EXHIBIT H-4

Definitions and Additional Contract Terms for DOE

 

Definitions and Additional Agreement Terms [1]

 

Note: These definitions shall be used by UC in contractual agreements executed for work under this Agreement with all DOE Laboratories except those managed by UC. 

 

Clause 1. Purpose and Precedence.

 

A.                 This contract is entered into between University of California (UC) and United States Department of Energy (DOE).  This Contract is funded by the California Energy Commission.  UC is subcontracting with DOE for the research described in the work statement.  The Parties agree that this Exhibit is intended as an addendum to the contract between UC and DOE, to fulfill the legal and regulatory obligations and commitments that the California Energy Commission has to the State of California.

 

B.                 In the event of any conflict between Federal law applicable to contract and State law, Federal law shall take precedence.

 

Clause 2. Definitions.

 

A.                 Agreement Budget refers to reimbursable resources for that portion of the Project covered by the Agreement.

 

B.                 Agreement Period is the length of the Agreement between the UC and the DOE. The Agreement Period coincides with that portion of the Project covered by the Agreement Budget.

 

C.                 Date means calendar date.

 

1.                  Agreement Start Date is the date reimbursable expenses can begin after the Agreement document is signed by the parties.

 

2.                  Termination Date is the expiration date of the Agreement and is the last date reimbursable expenses can be incurred.

D.                 Equipment means any products, objects, machinery, apparatus, implements or tools, in excess of $5000.00, purchased or constructed under this Agreement, including those products, objects, machinery, apparatus, implements or tools, in excess of $15,000.00, from which over thirty percent (30%) of the equipment is composed of materials purchased for the project.

 

For the purposes of determining residual value, the UC will use straight line depreciation over the equipment’s useful life as determined by the UC’s  standard accounting practices. The residual value will be calculated as of the date of the completion or termination of this Agreement.

 

E.                  Materials means the substances used in constructing a finished object, commodity, device, article or product.

 

F.                  Participant’s value contribution means the assessed value of Federal Administrative Charges not charged to this project and assessed value of synergistic projects. The assessed value of such synergistic projects does not constitute a funding contribution or obligation (either cash or in-kind) on the part of the DOE or the Facility Operator.

 

G.                 Project refers to the entire effort undertaken and planned by the Facility Operator under Appendix A, Statement of Work and includes the work funded by this contract.  The Facility Operator’s Project coincides with that portion of the Project covered by the Agreement Budget and the Agreement Period.

 

H.                 Sale is sale, license, lease, gift or other transfer of a project-related product or right.

 

Clause 3. Standard of Performance.

 

A.                 Facility Operator, its subcontractors and their employees in the performance of work under this Agreement shall be responsible for using their best efforts to exercise the degree of skill and care required by customarily accepted good professional practices and procedures used in scientific and engineering research fields.

 

B.                 In the event that the UC believes the Facility Operator/subcontractor has failed or is failing to perform in accordance with the standard of performance in paragraph 3A, the California Energy Commission and the Facility Operator shall negotiate in good faith an equitable resolution satisfactory to both parties. If such resolution cannot be reached, the Parties shall work through the Alternate Dispute Resolution process described in the contract between UC & DOE.  In the event negotiation and resort to the Alternate Dispute Resolution do not provide a satisfactory resolution, Sponsor’s sole remedy in the event of the Facility Operator’s failure to perform in accordance with the standard of performance in this paragraph  is termination of the Agreement. Nothing herein shall preclude the Facility Operator from entering into agreements of other or additional remediation with the UC provided that any such agreement shall not result in costs allocable or liabilities chargeable to the Department of Energy.

 

C.                 Nothing contained in this Clause 3 is intended to limit any of the rights or remedies that the Parties may have under law, or to limit exercise of any other provision of this agreement.

 

Clause 4. Subcontractors and Subcontractor Agreements.

 

A.                 DOE oversight of Facility Operator’s agreements with subcontractors. The Facility Operator shall be responsible to the DOE for establishing and maintaining contractual agreements with and reimbursement of each of the subcontractors for work performed in accordance with the terms of this Agreement. Facility Operator shall provide UC with copies of all subcontract agreements resulting from this Agreement promptly upon final execution thereof.

 

B.                 Replacement of key subcontractors. The key subcontractors listed in Appendix A, Statement of Work cannot be replaced or substituted without prior written concurrence of UC Contract Manager. Such concurrence shall timely and not unreasonably withheld.

 

C.                 Replacement or substitution of all other subcontractors. The Facility Operator shall notify the California Energy Commission in writing of any replacement or substitution of subcontractors not listed as key subcontractors in the Statement of Work.

 

D.                 Termination of subcontracts. Upon the termination of any subcontract, the UC’s Contract Manager shall be immediately notified.

 

E.                  DOE oversight of Facility Operator’s procurement processes. The Facility Operator shall use DOE-approved and regulated procurement policies, processes, and procedures to achieve the subcontract obligations under this Agreement. The DOE shall ensure that Facility Operator’s purchasing system and methods shall be fully documented, consistently applied, and acceptable to the Department of Energy. Federally-approved policies, processes, and procedures regarding competitive selection, sole-source justification, intellectual property rights, assignment, and flow-down shall be maintained for all subcontracts under this Agreement.

 

Clause 5. Public Hearings.

 

If public hearings on the subject matter dealt with in this Agreement are held during the period of the Agreement, the DOE shall ensure that the Facility Operator makes available to testify the personnel assigned to this Agreement if requested by UC.  UC will reimburse, by advance payment, the labor and travel costs of testifying personnel assigned to this Agreement at the Facility Operator’s rates for such work.

 

Clause 6. Site Access for Project Review.

 

The Parties acknowledge that the United States Department of Energy enforces strict requirements regarding security, safety, and access to the DOE National Laboratories’ sites and facilities.  To the extent permitted by DOE and Facility Operator security, safety, and access requirements, the UC staff or its representatives shall have reasonable access to the construction site or R&D laboratory and all project records related to performance under this Agreement.

 

Clause 7. Notice to Parties and Facility Operator.

 

Notice to the Parties may be given by certified mail properly addressed, postage fully prepaid, to the address listed in the Contract, and Block 14 (DOE) in the Standard Agreement for each respective party. Notice to the Facility Operator may be given by certified mail properly addressed, postage fully prepaid to the address listed in Block 12 (M&O Contractor of the National Laboratory). Notice may be given to such other address as either Party or the Facility Operator shall provide to the other in accordance with this section. Such notice shall be effective when received, as indicated by post office records, or if deemed undeliverable by post office, such notice shall be effective nevertheless fifteen (15) days after mailing.

 

Alternatively, notice may be given by personal delivery to the at the address designated in the Standard Agreement or to such other address as either Party or the Facility Operator shall notify the other in accordance with this section. Such notice shall be deemed effective when delivered unless a legal holiday for State or Federal offices commences during the 24-hour period, in which case the effective time of the notice shall be postponed 24 hours for each such intervening day.

 

Clause 8. Business Activity Reporting.

 

A.                 The DOE shall give UC prior written notice of any change of address or name change.

 

B.                 Facility Operator shall not change or reorganize the type of business entity under which it does business except upon prior written notification to the UC, except that the Department of Energy can change the successor to the Facility Operator to continue the operation of the DOE facility without prior written notification to UC. In the event the UC is not satisfied that the new entity can perform as the original Facility Operator, the California Energy Commission may terminate this Agreement as provided in the Termination paragraph.

 

C.                 Facility Operator shall promptly notify UC of the occurrence of each of the following:

 

1)                  The existence of any litigation or other legal proceeding affecting the Project;

 

2)                  The occurrence of any casualty or other loss to project personnel, equipment, in excess of $5,000.00, or third parties of a type commonly covered by insurance; and

 

3)                  Facility Operator’s receipt of notice of any claim or potential claim against Facility Operator for patent, copyright, trademark, service mark and/or trade secret infringement that could affect the UC’s rights.

 

Clause 9. Travel and Per Diem.

 

A.                 Travel identified in Appendix A. Statement of Work does not require prior authorization.

 

B.                 Travel that is not included in Facility Operator’s Statement of Work shall require prior written authorization from UC’s Contract Manager.

C.                 Origination and destination points for calculating travel expenses shall be the Facility Operator’s office location where the employees performing the Agreement are permanently assigned.  The Facility Operator shall be reimbursed for travel and per diem on the same basis as the Facility Operator’s DOE-approved rates in effect during this Agreement.

 

D.                 The Facility Operator will document travel expenses as follows:

 

1.                  Expenses must be detailed using the Facility Operator’s DOE-approved rates.

 

2.                  Expenses must be documented by trip including dates and times of departure and return. Employee’s travel expense report may be used instead.

 

3.                  The Facility Operator will retain travel expense documentation and receipts for audit and verification to the extent audits are permitted by DOE policy.

 

Clause 10. Accounting, Cost Allowability, and Audit Provisions

 

A.                 Accounting Procedures. The Facility Operator’s costs shall be determined on the basis of the Facility Operator’s accounting system procedures and practices employed as of the effective date of this Agreement, and as may be revised from time to time, provided that generally accepted accounting principles and cost reimbursement practices are used. The Facility Operator’s cost accounting practices used in accumulating and reporting costs during the performance of this Agreement shall be consistent with the practices used in estimating costs for any proposal to which this Agreement relates; provided that such practices are consistent with the other terms of this Agreement and provided, further, that such costs may be accumulated and reported in greater detail during performance of this Agreement. The Facility Operator’s accounting system shall distinguish between direct costs and indirect costs. All costs incurred for the same purpose, in like circumstances, are either direct costs only or indirect costs only with respect to costs incurred under this Agreement.

 

B.                 Allowability and Unallowability of Costs.  The costs that shall be reimbursed by Sponsor include all costs, direct and indirect, incurred in the performance of work under this Agreement.  Allowability or unallowability of costs shall be determined in accordance with the Allowability Costs provision of the Department of Energy Acquisition Regulation (DEAR) incorporated in the Facility Operator’s M&O Contract with the DOE Appendix F of this Agreement incorporates the current DEAR Allowable Cost provision of the Facility Operator’s M&O Contract in effect as of the effective date of this Agreement and shall be determinative of the costs allowed under this Agreement.

 

C.                 Audit.  Upon the request of UC; the California Energy Commission;  or the  California Bureau of State Audits; and at the expense  of the requesting party;  the DOE or its designee, shall audit the Facility Operator’s records related to this Agreement.  The Facility Operator shall furnish detailed itemization of, and retain all records relating to, direct expenses reimbursed to Facility Operator, and to hours of employment on this Agreement by an employee of Facility Operator for which UC is billed.  Such records shall be maintained for a period of three years after final payment under this Agreement, or until audited by the DOE or its designee pursuant to the request for audit specified above, whichever occurs first.  Once notified of a request for audit, the Facility Operator shall maintain such records until the audit is completed.  Said audit shall be conducted in accordance with Government Auditing Standards, and shall be performed in a time frame and shall contain a scope of work mutually agreed to by the Department of Energy and the auditor.  The auditor shall be provided a copy of the audit report and, upon request, shall have access to review the audit work papers.


Clause 11. Survival.

 

It is understood and agreed that certain Agreements provisions shall survive the completion or termination date of this Agreement for any reason. The Agreements provisions include, but are not limited to:

 

·      “Advance Funding, Invoicing and Payment”

·      “Property”

·      “Termination”

·      “Alternate Dispute Resolution”

·      “Indemnifications”

·      “Patent Rights”

·      “Rights in Technical Data”

·      “Payments to Sponsor”

·      “Site Access for Project Review”

·      “Business Activity Reporting

·      Accounting, Cost Allowability and Audit Provisions”

 

Clause 12. Stop Work.

 

UC Contracts Officer may, at any time, by five-days written notice to the DOE, require the Facility Operator to stop all or any part of the Agreement’s work tasks.

 

A.                 Compliance. Upon receipt of such stop work order, the DOE shall ensure that the Facility Operator immediately take all necessary steps to comply and to minimize the incurrence of costs allocable to work stopped.

 

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

 

C.                 Revoking a Stop Work Order.  The DOE shall order the Facility Operator to resume the stopped work only upon receipt of written instructions from the UC’s Contract Officer canceling the Stop Work order.



[1] The Provisions of this Exhibit H-4 are taken directly from Appendix E (California Energy Commission – Definitions and Additional Agreement Terms) from the Fund-In Agreement for Research and Development.  Only minor, clarifying changes were made for the purposes of the DOE Agreement between UC and the California Energy Commission.