EXHIBIT 10.02
STRATEGIC PARTNERSHIP AGREEMENT
This Agreement is by and between Lighting Management Consultants, Inc.
(hereinafter, "LMC") with its principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ Energy Systems of America, Inc. (hereinafter,
"▇▇▇▇▇▇▇")with its principal place of business at ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇.
NATURE OF THE PARTNERSHIP
It is with mutual understanding between LMC and ▇▇▇▇▇▇▇ to enter into a
strategic partnership agreement, where ▇▇▇▇▇▇▇ has relationships and contracts
with various organizations to perform energy efficient lighting retrofits and
energy management services, and LMC is in the energy efficient lighting business
and agrees to become the primary company rendering for ▇▇▇▇▇▇▇ services such as:
energy audits, energy-related feasibility studies, lighting system
removal/demolition, lighting system installation/retrofit, and energy management
services for commercial, industrial and institutional applications. The
relationship description, contributions, terms, conditions, and other covenants
are set forth herein.
1) PURPOSE. The purpose of this agreement is to engage LMC to perform as
PROJECT MANAGER the services described in Articles 1, 2, and 3 herein
for the contracts and/or work orders issued to ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ will
perform their duties and responsibilities as described in Article 4,
10, 11, and 12, plus any other duties and responsibilities required to
assist LMC with performing their obligations. Each party will perform
all individual duties, responsibilities and requirements as set forth
in this agreement.
2) COMMENCEMENT. Effective immediately, ▇▇▇▇▇▇▇ will issue all work
relating to lighting systems installation, retrofit and/or demolition
to LMC, and LMC agrees to perform the services required of each work
order or contract for and on behalf of ▇▇▇▇▇▇▇.
3) DURATION. The duration of this agreement is perpetual until such time
either party wishes to terminate the relationship, and does so by
furnishing written notice of their intent to terminate at least 60 days
prior to the effective date. All contracts in-works, services being
performed at that time and work orders under construction by LMC will
be performed through completion, regardless of time requirements to
fulfill the project's work scope. Failure to perform will result in a
reduction in final payment, based upon percentage of completion, less
reasonable expenses.
4) MUTUAL NON-DISCLOSURE. It is understood that ▇▇▇▇▇▇▇ and LMC have
individually entered into Mutual Non-Disclosure Agreements with certain
companies, and each agrees to honor and carry-out the terms of the
others agreement(s), unless otherwise agreed to in writing and attached
hereto. A mutual Non-Disclosure agreement has been executed between
▇▇▇▇▇▇▇ and LMC and is attached hereto.
5) NON-COMPETE. ▇▇▇▇▇▇▇ and LMC agree to not compete with each other for
the same contracts or work orders for the duration of this agreement.
It is understood that each have individually negotiated and/or earned
contracts prior to this agreement, or have contracts or work orders not
yet issued, but are considered in process to be issued, and that these
work orders or agreements are not in direct competition between ▇▇▇▇▇▇▇
and LMC. It is further agreed each company will establish a system to
notify the other of contracts under negotiation and subsequent date
awarded, and that either company will not individually bid for the
other company's work contracts without receiving prior written
permission to conduct such activities from that company. If for
whatever reason a contract (regardless of status `under negotiation' or
`awarded') is considered to be in competition between either company,
then the default shall go to LMC, unless it is reasonably determined
otherwise by each party, or that ▇▇▇▇▇▇▇ had made initial contact or
introduction first and was capable of performing services required to
fulfill its obligations under such contract.
6) COMPENSATION FOR SERVICES. ▇▇▇▇▇▇▇ agrees to pay to LMC the entire bid
amount for each contract awarded to ▇▇▇▇▇▇▇ for the services agreed to
be performed and completed by LMC. It is understood by each party that
each bid submitted by LMC to ▇▇▇▇▇▇▇ shall include and reflect a five
percent profit for ▇▇▇▇▇▇▇, calculated and added to the sum total of
LMC's bid. Upon receipt of final payment for each project, ▇▇▇▇▇▇▇ will
retain their five percent profit and distribute the balance to LMC
within ten days of receipt, unless otherwise agreed to in writing prior
to each project's bid submission.
7) PERFORMANCE REQUIREMENTS. LMC agrees to perform the services, duties
and obligations as outlined in the contracts, work orders and Articles
of this Agreement to the best of their abilities, and based upon their
historical performance and capabilities of providing such services,
duties, and obligations.
8) DEFAULT AND REMEDIES. Upon determination that a default or breach has
occurred under any portion of this agreement by either party, the
affected party shall give 30 days to the defaulting party to cure the
default. If the default has not been cured according to the terms of
this agreement or with reasonable satisfaction of the affected party,
this agreement shall become terminated within 30 days. Upon termination
of this Agreement, both parties shall fulfill all outstanding
obligations incurred prior to the date of termination through to the
effective termination date.
9) COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall
constitute 1 (one) Agreement, binding on all parties hereto,
notwithstanding that all the parties have not signed the same
counterpart.
10) ARTICLES OUTLINING THE WORKING RELATIONSHIP. The following Articles
outline the working relationship between LMC and ▇▇▇▇▇▇▇. Hereinafter,
the term Project Manager refers to LMC and their identified
sub-contractor position with ▇▇▇▇▇▇▇ and as identified within
agreement(s) relating to energy efficient lighting retrofit and energy
management services.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND TECHLITE APPLIED SCIENCES , INC. PAGE 80 OF 80
ARTICLE 1
PROJECT MANAGER'S RESPONSIBILITIES
1.1 PROJECT MANAGER'S SERVICES
1.1.1 The Project Manager & Services consist of those services performed
by the Project Manager. Project Manager's employees and Project
Manager's consultants as enumerated in Articles 2 and 5 of this
Agreement and any other services included in Article 13.
1.1.3 The Project Manager shall provide sufficient organization,
personnel and management to carry out the requirements of this
agreement on an expeditious and economical manner consistent with
the interest with ▇▇▇▇▇▇▇, and when appropriate recruit, select
and train personnel for placement within the ▇▇▇▇▇▇▇ organization.
1.1.4 The services covered by this Agreement are subject to the
limitations contained in sub paragraph 13.
ARTICLE 2
SCOPE OF PROJECT MANAGER'S BASIC SERVICES
2.1 DEFINITION
2.1.1 The Project Manager's Basic Services consist of those described in
Paragraph 2.2 and 2.3 and any other services identified in Article
13 as part of Basic Services.
2.2 PRE - PROJECT PHASE
2.2.1 The Project Manager shall review the program furnished by ▇▇▇▇▇▇▇
to ascertain the requirements of the Project and shall arrive at a
mutual understanding of such requirements with ▇▇▇▇▇▇▇.
2.2.2 The Project Manager shall provide a preliminary evaluation of
▇▇▇▇▇▇▇'▇ program, schedule and Project budget requirements, each
on terms of the other.
2.2.3 Based on previously performed audits and other energy management
services criteria prepared by ▇▇▇▇▇▇▇, the Project Manager shall
prepare preliminary estimates of Project cost for program
requirements using logistical, volume and/or similar conceptual
estimating LMCniques. The Project Manager shall provide cost
evaluations of alternative materials and systems.
2.2.4 The Project Manager shall expeditiously review design
documents during their development and advise on proposed site use
and improvements, selection of materials, building systems and
equipment, and methods of Project delivery. The Project Manager
shall provide recommendations on relative feasibility of Project
methods, availability of materials and labor, time requirements
for procurement, installation and Project, and factors related to
Project cost including, but not limited to costs of alternative
designs or materials, preliminary budgets and possible economics
of geographic locations plus other productive factors.
2.2.5 The Project Manager shall prepare and periodically update a
Project Schedule for ▇▇▇▇▇▇▇'▇ review and ▇▇▇▇▇▇▇'▇ acceptance.
The Project Manager shall obtain ▇▇▇▇▇▇▇'▇ approval for the
portion of the preliminary Project schedule relating to the
performance requirements of PG&E ES energy management services. In
the Project Schedule, the Project Manager shall coordinate and
integrate the Project Manager's services, and ▇▇▇▇▇▇▇'▇
responsibilities with anticipated Project schedules, highlighting
critical and long-lead-time items.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 81 OF 81
2.2.6 As ▇▇▇▇▇▇▇ progresses with the preparation of the Project
Documents, the Project Manager shall prepare and update, at
appropriate intervals agreed to by ▇▇▇▇▇▇▇ and Project Manager,
estimates of Project Cost of increasing detail and refinement. The
estimated cost of each Contract shall be indicated with supporting
detail. Such estimates shall be provided for ▇▇▇▇▇▇▇'▇ approval.
The Project Manager shall advise ▇▇▇▇▇▇▇ if it appears that the
Project Cost may exceed the latest approved Project budget and
make recommendations for corrective action.
2.2.7 The Project Manager shall consult with ▇▇▇▇▇▇▇ regarding the
Project Documents and make recommendations whenever
retrofit/installation details adversely affect specific or overall
project logistics, cost or schedules.
2.2.8 The Project Manager shall provide recommendations and information
to ▇▇▇▇▇▇▇ regarding the assignment of responsibilities for
temporary Project facilities and equipment materials and services
for common use of the Contractors. The Project Manager shall
verify that such requirements and assignments of responsibilities
are included in the proposed Contract Documents.
2.2.9 The Project Manager shall provide recommendations and information
to ▇▇▇▇▇▇▇ regarding the allocation of responsibilities for safety
programs among the Contractors.
2.2.10 The Project Manager shall advise on the divisions of the
Project into individual Contracts for various categories of Work,
including the method to be used for selecting Contractors and
awarding Contracts. If multiple Contracts are to be awarded, the
Project Manager shall review the Project Documents and make
recommendations as required to provide that (1) the Work of the
Contractors is coordinated, (2) all requirements for the Project
have been assigned to the appropriate Contractor, (3) the
likelihood of jurisdictional disputes has been minimized, and (4)
proper coordination has been provided for phased Project.
2.2.11 The Project Manager shall prepare a Project completion schedule
providing for the components of the Work, including phasing of
Project, times of commencement and completion required of each
Contractor ordering and delivery of products requiring long lead
time, and the occupancy requirements of ▇▇▇▇▇▇▇. The Project
Manager shall provide the current Project completion schedule for
each set of bidding documents.
2.2.12 The Project Manager shall expedite and coordinate the ordering and
delivery of materials requiring long lead-time through ▇▇▇▇▇▇▇.
2.2.13 The Project Manager shall provide an analysis of the types and
quantities of labor required for the Project and review the
availability of appropriate categories of labor required for
critical phases. The Project Manager shall make recommendations
for actions designed to minimize adverse effects of labor
shortages.
2.2.15 The Project Manager shall assist ▇▇▇▇▇▇▇ in obtaining information
regarding applicable requirements for equal employment opportunity
programs for inclusion in the Contract Documents.
2.2.16 Following ▇▇▇▇▇▇▇'▇ approval of the Project Documents, the Project
Manager shall update and submit the latest estimate of Project
cost and the Project completion schedule for ▇▇▇▇▇▇▇'▇ review and
approval.
2.2.17 The Project Manager shall submit the list of prospective
bidders for ▇▇▇▇▇▇▇'▇ approval.
2.2.18 The Project Manager shall develop bidders' interest in the Project
and establish bidding schedules. The Project Manger, with
▇▇▇▇▇▇▇'▇ Assistance, shall issue bidding documents to bidders and
conduct pre-bid conferences with prospective bidders. The Project
Manager shall assist ▇▇▇▇▇▇▇ with regard to questions from bidders
and with issuance of addenda.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 82 OF 82
2.2.19 The Project Manager shall receive bids, prepare bid analysis and
make recommendations to ▇▇▇▇▇▇▇ for ▇▇▇▇▇▇▇'▇ award of Contracts
or rejection of bids.
2.2.20 The Project Manager shall assist ▇▇▇▇▇▇▇ in preparing Project
Contracts and advise ▇▇▇▇▇▇▇ on the acceptability of
Subcontractors and material suppliers proposed by Contractors.
2.2.21 The Project Manager shall assist ▇▇▇▇▇▇▇ in obtaining building
permits and special permits for permanent improvements, except for
permits required to be obtained directly by the various
Contractors. The Project Manager shall assist ▇▇▇▇▇▇▇ in
connection with ▇▇▇▇▇▇▇'▇ responsibility for filing documents
required for the approvals of governmental authorities having
jurisdiction over the Project.
2.3 PROJECT PHASE - ADMINISTRATION OF THE PROJECT CONTRACT
2.3.1 The Project Phase will commence with the award of the initial
Project Contract, Work Order or purchase order and, together with
the Project Manager's obligation to provide Basic Services under
this Agreement, will end 30 Days after final payment to all
Contractors is due.
2.3.2 The Project Manager shall provide administration of the PG&E ES
Master Agreement and subsequent Work Orders throughout the Project
in cooperation with the guidelines established and performance
requirements of PG&E ES and ▇▇▇▇▇▇▇.
2.3.3 The Project Manger shall provide administrative management and
related services to coordinate scheduled activities and
responsibilities of the Contractors with each other and with those
of the Project Manager and ▇▇▇▇▇▇▇ to endeavor to manage the
Project in accordance with the approved estimate of Project Cost,
the Project Schedule and the Contract Documents.
2.3.4 The Project Manager shall schedule and conduct meetings to discuss
such matters as procedures, progress and scheduling. The Project
Manager shall prepare and promptly distribute minutes to ▇▇▇▇▇▇▇,
and Contractors when required.
2.3.5 Utilizing the Project Schedules provided by the Contractors,
the Project Manager shall update the Project completion schedule
incorporating the activities of the Contractor's progress
throughout the Project, including activity sequences and duration,
allocations of labor and materials, processing of Drawings,
Product Data and Samples, and delivery of products requiring long
lead time and procurement. The Project completion schedule shall
include ▇▇▇▇▇▇▇'▇ occupancy requirements showing portions of the
Project having occupancy priority. The Project Manager shall
update and reissue the Project completion schedule as required to
show current conditions. If an update indicates that the
previously approved Project completion schedule may not be met,
the Project Manager shall recommend corrective action to ▇▇▇▇▇▇▇.
2.3.6 Consistent with the various holding documents and utilizing
information from the Contractors the Project Manager shall
coordinate the sequence of Project and assignment of space in
areas where the Contractors are performing Work.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 83 OF 83
2.3.7 The Project Manager shall endeavor to obtain satisfactory
performance from each of the Contractors. The Project Manager
shall recommend courses of action to ▇▇▇▇▇▇▇ when requirements of
a Contract are not being fulfilled.
2.3.8 The Project Manager shall monitor the approved estimate of Project
Cost. The Project Manager shall show actual costs for activities
in progress as estimated for uncompleted tasks by way of
comparison with such approved estimate.
2.3.9 The Project Manager shall develop cash flow reports and forecast
for the Project and advise ▇▇▇▇▇▇▇ as to variances between actual
and budgeted on estimated costs.
2.3.10 The Project Manager shall maintain accounting records on
authorized Work performed under unit costs, additional Work
performed on the basis of actual costs of Labor and materials, and
other Work requiring accounting records.
2.3.11 The Project Manager shall develop and improve procedures for the
review and processing of applications by Contractors for progress
and final payment.
2.3.11.1 Based on the Project Manager's observations and evaluations of
each Contractor's Application for Payment, the Project Manager
shall review and apply the amounts due the respective Contractors.
2.3.11.2 The Project Manager shall prepare a Project Application for
Payment based on the Contractors' Certificates for Payment.
2.3.11.3 The Project Manager's certification for payment shall continue
a representation to ▇▇▇▇▇▇▇, based on the Project Manger's
determinations at the site as provided in Subparagraph 2.3.12 and
on the data comprising the Contractor's Applications for Payment,
that to the best of the Project Manager's knowledge, information
and belief, the Work has progressed to the point indicated and the
quality of the Work is in accordance with the Contract Documents.
The foregoing representations are subject to an evaluation of the
Work for conformance with the Contract Documents upon Substantial
Completion, to results of subsequent tests and inspections, to
minor deviations from the Contract Documents correctable prior to
completion and to specific qualifications expressed by the Project
Manager. The issuance of a Certificate for Payment shall further
constitute a representation that the Contractor is entitled to
payment in the amount certified.
2.3.11.4 The issuance of a Certificate for Payment shall not be a
representation that the Project Manager has (1) made exhaustive or
continuous on-site inspections to check the quality or quantity of
the Work, (2) reviewed Project means, methods, LMCniques,
sequences for the Contractor's own Work, or procedures, (3)
reviewed copies of requisitions received from Subcontractors and
material suppliers and other data requested by ▇▇▇▇▇▇▇ to
substitute the Contractor's right to payment or, (4) ascertained
how or for what purpose the Contractor has used money preciously
paid on account of the Contract Sum.
2.3.12 The Project Manager shall determine in general that the Work
of each Contractor is being performed in accordance with the
requirements of the Contract Documents, endeavoring to guard
▇▇▇▇▇▇▇ against defects and deficiencies in the Work. As
appropriate, the Project Manager shall have authority, upon
written authorization from ▇▇▇▇▇▇▇, to require additional
inspection or testing of the Work in accordance with the
provisions of the Contract Documents, whether or not such Work is
fabricated, installed or completed. The Project Manager in
consultation with ▇▇▇▇▇▇▇ may reject Work, which does not conform
to the requirements of the Contract Documents.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 84 OF 84
2.3.13 The Project Manager shall schedule and coordinate the sequence of
Project in accordance with the Contract Documents and the latest
approved Project completion schedule.
2.3.14 With respect to each Contractor's own Work, the Project
Manager shall not have control over or charge of and shall not be
responsible for Project means, methods, LMCniques, sequences or
procedures, or for safety precautions and programs in connections
with the Work of each of the Contractors, since these are solely
the Contractor's responsibility under the Contract for Project.
The Project Manager shall not be responsible for a Contractor's
failure to carry out the Work in accordance with the respective
Contract Documents. The Project Manager shall not have control
over or charge of acts or omissions of the Contractor's,
Subcontractors, or their agents or employees, or any other persons
performing portions of the Work not directly employed by the
Project Manager.
2.3.15 The Project Manager shall transmit to ▇▇▇▇▇▇▇ requests for
interpretations of the meaning on intent of the Drawings and
Specifications, and assist in the resolution of questions that may
arise.
2.3.16 The Project Manager shall review requests for changes, assist in
negotiating Contractor's proposals, submit recommendations to
▇▇▇▇▇▇▇, and, if they are accepted, prepare Change Orders and
Project Change Directives which incorporate ▇▇▇▇▇▇▇'▇
modifications to the Documents.
2.3.17 The Project Manager shall assist ▇▇▇▇▇▇▇ in the review,
evaluation and documentation of Claims.
2.3.18 The Project Manager shall receive certificates of insurance from
the Contractors and forward them to ▇▇▇▇▇▇▇.
2.3.19 In collaboration with ▇▇▇▇▇▇▇, the Project Manager shall
establish and implement procedures for expediting the processing
and approval of Drawings, Product Data, Samples and other
submittals. The Project Manager shall review all Shop Drawings,
Product Data, Samples and other submittals from the Contractors.
The Project Manager shall coordinate submittals with information
obtained in related documents and transmit to ▇▇▇▇▇▇▇ those such
have been approved by the Project Manager. The Project Manager's
actions shall be taken with such reasonable promptness as to cause
no delay in the Work or in the activities of ▇▇▇▇▇▇▇ of
Contractors.
2.3.20 The Project Manager shall record the progress of the Project.
The Project Manager shall submit written progress reports to
▇▇▇▇▇▇▇ including information on each Contractor and each
Contractor's Work, as well as the entire Project showing
percentage of completion. The Project Manager shall keep a daily
log containing a record of weather, each Contractor's Work on the
site, number of workers, identification of equipment, Work
accomplished, problems encountered, and other similar relevant
data as ▇▇▇▇▇▇▇ may require.
2.3.21 The Project Manager shall maintain at the Project site
for ▇▇▇▇▇▇▇ one record copy of all Contracts, Drawings,
Specifications, addenda, Change Orders and other modifications, in
good order and marked currently to record changes and selections
made during Project, and in addition, approved Drawings, Product
Data, Samples and similar required submittals. The Project Manager
shall maintain records, in duplicate, of principal building layout
lines, engineering specifications, electrical drawing layouts, as
well as any other relevant data or drawing required to perform the
services required, and as certified by a qualified surveyor or
professional engineer. The Project Manager shall make all such
records available to ▇▇▇▇▇▇▇ and upon completion of the Project
shall deliver them to ▇▇▇▇▇▇▇.
2.3.22 The Project Manager shall arrange for the delivery, storage,
protection and security of ▇▇▇▇▇▇▇ purchased materials, systems
and equipment that are a part of the Project until such items are
incorporated into the Project.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 85 OF 85
2.3.23 With ▇▇▇▇▇▇▇'▇ maintenance personnel or consent with when absent,
the Project Manager shall review the Contractor's final Customer
Completion Certificate, or observe as available the testing and
start-up of the retrofit systems and equipment.
2.3.24 When the Project Manager considers each Contractor's Work or a
designated portion thereof substantially complete, the Project
Manager shall, jointly with the Contractor, prepare a list of
incomplete of unsatisfactory items and a schedule for their
completion. The Project Manager shall assist ▇▇▇▇▇▇▇ in conducting
inspections to determine whether the Work or designated portion
thereof is substantially complete.
2.3.25 The Project Manager shall coordinate the correction and
completion of the Work. Following issuance of a Certificate of
Substantial Completion of the Work or a designated portion
thereof, the Project Manager shall evaluate the completion of the
Work of the Contractors and make recommendations to ▇▇▇▇▇▇▇ when
Work is ready for final inspection. The Project Manager shall
assist ▇▇▇▇▇▇▇ in conduction of final inspections, or receive
suitable assurances from Quality Control of their final
completion.
2.3.26 The Project Manager shall secure and transmit to ▇▇▇▇▇▇▇
warranties and similar submittals required by the Contract
Documents and deliver all keys, manuals, record drawings and
maintenance stocks to ▇▇▇▇▇▇▇. The Project Manager shall forward
to ▇▇▇▇▇▇▇ a final Project Application for Payment upon compliance
with the requirements of the Contract Documents.
2.3.27 Duties, responsibilities and limitations of authority of the
Project Manager as set forth in the Contract Documents shall not
be restricted, modified or extended without written consent of
▇▇▇▇▇▇▇, Project Manager, and Contractors. Consent shall not be
unreasonably withheld.
ARTICLE 3
ADDITIONAL SERVICES
3.1 GENERAL
3.1.1 The services described in this Article 3 are not
included in Basic Services unless so identified in Article 13, and
they shall be paid for by ▇▇▇▇▇▇▇ as provided in this Agreement,
in addition to the compensation for Basic Services. The Optional
Additional Services described under paragraph 3.3 shall only be
provided if authorized or confirmed in writing by ▇▇▇▇▇▇▇. If
services described under Contingent Additional Services in
Paragraph 3.2 are required due to circumstances beyond the Project
Manager's control, the Project Manager shall notify ▇▇▇▇▇▇▇ prior
to commencing such services. If ▇▇▇▇▇▇▇ ▇▇▇▇▇ that such services
described under paragraph 3.2 are not required ▇▇▇▇▇▇▇ shall give
prompt written notice to the Project Manager. If ▇▇▇▇▇▇▇ indicates
in writing that all or part of such Contingent Additional Services
are not required, the Project Manager shall have no obligation to
provide those services.
3.2 CONTINGENT ADDITIONAL SERVICES
3.2.1 Providing services required because of significant changes in the
Project including, but not limited to, changes in size, quality,
complexity or ▇▇▇▇▇▇▇'▇ schedule.
3.2.2 Providing consultation concerning replacement of Work damaged by
fire or other cause during Project, and furnishing services
required in connection with the replacement of such Work.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 86 OF 86
3.2.3 Providing services made necessary by the termination or default of
▇▇▇▇▇▇▇ or a Contractor, by major defects or deficiencies in the
Work of a Contractor, or by failure of performance of either
▇▇▇▇▇▇▇ or Contractor under a Contract for Project.
3.2.4 Providing services in evaluating an extensive number of claims
submitted by a Contractor or others in connection with the Work.
3.2.5 Providing services in evaluating an extensive number of claims
submitted by a Contractor or others in connection with the Work.
3.3 OPTIONAL ADDITIONAL SERVICES
3.3.1 Providing services relative to the recruitment, selection, and
training of personnel, acquisition of future facilities, systems
implementation and integration, and equipment purchases.
3.3.2 Providing services to investigate existing conditions or
facilities or to provide measured drawings thereof.
3.3.3 Providing services to verify the accuracy of drawings or to
provide measured drawings thereof.
3.3.4 Providing services to verify the accuracy of drawings or other
information furnished by ▇▇▇▇▇▇▇.
3.3.5 Providing services required for or in connection with ▇▇▇▇▇▇▇'▇
selection or procurement of furniture, furnishings and related
equipment included in fee.
3.3.6 Providing services for tenant improvements.
3.3.7 Providing any other services not otherwise included in this
Agreement.
ARTICLE 4
OWNER'S RESPONSIBILITY
4.1 ▇▇▇▇▇▇▇ shall provide full information regarding requirements for
the Project including a program which shall set forth ▇▇▇▇▇▇▇'▇
objective, schedule, constraints and criteria, including space
requirements and relationships, flexibility, expansion
capabilities, special equipment, systems, and site requirements.
4.2 ▇▇▇▇▇▇▇ shall establish and update an overall budget for the
Project based on consultation with the Project Manager which shall
include the Project Cost, ▇▇▇▇▇▇▇'▇ other costs and reasonable
contingencies related to all of these costs.
4.3 If requested by the Project Manager, ▇▇▇▇▇▇▇ shall furnish
evidence that financial arrangements have been made to fulfill
▇▇▇▇▇▇▇'▇ other costs and reasonable contingencies related to all
of these costs.
4.4 If requested by the Project Manager, ▇▇▇▇▇▇▇ shall furnish
evidence that financial arrangements have been made to fulfill
▇▇▇▇▇▇▇'▇ obligations under this Agreement.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 87 OF 87
4.5 ▇▇▇▇▇▇▇ shall designate a representative authorized to act on
▇▇▇▇▇▇▇'▇ behalf with respect to the Project. ▇▇▇▇▇▇▇ or such
authorized representative, shall render decisions in a timely
manner pertaining to documents submitted by the Project Manager in
order to avoid unreasonable delay in the orderly and sequential
progress of the Project Manager's service.
4.6 ▇▇▇▇▇▇▇ shall furnish structural, mechanical, chemical, air and
water pollution tests, tests for hazardous materials, and other
laboratory and environmental tests, inspections and reports
required by law or the Contract Documents.
4.7 ▇▇▇▇▇▇▇ shall furnish all legal, accounting and insurance
counseling services as may be necessary at any time for the
Project, including auditing services ▇▇▇▇▇▇▇ may require to verify
the Contractors' Applications for Payment or to ascertain how or
for what purposes the Contractors have used the money paid by or
on behalf of ▇▇▇▇▇▇▇.
4.8 ▇▇▇▇▇▇▇ shall furnish the Project Manager with a sufficient
quantity of Project Documents.
4.9 The services, information and reports required by Paragraph 4.6
through 4.8 shall be furnished at ▇▇▇▇▇▇▇'▇ expense, and the
Project Manager shall be entitled to rely upon the accuracy and
completeness thereof.
4.10 Prompt written notice shall be given by ▇▇▇▇▇▇▇ or to the
Project Manager if ▇▇▇▇▇▇▇ becomes aware of any fault or defect in
the Project or nonconformance with the Contract Documents.
4.11 ▇▇▇▇▇▇▇ reserves the right to perform Project and operations
related to the Project with ▇▇▇▇▇▇▇'▇ own forces, and to award
contracts in connection with the Project which are not part of the
Project Manager's responsibilities under this Agreement. The
Project Manager shall notify ▇▇▇▇▇▇▇ if any such independent
action will interfere with the Project Manager's ability to
perform the Project Manager's responsibilities under this
Agreement. When performing Project or operations related to the
Project, ▇▇▇▇▇▇▇ agrees to be subject to the same obligations and
to have the same rights as the Contractors.
4.12 Information or services under ▇▇▇▇▇▇▇'▇ control shall be furnished
by ▇▇▇▇▇▇▇ with reasonable promptness to avoid delay in the
orderly progress of the Project Manager's services and the
progress of the Work.
ARTICLE 5
PROJECT COSTS
5.1 DEFINITION
5.1.1 The Project Costs shall be the total cost or estimated cost
of ▇▇▇▇▇▇▇ of all elements of the Project.
5.1.2 The Project Cost shall include the cost a current market rates
of labor and materials furnished by ▇▇▇▇▇▇▇ and equipment
designed, specified, selected, or specially provided for by
▇▇▇▇▇▇▇, plus a reasonable allowance for the Contractors' overhead
and profit. In addition, a reasonable allowance for contingencies
shall be included for market conditions at the time Except as
provided in Subparagraph 5.1.3; Project cost shall also include
the compensation of the Project Manager and Project Manager's
consultants.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 88 OF 88
5.1.3 Project Cost does include the compensation of ▇▇▇▇▇▇▇ and
Owners' consultant, costs of the land, right-of-way, financing or
other costs which are the responsibility s ▇▇▇▇▇▇▇ as provided in
Article 4. If any portion of the Project Manager's compensation is
based upon a percentage of Project Cost, then Project Cost, for
the purpose of determining such portion, shall include the
compensation of the Project Manager or Project Manager's
consultants.
5.2 RESPONSIBILITY FOR PROJECT COST
5.2.1 Evaluations of ▇▇▇▇▇▇▇'▇ Project budget, preliminary
estimates of Project Cost and detailed estimates of Project Cost
prepared by the Project Manager represent the Project Manger's
best judgement as a person or entity familiar with the Project
industry. It is recognized, however, that neither the Project
Manager nor ▇▇▇▇▇▇▇ has control over the cost of labor, materials
or equipment, over Contractor's methods of determining bid prices,
or over competitive bidding, market or negotiating conditions.
Accordingly, the Project Manager cannot and does not warrant or
represent that bids or negotiated prices will not vary from the
Project budget proposed, established or approved by ▇▇▇▇▇▇▇, or
from any cost estimate or evaluation prepared by the Project
Manger.
5.2.2 No fixed limit of Project Cost shall be established as a
condition of this Agreement by the furnishing, proposal or
establishment of a Project budget unless such fixed limit has been
agreed upon in writing and signed by the parties hereto. If such a
fixed limit has been established, the Project Manager shall be
permitted to include contingencies for design, bidding, and price
escalation, and shall consult with ▇▇▇▇▇▇▇ to determine what
materials, equipment, component systems and types of Project are
to be included in the Project Documents, to suggest inclusion of
alternate bids in the Project Documents to adjust the Project Cost
to the fixed limit. Fixed limits, if any, shall be increased in
the amount of any increase in the Contract Sums occurring after
execution of the Contracts for Project.
5.2.3 If the Bidding or Negotiating Phase has not commenced within 90
days after submittal of the Project Documents to ▇▇▇▇▇▇▇, any
Project budget or fixed limit of Project Cost shall be adjusted to
reflect changes in the general level of prices in the Project
industry between the date of submission of the Project Documents
to ▇▇▇▇▇▇▇ and the date on which proposals are sought.
5.2.4 If a fixed limit of Project Cost (adjusted as provided in
Subparagraph 5.2.3) is exceeded by the sum of the lowest bonafide
bids or negotiated proposals plus the Project Manager's estimate
or other elements of Project Cost for the Project, ▇▇▇▇▇▇▇ shall:
11) give written approval or an increase in such fixed limit;
12) authorize rebidding or renegotiating of the Project
within a reasonable time;
13) if the Project is abandoned, terminate in accordance
with paragraphs 3; or
14) cooperate in revising the Project scope and quality as
required to reduce the Project Cost.
ARTICLE 6
PROJECT SUPPORT ACTIVITIES
6.1 Project Support activities, if provided by the Project Manager,
shall be governed by separate contractual agreements unless
otherwise provided in Article 13.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 89 OF 89
6.2 Reimbursable expenses listed in Article 13 for Project support
activities nay be subject to trade discounts, rebates, refunds and
amounts received from sales or surplus materials and equipment
which shall accrue to ▇▇▇▇▇▇▇, and the Project Manager shall make
provisions so that they can be accrued.
ARTICLE 7
OWNERSHIP AND USE OF OWNER'S DRAWINGS,
SPECIFICATIONS AND OTHER DOCUMENTS
7.1 The Drawings, Specifications and other Documents prepared by
▇▇▇▇▇▇▇ are instruments of ▇▇▇▇▇▇▇'▇ service through which the
Work to be executed by the Contractors is described. The Project
may retain one record set. The Project Manager shall not own or
claim a copyright in the Drawings, Specifications and other
Documents prepared by PG&E ES, ▇▇▇▇▇▇▇, OR CUSTOMER; and copies
thereof furnished to the Project Manager, are for the use solely
with the respect to this Project. They are not to be used by the
Project Manager on other Projects or for additions to this Project
outside the scope of the Work without the specific written consent
of ▇▇▇▇▇▇▇. The Project Manager is granted a limited license to
use and reproduce applicable portions of the Drawings.
Specifications and other documents prepared by the Architect
appropriate to and for use in the performance of the Project
Manager's services under this Agreement.
All copies made under this license shall bear the statutory
copyright notice, if any, shown on the Drawings, Specifications
and other Documents prepared by the Architect of such drawing.
Submittal or distribution to meet official regulatory requirements
or for other purposes in connection with this Project is not to be
construed as publication in derogation of the Architect's
copyright or other reserved rights. This Agreement shall be
specifically enforceable in accordance with applicable law in any
court having jurisdiction thereof.
ARTICLE 8
TERMINATION, SUSPENSION OR ABANDONMENT
9.1 This Agreement may be terminated by either party upon not less
than seven days' written notice should the other party fail
substantially to perform in accordance with the terms of this
Agreement through no fault of the party initiating the
termination.
9.2 If the Project is suspended by ▇▇▇▇▇▇▇ for more than 30
consecutive days, the Project Manager shall be compensated for
services performed prior to notice of such suspension. When the
Project is resumed, the Project Managers' compensation shall be
equitable adjusted to provide for expenses incurred in the
interruption and resumption of the Project Manager's services.
9.3 This Agreement may be terminated by ▇▇▇▇▇▇▇ upon not less than
seven days' written notice to the Project Manager in the event
that the Project is permanently abandoned. If the Project is
abandoned by ▇▇▇▇▇▇▇ for more than 90 consecutive days, the
Project Manager may terminate this Agreement by giving written
notice.
9.4 Failure of ▇▇▇▇▇▇▇ to make Payments to the Project Manager in
accordance with this Agreement shall be considered substantial
nonperformance and cause for termination.
9.5 If ▇▇▇▇▇▇▇ fails to make payment when due the Project Manager for
services and expenses, the Project Manager may, upon seven days'
written notice to ▇▇▇▇▇▇▇, suspend performance of services under
this Agreement. Unless payment in full is received by the Project
Manager within seven days of the date of the notice, the
suspension shall take effect without further notice. In the event
of a suspension of services, the Project Manager shall have no
liability to ▇▇▇▇▇▇▇ for delay or damage caused to ▇▇▇▇▇▇▇ because
of such suspension of services.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 90 OF 90
9.6 In the event of termination not the fault of the Project
Manager, the Project Manager shall be compensated for services
performed prior to termination, together with Reimbursable
Expenses then due and all Termination Expenses as defined in
Paragraph 9.7
9.7 Termination Expenses are those costs directly attributable
to termination for which the Project Manager is not otherwise
compensated.
ARTICLE 9
MISCELLANEOUS PROVISIONS
10.1 Unless otherwise provided this Agreement shall be governed
by the law of the place where the Project is located.
10.2 Terms in this Agreement shall have the same meaning as
those in the edition of AIA Document A201/Cma. General Conditions
of the Contract for Project. Project Manager-Advisor Edition,
current as of the date of this Agreement.
10.3 Causes of action between the parties to this Agreement pertaining
to acts of failures to act shall be deemed to have accrued and the
applicable status of limitations shall commence to run not later
than either the date of Substantial Completion for acts or
failures to act occurring prior to Substantial Completion, or the
date of issuance of the final Project Certificate for Payment for
acts or failures to act occurring after Substantial Completion.
10.4 Waiver of Subrogation. ▇▇▇▇▇▇▇ and Project Manager waive all
rights against each other and against PG&E ES, the Contractors,
consultants, agents and any of them, for damages, but only to the
extent covered by property insurance during Project, except such
rights as they may have to the proceeds of such insurance as set
forth in the edition of AIA Document A201/Cma General Conditions
of the Contract for Project, Project Manager-Advisor Edition,
current as of the date of this Agreement. ▇▇▇▇▇▇▇ and Project
Manager each shall require similar waivers from their Contractors,
Architect, consultants, agents, and persons or entities awarded
separate contracts administered under ▇▇▇▇▇▇▇'▇ own forces.
10.5 ▇▇▇▇▇▇▇ and Project Manager, respectively, bid themselves, their
partners, successors, assigns and legal representatives to the
other party to this Agreement and to the partners, successors,
assigns and legal representatives of such other party with respect
to all covenants of this Agreement. Neither Owner nor Project
Manager shall assign this Agreement without the written consent of
the other.
10.6 This Agreement represents the entire and integrated agreement
between ▇▇▇▇▇▇▇ and Project Manager and supercedes all prior
negotiations, representations or agreements, either written or
oral. This Agreement may be amended only by written instrument
signed by both Owner and Project Manager.
10.7 Nothing contained in this Agreement shall create a contractual
relationship with or a cause of action in favor of a third party
against either ▇▇▇▇▇▇▇ or Project Manager.
10.8 Unless otherwise provided in this Agreement, the Project Manager
and the Project Manager's consultants shall have no responsibility
for the discovery, presence, handling, removal or disposal of or
exposure of persons to hazardous materials in any form at the
Project site, including but not limited to asbestos, asbestos
products, polychlorinated bipheryl (PCB) of other toxic
substances.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 91 OF 91
ARTICLE 10
INSURANCE
11.1 PROJECT MANAGER'S LIABILITY INSURANCE
11.1.1 The Project Manager shall purchase from and maintain in a company
or companies lawfully authorized to do business in the
jurisdiction In which the Project is located such insurance as
will protect the Project Manager from claims set forth below which
may arise out of or result from the Project Manager's operations
under this Agreement and for which the Project Manager may be
legally liable.
1. Claims under workers compensation, disability benefit
and other similar employee benefit acts which are
applicable to the operation to be performed;
2. Claims for damages because of bodily injury, occupational
sickness or disease, or death of the Project Manager's
employees;
3. Claims for damages because of bodily injury, sickness, or
disease, or death of any person other than the Project
Manager's employees;
4. Claims for damages insured by usual personal injury
liability coverage which are sustained (1) by a person as
a result of an offense directly or indirectly related to
employment of such person by the Project Manager, or (2)
by another person;
5. Claims for damages, other than to the Work itself,
because of injury to or destruction of tangible property,
including loss of use resulting therefrom;
6. Claims for damages because of bodily injury, death of a
person or property damage arising out of ownership,
maintenance or use of a motor vehicle.
11.1.2 The insurance required by subparagraph 11.1.1 shall be written for
not less than limits of liability specified in Article 13 or
required by law, whichever coverage is greater. Coverages, whether
written on an occurrence or claims-made basis, shall be maintained
without interruption from date of commencement of operations under
this Agreement until date of final Payment and termination of any
coverage required to be maintained after final payment.
ARTICLE 11
PAYMENTS TO THE PROJECT MANAGER
11.1 DIRECT PERSONNEL EXPENSE
11.1.1 Direct Personnel Expense is defined as the direct salaries of the
Project Manager's personnel engaged on the Project and the portion
of the cost of their mandatory and customary contributions and
benefits related thereto, such as employment taxes and other
statutory employee benefits, insurance, sick leave, holidays,
vacations, pensions and similar contributions and benefits.
11.1.2 Salaries and fringes of persons designated as Project Managers for
Projects listed in Attachment "B" as well as salaries; fringes of
office personnel are included in the fee as shown in Article 13.
The Project Manager's home office overhead is also included in the
fee arrangement with the exception of those items identified in
Article 11.2 Reimbursable expenses and as outlines in Attachment
"C".
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 92 OF 92
11.1.3 The Project Manager is required to utilize ▇▇▇▇▇▇▇ personnel
in each area of the Project, and when these positions are either
unable to satisfactorily perform or are entirely absent from the
organization, the Project Manager may utilize their own staff and
▇▇▇▇ ▇▇▇▇▇▇▇ for the Direct Personnel Expense, coupled with a
letter of recommendation to hire. This recommendation should
include opinions regarding types of personnel, quantity,
education, and experience backgrounds, plus any and all other
qualification identifications used to assist in the recruiting,
selection processing, training, and management of such personnel.
11.2 REIMBURSEMENT EXPENSES
11.2.1 Reimbursement Expenses are in addition to compensation for Basic
and Additional Services and include expenses incurred by the
Project Manager and Project Manager's employees and consultants in
the interest of the Project, as identified in the following
Clauses.
11.2.1 Expense of transportation in connection with the Project; expenses
in connection with authorized out-of-town travel; long-distance
communications; and fees paid for securing approval of authorities
having jurisdiction over the Project.
11.2.1.2 Expense of transportation in connection with the Project; expenses
in connection with authorized out-of-town travel; long-distance
communications; and fees paid for securing approval of authorities
having jurisdiction over the Project.
11.2.1.2 Expense of reproductions, postage, express deliveries, electronic
facsimile transmissions and handling of Drawings, Specifications
and other documents.
11.2.1.3 If authorized in advance by ▇▇▇▇▇▇▇, expense of overtime work
requiring higher than regular rates.
11.2.1.4 Insurance- No additional charges for Insurance.
11.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
11.3.1 The payment schedule, as set forth in Paragraph 12.1, is
the minimum payment under this Agreement.
11.3.2 Subsequent payments for Basic Services shall be made monthly
within and, where applicable, shall be in proportion to services
performed within each phase of service, on the basis set forth in
Subparagraph 12.2.1.
11.3.3 If and to the extent that the time initially established in
Subparagraph 12.5.1 of this Agreement is exceeded or extended
through no fault of the Project Manager, compensation for any
services rendered during the additional period of time shall be
computed in the manner set forth in Subparagraph 12.3.1.
11.3.4 When compensation is based on a percentage of Project Cost and
any portions of the Project are deleted or otherwise not
constructed, compensation for those portions of the Project shall
be payable to the extent of services are performed on those
portions, in accordance with Subparagraph 12.2.1 based on (1) the
lowest bona fide bids or negotiated proposals, or (2) if no such
bids or proposals are received, the latest approved estimate of
such portions of the Project.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 93 OF 93
11.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES AND REIMBURSEABLE EXPENSES
11.4.1 Payments on account of the Project Manager's Additional Services
and for Reimbursable Expenses shall be made monthly upon
presentation of the Project Manager's statement of services
rendered or expenses incurred.
11.5 PAYMENTS WITHHELD
11.5.1 No deduction shall be made from the Project Manager's compensation
on account of penalty, liquidated damages or other sums withheld
from payments to Contractors, or on account of the cost of changes
in Work other than those for which the Project Manager has been
found to be liable.
11.6 PROJECT MANAGER'S ACCOUNTING RECORDS
11.6.1 Records of reimbursable Expenses and expenses pertaining to
Additional Services and Services performed on the basis of a
multiple of Direct Personnel Expense shall be available to ▇▇▇▇▇▇▇
or ▇▇▇▇▇▇▇'▇ authorized representatives at mutually convenient
times.
ARTICLE 12
BASIS OF COMPENSATION
▇▇▇▇▇▇▇ shall compensate the Project Manager as follows:
12.1 BASIC COMPENSATION
12.2.1 For Basic Services, as described in Article 2, and any other
services included in Article 13 as part of Basic Services. Basic
Compensation shall be computed as follows:
1. The Project Manager shall be paid a fee equal to for timely
completion of their responsibilities and scope of work as
outlined by ▇▇▇▇▇▇▇ and PG&E ES.
12.3 COMPENSATION FOR ADDITIONAL SERVICES
12.3.1 FOR ADDITIONAL SERVICES OF THE Project MANAGER, as described in
Article 3, and any other services included in Article 13 as
Additional Services, compensation shall be computed according to
ATTACHMENT "D" of this Agreement.
12.4 REIMBURSABLE EXPENSES
See Attachment "C".
12.4.1 FOR REIMBURSABLE EXPENSES, as described in Paragraph 10.2 and any
other items included in Article 13 as Reimbursable Expenses, a
multiple of One(1) times the expenses incurred by the Project
Manager and the Project Manager's employees and consultants in the
interest of the Project.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 94 OF 94
12.5 ADDITIONAL PROVISIONS
12.5.1 IF THE BASIC SERVICES covered by this Agreement have not been
completed within Twelve (12) months or the date hereof, through no
fault of the Project Manager, extension of the Project Manager's
services beyond that time shall be compensated as provided in
Subparagraphs 10.3.3 and 10.3.1.
12.5.2 Payments are due and payable Thirty (30) days from the date of the
Project Manager's invoice. Amounts unpaid Thirty (30) days after
the invoice date shall bear interest at the rate entered below, or
in the absence thereof at the legal rate prevailing from time to
time at the principal place of business of the Project Manger.
Interest rate is Prime plus Two(2) points.
(Usury laws and requirements under the Federal Truth in
Lending Act, similar state and local consumer credit laws and
other regulations at ▇▇▇▇▇▇▇'▇ and Project Manager's principal
places of business, the location of the Project and elsewhere may
affect the validity of this provision. Specific legal advice
should be obtained with respect to deletions or modifications, and
also regarding requirements such as written disclosures or
waivers)
12.5.3 The rates and multiples set forth for Additional Services shall be
annually adjusted in accordance with normal salary review
practices of the Project Manager.
ARTICLE 13
OTHER CONDITIONS OR SERVICES
SEE Attachment "C"
13.1 LIMITS ON INSURANCE
The Insurance required by Article 9 shall be written for not
less than the following limits required by law:
Project Manager shall furnish and maintain a liability policy
having ▇▇▇▇▇▇▇ a Co-Insured with minimum coverage of One Million
Dollars ($1,000,000.00).
This Agreement is dated the 20th day of December, 1999. The laws of the
State of Texas shall govern this Strategic Partnership Agreement and venue is
the County of ▇▇▇▇▇▇. The parties executing this Agreement warrant and guarantee
that they have full individual and/or corporate authority to enter into such an
Agreement. All parties have read, understood, and agreed to the terms and
conditions of this Strategic Partnership Agreement.
BY: LMCLite Applied Sciences, Inc. BY: ▇▇▇▇▇▇▇ Energy Systems of America, Inc.
By: /S/ ▇▇▇ ▇▇▇▇▇▇ By:/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------- ----------------------------
▇▇▇ ▇▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
December 20, 1999 December 29, 1999
---------------------------------- ----------------------------
Date Date
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 95 OF 95
ATTACHMENT "A"
PROJECT DESCRIPTION
The timely assessment and completion of the Projects of ▇▇▇▇▇▇▇ as submitted
specifically as energy efficient lighting retrofit service work orders issued by
Pacific Gas and Electric Energy Services (hereinafter, "PG&E ES") and as they
relate to the management of the sub-contractors and relationships with those
individuals, agents, contractors, and/or companies involved with lighting
retrofit services for and on behalf of ▇▇▇▇▇▇▇ projects. Where this project is
not limited to a geographic region, but wherever it is feasible to perform
lighting retrofit and energy management services as determined by ▇▇▇▇▇▇▇ and
LMC. Each Work Order submitted by PG&E ES to ▇▇▇▇▇▇▇ shall be considered an
attachment to this agreement as periodically outlined in Attachment "B", and
shall become subject to the terms of this agreement. The scope of work for each
location shall be determined by a separate agreement entitled as TURNKEY ENERGY
EFFICIENT LIGHTING RETROFIT AGREEMENT agreed to by and between the customer and
▇▇▇▇▇▇▇ or as otherwise determined by a PG&E ES energy services agreement, and
shall be included as a subsection to Attachment "B" of this agreement.
Additional terms of this project and relationship are submitted as ATTACHMENT
"C."
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 96 OF 96
ATTACHMENT "B"
PROJECT LISTING
FACILITY # PROJECT LOCATION BUDGET
TOTAL PROJECTS BUDGET: $____________
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 97 OF 97
ATTACHMENT "C"
REIMBURSABLE EXPENSES
(Not Included in Fee Compensation)
Cost of all travel and transportation related expenses - (Both home office and
project locations) Project related long distance communications cost.
All fees and permits, should they be required. Cost of reproductions and express
mail delivery. Cost of Project site office requirements.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 98 OF 98
ATTACHMENT "D"
ADDITIONAL PROJECTS
At ▇▇▇▇▇▇▇'▇ discretion should additional Projects not included in Attachment
"A" be assigned to the Project Manager and those additional Projects run
concurrent to those in Attachment "B" a fee to be agreed upon at such date for
the costs associated with recruiting, selection processing, and training will be
added as a portion of overhead to LMC, and added after the standard bid has
been. All other terms and conditions of this Contract shall be applicable
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 99 OF 99
ATTACHMENT "E"
BASIS OF COMPENSATION
The basis for compensation is as follows:
A) Conducting energy audits, energy feasibility studies, scope of
work assessment, project bidding, lighting system removal or
demolition, lighting system installation or retrofit, and energy
management services for commercial, industrial, and institutional
applications.
B) Identifying, contracting and managing the services of field
contractors/personnel to perform lighting retrofit services.
C) Researching the procedures, LMCnology/products, and uniqueness in
assemblage currently specified by Pacific Gas & Electric Energy
Services (hereinafter, "PG&E-ES") as an acceptable energy
efficient lighting retrofit, and then replicating such procedures,
LMCnology/products, and uniqueness in assemblage as a ▇▇▇▇▇▇▇
commercial facility retrofit standard.
D) Engineering and implementing a system to manage the logistics of
personnel and inventory requirements to conduct lighting retrofit
services.
E) Maintaining a `Best In Class' reputation as maintained by PG&E-ES
and as determined by overall market standards.
F) Organizing the timely delivery standards specified by PG&E-ES and
as outlined within their client sales contracts and work orders.
G) Maintaining a standard of excellence in customer interaction and
satisfaction established as tradition by PG&E-ES and jointly
determined as the benchmark for an acceptable customer retrofit
and client contract fulfillment.
H) Represent LMC services as being performed by ▇▇▇▇▇▇▇ and conducted
with the highest standards in customer satisfaction and service.
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN INITIALS
----- -----
▇▇▇▇▇▇▇ ENERGY SYSTEMS OF AMERICA, INC.
AND SLI LIGHTING SOLUTIONS, INC. PAGE 100 OF 100