'3t<% 00,000 I- COMMONWEALTH OF PUERTO RICO PUERTO RICO ELECTRIC POWER AUTHORITY JLOH- PQOOW PROFESSIONAL SERVICES AGREEMENT
APPEAR
AS FIRST PARTY: The Puerto Rico Electric Power Authority, hereinafter referred to as "PREPA", a public corporation and government instrumentality of the Commonweaith of Puerto Rico, created by Act 83 of May 2,1941, as amended, represented in this act by its Executive Director, Juan Francisco Alicea Flores, of legal age, married, and resident of Caguas, Puerto Rico.
AS SECOND PARTY: Alpha Engineering Group, PSC, hereinafter referred to as "the Consultant", a professional services corporation organized and existing under the laws of Puerto Rico, with its principal office in San Juan, Puerto Rico, represented by its Partners, Manuel Ledo Roman, of legal age, married, and resident of Trujiiio Aito, Puerto Rico, and Gonzalo Gonzalez Roman, of legal age, married, and resident of San Juan, Puerto Rico, by virtue of Certificate of Resolution dated as of May 20th, 2014.
Both PREPA and Consultant are herein individually referred to as "Party" and collectively referred to as "Parties".
RECITALS
WHEREAS, PREPA engage with Aguirre Offshore GasPort LLC to procure or provide to PREPA services consisting of the permitting, procurement, construction, management, testing and commissioning of the Facilities (whether directly or through Subcontractors) and may engage with other companies to complete projects that guarantee the conversion of Aguirre Power Complex (Aguirre) units to natural gas.
WHEREAS, PREPA desires to engage the Consultant, together with its partner and subcontractor Worley Parsons Group, Inc. or its subsidiary, to procure or provide to PREPA services consisting of the management and technical consulting services including those related to the engineering and construction of associated facilities under the Infrastructure Agreement or other agreements related to unit conversion to natural gas of Aguirre.
WHEREAS, Consultant represents that it has the professional experience, expertise and appropriate licensed staff, infrastructure and backup assistance to provide the Services Professional Services Agreement - Alpha Engineering Group, PSC Page 2
that may be required and further represents that it is ready, willing, and able to perform the professional services required by PREPA;
WHEREAS, PREPA and the Consultant desire to enter into this Agreement and undertake their respective rights and obligations as provided herein in connection with the completion of the Services described in it.
THEREFORE, in consideration of the mutual covenants hereinafter stated, the appearing Parties agree to enter into this Professional Services Agreement (the Agreement) according to the following:
TERMS AND CONDITIONS
ARTICLE 1. DEFINITIONS:
Whenever the words defined in this article or pronouns used instead are mentioned in this ]0y Agreement, they shall have the meanings here given:
"Agreement" - shall have the meaning set forth in appearance. "Agreement Term"-shall have the meaning set forth in Article 10. "Agreement Price" - shall have the meaning set forth in Article 5.4. "Business day" - shall have the meaning set forth in Exhibit 1. Alpha Engineering Group, PSC refers to "the Consultant", shall have the meaning set forth in appearance. 1.6 "Consultant Intellectual Property" means any intellectual property owned by Consultant and developed independently from this Agreement. 1.7 "Contracting Officer - Shall mean the Executive Director of PREPA, acting directly or through his properly authorized representatives. 1.8 "Day" - shall mean each and every 24 hours period as shown on a calendar, beginning and ending at midnight. 1.9 "Designated Senior Officers" - shall mean for the Consultant, the Partners, and for PREPA, the Contracting Officer. 1.10 "Engineer" - shall mean the PREP As Planning and Environmental Director, acting directly or through his properly authorized representatives. 1.11 "Facilities" - shall mean the offshore LNG receiving facility (to include liquid and vapor loading arms, high pressure gas arms and other appurtenant infrastructure on the marine jetty up to the flange of the Pipeline) that is to be constructed approximately three (3) miles south of Aguirre Power Complex outside of Jobos Bay and the offshore pipeline to receive regasified LNG from the connecting flange located on the LNG receiving facility, and transport it along the sea floor to Aguirre Professional Services Agreement - Alpha Engineering Group, PSC Page 3
and the onshore distribution pipeline system with the related equipment up to the natural gas meter. 1.12 "Force Majeure" - shall have the meaning set forth in Article 11. 1.13 "Professional Services" - shall have the meaning set forth in Article 2. 1.14 "PREPA" - shall have the meaning set forth in appearance. 1.15 "Sub-consultant" - shall mean a party that has an agreement to provide Professional Services to the Consultant. 1.16 "Third Party Intellectual Property" means any intellectual property owned by parties other than PREPA and the Consultant. 1.17 "Work Product" means every invention, discovery, work of authorship, trade secret or other tangible or intangible item and all intellectual property rights therein, and all copies of plans, specifications, design documents, electronic data, drawings, reports, methods, calculations, assumptions, and other materials and technical documentation that Consultant is required to deliver to PREPA under this Agreement, whether completed, partially completed or in draft form.
ARTICLE 2. SCOPE OF SERVICES
The Consultant shall furnish the necessary labor, supervision, materials, tools and equipment to perform the Professional Services. The Professional Services shall include engineering, technical assessment, environmental consulting, project management, program management, and any related services, during projects planning and development, design, procurement, construction, start-up, closure and operation phases. The Consultant shall perform ail pertinent and previously identified as available services upon request by PREPA. The Consultant shall provide the Professional Services for every project based on a detailed budgetary proposal (Task Order). Task Orders shall be approved by PREPA, before commencement of every project. 2.2 Consultant shall obtain and maintain the licenses and authorizations required to perform the Professional Services under this Agreement, except if described as PREPA's responsibilities. 2.3 PREPA's responsibilities a. PREPA will provide to Consultant's personnel access to Aguirre. b. PREPA will provide all available information related to the projects. Consultant will reasonably rely upon the accuracy, timeliness and completeness of the information. c. PREPA shall exercise good faith efforts during the term of this Agreement to cooperate fully with Consultant to support timely completion of the projects. 2.4 In accordance with the terms and conditions set forth herein, the Consultant shall furnish engineering, studies, technical assessment, technical specifications and Professional Services Agreement - Alpha Engineering Group, PSC Page 4
drawings, documents, supervision, tools, necessary equipment, and work required to perform the Professional Services. 2.5 For the Professional Services, PREPA shall compensate Consultant the total amount to be paid to the Consultant in accordance with the terms and conditions contained herein. The amount of compensation may be adjustable for change orders or pursuant to any applicable provision of this Agreement. It is understood by the Parties that any and all disbursements made to date to the Consultant are included and shall be deducted from the payment to complete the Professional Services. 2.6 Confidentiality terms and conditions included in the Non-Disclosure Agreement executed by the Consultant and PREPA on April 15, 2014 appiies to this Agreement (Exhibit 2).
^fMfa ARTICLE 3. RELATIONSHIP OF THE PARTIES
The Parties intend that an independent consultant-client relationship will be created by this Agreement. Consultant will be solely and entirely responsible for its acts and for the acts of Consultant's agents, employees, representatives, and sub-consultants during the performance of this Agreement. The Parties to this Agreement agree to reasonably cooperate to fulfill their respective obligations under this Agreement and shall endeavor to maintain good working relationships with the other members of the project team. 3.3 PREPA will advise Consultant of any developments of which PREPA becomes aware and which PREPA considers may have a material effect with respect to the information and/or facts provided to Consultant. 3.4 The Consultant shall designate one principal or an authorized representative to represent the firm in all communications and at all meetings with PREPA's Representative and the contractors. The Consultant's Representative shall not be changed without the prior written consent of PREPA. Reasonable consent shall be given by PREPA.
ARTICLE 4. CONSULTANTS PROFESSIONAL SERVICES AND RESPONSIBILITIES
4.1 Consultant's Professional Services shall be agreed to by PREPA and Consultant hereunder pursuant to a written Task Order signed by PREPA and Consultant. Each Task Order shall include a description of the Professional Services to be provided, a description of the items required for the services to be provided by PREPA, anticipated schedule for the performance of the Professional Services and budget for completing them including calculation and determination of fees (lump sum or time and material). The Task Order may specify additions, deletions Professional Services Agreement - Alpha Engineering Group, PSC Page 5
or qualifications to the Agreement and shail be deemed upon acceptance by an authorized agent of Consultant to be a modification or supplement to this Agreement, but solely for purposes of such Task Order. Consultant shall provide the Professional Services as mutually agreed upon in the Task Order for such Professional Services. All such Professional Services by Consultant shall be governed by the terms and conditions of this Agreement. 4.2 The Consultant's Professional Services shall be in accordance, as described in Artide 2.1. The Consultant's engineering Services shall include civil engineering, structural engineering, mechanical engineering, electrical engineering, estimating services, environmental consulting and any other service required for the development of the projects. 4.3 The Consultant shall deliver PREPA written scope of services, list of deliverables, time schedule and estimate of cost of services to be rendered under a Task Order upon request. The Consultant shall provide technical specifications as requested by PREPA, to be furnished for review and subject to approval by PREPA within the schedule of the project for a Task Order. In addition, the Consultant shall perform the necessary studies, render reports and draft all documents necessary and pertinent for the fulfillment of all duties according to Consultant's scope of work under each Task Order. The Consultant shall attend meetings with PREPA and contractors as may be necessary for the timely performance of the Professional Services. The Consultant shall not enter into a subcontract with any Sub-consultant for the rendering of any of the Services provided under this Agreement without first obtaining PREPA's written approval of the proposed Sub-consultant. 4.7 The Consultant will not be responsible for or have control or charge over the acts or omissions of any contractor(s). The presence or duties of Consultant's personnel at a construction site do not make Consultant or Consultant's personnel in any way responsible for those duties that belong to PREPA and/or the contractor(s) or other entities and do not relieve the contractor(s) or any other entity of their obligations and duties. The Consultant will not be responsible for or have control or charge over the acts or omissions of any contractors), for the construction means, methods, techniques, sequences or procedures of any contractors), to meet approved construction schedules; or uses made by the contractor(s) of any sums paid to the contractors) who will perform the construction or operational phases of the projects. The presence of Consultant's personnel at a construction site is for the purpose of providing to PREPA a greater degree of confidence that the completed construction work will conform generally to the construction documents and that the integrity of the design concept as reflected in the construction documents has been implemented and preserved by Professional Services Agreement - Alpha Engineering Group, PSC Page 6
the construction contractor(s). Consultant neither guarantees the performance of the contractor(s) nor assumes responsibility for construction contractor's failure to perform work in accordance with the construction documents. 4.8 Upon request, the Consultant shall prepare all documents, requested by the federal and state agencies which regulate the scope of this Agreement and shall deliver copies thereof to PREPA. 4.9 All reports, studies, specifications and any other document prepared or drafted by the Consultant as part of its legal obligations as set forth hereto, shall be the property of PREPA and only PREPA can authorize its use by other entities or for other purposes other than those established in this Agreement. PREPA will indemnify Consultant, its employees, agents, Sub-consultants against claims resulting from any reuse not authorized by Consultant. 4.10 As long as products are available at the time the Professional Services will be provided, the Consultant agrees to use products that are developed, extracted, assembled, packaged or distributed in Puerto Rico by companies with operations in Puerto Rico distributed by agents established in Puerto Rico. 4.11 The Consultant shall be responsible for correcting any inconsistencies, errors, or omissions in the documents prepared by the Consultant, at no additional cost to PREPA subject to Clause 26. Standard of Care. 4.12 Consultant guarantees that he has not employed any person to solicit or secure this Agreement upon any Contract for a commission percentage, brokerage or contingent fee. Breach of this guarantee shall give PREPA the right to annul the Agreement or, at its discretion to deduct from the Contract price or consideration the amount of such commission, percentage, brokerage or contingent fees. This warranty shall not apply to commission's payable by Contractors upon contract, or sales secured, or made through bona fide established commercial or selling agencies maintained by Consultant for the purpose of securing business. 4.13 The Consultant may, under this Agreement, prepare environmental licensing applications and other documents required by federal and state agencies for the furtherance, construction and operation of the Project. All application fees required by the pertinent permit agencies shall be paid by PREPA. In particular, the Environmental Protection and Planning Director must approve environmental licenses applications, before filing of said applications. The Consultant may file license applications, after written approval by the Planning and Environmental Protection Director. 4.14 The Consultant will provide PREPA with the conceptual budgeted cost estimate for construction when applicable under a Task Order, Consultant's estimates of project construction cost will be made on the basis of its employees' experience and qualifications and will represent their best judgment as experienced and qualified professionals, familiar with the construction industry. Consultant does not Professional Services Agreement-Alpha Engineering Group, PSC Page 7
guarantee that proposals, bids, or actual construction cost will not vary from its estimates of project cost. 4.15 Time is an important consideration in the performance of the duties and obligations of Consultant under this Agreement. However, it is mutually understood and agreed that the deliverables shall be equitably adjusted as the projects progresses, allowing for changes in scope, character or size of a project requested by PREPA, or for delays or other causes beyond Consultant's reasonable control. If Consultant becomes aware of delays due to time allowances for review and approval being exceeded, delay by PREPA, or any other cause not attributable to the Consultant, which will result in the deliverables schedule not being met, Consultant shall promptly notify PREPA. If PREPA becomes aware of any delays or other causes that will affect Consultant's schedule, PREPA shall promptly notify Consultant. In either event, Consultant's schedule for performance of its Professional Services shall be equitably adjusted. PREPA and Consultant shall coordinate any modifications to the dates that extend the delivery schedule as necessary to better coordinate with the requirements of the project schedule after which the Consultant shall use reasonable efforts to comply with such modified dates. Modifications to the schedule dates shall be made in writing and approved by the PREPA's Project Manager. 4.16 Consultant shall, throughout the execution and completion of a project, observe all applicable regulations regarding health and safety with respect to the Professional Services. a. Consultant shall not be responsible for health and safety matters for construction personnel on job sites. Consultant shall, however, observe the works and advise PREPA and contractor(s) if it becomes aware of any violations with respect to applicable environmental, safety, security and health rules and regulations. If PREPA desires that a more formal independent Health & Safety Program be developed on job sites and that an independent party be responsible for Health and Safety aspects of construction, Consultant can assist PREPA to engage an independent Health & Safety Coordinator to monitor such activities. b. Consultant and Consultant's personnel have no authority to exercise any control over any contractor(s) or other entity or their employees in connection with any health or safety precautions and have no duty for inspecting, noting, observing, correcting, or reporting on health or safety deficiencies of the contractor(s) or other entity or any other persons at the site except Consultant's own personnel. 4.17 Consultant shall provide suitably qualified and experienced personnel acceptable to PREPA to carry out the Professional Services under each Task Order. Professional Services Agreement - Alpha Engineering Group, PSC Page 8
a. Consultant shall appoint a Manager to oversee day-to-day activities of the projects under each Task Order where applicable, and be responsible for the coordination of all the projects related activities of Consultant. Manager will liaise with PREPA with respect to the projects and will attend meetings with PREPA representatives from time to time as requested by PREPA to brief PREPA on the projects, respond to inquiries, and provide other advice and information with respect to the projects as required by PREPA. b. The Professional Services shall be carried out by and under the supervision of the key personnel specified in each Task Order. Consultant may, with prior approval of PREPA, which shall not be unreasonably withheld, make adjustment in such key personnel from time to time as may be appropriate for the efficient performance of the Professional Services. c. If for any reasons beyond the reasonable control of Consultant it becomes necessary to replace any of the key personnel designated on a Task Order, Consultant shall forthwith provide as a replacement, a person of equivalent qualifications and experience, acceptable to PREPA. d. In the event that any person specified in a Task Order is found by PREPA to be incompetent in discharging his/her duties and responsibilities, PREPA may request Consultant to forthwith provide a replacement with such qualifications and experience as may be acceptable to PREPA. PREPA shall not be unreasonable in its demands for replacement and shall provide objective reasons why personnel selected by Consultant are deemed by it to be unacceptable for the projects. e. Except as PREPA otherwise agrees and assuming that PREPA provides objective reasons for any of the replacements of personnel requested, Consultant shail bear all the additional travel, relocation, and other costs arising out of or incidental to any replacement pursuant to this Article.
ARTICLE 5. COMPENSATION AND PAYMENTS TO CONSULTANT
5.1 Services shall be performed on either a time and material basis or lump sum basis as identified in each Task Order. The Services performed on a time and material basis will be performed using the labor rates contained in the Rate Sheets, attached as Exhibit 3, Consultant's Rates and Exhibit 4, Reimbursable Expenses. The Consultant shall provide PREPA with monthly invoices for the portion of the Professional Services performed for the previous month under a Task Order, an original and a copy, along with all supporting documentation for the same as agreed upon by the Parties. With each invoice, the Consultant shall include a monthly report containing a clear, precise, and detailed description of the Professional Services performed under a Task Order. PREPA shail verify the Professional Services Agreement - Alpha Engineering Group, PSC Page 9
correctness of the invoice and shall verify the Professional Services were performed according to the terms of this Agreement. The Consultant shall provide PREPA all supporting documentation with invoices for the work performed. For every invoice, the Consultant shall include a report containing a clear, precise, and detailed description of the work performed. PREPA shall verify the correctness of the invoice and shail verify the work was performed according to the terms of this Agreement, All invoices shall include a description of services performed, time allocation indicating clearly number of worked hours, Consultant personnel information, professional classification and rates. Services shall be invoiced according with service rates included in Exhibit 3, attached and incorporated herein to this Agreement.
5.2 Ail invoices submitted by the Consultant shall include the following Certification in order to proceed with its payment. This is an essential requirement and invoices submitted without this Certification, will not be processed for payment.
No Interest Certification: "Under penalty of absolute nullity, I hereby certify that no employee, official or director of Consultant is a party or has any interest in the profits or benefits to be obtained under this Agreement, or if any employee, official or director of the Consultant has any interest in the profits or benefits under this Agreement a waiver has been previously obtained, i, also certify that the only consideration to provide the Services under this Agreement is the payment agreed with the Consultant's authorized representative. The total amount of this invoice is fair and correct. The services were provided and no payment has been received for said concept.
By: Consultant Signature
5.3 Within fifteen (15) days of invoice receipt by the project manager, PREPA shall either; (i) approve the total invoice amount for payment; or (it) approve that portion of the invoiced amount for payment which has been correctly invoiced pursuant to the terms of the Agreement and shall notify Consultant in writing stating the specific reason why the remaining portion of the invoice is incorrect according to the terms of the Agreement. PREPA shall pay the total invoice no later than thirty (30) days after the approval of the invoice whether in full or pay the approved portion of the invoice. Upon written notification from PREPA identifying the reason that a portion of the invoice is Professional Services Agreement - Alpha Engineering Group, PSC Page 10
incorrect, Consultant shall correct and resubmit the invoice to PREPA. The invoice will be specific and shall be substantiated with a detailed description of the Professional Services rendered by the Consultant. Consultant shall include all completed deliverable documents and a progress report with the invoice. Invoices shall not be considered as received without the aforementioned documents. Upon receipt of Consultant's corrected invoice, the above-specified approval and payment time frames shall be reapplied as it pertains to PREPA's payment for that portion of the invoice which had been previously incorrect. In the event that PREPA does not provide written notification to Consultant that a portion of the invoice is incorrect as required above, PREPA shall pay the invoice in total within thirty (30) days after the invoice receipt. If PREPA performs a subsequent review of an invoice after the thirty (30) day review period has expired and it is found that an invoice paid in full was incorrect in accordance with the terms of the Agreement, PREPA will provide written notification to Consultant and a credit or debit will be done to Consultant's subsequent invoices. Should PREPA withhold payment of the total or any portion of an approved invoice for a period of forty five (45) days or more, after the receipt date of the invoice, the Consultant may suspend performance of any and all Professional Services rendered under a Task Order(s) as described herein until payment is received. The Consultant will notify PREPA within seven (7) days prior to the intended suspension date of all invoices and or accounts in default and of its intention to suspend performance of Professional Services rendered in accordance with a Task Order(s) under the present Agreement.
5.4 This Agreement shall cover services for a maximum of three million two hundred thousand dollars ($3,200,000). 5.5 All payments performed under this Agreement will be charged to the PREPA budget account 1861~18719-000-000-000.
ARTICLE 6. OFFICE OF THE COMPTROLLER'S FILING
6.1 The demand of the obligations of either party underthis Agreement will be subject to the filing of the Agreement at the Office of the Comptroller of the Commonwealth of Puerto Rico, in compliance with Act 18 of October 30, 1975, as amended.
ARTICLE 7. CODE OF ETHICS
7.1 The Consultant agrees to comply with the provisions of Act 84 of June 18, 2002, which establishes a Code of Ethics for Consultants, Suppliers and Economic Incentive Applicants of the Executive Agencies of the Commonwealth of Puerto Rico. Professional Services Agreement - Alpha Engineering Group, PSC Page 11
ARTICLE 8. OFFICIALS NOT TO BENEFIT AND NO CONFLICT OF INTEREST
8.1 No officer, employee or agent of PREPA, or of the Government of the Commonwealth of Puerto Rico or Municipal Governments, shall be admitted to any share or part of this Agreement or to any benefit that may arise therefore. 8.2 In addition to the restrictions and limitations established under the provisions of Act 12 of July 24, 1985, as amended, retired or former officers or employees of PREPA, whose work was in any way related to the award or management of contracts, shall in no way benefit from any contract with PREPA for a period of two (2) years after leaving employment with or ceasing services to PREPA. 8.3 The Consultant certifies it does not receive payment or compensation of any kind for regular services offered under an appointment from another agency, instrumentality, public corporation or municipality of Puerto Rico. The Consultant further certifies that it may have consulting agreements with other agencies or government entities, but this will not represent a conflict of interests for the Consultant. 8.4 The Consultant acknowledges that as part of its discharge of its professional duties, it has a duty of complete loyalty with PREPA, which includes not having and avoiding conflicting interests. These conflicting interests include the representation of clients that could have interests contrary to those of PREPA. This duty, also, includes the continuous obligation to notify to PREPA all circumstances concerning its relationship with clients, third parties and any other interest that may influence PREPA at the moment of execution of the present Agreement or during its Term. 8.5 The Consultant acknowledges that during the term of this Agreement it shail have the continuous obligation to disclose to PREPA any act of Consultant that according to the applicable law may constitute a conflict of interest affecting PREPA. 8.6 The Consultant represents conflicting interests when on behalf of a client it must contend for that which it is its duty to oppose in order to comply with its obligations with another previous, present or potential client. Also, the Consultant represents conflicting interests when its conduct is described as such in the canons of ethics applicable to the Consultant and its personnel, or in the laws or regulations of the Commonwealth of Puerto Rico. 8.7 In Contracts with partnerships or firms, or in the event that any of the partners, directors or employees of the Consultant should incur in the conduct described herein, said conduct shall constitute a violation to the prohibitions provided herein. The Consultant shail avoid even the appearance of the existence of conflicting interests. Professional Services Agreement-Alpha Engineering Group, PSC Page 12
8.8 Previous to the signing of this Agreement, the Consultant shall submit a sworn statement to the effect that, as of the Effective Date, neither Consultant nor any of its partners or owners, directors, officials, employees, parent company, subsidiaries or any entity that constitutes the alter ego of Consultant have been convicted of, nor have they pled guilty, in Puerto Rico, in the federal jurisdiction, in any state or territory of the United States of America or in any country, to any crime or its equivalent, as enumerated in Article 3 of Public Law 458 of December 29, 2000 of the Commonwealth of Puerto Rico, as amended. In accordance with Article 6 of Public Law 458 of December 29, 2000 of the Commonwealth of Puerto Rico, as amended, Consultant acknowledges that its conviction or guilty plea for any of the crimes as enumerated in Article 3 of such Act shall entail, in addition to any other applicable penalty, the automatic rescission of this Agreement. In addition, but only to the extent required by Public Law 458, PREPA shall have the right to demand the reimbursement of payments made pursuant to this Agreement that directly result from the committed crime. 8.9 In the event that PREPA's Executive Director should discover Consultant acted in fMfa- such a way that a conflict of interest is created, the Executive Director shall inform the Consultant, in writing, of PREPA's intention to terminate this Agreement within a thirty (30) day period. During said period, Consultant may request a meeting with the Executive Director to present its arguments regarding the alleged conflict of interest, which meeting shall be granted by PREPA in every case of alleged conflict of interest. In the event that Consultant does not request such a meeting during the specified thirty (30) day period or the controversy is not satisfactorily settled during the meeting, this Agreement shall be terminated provided that PREPA shall pay to Consultant any sums owed for work already rendered in accordance with this Agreement to the date of termination and all expenses resulting from the demobilization of Consultant employees or subcontractor.
ARTICLE 9. LAWS TO BE OBSERVED
9.1 Consultant shall observe and comply and will have its subcontractors and agents comply with any and all Federal, State and Municipal Laws, by-laws, ordinances, and regulations in any manner affecting the work, the equipment or the materials used in the work or the conduct of the work. 9.2 Unfair Labor Practice: In the event that Consultant or any of its subcontractors or agents do not comply with an order issued by the Puerto Rico Labor Relations Board and/or the National Labor Relations Board upon their finding that Consultant or any of its subcontractors or agents have committed an unfair labor practice, no further payments shall be made by PREPA to Consultant after the date of the said order. In addition, the Agreement may be terminated by PREPA, in which case PREPA Professional Services Agreement - Alpha Engineering Group, PSC Page 13
may take possession of the materials, tools, and appliances on the job site and finish the work by whatever method it may deem expedient. Any declaration by the Puerto Rico Labor Relations Board and/or by the National Labor Relation Board that Contractors or agents have not complied with an order issued by the Board relating to any unfair labor practice, shall be binding, final, and conclusive unless such order is reversed or set aside by a Court of competent jurisdiction. 9.3 Legal and Regulatory Compliance: Consultant will comply with all laws and regulatory requirements applicable to the Services as provided in accordance with this Agreement, in particular, those that apply to Consultant as a company authorized to conduct their relevant business in Puerto Rico. a. Consultant shall be entitled to take whatever steps it considers reasonably necessary to ensure that neither it nor any of Its Subcontractors breaches any relevant laws or regulatory requirements applicable to the Services as provided in accordance with this Agreement. b. PREPA shall comply with all laws and regulatory requirements to which it is subject and procure that its officers, employees, and agents do likewise. Discrimination: Consultant agrees to certify before commencement of work that it is an equal opportunity employer, and does not discriminate by reason of race, color, gender, age, national or social origin, social status, political ideas or affiliation, religion; for being or perceived to be victim or domestic violence, sexual aggression or harassment; for physical or mental disability or veteran status.
ARTICLE 10. TERMS OF AGREEMENT AND DURATION OF WORK
10.1 This Agreement shall be in effect for a period of two (2) years, beginning on the date on which all Parties have signed the Agreement (the Term). Any previous approved Task Orders issued under this Agreement shall remain in effect and governed by the terms of this Agreement until such Task Order(s) are complete, expire or are otherwise terminated as authorized in such Task Order. 10.2 The schedule shall be extended by agreement of the Parties or other reasons allowed under this Agreement. Unless terminated earlier, the Agreement shall expire on its own terms. The passage of the Agreement Termination Date shall not extinguish, prejudice, or limit either Party's right to enforce this Agreement with respect to any default, defect or deficiency in performance. 10.1 The Consultant is responsible for the timely performance of its Services as specified in Task Orders, but shall not be responsible for delays due to persons or conditions beyond the Consultant's control. The Consultant assumes full responsibility for the timely performance of its Sub-consultants. If the completion of the Project is delayed by reason of negligence or the breach of any material provision of this Agreement solely on the part of the Consultant, Consultant shall Professional Services Agreement - Alpha Engineering Group, PSC Page 14
provide accelerated Services at its own expense to make up time lost because of such Consultant-caused delay. As additional consideration for this Agreement, the Consultant agrees that a reasonable extension of time and if applicable an equitable adjustment in the compensation shall be granted by and at the discretion of PREPA by Change Order in the event there is a delay or change that effects compensation on the part of PREPA or their independent contractor(s) in fulfilling the material obligations of this Agreement or for delays caused by Force Majeure events.
ARTICLE 11. FORCE MAJEURE
11.1 The parties hereto shall be excused from performing hereunder and shall not be liable in damages or otherwise, if and only to the extent that they shall be unable to perform, or are prevented from performing by a Force Majeure event. For purposes of this Agreement, Force Majeure means any cause without the fault or negligence, and beyond the reasonable control of, the party claiming the occurrence of a Force Majeure event. Force Majeure may include, but not be limited to, the following: Acts of God, industrial disturbances, acts of the public enemy, wars, blockages, boycotts, riots, insurrections, epidemics, earthquakes, storms, floods, civil disturbances, lockouts, fires, explosions, interruptions of services due to the acts or failure to act of any governmental authority; provided that these events, or any other claimed as a Force Majeure event, and/or its effects, are beyond the reasonable control and without the fault or negligence of the party claiming the Force Majeure. A party, within ten (10) days after the occurrence of the alleged Force Majeure, shall give the other party written notice describing the particulars of the occurrence and its estimated duration. The burden of proof as to whether a Force Majeure has occurred shall be on the party claiming the Force Majeure.
ARTICLE 12. TERMINATION OF AGREEMENT
12.1 Suspension by PREPA. Upon receipt of a notice to suspend the Professional Services from PREPA, the Consultant shall immediately suspend Professional Services and may request payment for ail Professional Services performed and expenses incurred through the date of suspension. Such direction shall be in writing, and shail specify the period during which the Professional Services shall be stopped. The Consultant shail resume its Professional Services upon the date specified or upon such other date as PREPA may thereafter specify in writing. The Consultant shall have no liability to PREPA for damage or delay of the Project resulting from such suspension. PREPA will pay reasonable demonstrated costs Professional Services Agreement - Alpha Engineering Group, PSC Page 15
incurred by the Consultant as a result of the suspension. Upon payment, all drawings, specifications, and other documents relating to the design of the project shall be surrendered forthwith by the Consultant to PREPA, PREPA will indemnify Consultant, its employees, agents, and consultants against claims resulting from any unauthorized reuse of Consultant's engineering reports, drawings, plans and specifications, if the Professional Services are resumed, any reasonable adjustments will be made to the project schedule and the Consultant's compensation for the balance of its Professional Services under the relevant Task Order. 12.2 Termination without cause or for convenience of PREPA. This Agreement may be terminated by PREPA upon not less than twenty (20) days written notice to Consultant for PREPA's convenience and without cause. In cases where the Consultant is in breach of its material obligations, PREPA can declare the immediate resolution, termination and cancellation of the present Agreement provided, however. Consultant shall first have the right to initiate a cure reasonably acceptable to PREPA prior to termination for cause. PREPA's prerogative to cancel, terminate or resolve this Agreement is not to be construed as a waiver of any remedies available to PREPA hereunder or as provided under applicable laws or equity. 12.3 In the event PREPA terminates this Agreement, the Consultant shall only have a right to be compensated for Services performed to the date of termination under a Task Order. In the event of termination without cause or for convenience of PREPA, PREPA will pay Consultant reasonable demonstrated costs incurred by Consultant for such termination under the relevant Task Order. 12.4 If either party is adjudicated bankrupt under the Bankruptcy Laws of the United States or if either party makes a general assignment for the benefit of creditors, the other party may, by written notice, terminate this Agreement, without prejudice to any of such party's rights hereunder.
ARTICLE 13. RIGHTS AND TITLES
13.1 All Work Product created by Consultant pursuant to this Agreement, including derivative works and compilations, and whether or not such Work Product is considered a "work made for hire" or instrument of service, shall be the exclusive property of PREPA. Any unauthorized reuse of the Work Product shall be at PREPA's sole risk and without liability to the Consultant, 13.2 Consultant Intellectual Property. In the event that Work Product is Consultant Intellectual Property, Consultant retains all copyrights. PREPA may retain copies for reference and for the installation, operation, maintenance, and commissioning, refurbishment, replacement or alteration of the projects while them are used for Professional Services Agreement - Alpha Engineering Group, PSC Page 16
their intended purpose. Any unauthorized reuse of the Consultant's Intellectual Property shall be at the PREPA's sole risk and without liability to the Consultant. 13.3 The Consultant shall not acquire a copyright for Work Product, but shall be permitted to retain copies including reproducible copies or electronic data of the drawings, specifications, and other Work Product. 13.4 Subject to Article 13.6, it is agreed that upon full and final payment to Consultant, all rights, titles, and interest in any documents, permits, ideas or innovations conceived or developed by Consultant exclusively for PREPA as a result of performing the Professional Services under this Agreement shall be the exclusive property of PREPA. 13.5 Consultant shall retain all right, title, and interest in and to proprietary works of authorship, pre-existing or otherwise, that have not been created specifically for PREPA under this Agreement. 13.6 PREPA shall retain the right to use, refer, or share or provide to any third party, as PREPA may determine, the results of any study, report, investigation or any other by-product of the Professional Services performed by the Consultant under this Agreement provided PREPA shail release the Consultant from any liability resulting from such use, reference, sharing or provision and that such use, reference, or sharing with or provision to third parties wilt be done at the sole risk of PREPA and without any liability to the Consultant. PREPA shall also retain the right to coordinate the performance of said studies, reports or investigations in those situations where the performance of said studies, reports or investigations may be required by any other of PREPA's contractors and may include the same objective or scope.
ARTICLE 14. INDEPENDENT CONTRACTOR
14.1 The Consultant shall be considered an independent contractor for all purposes pertinent to this Agreement and any person employed by it for purposes of complying with Its contractual obligations shall be considered employees or agents of the Consultant and or its Sub-consultants and not as employees or agents of PREPA. The Consultant is not entitled to any fringe benefits, such as, but not limited to vacations, sick leave, and the like.
ARTICLE 15. INSURANCE AND INDEMNITIES
15.1 Refer to the attached Supplemental General Conditions for Architects and Engineer of Puerto Rico Electric Power Authority Owner Controlled Insurance Program (OCIP) included as Exhibit 5, attached and incorporated herein to this Agreement, for the insurance coverage requirements applicable to this Professional Services Agreement' Alpha Engineering Group, PSC Page 17
Agreement. The Consultant shall be responsible for enrollment and compliance with all requirements of the OCIP for each approved Task Order. 15.2 The requirements of insurance are not intended to limit, qualify, or restrict the liabilities and obligations otherwise assumed by the Consultant in this Agreement, including provisions concerning indemnification. 15.3 The Consultant and PREPA each agree to make, use, provide, and take all proper, reasonably necessary and sufficient precautions, safeguards, and protection against the occurrence or happenings of injuries, death and/or damages to any person or property during the performance of the Services and progress of the Professional Services. 15.4 The Consultant agrees to indemnify and hold PREPA harmless, including its officers, directors, and employees from and against ail damages, liabilities, costs and expenses of any nature (including reasonable attorney's fees) in which PREPA incurs that originate or arise as a result of third party claims for personal injury, including death and/or property damages, as a result of the Consultant's negligent acts, errors or omissions in the execution under this Agreement or anyone for whom the Consultant is legally liable. PREPA agrees to indemnify and hold Consultant harmless including its officers, directors, and employees from and against all damages, liabilities, costs and expenses of any nature (including reasonable attorney's fees) in which Consultant incurs that originate or arise as a result of third party claims for personal injury, including death and/or property damages, as a result of PREPA's negligent acts, errors or omissions in the execution under this Agreement or anyone for whom PREPA is legally liable. 15.5 PREPA agrees to include in all construction contracts the provisions of Article 4.6 a. PREPA shall require contractor(s) and design professionals to indemnify and hold harmless Consultant from any and all claims arising from the projects. b. PREPA shall require the contractor(s) and design professionals to name PREPA and Consultant as additional insured on the contractor('s) and designer's general liability insurance policies. c. PREPA agrees to include the following clause in all contracts with contractors), and equipment or materials suppliers: "Contractors, designers, subcontractors, consultants, and equipment and material suppliers on the projects, or their sureties, shall maintain no direct action against Consultant, Consultant's officers, employees, affiliated corporations, and subcontractors for any claim arising out of, in connection with, or resulting from the Professional Services performed. PREPA will be the only beneficiary of any undertaking by Consultant.". d. PREPA waives all claims against Consultant, including those for latent defects, and Consultant shall be deemed to have been discharged from all Professional Sen/ices Agreement - Alpha Engineering Group, PSC Page 18
liability in respect to the Professional Services, whether under the law of contract, tort or otherwise, at the expiration of one year from the completion of the Services unless otherwise provided in the Agreement, and PREPA (and persons claiming through or under PREPA) shall not be entitled to commence any action or claim whatsoever against Consultant (or any employee of Consultant) in respect to the Professional Services after that date. e. Consultant does not give any warranty nor accept any liability in relation to the performance or non-performance of the Professional Services except to the extent, if any, required by the law or specifically provided for in this Agreement. If apart from this Clause any warranty would be implied whether by law, custom or otherwise, that warranty is to the full extent permitted by law, hereby excluded. Nothing herein contained shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any Professional Services pursuant to the Agreement of all or any of the provisions of or any relevant governmental act, law, regulation or ordinance which by law cannot be excluded. 15.6 The appearing Parties agree that their responsibilities for damages under this Agreement will be governed by the Puerto Rico Civil Code and its case law, as dictated by the Supreme Court of Puerto Rico.
ARTICLE 16.CERTIFICATIONS REQUIRED BY LAW
16.1 Previous of the signing of this Agreement, Consultant shall submit the following documents or certifications: a. Certification issued by the Treasury Department of Puerto Rico which indicates that it does not owe taxes to the Commonwealth of Puerto Rico; or is paying such taxes by an installment plan in full compliance with its terms. b. An Income Tax Return Filing Certificate, issued by the Treasury Department of Puerto Rico assuring that Consultant has filed his Income Tax Return for the last five (5) tax years. c. Certification issued by the Municipal Revenues Collection Center (MRCC), demonstrating that Consultant does not owe any tax to such governmental agency. d. Certificate, issued by the Department of Labor and Human Resources of Puerto Rico, demonstrating that Consultant has paid to the Department of Labor and Human Resources of Puerto Rico its employee contributions in accordance with the Puerto Rico Employment Security Act (unemployment, temporary disability or sickness or social security for chauffeurs), or is paying Professional Services Agreement - Alpha Engineering Group, PSC Page 19
such contributions by an installment plan and is in full compliance with its terms, e. Certification issued by the Child Support Administration (with Spanish acronym ASUME) assuring that Consultant is in compliance with the retention that as an employee should do. 16.2 It shall be Consultant's responsibility, also, to require all subcontracted third parties to comply with all the previous Certifications and agrees to notify PREPA of such compliance within ten working days of subcontracting such third party. 16.3 If any of the previous required Certifications shows a debt and Consultant request a review or adjustment of such debt, Consultant shall so certify at the time of the execution of the Agreement. If such petition for review or adjustment is subsequently denied by a final and non-appealable judgment, Consultant shall immediately provide PREPA with evidence of the payment of such debt. Failure by Consultant to provide such evidence within thirty (30) days after denial of the petition for review or adjustment shail entitle PREPA to withhold and satisfy Consultant's outstanding tax obligation with sums to which Consultant might otherwise be entitled under this Agreement. 16.4 Specifically, Consultant recognizes that submittal of the aforementioned certifications and documents is an essential condition of this Agreement, and that any inaccuracy therein, in whole or in part, shall constitute sufficient cause to terminate this Agreement immediately.
ARTICLE 17. TRANSFER OF FUNDS
17.1 PREPA does not have a legal obligation to accept an agreement to Transfer Funds between Consultant and third parties. If Consultant decides to assign or transfer an amount, due or payable, to which he is entitled for services rendered or goods provided during the term of this Agreement, Consultant shall notify PREPA of such transfer of funds, in accordance to the provisions of Act 21-2012. Said notice shall clearly indicate the rights granted, including a copy of the contract under which the assignment or transfer of funds is made, the exact amount of funds to be assigned or transferred, and specific identification information regarding the assignee (full name of the person or company), address and any other contact information. 17.2 Consultant acknowledges and agrees that PREPA may deduct any amount, due or payable under this Agreement, that Consultant owes; PREPA may retain any said amount if Consultant fails to fulfill its obligations and responsibilities under this Agreement, or a claim arises for warranty or defects regarding the services rendered or goods provided under this Agreement. Consultant also acknowledges and agrees that PREPA's payment obligation under any assignment of funds will cease upon payment of the outstanding amounts under this Agreement. PREPA Professional Services Agreement - Alpha Engineering Group, PSC Page 20
shall not be required to make payments or transfer any funds for an amount that exceeds the payment to which Consultant is entitled to under this Agreement.
ARTICLE 18. GOVERNING LAW
18.1 This Agreement shall be subject to and interpreted in accordance with the laws of the Commonwealth of Puerto Rico. In addition, the contracting parties voluntarily consent to the exclusive jurisdiction of the state courts of the Commonwealth of Puerto Rico or local Federal Court Jurisdiction (San Juan District) to resolve any controversies that may result between them with regard to the Agreement.
ARTICLE 19.ASS1GNMENT
19.1 Consultant shall not assign nor subcontract its rights and obligations under this Agreement, except in the event PREPA gives written authorization for the same. Provided that, no subcontract shall be considered for PREPA's approval, except when the following requirements are met: (1) Consultant delivers PREPA a copy of the subcontract, not less than seven (7) days prior to the effective date of the proposed subcontract; (2) the subcontract includes, as condition for its legal validity and enforceability, a provision whereby PREPA has the right to substitute, subrogate or assume Consultant rights under the subcontract, in the event that PREPA declares Consultant in breach or default of any of the Agreement Terms and Conditions; and (3) the subcontract includes, as a condition for its validity and enforceability, a provision establishing for the Sub-consultant the obligation to comply with all the Consultant obligations under the Agreement (mirror image clause), except for such obligations, Terms and Conditions which exclusively related with works or services not included under the subcontract. Notwithstanding the foregoing, Consultant shall be entitled to use labor from affiliated entities. Such labor will be used at the same rates and under the same terms and conditions applicable to Consultant's employees.
ARTICLE 20. INCOME TAX WITHHOLDING
20.1 PREPA will deduct and withhold at source to Consultant the equivalent of seven percent (7%) from payment for services rendered under this Agreement, in compliance with the 1994 Puerto Rico internal Revenue Code, section 1143, as amended. Notwithstanding, the withholding to be done by PREPA as herein stated could be increased to: twenty percent (20%) in the event that the Consultant is a non-resident individual, which is a U,S. citizen, as provided by the 1994 Puerto Rico Internal Revenue Code, section 1147 or twenty-nine percent Professional Services Agreement' Alpha Engineering Group, PSC Page 21
(29%) in the event that Consultant is a non-resident and non U.S. citizen individual; or a foreign corporation or partnership which is not dedicated to industry or business in Puerto Rico, as provided by the 1994 Puerto Rico Internal Revenue Code, sections 1147 and 1150. 20.2 If a Release Letter has been issued to Consultant by the Treasury Department, Consultant shall be responsible to submit a copy of said Release Letter to PREPA for every calendar year; otherwise, payments under the Agreement shall remain subject to withholding at source. All invoices shall be segregated by concepts (services, materials, equipment, etc.), to identify the amounts subject to withholding, and avoid undue deductions. 20.3 PREPA will deduct and withhold a Special Contribution to the Contractor the equivalent of one point five percent (1.5%) from payment for services under this Agreement, in compliance with Article 1, Law Number 48-2013. Notwithstanding, advertising spots, reimbursable expenses and the cost of equipment or materials are excluded.
ARTICLE 21. NOTICES
21.1 PREPA agrees to give Consultant immediate notice of any and all claims for which the Consultant may be liable, and the Consultant agrees to give PREPA immediate notice of all claims for which PREPA may be liable. Ail notices, requests, demands or other communications to be given hereunder shall be in writing and shail be considered duly made when personally delivered to the following addresses:
PREPA: Puerto Rico Electric Power Authority PO Box 364267 San Juan, Puerto Rico 00936-4267
ATTENTION: Sonia Miranda Vega Planning and Environmental Protection Director 787-521-4881,4884 s-miranda (Sjaeepr.com [email protected]
CONSULTANT: Alpha Engineering Group, PSC Urb. Industrial El Paraiso Caile Ganges #5 San Juan, PR 00926 Professional Services Agreement - Alpha Engineering Group, PSC Page 22
ATTENTION: Manuel Ledo Roman and Gonzalo Gonzalez Roman Partners 787-723-8321; 787-641-1800 mledotajalphaenqineerinq.org [email protected]
ARTICLE 22.CHANGE IN LAW
22.1 During the term of this Agreement, any change in law, including but not limited to changes in applicable tax law or of a fiscal nature, which causes an increase in Consultant's costs when supplying the Professional Services to be acquired by PREPA shall be of Consultant's responsibility and PREPA shall not be obliged to make additional payments nor to pay additional sums beyond the price originally agreed for those products or services. Any change in law that affects the scope of work, shall entitle Consultant to a change order that shall be mutually agreed between the Parties.
ARTICLE 23. NO CONTRACTUAL NOVATION
23.1 PREPA and the Consultant expressly agree that no amendment or change order made in connection to the present Agreement shall be construed as a contractual novation, unless both parties specifically agree so in writing. The preceding paragraph shall also apply in case where PREPA grants the Consultant an extension or deferment in the execution of any of its contractual obligations as described herein, or waive any demands or claims for credits or rights under the same.
ARTICLE 24. PATENTS AND COPYRIGHTS
24.1 The Consultant, at its own expense, shall defend any suit or action brought against PREPA based on a claim that any design documents or any portion of the Services, constitutes an infringement of any patents, trademark, registered design, copyrights, design right or other registerable or proprietary intellectual property right of any kind of the United States, Provided PREPA gives prompt written notification to Consultant, and given the authority, information, and assistance for the defense of the same, and the Consultant shall pay ail damages and costs awarded therein against PREPA. If, in such suit, the design or any part thereof, or portion of the Services, is held to constitute infringement and its use is enjoined, the Consultant, at its option and expense, shall either procure for PREPA the right Professional Services Agreement - Alpha Engineering Group, PSC Page 23
to continue using the same, or replace it with non-infringing design, or modify it so it becomes non-infringing; or remove it and reimburse PREPA for its expenses arising therefrom.
ARTICLE 25.STANDARD OF CARE
25.1 Consultant represents and warrants to PREPA that: (i) Consultant has the power and authority to enter into and perform this Agreement; (ii) Consultant shall, at all times during the term of this Agreement be duly licensed to perform the Services, and if there are no licensing requirement for the provision of services, be duly qualified and competent; and (iii) the Professional Services under this Agreement shall be performed in accordance with reasonable practices and with the professional skill, care and customary standards of the engineering profession or of other professionals performing similar services under similar conditions to the best of our knowledge, information and belief, the provisions of this Agreement do not conflict with or result in a default under any agreement or other instrument binding upon the Consultant and do not result in a conflict of interest, or a violation of any law, regulation, court decree or order applicable to the Consultant. 25.2 If any of the Services rendered by the Consultant do not fulfill the standard of care expressed under Article 26.1 herein or if the Consultant incursion, negligence, error or omissions in performing the Professional Services it will be the responsibility of Consultant to re-perform the deficient Professional Services upon written notification from PREPA of such non-conformance with a period of one (1) year from the completion of such Services hereunder. The Consultant shall not be responsible for the cost of construction re-work or replacement.
ARTICLE 26. COMPLIANCE WITH LAWS
26.1 The Consultant shall observe and comply with any and all applicable laws, codes, rules and regulations, including health and safety laws. The Consultant shail save harmless and indemnify PREPA, its officers, directors, and employees from and against any claim or liability, loss, cost or expense to the extent arising from or based on the violation of any such applicable law, by Consultant or its Sub-consultants in performance of the Professional Services hereunder. All drawings, specifications, deliverables, and other documents prepared by the Consultant shall be prepared with the standard of care defined in Article 25.1 in an effort to accurately reflect, fully comply with and incorporate all such applicable laws, rules and regulations. Professional Services Agreement - Alpha Engineering Group, PSC Page 24
ARTICLE 27.SEPARABILITY
27.1 An order from a court of justice with jurisdiction on the matter declaring null and void any clause or stipulation contained in the Agreement shall in no manner affect the validity and effectiveness of the remaining clauses, and the appearing parties agree to act in accordance with all obligations under the clauses not affected by the judicial order.
ARTICLE 28. DISPUTE RESOLUTION
28.1 Any dispute between the Consultant and PREPA regarding, but not limited to scope of Work, or disputes regarding this Agreement, shail be attempted to be resolved by the Parties in good faith, if unable to agree at the field level, the dispute shall be submitted in writing within twenty (20) days after occurrence of the event giving rise to the claim to be resolved by the PREPA's Representative. If not resolved by the PREPA's Representative within ten (10) days, then the Consultant may submit the issue(s) In writing to the PREPA Executive Director and request a meeting where the dispute will be resolved by the Executive Director and the Consultant, For purposes of this Dispute Resolution Article, the PREPA's Representative shail be PREPA's Planning and Environmental Protection Director. If no agreement is reached with PREPA's Executive Director, then either party may seek dispute resolution through nonbinding mediation (either as agreed by the Parties or if no agreement is reached, as provided for by the Bureau of Alternate Methods for Conflict Resolution of the Puerto Rico Judicial Branch) and/or early neutral evaluation by the Bureau of Alternate Methods for Conflict Resolution of the Puerto Rico Judicial Branch. If no agreement is reached by the Parties within ninety (90) days after the mediation process has started, then either Party may seek the proper legal remedy. The Parties will mutually agree as to whether or not Consultant will continue providing Services related to the matter subject to the dispute. 28.2 In case PREPA terminates or cancels the Agreement as provided in Article 12, above, Consultant shall be compensated for the Services performed up through the date of cancellation, termination or expiration of the Agreement inclusive of any reasonable demobilization costs of Consultant and its approved Sub-consultants.
ARTICLE 29.COMPLETE AGREEMENT AND CORRELATION OF DOCUMENTS
29.1 This Agreement is the complete Agreement between the Parties with respect to the subject matter hereof and fully supersedes any and all prior agreements, Professional Services Agreement • Alpha Engineering Group, PSC Page 25
negotiations or representations, either written or oral. This Agreement may be amended only by written instrument signed by both PREPA and Consultant. 29.2 The Agreement and Exhibits attached hereto are complementary and what is required by one shall be as binding as if required by all. In the event of conflicts, discrepancies or any inconsistency among the Agreement and Exhibits, the Agreement shall govern and take precedence. In the event that specific and/or additional terms and conditions are included in a Task Order or task assignment from PREPA to Consultant under this Agreement, and such terms and conditions conflict with the terms and conditions of this Agreement, the terms and conditions of this Agreement shall take precedence.
ARTICLE 30: CHANGES
30.1 PREPA may make changes to the Professional Services in this Agreement. If such changes affect Consultant's cost of or time required for performance of the Professional Services, an equitable adjustment will be made through a Change Order to this Agreement. 30.2 Any time during the course of the projects, PREPA may instruct Consultant to alter, amend, omit, add to or otherwise vary any part of any project or Consultant's Professional Services for a Task Order under this Agreement. 31.3 Consultant may not vary or alter any of the Professional Services, except in accordance with PREPA's request and pursuant to a written Change Order or oral change order followed within five (5) days by a written confirmation of same. Consultant may propose variations to the Professional Services in its discretion. 31.4 Prior to the issuance of any Change Order, PREPA shall notify Consultant of the nature and the form of the desired variation. Within seven (7) days after receipt of such notice, Consultant shall submit to PREPA 1) a description of Services to be performed and a schedule program for its execution, as well as the proposed new schedule; and 2) Consultant's proposals for additional costs associated with such variance. Following the receipt of such information from Consultant, PREPA shall decide whether or not the variation shall be carried out, Should PREPA decide that the change shall be carried out; it shall then issue a Change Order clearly identifying such variance. If the Parties do not agree on the Change Order, the matter shall be subject to the provisions of Article 28. Dispute Resolution. 31.5 Extension of Schedule. Consultant shall give PREPA timely notice of its intention to seek extension of Project schedule under a Task Order within thirty (30) days of the circumstances that give rise to such extension becoming known to Consultant. The notice shall be accompanied with full supporting details. PREPA shall reply in a timely manner by rendering its decision with regard to its agreement or disagreement regarding such extension of schedule, if PREPA agrees to an Professional Services Agreement - Alpha Engineering Group, PSC Page 26
extension of the schedule then PREPA shall issue a Change Order. If the Parties do not agree on an extension to the schedule, the matter shall be subject to the provisions of Article 28. Dispute Resolution.
ARTICLE 31: LIMITATION OF LIABILITY
31.1 Consultant's limitation of liability for all damages will, in the aggregate, not exceed the amount of the Task Order issued under the provisions of this Agreement. This limitation of liability shall apply whether the Consultant's liability arises under breach of contract or warranty; tort, including negligence; strict liability, statutory liability, or any other cause of action, and shall include such party's officers, affiliated corporations, employees and Sub-consultants. 31.2 Neither Party shail be liable to the other Party for any indirect or consequential damages under this Agreement or a relevant Task Order.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on this Ii day of Jtme 2014, in San Juan, Puerto Rico.
Puerto Rico Electric Power Authority (PREPA) Alpha Engineering Group, PSC Employer's Social Security 66-0433747 Employer's Social Security 66-0545688
BY: By: J uara Bran cisco Alicea^ Manuel Ledo Roman Executive Director Partner 5SP tt(H33flft