EXHIBIT E
1.
WORK AUTHORIZATION
A. UC shall begin work only upon receipt of a written Work Authorization (WA), prepared by the Commission Contract Manager and signed by both the UC Contract Officer (or their designee) and the Commission Contract Manager. Each WA shall be approved by the Commission at a Commission Business Meeting and is subject to Department of General Services-Legal Office review. The Commission Contract Manager shall file all WA with the Commission Contracts Office before the payment of any invoice.
B.
Each
WA shall be numbered sequentially and contain the information identified in the
Sample WA Format in Exhibit F.
C.
The
Commission reserves the right to require UC to stop or suspend work on any or
all WA in accordance with the STOP WORK clause.
D.
Payment
for each WA is based upon an approved budget in each WA. Budgets may be cost-reimbursable or
deliverables-based (fixed price). The costs of a completed, approved WA shall
not exceed the authorized total amount of the WA, except under the following
conditions:
If, in the performance of the WA, UC determines that
the total costs will exceed the estimated costs, UC shall immediately notify
the Commission Contract Manager. Upon
such notification, the Commission Contract Manager may amend the WA by:
1)
Altering
the scope of the WA to accomplish the work within the estimated costs; or
2)
Augmenting
the dollar amount for deliverables in the WA; or
3)
Stop
work in the WA in accordance with the “STOP WORK” paragraph.
E.
UC
may reallocate up to a cumulative amount of fifteen percent (15%) of the total
amount of each WA or $5,000 (whichever is greater).
Written notification of any such changes must be provided in the current
progress report. Proposed budget changes that exceed the cumulative total of
more than fifteen percent (15%) of the total WA or $5,000 (whichever is
greater) require prior written approval of the Commission Project Manager, the
PIER Team Lead and the Commission Contract Manager.
F.
If
there are significant variances in the performance of the WA in relation to
what was estimated at the outset, the UC Project Manager will report them along
with recommended mitigating actions for consideration by the Commission Project
Manager. UC Contract Manager has a
continuing obligation to report in a timely fashion any significant variances
affecting performance of the WA.
Examples of significant variances include inability to deliver products
by key WA dates; unavailability of key personnel that will effect timely
submittal of deliverables; and key technical issues that would require change
in scope, redirection of the effort, or discontinuation of the project.
G.
Each
WA shall identify the key personnel and key subcontractors who have primary
responsibility for producing or managing the substantive work in the WA. These
individuals or entities cannot be replaced or substituted without prior written
approval of the Commission Contract Manager, and such approval shall not be
unreasonably withheld.
H.
Each
WA shall be incorporated into this Agreement.
However, it is understood and agreed by both parties to this Agreement
that all of the terms and conditions of the Agreement shall remain in force
with the inclusion of any such WA. A WA
shall not constitute an independent agreement, and shall not amend or supersede
any of the other provisions of this Agreement.
2.
SUBCONTRACTS
A. UC shall be responsible for establishing and maintaining written agreements with and making payments to subawardees for work performed in accordance with the terms of this Agreement.
B.
In
accordance with the PIER Program Subcontracting Policy, dated January 12, 2001,
between the Commission and the Department of General Services-Office of Legal
Services, UC is exempt from paragraph 5. SUBCONTRACTING in Exhibit C of this
Agreement. The Commission will send a copy of the current policy upon request.
C.
In
subawards to UC-managed DOE laboratories, UC shall use terms negotiated between
DOE and UC. Sub-awards to other DOE
laboratories shall use the terms and conditions negotiated between DOE and the
Energy Commission.
Title
to equipment acquired by UC and subawardees shall vest in UC. UC shall use the equipment in the project or
program for which it was acquired as long as needed, whether or not the project
or program continues to be supported by Commission funds, and shall not
encumber the property without Commission Contract Manager approval. When equipment is no longer needed for the
original project or program, UC shall contact the Commission Contract Manager
for disposition instructions. If disposition instructions are not provided
within 120 days after completion of the WA, UC shall have no further obligation
to the Commission regarding such equipment.
UC shall refer to applicable OMB circular A-21 for
additional equipment requirements and allowable costs.
Royalty provisions apply for each project funded
under this Agreement. These terms apply to both UC and non-UC personnel and
performing institutions. For DOE projects, royalty provisions are included in
Exhibit H-2 (A, B and C). These royalty provisions only apply to intellectual
property developed under this Agreement.
A.
In
consideration of the Commission providing funding to the UC, UC agrees to pay
the Commission a portion of either Net Revenues or Net Royalties under the
terms and conditions hereinafter set forth.
B.
Net
Royalties. If the Performing
Institution licenses to a Licensee, the UC’s obligation to make payments to the
Commission shall commence from the date that the Net Royalties calculation is
positive. Payments are payable in
annual installments and are due the first day of March for Net Royalties
calculation made for the UC’s prior fiscal year . UC agrees to pay to Commission an amount equivalent to 10% of the
total cumulative Net Royalties for each and all Performing Institutions, less
payments made by UC to Commission in previous years when Net Royalties per
Performing Institution were positive.
Payments shall be made by check, made payable to the California Energy
Commission, PIER Fund.
C.
Net
Revenues. If the Performing Institution
is the Licensee, the UC’s obligation to make payments to the Commission shall
commence upon the first sale of the Licensed Product. Payments are payable in annual installments and are due the first
day of March for the prior fiscal year of the UC. UC agrees to pay an amount
equivalent to 1.5% of the Net Revenues by check made payable to the California
Energy Commission, PIER Fund.
D.
UC
agrees to and shall require each Performing Institution to agree not to make
any sale, license, lease, gift or other transfer of any Subject Invention,
Copyrightable Work or Project-Related Product (PRP) with the intent of, or for
the purpose of, depriving Commission of Net Royalties or Net Revenues
hereunder. Generally, this means that
the Performing Institution will not make any sale, license, lease or other
transfer of PRP for consideration other than fair market value except for
research, educational, or other mutually agreed to purposes intended to serve
the public benefit.
E.
UC
and Performing Institutions shall maintain separate accounts within their
financial and other records for purposes of tracking royalties and revenues due
to the Commission under this Agreement.
F.
Audits
on Payments to Commission. Payments to
the Commission are subject to the Audit clause.
G.
Defaults. In the event of default hereunder, the
Commission shall be free to exercise all rights and remedies available to it
herein, and under law and at equity. UC’s or a non-UC Performing Institution’s
failure to pay when due, any amount due and payable under the terms of this
contract constitutes a default under this Agreement.
H.
UC
acknowledges that a late payment of royalties/revenues owed to the Commission
will cause the Commission to incur costs not contemplated by the parties. If a royalty/revenue payment is not paid
when due, UC agrees to pay the Commission a late fee equal to two percent (2%)
of the payment due. Additionally, UC agrees that royalty/revenue payments not paid
within fifteen (15) days of the due date shall thereupon become debt
obligations of UC to the Commission, due upon demand and bearing interest at
the maximum interest rate allowed by law.
I.
The
parties agree that UC does not guarantee compliance with payments under this
clause in the event of default by a non-UC Performing Institution. Amounts in default and not paid by a non-UC
Performing Institution will not be paid by UC under this clause and the fees
and obligations of this clause pursuant to such default and non-payment shall
not be a responsibility of UC. However,
UC has an affirmative duty to monitor non-UC Performing Institutions’
compliance and take reasonable enforcement measures calculated to obtain non-UC
Performing Institutions’ performance of their payment obligations under this
clause.
The Commission makes no claim to intellectual property that existed prior to this agreement and was developed without Commission funding. Each WA shall identify any applicable pre-existing intellectual property.
Exhibit H-1 shall be used by UC in contractual agreements executed for work under this Agreement with all Performing Institutions except DOE Laboratories. Exhibit H-2 (A, B, and C) shall be used with DOE Laboratories except those managed by UC.
No confidential deliverables are anticipated under this Agreement. Any
desire for confidential deliverables shall be addressed in each WA in
accordance with the following:
The Commission Executive Director makes the final determination of confidentiality. In the event there is a disagreement over the items to be delivered under the Agreement, the parties shall use the Disputes clause. Those items to be delivered as confidential shall be subject to the Commission Executive Director’s determination of confidentiality. If UC wishes to appeal the Executive Director’s determination, the appeal shall be made to the full Commission. If UC disagrees with this determination, the UC may seek judicial review as per Title 20 CCR 2501, et seq.
Only those products/items specifically listed in each WA or in a subsequent determination of confidentiality qualify as confidential products. All products including, but not limited to, progress reports, task products and the Final Report shall not contain confidential information except when the Commission Contract Manager and UC deem it necessary to include confidential information in a product. In such event, UC shall prepare the deliverable in two separate volumes, one for public distribution and one to be maintained in the Commission’s confidential records.
During
this Agreement, it is possible that a UC or a non-UC Performing Institution may
develop additional data or information that UC considers being protectable as
confidential information. In this
event, the Commission Contract Manager shall provide a copy of the Commission
Application for Confidential Designation to UC. UC must list all items and information along with justification
for confidentiality and submit the application to the Commission Contract Manager. The Commission Executive Director makes the
final determination of confidentiality.
Such subsequent determinations will be added to the applicable WA.
Each
document containing confidential information submitted by UC shall be marked
“Confidential” and delivered in a sealed package to the Commission Contract
Officer identified in Exhibit G. The
Commission Contract Officer will notify the Commission Contract Manager that
the confidential information has been received and is in the Contracts Office
for review. The confidential
information will only be available to those persons authorized by the
Executive Director.
A.
UC
shall defend, indemnify and hold the State of California and its agencies,
their respective officers, employees and agents harmless from and against any
and all liability, loss, expense, attorneys’ fees, or claims for injury or
damages arising out of the performance of this Agreement but only in proportion
to and to the extent such liability, loss, expense, attorneys’ fees or claims
for injury or damages are caused by or result from the negligent or intentional
acts or omissions of UC, its officers, agents or employees.
B.
The
Commission shall defend, indemnify and hold UC, its officers, employees and
agents harmless from and against any and all liability, loss, expense,
attorneys’ fees, or claims for injury or damages arising out of the performance
of this Agreement but only in proportion to and to the extent such liability,
loss, expense, attorneys’ fees or claims for injury or damages are caused by or
result from the negligent or intentional acts or omissions of the State of
California, its officers, agents or employees.