed by the Parties.
6. ENGINEER'S RESPONSIBILITIES: In addition to all other obligations contained
herein,the Engineer agrees,warrants,and represents that:
6.1 The Engineer will furnish all material, equipment, labor and supplies in such
quantities and of the proper quality to professionally and timely perform the Services,
except as otherwise mutually agreed by the Parties;
6.2 The Engineer shall perform the Services with the professional skill and care
ordinarily provided by competent engineers practicing in the same or similar locality and
under the same or similar circumstances and professional license;
6.3 The Engineer will comply with the provisions of all federal, state, and local laws,
regulations,ordinances,requirements and codes which are applicable to its performance of
Services;
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Professional Engineering Services Contract Form—September 2016
6.4 The Engineer is not and will not be bound by any agreement and has not assumed
nor will assume any obligation which would,in any way,restrict its ability to perform the
Services or be inconsistent with the Services;
6.5 In performing the Services, the Engineer will not use any third party's confidential
or propriety information, or infiinge the rights of another party, nor will the Engineer
disclose to the Authority, or bring onto the Authority's premises,or induce the Authority
to use any third party's confidential or proprietary information;
6.6 The Engineer does not have the authority to act for the Authority,bind the Authority
in any respect,or incur any debts or liabilities in the name of or on behalf of the Authority,
except as otherwise expressly authorized in writing by the Authority;
6.7 Engineer's Opinions of probable cost or other forms of cost estimates will be based
on the Engineer's experience, the design, and current market conditions to the extent
practicable. Authority hereby acknowledges that Engineer cannot warrant that estimates
of probable cost provided by Engineer will not vary from actual market prices obtained by
Authority;
6.8 Engineer is an independent contractor for the performance of his duties under this
Contract. Accordingly,the Engineer shall be responsible for payment of all taxes including
federal,state and local taxes arising out of the Engineer's activities in accordance with this
Contract. Engineer is responsible for payment of the compensation, including any
withholding, Social Security, or other taxes on such compensation, of any subcontractors
retained by Engineer,or Engineer's employees performing work on the Project;
6.9 Engineer has and hereby retain"§full control of any supervision over the Engineer's
• obligations hereunder and over any persons employed or subcontracted by the Engineer for
performing Services hereunder;
6.1.0 Engineer will inno waybe considered an agent,partner,joint venturer,or employee
of Authority at any time during the Term. Engineer will only render advice to Authority
and will not undertalce to commit Authority to any course of action in relation to a third
party unless expressly requested and authorized to do so by the Authority in writing.
6.11 As of the Effective Date and at all times while providing Services hereunder, the
Engineer shall. possess and maintain in good standing any and all licenses or other
authorizations and approvals necessary to perforin the Services consistent with its status as
an independent contractor and in compliance with all applicable laws and regulations;
6.12 Engineer may, with prior written approval of Authority, use representations of
designs or other engineering services provided hereunder for promotional purposes.
Authority reserves the right to review and approve,in advance of any publication or use,
promotional materials containing reference to or images related to the work produced under
this Contract.
/I
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Pr t'essional Engineering Services Contract Form—September 2016
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7. COMPENSATION: The compensation to be paid Engineer for providing the
Services shall be the compensation described in Exhibit B hereto,which is incorporated herein by
reference; provided,however, the total paid to Engineer for the Services shall not exceed Forty-
five Thousand Dollars ($45,000). Engineer will obtain the approval of Authority's Project
Representative relative to incurring travel and other expenses before incurring such costs.
8. INVOICE PROCEDURE AND PAYMENT: Engineer shall submit invoices
monthly to the Authority for work performed during the preceding calendar month. Such invoices
shalt be due and payable by Authority on or before thirty (30) days from receipt by Authority.
Monthly compensation will be for the Services actually performed during the billing period,
invoiced in accordance with the Fee.Schedule included in Exhibit B. Invoices shall also describe
any work performed by subcontractors retained by Engineer and reimbursable costs.
Subcontractor cost mark-up shall not exceed five percent(5%). Engineer will provide sufficient •
detail with each invoice to substantiate the requested amount of monthly payment. At the
Authority's request,Engineer will provide additional backup such as signed time sheets,invoices
for materials and subcontracted service or other documentation sufficient to establish the accuracy
of the invoices. Invoices are to be submitted in a format previously approved by Authority.
9.INSURANCE: Engineer shall procure and maintain at its sole expense,for as long
as Engineer is obligated to provide Services under this Contract, the policies of insurance
described in Exhibit C attached hereto and in at least the minimum amounts specified in
Exhibit C to protect Engineer from claims which may arise out of'or result from Engineer's
Services pursuant to this Contract, whether such operations be by Engineer, by any
subcontractor of Engineer, by anyone directly or indirectly employed by Engineer or
Engineer's subcontractor, or by anyone for whose acts Engineer or Engineer's subcontractor
maybe liable. At least five(5)days prior to execution of this Contract,Engineer will provide to
Authority's Risk Program Manager certificates of insurance issued by each insurance company
providing any of the required insurance coverage, and the text entered in each certificate must be
acceptable to Authority. The requirement to provide acceptable certificates of insurance is a
material condition of this Contract, and work under this Contract will not commence until
certificates of insurance have been received,reviewed,and accepted by Authority. The minimum
limits of liability and coverage for the insurance required are set forth in Exhibit C attached hereto,
which is incorporated herein by reference.
10. INDEMNIFICATION AND RELEASE. Engineer hereby releases and
discharges Authority and its agents,servants,representatives,employees,officers,directors,
and Port Commissioners (collectively, the "Authority Parties") from liability for and
assumes the risk of loss or damage to the property of Engineer and the injury or death of
any person employed by Engineer. Engineer shall defend,indemnify and hold harmless the
• Authority Parties from and against all damages, losses, costs and expenses, of any nature
whatsoever, whether incurred as a judgment, settlement, penalty, fine or otherwise
(including reasonable attorneys'fees and the cost of defense),in connection with any action,
proceeding, demand or claim but only to the extent caused by the negligent acts,errors, or
omissions of the Engineer,its employees, agents, or subconsultants, or others for whom the
Engineer is legally liable,in the performance of Sefvices under this Contract. The Engineer
is not obligated under this paragraph to indemnify the Authority Parties for the negligent
acts of the Authority Parties. gip
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Professional Engineering Services Contract Form—September 2016
Engineer's indemnity obligations under this Section 10 shall not be limited by a limitation
on the amount or type of damages, compensation or benefits owed by Engineer to any employee
of Engineer under workers' or workmen's compensation acts, disability benefit acts, or other
employee benefit acts. The obligations of the Engineer under this Section 10 shall survive the and
of the Term of the Contract.
11. LIMITATION OF LIABILITY: Except as otherwise expressly provided herein,
neither Party shall be liable or responsible to the other Party for any indirect, incidental or
consequential loss or damage of any nature whatsoever(including, but not limited to, contract,
negligence or tort liability) of the other Party, including without limitation, any actual or
anticipated profits,loss of time,inconvenience,commercial loss or any other damages,even if the
Party has advance notice of the possibility of such damages.
12. DISCLOSURE OF INTERESTED PARTIES: Engineer will comply with the
provisions of Section 2252.908 of the Texas Government Code and Chapter 46 of the Texas Ethics
Commission Rules by preparing a Texas Form 1295, "Certificate of Interested Parties" and
submitting the signed and notarized form to Authority at the time Engineer submits the signed
•contract to Authority.
13. ASSIGNMENT: Neither Authority nor Engineer will assign or transfer its interest
in this Contract without the written consent of the other.
14. SUSPENSION OR TERD'IINATION: Authority may suspend or terminate this
Contract for convenience with seven(7)days prior written notice to Engineer of such action. Upon
termination of this Contract in accordance with this paragraph, Authority will have no further •
obligation to the Engineer hereunder except to pay the Engineer unpaid fees and expenses which
the Engineer can reasonably show to have been earned under this Contract. Under no
circumstances may Engineer claim or recover consequential damages from Authority.
In the event of suspension of Services, the Engineer shall resume the full performance of
the Services when directed in writing to do so by Authority. Suspension of the Services for reasons
other than the Engineer's negligence or failure to perform shall not affect the Engineer's
• compensation as provided for in this Contract. The schedule for performance of the Services shall
be amended by a mutually agreed,written modification to this Contract to reflect the suspension.
Either Party may terminate this Contract by giving written notice to the other Party if the
other Party("Defaulting Party"): (a)materially breaches any term, condition or provision of this
Contract and fails to cure the breach to the satisfaction of the notifying Party within ten(10)days
after the Defaulting Party receives a written notice of the breath from the notifying Party, or(b)
becomes the subject of any proceedings under state or federal law for the relief of debtors or
otherwise becomes Solvent,or bankrupt,or makes any assignments for the benefit of one or more
creditors. rAr
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Professional Engineering Services Connect Form—September 2016
15.DISPUTES: Each Party agrees that any dispute between the Parties relating to this
Contract will first be submitted in writing to a panel of two senior executives of the Authority and
Engineer,who shall promptly meet and confer in an effort to resolve such dispute through good
faith consultation and negotiation. Each Party'sexecutive shall be identified by notice to the other
Party,and may be changed at any time thereafter also by notice to the other. Any decisions of the
executives will be final and binding on the Parties, In the event the executives are unable to resolve
any dispute within thirty (30) days after submission to them, either Party may then refer such
dispute to mediation.
If the Parties refer to mediation any controversy or claim arising out of or relating to this
Contract or the existence,validity,breach or termination thereof,whether dining or after its term,
they shall select a mutually acceptable mediator within forty-five(45) days thereafter. Neither
Party shall unreasonably withhold consent to the selection of a mediator. The Parties shall share
equally the costs of mediation. If the Parties agree,they may substitute other forms of alternative
dispute resolution. Any mediation shall not extend beyond thirty(30)days after the appointment
of the mediator,and should the Parties fail to resolve any dispute by mediation within such 30-day
period,the Parties shall have all rights available at law or in equity.
16.ATTORNEY'S FEES,DEFAULT: In the event Engineer or Authority breach any
of the terms of this Contract and the Party not in default employs attorneys to protect or enforce
its rights hereunder and prevails,then the defaulting Party agrees to pay reasonable attorney's fees
and costs incurred by the prevailing Party.
17.STAFFING: Engineer will designate in writing to Authority its project representative,
and the manner in which it will provide staff support for the project,which must be approved by
Authority. Engineer must notify Authority's Project Representative of any change in personnel
assigned to perform work under this Contract, and the Authority's Project Representative has the
right to reject the person or persons assigned to fill the position or positions. The Authority's
Project Representative shall also have the right to require the removal of the Engineer's previously
assigned personnel,including Engineer's project representative,provided sufficient cause for such
• removal exists. The criteria for requesting removal of an individual will be based on, but not
limited to,the following: technical incompetence, inability to meet the position's qualifications,
failure to perform,poor attendance, ethics violation,unsafe work habits, or damage to Authority
or other property. Upon notice for removal,Engineer shall replace such personnel with personnel
substantially equal in ability and qualifications for the positions and shall submit the proposed
replacement personnel qualification and abilities to the Authority,in writing,for approval.
18. OWNERSHIP OF WORK PRODUCT: Studies,plans,reports, surveys, drawings,
specifications, cost estimates, cothputations and other information(collectively"Work Product")
and documents prepared by the Engineer,subconsultants,and/or suppliers wider this Contract will
remain the Authority's property upon completion. This provision does not apply to pre-existing
proprietary information of Engineer,subconsultants,and/or suppliers.
• 19.CONFIDENTIAL INFORMATION: It is understood that information developed by
or communicated to Engineer in the performance of this Contract, as well as any and all
information in whatever form or medium supplied to Engineer in connection herewith which is
rof
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Professional Engineering Services Contract Fonn—September 2016
•
not generally available to the public is proprietary to the Authority and constitutes confidential
information of the Authority. Engineer will make no oral or written disclosure of such information
to third parties either during or after the term of this Contract,except as approved in writing by the
Authority's Project Representative or as otherwise required by law. In the event the Engineer
becomes aware that confidential information must be disclosed under a legal requirement,
Engineer will notify Authority of the requirement and the affected information.
20.FORCE MAJEURE: Neither Party shall be considered in default in the performance
of its obligations hereunder to the extent that the performance of such obligation is delayed by any
cause beyond the reasonable control of the affected Party. In the event of such a delay, the time
for performance for the affected Party shall be extended for a period equal to the time lost during
the delay, or the Contact may be terminated in accordance with terms herein should such delay
be sufficient that termination is in the best interest of the Authority.
21. SEVERABILITY and WAIVER: If any part of this Contract is held to be invalid,
illegal; or unenforceable in any respect,such determination shall not affect any other provision of
this Contract, and this Contract shall then be construed as if the invalid, illegal, or unenforceable
provision had not been included in this Contract. Further, the failure of either Party in any one or
more instances to insist upon strict performance of any of the terms and provisions of this Contract
or to exercise any option herein conferred shall not be construed as a waiver or relinquishment to
any extent of the right to assert or rely upon any such terms,provisions or options on any future
occasion.
22. GOVERNING LAW: This Contract shall be governed by and construed in
accordance with the laws of the State of Texas. The Parties agree that venue of all claims and
lawsuits arising out of this Contract shall lie in Nueces County,Texas.
23.OPEN RECORDS: The Authority is a governmental body subject to the requirements
of the Texas Public Information Act (Texas Government Code, chapter 552), and as such the
Authority is required to disclose to the public (upon request) this Contract and certain other
information and documents relating to the,consummation of the transactions contemplated hereby.
In this regard,the Engineer agrees that the disclosure of this Contract or any other information or
materials related to the consummation of the transactions contemplated hereby to the public by the
Authority as required by the Texas Public Information Act or any other applicable law will not
expose the Authority(or any party acting by,through or under the Authority)to any claim,liability
or action by the Engineer.
24.NO ORGANIZATIONAL CONFLICT OF INTEREST: Engineer hereby certifies
that it has no actual or potential Organizational Conflict of Interest, "Organizational Conflict of
Interest"means that because of other activities or relationships with other persons or entities, the
Engineer is unable or potentially unable to render impartial assistance or advice to Authority or
the Engineer's objectivity in performing the services under this Contract is or might otherwise be •
impaired. Engineer agrees to immediately notify Authority of any actual or potential
Organizational Conflict of Interest that develops during the term of this Contract. Engineer agrees
that Authority may terminate this Contract immediately if it becomes aware of any Organizational
Conflict of Interest during the term of the Contract:
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Pfessional Engineering Services Contract Form—September 2016 �/
25. DEFAMATION: The Parties covenant and agree that in no event, and at no time
during the Tenn or at any time thereafter,shall either of them disparage,denigrate,slander, libel
or otherwise defame the other or the other's businesses, services, properties or assets, or
employees,personnel, agents,or representatives.
26.HEADINGS: All Section headings or other titles used in this Contract are used solely
for convenience and shall not affect or be used in connection with the interpretation or construction
of this Contract.
27. ENTIRETY 01' CONTRACT: This writing embodies the entire Contract and
understanding between the Parties hereto, and there are no other contracts or understandings,oral
or written, between them with reference to the subject matter hereof that are not merged herein
and superseded hereby. No alteration, change,or modification of the terms of this Contract shall
be valid unless made in writing and signed by both Parties hereto.
[Signature page follows this page]
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Profeseionat Engineering Services Contract Form—September 2016
IN WITNESS WHEREOF,this Contract is made effective as of the Effective Date.
PORT OF CORPUS CHRISTI AUTHORITY OF
NUEC COeti TEXAS
By: (LL .Cs tcr
ame: john P.L: ' 1-
Title: Executive Direc r
Date: lb'�'J
"Authority"
AMEC FOSTER WHEELER ENVIRONMENT
&INFRASTRUCTURE,INC:
BY: ..1lti / e
Name: David R.Boffin:LSE.
Title: Vice President 4111
Date: O Al
"Engineer"
302886 ' 9
Professional Engineering Services Contract Form-September 2016
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EXHIBIT A
SERVICES
The Engineer will perform the following services in accordance with the terms and
conditions sat forth in this Contract:
Scope of Work:
Task 1: Kick-off Teleconference
A kick-off teleconference will be held within one week after award.Primary team members from
Engineer will participate.The goal will be to fully understand project expectations,obtain points
of contact within M&G Chemicals, plan the site visits, and finalize what is expected to be a
compressed schedule.
Task 2: Document Review
Engineer will prepare a list of requested documents for review including a MI set of permits,
process flow diagrams, process and information diagrams, operations manuals and as-built
drawings. T his review will occur at the facility and include interviews with appropriate personnel.
Prom this set of documents,Engineer will assess the system and identify any data gaps or issues
of potential concern.
Task 3: Facility Inspection
Concurrent with the document review,Engineer will tour the site.The goals will be to assess:
• Aquatic—Is high quality sea water at the intake sustainable or is the water supply subject
to varying water quality that will negatively affect system performance in the future?
• Pre-Treatment—Are the pre-treatment processes adequate to treat intake water?
• • Filtration—Will the filtration system operate with a high degree of reliability?
• Discharge—Will discharge water mix adequately in a manner that will protect local marine
species?
• Mechanical/Electrical—Will the system function in a reliable manner?
• Civil—Is the plant constructed in a manner suchthatit will be a good longterm investment?
Tasks 2 and 3 timeframe will be limited to two days. Anticipated engineering disciplines will
include at a minimum:
• Process Engineer experienced in water filtration
• Civil
• Mechanical
Task 4:Report
At the completion of the documents review, interviews and site reconnaissance,Engineer will
provide the following:
• A summary phone call/email of the site observations within two days following the facility
visit.
• A draft report within 20 business days following the facility visit.
• A final report within 5 business days of receiving final comments from PCCA.
Task 5: Phase!Environmental Site Assessment
A Phase I ESA will be performed at the facility, which will be defined as the desalination plant
currently owned by M&G Chemicals. The M&G chemical plant will be considered part of the
surrounding area.The purpose of the Phase I ESA is to evaluate the presence or potential presence
of recognized environmental conditions(RECs)as a result of present or past activities on or in the
vicinity.The Phase I ESA will be conducted in accordance with the United States Environmental
Protection Agency's (tJSEPA) All Appropriate Inquiry (AAI) Rule and conforming to ASTM
International,Inc. (ASTM)E1527-13.The following scope of work has been prepared so that the
completed Phase I ESA meets the requirements of the EPA AAI Rule and ASTM Standard E 1527-
13.
Historical Documentation:A review of historical documentation will be performed for the facility
and surrounding areas to evaluate for potential RECs.The review will include aerial photographs,
historical maps, city directories, available building/water permits, and previous environmental
reports. Engineer understands this was a greenfield development,but intends to review property
uses back to 1950, or to first developed use as is reasonably ascertainable.
Interviews: Engineer will attempt to interview individuals that are likely to have material
information regarding the potential for contamination. ASTM E1527-13 requires that the User
provide contact information for such individuals. As such, Engineer will be requesting contact
information for key facility individuals, as available, including.past and present owners and
operators who have material information regarding the potential for contamination.
Environmental Records: A review of selected local, State, and Federal environmental regulatory
agencies will be conducted for records, lists, or other readily available sources of information
through a vendor.This review will be conducted to determine if the facility or nearby properties
are listed as having aknown environmental issue,are under investigation,or are regulated by State
of Federal environmental regulatory agencies. Engineer will list regulated facilities within radii
specified by ASTM E 1537-13.
User Provided Information: In order to complete the Phase I ESA according to the USEPA AM
Rule and ASTM E 1527-13,Engineer will request from the User the following information for the
facility:
• Identification of environmental liens.
• Consideration of purchase price vs.fair market value.
• Consideration of specialized knowledge.
• Specialized knowledge that Users may have regarding the facility or operations must be
considered by the Users. This would include inherent information that the Users might
have because of the type of work performed for which the Users may be familiar.
• Consideration of commonly known information.Commonly known information about the
facility must be considered by both Users and Engineer. Commonly known information
could be identified through interviews,website information,newspaper articles,and other
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information commonly and publicly known about the facility.
Review of Published Literature: Engineer will review available literature on the soils, geology,
and hydrogeology in the facility vicinity.
Phase I ESA Narrative Report: A Phase I ESA report will be prepared for the facility and will •
include vicinity and Property-specific maps, discussion,findings, opinion, and conclusions. Each
report will also include a statement that AM was performed in conformance with the standards
and practices set forth in 40 CFR Part 312 and will reach conclusions required by ASTM B 1527-
13.
Deliverables:
• .Draft and final Desalination Plant Due Diligence Report in PDF.
• Draft and final Phase I Environmental Site Assessment Report in PDF.
Schedule: The schedule is as defined above in each task.
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EXHIBIT B
FEE SCHEDULE
The Engineer will perform the Services described in Exhibit A in accordance with the terms
and conditions of this Contract on an hourly fee basis; provided, however, that the total fee for
services rendered under this Agreement will not to exceed $45,000, without Authority's written
approval. Services provided by Engineer will be billed at the hourly rates specified in Exhibit B.
These fees will cover all of Engineer's overhead costs, including but not limited to, office rent,
long distance telephone charges,postage,payroll and copying charges.
Kick-off Meer _ 12 $2 600
2 Document Review 54 $11,300
3 Facitit I ction 50 $9,000
4 Report 101 $17,800
5 Phase ESA 32 _. $4 00_
Total 249 $45 000
The Authority agrees to reimburse the Engineer for certain authorized and approved travel
expenses incurred by the Engineer during the Term and directly resulting from the Engineer's
performance of the Services under this Contract. Reimbursement for lodging and meals may not
exceed the maximum allowable per diem rates for domestic or foreign travel as set by the U.S.
Department of Defense, Defense Travel Management Office. Lodging and meal per diem rates li
for specific locations (foreign and domestic) may be found at:
http://www.defensetravel.dod.milisite/perdiemCalc.cfml. Authority will also reimburse the
Engineer for document production costs and other direct costs (collectively, "Direct Costs")
incurred by the Engineer in performing the Services. The Engineer shall submit proper
documentation of any such approved travel expenses and Direct Costs to Authority from time to
time, and such costs and expenses shall be billed to Authority at Engineer's actual cost. !i
Not later than the twentieth (20th) day of each calendar month, Engineer shall submit to
Authority detailed invoices for all services performed and Direct Costs incurred,if any,pursuant
to this Agreement during the prior calendar month. The invoices shall describe in detail the
Services performed during the prior month and shall list the days and hours worked, the hourly
rates charged,pre-approved Direct Costs,milestone achievements,tasks performed or completed,
and the Services performed during each day of the prior month. Authority shall review the invoices
and notify Engineer in writing(including email)within twenty(20)days of any disputed amounts.
Should this Contract be terminated for any reason,the Engineer will be paid all fees earned
up to the termination date and any approved direct expenses incurred.
The fees listed on Exhibit B will remain in effect throughout the duration of this contract.
RATE SCHEDULE
PROFESSIONAL SERVICES
CLASSIFICATION RATE/HOUR
Principal $220
Senior Associate $210
Associate $191
Senior2 $174
Seniorl $156
Technical Professional 3 $128
Technical Professional 2 $115
TechnicalProfessional 1 $110
TECHNICIAN SERVICES
CLASSIFICATION RATE/HOUR
Technician6 $105
Technician 5 $92
Technician $87.
Technician 3 $75
Technician 2 $69
Technician 1 $59
ADMINISTRATIVE SERVICES
CLASSHHCATION RATE/HOUR
Administrative Level 6 $92
Administrative Level 5 $87
Administrative Levet4 $82
Administrative Level 3 $69
Administrative Level 2 $64
Administrative Level I $59
OTHER DIRECT EXPENSES
Travel Expenses:Transportation(mileage,air travel,car rental,etc.),lodging,meals,&incidental expenses Cost
Subcontract-Expenses: Supplies or services furnished to Amec Poster Wheeler in support of project activities Cost plus 5%
by any supplier or firm,except temporary agency or consultant staff charged at above hourly rates
Direct Expenses:Other expenses in support of project activities Cost Plus 5%
Unit Pricing: Any unit pricing work,such as laboratory analysis,in-house equipment rental,etc.will be
quoted separately
EXHIBIT C
INSURANCE
Without limiting the indemnity obligations or liabilities of Engineer or its insurers, provided
herein, Engineer agrees to carry and maintain at its sole expense policies of insurance ("the
Policies")of the types and in the minimum amounts as follows:
TYPE OF INSURANCE LIMITS OF LIABILITY
A. Workers'Compensation Statutory
B. Employer's Liability $500,000 per Occurrence
$500,000 Aggregate
C. Commercial General Liability . $1,000,000 per Occurrence
$2,000,000 Aggregate
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The CGL Policy will provide contractual liability coverage at the aforementioned
limits.
D. Business Automobile Liability $500,000 per Occurrence
Automobile liability insurance coverage will include all owned, non-owned; and
hired vehicles.
E. Professional Liability $1,000,000
Engineer will procure and maintain professional liability insurance for protection
from claims arising out of performance of its Services under this Contract caused
by any error, omission, or act for which the Engineer is legally liable. Policies
written on a claims-made basis shall have an extended reporting period of at least
two (2)years beyond termination of the Contract.
Each policy, except Professional Liability,must contain an endorsement to the effect that
the issuer waives any claim or right of subrogation to recover against the Authority, its Port
Commissioners,officers and employees("Authority Parties"). Additionally,the Authority Parties
shall be designated as an Additional Insured either by a blanket additional insured or a specific
endorsement on all policies, except for Worker's Compensation, Employer's Liability, and
Professional Liability. In the event that the work of Engineer's employees fall within the purview
of the United States Longshoremen's and Harbor Workers' Compensation Act, the Jones Act or
the Federal Employer's Liability Act, Engineer shall extend its insurance coverage to provide
insurance against the liabilities imposed under the applicable Act or Acts.
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d
Each policy, except Workers' Compensation and Professional Liability, must contain an
endorsement that the policy is primary to any other insurance available to the Additional Insureds
with respect to claims arising under this Contract.
The insurance required as listed above, shall apply to any contractor or subcontractor
performing for or on behalf of Engineer, and Engineer shall ensure that any such subcontractor is
aware of and is in compliance with the insurance requirements during any period such contractor
is performing work under this Contract.
The minimum insurance required may be increased periodically upon request by Authority
to commercially reasonable limits. The company writing each of the Policies must possess a
current rating with A.M.Best Company of at least°A-,VII".
Engineer's liability shall not be limited to the specified amounts of insurance required
herein.
EXHIBIT A
(2) Amendment No. 1 to Professional Services
Contract for Supplemental Services Project Name:
Regional Water Supply Desalination Project No. 17-
711A between Authority and Amec Foster Wheeler
Environmental & Infrastructure executed by Authority
on December 13, 2007
AMENDMENT NO. 1
TO
PROFESSIONAL ENGINEERING SERVICES CONTRACT
FOR SUPPLEMENTAL SERVICES
PROJECT NAME: REGIONAL WATER SUPPLY DESALINATION
PROJECT NO. 17-711A
This Amendment No. I to Professional Engineering Services Contract for Supplemental
Services (the"Amendment)is made effective as of December 12, 2017 ("Amendment Date"by
and between the Port of Corpus Christi Authority of Nueces County, Texas, a navigation district
operating under Article XVI,Section 59 of the Texas Constitution("Authority"),and Amen Foster
Wheeler Environment&Infrastructure, Inc. ('Engineer). Authority and Engineer are sometimes
individually referred to herein as a"Parry"and collectively as the "Parties':
WHEREAS, Authority and Engineer entered into a Professional Engineering Services
Contract effective as of October 2,2017, in connection with Due Diligence Work Associated with
M&G Desalination Plant/Facility(the"Agreement');and
WHEREAS,capitalized terms in this Amendment shall have the meanings given to them in
the Agreement, except as provided herein;and
WHEREAS, the Authority and Consultant have agreed to amend and supplement the
Agreement(i) to provide for additional Services under the Agreement, (ii) to specify the deadline
for performing the additional Services, and (iii)to specify the additional compensation payable to
Consultant under the Agreement for the additional Services;
NOW, THEREFORE, for a goad and valuable consideration, the Parties hereby agree as
follows:
A. Exhibit A of the Agreement is hereby amended by adding thereto the
additional services described Attachment A to this Amendment (the
"Supplemental Services).
B. The Consultant shall complete all the Supplemental Services on or before
February 23,2018,unless the Authority agrees to extend the deadline.
C. The Authority agrees to pay for Supplement Services on an hourly fee basis
in accordance with the terms of the Agreement,including the Fee Schedule
attached to the Agreement as Exhibit B; provided, however that the total
fee paid to the Engineer for the Supplemental Services shall not exceed
Forty Thousand Dollars ($40,000.00), without Authority's written
approval.
D. This Amendment shall be binding on the successors and assigns of the
Parties.
309911 Page 1 of3
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E. Except as specifically amended hereby, all terms and conditions of the
Agreement shall remain in full force and effect. In the event of any conflict
between the terms and conditions of this Amendment and the terms and
conditions of the Agreement,the terms and conditions of this Amendment
shall control.
F. This Amendment maybe executed in multiple counterparts, each of which
will be considered to be an original. Signature pages maybe detached from
the counterparts and attached to a single copy of this document to physically
form one document.The Parties may provide signatures to this Amendment
by facsimile or Adobe ".pdf' file and such facsimile or Adobe".pdf' file
signatures shall be deemed to be the same as original signatures.
[Signature page follows this page.]
309B34 Page 2 of 2
In Witness Whereof, each Party has caused this Amendment to be executed by its duly
authorized representative effective for all purposes as of the Amendment Date.
PORT OF CORPUS CHRISTI AUTHORITY
OF NUECES CO TY, TEXAS
By: < ;I' 1
John P. ;IIII
Executive Director
Date: 1Z l3/17
AMEC FOSTER WHEELER ENVIRONMENT&
INFRASTRUCTURE, INC..
By: je=2L‘27/7/
Name: David R.Hoffman,P
Title: Vice President
Date: /Z/Z/17
309911 Page 3 of 3
ATTACHMENT A
SUPPLEMENTAL SERVICE
The Engineer will perform the following services in accordance with the terms and conditions set forth
in the Contract and this Amendment to the Contract
Scope of Work
Develop a cost estimate that identifies:
• The cost to complete construction;
• The cost to construct a mirror image system adjacent to the current facility; and
• The cost to replace storage tank capacity currently present with the Resin plant.
The following scope of work will be implemented by the Engineer:
Task 1: Kick-off Teleconference
A kick-off teleconference will be held within one week after Effective Date of this Amendment.Primary
team members from Engineer will attend.The goal will be to fully understand project expectations and
schedule necessary for the project.
Task 2: Cost Estimate Preparation
Engineer will utilire multiple sources of information to develop cost estimates described above. Sources
will include costs from previous projects, contractor quotes, and MS Means and ASPEN databases.
Engineer will work with Authority and City Staff, as well as the Authority's consultant(s),as needed,in
the preparing a valuation for acquisition of the facility.
The deliverable will include a memorandum and support models describing the estimates, cost buildup,
and supporting documentation.
Task 3:Meetings and Site Visits
Engineer will attend meetings and plant tours as requested by Authority.
EXHIBIT A
(3) Consulting Services Contract between Authority
and Nova Infrastructure, LLC, effective December 6,
2017
CONSULTING SERVICES CONTRACT
THIS CONI ACT (the "Contract") is made and entered into effective as of the 6th
day of December,2017("Effective Date")by and between the Port of Corpus Christi Authority of
Nueces County,Texas("Authority"),andNovaInfrastructure,LLC("Consultant"),each a"Party"
and collectively as"Parties".
NOW THEREFORE, in consideration of the promises and mutual covenants contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged,the Parties hereby agree as follows:
1. CONTRACT: Authority hereby engages the Consultant and the Consultant hereby
accepts its engagement for the purpose of providing to Authority the consulting services
("Services") as are generally described in the"Scope of Services" set forth in Exhibit A to this
Contract which is incorporated herein by reference.
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��ryry�� 2. ERIOD OF SERVICE: The Consultant shall complete the Services on or before
�Y March 31, 208;1 (the "Deadline"), unless the Authority agrees to extend the Deadline for good
reason; provided, however, that the Authority may terminate this Contract at any time in
accordance with Section 14. Time is of the essence in performance of this Contract. There will
be no obligation established between Authority and the Consultant for performance of the Services
until Authority provides the Consultant execution of this Contract and receipt by the Authority of
appropriate Certificates of Insurance and other documentation as may be required herein. The
term of this Contract("Term')shall begin on the Effective Date and shall end on the first to occur
of the following: (1)the Deadline,as the same may have been extended by the Authority,(2)the
date on which,in the opinion of Authority,all of the Services have been rendered,(3)the date on
which this Contract is terminated by the Authority pursuant to Section 14,or(4)the date on which
this Contract is terminated by the Consultant pursuant to Section 14.
3. COORDINATION OF SERVICES BY AUTHORITY: Authority shall designate a
Project Representative who will, on behalf of Authority, coordinate with the Consultant and
administer this Contract. It shall be the responsibility of the Consultant to coordinate all
assignment-related activities with the Project Representative.
For the purposes of this Contract,the Project Representative shall be:
(Name) Sean Strawbridge(Deputy Executive Director&COO)
(Address)222 Power Street, Corpus Christi,TX 78401
(Phone No.) 361.885.6133
(Email) sstrawbridge@poccacom
Authority may change the Project Representative at any time by giving the Consultant
written notice of such change.
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PCCA Consulting Services Contact-Nova Infrastructure Execution Version
4. NOTICES: Notices, demands,requests or other formal communication related to the
Contract shall be deemed to have been given when received, whether delivered personally or
mailed. E-mail communications may be considered as formal notification provided the e-mail
• message states the message is intended as a formal notice and the receiving Party acknowledges
receipt of the message as a formal notification. Notices shall be addressed as follows:
If to the Authority: John P.LaRue
Executive Director
Port of Corpus Christi Authority
222 Power Street
Corpus Christi,Texas 78401
E-mail:john@pocca.com
• If to the Consultant: Christopher Beall-Nova Infrastructure,LLC
26 Mohawk Lane, Greenwich, CT 06878
917-940-4592
E-mail: cbeall@novainfrastmctute.com
Either Party may change the mailing or E-mail address for notifications by providing
written notice of such change to the other Party.
5. CIIANGES: This Contract may be changed or modified at the request of either the
Consultant or the Authority, provided both Parties agree to the requested change, and a written
amendment or modification of this Contract is prepared and executed by the Parties.
6. CONSULTANT'S RESPONSIBILITIES: In addition to all' other obligations .
contained herein,the Consultant agrees,warrants, and represents that:
6.1 The Consultant will furnish all material, equipment, labor and supplies in such
quantities and of the proper quality to professionally and timely perform the Services,
except as otherwise mutually agreed by the Parties;
6.2 The Consultant shall perform the Services with the professional skill and care
ordinarily provided by competent consultants practicing in the same or similar locality and
under the same or similar circumstances and professional license;
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6.3 The Consultant will comply with the provisions of all federal,state,and local laws,
regulations,ordinances,requirements and codes which are applicable to its performance of
Services;
6.4 The Consultant is not and will not be bound by any agreement and has not assumed
nor will assume any obligation which would,in any way,restrict its ability to perform the
Services or be inconsistent with the Services;
6,5 In performing the Services, the Consultant will not use any third party's
confidential or propriety information, or infringe the rights of another party, nor will the
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PCCA Consulting Services Contract-Nova Infrastructure Execution Version
Consultant disclose to the Authority, or bring onto the Authority's premises,or induce the
Authority to use any third party's confidential or proprietary information;
6.6 The Consultant does not have the authority to act for the Authority, bind the
Authority in any respect,or incur any debts or liabilities in the name of or on behalf of the
Authority, except as otherwise expressly authorized in writing by the Authority;
6.7 Consultant is an independent contractor for the performance of his duties under this
Contract. Accordingly, the Consultant shall be responsible for payment of all taxes
including federal, state and local taxes arising out of the Consultant's activities in
accordance with this Contract. Consultant is responsible for payment of the compensation,
including any withholding, Social Security, or other taxes on such compensation, of any
subcontractors retained by Consultant, or Consultant's employees performing Services
consistent with its status as an independent contractor and in compliance with all applicable
laws and regulations;
6.8 Consultant has and hereby retains full control of any supervision over the
Consultant's obligations hereunder and over any persons employed or subcontracted by the
Consultant for performing Services hereunder;
6.9 Consultant will in no way be considered an agent, partner, joint venturer, or
employee of Authority at any time during the Term. Consultant will not undertake to
commit Authority to any course of action in relation to a third party unless expressly
requested and authorized to do so by the Authority in writing.
6.10 As of the Effective Date and at all times while providing Services hereunder, the
Consultant shall possess and maintain in good standing any and all licenses or other
authorizations and approvals necessary to perform the Services.
7. COMPENSATION: The compensation to be paid Consultant for providing the
Services shall be the compensation described in Exhibit B hereto,which is incorporated herein by
reference;provided,however,the total paid to Consultant for the Services shall not exceed Forty-
Five Thousand Dollars ($45,000)plus approved reimbursable expenses. Consultant will obtain
the approval of Authority's Project Representative relative to incurring travel and other expenses
before incurring such costs.
8. INVOICE PROCEDURE AM) PAYMENT: Consultant shall submit invoices
monthly to the Authority for work performed during the preceding calendar month. Such invoices
shall be due and payable by Authority on or before thirty (30) days from receipt by Authority.
Monthly compensation will be for the Services actually performed during the billing period,
invoiced in accordance with the Fee Schedule included in Exhibit B. Invoices shall also describe
any work performed by subcontractors retained by Consultant and reimbursable costs. Consultant
will provide sufficient detail with each invoice to substantiate the requested amount of monthly
payment. At the Authority's request, Consultant will provide additional backup such as signed
time sheets, invoices for materials and subcontracted service or other documentation sufficient to
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PCCA Consulting Services Contract-Nova Infrastructure Execution Version
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establish the accuracy of the invoices. Invoices are to be submitted in a format previously
approved by Authority.
9. INSURANCE: Consultant shall procure and maintain at its sole expense, for as
long as Consultant is obligated to provide Services under this Contract, the policies of
insurance described in Exhibit C attached hereto and in at least the minimum amounts
specified in Exhibit C to protect Consultant from claims which may arise out of or result from
Consultant's Services pursuant to this Contract,whether such operations be by Consultant,by
any subcontractor of Consultant,by anyone directly or indirectly employed by Consultant or
Consultant's subcontractor, or by anyone for whose acts Consultant or Consultant's
subcontractor may be liable. At least five(5)days prior to execution of this Contract,Consultant
will provide to Authority's Risk Program Manager certificates of insurance issued by each
insurance company providing any of the required insurance coverage,and the text entered in each
certificate must be acceptable to Authority. The requirement to provide acceptable certificates of
insurance is a material condition of this Contract,and work under this Contract will not commence
until certificates of insurance have been received, reviewed, and accepted by Authority. The
minimum limits of liability and coverage for the insurance required are set forth in Exhibit C
attached hereto,which is incorporated herein by reference.
10. INDEMNIFICATION AND RELEASE. Consultant hereby releases and
discharges Authority and its agents, servants,representatives, employees, officers, directors, and
Port Commissioners(collectively,the"Authority Parties")from liability for and assumes the risk
of loss or damage to the property of Consultant and the injury or death of any person employed by
Consultant. Consultant shall defend,indemnify and hold harmless the Authority Parties from and
against all damages, losses, costs and expenses, of any nature whatsoever, whether incurred as a
judgment,settlement,penalty,fine or otherwise(including reasonable attorneys'fees and the cost
of defense), in connection with any action, proceeding, demand or claim but only to the extent
caused by the negligent acts, errors, or omissions of the Consultant, its employees, agents, or
subconsultants,or others for whom the Consultant is legally liable,in the performance of Services
under this Contract. The Consultant is not obligated under this paragraph to indemnify the
Authority Parties for the negligent acts of the Authority Parties.
Consultant's indemnity obligations under this Section 10 shall not be limited by a limitation
on the amount or type of damages,compensation or benefits owed by Consultant to any employee
of Consultant under workers' or workmen's compensation acts, disability benefit acts, or other
employee benefit acts. The obligations of the Consultant under this Section 10 shall survive the
end of the Term of the Contract.
11. LIMITATION OF LIABILITY: Except as otherwise expressly provided herein,
neither Party shall be liable or responsible to the other Party for any indirect, incidental or
consequential loss or damage of any nature whatsoever (including, but not limited to, contract
negligence or tort liability) of the other Party, including without limitation, any actual or
anticipated profits,loss of time,inconvenience,commercial loss or any other damages,even if the
Party has advance notice of the possibility of such damages.
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PCCA Consulting Services Contract-Nova Infrastructure Execution Version
12. DISCLOSURE OF INTERESTED PARTITES: Consultant will comply with the
provisions of Section 2252.908 of the Texas Government Code and Chapter 46 of the Texas Ethics
Commission Rules by preparing a Texas Form 1295, "Certificate of Interested Parties" and
submitting the signed and notarized form to Authority at the time Consultant submits the signed
•
contract to Authority, This provision will only apply to contracts approved by the Port of Corpus
Christi Authority Port Commission.
13.ASSIGNMENT: Neither Authority nor Consultant will assign or transfer its interest
in this Contract without the written consent of the other.
14. SUSPENSION OR TERMINATION: Authority may suspend or terminate this
Contract for convenience with seven (7) days prior written notice to Consultant of such action.
Upon termination of this Contract in accordance with this paragraph,Authority will have no further
obligation to the Consultant hereunder except to pay the Consultant unpaid fees and expenses
which the Consultant can reasonably show to have been earned under this Contract. Under no
circumstances may Consultant claim or recover consequential damages from Authority.
In the event of suspension of Services,the Consultant shall resume the full performance of
the Services when directed in writing to do so by Authority. Suspension of the Services for reasons
other than the Consultant's negligence or failure to perform shall not affect the Consultant's
compensation as provided for in this Contract. The schedule for performance of the Services shall
be amended by a mutually agreed,written modification to this Contract to reflect the suspension.
Either Party may terminate this Contact by giving written notice to the other Party if the
other Party (`Defaulting Party"): (a)materially breaches any term,condition or provision of this
Contract and fails to cure the breach to the satisfaction of the notifying Party within ten(10)days
after the Defaulting Party receives a written notice of the breach from the notifying Party, or(b)
becomes the subject of any proceedings under state or federal law for the relief of debtors or
otherwise becomes insolvent,or bankrupt,or makes any assignments for the benefit of one or more
creditors.
15.DISPUTES: Each Party agrees that any dispute between the Parties relating to this
Contract will first be submitted in writing to a panel of two senior executives of the Authority and
Consultant,who shall promptly meet and confer in an effort to resolve such dispute through good
faith consultation and negotiation. Each Party's executive shall be identified by notice to the other
Party,and may be changed at any time thereafter also by notice to the other. Any decisions of the
executives will be final and binding on the Parties. In the event the executives are unable to resolve
any dispute within thirty (30) days after submission to them, either Party may then refer such
dispute to mediation.
If the Parties refer to mediation any controversy or claim arising out of or relating to this
Contract or the existence,validity,breach or termination thereof,whether during or after its term,
they shall select a mutually acceptable mediator within forty-five (45) days thereafter. Neither
Party shall unreasonably withhold consent to the selection of a mediator. The Parties shall share
equally the costs of mediation. If the Parties agree,they may substitute other forms of alternative
dispute resolution. Any mediation shall not extend beyond thirty(30) days after the appointment
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PCCA Consulting Services Contract-Nava Infrastructure Execution Version
of the mediator,and should the Parties fail to resolve any dispute by mediation within such 30-day
period,the Parties shall have all rights available at law or in equity.
16. ATTORNEY'S FEES, DEFAULT: In the event Consultant or Authority breach
any of the terms of this Contract and the Partynot in default employs attorneys to protect or enforce
its rights hereunder and prevails,then the defaulting Party agrees to pay reasonable attorney's fees
and costs incurred by the prevailing Party.
17. STAFFING: Consultant will designate in writing to Authority its project
representative, and the manner in which it will provide staff support for the project which must
be approved by Authority. Consultant must notify Authority's Project Representative of any
change in personnel assigned to perform work under this Contract, and the Authority's Project
Representative has the right to reject the person or persons assigned to fill the position or positions.
The Authority's Project Representative shall also have the right to require the removal of the
Consultant's previously assigned personnel, including Consultant's project representative,
provided sufficient cause for such removal exists. The criteria for requesting removal of an
individual will be based on,but not limited to,the following: technical incompetence,inability to
meet the position's qualifications, failure to perform, poor attendance, ethics violation, unsafe
work habits, or damage to Authority or other property. Upon notice for removal,Consultant shall
replace such personnel with personnel substantially equal in ability and qualifications for the
positions and shall submit the proposed replacement personnel qualification and abilities to the
Authority,in writing,for approval.
18. OWNERSHIP OF WORK PRODUCT: Studies,plans,reports, surveys, drawings,
specifications, computations and other information(collectively"Work Product")and documents
prepared by the Consultant subconsultants, and/or suppliers under this Contract will remain the
Authority's property upon completion. This provision does not apply to pre-existing proprietary
information of Consultant,subconsultants,and/or suppliers.
19.CONFIDENTIAL INFORMATION: It is understood that information developed by
or communicated to Consultant in the performance of this Contract, as well as any and all
information in whatever form or medium supplied to Consultant in connection herewith which is
not generally available to the public is proprietary to the Authority and constitutes confidential
information of the Authority. Consultant will make no oral or written disclosure of such
information to third parties either during or after the term of this Contract except as approved in
writing by the Authority's Project Representative or as otherwise required by law. In the event
the Consultant becomes aware that confidential information must be disclosed under a legal
requirement,Consultant will notify Authority of the requirement and the affected information.
20.FORCE MAJEURE: Neither Party shall be considered in default in the performance
of its obligations hereunder to the extent that the performance of such obligation is delayed by any
cause beyond the reasonable control of the affected Party. In the event of such a delay,the time
for performance for the affected Party shall be extended for a period equal to the time lost during
the delay, or the Contract may be terminated in accordance with terms herein should such delay
be sufficient that termination is in the best interest of the Authority.
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21. SEVERABILITY and WAIVER: If any part of this Contract is held to be invalid,
illegal, or unenforceable in any respect, such determination shall not affect any other provision of
this Contract,and this Contact shall then be construed as if the invalid,illegal, or unenforceable
provision had not been included in this Contract. Further,the failure of either Party in any one or
more instances to insist upon strict performance of any of the terms and provisions of this Contract
or to exercise any option herein conferred shall not be construed as a waiver or relinquishment to
any extent of the right to assert or rely upon any such terms,provisions or options on any future
occasion.
22. GOVERNING LAW: This Contract shall be governed by and construed in
accordance with the laws of the State of Texas. The Parties agree that venue of all claims and
lawsuits arising out of this Contract shall lie in Nueces County,Texas.
23.OPEN RECORDS: The Authority is a governmental body subject to the requirements
of the Texas Public Information Act (Texas Government Code, chapter 552), and as such the
Authority is required to disclose to the public (upon request) this Contract and certain other
information and documents relating to the consummation of the transactions contemplated hereby.
In this regard,the Consultant agrees that the disclosure of this Contract or any other information
or materials related to the consummation of the transactions contemplated hereby to the public by
the Authority as required by the Texas Public Information Act or any other applicable law will not
expose the Authority(or any party acting by,through or under the Authority)to any claim,liability
or action by the Consultant.
24. NO ORGANIZATIONAL CONFLICT OF INTEREST: Consultant hereby
certifies that it has no actual or potential Organizational Conflict of Interest. "Organizational
Conflict of Interest"means that because of other activities or relationships with other persons or
entities,the Consultant is unable or potentially unable to render impartial assistance or advice to
Authority or the Consultant's objectivity in performing the services under this Contract is or might
otherwise be impaired. Consultant agrees to immediately notify Authority of any actual or
potential Organizational Conflict of Interest that develops during the term of this Contact.
Consultant agrees that Authority may terminate this Contract immediately if it becomes aware of
any Organizational Conflict of Interest during the term of the Contract.
25. DEFAMATION: The Parties covenant and agree that in no event, and at no time
during the Term or at any time thereafter,shall either of them disparage,denigrate, slander, libel
or otherwise defame the other or the other's businesses, services, properties or assets, or
employees,personnel,agents,or representatives.
26.HEADINGS: All Section headings or other tides used in this Contract are used solely
for convenience and shall not affect or be used in connection with the interpretation or construction
of tbis Contract
27. ENTIRETY OF CONTRACT: This writing embodies the entire Contract and
understanding between the Parties hereto, and there are no other contracts or understandings, oral
or written, between them with reference to the subject matter hereof that are not merged herein
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PCCA Consulting Services Contract-Nova Infrastructure Execution Version
and superseded hereby. No alteration, change, or modification of the terms of this Contract shall
be valid unless made in writing and signed by both Parties hereto.
[Signature page follows this page]
IN WITNESS WHEREOF,this Contact is made effective as of the Effective Date.
PORT OF CORP C I' . it AUTHORITY OF
NUECES COUN ' %
By: A APULIA!
Name: J' , , . IS' -
Title: ecutive Director
Date: iz/lgI f7 .
"Authority"
NOVA IlVFRASTRUCTUItE LLC
By:
Name: htis Beall
Title: Maria Partner
Date: /2 l8 /
"Consultant"
•
•
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PCCA Consulting Services Contract-Nova Infrastructure Execution Version
EXHIBIT A
SCOPE OF SERVICES
The Consultant will perform the following services in accordance with the terms and
conditions set forth in this Contract:
• Tactical and strategic support towards acquiring M&G Water USA
— Potential debt purchase
— Auction participation/strategy
• Evaluation of auction procedures
• Preparation/evaluation of financial projections and valuation analysis
— Discounted cash flow analysis
— Comparable transaction analysis
— Comparable company analysis
— Dividend discount model
— Credit analysis
— Capital structure analysis
• Financing support for the transaction
• Preparation of committee/commission materials supporting the valuation
• Interact with legal and other advisors to form the acquisition plan
EDIT B
FEE SCHEDULE
The Consultant will receive fees structured as follows:
• Retainer of$15,000 per month: valid for three consecutive months, commencing upon
execution of the Contract,with renewal option available at the discretion of the Authority
• Travel and business expenses up to$4,999 with approval of the Authority
• At a later date,staff may present to the Port Commission an amendment to this Agreement
for payment of a"success fee"which is yet to be defined.
The Consultant will perform the Services described in Exhibit A in accordance with the .
terms and conditions of this Contract on a fixed rate fee basis; provided, however, that the total
fee for services rendered under this Contract will not to exceed $49,999, without Authority's
written approval. Services provided by Consultant will be billed as specified in Exhibit B. These
fees will cover all of Consultant's overhead costs, including but not limited to, office rent, long
distance telephone charges,postage,payroll and copying charges.
The Authority agrees to reimburse the Consultant for certain authorized and approved
travel expenses incurred by the Consultant during the Term and directly resulting from the
Consultant's performance of the Services under this Contract. Reimbursement for lodging and
meals may not exceed the maximum allowable per diem rates for domestic or foreign travel as set
by the U.S. Department of Defense,Defense Travel Management Office. Lodging and meal per
diem rates for specific locations (foreign and domestic) may be found at:
http://www.defensetravel.dod.mil/site/perdiemCalc.cfm. Authority will also reimburse the
Consultant for Direct Costs incurred by the Consultant in performing the Services. The Consultant
shall submit proper documentation of any such approved travel expenses and Direct Costs to
Authority from time to time, and such costs and expenses shall be billed to Authority at
Consultant's actual cost.
Not later than the twentieth(20th)day of each calendar month, Consultant shall submit to
Authority detailed invoices for all services performed and Direct Costs incurred,if any,pursuant
to this Agreement during the prior calendar month. The invoices shall describe in detail the
Services performed during the prior month and shall list the days and hours worked, approved
Direct Costs,milestone achievements,tasks performed or completed,and the Services performed
during each day of the prior month. Authority shall review the invoices and notify Consultant in
writing(including email)within twenty(20)days of any disputed amounts.
Should this Contract be terminated for any reason, the Consultant will be paid all fees
earned up to the termination date and any approved direct expenses incurred.
EXHIBIT C
INSURANCE
Without limiting the indemnity obligations or liabilities of Consultant or its insurers,
provided herein, Consultant agrees to carry and maintain at its sole expense policies of insurance
("the Policies")of the types and in the minimum amounts as follows:
TYPE OF INSURANCE LIMITS OF'.LABILITY
A. Workers' Compensation Statutory
B. Employer's Liability $500,000 per Occurrence
$500,000 Aggregate
C. Commercial General Liability $1,000,000 per Occurrence
$2,000,000 Aggregate
The CGL Policy will provide contractual liability coverage at the aforementioned '.
limits.
D. Business Automobile Liability $500,000 per Occurrence
Automobile liability insurance coverage will include all owned, non-owned, and
hired vehicles.
E. Professional Liability $1,000,000
Consultant will procure and maintain professional liability insurance for protection
from claims arising out of performance of its Services under this Contract caused
by any error, omission, or act for which the Consultant is legally liable. Policies
written on a claims-made basis shall have an extended reporting period of at least
two (2)years beyond termination of the Contract.
Each policy, except Professional Liability,must contain an endorsement to the effect that
the issuer waives any claim or right of subrogation to recover against the Authority, its Port
Commissioners,officers and employees("Authority Parties"). Additionally,the Authority Parties
shall be designated as an Additional Insured either by a blanket additional insured or a specific
endorsement on all policies, except for Worker's Compensation, Employer's Liability, and
ProfessionalLiability. In the event that the work of Consultant's employees fall within the purview
of the United States Longshoremen's and Harbor Workers' Compensation Act,the Jones Act or
the Federal Employer's Liability Act, Consultant shall extend its insurance coverage to provide
insurance against the liabilities imposed under the applicable Act or Acts.
Each policy, except Workers' Compensation and Professional Liability, must contain an
endorsement that the policy is primary to any other insurance available to the Additional Insureds
with respect to claims arising under this Contract.
The insurance required as listed above, shall apply to any contractor or subcontractor
performing for or on behalf of Consultant,and Consultant shall ensure that any such subcontractor
is aware of and is in compliance with the insurance requirements during any period such contractor
is performing work under this Contract.
The minimum insurance required maybe increased periodically upon request by Authority
to commercially reasonable limits. The company writing each of the Policies must possess a
current rating with A.M.Best Company of at least"A-,VII".
Consultant's liability shall not be limited to the specified amounts of insurance required
herein.