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EXHIBIT 10.5
TEAMING AGREEMENT
This Teaming Agreement (hereinafter "Agreement") is made and entered
into as of the date last signed by and between ENMAX Corporation, a
Utah Corporation, (hereinafter called "ENMAX") and XXXXXXXXXX.XXX,
Inc., a Utah corporation (hereinafter referred to as "ENVIRONMAX"). All
of the above aforementioned are hereinafter referred to as "the
Parties."
RECITALS
WHEREAS, the Government has issued, or intends to issue Requests for
Proposals and/or other forms of business opportunities for procurement
of various products and/or services, (hereinafter "Business
Opportunities"); and
WHEREAS, the Government intends to procure some of the Business
Opportunities under 8(a) program; (hereinafter "the Program"); and
WHEREAS, ENMAX is a qualified 8(a) concern; and
WHEREAS, the parties intend to submit proposals in response to certain
Business Opportunities with one of the Parties assuming the role of
prime contractor; and
WHEREAS, the other Party is desirous of participating as a
subcontractor under the selected Business Opportunities; and
WHEREAS, the respective capabilities of the Parties hereto complement
one another, and it appears to be in the best interest of both Parties
hereto to work jointly in the bidding, sale, and delivery of the
supplies and services being acquired under the Program (FAR Subpart
9.6, "Contract Team Arrangements"); and
WHEREAS, the Parties wish to form a teaming arrangement and to define
their respective rights, duties, and obligations thereunder;
NOW, THEREFORE, and in consideration of the mutually binding covenants
and conditions set forth herein, the Parties hereto mutually agree as
follows:
XVIII. Objective and Duration
18.1 The objective and sole intent of this Teaming Agreement shall be
to cooperate in marketing for specific Business Opportunities and/or preparing,
submitting proposals and negotiating, in attempts to obtain awards for the
contract resulting from the Business Opportunities identified in Addendum A .
18.2 One of the Parties is to be identified as the Prospective Prime
Contractor for each Business Opportunity listed on Addendum A. The other Party
will be the Prospective Subcontractor in accordance with the provisions of this
Agreement.
18.3 The Parties intend that each addition of a project to the table in
Addendum A shall be interpreted as a separate, independent agreement comprising
all of the provisions contained in this Agreement.
18.4 It is expressly understood that in the event of contract award to
the Prospective Prime Contractor under an identified Business Opportunity, the
Parties may enter into negotiations for a subcontract to perform the work scope
contemplated by the Parties as subsequently amended in the prime contract
negotiation.
18.5 Except for those obligations regarding proprietary data, which
shall survive this Agreement, for each of the Business Opportunities identified
in Addendum A, this Agreement shall remain in effect until any one of the
following occurs:
(a) Award of a contract for the Business Opportunity
identified in Addendum A to a prime contractor is prohibited by congress or a
government entity with authority to terminate said program.
(b) Cancellation of the program by the Government.
(c) Mutual agreement of the Parties to terminate this
Agreement with a minimum of ninety (90) days written notice by either Party.
(d) Award of the contract for the identified Business
Opportunity to the Prospective Prime Contractor and execution and approval of a
corresponding subcontract with the Prospective Subcontractor under the terms of
this Agreement, effective for the entire term of the contract including all
option periods and extensions as may be exercised by the Government.
(e) The indictment, suspension or debarment by the Government
of either Party.
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(f) Modification of the Solicitation by the Government
changing the 8(a) program status of the Business Opportunity.
(g) Failure of the Prospective Prime Contractor to maintain
its status as an 8(a) firm with the required qualifications necessary to be an
eligible bidder.
(h) Official notice by the Government (or the Government's
contractor if the Business Opportunity is for a subcontract) that the
Prospective Subcontractor will not be approved as a subcontractor.
18.6 Notwithstanding the provisions of paragraph 1.5(f) above, the
Parties may mutually agree in writing to continue this Agreement in effect
whether the Business Opportunity's 8(a) status is changed.
18.7 Notwithstanding the provisions of paragraph 1.5(g) above, the
Parties may mutually agree in writing to reverse the roles as Prospective Prime
Contractor and Prospective Subcontractor to continue this Agreement in effect if
the original Prospective Prime Contractor failed to maintain its 8(a)
qualifications.
XIX. Proposal Preparation
19.1 The Prospective Prime Contractor shall have the primary
responsibility for the preparation of all technical and non-technical aspects of
the proposal including but not limited to:
(a) Marketing and promotional efforts;
(b) Proposal content, assembly and production;
(c) Liaison with Government customer personnel; and
(d) Oral discussions and negotiations, if held.
19.2 The Prospective Subcontractor agrees to use its best efforts in
supporting the Prospective Prime Contractor during the proposal preparation and
negotiation activities of the Business Opportunity. Each Party shall contribute
to the preparation of the proposal to the extent necessary to assure the
inclusion of a thorough and accurate description of its responsibilities in the
proposal. Each Party shall provide all required past performance information,
technical proposal material, management information, schedule information, fully
burdened cost data, pricing data and all representations and certifications
applicable to the Business Opportunity. Each Party further agrees to furnish
such additional information, assistance support, and cooperation as may be
reasonably required in pursuit of the award of the prime contract during the
pre-award period. The Prospective Subcontractor shall at all times be entitled
to receive, upon reasonable request, documentation and information concerning
oral discussions and negotiations between the Prospective Prime Contractor and
the procuring agency. Nonetheless, in the preparation and submission of the
proposal for the Business Opportunity, each Party will bear its own costs.
19.3 The Prospective Prime Contractor will prepare data required for
any proposals and integrate the data with that of the Prospective Subcontractor.
The Prospective Subcontractor shall be identified in the proposal as the
subcontractor to provide the following services:
(a) Management Assistance
(b) Providing software and programs
(c) Training
(d) Assistance in contract negotiations
(e) Technical Support
(f) Local area personnel, area personnel recruitment
(g) Proposal preparation assistance
19.4 The Prospective Prime Contractor agrees that it will provide
adequate notice to the Prospective Subcontractor of the work to be performed by
the Prospective Subcontractor as defined, with such terms and conditions as may
be required to reflect the prime contract and to include such other terms as may
be mutually agreed upon by the Parties. The Parties agree and acknowledge that
the extent of task support required by the Prospective Prime Contractor may vary
as a result of its prime contract negotiations with the procuring agency,
therefore, it is anticipated that the work scope assigned by the Prospective
Prime Contractor will be increased or decreased as appropriate in response to
the variances, if any, to the overall effort as proposed. In any event if
applicable under an 8(a) Business Opportunity, the Prospective Prime
Contractor's portion of the overall Program shall not be less than 51% of the
total cost of the contract performance incurred for personnel (FAR 52.219-14
Limitations on Subcontracting). The subcontract price shall be as negotiated
between the Parties after conduct of such costs and/or price analysis as may be
required by Federal Acquisition Regulation (FAR), the Defense FAR Supplement
(DFARS), or any subordinate agency supplemental regulations if applicable.
19.5 If, during the technical or business negotiations prior to
finalization of the prime contract arrangements related to the Business
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Opportunity, it becomes apparent to the Parties that the Prospective Prime
Contractor must modify or reduce the scope referred to in the proposal, then the
Prospective Prime Contractor and the Prospective Subcontractor will negotiate
the revised requirements to adjust to their respective work scope and the value
of the prime contract and subcontract. The Prospective Prime Contractor will in
no way modify the proposal during the discussions or negotiations as to either
increase the risk of performance to, or decrease potential cost or fee recovery
by the Prospective Subcontractor unless the Prospective Subcontractor
specifically approves such modification.
19.6 Except as may be otherwise agreed upon in writing, for Business
Opportunities that are issued for products or services, neither Party shall
participate with third parties with regard to duplicate, parallel proposal
activities covering the Business Opportunities identified in Addendum A. It is
agreed that the Prospective Subcontractor will not compete independently as
prime contractor, participate with other companies, make proposals or agreements
in support of the efforts of other firms or teams competing on the Business
Opportunities, nor engage in related efforts other than as a prospective prime
or subcontractor hereunder with the Prospective Prime Contractor. However, if
either Party is disqualified for any reason by the procuring agency or office
responsible for a Business Opportunity or should either Party elect not to
participate in the Business Opportunity or fails to commit the necessary
resources and effort to reasonably demonstrate to the other Party that the Party
wants to win the contract award, the other Party may upon ten (10) days notice
pursue the activity necessary to give the other Party the opportunity to win the
work required by the Business Opportunities, including participating with other
firms. The Party receiving notice under this paragraph shall have an additional
five days to correct the reason for which the notice was sent.
XX. Formation of a Performance Entity
20.1 Should the Prospective Prime Contractor be awarded the prime
contract as a result of this Agreement, the Parties agree to enter into good
faith negotiations intending to culminate in a subcontract to be awarded to the
Prospective Subcontractor for its area of interest identified in the proposal,
subject to the necessary government approvals, required flow down clauses and
negotiation of mutually acceptable price, delivery, and terms and conditions.
The Prospective Prime Contractor will designate an employee as the Executive
Project Manager responsible for contract performance. All tasks for which the
Prospective Subcontractor is responsible shall be performed by the Prospective
Subcontractor at the direction, and under the supervision, of the Prospective
Prime Contractor. Except as may be otherwise agreed in writing by the Parties,
each of the Parties shall bear its own expenses for its own performance of the
proposal work, subcontract, and related work.
XXI. General Provisions
21.1 During the term of this Agreement, the Prospective Prime
Contractor and the Prospective Subcontractor, to the extent of their right to do
so, shall exchange such data as is reasonably required for each to perform its
obligations hereunder. The Prospective Prime Contractor and the Prospective
Subcontractor each agree to comply with the provisions of the following
"Disclosure Agreement" (i.e., all paragraphs subordinate to this paragraph 4.1)
with regard to the administration of proprietary data.
21.1.1 Information and data which the disclosing Party
considers to be either propriety or competition sensitive and so indicates by an
appropriate identification shall be called "Proprietary Information" and shall
be subject to the following provisions.
21.1.2 In consideration for the disclosure of Proprietary
Information, the Parties agree that each shall use its reasonable best efforts
to keep in confidence and not disclose to any person or entity outside of the
respective organizations, or to any unauthorized person within their
organizations, for a period of ten (10) years from the day of receipt thereof,
any of the other Party's Proprietary Information. Reasonable best efforts are
defined to be the same degree of care that the Party receiving Proprietary
Information uses to protect its own Proprietary Information of a similar nature.
Neither Party shall be liable for use or disclosure of any such Proprietary
Information if the same (i) is in the public domain at the time it was
disclosed, or thereafter enters the public domain without breach of this
Agreement; (ii) can be shown by prior documents or other competent evidence to
be known to the Party receiving it at the time of disclosure; (iii) is used or
disclosed by accident, inadvertence, or mistake despite the exercise of said
reasonable best efforts; (iv) is used or disclosed with the prior written
approval of the other Party; (v) is independently developed by the receiving
Party; (vi) becomes known to the receiving Party without similar restrictions
from a source having a legal right to disclose such information and who owes no
obligations of confidence with respect to the owning Party; (vii) was not
reduced to writing and identified in writing as Proprietary Information subject
to this Agreement; (viii) is disclosed by the owning Party to a third party
without restrictions similar to those in this Agreement; or (ix) is used or
disclosed after a period of ten (10) years from date of receipt.
21.1.3 Neither Party shall be liable in damages for any
inadvertent disclosure where the customary degree of care as previously defined
has been exercised; provided that upon discovery of such inadvertent disclosure,
it shall have endeavored to prevent any further inadvertent disclosure.
21.1.4 If Proprietary Information is disclosed orally or
visually, such oral or visual information shall be reduced to writing promptly
by the disclosing Party and every page of such writing containing Proprietary
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Information shall be clearly identified as described hereinabove. Said writing
shall be delivered to the receiving Party within thirty (30) days after
disclosure thereto of said Proprietary Information.
21.1.5 Should the Party receiving Proprietary Information be
faced with legal action or a requirement under Government regulations to
disclose Proprietary Information received hereunder, the receiving Party shall
forthwith notify the Party furnishing Proprietary Information, and upon the
request of the latter, shall cooperate with the Party furnishing Proprietary
Information in contesting such a disclosure. Except in connection with failure
to discharge responsibilities set forth in the preceding sentence, neither Party
shall be liable in damages for any disclosures pursuant to judicial action or
Government regulations.
21.1.6 The Parties agree that the Party receiving Proprietary
Information under the Agreement shall not authorize directly or indirectly
further disclosure to any sources for use in any country in contravention of the
export laws, or other laws or regulations, of the United States.
21.1.7 No license under any patents, or to use (except
pursuant to this Agreement) the technology being transmitted, is granted or
conveyed by one Party's disclosing Proprietary Information or other information
to the other Party hereunder nor shall such a disclosure constitute any
representation, warranty, assurances, guaranty, or inducement by the disclosing
Party to the other Party with respect to infringement of patent or other rights
of others.
21.1.8 This Agreement shall apply in lieu of and not
withstanding the proprietary or restrictive legends or statements associated
with any particular Proprietary Information furnished hereunder.
21.1.9 Each Party represents that, to the best of its
knowledge, it has the right to disclose, transmit, or otherwise dispose of the
Proprietary Information that it discloses or transmits under this Agreement.
21.1.10 Proprietary Information furnished hereunder shall
remain the property of the furnishing Party and shall be returned to it or
destroyed promptly at is request together with all copies made thereof by the
receiving Party hereunder, and any other media which incorporated the
Proprietary Information in any respect.
21.2 Inventions made in connection with performance under this
Agreement shall remain the property of the originating Party. In the event of
joint inventions, the Parties shall establish their respective rights and shall
be entitled to participate equally in any said joint invention. In this regard,
it is recognized and agreed that the Parties may be required to and shall grant
license or other rights to the Government to inventions, data, and information
under such standard provisions which may be contained in the Government prime
contract contemplated by this agreement, provided, however, such license or
other rights shall not exceed those required by said Contract.
21.3 All communications relating to this Agreement shall be directed
only to the specific person designated to represent the Prospective Prime
Contractor and the Prospective Subcontractor on this agreement. These
appointments shall be kept current during the period of the Agreement.
All notices to ENMAX shall be addressed to:
ENMAX Corporation
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Phone (000) 000-0000 Fax (000) 000-0000
Attention: Xxxxxx X. Xxxxx, President, & CEO
All notices to THE ENVIRONMAX GROUP, shall be addressed to:
XXXXXXXXXX.XXX, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Phone (000) 000-0000 Fax (000) 000-0000
Attention: Xxxxxx X. Xxxxx, President, & CEO
21.4 No publicity or advertising shall be released by either ENMAX or
ENVIRONMAX in connection with this Agreement or any proposal contemplated hereby
without the prior written approval of the other. Neither Party, however, shall
be precluded from revealing the content of this Agreement to the Government. In
the event of any contract award contemplated by this Agreement, neither Party
shall make any release for publication in media intended for public circulation
without the other Party's prior approval thereof.
21.5 The Prospective Prime Contractor shall conduct all communications
with the customer and with other organizations, as required, to perform its role
as prime contractor. All work products will be delivered to the designated
customer entity by the Prospective Prime Contractor or at the Prospective Prime
Contractor's direction.
21.6 This Agreement shall not constitute, create, give effort to, or
otherwise recognize a joint venture pooling arrangement, partnership or formal
business organization of any kind. Neither Party may assign or transfer its
interest herein without the prior written consent of the other. Each Party will
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earn its own profits or bear its own losses of its contract or subcontract
performance.
21.7 This Agreement applies only to cooperative efforts of the Parties
in connection with the Business Opportunities identified in Addendum A. This
Agreement does not prevent or encumber either Party from pursuing other business
opportunities. Nothing contained herein shall restrict either Party from
quoting, offering to sell, or selling to others, any items or services which it
regularly offers for sale, which are not unique to this Agreement and which may
be included in the prime proposal. Further, it is not the intent of this
Agreement to restrict the Government's right to full competition.
21.8 The validity, construction, scope, and performance of this
Agreement shall be governed by the laws of the state of Utah. The invalidity or
unenforceability of any part of this Agreement for any reason whatsoever shall
not affect the validity or enforceability of the remainder.
21.9 This Agreement contains the entire agreement of the Parties
superseding any previous understanding, commitments or agreements, oral or
written with respect to the subject matter thereof, except the Disclosure
Agreement set forth herein.
XXII. Execution and Effectivity
22.1 IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the day and year last signed and it is effective as of the date last signed.
XXXXXXXXXX.XXX, INC. ENMAX Corporation
By: By:
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Xxxxxxx X. Xxxxxxxx
Executive Vice President
Date: Date:
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