URBAN GREEN TECHNOLOGIES, LLC, a Delaware limited liability company, Plaintiff/Counterclaim Defendant,
SUSTAINABLE STRATEGIES 2050 LLC, a Delaware limited liability company, and RAYOMAND BHUMGARA, Defendants/Counterclaim Plaintiffs.
After Bench Trial Verdict for Defendants/Counterclaim
G. Holmes, Esquire, Joseph Grey, Esquire, Cross & Simon,
LLC, Wilmington, Delaware, Attorneys for
T. N. Jordan, Esquire, Jordan Law, LLC, Wilmington, Delaware,
Attorney for Defendants/Counterclaim Plaintiffs.
L. SCOTT Judge.
the Court's decision following a three-day bench trial
relating to certain disputes arising from a contractual
relationship between Urban Green Technologies, LLC,
("UGT"), on the one hand, and Sustainable
Strategies 2050 LLC ("SS2050") and its President
and sole and managing member, Rayomand Bhumgara
("Bhumgara") (collectively, "Defendants"
or "Mr. Bhumgara"), on the other.
Findings of Fact
a Delaware Limited Liability Company in the business of
dealing solar energy projects located in Chicago, Illinois.
UGT looks for suitable areas to build solar energy facilities
and negotiates leases for the properties where these solar
energy facilities are built. UGT uses consultants and
contractors to develop the projects until the facility can be
sold to a third party. Defendant, Sustainable Strategies 2050
is also a Delaware Limited Liability Company located in
Wellesley, Massachusetts. The sole managing member and
President of Sustainable Strategies is Defendant, Raymond
Bhumgara. The current CEO of UGT is Nikola Krneta, and the
former CEO, Bob Berman, stepped down in 2015 when Mr. Krneta
became the CEO. Mr. Berman no longer has an active role in
the company. Mr. Bhumgara established Sustainable Strategies
2050 and began working primarily with solar energy in 2010.
Mr. Bhumgara was in the real estate development business he
met Palmer Cameron (hereinafter "Mr. Cameron"). In
September 2010 Mr. Cameron called Mr. Bhumgara regarding
UGT's interest in starting projects in Massachusetts.
Specifically, UGT's interest was solar energy
development, and UGT did not have ties to Massachusetts. Mr.
Bhumgara met with Goran Rajsic, the CEO of Urban Green at the
time, and Mr. Cameron in Chicago during October 2010. UGT
agreed to pay him a retainer of $3, 000.00 per month, plus
expenses. His duties included identifying sites, doing site
visits, attending board hearings, proposals, permit projects,
and finding off-takers. Mr. Bhumgara testified that he
initially asked UGT to pay him $5, 000.00 per month given his
involvement in the projects, but UGT was unable to meet this
amount. The parties agreed he would start work on November 1,
2010, and Mr. Bhumgara sent a follow up e-mail on November 1
asking for a written agreement.
Berman was in Boston in June 2011. Mr. Bhumgara and Mr.
Berman communicated about the initial three part agreement
from 2010: retainer, expenses, and commission. On June 27,
2011 Mr. Bhumgara sent Mr. Berman a draft agreement. Pursuant
to this draft, UGT would pay him a $3, 000.00 per month
retainer, reimbursement for reasonable expenses, and
commissions within 30 days following the closing of a
commercial financing of each potential project. The amount of
commission was left blank, as Mr. Bhumgara testified, it was
the start of negotiations and he wanted UGT to make an offer.
Mr. Berman acknowledged he received the e-mail with the
attached agreement the same day. On July 8, 2011, Mr.
Bhumgara contacted Mr. Berman via e-mail and requested Mr.
Berman take time to look over the proposed agreement and
compensation structure. Mr. Berman responded "Sure to
all." Again on July 24, 2011 Mr. Bhumgara sent an e-mail
to Mr. Berman asking him to find time to review the draft
agreement Mr. Bhumgara sent on June 27. Mr. Berman responded
on July 25, 2011 stating that he and Mr. Rajsic
"discussed a plan that added $7, 500.00 per megawatt of
installed capacity not the properties you develop. Payable
upon closing and financing." Mr. Bhumgara followed up
with an e-mail on July 25, 2011 asking Mr. Berman to clarify
the $7, 500.00 per megawatt proposal. Specifically, Mr.
Bhumgara asked whether the $7, 500.00 per megawatt applied to
properties he was involved in developing, properties he was
not involved in developing, or only properties he identified
and helped develop. Mr. Berman responded, "Yes to
both." On July 26, 2011, Mr. Bhumgara stated that he was
not clear on Mr. Berman's prior response, and asked Mr.
Berman to be more specific in regard to his $7, 500.00 per
megawatt proposal. Mr. Berman responded that he was in
Memphis and they would "clarify tomorrow."
Mr. Bhumgara sent an e-mail to Mr. Berman on July 27, 2011.
Mr. Bhumgara explained that his market value based on other
negotiated agreements similar to UGT's project was
between $50, 000.00 and $75, 000.00 per megawatt for every
opportunity he identified. On September 1, 2011 Mr. Bhumgara
sent an e-mail to Mr. Berman indicating that he would reach
out to some of his contacts and identify new properties in
Massachusetts. He indicated that he would be "more
motivated" if the Parties "could reach an agreement
on a results oriented fee structure (which would only be
payable upon closing of the financing)." Mr. Bhumgara
also indicated that UGT's July 25 proposed commission of
$7, 500.00 per megwatt was too low for his services. In
October 2011 Mr. Bhumgara reached out to UGT again. This time
he asked UGT to consider increasing his monthly retainer from
$3, 000.00 to $5, 000.00. UGT continued to pay Mr. Bhumgara
the $3, 000.00 per month and the expenses owed to him. He
also indicated that they could "discuss the performance
based fee later."
Berman was in Boston in December of 2011 for a Planning Board
meeting. Mr. Berman and Mr. Bhumgara discussed putting an
agreement together, and Mr. Bhumgara testified that it
focused on his commission. Mr. Bhumgara followed up with an
e-mail on December 30, 2011. He stated, "as we discussed
a few days ago, I need an agreement very soon as we continue
our partnership into 2012 and beyond. Please discuss with
Goran and send me your offer." Mr. Bhumgara acknowledged
that the parties could either use the agreement he sent to
UGT on June 27, 2011, or use an agreement UGT developed.
Consequently, Mr. Bhumgara sent Mr. Berman another e-mail on
January 7, 2012 asking Mr. Berman to prioritize their
compensation agreement, and that he was willing to negotiate
a multi-tiered compensation agreement. Mr. Berman responded
that he and Mr. Rajsic reached a preliminary agreement. On
February 14, 2012 Mr. Rajsic sent Mr. Bhumgara an e-mail with
a draft consulting agreement. Mr. Bhumgara replied on
February 15, 2012 stating that he did not agree with the fee,
and he would send a counter offer. Similarly, on February 17,
2012 Mr. Bhumgara sent an email to UGT stating that he would
send a new draft agreement, and the gap between what he was
paid on other projects ($50, 000 to $75.000 per megawatt),
compared to the amount UGT proposed, was too high. Mr.
Bhumgara sent a markup of the agreement with his comments on
February 27, 2012.
March 2012, the Parties had not signed an agreement, and Mr.
Bhumgara did not receive his monthly retainer and expenses
from UGT. Mr. Bhumgara notified Mr. Berman via e-mail. Mr.
Bhumgara and Mr. Berman met between March 19, 2012 and March
20, 2012 in Boston. Mr. Berman and Mr. Bhumgara discussed the
compensation agreement. Mr. Bhumgara testified that he
ultimately told Mr. Berman that he could agree to $35, 000.00
per megawatt for all projects he worked on that sold. Mr.
Bhumgara received a call on March 22, 2012 from Mr. Berman
who agreed to pay $35, 000.00 per megawatt. Mr. Bhumgara sent
Mr. Berman an e-mail on March 26, 2012 stating that he would
revise an agreement based on the terms they agreed to, and
clarify his role and responsibilities.
Bhumgara sent a revised agreement to Mr. Berman on March 27,
2012. This revised agreement stated that UGT would pay Mr.
Bhumgara a $3, 000.00 monthly retainer, expenses, and $35,
000.00 per megawatt for projects identified by him and/or
projects he provided active development support in. Mr.
Berman received this document, and no agreement was signed,
nor were there any further communications about this
agreement. In March 2013, a full year later, Mr. Bhumgara
testified that the projects were advancing and he was putting
a lot of time into the UGT projects. Mr. Berman came back to
Boston, and he expressed concerns to Mr. Bhumgara about the
projects. Mr. Berman was unsure if they would get buyers for
the project, and he told Mr. Bhumgara that he wanted to
modify the agreement. Mr. Berman wanted to modify the
agreement because the $35, 000.00 per megawatt commission was
not tied to the sale price of the project. On March 18, 2013
Mr. Bhumgara sent Mr. Berman an e-mail to follow up with
their conversation about a fee agreement, and attached a new
agreement. Mr. Bhumgara sent more follow up e-mails regarding
his compensation, which ultimately led to this litigation.
parties stipulated at trial that Defendant was paid a total
of $138, 664.48, which consisted of $3, 000.00 per month for
39 months beginning on November 23, 2010 and ending December
3, 2013, and $21, 664.48 in total expenses. Although Mr.
Bhumgara worked on other projects with UGT, there are three
specific projects subject to this litigation: Billerica,
Lancaster, and Oxford. All three project sites are located in
Massachusetts, and each project sold.
argues that although it had an oral contract with Defendants
to pay a monthly retainer and expenses, UGT is not
contractually bound to pay Defendants commission on the
Projects because the agreements did not produce a signed
writing. Specifically, UGT argues that Defendants cannot
prove that a contract was formed between the parties in March
2012. Defendants counterclaim is for breach of contract based
on the March 27, 2012 document Mr. Bhumgara sent to UGT.
Defendants argue that this agreement is an enforceable
contract because there was a meeting of the minds between the
Parties. UGT argues that the March 27 agreement is not an
enforceable contract; rather it was a counteroffer to
UGT's February 14 ...