EXHIBIT E

Additional Provisions

 

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.

 

3.                  PURCHASE OF EQUIPMENT

 

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.

 

4.                  ROYALTY PAYMENtS TO THE COMMISSION 

 

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.

 

5.                  INTELLECTUAL PROPERTY ITEMS DEVELOPED PRIOR TO THIS AGREEment

 

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.

 

6.                  RIGHTS OF THE PARTIES REGARDING 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.

 

7.                  CONFIDENTIALIty

 

No confidential deliverables are anticipated under this Agreement. Any desire for confidential deliverables shall be addressed in each WA in accordance with the following:

 

A.     Determination

 

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.

 

B.     Public and Confidential Products

 

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.

 

C.     Future Confidential Information

 

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.

 

D.     Identifying and Submitting Confidential Information

 

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.

 

8.                  INDEMNIFICATION

 

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.