Case 1:16-cv-00307 Document 1 Filed in TXSD on 12/07/16 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION § § WILLACY COUNTY LOCAL GOVERNMENT CORPORATION § § Plaintiff, § § § v. MANAGEMENT & TRAINING CORP. CASE NO. 1:16-CV-00307 § § § § Defendant. ORIGINAL COMPLAINT Plaintiff Willacy County Local Government Corporation (the “County” or “Plaintiff”) files this Original Complaint against Management & Training Corporation (“MTC”) and complains and alleges the facts and claims as follow below. I. 1. PARTIES Plaintiff Willacy County is a state-incorporated public body organized under the State of Texas. The County is represented by counsel: Bruce W. Steckler, Stefani Eisenstat, and L. Kirstine Rogers of Steckler, LLP, at 12720 Hillcrest Road, Suite 1045, Dallas, Texas 75230; Ramon Garcia and Emerson Arellano of the Law Office of Ramon Garcia, P.C., at 222 West University Drive, Edinburg, TX 78539; and Manuel Solis of the Law Office of Manuel Solis, at 6657 Navigation Boulevard, Houston, TX 77011. 2. Defendant MTC is a Delaware corporation with its principal place of business at 500 N. Marketplace Drive, Centerville, Utah 84014. Defendant may be served with process by ORIGINAL COMPLAINT 1 Case 1:16-cv-00307 Document 1 Filed in TXSD on 12/07/16 Page 2 of 9 serving its registered agent, CT Corporation System at 1999 Bryan St., Suite 900, Dallas, Texas 75201. I. 3. JURISDICTION AND VENUE This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. §1332 because Plaintiff and Defendant are citizens of different states and the amount in controversy exceeds $75,000. 4. Venue is proper in this Court pursuant to 28 U.S.C. §1391(b) because all or a substantial part of the events or omissions giving rise to the claims occurred in Willacy County, Texas, which is within the Southern District of Texas, Brownsville Division. 5. This Court has specific personal jurisdiction over MTC because MTC contracted with a Texas resident and was to perform the contract in whole or in part in Texas, and MTC committed a tort in whole or in part in Texas. II. A. FACTUAL ALLEGATIONS The Construction Project in Willacy County. 6. In June 2002, Hale-Mills Construction, Ltd. (“Hale-Mills”), a multibillion-dollar government contractor, approached the Willacy County board about building a series of buildings that would be used to house federal and state prisoners, guards, and deportation detainees. 7. The proposal called for the County to borrow $65 million from the public debt markets to fund construction of the buildings, and the debt would be managed by a trustee at U.S. Bank in California. 8. Hale-Mills’ pitch was that the County would be paid for housing these inmates and detainees. The pay was promised to be sufficient not only to recoup the $65 million investment, but also to produce substantial net income to the County. ORIGINAL COMPLAINT 2 Case 1:16-cv-00307 Document 1 Filed in TXSD on 12/07/16 Page 3 of 9 9. On or about July 19, 2006, Willacy County entered into a design-builder contract with Hale-Mills to construct the buildings, including the Willacy County Correctional Center in Raymondville, Texas (the “Prison”). 10. Defendant MTC is a management company that contracted with the Federal Bureau of Prisons (“BOP”) to run the Prison. Defendant MTC also contracted with the County to run and oversee the Prison and to provide all information pertaining to the Prison to the County. B. The County’s Management Contract with MTC (“The Restated Contract”). 11. On July 21, 2006, the County entered into an Operations and Management Services Agreement with MTC, as amended August 31, 2007, August 31, 2008, February 25, 2009, and January 1, 2010 (the “Operations Contract”), which was amended and restated by agreement on July 28, 2011 (the “Restated Contract”), a true and correct copy of which is attached hereto as Exhibit A. 12. The purpose of the Restated Contract was for MTC to operate the Prison and receive, detain and care for offenders pursuant to agreements between a) MTC and the BOP for contract number DJBIPC015 (“BOP Contract”), or b) MTC and various government entities (“Assigning Entities”), to continue indefinitely unless terminated in writing upon 180 days’ notice by either party as set forth in §2.2 of the Restated Contract. (Exhibit A, Article I and §§2.1, 2.2). 13. Pursuant to §3.1 of the Restated Contract, MTC received payment from the County as an administrative fee equal to $3,450 per day if the average number of inmates in the Prison was 1,380 or less, or $6,210 per day for the first month in which the average number of inmates in the Prison exceeded 1,380, plus $2.50 per inmate per day for each inmate in excess of 2,484 inmates based on the Midnight Count Report for each day. (Ex. A, §§3.1, 3.2). 14. Pursuant to §4.1 of the Restated Contract, MTC’s duties included developing an ORIGINAL COMPLAINT 3 Case 1:16-cv-00307 Document 1 Filed in TXSD on 12/07/16 Page 4 of 9 operating plan for conditions of confinement (the “Operating Plan”), and operating, maintaining and managing the Prison in accordance with the Operating Plan, applicable state and federal constitutional requirements, and laws and applicable provisions of the Trust Indenture as defined in the Restated Contract. (Ex. A, §4.1). In addition, MTC was to provide at its sole expense all Operation and Maintenance Costs, including but not limited to the following: a) personnel to control ingress and egress at the Prison, in addition to security personnel within the Prison and to monitor all activities of the prisoners confined therein, as well as any additional necessary personnel; b) procurement and purchasing; c) offender food and laundry services; d) offender educational, recreational, counseling, and exercise services; e) bookkeeping and financial accounting; f) all offender medical care required by the Assigning Entity; g) necessary utilities and refuse services; and h) all other services necessary or proper for the efficient and safe operation of the Prison in compliance with all applicable federal and state laws and regulations, including all applicable standards of the Assigning Entity Contract. (Ex. A, §4.1). In exchange, the County agreed to reimburse MTC for Project Costs as defined in the Trust Indenture in the amount of $2,067,472.83 to operate and maintain the Project for a period not to exceed one year after it is acquired, constructed or improved. (Ex. A, §4.1). 15. Pursuant to §4.4 of the Restated Contract, entitled “Repair and Maintenance Services,” once the repurposing of the Prison was complete pursuant to Article 6 of the Restated Contract (to comply with the physical plant standards required by the BOP Contract on or before September 1, 2011), MTC had the duty to preserve and keep the Prison in good repair, working order, and condition, subject to normal wear and tear, and make or cause to be made all necessary and proper repairs. As part of this provision and upon notification, the County agreed to bear the cost of repair, replacement, or renovations of the physical plant, equipment, and/or systems ORIGINAL COMPLAINT 4 Case 1:16-cv-00307 Document 1 Filed in TXSD on 12/07/16 Page 5 of 9 exceeding $10,000 and replace or repair such physical plant parts, equipment or systems with similar equipment. (Ex. A, §4.4). C. MTC’s Abysmal Mismanagement of the Prison. 16. MTC failed to properly oversee, manage, and repair the Prison and turned a blind eye to the enormous problems that plagued the Prison from its inception. 17. Problems with flooding toilets, water seeping underneath the property, rodents, and lack of access to basic inmate services plagued the facility on MTC’s watch. MTC allowed the abysmal conditions to continue without taking any action of notifying the County of or attempting to rectify the problems with the Prison. Further, MTC failed to address the issue of prison overcrowding, presumably because MTC was paid an additional per diem for inmates beyond the 90 percent capacity threshold. Two hundred inmates slept in each housing pod, there was insufficient room between beds, and new inmates were forced to stay in solitary confinement because of overcrowding. 18. Tensions ran high due to MTC’s mismanagement of the Prison and its conditions, and inmates routinely protested, including refusing to return to the tents until the toilets were fixed. In each of the 200 inmate housing pods, a single correctional officer was posted for the duration of an eight-hour shift. The unacceptable conditions caused by MTC’s mismanagement and failure to take corrective actions led to a prison riot on February 20, 2015. Ultimately, the Prison was forced to close and declared “uninhabitable” by the BOP due to MTC’s failure to meet its most basic contractual obligations. All 400 employees of the Prison lost their jobs. 19. Had MTC done its job and properly managed the Prison pursuant to its duties set forth in the Restated Contract, the County could have taken remedial action immediately to help rectify the problems, prevent the riot, and keep the Prison in business. 20. Instead, MTC routinely failed to alert the County as to the problems at the Prison ORIGINAL COMPLAINT 5 Case 1:16-cv-00307 Document 1 Filed in TXSD on 12/07/16 Page 6 of 9 and did nothing to correct or repair them. Accordingly, MTC should be held liable for its total dereliction of its management duties at the Prison. MTC had the duty to run and operate the Prison, but MTC breached its duties and mismanaged the operation, causing the County tens of millions of dollars in damages. FIRST CLAIM FOR RELIEF Breach of Contract 21. Plaintiff fully incorporates the allegations set forth above. 22. In the Restated Contract, MTC specifically contracted with the County to develop an Operations Plan to develop and manage the Prison and its inmates and to operate, maintain, and manage the Prison in accordance with the Operating Plan. MTC further agreed that it would keep the Prison in good repair, working order, and condition, and would make all necessary repairs. 23. MTC materially breached the Restated Contract by failing to develop an Operations Plan, mismanaging the Prison, and failing to keep the Prison in good repair, working order, and condition. So much so, in fact, that MTC caused a prison riot. 24. Pursuant to Article 9 of the Restated Contract, MTC engaged in the following events of default: a) materially failing to keep, observe, perform, meet, or comply with any covenant, agreement, term, or provision of the Restated Contract and such failure continued for a period beyond the curative period provided in the Restated Contract after written notice thereof; and d) making material misstatements, misrepresentations and warranties in the Restated Contract that are false, misleading, or erroneous in any material respect. (Ex. A, §9.1). 25. The County asserts that it was foreseeable that MTC’s numerous and material breaches of its duties contained within the Restated Contract would and did lead to an uprising of inmates and riot because of the deplorable conditions which MTC failed to address and rectify ORIGINAL COMPLAINT 6 Case 1:16-cv-00307 Document 1 Filed in TXSD on 12/07/16 Page 7 of 9 within the curative period or at any time thereafter. (Ex. A, §§9.2, 9.3). 26. The County seeks recovery for MTC’s breach of contract under the laws of the State of Texas, pursuant to §12.3 of the Restated Contract. 27. As a direct and proximate result of MTC’s breach of contract, the County has sustained tens of millions of dollars of damages and other losses. SECOND CLAIM FOR RELIEF Negligence 28. Plaintiff fully incorporates the allegations set forth above. 29. MTC owed legal duties to the County to operate, maintain, and manage the Prison properly and to keep the County informed of issues at the Prison. 30. MTC breached the duties it owed to the County by failing to manage, maintain, and properly operate the Prison, by failing to make reports to the County about substandard construction work and other problems, and by other acts and omissions. 31. MTC’s breach of its duties proximately caused tens of millions of dollars in damages to the County. THIRD CLAIM FOR RELIEF Fraudulent Inducement 32. Plaintiff fully incorporates the allegations set forth above. 33. Defendant MTC represented to the County that it would develop an Operating Plan for conditions of confinement and operate, maintain, and manage the Prison in accordance with the Operating Plan, applicable state and federal constitutional requirements, and laws and applicable provisions of the Trust Indenture as defined in the Restated Contract. MTC further represented that it would keep the Prison in good repair, working order, and condition, and would ORIGINAL COMPLAINT 7 Case 1:16-cv-00307 Document 1 Filed in TXSD on 12/07/16 Page 8 of 9 make all necessary repairs 34. These representations were material to the County in deciding to enter the Restated Contract with MTC because operating and managing the Prison was an integral part of the project. 35. The representations were false and MTC knew it. MTC had no interest in developing or intent to develop an Operating Plan or keeping the Prison in good repair, but instead was only interested in the money flowing from the County from an overcrowded Prison. 36. MTC made the misrepresentations with the intent that the County would rely on them in entering into the Restated Contract. 37. The County relied on the misrepresentations by entering into the Restated Contract. 38. MTC’s misrepresentations proximately caused the County tens of millions of dollars in damages. III. REQUEST FOR RELIEF WHEREFORE, the County respectfully requests that the court enter judgment in its favor and against MTC, as follows: 1. Ordering MTC to pay actual damages to the County; 2. Ordering MTC to pay punitive damages, as allowable by law, to the County; 3. Ordering MTC to pay attorneys’ fees, pre-and post-judgment interest, costs and expenses; and 4. All other relief the court deems necessary at law or in equity. ORIGINAL COMPLAINT 8 Case 1:16-cv-00307 Document 1 Filed in TXSD on 12/07/16 Page 9 of 9 Dated: December 7, 2016 Respectfully submitted, /s/ Bruce Steckler Bruce W. Steckler Texas Bar No. 00785039 Bruce@Stecklerlaw.com Stefani S. Eisenstat Texas Bar No. 00788417 Stefani@Stecklerlaw.com L. Kirstine Rogers Texas Bar No. 24033009 Kirstine@Stecklerlaw.com STECKLER GRESHAM COCHRAN PLLC 12720 Hillcrest Road – Suite 1045 Dallas, TX 75230 Tel: 972-387-4040 Fax: 972-387-4041 LAW OFFICE OF RAMON GARCIA, P.C. Ramon Garcia State Bar No. 07641800 rgarcia@ramongarcia-law.com Emerson Arellano State Bar No. 24067490 earellano@ramongarcia-law.com 222 W. University Drive Edinburg, TX 78539 Tel: 956-383-7441 Fax: 956-381-0825 LAW OFFICE OF MANUEL SOLIS Manuel Solis State Bar No. 18826790 6657 Navigation Blvd. Houston, TX 77011 Tel: 713-844-2700 Fax: 281-377-3924 Msolis1882@yahoo.com ORIGINAL COMPLAINT 9 Case 1:16-cv-00307 Document 1-2 Filed in TXSD on 12/07/16 Page 1 of 3 15 44 tRcv- 0W) CIVIL COVER SHEET The 15 44 civil cover sheet and the information contained herein neither provided local rules ofcourt. This form. approved by the Judicial Con erence of the nited States in purpose 0 initiating the civil docket sheet. (SEE msrkucrrons 0N nan" PAGE OF THIS FORM) lace nor so letnent the ?lin and service ofpleadin or other papers as re uired by law. except as [ember 1974, is required for the use of the lerk of Court for the I. PLAINTIFFS DEFENDANTS Willacy County Local Government Corporation County of Residence of First Listed Plaintiff MW (UCEPTIN US PLAINTIFF CASES) County of Residence of First Listed Defendant Management 8: Training Corp. David County, UT (IN S. PLAINTIFF GISES OM. Y) IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE TRACT OF LAND INVOLVED (C) Attorneys (Firm Name Address. and Telephone Number) Attorneys See Attachment II. BASIS OF JURISDICTION (Pliocene X'tn One Box Only) CITIZENSHIP 0F PRINCIPAL PARTIES (Place on in One Bosfor Plot?ntt?? (For Diversita Cores Only) and One Boxfor Defendant) Government l3 3 Federal Question DEF DEF Plaintiff (U S. Goiernmenr Not a Porn-l Citizen oletts State I I Incorporated or Principal Place 4 El 4 ol' Bustneu In This State Cl 2 Government 4 Diversity Citizen of Another State CI 2 2 Incorporated and Principal Place CI 5 5 Defendant (Indicate intensitlp rifPorrIes in Item ll!) of Business In Another State CtIizenorSubject ofa 3 Cl 3 Foreign Nation 6 l3 6 Foreign Countrv IV. NATURE OF SUIT (Place on in One Box Univ) Click here for Nature ofSuit Code Descriptions. comm Tom Wm Ill) Insurance PERSONAL INJURY PERSONAL INJURY CI 625 Drug Related Seizure Cl 432 Appeal 28 USC [58 El 120 Marine Cl Airplane El 365 Personal Injury - ofProperty 2] USC 33] Cl 423 Withdrawal CI I30 Miller Act 3 5 Airplane Product Product Liability El 690 Other 23 USC CI lull) Negotiable Instrument Liability 0 367 Health Care:r El [50 Recovery ovaerpayment Cl 320 Assault. Libel at Pharmaceutical Enforcement of Judgment Slander Personal Injury Cl 320 Copyrights Cl 15] Medicare Act Cl 330 Federal Employers' Product Liability El 830 Patent 152 Recovery of Defaulted Liability 368 Asbestos Personal Cl 840 Trademark Student Loans 340 Mamie Injury Product (Excludes Veterans} Cl 345 Marine Product Liability l53 Recovery ovaerpaytnent Liability PERSONAL PROPERTY Cl 710 Fair Labor Standards El 861 HIA (l395l'? of Veteran's Bene?ts CI 350 Motor Vehicle 370 Other Fraud Act too Stockholders' Suits i3 355 Motor Vehicle El 3'l'l Truth in Lending CI 720 LaborlManagement a [90 Other Contract Product Liability CI 330 Other Personal Relations 862 Black Lung {923] 353 DIWCIDIWW (405(3)) 0 864 SSID Title XVI CI I95 Contract Pmdurt Liability El 36'] Other Personal Property Damage CI 140 Railway labor Act Cl 865 (405m)) I96 Franchise Injury Cl 385 Property Damage 75 Family and Medical 0 362 Personal lnjuty - Product Liability Leave Act Medical Malpractice 790 Other Labor Litigation I SEAL PROPERTY CIVIL RIGHTS PRIEQEEB CI ?9l Employee Retirement FEDERAL TAX SUNS CI 2l0 Land Condemnation CI 440 Other Civil Rights "aliens Corpus: Income Security Act Cl 870 Taxes (US. Plaintiff CI 220 Foreclosure Voting 0 463 Alien Detainee or Defendant} El 230 Rent Lease at Ejectment El 442 Employment CI 5 l0 Motions to Vacate -T 1ird Party CI 240 Torts to Land 443 Housing} Sentence 26 USC 7609 Cl 245 Tort Product Liability Accommodations Cl 530 General CI 290 All Other Real Property 0 445 Amer wlDisabilities - CI 535 Death Penalty IMMIGRATION Employment Other: 0 462 Naturalization Application CI 446 Amer - CI 540 Mandamus Other Cl 465 Other Immigration Other El 550 Civil Rights Actions Cl 443 Education 555 Prison Condition CI 560 Civil Detainee - Conditions of Confinement El 375 False Claims Act CI 3'16 Qui Tom {31 3729(atl 400 State Reapportionment 410 Antitrust CI 430 Banks and Banking CI 450 Commerce CI 460 Deportation 470 Racketeer In?uenced and Corrupt Organizations 430 Consumer Credit Cl 490 Cable/Sat TV 0 850 Securitiest?Conimoditiesi' Exchange 390 Other Statutory Actions 89] Agricultural Arts 893 Envtronmenial Matters 895 Freedom of Information Act 396 Arbitration 899 Administrative Procedure ActJ'ReVIevr or Appeal of Agency Decnnon 950 Constitutionality of State Statutes V. ORIGIN (Placi- on in One Box Only) Original [32 Removed from El 3 Remanded from 4 Reinstated or Cl 5 Transferred from 6 Multidistrict El 8 Multidistrict Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation - (speci?'l ransfer Direct File Cite the US. Civil Statute under which 28 C. 6 1332 Brief description of cause: Negligence and Breach of Contract VI. CAUSE OF ACTION you are ?ling (Do not rtrejurtidtatonat nitrates unless diversio'): VII. REQUESTED IN CI CHECK 1F THIS IS A CLASS ACTION DEMAND 5 CHECK was only in complaint: COMPLAINT: UNDER RULE 23. JURY DEMAND: CI Yes Cl No RELATED JUDGE . Amer NUMBER ATE 12/07/2016 SIGNATURE or ATTORNEY or necono/ FOR OFFICE USE ON LY RECEIPT AMOUNT APPLYING MAG JUDGE Case 1:16-cv-00307 Document 1-2 Filed in TXSD on 12/07/16 Page 2 of 3 IS 44 Reverse {Rev {18116} INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The IS 44 civil cover sheet and the infomtation contained herein neither replaces nor supplements the ?lings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint ?led. The attorney ?ling a case should complete the form as follows: (C) 11. IV. VI. VII. VII I. Plaintiffs-Defendants. Enter names (last, ?rst, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the hill name or standard abbreviations. If the plaintiff or defendant is an of?cial within a government agency, identify ?rst the agency and then the of?cial, giving both name and title. County of Residence. For each civil case ?led, except U.S. plaintiff cases, enter the name of the county where the ?rst listed plaintiff resides at the time of ?ling. In U.S. plaintiff cases, enter the name of the county in which the ?rst listed defendant resides at the time of ?ling. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the ?rm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". Jurisdiction. The basis of jurisdiction is set forth under Rule which requires that jurisdictions be shown in pleadings. Place an in one of the boxes. If there is more than one basis of jurisdiction, preoedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and of?cers of the United States are rncluded here. United States defendant. (2) When the plaintiff is suing the United States, its of?cers or agencies, place an in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked- Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section below; NOTE: federal question actions take precedence over diversity cases.) Residence (citizenship) of Principal Parties. This section completed if diversity of citizenship was indicated above. Mark this section for each principal party. Nature of Suit. Place an in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable. Click here for: Nature oi'Suit Code Descriptions. Origin. Place an in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts- Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the ?ling date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the ?ling date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. Multidistrict Litigation Direct File. (8) Check this box when a multidistrict case is ?led in the same district as the Master MDL docket. PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code was used for historical records and is no longer relevant due to changes in statue. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service Requested in Complaint. Class Action. Place an in this box if you are ?ling a class action under Rule 23, Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. Related Cases. This section of the 18 44 is used to reference related pending cases, if any- If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet. Case 1:16-cv-00307 Document 1-2 Filed in TXSD on 12/07/16 Page 3 of 3 ATTORNEYS STECKLER GRESHAM COCHRAN PLLC Bruce W. Steckler Stefani S. Eisenstat L. Kirstine Rogers 12720 Hillcrest Road – Suite 1045 Dallas, TX 75230 Tel: 972-387-4040 Fax: 972-387-4041 LAW OFFICE OF RAMON GARCIA, P.C. Ramon Garcia Emerson Arellano 222 W. University Drive Edinburg, TX 78539 Tel: 956-383-7441 Fax: 956-381-0825 LAW OFFICE OF MANUEL SOLIS Manuel Solis 6657 Navigation Blvd. Houston, TX 77011 Tel: 713-844-2700 Fax: 281-377-3924 Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 1 of 27                                                             EXHIBIT A Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 2 of 27 AMENDED AND RESTATED AGREEMENT THIS AMENDED AND RESTATED AGREEMENT (the "Agreement? dated as of July 28, 2011 is made and entered into by and between Willacy County Local Government Corporation and Management Training Corporation, a Delaware corporation RECITALS WHEREAS, the LGC is the owner of the Wiliacy County Correctional Center, formerly known as the Willacy County Processing Center (the ?Facility"). WHEREAS, the LGC is authorized to enter into contracts with others related to the management of the Facility. WHEREAS, the LGC and MTC entered into an Operations and Management Services Agreement on July 21, 2006, as amended August 31, 2007, August 31, 2007, February 25, 2009, and January 1, 2010 (?Operations Agreement?). WHEREAS, the LGC and MTC desire to ?rlly amend and restate the Operations Agreement, as set forth herein. NOW, THEREFORE, in consideration of the mutual covenants herein contained the parties hereby agree as follows: - ARTICLE 1 MTC agrees to operate the Facility and to receive, detain, and care for offenders pursuant to agreements between MTC and the Federal Bureau of Prisons 01?" or ?Assigning Entity?) for contract number DJB 5 Contract"), or (ii) MTC and various government entities (also an "Assigning Entity?) (collectively, the BOP Contract and any Assigning Entity contracts are referred to herein as ?Assigning Entity Contract"). MTC will provide to the LGC copies of all Assigning Entity Contracts. ARTICLE 2 Term: Termination Section 2.1 Term. The term of this Agreement began August 1, 2006. This Agreement shall continue inde?nitely unless terminated in writing by either party as set forth in Section 2.2. Section 2.2 Termination. This Agreement may be terminated by either party by giving one hundred eighty (180) days prior written notice of the intent to terminate to the other party, unless less time is agreed upon by the parties. Notwithstanding the foregoing, if MTC has entered into an Assigning Entity Contract, the LGC agrees not to terminate this Agreement during the term of such contract. Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 3 of 27 ARTICLE 3 mm Section 3.1 Assigping Eating?Fee to LQC. MTC will contract with Assigning Entities for the housing of offenders at the Facility. MT hereby transfers and assigns to the LGC all of MT C?s right, title, and interest in all revenues received ?nm an Assigning Entity pursuant to an Assigning Entity Contract and agrees that it will direct each Assigning Entity to make all payments directly to the US. Bank National Association (the ?Bond Trustee"). The LGC will direct the Bond Trustee to pay to MTC all amounts required by the Trust Indenture dated as of July 1, 2011, between the LGC and the Bond Trustee (the "Tmst Indenture"), in conjunction with the LGC's Taxable Project Revenue Refunding and Improvement Bonds, Series 2011 (the ends?) to be deposited into the Operator Fee Account of the Project Fund (the ?Operator Fee All-Inclusive" within one business day of each such deposit The County Administrative Fee payable from the Operating Account in the Project Fund pursuant to the Trust Indenture, so long as the BOP Contract is in effect, shall be equal to $3,450 per day, so long as the average number of inmates in the Facility is 1,380 or less $6,210 per day for the ?rst month in which the average number of inmates in the Facility is greater than 1,380 plus $2.50 per inmate per day for each inmate in excess of 2,484 based on the Midnight Count Report for such day. For purposes of this Agreement, the term "Midnight Count Report" shall mean the of?cial numerical count of the number of offenders present at the Facility at the end of each day, which for purposes of this Agreement shall be the number of offenders present at the Facility for the day just ended. In the event an offender is processed into and out of the Facility in less than twenty- four hours and is not in the Facility at midnight, such offender?s presence shall be made a part of the of?cial numerical count for the day such offender arrived at the Facility. Section 3.2 Utilities. MTC shall pay the cost of the utilities at the Facility (electrical, gas, and water). Said utility payment shall be paid Section 3.3 Other Revenue. Notwithstanding the foregoing, revenues from any offender telephone system or offender commissary shall offset the cost of the BOP Contract. Section 3.4 No Approgriatign. Nothing in this Agreement, including the billing invoices and schedules provided for herein, shall be construed as an appropriation by the LGC. Section 3.5 Subordinated Project Revenue Note Prepayment. MTC consents to the prepayment of the Subordinated Project Revenue Note dated March 15, 2010 on the date of issuance of the Bonds. ARTICLE 4 Duties of MTC Section 4.1 Operating Plan. MTC shall develop an operating plan, which shall contain comprehensive standards for conditions of con?nement in accordance with the terms of any Assigning Entity Contract (the "Operating Plan"). MTC shall operate, maintain, and manage the Facility in accordance with the terms of the Operating Plan, applicable state and federal constitutional requirements and laws and applicable provisions of the Trust Indenture. The Operating Plan shall be made available to the LGC, if required. Additionally, MTC will provide Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 4 of 27 for the Facility, at its sole expense, all Operation and Maintenance Costs as described in clauses through (iv) of the de?nition of Operation and Maintenance Costs in the Trust Indenture including but not limited to: Personnel to control ingress and egress at the Facility, in addition to personnel necessary for the requisite level of security internally within the Facility and personnel required to monitor the activities of offenders con?ned within the Facility and all other necessary or required personnel. Procurement and purchasing. Offender food and laundry services. Offender educational, recreational, counseling, and exercise services. Bookkeeping and ?nancial accounting. All offender medical care required by the Assigning Entity. Necessary utilities and refuse services. All other services necessary or proper for the ef?cient and safe Operation of the Facility in compliance with all applicable federal and state laws and regulations, including the applicable standards of the Assigning Entity Contract Anything to the contrary herein notwithstanding, the LGC agrees that Project Costs (as de?ned in the Trust Indenture) in the amount of $2,067,472.83 to operate and maintain the Project for a period not longer than one year after it is acquired, constructed, or improved, shall be the responsibility of the LGC, and the LGC shall upon request of MTC cause such amount to be drawn in one or more draws from the Improvements Fund (as de?ned in the Trust Indenture) and delivered to MTC to reimburse MTC for such Project Costs or to be used by MTC for such Project Costs. MTC agrees that it shall deliver to Bond Trustee for deposit into the Bond Fund in accordance with Section 5.01 (ii) of the Trust Indenture the greater of the amount so transferred to MTC from the Improvements Fund in accordance with this paragraph immediately upon receipt of such money, or (ii) on September 10, 2011, October 10, 2011 and November 10, 2011, the amount required to be deposited into the Bond Fund pursuant to Section provided however, the amount required to be transferred to the Bond Trustee by MTC for deposit in the Bond Fund in accordance with this paragraph shall never exceed in the aggregate $52,067,472.83. Section 4.2 Eeglations and Permits. MTC shall do all reasonable things necessary to maintain in ?Jll force and effect for the bene?t of the Facility and the LGC all licenses and permits required for operation of the Facility. Section 4.3 MTC Personnel. MTC shall have the sole re5ponsibility for interviewing, hiring, training, assigning, controlling, managing, compensating, promoting, and terminating of all members of the Facility's administration and staff. MTC shall comply with all applicable Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 5 of 27 federal and state laws in the hiring and the employment of all administration and personnel at the Facility. MT will use its best efforts to hire and train local personnel. Section 4.4 Repair and Maintenance Services. Once the repurposing of the Facility is complete as described in Article 6, MTC shall preserve and keep the Facility in good repair, working order, and condition, subject to normal wear and tear, and will from time to time make or cause to be made all necessary and proper repairs that shall thereupon become part of the Facility. MTC shall have authority to expend LGC ?mds approved in the budget process or in the Bond reserves for all maintenance or improvements to the Facility. MTC shall not authorize any incident of emergency repairs or improvements to the Facility in excess of $10,000.00 without the prior written consent of the LGC, which consent shall not be unreasonably withheld. The LGC will bear the cost of repair, replacement, or renovations of the physical plant, equipment, and/or systems exceeding $10,000 and replace or repair such physical plant parts, equipment, or systems with physical plant parts, equipment, and/or systems having like ?mctional ability, life expectancy, and quality. Section 4.5 Marketing Services. MTC shall use its best efforts to secure commitments from Assigning Entities for the housing of offenders at the Facility. MTC shall have sole discretion, which shall be exercised in good faith, to carry out its marketing programs. Section 4.6 ACA Compliance and Certification. MTC shall do all things reasonably necessary to achieve and maintain American Correctional Association accreditation of the Facility. However, in the event the design or construction of the Facility does not meet mandatory ACA standards, MTC shall have no responsibility or obligation to correct or remedy any defect or de?ciency in the design or construction of the Facility in order to meet its operational obligations under this Agreement, but shall advise and assist the LGC in remedying such defects or de?ciencies to the extent LGC funds are available. Section 4.7 Taxes. MTC shall disburse funds as required to pay all taxes when due to include payroll taxes, sales taxes, property taxes on property owned by MTC, or any other tax owed by MTC, of whatever nature arising. The LGC speci?cally acknowledges and con?rms that the Facility is being used for the public purpose of housing offenders from Assigning Entities. The LGC also acknowledges and con?rms that it is the owner and holder of the equitable title to the Facility. The LGC is a governmental entity automatically exempt from ad valorem taxation and the owner of the equitable title to the Facility; thus, the Facility is not subject to ad valorem taxation. Section 4.8 Con?icts With Assigning Entity Contracts. Ifany conflict arises between the duties and obligations of MT as contained in this Agreement and the duties and obligations of MTC as contained in the Assigning Entity Contracts, the Assigning Entity Contracts shall control in all instances. Section 4.9 Scholarship Fund. During each year of this Agreement, MT shall provide $10,000 in scholarship ?mds to graduating senior high school students located within Willacy County. Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 6 of 27 Section 4.10 Accounting and Reporting. MTC shall maintain a general ledger and back- up accounting records typical ofa commercial business enterprise covering the operations of the Facility within the guidelines of generally accepted accounting principles. Upon completion of each contract year of the Facility, MTC shall cause a certi?ed audit of the operation of the Facility to be prepared by an independent certi?ed public accountant designated by the LGC. MTC will pay up to $10,000 of the cost of such audit (the LGC will pay any remaining fees). MTC shall cause its personnel to assist in every reasonable way such that the accounting work supporting the audit report may be timely and ef?ciently prepared. ARTICLE 5 Section 5.1 The LGC covenants and will assure that all offenders related to the Assigning Entity Contracts set forth in Article I of this Agreement will be permitted housing in the Facility as set out in this Agreement. Section 5.2 The LGC shall cooperate with MTC in all matters of law enforcement, security, and communications as may be required by state or federal law for the Operation of the Facility. Section 5.3 The LGC shall assist and cooperate with MT for purposes of obtaining such licensing as may be required by any applicable state or federal law for MTC's employees hired to operate the Facility. The LGC shall assist and cooperate with MTC in providing information required by MTC in the screening of candidates for employment to the extent such information may be law?rlly obtained or released under federal or state law. The LGC may verify that all MTC employees undertaking correctional officer duties at the Facility are certi?ed, as may be required by law. ARTICLE 6 Facility Section 6.1 Exclusive Right of Occupancy and Us. The LGC hereby grants to MTC the exclusive right to occupy and use the Facility at no cost for the purposes of MTC perforating its duties under this Agreement. Section 6.2 Repggosing of Facility. The LGC grants MTC the right to repurpose the Facility to comply with the physical plant standards required by the BOP Contract. MTC agrees to cause the repurposing of the Facility to be substantially completed on or before September I, 2011. The LGC will provide $8,025,869 (without ?nancing) hour the proceeds of the Bonds deposited in the Improvements Fund under the Trust lndenture for payment of the costs of such repurposing. MTC and LGC agree to comply with the requirements of Section 431.101(g) of the Texas Transportation Code, as amended. Section 6.3 Sales Tax Exemption. MTC shall pay all sales, consumer, use and similar taxes and shall secure and pay for building and other permits and governmental fees, licenses, and inspections necessary for the proper execution and completion of the repurposing of the Facility that are either customarily secured for such work for construction or are legally required. This is a Separated Contract and the LGC shall cause to be provided to MTC a Tax Exemption 5 Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 7 of 27 Certi?cate that will allow the material and equipment purchased for this project to be purchased without any state taxes being owed or paid. In order to comply with the sales tax law of the State of Texas, this Agreement shall be considered a Separated Contract with the costs of Materials and Equipment to be $4,386,836 and the costs of Services to be $3,639,033, when combined the total repurposing contract amount is $8,025,869. Section 6.4 Assigu_ment of Warranties. The LGC hereby assigns to MTC all respective rights of warranties and guarantees ?owing from the owner, designer, architect, and/or builder of the Facility to the LGC and ?rrther grants to MTC all rights to enforce such warranties and guarantees. Section 6.5 Hazardous Materials. MTC's obligations hereunder expressly exclude any work or obligations of any nature associated or connected with the identi?cation, abatement, cleanup, control, removal, or diaposal of any hazardous materials that are or may be included in the structures and equipment at the Facility or in the environment at and adjacent to the Facility. The LGC will be responsible for doing whatever is necessary to correct the condition or render such materials or substances harmless in accordance with all applicable laws. This Section will survive the termination or expiration of this Agreement. ARTICLE 7 Represented on_s and Warranties Section 7.1 ngresentations of MTC. MTC represents and warrants to and for the bene?t of the LGC, with the intent that the LGC will rely thereon for purposes of entering into this Agreement as follows: Organization and Quali?cation. MTC has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and is authorized to do business and is in good standing under the laws of the State of Texas, with power and authority to own its properties and conduct its business as presently conducted. Authorization. This Agreement has been duly authorized, executed, and delivered by MTC and, assuming due execution and delivery by the LGC, constitutes a legal, valid, and binding agreement enforceable against MTC in accordance with its terms. Disclosure. MTC does not have actual knowledge of any material fact that materially and adversely affects or in the future will (so far as MTC can now reasonably foresee) materially and adversely affect ability to perform its obligations under this Agreement that has not been accurately set forth in this Agreement or otherwise accurately disclosed in writing to the LGC by MTC prior to the date hereof. Section 7.2 Representations of the Countv. The LGC represents and warrants to and for the bene?t of MTC, with the intent that MTC will rely thereon for purposes of entering into this Agreement as follows: Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 8 of 27 Authorization. This Agreement has been duly authorized, executed, and delivered by the LGC and any other necessary government entity, and assuming due execution and delivery by MTC, constitutes a legal, valid, and binding agreement enforceable against the LGC in accordance with its terms. Disclosure. There is no material fact that materially and adversely affects or in the future will (so far as the LGC can now reasonably foresee) materially and adversely affect the ability to perform its obligations under this Agreement that has not been accurately set forth in this Agreement or otherwise accurately disclosed in writing to MTC by the LGC prior to the date hereof. ARTICLE 8 Equipment and Property Section 8.1 E?ipment. In order to repurpose the Facility to comply with the BOP Contract, MTC shall use bond proceeds to cause the Facility to be adequately equipped as required by the BOP Contract. After the repurposing is complete, all equipment necessary for the Facility will be handled according to Section 4.4. Section 8.2 LGC-Owned Propc?. The ownership of all LGC-owned, non-expendable property and equipment listed in Appendix A shall remain with the LGC and shall not be removed from the Facility without the LGQ's prior written approval. MTC shall have the use of all LGC equipment during the term of this Agreement. Section 8.3 Return of Equipment. At the conclusion of this Agreement, MTC shall insure that all LGC-owned movable property and equipment, including replacements, remains at the Facility in the condition in which such preperty and equipment were received, normal wear and tear excepted. Section 8.4 Additional and Replacement Eguipment. MTC may, from time to time, during the term of this Agreement, with the authorization and consent of the LGC and in accordance with the Operating Plan, install machinery, equipment, and other prOperty in the Facility, which may be attached or af?xed to the Facility. If such machinery, equipment, and other personal property is not paid for from separate LGC funds, it shall remain the sole property of MT C. At the termination of MTC's services under this Agreement, the LGC shall have the right to purchase from MTC any equipment used in the Facility and owned by MTC at its market value. Section 8.5 Return of 0th or Propem. Upon termination of this Agreement all written procedures, maintenance records, operational manuals, and other written materials relating to or developed for the use of the Facility shall be returned to the LGC, except those items considered proprietary, or which may be subject to privacy, con?dentiality, or other limitations imposed by an Assigning Entity, law, rule, regulation or applicable court order. Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 9 of 27 ARTICLE 9 Events of Default Section 9.1 Events of Default. The following shall be an Event of Default and either party to this Agreement may terminate this Agreement upon the occurrence of such event: A material failure by either party to keep, observe, perform, meet, or comply with any covenant, agreement, term, or provision of this Agreement and such failure continues for period beyond the curative period provided below after written notice thereof. A material failhre by either party to make any payment required by this Agreement (and not in dispute) within thirty (30) days from the date it is due. A party admitting in writing its inability to pay its debts; (ii) making a general assignment for the bene?t of creditors; suffering a decree or order appointing a receiver or trustee for it or substantially all of its property to be entered and, if entered, without its consent, not to he stayed or discharged within sixty days; (iv) suffering proceedings under any law relating to bankruptcy, insolvency, or the reorganization or relief of debtors to be instituted by or against it and, if contested by it, not to be dismissed or stayed within sixty days; or suffering any judgment, writ of attachment or execution, or any similar process to be issued or levied against a substantial part of its property that is not released, stayed, bonded, or vacated within sixty (60) days after issue or levy. The discovery by either party that any material statement, representation, or warranty by the other party in this Agreement is false, misleading, or erroneous in any material aspect. Section 9.2 Force Maieure. The failure to perform any of the terms and conditions of the Agreement resulting ?'om Force Maj eure shall not be considered a breach or an Event of Default. As used herein, Force Maj eure means neutral and other disasters, including but not limited to, floods, earthquakes, wars, riots, epidemics, landslides, lightning, storms, explosions, and any act of God not within the control of a party. Section 9.3 Curative Period. Ifany default of this Agreement by either party remains uncured for a period of thirty (30) days after written notice thereof, such breach shall be an Event of Default, provided that if the breach Speci?ed in the notice cannot be corrected within such thirty (30) day period and a substantial effort in good faith has been undertaken to cure said breach by the offending party, said breach shall not be an Event of Default if it is cured within ninety (90) days after such written notice. Section 9.4 Remedy. Upon the occurrence of an Event of Default, either party shall have the right to pursue any remedy it may have at law or in equity in addition to the rights to termination set out above. Section 9.5 Interference. In the event this Agreement terminates by its terms or upon an Event of Default by MTC, MTC agrees not to interfere with the LGC, or its assigns, in Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 10 of 27 obtaining another contractor to perform the services provided for in this Agreement, except to the extent that the LGC, or its assigns, interferes with the preperty rights of MTC. Section 9.6 Termination Due to Third Pam Action. In the event that any court order is issued enjoining the use of all or a portion of the Facility for the Incarceration of offenders, this Agreement shall terminate by its own means, without penalty to either party, effective as of the date that such injunction becomes effective. Section 9.7 Compensation Upon Termination. In the event oftennination of this Agreement, MTC shall be entitled to compensation for each day up to and including the termination date. ARTICLE 10 surance Section 10.1 MTC Insurance. MTC shall obtain and maintain the following insurance coverage until this Agreement is terminated: Workers' compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction of its employees engaged in the performance of the services hereunder, and Employers? Liability insurance with a minimum limit of $1 million. Evidence ofquali?ed self- insured status shall also su?ce for this Section. Commercial General Liability insurance with a minimum combined single limit of $5 million for each occurrence and in the aggregate. Where appropriate, Comprehensive Business Automobile Liability insurance with a minimum combined single limit of $1 million for each commence and an aggregate of $2 million. Commercial Property insurance (that includes Windstorm coverage) that covers the greater of the original cost or the replacement cost of the buildings, ?xtures, and equipment plus business interruption insurance covering the average operations and maintenance cost and annual debt service payments due under the Bonds. In no event shall LGC be liable for any business interruption or other consequential loss sustained by MTC. MTC shall ensure its Commercial General Liability and Comprehensive Business Automobile Liability insurance policies name the LGC, and the Bond Tmstee as additional insured, as their interests may appear. MTC shall ensure its Commercial Pr0perty insurance names Bond Trustee as mortgagee and loss payee. Each insurance policy required above shall contain provisions that coverage afforded under the policies shall not be canceled, terminated, or materially altered without at least thirty (30) days prior written notice to MTC as the policyholder. In the event MT receives any such notice it will provide a copy thereof to the LGC and the Bond Trustee. All insurance shall be obtained through companies who have a Best's rating of not less than A-. Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 11 of 27 Section 10.2 LGC Insurance. LGC will maintain all insurance not described in Section 1 0.1 that is required by law to protect the Facility or LGC operations. (C) 01) ARTICLE ll Indemni?cation. MTC shall defend, indemnify, and hold harmless the LGC from any claim, demand, suit, liability, judgment, and expense (including attorney's fees and other costs of litigation) (collectively, a ?Claim?) arising out of or relating to injury, disease, or death of persons or damage to or loss of preperty resulting from or in connection with the performance of this Agreement by MTC, its agents, employees, and subcontractors, or any one for whom MT may be reaponsible. Notwithstanding the foregoing, MTC shall have no obligation to insure, defend, indemnify, or hold harmless the LGC from any Claim arising out of or relating to any LGC policy, LGC order, internal management procedures, ?nancial procedures, court orders, administrative rules, and governmental requirements of law, which govern MT relative to the custody and supervision of offenders (collectively, "Imposed Requirements?). Additionally, the obligations, indemnities, and liabilities assumed by MTC under this paragraph shall not extend to any liability caused by the negligence of the LGC or its employees. The LGC shall reasonably notify MTC of any claim for which it may be liable under this paragraph. To the extent allowed by law, the LGC shall defend, indemnify, and hold harmless MTC from any Claim arising out of or relating to injury, disease, or death of persons or damage to or loss of property resulting from or in connection with an Imposed Requirement or the performance of this Agreement by the LGC, its agents, employees and subcontractors, or any one for whom the LGC may be reaponsible. 'Ihe obligations, indemni?es, and liabilities assumed by the LGC under this paragraph shall not extend to any liability caused by the negligence of MTC or its employees. MT shall reasonably notify the LGC of any claim for which it may be liable under this paragraph. Neither the LGC nor MTC shall waive, release, or otherwise forfeit any possible defense the LGC or MTC may have without the consent of the other party relative to claims arising from or made in connection with the operation of the Facility by MTC. The LGC and MTC shall preserve all such available defenses and cooperate with each other to make such defenses available for each other's bene?t to the maximum extent allowed by law. This Section will survive the expiration or termination of this Agreement. ARTICLE 12 mm Section 12.1 Indgpendent Contractor Status. MTC, in the performance of its duties under this Agreement, shall occupy the position of an independent contractor with respect to the 1i]I Case Document 1-1 Filed in TXSD on 12/07/16 Page 12 of 27 LGC. Nothing contained herein shall be construed as making the parties hereto partners or joint ventures, nor, as expressly provided herein, construed as making MT an agent or employee of the LGC. Section 12.2 Headings. The headings contained herein are for convenience only and are not intended to de?ne or limit the scope of intent of any provision of this Agreement. Section 12.3 Governing Law. The validity of this Agreement, the construction of its terms, and the interpretation of the rights and duties of the parties hereto shall be governed by the laws of the State of Texas. Section 12.4 Notices. All notices called for or contemplated hereunder shall be in writing and shall be valid when actually received by the party to whom such notice is given if sent via a private courier, such as Federal Express or Airborne, or by telec0py, or by means other than the United States Mail, or on the date when deposited in the United States Mail, postage prc-paid, and sent by Certi?ed Mail, Return Receipt Requested and addressed to the party as herein Speci?ed below: Notices to LGC shall be delivered or sent as follows: Willacy County Local Government Corporation 190 N. 3'?1 Street Courthouse Annex Building Raymondville, TX 78580 Notices to MTC shall be delivered or sent as follows: Management Training Corporation 500 North Marketplace Drive P.0. Box 10 Centerville, UT 84014 Attn: Senior Vice President, Corrections (0) Copies of all notices given to the LGC or to MTC shall be sent to the Trustee by the same means as the notice sent to the primary addressee. Section 12.5 Successors. This Agreement shall be binding upon and inure to the bene?t of the respective parties and their permitted assigns and successors in interest. Section 12.6 Attome?s Fees. If it shall become necessary for either party hereto to engage attorneys to institute legal action for the purpose of enforcing its rights hereunder, the party prevailing in such litigation shall be entitled to receive all costs of any appeals, from the losing party. Section 12.7 Severabiligz. Should any term or provision hereof be deemed invalid, void, or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and, if the subject term or provision 11 Case Document 1-1 Filed in TXSD on 12/07/16 Page 13 of 27 is deemed to be invalid, void, or unenforceable only with reapect to a particular application, such term or provision shall remain in full force and effect with reapect to all other applications. Section 12.8 Defense Immunity. By entering into this Agreement, neither the LGC nor MTC waives any immunity or defense that may be available to it by Operation of law, including any limitation on the amount of damages that may be awarded. Section 12.9 Waivers. No waiver of any breach of any of the terms or condition of the Agreement shall be held to be a waiver of any other or subsequent breach; nor shall any waiver be valid or binding unless the same shall be in writing and signed by the party alleged to have granted the waiver. Section 12.10 Countemarts. This Agreement may be executed in any number of counterpart originals, each of which shall be deemed an original instrument for all purposes, but - all of which shall comprise one and the same instrument This Agreement may be delivered by facsimile. Section 12.11 Con?dentiali?. Any con?dential or proprietary information provided to or developed by a party in the performance of this Agreement shall be kept con?dential, unless otherwise required by law, and shall not be made available to any individual or organization without the prior written consent of the disclosing/developing party. This Section will survive the expiration or termination of this Agreement. Section 12.12 Third PM Rights. The provisions of this Agreement are for the sole bene?t of the parties hereto and shall not be construed as conferring any rights on any third person. Section 12.13 Assignment. This Agreement shall be assignable by either party upon mutual written consent of the parties hereto. Any prohibited assignment will be deemed void Section 12.14 Entire Agreement; Amendment This Agreement is the entire agreement between the parties and replaces all prior agreements, and any amendment hereto must be in writing and signed by both parties. Section 12.15 Execution Authorigl. By his or her signature below, each signatory individual certi?es that he or she is the properly authorized agent or of?cer of the applicable party hereto and has the requisite authority necessary to execute this Agreement on behalf of such party, and each party hereby certi?es to the other that any resolutions necessary to create such authority have been duly passed and are now in ?rll force and effect. 12 Case Document 1-1 Filed in TXSD on 12/07/16 Page 14 of 27 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. WELACY COUNTY LOCAL GOVERNMENT CORPORATION (ix?mi John F. Ghnzales, Jr., President ATTEST: 571 444? aryf?Sec?ary FOR MANAGEMENT TRAINING CORPORATION Management Training Corporation Scott Marquardt President and Chief Executive Of?cer 13 Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 15 of 27 ill-x2 OPERATIONS AND MANAGEMENT SERVICES AGREEMENT 'l THIS OPERATIONS AND MANAGEMENT SERVICES AGREEMENT (the "Agreement"), dated July 21, 2006 is made and entered into by and between Willacy County Local Government Corporation and Management Training Corporation, a Delawar corporation RECITALS WHEREAS, LGC desires to contract with MTC to manage the Willacy County Processing Center (the ?Facility") for the bene?t of LGC and MTC desires to manage the Facility. all in accordance with the terms and conditions of this Ageement as hereinafter set forth. NOW, THEREFORE, in consideration of the mutual covenants herein contained the parties hereby agree as follows: ARTICLE I Term' Termination Section 1.1. Term: Effective Date. LGC hereby appoints MTC exclusively and MTC hereby accepts this appointment as manager and Operator of the Facility. The term of this Agreement shall commence on August 1, 2006 (?Effective Date") and continue inde?nitely unless terminated in writing by either party as set forth in Section 1.2. Section 1.2. Termination. This Agreement may be terminated by either party by giving one hundred (100) calendar days prior written notice of the intent to terminate to the other party, unless less time is agreed Upon by the parties. ARTICLE II Duties and Authoritv of MTC Section 2.1. @neral Dutieg. Subject to the rights of the parties to terminate this Agreement as provided herein, MTC shall be responsible for the full and complete management and operation of the Facility. MTC shall develop an operating plan for the operation and management of the Facility (which shall contain comprehensive standards for conditions of con?nement) ("Operating Plan" and shall submit the Operating Plan to LGC for its approval. MTC shall operate, maintain, and manage the Facility in compliance with the Inter- Governmental Service Agreement entered into between Willaey County, Texas (the ?County") and the United States Department of Homeland Security, US. Immigration and Customs Enforcement dated June 20, 2006 (the as amended by the Operating Plan, all applicable federal and state constitutional requirements and laws, and any applicable provisions of the trust indenture related to bond funding of the Facility (the rust Indenture"). obligations hereunder shall include those duties set forth as follows: Inmate Incarceration Services. MTC shall provide complete security for all detainees at the Facility and during transportation as set out below. Such security shall be at Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 16 of 27 least as stringent as the standards then prevailing in the corrections industry and shall comply with all applicable laws and regulations. Food Services. As a pan of the Operating Plan, MTC shall establish such policies and procedures for the providing of food services to detainees within the Facility, subject to applicable health code laws. Subject to compliance with the Operating Plan, MTC shall have the sole discretion, which discretion shall be exercised in good faith, to contract for outside services and to determine supply resources, vendors, dietary planning within the Facility, and the number of its employees necessary to perform these services. (0) Repair and Maintenance Services. Once the Facility construction is complete, MTC shall preserve and keep the Facility in good repair, working order, and condition, subject to normal wear and tear, and will from time to time make or cause to be made all necessary and prepcr repairs that shall thereupon become part of the Facility. Administration Services. As part of the Operating Plan, MTC shall establish and develop policies and procedures for the general operation of the Facility and shall deveIOp the same into manuals provided to LGC. Other Services. MTC shall also provide to the Facility the following services andlor items as more fully described in the Operating Plan: (1) Detainee laundry services and clothing: (2) Tran5portation of detainees to ground locations for further transportation by (3) Transportation of detainees to hOSpital and medical appointments, as needed; (4) Detainee recreation and exercise program; (5) Safety services, including an emergency and ?re prevention and suppression plan (all services will he conducted in compliance with applicable safety and ?re codes); and (6) Detainee disciplinary system and grievance procedure. Section 2.2. No Medical Services. MTC shall not provide medical services to the detainees. MTC shall provide the detainees with written instructions for gaining access to health care services and conduct sick calls as required by the ICE IGA. Section 2.3. Personnel: Staf?ng. MTC shall have sole authority to select, hire, train, supervise, discipline, and discharge all of the employees within the Facility. Under no circumstances shall any such employee be an agent, servant or employee of LGC. MTC shall comply with all applicable state or federal laws regarding employment practices within the State Case Document 1-1 Filed in TXSD on 12/07/16 Page 17 of 27 of Texas and the United States of America. MTC shall provide adequate training of personnel employed by MTC. Additionally, MTC shall provide staf?ng for the Facility in accordance with the Operating Plan. LGC shall assist and cooperate with MTC for purposes of obtaining such licensing as may be required by any applicable state or federal law for MTC's employees hired to operate the Facility. LGC shall assist and cooperate with MTC in providing information required by MTC in the screening of candidates for employment to the extent such information may be lawfully obtained or released under federal or state law. LGC may verify that all MTC employees undertaking correction of freer duties at the Facility are certi?ed, as may be required by law. Basednpon the representations made by contracting of?cials for ICE. both MTC and LGC assume and are relying upon the fact that the Service Contract Act 41 U.S.C.A. 351 requiring the utilization of a certain prevailing wage rate, is not applicable to this Agreement. If the SCA is found to be applicable to this Agreement, then the compensation to be paid to LGC by the County under the assignment of the ICE IGA to LGC (the (or to the County by ICE) will be increased, and the compensation to be paid to MTC pursuant to this Agreement shall be increased, so as to re?ect the increased costs required by the SCA and to fairly compensate MTC. If LGC/County is unable to reasonably argue with ICE that the SCA is not applicable to this Agreement, and the related increase in compensation is not available to LGC and to MTC as described herein, then either party shall have the a right to terminate this Agreement as set forth in Section above. Section 2.4. Aggeernents. MTC shall select all vendors, suppliers, contractors, and subcontractors with respect to operations of the Facility. MTC shall have the authority to prepare and execute all contracts normal, routine, and reasonable for the continuance of general operations of the Facility unless otherwise specified in this Agreement, including, but not limited to, all purchases for goods and services and contracts for detainee care within the Facility. MTC may enter into all such contracts in the name of the Facility, so long as MT is clearly identi?ed as the manager and operator of the Facility. Section 2.5. Regulations and Permits. MT shall do all reasonable things necessary to maintain in ?rll force and effect for the bene?t of the Facility and LGC all licenses and permits required for operations of the Facility. Section 2.6. Accounting and Reporting. MTC shall maintain a general ledger and back- up accounting records typical of a commercial business enterprise covering the operations of the Facility within the guidelines of generally accepted accounting principles. Upon completion of each contract year of the Facility, MTC shall cause a certi?ed audit of the Operation of the Facility to be prepared by an independent certi?ed public accountant designated by the County. MTC will pay up to $10,000 of the cost of such audit (the LGC/County will pay any remaining fees). MT shall cause its personnel to assist in every reasonable way such that the accounting work supporting the audit report may be timely and ef?ciently prepared. Case Document 1-1 Filed in TXSD on 12/07/16 Page 18 of 27 Section 2.7. Taxes. MT shall pay when due all of its own taxes related to its employees, equipment, or Facility Operations. Section 2.8. Scholarship Fund. During each year of this Agreement, MTC shall provide $10,000 in scholarship funds to graduating senior high school students located within the County. ARTICLE 111 may Section 3.1. Management Fees. From the Effective Date through July 31, 2007, LGC agrees to pay or to direct the Trustee to pay MTC compensation for the services provided hereunder at a set fee per detainee of Twenty-Eight Dollars and 75/100 ($28.75) per occupied bed per Detainee Day (the ?First Fee"). From August I, 2007 through the termination of this Agreement, LGC agrees to pay or to direct the Trustee to pay MTC compensation for the services provided hereunder at a set fee per detainee of Twenty-Seven Dollars and 75/100 ($27.75) per occupied bed per Detainee Day (the ?Second Fee"). For purposes of this Agreement, the term ?Detainee Day? shall mean each calendar day or part thereof during which a detainee is assigned to the Facility. For purposes of this Agreement, the Trustee is U.S. Bank National Association. LGC shall direct the Trustee to pay MTC the First and Second Fees based upon available funds in the Operating Account as set forth in the Trust Indenture. MTC shall forward an invoice to LGC for the prior month ?5 services rendered. MT C?s in voices will contain the infonnation required by the ICE IGA. If the ICE IGA is ever modi?ed, or if the LGC enters into other contracts with other jurisdictions as contemplated under the Trust lndenture, which in either case results in a change of responsibilities of MTC hereunder, or if the County/LGC receives an inflationary adjustment under the ICE IGA, LGC and MT agree to negotiate in good faith to amend this Agreement to comply with such changes if applicable, including a change in MTC's compensation hereunder, provided any such change or any other modi?cation hereof, shall comply with Rev. Proc. 97-13 and Treas. Reg. 1.141-2 and shall not adversely affect the exclusion (for federal income tax purposes) ?om gross income of interest on any bonds issues under the Trust Indenture that purport to be tax exempt. Section 3.2. Evoice Preparation. In addition to the invoice set forth in Section 3.1, MTC will prepare two additional invoices for LGC's use. The ?rst invoice will be for LGC to submit to ICE and will contain the fee set out in the ICE IGA multiplied by the number of detainees per occupied bed per Detainee Day. In the second invoice LGC and MTC shall send to the Trustee will be in accordance with the provisions of Section 5.060) of the Trust Indenture that directs the Trustee to make payment to LGC for the bene?t of Willacy County, if there are any funds in the surplus account, after the distributions described in Section 5.06. Section 3.3. Transportation Reimbursement. LGC will reimburse MTC for all transportation expenses MTC incurs to transport detainees as set out in the ICE IGA. Such expenses will be included as a separate line item in MTC's invoices above. Section 3.4. ginard Services. LGC will reimburse MTC for providing the guard services described in the ICE IGA at the rate set forth in the ICE IGA. invoices will contain the information required by the ICE IGA. Case Document 1-1 Filed in TXSD on 12/07/16 Page 19 of 27 Section 3.5. Operating Expenses During Construction. During the construction phase . of the Facility, MTC will incur certain operating expenses, including hiring and training personnel to ensure that it has adequately trained personnel to accept the ?rst detainee for housing and care at the Facility. MTC will also purchase equipment for the Facility. LGC will reimburse or direct reimbursement to MTC in an amount of up to $3 million out of the bond proceeds used to construct the Facility. ARTICLE IV Renresentations and Warranties Section 4. . Representations of MTC. MTC represents and warrants to and for the bene?t of LGC, with the intent that LGC will rely thereon for purposes of entering into this Agreement as follows: O?niggtign and Quali?cation. MT has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and is authorized to do business and is in good standing under the laws of the State of Texas, with power and authority to own its properties and conduct its business as presently conducted. Authorization. This Agreement has been duly authorized, executed, and delivered by MTC and, assuming due execution and delivery by LGC, constitutes a legal, valid, and binding agreement enforceable against MTC in accordance with its terms. DiscIOSure. MTC does not have actual knowledge of any material fact that materially and adversely affects or in the future will (so far as MTC can now reasonably foresee) materially and adversely affect MTC's ability to perform its obligations under this Agreement that has not been accurately set forth in this Agreement or otherwise accurately disclosed in writing to LGC by MTC prior to the date hereof. Section 4 .2. Representations of LGC. LGC represents and warrants to and for the bene?t of MTC, with the intent that MT will rely thereon for purposes of entering into this Agreement as follows: Authorization. This Agreement has been duly authorized, executed, and delivered by LGC and, assuming due execution and delivery by MTC, constitutes a legal, valid, and binding agreement enforceable against LGC in accordance with its terms. Disclosure. There is no material fact that materially and adversely affects or in the future will (so far as LGC can now reasonably foresee) materially and adversely affect LGC's ability to perform its obligations under this Agreement that has not been accurately set forth in this Agreement or otherwise accurately disclosed in writing to MTC by LGC prior to the date hereof. Payments. Subject to the terms of the Trust l'ndenture, it has been represented to Willacy County that payments made to the LGC for the bene?t of Willacy County from the per diem rates described in Section 3.2 can be used by the County for costs Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 20 of 27 which are not directly related to the housing and detention of detainees to include but not limited to: (1) Salaries of elected of?cials. (2) Salaries of employees not directly engaged in the housing and detention of detainees. (3) Indirect costs in which a percentage of all local government costs are pro- rated and applied to individual departments. (4) Detainee services which are not provided to, or cannot be used by detainees. (5) Operating costs of facilities notutilized by detainees. ARTICLE Facility Section 5.1. Ri gl_1t of Occupangy and Use. LGC hereby grants to MT the right to occupy and use the Facility at no cost for the purposes of MT performing its duties under this Agreement. Section 5.2. Assiment of Warranties. LGC hereby assigns to MTC all reSpective rights of warranties and guarantees ?owing from the designer, architect andfor builder of the aeiljty to LGC and further grants to MTC all rights to enforce such warranties and guarantees. Section 5.3. Hazardogs Materials. obligations hereunder expressly exclude any work or obligations of any nature associated or connected with the identi?cation, abatement, cleanup, control, removal, or disposal of any hazardous materials that are or may be included in the structures and equipment at the Facility or in the environment at and adjacent to the Facility. This Section will survive the termination or expiration of this Agreement. ARTICLE VI mm Section 6.1. Eguipment. MTC shall cause the Facility to be adequately equipped, as required by the ICE IGA, using the funding described in Section 3.5 above. Section 6.2. LGC?Owned Pronertv. The ownership of all LGC-owned, non-expendable property and equipment listed in Appendix A shall remain with LGC and shall not be removed ?'om the Facility without LGC's prior written approval. MTC shall have the use of all LGC equipment during the term of this Agreement. Section 6.3. Return of Euipment. At the conclusion of this Agreement, MTC shall insure that all LGC-owned movable preperty and equipment, including replacements, remains at the Facility in the condition in which such property and equipment were received, normal wear and tear excepted. Case Document 1-1 Filed in TXSD on 12/07/16 Page 21 of 27 Section 6.4. Additional and Replacement Quipment. MT may, from time to time, during the term of this Agreement, with the authorization and consent of LGC and in accordance with the Operating Plan, install machinery, equipment, and other property in the Facility, which may be attached or af?xed to the Facility. If such machinery, equipment, and other personal property is not paid for from separate LGC ?rnds (not First or Second Fees) it shall remain the sole property of MTC. At the termination of MTC's services under this Agreement, LGC shall have the right to purchase from MT any equipment used in the Facility and owned by MTC at its market value. Section 6.5. Return of cher Property. Upon termination of this Agreement all records, contracts, agreements, correspondence, manuals, accounts, and other written materials relating to or developed for the use of the Facility shall be returned to LGC, except those items considered proprietary or con?dential by MTC. ARTICLE VII Events of Default Section . Events of Default. The following shall be an Event of Default and cause of either party to this Agreement to terminate this Agreement: A material failure by either party to keep, observe, perform, meet, or comply with any covenant, agreement, term, or provision of this Agreement and such failure continues for period beyond the curative period provided below alter written notice thereof; or A material failure by either party to make any payment required in this Agreement within thirty {30) days from the date it is due; or A party admitting in writing its inability to pay its debts, (ii) making a general assignment for the bene?t of creditors, suffering a decree or order appointing a receiver or trustee for it or substantially all of its property to be entered and, if entered, without its consent, not to he stayed or discharged within sixty days, (iv) suffering proceedings under any law relating to bankruptcy, insolvency, or the reorganization or relief of debtors to be instituted by or against it and, if contested by it, not to be dismissed or stayed within sixty days, or suffering any judgment, writ of attachment or execution, or any similar process to be issued or levied against a substantial part of its property which is not released, stayed, bonded, or vacated within sixty (60) days after issue or levy; or The discovery by either party that any material statement, representation, or warranty by the other party in this Agreement is false, misleading, or erroneous in any material aspect. Section 7.2. Force Majeure. The failure to perform any of the terms and conditions of the Agreement resulting from Force Majeure shall not be considered a breach or an Event of Default. As used herein, ?Force Majeure" means natural and other disasters, including but not limited to, ?oods, earthquakes, wars, riots, epidemics, landslides, lightning, storms, explosions, and any act of God not within the control of a party. Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 22 of 27 Section 7.3. Curative Period. If any default of this Agreement by either party remains uncured for a period of thirty (30) days after written notice thereof, such breach shall be an Event of Default, provided that if the breach speci?ed in the notice cannot be corrected within such thirty (30) day period and a substantial effort in good faith has been undertaken to cure said breach by the offending party, said breach shall not be an Event of Default if it is cured within ninety (90) days after such written notice. Section 7.4. Remedy. Upon the occurrence of an Event of Default either party shall have the right to pursue any remedy it may have at law or in equity in addition to the rights to termination set out above. Section 7.5. Interference. In the event this Agreement terminates by its terms or upon an Event ochfault by MTC, MTC agrees not to interfere with LGC, or its assigns, in obtaining another contractor to perform the services provided for in this Agreement, except to the extent that LGC, or its assigns, interferes with the property rights of MTC. Section 7.6. Termination Due to Third Party Action. In the event that any court order is issued enjoining the use of all or a portion of the Facility for the incarceration of detainees, this Agreement shall terminate, without penalty to either party, effective as of the date that such injunction becomes effective. Section 7.7. Compensation Upgn Termination. MT shall be entitled to compensation for each day up to the termination date. ARTICLE Qenain Prohibitions Section 8.1 . Notwithstanding any other Section of this Agreement, nothing contained herein shallbe interpreted to grant to MTC the authority to, and MTC shall not have any authority to: Calculate detainee release and parole eligibility dates; Award good conduct time to detainees; or Classify detainees or place detainees in less restrictive custody than the custody ordered by ICE. Section 8.2. Nothing in this Section shall prevent MTC from melting recommendations with respect to any of the above, it being understood that no action may be taken by MTC with respect to the above without prior written instructions by the applicable incarcerating entity. ARTICLE surance Section 9.1. MTC Insurance. MTC shall provide and maintain and cause its subcontractors to provide and maintain the following insurance coverage until obligations under this Agreement me satis?ed: Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 23 of 27 Workers? compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction of its employees engaged in the performance of the services hereunder, and Employers' Liability insurance with a minimum limit of $1 million. Evidence of quali?ed self-insured status shall also suf?ce for this Section. Commercial General Liability insurance with a minimum combined single limit ofSS million for each occurrence and in the aggregate. Commercial Property insurance (that includes windstorm coverage) in an amount equal to the greater of the principal amount of the bond proceeds used to construct the Facility or the full replacement cost of the building, fixtures, and equipment. As part of this coverage, MTC may, at its option, purchase business interruption, extra expense, or similar coverage, but in no event shall LGC be liable for any business interruption or other consequential loss sustained by MTC. Where appropriate, Comprehensive Business Automobile Liability insurance with a minimum combined single limit of $1 million for each occurrence and an aggregate of $2 million. MTC shall ensure its Commercial General Liability, Commercial Property, and Comprehensive Business Automobile Liability insurance policies name LGC and its individual members as loss payee. Such certi?cate shall identify this Agreement and contain provisions that coverage afferded under the policies shall not be canceled, terminated, or materially altered without at least thirty (30) days prior written notice to the other party. All insurance shall be obtained through companies who have a Best?s rating of not less than A-. MT will provide evidence of this coverage to LGC within ten (10) days of the parties' ?nal execution of this Agreement. Section 9.2. LGC Insurance. LGC will maintain all insurance not described in Section 9.1 that is required by law to protect the Facility or LGC operations. ARTICLE Indenuri?cation Section 10.1. Indemnification. MTC shall defend, indemnify, and hold harmless LGC from any claim, demand, suit, liability, judgment and expense (including attorney's fees and other costs of litigation) (collectively, a ?Claim") arising out of or relating to injury, disease, or death of persons or damage to or loss of property resulting born or in connection with the performance of this Agreement by MTC, its agents, employees and subcontractors or any one fer whom MTC may be reSponsible. Notwithstanding the foregoing, MTC shall have no obligation to insure, defend, indemnify, or hold harmless LGC from any Claim arising out of or relating to any LGC policy, LGC order, internal management procedures, ?nancial procedures, court orders, administrative rules, and governmental requirements of law, which govern MTC relative to the custody and supervision of detainees (collectively, "Imposed Requirements"). Additionally, the obligations, 3 Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 24 of 27 indemni?es, and liabilities assumed by MTC under this paragraph shall not extend to any liability caused by the negligence of LGC or its employees. LGC shall reasonably notify MTC of any claim for which it may be liable under this paragraph. To the extent allowed by law, LGC shall defend, indemnify and hold harmless MTC ?'orn any Claim arising out of or relating to injury, disease, or death of persons or damage to or loss of property resulting from or in connection with an Imposed Requirement or the performance of this Agreement by LGC, its agents, employees and subcontractors or any one for whom LGC may be reaponsible. The obligations, indemni?es and liabilities assumed by LGC under this paragraph shall not extend to any liability caused by the negligence of MTC or its employees. MTC shall reasonably notify LGC of any claim for which it may be liable under this paragraph. Neither LGC nor MT shall waive, release, or otherwise forfeit any possible defense LGC or MTC may have without the consent of the other party relative to claims arising {mm or made in connection with the operation of the Facility by MT C. LGC and MTC shall preserve all such available defenses and cooperate with each other to make such defenses available for each other's bene?t to the maximum extent allowed by law. This Section will survive the expiration or termination of this Agreement. ARTICLE XI Mm Section I 1. . ?eading. The headings contained herein are for convenience only and are not intended to de?ne or limit the scope of intent of any provision of this Agreement. Section 11.2. Independent Contractor Sta?. MTC in the performance of its duties under this Agreement shall occupy the position of an independent contractor with reSpect to LGC. Nothing contained herein shall be construed as making the parties hereto partners or joint ventures, nor, construed as making MTC an agent or employee of LGC. Section 11.3. Governing Law. The validity of this Agreement, the construction of its terms, and the interpretation of the rights and duties of the parties hereto shall be governed by the laws of the State of Texas. Section 11.4. Notices. All notices called for or contemplated hereunder shall be in writing and shall be valid when actually received by the party to whom such notice is given if sent via a private courier, such as Federal Express or Airborne, or by telecopy, or by means other than the United States Mail, or on the date when deposited in the United States Mail, postage prepaid, and sent by Certi?ed Mail, Return Receipt Requested and addressed to the party as herein speci?ed below: Notices to LGC shall be delivered or sent as follows: Willacy County Local Government Corporation 190 N. Street 10 Case Document 1-1 Filed in TXSD on 12/07/16 Page 25 of 27 Courthouse Annex Building Raymondville, Texas 78580 Notices to MTC shall be delivered or sent as follows: Management Training Corporation 500 North Marketplace Drive P.O. Box 10 Centervitle, UT 84014 Attn: Mr. Scott Marquardt and Mr. Odie Washington Section 1 1.5. Successors. This Agreement shall be binding upon and inure to the bene?t of the respective parties and their permitted assigns and successors in interest. Section 11.6. Anomegs Fees. If it shall become necessary for either party hereto to engage attorneys to institute legal action for the purpose of enforcing its rights hereunder, the party prevailing in such litigation shall be entitled to receive all fees and eXpenses, train the losing party. Section 11.7. Sever-ability. Should any term or provision hereof be deemed invalid, void, or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect and, if the subject term or provision is deemed to be invalid, void, or unenforceable only with respect to a particular application, such term or provision shall remain in ?ill force and effect with respect to all other applications. Section 11.8. Qefense Immunity. By entering into this Agreement, neither LGC nor MTC waives any immunity or defense which may be available to it by Operation of law, including any limitation on the amount of damages that may be awarded. Section 11.9. ?aivers. No waiver of any breach of any of the terms or condition of the Agreement shall be held to be a waiver of any other or subsequent breach; nor shall any waiver be valid or binding unless the same shall be in writing and signed by the party alleged to have granted the waiver. Section 11.10. counterparts. This Agreement may be executed in multiple counterparts each of which shall constitute but one Agreement. Section 11.11. Con?dentiality. Any con?dential or proprietary information provided to or developed by a party in the performance of this Agreement shall be kept con?dential, unless otherwise required by law, and shall not be made available to any individual or Organization without the prior Written consent of the disclosing/developing party. This Section will survive the expiration or termination of this Agreement. Section 1 1.12. Entire Aggeement: Amendment. This Agreement is the entire agreement between the parties and any amendment hereto must be in writing and signed by both parties. 11 Case Document 1-1 Filed in TXSD on 12/07/16 Page 26 of 27 Section 11.13. Third Pm Rights. The provisions of this Agreement are for the sole bene?t of the parties hereto and shall not be construed as conferring any rights on any third person. Section 11.14. Assi want. This Agreement shall be assignable by either party upon mutual written consent of the parties hereto. Section 11.15. Execution Authoring. By his or her signature below, each signatory individual certi?es that he or she is the properly authorized agent or officer of the applicable party hereto and has the requisite authority necessary to execute this Agreement on behalf of such party, and each party hereby certi?es to the other that any resolutions necessary to create such authority have been duly passed and are new in full force and effect. 11 Case 1:16-cv-00307 Document 1-1 Filed in TXSD on 12/07/16 Page 27 of 27 . IN WI HERE-10F. panics herein have cxccutcd this as ofthe dulc ?rst written above. COUNTY LOCAL GOVERNMENT 7 CORPORATION may 444.41, - Emilio Vera, President 756% G?n?retary FOR: MANAGEMENT 61. TRAINING CORPORATION Management 6r. Training Corporation NW, mw? R. coll Marq?ardl .. President and ChicI?Excculivc Of?cer 13