EXHIBIT D

Special Terms and Conditions

 

 

1.                  CONTRACT MANAGEMENT

 

A.     The individuals managing this Agreement, for both parties, are listed in Exhibit G. Any changes in personnel identified in Exhibit G shall be communicated in writing by either party.  UC Project Manager cannot be replaced or substituted without prior written approval of the Commission Contract Manager, such approval will not be unreasonably withheld.

 

B.     The UC Project Manager and the Commission Contract Manager are responsible for the day to day project status, decisions and communications with each other.  The Commission Contract Manager reviews all project deliverables, reports and invoices.

 

2.                  STANDARD OF PERFORMANCE

 

A.     UC and non-UC personnel performing work under this Agreement shall be responsible for exercising the degree of skill and care required by customarily accepted good professional practices and procedures.

 

B.     In the event that UC or non-UC personnel fail to perform in accordance with the foregoing standard of performance, the Commission Contract Manager and UC Project Manager shall seek to negotiate in good faith an equitable resolution satisfactory to both parties.  If such a resolution cannot be reached, the parties shall work through the Commission’s dispute resolution process described in the “DISPUTES” clause of this Agreement.

 

C.     Nothing contained in the section in intended to limit any of the rights or remedies, which the Commission may have under law.

 

3.                  REPORT STANDARDS

 

A.     Progress reports shall summarize the activities in each WA. Final reports, if required, will be identified under individual WA. Progress Reports and Final Reports shall be submitted in accordance with Exhibit F.

 

B.   All documents that will be released to the public, including reports, deliverables, and articles submitted for publication and all reprints, shall include the following legend:

 

"LEGAL NOTICE"

 

"This report was prepared as a result of work sponsored by the California Energy Commission. It does not necessarily represent the views of the Energy Commission, its employees, or the State of California. The Energy Commission, the State of California, its employees, contractors, and subcontractors make no warranty, express or implied, and assume no legal liability for the information in this report; nor does any party represent that the use of this information will not infringe upon privately owned rights."

 

4.                  DISPUTES

           

In the event of a contract dispute or grievance between the Commission Contract Manager and UC, both parties shall follow the following procedure:

 

A.                Commission Dispute Resolution

 

If a problem cannot be resolved within ten (10) working days, between the Commission Contract Manager and the UC Contract Manager, UC shall prepare a package in writing stating the issues in the dispute, the legal authority or other basis for UC’s position and the remedy sought.  The package must be submitted to the Commission Dispute Resolution Committee.  The Committee shall make a determination on the problem within ten (10) working days after receipt of UC’s package.  Should UC disagree with the Committee’s decision, UC may appeal to the full Commission at a regularly scheduled business meeting.  The Committee will provide UC with the current procedures for placing the appeal on a Commission Business Meeting Agenda.

 

UC shall continue with the responsibilities under this Agreement during any dispute.

 

B.     Binding Arbitration

 

Should the Commission’s Dispute Resolution procedure identified in paragraph A. above fail to resolve a contract dispute or grievance to the satisfaction of the UC, the UC may elect to have the dispute or grievance resolved through binding arbitration. The Commission may also elect to have any contract dispute or grievance resolved through binding arbitration. Both parties must agree to submit the dispute or grievance to arbitration. The arbitration proceeding shall take place in Sacramento County, California, and shall be governed by the commercial arbitration rules of the American Arbitration Association (AAA) in effect on the date the arbitration is initiated.  The dispute or grievance shall be resolved by one (1) arbitrator who is an expert in the particular field of the dispute or grievance.  The arbitrator shall be selected in accordance with the aforementioned commercial arbitration rules.  The decision rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with the applicable law in any court having jurisdiction thereof.  The demand for arbitration shall be made no later than six (6) months after the date of the contract’s termination, irrespective of when the dispute or grievance arose, and irrespective of the applicable statute of limitations for a suit based on the dispute or grievance. If the parties do not mutually agree to arbitration, the parties agree that the forum to resolve a dispute is State court or Federal court, with the exception of Federal bankruptcy court.

 

The cost of arbitration shall be borne by the parties as follows:

 

1)      The AAA’s administrative fees shall be borne equally by the parties;

2)      The expense of a stenographer shall be borne by the party requesting a stenographic record;

3)      Witness expenses for either side shall be paid by the party producing the witness;

4)      Each party shall bear the cost of its own travel expenses;

5)      All other expenses shall be born equally by the parties, unless the arbitrator apportions or assesses the expenses otherwise as part of his or her award.

 

At the option of the parties, any or all of these arbitration costs may be deducted from any balance of contract funds.  Both parties must agree, in writing, to utilize contract funds to pay for arbitration costs.

 

5.                  TERMINATION

 

A.     Default

 

In the event of any default of this Agreement or any individual Work Authorization, the Commission may, without prejudice to any of its other legal remedies, terminate this Agreement upon five (5)-days written notice to UC.

 

B.     For Cause

 

The Commission may, for cause, and at its option, terminate this Agreement or any individual Work Authorization upon giving thirty (30)-days’ advance written notice to UC.  In such event, UC agrees to use all reasonable efforts to mitigate its expenses and obligations. 

 

The term “for cause” includes, but is not limited to, the following reasons:

 

1)                  Loss or redirection of State or Federal funding for this Agreement;

2)                  Significant change in State or Commission policy such that the work or product being funded would not be supported by the Commission;

3)                  Change in Commission’s staffing such that the work or product being funded can be done by staff of the Commission.

C.     Allowable Costs

 

OMB Circular No. A-21, Section J.49, shall be used to determine allowable termination costs, but not in excess of the total amount of the Agreement or an individual Work Authorization, as applicable.


6.                  WAIVER

 

No waiver of any breach of this Contract shall be held to be a waiver of any other or subsequent breach. All remedies afforded in this Contract shall be taken and construed as cumulative, that is, in addition to every other remedy provided therein or by law. The failure of the Commission to enforce at any time any of the provisions of this Contract, or to require at any time performance by Contractor of any of the provisions, shall in no way be construed to be a waiver of those provisions, nor in any way affect the validity of this Contract or any part of it or the right of the Commission to thereafter enforce each and every such provision.

 

7.                  NOTICE

 

Legal notice to either party may be given using the following delivery methods, certified mail, Federal Express, United Parcel Service, or personal delivery, providing evidence of receipt, to the respective parties identified in Exhibit G.

 

Delivery by fax or e‑mail is not considered notice for the purpose of this Agreement. Legal notice shall be effective when received, unless a legal holiday for the State commences on the date of the attempted delivery. In which case, the effective date shall be postponed 24 hours, or whenever the next business day occurs.

 

8.                  STOP WORK

 

The Commission Contract Officer may, at any time, by written notice to UC, to require UC to stop or suspend work on any or all WA in this Agreement. Stop Work Orders may be issued for reasons such as a project exceeding budget, standard of performance, out of scope work, delay in project schedule, misrepresentations and the like.

 

A.     Compliance: Upon receipt of such stop work order, Contractor shall immediately take all necessary steps to comply therewith and to minimize the incurrence of costs allocable to work stopped.

 

B.     Equitable Adjustment: An equitable adjustment shall be made by Commission based upon a written request by Contractor for an equitable adjustment. Contractor must make such adjustment request within thirty (30) days from the date of receipt of the stop work notice.

 

C.     Revoking a Stop Work Order: Contractor shall resume the stopped work only upon receipt of written instructions from the Commission Contract Officer canceling the stop work order.

 

9.                  INDEPENDENT CONTRACTOR

 

UC, and the agents and employees of UC, in the performance of this Agreement, shall act in an independent capacity and not as officers or employees or agents of the Commission.