UNIFIED SCHOOL DISTRICT NO. 500,
WYANDOTTE COUNTY, KANSAS
ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT
SUBCONTRACTOR: LIGHTING TECHNOLOGY SERVICES, INC.
SCOPE: LIGHTING
ADDRESS: 1715 E. Wilshire Ave., Suite 724
Santa Ana, CA 92705
TELEPHONE: 714/550-7223 CA CONTRACTORS LICENSE NO. 675901
FAX: 714/550-7226
This Engineering, Procurement and Construction Agreement (this "Agreement")
is made effective as of March 31, 1998, by and between Onsite Energy
Corporation, a Delaware corporation having its principal offices at 701
Palomar Airport Road, Suite 200, Carlsbad, CA 92009 ("Onsite"), and
Lighting Technology Services, Inc., a California corporation having its
principal place of business at 1715 East Wilshire Avenue, Suite 724, Santa
Ana CA 92705 ("Subcontractor").
SECTION 1. STATEMENT OF WORK. In exchange for the consideration set
forth in Section 3 below, Subcontractor agrees to furnish all materials,
labor, tools, equipment and supplies necessary to perform all of the work
set forth in EXHIBIT 1 attached hereto (the "Work") for the energy
efficiency project (the "Project") being implemented by Onsite at the
facilities set forth on EXHIBIT 2 attached hereto (the "Premises") for
Unified School District No. 500, Wyandotte County, Kansas ("Customer"), all
in accordance with the Contract Documents, which mean and include (i) this
Agreement and all exhibits, schedules and amendments hereto; (ii) the scope
of the Work attached hereto as EXHIBIT 1; and (iii) any final plans and
specifications as modified and approved by Onsite, Customer and
Subcontractor.
SECTION 2. PREVAILING WAGE. To the extent required by law, all Work shall
be performed in compliance with applicable prevailing wage laws, including
as set forth in the General Decision No. KS970012 for Wyandotte County,
Kansas, as the same may be amended or updated from time to time, a copy of
which is attached hereto as EXHIBIT 3, or other applicable state prevailing
wage determinations; provided, however, that by attaching a copy of the
same, nothing herein shall be deemed to relieve Subcontractor of its
obligation to pay prevailing wages in accordance with any other trade rate
determination if the Work requires the same. If requested by Onsite,
Subcontractor shall provide Onsite with certified copies of Subcontractor's
payroll.
SECTION 3. PAYMENTS. Onsite agrees to pay Subcontractor for the materials
furnished and the Work performed in accordance with this Agreement the sum
of One Million Six Hundred Thousand Thirty-Three Dollars ($1,600,033),
which amount includes all applicable sales and other taxes, and all
applicable permit and license fees and costs (as applicable, the "Contract
Price"). Unless otherwise instructed by Onsite, Subcontractor shall
initiate the Work upon receipt from Onsite of a written notice to proceed
(the "Notice to Proceed").
Onsite shall pay Subcontractor for the Work in accordance with the Project
Milestone Schedule below. Upon Completion (as defined below) of the
applicable portion of the Work in accordance with the Project Milestone
Schedule below, Subcontractor shall furnish Onsite a detailed invoice (each
an "Invoice") for such Work, accompanied by such substantiating data as
Onsite and/or Customer may reasonably require, including vendors and
subcontractor's lien releases and invoices. Onsite shall pay Subcontractor
the amount of each Invoice in accordance with the Project Milestone
Schedule below. Any Invoice not paid in accordance therewith shall be
deemed delinquent and shall bear interest from the date of such invoice at
the rate of prime plus two percent (2%) per month until paid in full. Such
interest shall not exceed the maximum rate permitted by law.
Upon Final Acceptance, as defined below, Subcontractor shall provide to
Onsite an invoice (the "Final Invoice") (i) summarizing and reconciling all
previous payments on Invoices; and (ii) setting forth all amounts due and
owing by Onsite to Subcontractor for work performed by Subcontractor per a
Contract Change Order (as defined below) ("Contract Change Order Work").
Within thirty (30) days of the receipt and approval of the Final Invoice by
Onsite, Onsite shall pay Subcontractor (i) the remaining balance, if any,
of the Contract Price due and owing to Subcontractor; and (ii) any amounts
due and owing for Contract Change Order Work (the "Final Payment").
Payments will be made to Subcontractor in accordance with the following
Project Milestone Schedule within five (5) business days of Onsite's
receipt of any requisite corresponding payment from Customer:
1. Upon receipt of the Notice to Proceed $480,009.90
(30% of the Contract Price)
1. Monthly progress payments based on the percentage $960,019.80
of the Work completed up to 90% of the Work
(60% of the Contract Price)
3. Upon Final Acceptance (as defined below) by Customer $160,003.30
of the Work (10% of the Contract Price)
CONTRACT PRICE: $1,600,033.00
Subcontractor acknowledges that Onsite previously issued Purchase Order No.
5KCKSD-001 to Walters Wholesale Electric Co. ("Walters") in the amount of
Six Hundred Seventy-Two Thousand Seven Hundred Seventy-Three Dollars
($672,773) for the purchase of certain equipment and materials for the
Project (the "PO"). Onsite may (and currently intends to) assign the PO to
Subcontractor and increase the Contract Price accordingly (to reflect the
outstanding balance on the PO (that is, the above amount less any amounts
paid by Onsite to Walters under the PO) at the time of assignment), and
Subcontractor hereby agrees to accept such assignment and upon such
assignment, assumes all liabilities thereunder, agrees to make all payments
required under the PO, and agrees to indemnify and hold harmless Onsite
from and against any and all liabilities and obligations under, arising out
of or associated with the PO. Upon assignment of the PO, the payments set
forth in the Project Milestone Schedule above shall be revised on a pro
rata basis to include the outstanding balance of the PO.
"Acceptance" is contingent upon successful completion of some or all of the
Work, as applicable ("Completion"), including but not limited to a post-
installation inspection of the Work by Onsite, at Onsite's option, and the
execution by Customer and Subcontractor of an Interim Certificate of
Completion and Acceptance (substantially in the form attached hereto as
EXHIBIT 4 and incorporated herein) or other form of written evidence from
Customer of its acceptance of the applicable portion of the Work,
accompanied by documented evidence (in the form of lien releases and
similar documents), as applicable and at Onsite and/or Customer's option,
that all Subcontractor's obligations to laborers, subcontractors,
materialmen and others who have Mechanics Lien Rights or other legal claims
related to the Project have been satisfied. "Final Acceptance" shall be
deemed to occur upon execution by Customer and Onsite of any form of
written evidence from Customer of its final acceptance of the Work.
SECTION 4. SCOPE OF AGREEMENT. Subcontractor certifies and agrees that
Subcontractor is fully familiar with all terms, conditions and obligations
of the Contract Documents, the location of the Project, and the conditions
under which the Work is to be performed, and that Subcontractor enters into
this Agreement based upon Subcontractor's investigation of all such matters
and is in no way relying upon any opinions or representations of Onsite or
Customer regarding the same; provided, however, that Onsite acknowledges
that Subcontractor presented its bid for the Project based on the scope of
the Work as provided to Subcontractor by Onsite. It is also agreed and
understood that Subcontractor has relied on manufacturer's information and
specifications for equipment and that Subcontractor will not be bound by
any misrepresentations or falsities pertaining to the information provided
by such manufacturers. It is further agreed that Contract Documents are
incorporated in this Agreement by this reference, with the same force and
effect as if the same were set forth at length herein, and that
Subcontractor and its subcontractors will be and are bound by any and all
of said Contract Documents insofar as they relate in any part or in any
way, directly or indirectly, to the Work covered by this Agreement.
Additionally, Subcontractor agrees to comply with any security, and health
and safety, requirements of Customer applicable to the performance of the
Work.
SECTION 5. CLEAN-UP. Clean-up of Subcontractor and its subcontractors'
waste materials and refuse will be the full responsibility of the
Subcontractor. If Subcontractor fails to assume this responsibility, then
said clean-up work will be performed by Onsite and the Contract Price
reduced by an amount equal to the cost to Onsite of the same.
SECTION 6. CHANGES IN THE WORK. It is the expressed intent of this
Agreement that Subcontractor perform the Work acting as a "turnkey"
provider of goods and services with full expectations that changes in the
scope of the Work necessitating pricing changes, or relaxation in
requirements as provided herein, will not be required. Subcontractor shall
adhere strictly to the Contract Documents unless a change therefrom is
authorized in writing by Onsite (a "Contract Change Order," substantially
in the form attached hereto as EXHIBIT 5). The parties acknowledge that the
Contract Price includes some allocation of funds for scope change
contingencies, and therefore Subcontractor hereby agrees (i) to make any
and all changes, furnish the materials and perform the Work that Onsite may
require under a Contract Change Order but for which Onsite receives no
additional compensation from Customer at Subcontractor's direct costs only;
and (ii) to make any and all changes, furnish the materials and perform the
Work that Onsite may require under a Contract Change Order but for which
Onsite receives additional compensation from Customer for Subcontractor's
direct costs plus a gross profit margin of 14.8%, unless otherwise agreed
by Subcontractor and Onsite.
SECTION 7. TIME AND MANNER OF PERFORMANCE. Subcontractor shall commence
performance of this Agreement forthwith upon receipt of the Notice to
Proceed and shall furnish all materials, labor, tools, equipment and
supplies necessary for the performance of this Agreement in a proper,
efficient and workmanlike manner. Subcontractor shall execute the Work
undertaken in a prompt and diligent manner so as to promote the general
progress of the entire design, construction and start-up, and shall not, by
delay or otherwise, interfere with or hinder the work of Onsite or any
other subcontractor. Subcontractor agrees to conduct all work in a manner
which minimizes disruption to Customer's education program and business
operations.
SECTION 8. SUBSTANTIAL COMPLETION AND LIQUIDATED DAMAGES. Subcontractor
shall achieve substantial completion of the Work (that is, Completion of
ninety percent (90%) or more of the Work) ("Substantial Completion"), as
evidenced by the execution of some form of written documentation by
Customer (and acceptable to Onsite) of its agreement of Substantial
Completion, not later than November 30, 1998 (the "Substantial Completion
Date"). In the event Subcontractor does not achieve Substantial Completion
by the Substantial Completion Date and as a result of Subcontractor's
conduct or delay, Onsite is assessed liquidated damages by Customer,
Subcontractor shall be subject to a charge for liquidated damages of Two
Hundred Fifty Dollars ($250) per day for each day that Substantial
Completion exceeds the Substantial Completion Date. The parties agree that
because the actual amount of damages Onsite would incur as a result of any
failure of Subcontractor to achieve Substantial Completion by the
Substantial Completion Date is difficult to calculate, the amount of
liquidated damages set forth herein is reasonable and is not being imposed
as a penalty.
SECTION 9. WORKMANSHIP. Every part of the Work shall be executed in
accordance with the Contract Documents in a sound, workmanlike and
substantial manner. All workmanship shall be of good quality and materials
used shall be furnished in ample quantities to facilitate the proper and
expeditious execution of the Work, and shall be reasonable for the
applications.
SECTION 10. ASSIGNMENT OF CONTRACT. Subcontractor shall have the right,
with the prior written consent of Onsite, which shall not be unreasonably
withheld, and of Customer, if required under Onsite's agreement with
Customer, to assign, transfer or sublet any portion or part of the Work
required by this Agreement. Onsite may assign, transfer or grant a
security interest in any of its rights under this Agreement without the
prior written consent of Subcontractor, and may assign or transfer any of
its obligations under this Agreement with the prior written consent of
Subcontractor, which shall not be unreasonably withheld.
SECTION 11. INSURANCE. Subcontractor shall provide and maintain
throughout the term of this Agreement, including any applicable warranty
periods, Workers' Compensation, Commercial General Liability, Contractual
Liability, Comprehensive Automobile Liability and Floaters Installation
Insurance, with companies authorized to conduct business in the State of
Kansas, at the following minimum limits:
a. WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE with a
limit of $500,000 (or such higher limit as may be required by law) to
provide for payment to Subcontractor's employees, and/or their dependents,
employed on or in connection with the Work covered by this Agreement, of
Workers' Compensation benefits in accordance with applicable laws.
b. (i) COMMERCIAL GENERAL LIABILITY INSURANCE covering all
operations, including completed operations and contractual liability, with
the following limits: $1,000,000 per occurrence, $2,000,000 general
aggregate and $2,000,000 completed operations aggregate; and (ii) EXCESS or
UMBRELLA LIABILITY INSURANCE with the following limits: $2,000,000 per
occurrence and $2,000,000 general aggregate.
c. PRIMARY COMPREHENSIVE AUTOMOBILE PUBLIC LIABILITY INSURANCE
covering owned, non-owned and hired automotive equipment used in connection
with Subcontractor's operations, with a combined single limit for bodily
injury or death and property damage of $500,000 per accident (unless
coverage can be obtained at a limit of $1,000,000 per accident, and then at
this higher limit).
d. INSTALLATION FLOATER INSURANCE covering the equipment and
materials being installed in the performance of the Work while such
equipment and materials are in transit, at the job site or the Premises,
and after installation pending Final Acceptance, in an amount equal to the
cost to replace the equipment and materials with like kind and quality.
This insurance shall be on an "all risk" basis including, but not limited
to, the perils of fire, vandalism, malicious mischief and theft.
In the event any of the Work hereunder is contracted to subcontractors by
Subcontractor, Subcontractor will require its subcontractors to carry and
maintain the same insurance as specified above. Onsite and Customer shall
be included as additional insureds on the liability insurance policy(ies)
specified herein. The naming of Onsite and Customer as additional insureds
shall not obligate Onsite or Customer to pay any premium on the policies.
Such insurance shall be primary insurance and shall contain a Severability
of Interest clause with respect to each insured. The "Other Insurance"
clause of such policies shall be modified, if necessary, to specify that
any separate insurance maintained in force by Onsite or Customer shall be
considered excess insurance and shall not contribute with insurance
extended by Subcontractor's and/or subcontractor's insurer(s) under this
requirement.
Subcontractor shall, ten (10) days before commencing Work under this
Agreement (unless otherwise agreed by Onsite), and prior to expiration of
any policy of insurance specified herein, deliver to Onsite, Attention:
Audrey Nelson Stubenberg, Esq., two (2) originals of the Certificate(s) of
Insurance completed by Subcontractor and its subcontractor's insurance
carrier or agent certifying that minimum insurance coverage, as required
above, is in effect and will not be canceled or changed until thirty (30)
days after written notice is given to Onsite and Customer. Subcontractor
shall immediately notify Onsite and Customer upon receipt of any
cancellation notice.
SECTION 12. ADDITIONAL REQUIREMENTS. Subcontractor, any of its officers,
agents, employees or servants, further agrees:
(1) to indemnify and hold to hold harmless, and hereby does
indemnify and hold harmless, Onsite from any and all claims, suits,
liability or patent rights arising in connection with this Agreement or the
performance of the Work;
(2) to pay promptly all valid bills and charges for material,
labor or otherwise in connection with or arising out of this Agreement, and
hereby indemnifies and holds harmless Onsite from and against all liens and
claims for labor and material filed against the property or any part
thereof, and from and against all expenses and liability in connection
therewith, including but not limited to court costs and attorney's fees
resulting or arising therefrom, by others than Subcontractor. Should Onsite
receive notice of unpaid bills or charges in connection with the Work,
Subcontractor shall forthwith pay and discharge the same and cause the same
to be released of record, or shall furnish Onsite with proper indemnity,
either by satisfactory corporate surety bond or satisfactory title policy;
and
(3) to obtain and pay for all permits, licenses and official
inspections made necessary by this Work, unless otherwise agreed to by
Onsite and Subcontractor, and to comply with all laws, ordinances and
regulations bearing on the Work and the conduct thereof. Subcontractor
represents and warrants that Subcontractor is a licensed contractor in good
standing under the laws of the State of California and, if required, the
jurisdiction in which the Project is located and agrees to furnish Onsite
with a copy of Subcontractor's license upon execution of this Agreement.
In addition, Subcontractor, a corporation, represents that Subcontractor
(i) is organized under or authorized to do business under the laws of the
State of California; and (ii) is authorized to transact business under and
in accordance with the laws of the state where the Project is located.
Additionally, Onsite agrees to indemnify and hold harmless, and hereby does
indemnify and hold harmless, Subcontractor from and against any and all
claims, suits or liability incurred by Subcontractor related to any claims
or actions by a third party subcontractor against LTS arising out of
Onsite's decision to subcontract the Work to Subcontractor and not to the
other third party subcontractor.
SECTION 13. GUARANTEES AND WARRANTIES.
a. WORKMANSHIP AND MATERIALS. Subcontractor warrants and guarantees
the Work performed, and materials utilized in the performance of the same,
under this Agreement shall be free from material defects for a period of
one (1) year from the date of Final Acceptance (or such longer period as
may be provided by law). Subcontractor shall, within a reasonable amount
of time after written notice thereof from Onsite and/or Customer, correct
such defects to the reasonable satisfaction of Customer. For the benefit
of Customer, Subcontractor shall obtain from all subcontractors a similar
warranty and guaranty of workmanship.
b. EQUIPMENT AND MATERIALS. For the benefit of Customer and Onsite,
Subcontractor shall obtain from all vendors and manufacturers (as
applicable) of equipment installed or materials used in the performance of
the Work such warranties against defects and deficiencies in design,
material and workmanship as are generally given in the trade to an owner or
contractor; provided however, that Subcontractor is hereby authorized and
obligated to obtain the customary services furnished in connection with
such warranties and guarantees on behalf of Onsite during the Term of this
Agreement. Subcontractor hereby assigns to Customer all of Subcontractor's
interest, if any, in all such vendor and manufacturer warranties, and
during the applicable warranty periods shall assist Onsite and/or Customer
in the administration of said warranties.
SECTION 14. RELATIONSHIP; COMPENSATION AND TAXES. The parties expressly
intend, agree and understand that Subcontractor is an independent
contractor and an employing unit subject, as an employer, to all applicable
Unemployment and Workers' Compensation statutes so as to relieve
Subcontractor's employees as employees of Onsite for the purpose of keeping
records, taking reports and payment of Unemployment and Workers'
Compensation premiums or contributions. Subcontractor agrees to indemnify
and hold Onsite and Customer harmless and reimburse Onsite for any expense
or liability incurred under such statutes in connection with employees of
Subcontractor.
Subcontractor further agrees with regard to (i) the production, purchase,
sale, furnishing, delivery, pricing and use or consumption of materials,
supplies and equipment; (ii) the hiring, tenure or conditions of employment
of employees and their hours of work and rates of and the payment of their
wages; and (iii) the keeping of records, collection and payment of federal,
state and municipal taxes and contributions, that Subcontractor will keep
and have available all necessary records and make all reports, returns,
withholding deductions, collections and payments and otherwise do any and
all things necessary so as to fully comply with all federal, state and
municipal laws, ordinances and regulations insofar as they affect or
involve Subcontractor's performance of this Agreement, all so as to fully
relieve Onsite and a Customer from and to protect Onsite and Customer
against any and all responsibility or liability therefore or in regard
thereto. This Agreement does not constitute a hiring by either party, and
Subcontractor is not an employee, partner or joint venturer of Onsite.
SECTION 15. HEALTH AND SAFETY PROVISION. Subcontractor shall perform the
Work in accordance with the statutes, ordinances, rules and regulations of
any and all federal, state, local, municipal or other agencies having
jurisdiction over the Work and at the Project and in accordance with
applicable health and safety regulations. Subcontractor hereby agrees to
indemnify and hold harmless Onsite from and against any liability arising
out of any violation of the above mentioned laws and regulations by
Subcontractor, and/or Subcontractor's employees, agents or subcontractors.
SECTION 16. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE. The
acceptance by Subcontractor of the Final Payment shall be and shall operate
as a release to Onsite and Customer of all claims and all liability to
Subcontractor for all things done or furnished in connection with the Work
and for every act and neglect to Onsite, Customer and others relating or
arising out of the Work.
SECTION 17. TIME. Time is of the essence in this Agreement.
SECTION 18. ARBITRATION. Any controversy or claim arising out of or
relating to this Agreement, or any alleged breach thereof, will be settled
by binding arbitration with such arbitration service as the parties may
agree, and in the absence of such agreement, in accordance with the
Commercial Rules of the American Arbitration Association, and judgment upon
the award rendered by the Arbitrator(s) may be entered in any court having
jurisdiction thereof. In no event will the arbitration of any controversy
or the settlement thereof delay the performance of this Agreement.
Arbitration hearings, unless the parties agree otherwise, will be held in
the County of San Diego, California. The prevailing party will be
reimbursed for any and all attorney's fees, costs and expenses, including
those incurred in any arbitration hearing and including the arbitrator's
fees, costs and expenses.
SECTION 19. NON-DISCRIMINATION. Subcontractor shall not discriminate
against any employee or applicant for employment because of race, creed,
color, sex, national origin or any other unlawful reason. Subcontractor
shall take affirmative action to ensure that applicants are employed, and
that employees are treated during employment, without regard to their race,
creed, color, sex or national origin. Such action shall include, but not
be limited to, the following: employment, upgrading, demotion or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay
or other forms of compensation; and selection for training, including
apprenticeship.
SECTION 20. NOTICE. Any notices to be given under and pursuant to the
terms of this Agreement shall be made by personal delivery, by a nationally
recognized overnight carrier, or by registered or certified mail, postage
prepaid, return receipt requested, and such notice shall be deemed given
upon receipt if delivered personally or by overnight carrier, or forty-
eight (48) hours after deposit in the United States mails as set forth
herein. Any notice to Onsite shall be addressed as follows:
Onsite Energy Corporation
701 Palomar Airport Road, Suite 200
Carlsbad, CA 92009
Attention: Richard T. Sperberg, President
Any notice to Subcontractor shall be addressed as follows:
Lighting Technology Services, Inc.
1715 East Wilshire Avenue, Suite 724
Santa Ana, CA 92705
Attention: Russell Wm. Royal, President
SECTION 21. EVENTS OF DEFAULT. Subcontractor shall be deemed to be in
default of this Agreement (i) if Subcontractor shall at any time shall
(a) refuse or neglect to supply a sufficient number of properly skilled
workmen or sufficient materials of the proper quality; (b) fail in any
respect to execute the Work as described in this Agreement with promptness;
(c) cause by any action or omission the stoppage or delay of or
interference with the Work or of the Work of any subcontractors; (d) fail
in the performance of any of the covenants herein contained; or (ii) if
Subcontractor be adjudged bankrupt or shall make a general assignment for
the benefits of its creditors; or (iii) if a Receiver shall be appointed
for Subcontractor or for its assets; or (iv) if Subcontractor shall become
insolvent or become a debtor in reorganization, composition or arrangement
proceedings, then in any such event, after serving a five (5) day written
notice mailed or delivered to the last known address of Subcontractor of
the existence of any of the foregoing causes, and unless the cause
specified in such notice is cured within such five (5) days, Onsite, at its
option, may provide either itself or through others, any such labor or
materials to complete the Work and may deduct the cost thereof from any
money then due, or hereafter to become due, to Subcontractor under this
Agreement, provided, however, if the default is of a nature that is not
curable in such five (5) day period and Subcontractor is diligently
pursuing a cure, then the cure period shall be extended thirty (30) days.
In any such event, after such notice and failure to cure such cause within
five (5) day specified, Onsite, at its option, may terminate this Agreement
and may enter on the premises and take possession, for the purpose of
completing the Work, of all materials and equipment of Subcontractor which
Subcontractor hereby assigns to Onsite, may employ other persons to
complete the Work by whatever method Onsite may deem expedient, and may
deduct the cost thereof from any money then due, or hereafter to become
due, to Subcontractor under this Agreement. In the event the expense
incurred by Onsite under this Section 21 after the termination of
Subcontractor hereunder exceeds the Contract Price, such excess shall be
paid by Subcontractor to Onsite.
SECTION 22. ENVIRONMENTAL REQUIREMENTS. Subcontractor recognizes that in
connection with the performance of the Work or the Project, Onsite is not
responsible for any work relating to (i) asbestos and materials containing
asbestos; (ii) pollutants, hazardous wastes, hazardous materials,
contaminants, including without limitation ballasts that may contain PCBs
(collectively, clauses (i) and (ii), "Hazardous Materials"); and (iii) the
storage, handling, use, transportation, treatment, disposal, discharge,
leakage, detection, removal or containment thereof. The materials and
activities listed in the foregoing sentence are referred to as "Excluded
Materials and Activities." Subcontractor agrees that if performance of Work
involves any Excluded Materials and Activities, Subcontractor will
immediately notify Onsite and Customer in writing and will perform, or
arrange for the performance of, such work directly with Customer and will
bear the sole risk and responsibility therefore. Furthermore, in handling
any of Customer's property, including without limitation Customer's
ballasts that may contain PCBs, Onsite does not take title to any such
property, nor does Onsite assume any responsibility for the transportation,
handling or disposal of such property. Notwithstanding the foregoing,
Subcontractor shall be solely responsible for the identification, removal
and disposal of ballasts that may contain PCBs (subject to the provisions
of EXHIBIT 1), and the recycling of fluorescent lamps, all in accordance
with all federal, state and local laws, statutes and regulations applicable
thereto, and shall furnish to Onsite written evidence of satisfactory
disposal of the same. In furtherance of the foregoing, Subcontractor
agrees to release, indemnify, defend and hold harmless Onsite and its
consultants, partners, directors, officers, agents and employees of and
from all costs, claims, damages and liability arising out of or relating to
Excluded Materials and Activities, acts or omissions of Onsite or third
parties relating thereto, or injury caused thereby, excepting only such
costs, claims, or damages or liability as are the result of any willful
misconduct of Onsite.
SECTION 23. MISCELLANEOUS.
a. ENTIRE AGREEMENT. This Agreement, together with any Exhibits or
amendments hereto, represents the entire agreement between the parties as
to the subject matter hereof. This Agreement shall be binding on and inure
to the benefit of the heirs, successors and assigns of the respective
parties.
b. AMENDMENT. The provisions of this Agreement can be modified only
by a writing that expressly states that modification of this Agreement is
intended.
c. WAIVER. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision, nor shall any waiver constitute
a continuing waiver unless otherwise expressly provided hereunder or in a
writing signed by the party against whom any such waiver is sought to be
enforced.
d. GOVERNING LAW. This Agreement shall be interpreted and enforced
under the laws of the State of California.
e. SEVERABILITY. Any provision of this Agreement prohibited by, or
unlawful or unenforceable under, any applicable law or any jurisdiction
shall be ineffective as to such jurisdiction without invalidating the
remaining provisions of this Agreement.
f. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
g. HEADINGS. Headings or captions of paragraphs or sections of this
Agreement are for convenience of reference only and shall not be considered
in the interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
ONSITE: SUBCONTRACTOR:
ONSITE ENERGY CORPORATION LIGHTING TECHNOLOGY SERVICES,
INC.
By: _____________________________ By:
Richard T. Sperberg, President Name:
Title:
Date: __________, 1998 Date: __________, 1998
Attachments:
Exhibit 1 - Scope of Work
Exhibit 2 - Facilities List
Exhibit 3 - General Decision No. KS970012, Wyandotte County, KS
Exhibit 4 - Interim Certificate of Completion and Acceptance
Exhibit 5 - Form of Contract Change Order
Mf\work\onsite\filings\10q exhibit 10.89\<<Date>>