Amended And Restated Master Environmental Management Services Agreement Dated July 25, 2002 BY And Between Atlanta Gas Light Company And The Retec Group, Inc.

Exhibit 10.2*

Amended and Restated Master Environmental Management Services Agreement dated July 25, 2002 by and between Atlanta Gas Light Company and the RETEC Group, Inc.


*Confidential treatment pursuant to 17 CFR Section 200.80 (b) and 240.24b-2 has been requested regarding certain portions of the indicated Exhibit, which portions have been filed separately with the Commission.


AMENDED AND RESTATED
MASTER ENVIRONMENTAL MANAGEMENT SERVICES AGREEMENT

THIS AMENDED AGREEMENT is made and entered into on this 25th day of July, 2002, effective as of July 1, 2002, by and between Atlanta Gas Light Company (" AGLC" ), a Georgia corporation and The RETEC Group, Inc. (" Retec" ), formerly ThermoRetec Consulting Corporation, a Delaware corporation.

RECITALS

WHEREAS , AGLC, on behalf of itself and as agent for certain of its affiliates, manages the environmental investigation and remediation of certain properties where manufactured gas plants (" MGPs" ) formerly operated and at which certain investigation and clean-up activities (" Remediation Activities" ) are now or may be necessary or appropriate; and

WHEREAS , on April 24, 2000, AGLC, ThermoRetec Consulting Corporation and ThermoRetec Corp. entered into that certain Master Environmental Management Services Agreement (the " 2000 Agreement" ) under which ThermoRetec was retained to perform environmental management services at such sites and other duties as assigned by AGLC from time to time; and

WHEREAS , AGLC and Retec desire to amend and restate the 2000 Agreement, continuing in full force and effect, with no interruption, those provisions of the 2000 Agreement that are restated herein; and

WHEREAS , on January 23, 2001, AGLC and ThermoRetec Consulting Corporation amended the 2000 Agreement by letter Amendment dated January 23, 2001, attached hereto as Amended Exhibit 8 and, the provisions therein are incorporated into this Amended Agreement; and

WHEREAS , on February 5, 2001, certain investors and the management of ThermoRetec purchased the assets of ThermoRetec Consulting Corporation, and ThermoRetec Consulting Corporation is now operating as The RETEC Group, Inc.; and

WHEREAS , AGLC and Retec acknowledge that their mutual objective is to perform, or cause to be performed, such environmental management services in a sound and cost-effective manner that is in compliance with all applicable legal requirements and that reduces or eliminates the need for such services as expeditiously as practicable;

NOW THEREFORE , in consideration of the premises and the material covenants and agreements hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, AGLC and Retec agree as follows:

1.

Term. The effective date of this Amended Agreement shall be July 1, 2002 (" Effective Date" ). Subject to the early termination as set forth in Paragraph 9 , this Amended Agreement shall expire on the close of business on January 31, 2005 (the " Initial Term" ), or such later date as the parties may agree; provided, however, that upon sixty (60) days prior written notice, AGLC may extend the term of this Amended Agreement as reasonably necessary to complete the Remediation Activities. Except as expressly set forth herein, all of the parties' rights, duties and obligations first arising or existing on or before June 30, 2002, will be governed by the 2000 Agreement, and all rights, duties and obligations first arising or existing on or after July 1, 2002, will be governed by this Amended Agreement.

2.

Scope of Services .

2.1

The Services. Subject to the terms and conditions of this Amended Agreement, Retec is being retained to provide the environmental management services (" Services" ) as more specifically set forth in Amended Exhibit 1 attached hereto for the real properties listed in Amended Exhibit 2 attached hereto (" Sites" ), and Retec hereby agrees to perform such Services. As used herein, the term " Services" shall include the environmental management services as more specifically set forth in Amended Exhibit 1 and all Additional Services, as defined in Paragraph 2.3 hereof, approved by AGLC. Retec acknowledges that during and after the Initial Term of the Amended Agreement, AGLC may ask Retec to provide assistance, testimony or other evidence, whether at deposition, hearing, proceeding or trial, in relati on to the Services. Retec agrees to provide such service to AGLC and AGLC agrees to compensate Retec for its reasonable expenses and labor costs at Retec' s rates set forth in Exhibit 5 hereto to the extent the party compelling or requesting the testimony does not provide such compensation. In the event Retec receives a subpoena or other form of legal process or request in connection with Retec' s work in relation to the Services, Retec shall give prompt notice of same to AGLC and Retec shall respond in accordance with the parties' mutual agreement with respect thereto. Additional Sites and Services may be added to Amended Exhibits 1 or 2 at any time by mutual agreement of the parties. Additional Sites and Services may be removed from Amended Exhibits 1 or 2 (as applicable) at any time by AGLC. AGLC and Retec agree to use their best efforts to ensure completeness of, access to, and availability of files, data, records, personnel an d systems for the performance by Retec of the Services. AGLC shall have access to all files, data and records created or assembled by Retec.

2.2

Change Orders. AGLC reserves the right, by written notice to Retec, to make changes in the Services so long as such changes do not materially and adversely affect the cost or schedule as set forth in the current Retec Annual Budget (as defined below). Retec shall proceed with the Services, as changed, immediately after receipt of said written notice. If the parties cannot agree to the equitable adjustment to either the price and/or the schedule, then the party seeking relief may do so under the provisions of Paragraph 16 hereof.

2.3

Additional Services.

(A)

AGLC may from time to time during the term of this Amended Agreement request that Retec perform a service that would materially and adversely affect the cost or schedule as set forth in the current Retec Annual Budget (as defined below) (" Additional Services" ). Upon receipt of such a request from AGLC, Retec shall provide AGLC with:

(i)

a written description of the work Retec anticipates performing in connection with such Additional Services, if any;

(ii)

a schedule for commencing and completing such Additional Services;

(i)

Retec' s prospective charges for such Additional Services, including a detailed breakdown of any applicable charges, and any proposed additional or modified terms and conditions; and

(iv)

an estimate of the human resources necessary to provide the Additional Services.

(B)

Retec shall not begin performing any Additional Services until AGLC has provided Retec with written authorization to perform the Additional Services. If AGLC authorizes Retec to provide the Additional Services, then the parties shall execute a change order, which shall incorporate by reference the terms of this Amended Agreement and set forth the additional terms and conditions applicable to the provision of such Additional Services.

3.

Pricing and Payment Terms .

3.1

Retec' s Annual Budget. At least ninety (90) days prior to the end of each 12-month period ending on June 30, Retec will submit to AGLC a proposed detailed budget for the Services based on the work to be performed by Retec during the coming twelve (12) month period. The proposed budget shall reflect costs that were budgeted for the previous year, actual expenditures for the previous year, and costs that are anticipated to be incurred for the upcoming year and all remaining years. Each proposed budget shall also include all assumptions upon which Retec relies, and all supporting documentation and other documentation as AGLC may request. AGLC and Retec will work together to finalize the proposed budget which will be approved by AGLC prior to June 30th of that year. The approved Retec Annual Budget shall serve as authorization for work to be performe d by Retec hereunder for the period covered by the budget, except as modifications thereof are approved by AGLC. Notwithstanding the above, Retec shall submit the proposed Annual Budget for the 12 month period beginning July 1, 2002 on or before August 1, 2002 and AGLC shall approve such budget as soon as practicable thereafter.

3.2

Compensation.

(A)

All expenses, costs, and fees paid or incurred by Retec or for which Retec is entitled to payment or reimbursement, and which arose on or before June 30, 2002, and all of AGLC' s rights and duties with respect thereto, shall be governed by the applicable provisions of the 2000 Agreement , except as to matters that are expressly resolved and settled in paragraph (E) of this Paragraph 3.2 . All expenses, costs, and fees paid or incurred by Retec or for which Retec is entitled to payment or reimbursement, and which arise on or after July 1, 2002, and all of AGLC' s rights and duties with respect thereto, shall be governed by the applicable provisions of this Amended Agreement.

(B)

Effective July 1, 2002, in consideration for Retec' s prompt, faithful and complete performance of this Agreement to the satisfaction of AGLC and subject to conditions precedent to and as described in this Amended Agreement, AGLC will pay or reimburse Retec an amount equal to Retec' s reasonably incurred actual costs of the Services (" Actual Costs" ), plus fees (" Retec Fees" ). Actual Costs and Retec Fees for Group A, B and C Sites shall be determined as set forth below.

(C)

For Group " A" sites, as defined in Exhibit 2 attached hereto, Actual Costs are the sum of the invoiced amounts for those items set forth in Exhibit 4 attached hereto. The Retec Fees are 19% of the sum of the invoiced amounts for " Salaries and Wages" and " Applied Overhead" only, as defined in Items 1 ( Salaries & Wages ) and 2 ( Applied Overhead Rate ) on Exhibit 4 , less a withholding of 10% of the Retec Fees so calculated (" Discount Withholding" ) and less a retainage of 20% of the Retec Fees so calculated (" Retainage" ).

(i)

The Retainage amount will be withheld each month. The Retainage will be paid the first month immediately following the end of the quarter for the preceding quarter, provided Retec meets all of the preceding quarter' s threshold requirements (" Threshold Requirements" ). The Threshold Requirements for each quarter will be established in writing by AGLC' s Executive Sponsor prior to and during that quarter, in consultation with Retec' s Executive Sponsor, and based upon the advice of the Parties' Program Directors. The Threshold Requirements will be determined on a site-by-site basis and entitlement to payment of the Award Fee (defined below) and Retainage also determined on a site-by-site basis. Without limiting the generality of the foregoing, the Threshold Requirements are expected to be of the following nature:

ullet

Retec has met all deadlines in orders, CAPs, and AGLC-specified project milestones, except as compliance with deadlines is excused in Paragraph 4.1 of this Amended Agreement.

ullet

Retec' s quarterly expenditures were within 10% of the AGLC-approved site budgets for that quarter, taking into account changes in schedule mutually agreed by the parties.

ullet

Retec' s project management key documentation (as specified on Attachment A, Amended Exhibit 1 , attached hereto) has been timely submitted in acceptable form.


Satisfaction of the Threshold Requirements is a condition precedent to Retec' s eligibility for the Retainage payment and for payment of any award fee, as set forth below, subject only to excuse for good cause shown to AGLC' s satisfaction. Whether Retec has satisfied the Threshold Requirements will be determined by AGLC' s Executive Sponsor, in consultation with Retec' s Executive Sponsor, and based upon the advice of the Parties' Program Directors. Any failure to meet the Threshold Requirements for a site will be grounds for complete forfeiture of both the Retainage and any Award Fee, as defined below, relating to that site.

(ii)

If the Threshold Requirements are met, Retec will also be eligible for a quarterly evaluation of Retec' s performance for purposes of an annual payment of an Award Fee (" AF" ) in an amount equal to 0% to 200% of the Discount Withholding. The quarterly AF award, if any, will be based upon AGLC' s subjective evaluation by AGLC' s Executive Sponsor, in consultation with Retec' s Executive Sponsor, and based upon the advice of the Parties' Program Directors, of the subjective evaluation criteria set forth on Exhibit 3 , attached hereto. The decision to award the quarterly AF or not is a unilateral determination made by AGLC and not subject to any dispute resolution clause in the contract.

(iii)

The AF payment, if any, will be equal to the sum of the quarterly AF awards and will be paid annually as part of the payment of Retec' s monthly invoice, commencing with Retec' s June 2003 invoice submittal.

(D)

For Group " B" and " C" sites, as defined in Exhibit 2 , and for the performance of Services described in Paragraph 1 of Exhibit 1 (General Recordkeeping and Documentation), Actual Costs are the sum of the invoiced amounts for those items set forth on Exhibit 4 excluding amounts within Items 1 ( Salaries & Wages ) and 2 ( Applied Overhead Rate ). Retec Fees are the sum of the invoiced amounts for Retec' s reasonably expended hours times the rates set forth on Exhibit 5 , attached hereto.

(E)

For work performed by Retec on and before June 30, 2002, the Parties stipulate and agree that Retec will receive a " Performance Fee" , as defined in the 2000 Agreement.

(i)

The Parties agree that Retec has been paid [****] of the Performance Fee and will receive [****] as final payment of the Performance Fee on or before August 23, 2002.

(ii)

In addition, AGLC agrees to pay to Law Environmental and Engineering Services (" LEES" ) any such amount as may be owing to LEES as a " Performance Fee" under that certain Agreement between Retec and LEES dated May 5, 2000, and modified September 26, 2001 (the " Retec-LEES Agreement" ). Notwithstanding the foregoing, Retec agrees that it has paid or will pay to LEES the full amount of the " Initial Performance Fee" [****] as set forth in paragraph 2(c)(ii) of the Attachment III to the September 26, 2001 modification and AGLC shall have no obligation for same.

[****] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended.

(iii)

Retec shall obtain a full lien waiver and release from LEES for payment of all amounts owing to LEES on or before August 23, 2002.

(iv)

Except as set forth in paragraph 3.2(E)(i) above, the parties hereby waive, release, and abandon any and all claims, rights, or entitlements to payment for or refund of any Performance Fee under the 2000 Agreement, whether such arose in connection with Services, Additional Services, or work that could have qualified as Additional Services under the 2000 Agreement, including but not limited to any claim, right, or entitlement to any such fee or refund for work related to or arising out of development and implementation of the " conceptual plan" for the Savannah MGP site or cost changes, if any, at any other sites. Notwithstanding the foregoing, AGLC does not waive and expressly reserves all claims, rights and entitlements relating to recovery of excess payments (other than Performance Fee), if any, paid to Retec under the 2000 Agreement .

3.3

Description of Actual Costs. Actual Costs consist solely of the types of costs incurred in the performance of the Services that meet the definitions set forth in Amended Exhibit 4 . The following are not Actual Costs:

(A)

costs, services and expenses generated by any of Retec' s officers, supervisory personnel or employees related to legal (except for negotiation of agreements with subcontractors to perform a portion of the Services, and settlement or litigation of disputes with subcontractors), labor relations, insurance and tax, and all other related expenses required to maintain and operate Retec' s offices other than any costs and expenses for operating any field office directly associated with one or more Sites. Costs and expenses incurred by Retec officers related to duties as Executive Sponsors are considered Actual Costs;

(B)

costs incurred as a result of the negligence or willful misconduct of Retec and/or its agents, subcontractors, suppliers or employees; and

(C)

any other costs not directly related to, and reasonably and necessarily incurred in Retec' s performance of, the Services.

3.4

Invoices; Payment. Retec shall submit to AGLC within 20 calendar days after the end of each calendar month (i) for Group A, an invoice for the Actual Costs and a separate invoice for Retec Fees incurred in the previous month, (ii) for Group B and C, and General Recordkeeping and Documentation (paragraph 1 of Exhibit 1 ), a separate invoice for Services to be paid at the rates set forth on Exhibit 5 , and (iii) invoices of subcontractors. All invoices shall be identified to the appropriate item established in the work breakdown structure plan. In addition to the monthly invoices and under separate cover, Retec shall provide AGLC with a breakdown of all Retec Fees, listing by each individual site the total number of hours worked per week and a description of the work performed, together with a summary of the Actual Costs for each Site. AGLC shall reimburse R etec for the amount of the monthly invoices in accordance with Paragraph 3.2 above (except for any Disputed Items (as defined in Paragraph 3.6 hereof) reflected thereon). Undisputed invoiced amounts not paid within 30 days after receipt shall accrue interest at the rate of 1% per month on any unpaid balance. Retec shall have the right to stop work if undisputed amounts on invoices are not paid within 60 days from the date of receipt by AGLC. For subcontractors, Retec will review and approve, if appropriate, all subcontractor invoices and will forward approved invoices to AGLC for direct payment. Retec will review, approve and forward to AGLC all subcontractor invoices within ten (10) days following receipt of such invoices.

3.5

Subcontractor Waivers. To the extent Retec engages subcontractors to perform Services, as a condition of payment of any monthly invoice reflecting final payment by Retec to such subcontractors, Retec shall furnish a general release of all claims and final lien waivers from such subcontractor to AGLC in such form and substance as is reasonably acceptable to AGLC. Notwithstanding the above, Retec is excused from this obligation to the extent that the basis for the subcontractor' s refusal to issue a release of all claims and a final lien waiver is due to AGLC' s failure to pay an approved invoice.

3.6

Disputed Amounts. AGLC shall be entitled to dispute any item on an invoice that it believes deviates from the Services that Retec was to perform, the Annual Budget, or the requirements of this Amended Agreement (collectively " Disputed Items" ). The disputed amount will be deducted from the invoice, and the undisputed portions of the invoice will be paid in accordance with Paragraph 3.4 hereof. The Disputed Items shall be subject to resolution pursuant to the procedures described in Paragraph 16.1 hereof.

3.7

Setoff. Payments otherwise due Retec from AGLC may be withheld by AGLC, without payment of interest, on account of Services not performed, defective Services performed and not remedied by Retec, unpaid labor or materials bills, or unpaid claims of any kind agreed to be paid by Retec. Retec agrees to defend, indemnify and hold AGLC harmless from any claims, demands, liabilities and damages arising from any such withheld payment. If and when the cause or causes for withholding payments are remedied or removed without cost to AGLC, and satisfactory evidence of such remedy has been presented to AGLC, the withheld payment will be promptly made by AGLC to Retec. If Retec fails to remedy such cause within 30 days after written notice from AGLC, AGLC may remedy the cause and deduct the cost of it from the amount due Retec; provided, however, AGLC is not obligated to pay any b ills of, or claims against Retec from payments withheld, but may do so at its sole discretion.

3.8

Fees Beyond the Initial Term. If the term of this Amended Agreement is extended beyond the Initial Term, AGLC shall, unless otherwise specified in this Amended Agreement, continue to pay Retec in accordance with the provisions of this Paragraph 3 or as the parties may otherwise agree.

4.0

Performance Standards, Warranties and Responsibilities .

4.1

Time. Time is of the essence. Retec shall perform all Services in strict accordance with the requirements, technical specifications and, except for any delays caused by AGLC and its contractors and consultants (other than Retec), schedules set forth in, contemplated by or arising from this Amended Agreement and any applicable Governmental Requirements and Orders (as defined in Paragraph 4.4 hereof). To the extent applicable, Retec acknowledges and agrees that the timing of the performance of Services may be dictated by the terms of Governmental Requirements and Orders, and Retec agrees to obtain a copy of all such Governmental Requirements and Orders applicable to the Sites, and subject to other terms herein relating to compliance with schedules, and to comply with all deadlines and/or other schedule requirements set forth therein. Notwithstanding the above, this war ranty in Paragraph 4.1 does not apply to the extent, and only to the extent, that Retec' s lack of compliance is the direct result of AGLC' s or its designee' s actual exercise of control as contemplated in Paragraph 5.2 hereof, or of the acts or omissions of AGLC' s designee or its contractors or consultants to the extent such acts or omissions prevent Retec from complying with this warranty. If Retec believes that AGLC' s or its contractor' s or consultant' s (other than Retec) acts or omissions are causing or are likely to cause Retec to fail or be unable to perform the Services in accordance with this Paragraph 4.1 , it shall promptly notify AGLC in writing of such fact, which notice shall state the acts or omissions of AGLC that are or are likely to cause such failure in sufficient detail to permit AGLC to modify the act or omission so as to remove the obstacle that prevents Retec' s compliance.

4.2

Technical Skills. Retec understands and acknowledges that the Services performed hereunder may involve hazardous or toxic substances, wastes and laws, regulations and government agency policy and guidance documents related thereto. Retec represents and warrants that it is technically, physically, financially and legally ready, willing and able to perform the Services hereunder and that it is familiar with and knowledgeable about the applicable laws, regulations and government agency policy and guidance documents to the extent necessary to carry out its duties in a professional, complete and competent manner and in accordance with such applicable laws, regulations, and government agency policy and guidance documents.

4.3

Authority. Each party hereby represents and warrants to the other party as follows:

(A)

that it has all requisite corporate power and authority to enter into, and fully perform pursuant to, this Amended Agreement;

(B)

that the execution, delivery and performance of this Amended Agreement have been duly and properly authorized by all requisite corporate action on its part; and

(C)

that this Amended Agreement has been duly executed and delivered by such party.

4.4

Applicable Law. Retec warrants that all Services shall comply with all applicable federal, state and local laws, regulations, ordinances, orders, codes, standards, permits and licenses, in each case as the same are amended from time to time (collectively, the " Governmental Requirements and Orders" ). Retec agrees to obtain all permits, consents and approvals necessary or appropriate to perform the Services in compliance with the Governmental Requirements and Orders, except for those permits, consents and approvals AGLC or its affiliates are specifically required to obtain by virtue of the terms of this Amended Agreement or by Governmental Requirements and Orders, and that if any requests for such permits, consents or approvals are denied, to use its best efforts, after further consultation with AGLC, to obtain such permits, consents or approvals. Notwithstan ding the above, this warranty in Paragraph 4.4 does not apply to the extent, and only to the extent, that Retec' s lack of compliance is the direct result of AGLC' s or its designee' s actual exercise of control as contemplated in Paragraph 5.2 of this Amended Agreement, or of the acts or omissions of AGLC' s designee or its contractors or consultants to the extent such acts or omissions prevent Retec from complying with this warranty. If Retec believes that AGLC' s or its contractor' s or consultant' s (other than Retec) acts or omissions are causing or are likely to cause Retec to fail or be unable to perform the Services in accordance with this Paragraph 4.4 , it shall promptly notify AGLC in writing of such fact, which notice shall state the acts or omissions of AGLC or its designee that are or are likely to cause such failure in sufficient detail to permit AGLC to modify the act or omission so as to remove the obstacle that prevents Retec' s compliance.

4.5

Governmental Orders. Retec expressly acknowledges, agrees and warrants to comply with the terms of any specific consent order, unilateral order, governmental order, judicial decree, permit or other governmental directive pursuant to which AGLC is contracting for the Services hereunder, including that certain Environmental Response Cost Recovery Rider which was initially adopted by the Georgia Public Service Commission on September 1, 1992 (as amended) (the " Rider" ). Notwithstanding the above, this warranty in Paragraph 4.5 does not apply to the extent, and only to the extent, that Retec' s lack of compliance is the direct result of AGLC' s or its designee' s actual exercise of control as contemplated in Paragraph 5.2 of this Amended Agreement, or of the acts or omissions of AGLC' s designee or its contractors or consultants to the ex tent such acts or omissions prevent Retec from complying with this warranty. If Retec believes that AGLC' s or its contractor' s or consultant' s (other than Retec) acts or omissions are causing or are likely to cause Retec to fail or be unable to perform the Services in accordance with this Paragraph 4.5 , it shall promptly notify AGLC in writing of such fact, which notice shall state the acts or omissions of AGLC or its designee that are or are likely to cause such failure in sufficient detail to permit AGLC to modify the act or omission so as to remove the obstacle that prevents Retec' s compliance.

4.6

Engineering Skills. Retec warrants that all Services performed hereunder shall be (A) conducted in a manner consistent with the generally accepted level of care and skill ordinarily exercised by professional engineers, remediation contractors and other professionals performing services of a similar nature, taking into account standards, technology, laws and requirements existing at the time the Services are performed, (B) safely, lawfully, timely and properly performed, and (C) in conformity with the requirements of this Amended Agreement.

4.7

Reliance. Retec acknowledges and agrees that (A) AGLC is relying upon Retec' s special and unique abilities and the accuracy, competence and completeness of Retec' s Services and (B) the Services performed by Retec will be relied upon by AGLC to satisfy Governmental Requirements and Orders, except as otherwise provided in Paragraph 4.4 hereof.

4.8

Records. All files, data, and records are deemed to be owned by and the property of AGLC, and AGLC shall be entitled to possession thereof upon reasonable notice. Unless otherwise directed by AGLC, at the end of the Initial ...