University of California
Office of the President
Business and Finance
Costing Policy & Analysis
Research Administration Offic
September 25, 1998
CONTRACT AND GRANT OFFICERS*
Subject: CANCELLED California Energy Commission Contract Terms for PIER Awards
Attached is a copy of the California Energy Commission Contract Terms accepted by RAO for the California Institute of Energy Efficiency. Also attached is a copy of my email commentary about how these terms may be applied to UC Campuses by the CEC, or in subagreements to UC Campuses by the CIEE.
If you choose advance payments and are required to submit a quarterly reconciliation report, let me know and I will make a copy of the forms developed for use by the CIEE for this purpose.
If there are any questions, refer them directly to me.
Refer: David Mear
David F. Mears
Director, Research Administration
Exhibit D. Para. 4. C. 3) requires UC to assume all risk for maintenance,
repair, damage or destruction to CEC titled equipment. CEC was adamant.
Normally we do not agree to "insure" against all risk of loss or damage.
This is a potential unfunded liability. However, when we looked at most of
the budgets for CIEE projects, there was no budget for equipment. We
suggest that equipment not be bought with CEC funds.
5. Delivery of all data produced under the contract.
Exhibit D. Para. 6 Subpara. B. 2) requires UC to deliver a copy of all
data generated under the contract. This is patently ridiculous. We were
able to get CEC to agree that it is not practical or useful to deliver all
data. So this has to be worked out case by case after award with the CEC
6. Notice by UC to contract participants.
Exhibit D. Para. 6. F. 5) requires UC to notice contract participants of
the restrictions about disclosure of contract data, information, reports
and records. This is an express requirement.
7. IP Reductions to Practice 42 Months after the contract is over.
Exhibit D, Para. 6. Subpara. J. 4) is clearly beyond the norm. The norm is
reporting of IP conceived and reduced to practice during the contract term.
The CEC is requiring that IP be reported if it is reduced to practice up to
42 months after the contract terminates. You should alert your PIs that
this is the case.
A similar requirement applies to software. See subpara. M. which requires
giving CEC a license for software derivatives and upgrades that may be
developed within 42 months following the termination of the contract.
8. Travel documentation and Per Diem Rates.
Exhibit D. Para.13. Subpara. C. authorizes the use of per diem rates as
approved by the UC Regents. This is in lieu of having to comply with State
per diem rates.
Note that Subpara. D. requires documentation of travel in UC financial
records, but does not require submissioin of documentation of each travel
claim or detail about each trip. This was a major battle to accomplish
these outcomes. Beware of CEC backsliding on these two areas. If there is
an issue, let me know.
9. CEC Audit Rights.
Exhibit D. Para. 14 Subpara. G. permits CEC to conduct audits. If CEC does
a standard audit, CEC pays for it. If there is a finding, and CEC does a
special ausit, UC pays. This is a clear deviation form normal practice. But
the CEC was adamant. This audit requirement is the CEC response to "giving"
on requiring source documentation for all equipment purchases and travel
costs. You need to be aware this is a potential unfunded liability which
may require a campus fund source other than the CEC contract.
10. Payments to Commission.
Exhibit D. Para. 17 requires payments to CEC in the event UC or its
subcontractors obtain royalty income from IP or revenue from sales of
products which were derived from IP paid for by CEC under the prime
contract. This is a clear aberation from normal public contracting. OTT
staff were directly involved in negotiating these terms.
Royalty payments are based on net royalties. So it is anticipated that
this may occur infrequently.
If a campus enters into a "subagreement" under the CIEE Prime contract,
all repayments, if any, will be forwarded to Joe Acanfora OTT Campus Liason
for submission to CEC. If a campus received a contract directly from CEC
and the campus has its own IP program, the campus will submit the repayment
directly to CEC. If it does not have its own program, OTT will have to
submit the repayment to CEC on behalf of the campus.
No doubt there will be many more questions. Since I lead the negotiation
with the CEC on the CIEE contract, you may direct questions directly to me.
We all understand as colleagues that we do the best we can, but there are
limits which we cannot overcome.
I hope this commentary is helpful.
Contract Number 500-97-013
Taxpayer ID 94-3067788
Program Category Code and Title B/A IT. 3360-001-0381 (C) 30-Development Fund Title PIERDD
This agreement, made and entered into this 23rd day of March 1998, State of California, by and between State of California, through its duly elected or appointed, qualified and acting Executive Director, State Energy Resources Conservation and Development Commission (Commission), hereafter called the State, and The Regents of the University of California, The Office of the President ("UC"), hereafter called the Contractor.
Wittnesseth: That the Contractor for and in consideration of the covenants, conditions, agreements, and stipulations of the State hereinafter expressed does hereby agree to furnish to the State services and materials as follows: (Set forth service to be rendered by Contractor, amount to be paid Contractor time for performance or completion, and attach plans and specifications, if any.)
1. CONTRACT TERM
The term of this contract shall be from May 13, 1998 to September 30, 1999. This contract is of no force or effect until signed by both parties, and approved by the Department of General Services. Time is of the essence in this contract.
2. CONTRACT PURPOSE
The purpose of this contract is to fund projects under the Public Interest Energy Research (PIER) Program. The contract will provide transition funding to preserve the benefits of promising public interest Research Development & Demonstration (RD&D) projects to ensure continuance of such projects during the transition to a competitive electric services market. Specific tasks to carry out these projects are detailed in the attached Exhibits A-1 through A-9, "Work Statement".
3. BINDING CONTRACT DOCUMENTS
A. This contract shall be conducted in accordance with the terms and conditions of California Energy Resources Conservation and Development Commission (hereafter "Commission") Request for Proposal number 500-97-501, UC's proposal, dated October 17, 1997, this contract, and the attached exhibits listed below. UC's proposal is not attached hereto, but is expressly incorporated by reference into this contract. In the event of conflict or inconsistency between the terms of this contract and UC's proposal, this contract and its exhibits shall be considered controlling.
B. The following contract Exhibits are attached and hereby expressly incorporated herein.
Exhibit A-1 to A-9: Work Statement
Exhibit B-1 to B-9: Task Deliverables, Schedule & Budget
Exhibit C-1 to C-9: Project Budget
Exhibit D: Definitions and Additional Contract Terms
Exhibit E: Final Report Outline & Format
Exhibit F: Sample Form - Uniform Commercial Code Financing Statement
C. It is understood and agreed, by both parties to this contract, that all of the terms and conditions of this contract shall remain in force with the inclusion of each revised project plan prepared in accordance with each project Work Statement, Task 1.0, and added as a schedule to each respective contract project. Such revised project plans shall in no way constitute a contract other than as provided, pursuant to this contract, nor in any way amend any of the other provisions of this contract.
D. In the interpretation of this contract, any inconsistencies between the terms hereof and the exhibits shall be resolved in favor of the terms hereof.
E. No alteration or variation of the terms of this contract shall be valid unless made in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto. Other than as specified herein, no document or communication passing between the parties hereto shall be deemed as part of this contract.
F. It is hereby understood and agreed that this contract shall be governed by the laws of the State of California as to interpretation and performance.
The clause headings appearing in this contract have been inserted for the purpose of convenience and ready reference. They do not purport, and shall not be deemed, to define, limit, or extend the scope or intent of the clauses to which they appertain.
5. CONTRACT MANAGEMENT
A. UC Contract Manager
Jim Cole is designated the UC's Contract Manager and the Project Manager of Project #1: CIEE Collaboration Program Planning Management and Technology Transfer. The Commission reserves the right to approve any substitution of the UC's Contract Manager.
B. Commission Contract Manager
Michael Batham is designated Commission Contract Manager and the Project Manager of Project #1: CIEE Collaboration Program Planning Management and Technology Transfer. Commission may change the Commission contract Manager by notice given UC at any time signed by the Commission Contract Officer.
C. The Commission Contract Manager and the UC Contract Manager have oversight responsibilities for all of the projects funded in this contract, as described in Project #1, Exhibits A, B & C. Commission Project Managers will report the status of projects to the Commission Contract Manager. The Commission Contract Manager will review and approve the Final Report and arrange for the final meeting required for closing out the contract.
6. PROJECT MANAGEMENT
A. UC Project Manager
The UC's Project Manager for each project, listed below by project, is responsible for the day to day project status, decisions and communications with the appropriate Commission Project Manager. UC's Project Manager may not be replaced without Commission Project Manager's prior written approval. Such approval shall not be unreasonably withheld.
B. Commission Project Manager
The Commission's Project Manager for each project, listed below by project, is responsible for the day to day project status, decisions and communications with the appropriate UC Project Manager. Commission Project Managers will review and approve all project deliverables, reports and invoices, and report project status to the Commission Contract Manager.
C. Principal Investigators, Key Personnel and Key Subcontractors
UC's principal investigators, key personnel and Key Subcontractors, listed below by project, may not be substituted without Commission Project Manager's prior written approval. Such approval shall not be unreasonably withheld.
D. The following is a list of Commission Project Managers and UC Project Managers, Principal Investigators, Key Personnel and Key Subcontractors. Replacement of UC Project Managers, Principal Investigators, and Key Personnel are subject to the conditions of the above paragraphs. Replacement of Key Subcontractors are subject to the conditions of Exhibit D, paragraph 3.A.1).
Project Number Commission Project Manager UC Project Manager
1 Mike Batham Jim Cole
2 Mazi Shirakh Karl Brown
3 Mazi Shirakh Karl Brown
4 Mazi Shirakh Karl Brown
5 Mazi Shirakh Carl Blumstein
6 Mazi Shirakh Carl Blumstein
7 Wendell Bakken Karl Brown
8 Matt Layton Jim Cole
9 John Sugar Carl Blumstein
CIEE Key Personnel
1. Jim Cole, Carl Blumstein, Karl Brown
2. Max Sherman (LBNL), Mark Modera (LBNL)
3. Richard Bourne (DEG), George Loisos (Architect, Independent),
Susan Ubbelohde (UCB)
4. Mark Modera (LBNL)
5. Mary Ann Piette (LBNL)
6. Kostas Papamichael (LBNL)
7. Dale Sartor (LBNL), Ashok Gadgil (LBNL), John Busch (LBNL)
8. G. Scott Samuelsen (UCI)
9. Steve Johnson (LBNL) Michael Siminovitch (LBNL)
CIEE Key Subcontractors
3. Joe Huang (LBNL), Bruce Hackett (UCD), Edward Arens (USB)
4. Edward Arens (USB)
5. Anthony Sebald (UCSD), Englock Lee (Supersymmetry), Chris Shockman (Stanford)
6. J.P. Protzen (UCB)
7. Edward) Arnes (USB), Robert Tsal (Netsal)
7. PROJECT BUDGETS
A. The Commission will reimburse project costs effective from the Energy Commission Business Meeting date of approval, provided that UC signs the contract within 30 days of the Energy Commission Business Meeting. UC may submit an invoice for these costs upon Department of General Services approval of this contract. However, the Commission is under no obligation to reimburse any of these costs if the contract or project is, for any reason, not approved. In this event, these costs would be the responsibility of the UC.
B. The UC Project Manager shall provide reasonable advance notification to the Commission Project Manager of any anticipated reallocation of a project budget category. UC has the authority to reallocate a project budget category of up to 15 percent (15%), but deviations of more than fifteen percent (15 %) of a project budget category require written approval of the Commission Project Manager, Program Manager and/or Office Manager. The Commission Project Manager shall send approved changes in a project budget to the Commission Contracts Officer and Contract Manager.
Significant changes in the scope of work must be approved by the Commission in the form of a formal contract amendment.
Subject to the conditions listed below, the Commission agrees to pay UC an amount equal to the latter's cost of performance hereunder computed in accordance with State Administrative Manual, Sections 8752 and 8752.1, and in accordance with the project budgets Exhibit C-1 through C-9. Nothing herein contained shall preclude advance payment pursuant to Article 1, Chapter 3, Part 1, Division 3, Title 2, Government Code. Total amount of this contract shall not exceed $3,250,000.00 (Three million two hundred and fifty thousand dollars).
A. Commission agrees to advance pay, on a quarterly basis by project, the amount of funds reasonably necessary to perform the work of that quarter.
B. UC shall submit an invoice requesting advance payment, each invoice is subject to Commission approval, and payment by the State Controller's Office. The Commission will accept computer-generated invoices or the equivalent without backup documentation.
C. Quarterly reconciliations of advance payments shall consist of, but are not limited to:
1) A table showing totals for the following budget categories for each project:
a) UC's federal ID number, the Commission contract number
b) salaries & wages for all personnel
c) expenditures for each non-UC subcontract
f) miscellaneous office expenses
h) approved project budget amount, expenditures for quarter, cumulative expenditures to date and percent of budget spent to date
2) A summary total of expenditures for all projects reported in C.1. above.
3) A key personnel effort report listing salary rate, percent time/hours charged for the past quarter and fringe benefits for each person listed in "6. Project Management" as either a CIEE key personnel or CIEE key subcontractor.
4) Evidence of progress, deliverables and written progress reports prepared by the UC and as detailed in Exhibit A-1 to A-9 and Exhibit B-1 to B-9.
5) In the event that the funds advanced by the Commission for the previous quarter exceed the actual expenditures during that quarter, UC will reduce its request for advance payment for the ensuing quarter by the excess amount.
D. Each Commission Project Manager will approve quarterly advance payments provided that the Commission Project Manager has received and approved the written quarterly progress reports, any other deliverables required in the project, and the quarterly reconciliation of advance payments. If such information has not been provided to the Commission Project Manager, a written dispute notice specifying the reasons for dispute will be sent to the UC Project Manager and UC Contract Manager by the Commission Project Manager. Such notice shall be made within 15 days of receipt of the disputed invoice for advance on a State of California Standard Form 209. If the invoice for advance is not disputed within 15 days, the invoice is presumed to be valid, but is subject to audit and verification. (Government Code Section 926.15)
E. The UC shall submit all invoices for advance payments and Quarterly Reconciliations of Advances to:
Contracts Payable, MS-2
California Energy Commission
1516 9th Street, 1st Floor
Sacramento, California, 95814
F. The Commission shall retain from each quarterly advance an amount equal to 10% of that invoice. The retained amount shall be held by the Commission and released to UC only upon the Commission's approval that the entire contract work has been satisfactorily completed and the Final Report has been received and accepted.
G. As a public agency, payment is due 45 days from the date a correct advance invoice is received by the Commission Accounting Office. The State shall make payment to the UC as promptly as fiscal procedures permit.
H. UC is entitled to interest penalties on an undisputed advance invoice not paid within the required payment date. The interest is calculated on the outstanding invoice per day.
· Interest shall begin accruing on the 46th day until payment of the undisputed outstanding invoice is made.
· UC may submit an invoice for the interest penalties to the Energy Commission, Accounting Office, MS-2, (Government Code Section 926.15).
I. Availability of these contract funds may expire on June 30, 2000. Funding after this date is contingent upon an extension of the availability periods. The Commission may request the availability periods to be extended through the State legislative budget process; however, the Commission cannot warranty or guarantee that such extensions will be approved. The Commission has the option to terminate the contract or to amend the contract to reflect any reduction of funds.
J. Upon completion of this contract, UC will reconcile total project costs to total project payments received in advance and any remaining project advance will be refunded to the Commission Accounting Office. In the event the contract is terminated, total project costs incurred prior to the effective date of termination will be reconciled to total project payments received in advance and any remaining advance will be refunded to the Commission. In either event, UC shall return any balance due to the Energy Commission within ninety (90) days of written notice from the Commission.
9. SPECIAL CONFIDENTIAL PROVISIONS
A. Listing of Potential Intellectual Property Items Developed Prior to This Contract
The Commission makes no claim to intellectual property that pre-exist this contract and was developed without Commission funding. UC gives notice that the following items have been developed without Commission funding and prior to the start of this contract. This list represents a mere description of the topics of the prior developed intellectual property. The topics are listed by UC project description. A detailed description of the intellectual property, as it exist on the effective date of this contract, may be necessary if Commission funds are used to further develop the listed intellectual property. This is done so the parties can make an informed decision regarding intellectual property rights and possible repayment obligations.
1. UC Project Title - Residential Thermal Distribution Systems
a) Aerosol Technologies (Modera/LBNL, existing/pending patents)
b) Aerosol and Related Technologies (Modera/Aeroseal, Modera/LBNL,
c) System Sizing and Duct Design/Analysis Software (Sherman/LBNL, potential
d) Duct Technologies Developed under Parallel DOE Funded STTR Program
(Sherman/LBNL, Various DOE Contractors, potential patents)
2. UC Project Title - Alternatives to Compressor Cooling
a) Compressorless and Compressor Down-sized House(s) for California
Transition Climates (Loisos, potential copyrights and AIA contracts)
b) Night Ventilation Control/User Interface Technology (Freitag/Arens/UC
Berkeley, Springer/Bourne/Davis Energy Group, potential patents)
c) Alternative/Low-Energy Cooling Systems Control/User Interface
Technologies (Bourne/Springer/Davis Energy Group, potential patents)
d) IDAC and Other Evaporative Cooling Control Technology
(Bourne/Springer/Davis Energy Group, potential patents)
e) Design Software for Compressorless and Compressor Down-sized Houses
(Huang/LBNL, potential copyrights)
f) Summer Comfort Award and Application Materials (Mayer, Loisos,
Ubbelohde/UC Berkeley, potential copyrights)
3. UC Project Title - Commerical Thermal Distribution Systems
a) Aerosol Technologies (Modera/LBNL, existing/pending patents)
b) Aerosol/Solid Particle Coating Technologies Including Temporary
Blocking/Sealing Hardware and Related Technologies (Modera/LBNL, potential
c) System Sizing and Duct Design/Analysis Software (Modera/LBNL, potential
d) Tracer Gas Measurement Techniques and Other Air Flow Measurement
Innovations (Huizenga/Bauman/Arens/UC Berkeley, Fisk/LBNL, potential patents)
4. UC Project Title - Diagnostics for Comissioning and Operations
a) Data Visualization Software (Lee/Supersymmetry, potential copyrights)
b) Building Information, Monitoring, and Diagnostic System (IMDS)
Innovations Including User Interface, Automated Diagnostics, Software
Technology (Piette/LBNL, Tatum/Shockman/Stanford, Sebald/UCSD,
Lee/Supersymmetry, potential patents or copyrights)
5. UC Project Title - Building Design Advisor
a) Building Design Advisor Software Including Links to and Linked Versions
of Analysis and other Applications Software (Papamichael/LBNL,
existing/pending renewal copyrights)
b) Schematic Graphic Editor Software (Papamichael/LBNL, existing/pending
c) User Interface Software (Protzen/UC Berkeley, potential copyrights)
d) Web-based Case Studies Database (Papamichael/LBNL, potential copyrights)
e) Computer-Aided Design (CAD)-Based Schematic Graphic Editor and
Cost-Estimating Software, and their links to Building Design Advisor
(Teicholtz/Stanford, potential copyrights)
f) Additional Interoperative/Interactive Design and Building Lifecycle
Software (Papamichael/LBNL, potential copyrights)
6. UC Project Title - Laboratory - Type Facilities
a) Energy-Efficient Low-Flow Fume Hood (Feustel/LBNL, potential patents)
b) Design Intent Documentation Software (Hitchcock/Sartor/LBNL, potential
c) Design Guide(s) for Research, Manufacturing, and Other Scale
Laboratory-Type Facilities Including Airflow Systems(Bell, et al./LBNL,
Tsal/Netsal, potential copyrights)
d) Other Laboratory Technology Innovations (Sartor/LBNL, potential patents)
e) Laboratory-type Facility Measurement Innovations (Arens/Huizenga/UC
Berkeley, potential patents)
7. UC Project Title - Formation of Nitrogen Oxides in Industrial Gas Burners and Stationary Gas Turbines
a) Discrete fuel jet injection for enhanced performance and stability
b) Active control of fuel injection to attain and maintain optimal performance
c) Descrete acoustic emission for control of NO emissions
8. UC Project Title - Development and Demonstration of High - Efficiency Lighting Torchieres
a) Unique Reflector Geometries/Optics Applicable to Torchieres for the
Distribution of Light from Metal Halide and Compact Fluorescent Light
Sources (Siminovich/LBNL, potential patents)
b) Metal Halide Light Source Innovations (Siminovich/Johnson/LBNL,
B. Public and Confidential Deliverables
The UC has not identified any confidential or proprietary items to be delivered under this contract.
All deliverables including, but not limited to, progress reports, task deliverables and the Final Report shall not contain confidential information except when the Commission Project Manager or the UC Project Manager deems it necessary to include confidential information in a deliverable. In such event, the deliverable shall be prepared and submitted in two separate volumes, one for public distribution and one to be maintained in the Commission's confidential records. Only those items specifically listed in paragraph 9.A. or in a subsequent determination of confidentiality by the Commission Executive Director shall qualify as confidential deliverables.
C. Identifying Confidential Information
All confidential deliverables submitted by the UC shall be marked "Confidential" on each document containing the confidential information and presented in a sealed package to the Commission Project Manager.
D. Future Confidential Information
The UC and the Commission agree that during this contract, it is possible that the UC may develop additional data or information that the UC considers to be protectable as confidential information. In such event, the Commission Project Manager shall provide a copy of the Commission Application for Confidentiality form to the UC Project Manager. UC must list all items and information along with justification for confidentiality and submit the Application to the Commission Project Manager. The Commission Executive Director makes the final determination of confidentiality. Such subsequent determinations will be added to the applicable project work statement.
10. SPECIAL CONDITIONS
A revised project plan, details in Task 1.0 of each project work statement, shall be received, reviewed and approved in writing by the Commission Project Manager before funds for a project is advanced.
11. REVIEW AND NOTICE OF CONFLICTING TERMS
UC warrants and attests that it has conducted a detailed review of the terms and conditions of its existing project related third party agreements and has identified all known or reasonably foreseeable conflicts with this contract's terms and conditions and has disclosed the conflicts in writing to the Commission prior to executing this contract. In the event further conflicts are identified, UC and Commission agree that these conflicts shall be addressed using the procedure described in the "Disputes" clause found at Exhibit D, paragraph 10. Nothing in this contract is intended to nullify or obviate any prior third party agreements executed by UC.