RES-2010-201 RESOLUTION NO. 2010 - 201
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ANAHEIM AUTHORIZING THE PUBLIC UTILITIES
GENERAL MANAGER OR HER DESIGNEE TO ACCEPT
SUCH FUNDS AS AWARDED, ON BEHALF OF THE CITY
OF ANAHEIM, FROM THE CALIFORNIA ENERGY
COMMISSION FOR THE COST SHARE MATCHING GRANT
FUNDING UNDER THE PUBLIC INTEREST ENERGY
RESEARCH PROGRAM, TO TAKE SUCH ACTIONS IN
FURTHERANCE OF THE GRANT, AND AMENDING THE
BUDGET FOR FISCAL YEAR 2010/2011.
WHEREAS, funds are available through the California Energy Commission's
( "CEC ") Public Interest Energy Research ( "PIER ") Program for current and future research -
related American Recovery and Reinvestment Act of 2009 ( "ARRA ") Cost Share funding
opportunities; and
WHEREAS, the City of Anaheim Public Utilities Department ( "Department ")
submitted a Smart Grid Investment Grant ( "SGIG ") proposal to the Department of Energy for
matching funds in the sum of $5,896,025, and the City of Anaheim was awarded a Smart Grid
Investment Grant in the topic area of "Integrated and /or Crosscutting Systems" which allows for
the expansion and acceleration of the installation of the Department's smart grid applications and
technologies ( "SGIG Project "); and
WHEREAS, the City of Anaheim is committed to realizing potential benefits
from projects in the energy research and development fields that are eligible for ARRA funds
and PIER Cost Share matching funds and submitted an application in response to PON -08 -011 to
the CEC for the Anaheim Smart Grid Enhancement Project ( "Grant ") to participate in PIER Cost
Sharing opportunities, which will provide cost sharing for the City of Anaheim's SGIG Project;
and
WHEREAS, the City of Anaheim, a municipal corporation and charter city
( "City "), is familiar with the terms, conditions, and limitations of any such Grant; and
WHEREAS, the City is willing and able to conform to each of the terms,
conditions, and limitations imposed upon any such Grant to the City; and
WHEREAS, the City remains supportive of the ongoing efforts to apply for and
accept such allocation of funds through the PIER Program as may be awarded to the City.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City
of Anaheim as follows:
1. The Public Utilities General Manager, or her designee, is and was
authorized to submit an application for and on behalf of the City of Anaheim, a
public entity established under the laws of the State of California, for the
Anaheim Smart Grid Enhancement Project.
2. The Public Utilities General Manager, or her designee, is hereby
authorized and directed to execute any agreements, certificates and /or assurances,
reports, plans, payment requests, or other documents, including but not limited to
a Grant Agreement, as may be necessary for the purpose of obtaining assistance
provided by the Grantor, including any extensions and amendments thereof,
which may be necessary for the completion of the Anaheim Smart Grid
Enhancement Project.
3. The City Council of the City of Anaheim hereby agrees to, and by this
Resolution, does accept any such Grant so awarded to the City of Anaheim
without further action of the City Council of the City of Anaheim being required
therefore.
4. The City Council of the City of Anaheim hereby agrees to, and by this
Resolution, attests that the City has the capability to provide the amount of
funding and /or in -kind contributions specified in the Grant funding plan.
5. The City of Anaheim hereby agrees to comply with each and all of the
terms, conditions, and limitations imposed by the Grantor upon said Grant.
6. The annual budget of the City of Anaheim for Fiscal Year 2010/11 is
hereby amended by increasing the appropriations and authorized expenditures in
such amount equal to the amount of Grant to be received by the City of Anaheim.
THE FOREGOING RESOLUTION is approved and adopted by the City Council
of the City of Anaheim this 1 6th day of November , 2010, by the following roll call vote:
AYES: Mayor Pringle, Council Members Sidhu, Hernandez, Galloway, Kring
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
CITY ANAHE
MAYOR OF THE CITY ANAHEIM
ATTEST:
CITY CLERK OF THE CITY OF NAHEIM
80046.3
TERMS AND CONDITIONS
PUBLIC INTEREST ENERGY RESEARCH GRANTS
AWARD # PIR- 09 -0xx
•
TERMS AND CONDITIONS
TABLE OF CONTENTS
SECTION PAGE NO.
1. Grant Agreement 1
2. Attachments and References 1
3. Funding Limitations 2
4. Due Diligence 2
5. Products 3
6. Reports 4
7. Legal Statement on Reports and Products 5
8. Amendments 5
9. Contracting and Procurement Procedures 8
10. Key Personnel, Key Subcontractors, and Prevailing Wage 9
11. Permits and Clearances 11
12. Equipment 11
13. Termination 11
14. Travel and Per Diem 13
15. Standard of Performance 13
16. Payment of Funds 14
17. Recordkeeping, Cost Accounting, and Auditing 20
18. Indemnification 22
19. Disputes 22
20. Workers' Compensation Insurance 24
21. Confidentiality 24
i
22. Intellectual Property Items Developed Prior to This Agreement 25
23. Rights of Parties Regarding Intellectual Property 26
24. General Provisions 27
25. Certifications and Compliance 29
26. Definitions .31
ii
•
TERMS AND CONDITIONS
1. Grant Agreement
This project is being funded with a grant from the California Energy Commission (Energy
Commission). Funding for this project was authorized by Assembly Bill No. 995, Chapter
1051, Statutes of 2000, and consists of funds from the Public Interest Research,
Development, and Demonstration Fund.
Program refers to the entire effort undertaken and planned by the Recipient including the
work co- funded by the Commission. The program may coincide with or extend beyond the
Agreement period. Project refers to the work elements of the program. Typically, there are
distinct projects within the program being paid for by the Commission under this
Agreement.
This Agreement is comprised of the grant funding award, the Terms and Conditions, and all
attachments. These Terms and Conditions are standard requirements for Public Interest
Energy Research (PIER) grant awards. The Commission may impose special conditions in
this grant Agreement which address the unique circumstances of this project. Special
conditions that conflict with these standard provisions take precedence. Any special
conditions are attached to this Agreement.
The Recipient shall sign all three copies of this Agreement and return two signed packages
to the Commission's Grants and Loans Office within 30 days. Failure to meet this
requirement may result in the forfeiture of this award. When all required signatures are
obtained, an executed copy will be returned to the Recipient.
All work and/or the expenditure of funds (Commission- reimbursed and/or match share)
must occur within the approved term of this Agreement. The Commission cannot authorize
any payments until all parties sign this Agreement. The start term of this Agreement is
either the specified start term or the date the Energy Commission signs the Agreement,
whichever is later. The Energy Commission will only sign the Agreement after the
Recipient signs it and it has been approved at an Energy Commission Business Meeting.
2. Attachments and References
The following are attached and hereby expressly incorporated into this Agreement.
• Work Statement
• Budget
• Content and Format of Progress Reports
• Confidentiality Exhibit (if applicable)
• Intellectual Property Exhibit (if applicable)
• Special Conditions (if applicable)
The Office of Management and Budget (OMB) Circulars and/or federal regulations
identified below are incorporated by reference as part of this Agreement. These Terms and
T &Cs for PON -08 -011 and PON 09 -002 1
Conditions and any Special Conditions take precedence over the circulars and/or
regulations. The OMB Circulars and federal regulations are used to help guide the
administration of the award when questions arise during the course of performance of the
award. OMB Circulars may be accessed on the OMB web site at
www.whitehouse.gov /omb /circulars /index.html and federal regulations may be accessed at
www.arnet.gov /far /, or by calling the Office of Administration, Publications Office, at
(202) 395- 7332.Common Rule for Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments.
• 01■4B Circular A -110: Uniform Administrative Requirements for Grants and
Agreements with Institutions of Higher Education, Hospitals,
and Other Non - Profit Organizations (also applicable to
private entities)
• 10 CFR Part 600: DOE Financial Assistance Regulations
(www.pr.doe.gov /f600toc.html)
• OMB Circular A -87: Cost Principles for State, Local and Tribal Governments
• OMB Circular A -21: Cost Principles Applicable to Grants, Contracts, and Other
Agreements with Institutions of Higher Education (public
and private colleges and universities)
• OMB Circular A -122: Cost Principles Applicable to Grants, Contracts, and Other
Agreements with Non - Profit Organizations (non - profit
organizations and individuals, except for those specifically
exempted)
• OMB Circular A -133: Audits of States, Local Governments, and Non - Profit
Organizations
• Title 48 CFR, Ch. 1, Subpart 31.2: Contracts with Commercial Organizations
(Supplemented by 48 CFR, Ch. 9, Subpart 931.2 for Department of Energy grants)
(commercial firms and certain non - profit organizations)
(www. access. gpo. gov /nara/cfr /cfr- table - search.html)
3. Funding Limitations
Any federal, state, and local laws and regulations applicable to your project not expressly
listed in this Agreement are incorporated herein as part of this Agreement.
4. Due Diligence
The Recipient is required to take timely actions which, taken collectively, move this project
to completion. The Commission Project Manager will periodically evaluate the schedule for
completion of Work Statement tasks. If the Commission Project Manager determines (1)
the Recipient is not being diligent in completing the tasks in the Work Statement or (2) the
T &Cs for PON-08-011 and PON 09 -002 2
time remaining in the funding award is insufficient to complete all project work tasks by the
Agreement term end date, the Project Manager may recommend to the Policy Committee of
the Commission (Committee) that this Agreement be terminated, and the Committee may,
without prejudice to any of its remedies, terminate this Agreement.
5. Products
Products are defined as any tangible item specified in the Work Statement. Unless
otherwise directed, draft copies of all products identified in the Work Statement shall be
submitted to the Commission's Accounting Office at the address below. The Accounting
Office will forward products to the Commission Project Manager for review and
comment. The Recipient will submit an original and two copies of the final version of all
products to the Accounting Office. If the Commission Project Manager determines a
product is substandard, given the description and intended use of the product as described
in the Work Statement and the grant application, the Commission Project Manager may
refuse to authorize payment for the product and any subsequent products that rely upon or
are based upon that product under this Agreement.
California Energy Commission
Accounting Office
1516 Ninth Street, MS -2
Sacramento, CA 95814
a. Product Guidelines
The Recipient shall submit all products listed in the Work Statement to the
Commission Project Manager for review and comment in accordance with the
approved Schedule of Products and Due Dates.
If a draft product is required, the Commission Project Manager will provide
written comments back to the Recipient on the draft product within ten (10)
working days of receipt. Once agreement has been reached on the draft, the
Recipient shall submit the final product to the Commission Project Manager. The
Commission Project Manager shall provide written approval of the final product
within five (5) working days of receipt. The Recipient shall include key elements
from the products in the Final Report for this Agreement.
Alternative review timeframes may be specified in the Work Statement. Review
timeframes specified in the Work Statement will take precedence over the
timeframes stated herein.
Unless otherwise stated in the Work Scope (Attachment D), all product and report
formats will follow the guidelines specified by the U. S. Department of Energy
(DOE) as a condition of its American Recovery and Reinvestment Act (ARRA)
funded grant.
b. Electronic File Format
T &Cs for PON -08 -011 and PON 09-002 3
The Recipient shall deliver documents to the Commission Project Manager in the
following formats:
• Data sets shall be in Microsoft (MS) Access or MS Excel file format.
• PC -based text documents shall be in MS Word file format.
• Documents intended for public distribution shall be in Portable Document
Format (PDF) file format, with the native file format provided as well.
• Project management documents shall be in MS Project file format.
Submit any requests for exemption to the electronic file in writing at least ninety
(90) days before the product is due. The Commission Project Manager must
approve or deny the request in writing.
6. Reports
a. Submission of Reports
All reports will be submitted to the Accounting Office at the address listed in
Section 5 above.
b. Progress Reports
The Recipient shall prepare progress reports on the schedule provided in the work
statement. The Recipient shall prepare progress reports which summarize all grant
activities conducted by the Recipient for the reporting period, including an
assessment of the ability to complete the project within the current budget and any
anticipated cost overruns. See Attachment 1 "Content and Format of Progress
Reports" for more information. In addition unless determined otherwise by the
Commission's Project Manager, the Recipient shall provide copies of all progress
reports (e.g., monthly, quarterly, annual reports) submitted to DOE as a condition of
its ARRA - funded grant. If Recipient is submitting a Progress Report to DOE when
its Progress Report to the Energy Commission is due, Recipient can submit the
DOE Progress Report to fulfill the requirement under this Agreement, if the
Recipient receives Commission Project Manager approval to do so and the DOE
Progress Report contains the information listed in Attachment 1.
c. Final Reports
The Recipient shall prepare a draft final report and final report on the schedule
provided in the work scope (Attachment D). The final report shall describe the
original purpose, approach, results and conclusions of the work done under this
Agreement, including: a) how the project advanced science and technology to the
benefit of California's ratepayers and the barriers overcome; b) how the project
supported California's economic recovery in the near term and number of jobs
created or sustained; c) how the project results will be used by California industry,
markets and others; d) projected cost reduction impact and other benefits resulting
from the project; and e) discuss the project budget, including the total project cost
T &Cs for PON -08-011 and PON 09-002 4
and all the funding partners and their cost share. Discuss how the Energy
Commission funding was spent on the project, including any unique products and
benefits.
If a final report is required by DOE, the Recipient will include a copy of it along
with the Energy Commission's final report requirements. In addition, the Recipient
shall submit the draft final DOE report to the Energy Commission for review at the
same time it submits it to DOE.
Unless otherwise stated in the work scope (Attachment D), the final report format
shall follow DOE's format requirements. DOE written acceptance of the report
will be one factor used to determine satisfactory completion of the work under this
Agreement.
Upon receipt of the final report, the Commission Project Manager shall ensure that
all work has been satisfactorily completed. The Payment Request for the final
payment may only be submitted after the final report is completed and the
Commission Project Manager has verified satisfactory completion of the work.
d. Failure to Comply with Reporting Requirements
Failure to comply with the reporting requirements contained in this award will be
considered a material noncompliance with the terms of the award. Noncompliance
may result in withholding of future payments, suspension or termination of the
current award, and withholding of future awards.
7. Legal Statement on Reports and Products
No product or report produced as a result of work funded by this program shall be
represented to be endorsed by the Commission.
8. Amendments
a. Budget Reallocations
1) The Energy Commission, through its Project Manager and Grants Officer,
and the Recipient can agree upon and make certain budget reallocations
without a formal amendment to this Agreement as long as ALL of the
following conditions are met:
a) The total of all budget reallocations cannot exceed twenty-five
percent (25 %) with a cap amount of $250,000 of the Agreement
Amount. For purposes of this provision, "Agreement Amount"
means the total amount of Energy Commission funds being paid to
T &Cs for PON-08 -011 and PON 09 -002 5
Recipient under this Agreement. It does not include any match funds
provided by Recipient.
For example, if under an agreement the Energy Commission agrees
to pay a Recipient $100,000 and the Recipient is supplying $500,000
in match funding, the twenty -five percent (25 %) limitation applies to
the $100,000. Only up to $25,000 of Energy Commission funds can
be reallocated without a formal amendment. If under an agreement
the Energy Commission agrees to pay a recipient $1,200,000,
twenty-five percent would be $300,000, but the cap is $250,000, so
the most that could be reallocated without a formal amendment is
$250,000.
b) The budget reallocation cannot substantially change the Work
Statement. Examples of budget reallocations that do not
substantially change the Work Statement, but are not limited to, the
following:
• Increasing or decreasing the overall travel budget. This does
not mean an increase to the allowed per diem rates under this
Agreement.
• Increasing or decreasing the equipment budget.
• Increasing or decreasing the number of personnel assigned to
complete tasks. This does not include increasing the hourly
rates of the personnel and classifications listed in the budget.
Increasing hourly rates requires a formal amendment. The
addition of personnel also requires a formal amendment
unless there is already an identified classification of rates in
the budget that the new personnel will be filling.
c) The budget reallocation only involves moving funds between tasks
or categories. The total Agreement Amount must remain
unchanged. Increasing the total amount of the Agreement requires a
formal amendment.
d) The budget reallocation does not increase the percentage rate of
Indirect Overhead, Direct Overhead, Fringe Benefits, General and
Administrative Costs, or any other rates listed in the budget. For
example, if an agreement budget lists the Indirect Overhead
percentage rate as 25% of Direct Labor, the 25% cannot be increased
without a formal amendment.
2) To effectuate a budget reallocation under this section, the Recipient must
make a request in writing to both the Project Manager and the Grants
Officer. Both the Project Manager and Grants Officer will then approve or
disapprove the request in writing; the approval or disapproval is not
effective or binding unless signed by both the Project Manager and the
Grants Officer. Oral communications cannot be used or relied upon. If the
T &Cs for PON -08 -011 and PON 09 -002 6
request is approved, the Project Manager shall revise the Budget
Attachments to reflect the changes and send them to the Grants Officer and
Recipient.
3) Any desired budget reallocations that do not meet the four criteria in this
section must be made through a formal amendment. For purposes of this
provision, a "formal amendment" means that all of the following must
occur: approval by the Energy Commission at a Commission Business
Meeting, a written amendment signed by both parties.
4) Attempted budget reallocations that do not meet the requirements of this
section are not legally binding upon the parties.
b. Non - Significant Changes
Changes that are not significant to the Agreement do not need to be approved at
an Energy Commission Business Meeting through a formal amendment. These
changes shall be documented in writing to the Commission Project Manager. Only
the following changes are deemed non - significant:
1) Budget revisions among tasks or budget categories that do not affect the
scope of the project or the overall Agreement amount as long as such
revisions adhere to requirements in paragraph 8.a, above. However,
increases in hourly personnel rates, fringe benefits, all overheads, and any
other rates specified in the Agreement are deemed significant and must
follow the requirements in paragraph 8.c. below.
2) Changes to the Work Statement that only correct grammatical errors or
reference mistakes.
3) Revisions to Product Due Dates as long as the revised dates are within the
current approved term of the Agreement and agreed to in writing by the
Commission Project Manager.
4) Designation of Project Managers and other contact information.
5) Recipient's increase of match share.
c. Significant Changes
Significant changes to this Agreement require a formal amendment which must be
approved at an Energy Commission Business Meeting. Significant Changes are
defined as any modifications to the Agreement that do not meet the requirements
in paragraph 8.b. above. Examples of significant changes include, but are not
limited to:
• Change of Recipient's legal name.
• Change of Recipient. 7 for PON -08 -011 and PON 09 -002
• Changes in order to disencumber funds.
• Changes to the Work Statement that modify the scope of the Agreement.
• Changes to the Work Statement that extend the due dates beyond the term
of the Agreement.
• Changes to the Budget that increase the amount of Energy Commission
funding within the Agreement.
• Changes to the Budget that increase rates (e.g., hourly) or fees, including
those for subcontractors.
• Reallocations to the Budget that substantially change the Work Statement.
(As determined by the Grants and Loans Office.)
When seeking to change this Agreement, Recipient understands and
acknowledges that it can take the Energy Commission six (6) months or more to
process an amendment.
9. Contracting and Procurement Procedures
This section provides general requirements for an agreement between the Recipient and a
third party ( "subcontractor ").
The Recipient is responsible for handling all contractual and administrative issues arising
out of or related to any subcontracts it enters into under this Agreement.
All subcontracts must incorporate all of the following:
• A clear and accurate description of the material, products, or services to be procured
as well as a detailed budget and timeline.
• Provisions that allow for administrative, contractual, or legal remedies in instances
where subcontractors violate or breach contract terms, and provide for such
sanctions and penalties as may be appropriate.
• Provisions for termination by the Recipient, including termination procedures and
the basis for settlement.
• Any additional requirements specified in the OMB Circulars and/or federal
regulations incorporated by reference in this Agreement.
• Further assignments shall not be made to any third or subsequent tier subcontractor
without additional advance written consent of the Commission.
Recipients who are subcontracting with University of California (UC) may use the terms
and conditions negotiated by the Energy Commission with UC for their subcontracts.
Recipients who are subcontracting with the Department of Energy (DOE) national
laboratories may use the terms and conditions negotiated with DOE. All other subcontracts
must incorporate language conforming to the following provisions specified in this
Agreement, and these provisions shall expressly flow down to all subcontractors:
• Standard of Performance
• Certifications and Compliance
T &Cs for PON -08 -011 and PON 09-002 8
• Indemnification
• Rights of Parties Regarding Intellectual Property
• Intellectual Property Items Developed Prior to this Agreement
• Travel and Per Diem
• Equipment
• Disputes
• Confidentiality
• Recordkeeping, Cost Accounting, and Auditing
• Access to Sites and Records
• Survival of the following sections:
o Indemnification
o Recordkeeping, Cost Accounting and Auditing
o Equipment
o Rights of Parties Regarding Intellectual Property
o Access to Sites and Records
Nothing contained in this Agreement or otherwise, shall create any contractual relation
between the Commission and any subcontractors, and no subcontract shall relieve the
Recipient of its responsibilities and obligations hereunder. The Recipient agrees to be as
fully responsible to the Commission for the acts and omissions of its subcontractors or
persons either directly or indirectly employed by any of them as it is for the acts and
omissions of persons directly employed by the Recipient. The Recipient's obligation to pay
its subcontractors is an independent obligation from the Commission's obligation to make
payments to the Recipient. As a result, the Commission shall have no obligation to pay or to
enforce the payment of any monies to any subcontractor.
Recipient shall be responsible for establishing and maintaining contractual agreements with
and reimbursement of each subcontractor for work performed in accordance with the terms
of this Agreement.
All subcontracts entered into pursuant to this Agreement shall be subject to examination
and audit by the Energy Commission and/or Bureau of State Audits for a period of three
years after final payment under this Agreement.
Recipient shall provide a copy of its subcontracts upon request by the Energy Commission.
Failure to comply with the above requirements may result in the termination of this
Agreement.
10. Key Personnel, Key Subcontractors, and Prevailing Wage
a. Key Personnel
Key personnel are employees of the Recipient who are critical to the outcome of
the project. For example, they may have expertise in the particular field or have
experience that is not available from another source. Replacing these individuals
may affect the outcome of the project. Key personnel, listed in the Budget exhibit,
T &Cs for PON -08 -011 and PON 09-002 9
may not be substituted without the Commission Project Manager's approval. Such
approval shall not be unreasonably withheld. Recipient may substitute all other
personnel, with reasonable advance notification made to the Commission Project
Manager.
b. Key Subcontractors
Key subcontractors are subcontractors or vendors to the Recipient who are
critical to the outcome of the project. As with key personnel, key subcontractors
may have expertise in the particular field or have experience that is not available
from another source. Replacing these subcontractors may affect the outcome of
the project. An employee of the Recipient's subcontractor or vendor may also
qualify as "key." Key subcontractors, listed in the Budget exhibit, may not be
substituted without the Commission Project Manager's approval. Such approval
shall not be unreasonably withheld. Recipient may substitute all other
subcontractors, with reasonable advance notification made to the Commission
Project Manager. Replacement of key subcontractors is subject to the
"Contracting and Procurement Procedures" section contained within these terms
and conditions.
c. Prevailing Wage
For purposes of this paragraph, "public works" means construction, alteration,
demolition, installation, repair or maintenance work over $1,000; and
"Contractor" means all contractors that provide public works activities for the
Project.
1) Recipient/General Requirements
a) Recipient shall comply with state prevailing wage law, Chapter 1
of Part 7 of Division 2 of the Labor Code, commencing with
Section 1720; and Title 8, California Code of Regulations, Chapter
8, Subchapter 3, commencing with Section 16000, for any public
works activities performed on the Project funded by this
Agreement. For purpose of compliance with prevailing wage law,
the Recipient shall comply with provisions applicable to an
awarding body. Compliance with state prevailing wage law
includes without limitation: payment of prevailing wage as
applicable; overtime and working hour requirements;
apprenticeship obligations; payroll recordkeeping requirements;
and other obligations as required by law.
b) Recipient shall certify to the Energy Commission on each Payment
Request Form, that prevailing wages were paid to eligible workers
who provided labor for work covered by the payment request and
that the Recipient and all contractors complied with prevailing
wage laws. Prior to the release of any retained funds under this
Agreement, the Recipient shall submit to the Energy Commission
T &Cs for PON-08-011 and PON 09 -002 10
a certificate signed by the Recipient and all contractors performing
public works activities stating that prevailing wages were paid as
required by law.
2) Flowdown Requirements
Recipient shall ensure that all agreements with contractors for public
works activities for the Project contain the following provisions:
a) Contractor shall comply with state prevailing wage law, Chapter 1
of Part 7 of Division 2 of the Labor Code, commencing with
Section 1720; and Title 8, California Code of Regulations, Chapter
8, Subchapter 3, commencing with Section 16000, for all
construction, alteration, demolition, installation, repair or
maintenance work over $1,000 performed under the contract.
Contractor's obligations under prevailing wage laws include
without limitation: pay not less than the applicable prevailing wage
for public works activities performed on the Project; comply with
overtime and working hour requirements; comply with
apprenticeship obligations; comply with payroll recordkeeping
requirements; and comply with other obligations as required by
law.
b) Contractor shall ensure that the above requirements are included in
all subcontracts for public works activities for the Project.
11. Permits and Clearances
The Recipient is responsible for ensuring all necessary permits and environmental
documents are prepared and clearances are obtained from the appropriate agencies.
12. Equipment
Title to equipment acquired by the Recipient with grant funds shall vest in the Recipient.
The Recipient 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 grant
funds and the Recipient shall not encumber the property without Commission Project
Manager approval.
Recipient should refer to the applicable OMB Circulars and/or federal regulations
incorporated by reference in this Agreement for additional equipment requirements.
13. Termination
a. Purpose
The parties agree that because the Energy Commission is a state entity and
T &Cs for PON -08 -011 and PON 09 -002 11
provides funding on behalf of all Californian ratepayers, it is necessary for the
Energy Commission to be able to terminate, at once, upon the default of Recipient
and to proceed with the work required under the Agreement in any manner the
Energy Commission deems proper. Recipient specifically acknowledges that the
termination of the Agreement by the Energy Commission under the terms set forth
below is an essential term of the Agreement, without which the Energy
Commission would not enter into the Agreement. Recipient further agrees that
upon any of the events triggering the termination of the Agreement by the Energy
Commission, the Energy Commission has the right to terminate the Agreement,
and it would constitute bad faith of the Recipient to interfere with the immediate
termination of the Agreement by the Energy Commission.
b. Breach
The Energy Commission shall provide Recipient written notice of intent to
terminate due to Recipient's breach. Recipient will have fifteen (15) calendar days
to fully perform or cure the breach. In the event Recipient does not cure the
breach within fifteen (15) days, the Energy Commission may, without prejudice to
any of its other remedies, terminate this Agreement upon five (5) calendar days
written notice to Recipient. In such event, the Energy Commission shall pay
Recipient only the reasonable value of the satisfactorily performed services
rendered by Recipient before the notice of termination, as may be agreed upon by
the parties or determined by a court of law, but not in excess of the Agreement
maximum payable.
c. For Cause
The Energy Commission may, for cause, and at its option, terminate this Agreement
upon giving thirty (30) calendar days advance written notice to Recipient. In such
event, Recipient agrees to use all reasonable efforts to mitigate its expenses and
obligations. The Energy Commission will pay Recipient for services rendered and
expenses incurred within thirty (30) days after notice of termination which could
not by reasonable efforts of Recipient have been avoided, but not in excess of
Agreement maximum payable. Recipient agrees to relinquish possession of
equipment purchased for this Agreement with Energy Commission funds to the
Commission, or Recipient may, with approval of the Energy Commission, purchase
the equipment as provided by the terms of this Agreement.
The term "for cause" includes, but is not limited to, the following reasons:
• Partial or complete loss of Match Funds;
• Reorganization to a business entity unsatisfactory to the Energy
Commission;
• Retention or hiring of subcontractors, or replacement or addition of Key
Personnel that fail to perform to the standards and requirements of this
Agreement;
• Recipient is not able to pay its debts as they become due and/or Recipient is
in default of an obligation that impacts its ability to perform under this
T &Cs for PON-08-W 1 and PON 09 -002 12
Agreement; or
• Significant change in State or Energy Commission policy such that the work
or product being funded would not be supported by the Commission.
• Not meeting DOE's grant agreement terms and conditions, which results in
grant termination, non - payment and/or other adverse action by DOE.
d. Without Cause
The Energy Commission may, at its option, terminate this Agreement without cause
in whole or in part, upon giving thirty (30) days advance notice in writing to the
Recipient. In such an event, the Recipient agrees to use all reasonable efforts to
mitigate the Recipient's expenses and obligations hereunder. Also, in such event,
the Energy Commission shall pay the Recipient for all satisfactory services rendered
and expenses incurred within thirty (30) calendar days after notice of termination
which could not by reasonable efforts of the Recipient have been avoided, but not in
excess of the maximum payable under this Agreement.
14. Travel and Per Diem
For purposes of payment, Recipient's headquarters shall be considered the location of the
Recipient's office where the employees assigned responsibilities for this award are
permanently assigned. Travel expenditures not listed in this section cannot be reimbursed.
Travel not listed in the Budget section of this Agreement shall require prior written
authorization from the Commission Project Manager. Recipient shall be reimbursed for
authorized travel and per diem up to, but not to exceed, the rates allowed nonrepresented
state employees. A copy of the current allowable travel reimbursement rates can be obtained
from the Commission's web site at http: / /www.energy.ca.gov /contracts /or by contacting the
Commission's Grants and Loans Office at (916) 654 -4381.
Travel expense claims must detail expenses using the allowable rates, and Recipient must
sign and date travel expense claim before submitting the travel expense claim to the
Commission for payment. Expenses must be listed by trip including dates and times of
departure and return. Travel expense claims supporting receipts and expense documentation
shall be attached to the Recipient's Payment Request. A vehicle license number is required
when claiming mileage, parking, or toll charges. Questions regarding allowable travel
expenses or per diem should be addressed to the Commission Project Manager.
15. Standard of Performance
a. Recipient, its subcontractors and their employees in the performance of Recipient's
work under this Agreement shall be responsible for exercising the degree of skill
and care required by customarily accepted good professional practices and
procedures used in scientific and engineering research fields.
b. The failure of a project to achieve the technical or economic goals stated in the
Work Statement is not a basis for the Energy Commission to determine that the
work is unacceptable, unless the work conducted by the Recipient or its
T &Cs for PON -O8 -011 and PON 09 -002 13
subcontractors is deemed by the Energy Commission to have failed the foregoing
standard of performance.
c. In the event that Recipient or its subcontractor fails to perform in accordance with
the foregoing standard of performance, the Commission Project Manager and the
Recipient 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 Energy Commission's dispute resolution process
described in the Disputes Section herein.
d. Nothing contained in this section is intended to limit any of the rights or remedies
which the Energy Commission may have under law.
16. Payment of Funds
The Energy Commission agrees to reimburse the Recipient for actual allowable
expenditures incurred in accordance with the Budget (Attachment F) and Work Scope
(Attachment D). The Energy Commission will reimburse Recipient using one of the
following methods, as stipulated in the Budget and Work Scope. The method selected is
determined at the time of the Work Scope and Budget development and will be used
throughout the agreement term.
A. Itemized Category Method: The rates in the Budget are rate caps, or the maximum
amount allowed to be billed. The Recipient can only bill for actual expenses incurred at the
Recipient's actual direct labor rate(s), fringe benefit rate(s), and indirect rate(s), not to
exceed the rates specified in the Budget.
a. Payment Requests
Unless indicated otherwise in Special Conditions, the Recipient may request
payment from the Energy Commission at any time during the term of this
Agreement, but no more frequently than monthly, although it is preferred that
payment requests be submitted with the progress reports.
Payments will be made on a reimbursement basis for Recipient's expenditures, i.e.,
after the Recipient has paid for a service, product, supplies, or other approved
budget item. No reimbursement for food or beverages shall be made other than
allowable per diem charges.
The Energy Commission, at its sole discretion, may honor advance payment
requests subject to special conditions specified by the Commission's Grants and
Loans Office.
Funds in this award have a limited period in which they must be expended. All
Recipient expenditures (Energy Commission - reimbursable and match share) must
occur within the approved term of this Agreement.
b. Payment Request Format
T &Cs for PON- 08 -011 and PON 09 -002 14
A request for payment shall consist of, but is not limited to:
1) An invoice that includes a list of actual expenses incurred during the billing
period, up to any Budget rate caps. The Recipient can only bill the lower of
actual rates or Budget rate caps. Backup documentation is required at time of
invoice submittal. Unless specified otherwise in Special Conditions, the
invoice list must include expenditures in accordance with the Budget, as
follows:
a) Date prepared, grant number, Recipient's Federal ID number, and
billing period;
b) Unless determined otherwise by the Commission's Project Manager
copies of all DOE required reports and deliverables prepared during
the invoice period and any correspondence (e.g., email) from DOE,
including project performance reviews of the Recipient's project,
and summaries and results of project review meetings with DOE.
Include satisfactory and unsatisfactory project performance reports
prepared by DOE.
c) Recipient's total expenditure and the amount billed to DOE, project
partners and the Energy Commission.
d) Recipient's actual labor expenditures, including hourly labor rates by
individual name and classification, hours worked, and benefits (fully
loaded rates may only be used if fully loaded rates are included in the
grant Budget);
e) Operating expenses, including travel, equipment, supplies, and other;
f) Receipts for travel, including departure and return times.
g) Receipts for materials, miscellaneous, and equipment.
h) Subcontractor invoices;
i) Overhead/indirect;
j) Match fund expenditures, and
k) By Budget line item (cost component) category, list budgeted
amount, billed to date, current billing, and balance of funds.
2) A progress report that documents evidence of progress, which includes
written progress reports and products prepared by the Recipient as detailed in
the Work Statement and/or supplied to DOE.
T &Cs for PON -08 -011 and PON 09 -002 15
Recipient shall submit all invoices to the following address:
California Energy Commission
Accounting Office
PIER Grant Program
1516 Ninth Street, MS -2
Sacramento, CA 95814
B. Completion of Product Method:
The Energy Commission agrees to reimburse the Recipient for actual allowable
expenditures incurred in accordance with the Budget. The rates in the Budget are rate caps,
or the maximum amount allowed to be billed. The Recipient can only bill for actual
expenses incurred.
a. Payment Requests
Unless indicated otherwise in Special Conditions, the Recipient may request
payment only upon satisfactory completion of each product identified in the Work
Scope (Attachment D), as determined by the Energy Commission project manager.
Progress payments are tied directly to the satisfactory completion of the products
identified in the Work Scope. The Recipient is required to submit progress reports,
as specified in the Work Scope, until the completion of the grant term.
Payments will be made on a reimbursement basis for Recipient's expenditures, i.e.,
after the Recipient has paid for a service, product, supplies, or other approved
budget item. No reimbursement for food or beverages shall be made other than
allowable per diem charges.
The Energy Commission, at its sole discretion, may honor advance payment
requests subject to special conditions specified by the Commission's Grants and
Loans Office.
Funds in this award have a limited period in which they must be expended. All
Recipient expenditures (Energy Commission - reimbursable and match share) must
occur within the approved term of this Agreement.
b. Payment Request Format
A request for payment shall consist of, but is not limited to:
1) An invoice that includes the cost of the product, as identified in the budget.
Backup documentation is required at time of invoice submittal. Unless
specified otherwise in Special Conditions, the invoice list must include
expenditures in accordance with the Budget, as follows:
a) Date prepared, grant number, Recipient's Federal ID number, and
billing period;
b) Unless determined otherwise by the Commission's Project Manager,
T &Cs for PON -08-011 and PON 09-002 16
copies of all DOE required reports and deliverables prepared during
the invoice period and any correspondence (e.g., email) from DOE,
including copies of project performance reviews on Recipient work,
and summaries and results of project review meetings with DOE.
Recipient will provide copies of satisfactory and unsatisfactory
performance reviews by DOE.
c) Recipient's actual expenditure and the amount billed to DOE,
project partners and the Energy Commission.
d) Operating expenses, including travel, equipment, supplies, and other;
e) Receipts for travel, including departure and return times.
f) Receipts for materials, miscellaneous, and equipment.
g) Subcontractor invoices;
h) Match fund expenditures, and
i) By Budget line item (cost component) category, list budgeted
amount, billed to date, current billing, and balance of funds.
2) A progress report that documents evidence of progress, which includes
written progress reports and products prepared by the Recipient as detailed in
the Work Statement and/or supplied to DOE.
Recipient shall submit all invoices to the following address:
California Energy Commission
Accounting Office
PIER Grant Program
1516 Ninth Street, MS -2
Sacramento, CA 95814
c. Certification
The following certification shall be included on each Payment Request form and
signed by the Recipient's authorized officer:
The documents included in this request for payment are true and
correct to the best of my knowledge and I, as an agent of
[Company Name] have authority to submit this request. I certify
that reimbursement for these costs has not and will not be received
from any other sources, including but not limited to a Government
entity contract, subcontract, or other procurement method. For
projects considered to be a public work: Prevailing wages were
T &Cs for PON -08 -011 and PON 09 -002 17
paid to eligible workers who provided labor for the work covered
by this invoke; Recipient and all subcontractors have complied
with prevailing wage laws.
d. Government Entity
Government Entity is defined as a governmental agency from California or any state
or a state college or state university from California or any state; a local government
entity or agency, including those created as a Joint Powers Authority; an auxiliary
organization of the California State University or a California community college;
the Federal government; a foundation organized to support the Board of Governors
of the California Community Colleges or an auxiliary organization of the Student
Aid Commission established under Education Code 69522.
e. Release of Funds
Each invoice is subject to Commission Project Manager approval. The Commission
Project Manager will not process any payment request during the Agreement term if
the following conditions have not been met:
• All required reports have been submitted and are satisfactory to the
Commission Project Manager.
• All applicable special conditions have been met.
• All appropriate permits or permit waivers from governmental agencies have
been issued to the Recipient and copies have been received by the
Commission Project Manager.
• All products due have been submitted and are satisfactory to the
Commission Project Manager.
• Other prepayment conditions as may be required by the Commission Project
Manager have been met. Such conditions will be specified in writing ahead
of time, if possible.
Payments shall be made to the Recipient only for undisputed invoices. An
undisputed invoice is an invoice executed by the Recipient for project expenditures,
that meets all payment conditions of the Agreement, and for which additional
evidence is not required to make payment. The invoice may be disputed if all
products due for the billing period have not been received and approved, if the
invoice is inaccurate, or if it does not comply with the terms of this Agreement. If
the invoice is disputed the Recipient will be notified via a Dispute Notification
Form within 15 working days of receipt of the invoice.
f. Fringe Benefits, Indirect Overhead, General and Administrative (G &A), and
Facilities and Administration (F &A)
Indirect cost rates must be developed in accordance with generally accepted
accounting principles and the applicable OMB circulars or federal acquisition
regulations. If the Recipient has an approved fringe benefits or indirect cost rate
(indirect overhead, G &A, or F &A) from their cognizant Federal Agency, the
T &Cs for PON -08 -011 and PON 09 -002 18
Recipient may bill at the federal rate up to the Budget rate caps if the following
conditions are met:
• The Recipient may bill at the federal provisional rate but must adjust
annually to reflect their actual final rates for the year in accordance with the
Labor, Fringe, and Indirect Invoicing Instructions which can be accessed at.
www.energy.ca.gov /contracts/ pier lPlERlnvoicinglnstructions.doc.
• The cost pools used to develop the federal rates must be allocable to the
Commission Agreement, and the rates must be representative of the portion
of costs benefiting the Commission Agreement. For example, if the federal
rate is for manufacturing overhead at the Recipient's manufacturing facility
and the Commission Agreement is for research and development at their
research facility, the federal indirect overhead rate would not be applicable
to the Commission Agreement.
• The federal rate must be adjusted to exclude any costs that are specifically
prohibited in the Commission Agreement.
• The Recipient may only bill up to the Agreement Budget rate caps unless
and until an amendment to the Agreement Budget is approved.
g. State Controller's Office
Payments are made by the State Controller's Office.
1) Conditions for payment:
a) No payment shall be made in advance of services rendered, unless
prior written approval has been obtained by the Grants and Loans
Office.
b) Payment shall only be made in accordance with the Budget
attachment.
c) Each request for payment is subject to the Commission Project
Manager's approval.
d) Payments shall be made to the Recipient for undisputed invoices.
An undisputed invoice is an invoice submitted by the Recipient for
work performed, and for which additional evidence is not required to
determine its validity. The invoice will be disputed if all products
due for the billing period have not been received and approved, if the
invoice is inaccurate, or if it does not comply with the terms of this
Agreement. If the invoice is disputed, Recipient will be notified via
a Dispute Notification Form within 15 working days of receipt of
the invoice.
e) Payment will be made in accordance with, and within the time
T &Cs for PON -08 -011 and PON 09 -002 19
specified, in Government Code Chapter 4.5, commencing with
Section 927.
f) Final invoice must be received by the Energy Commission no later
than 30 calendar days after the Agreement termination date.
g) No payment will be made for costs identified in recipient invoices
that has or will be reimbursed by another source, including but not
limited to a Government Entity contract.
17. Recordkeeping, Cost Accounting, and Auditing
a. Cost Accounting
Recipient agrees to keep separate, complete, and correct accounting of the costs
involved in completing the grant and match funded (if any) portion of this project.
The Commission or its agent shall have the right to examine Recipient's books of
accounts at all reasonable times to the extent and as is necessary to verify the
accuracy of Recipient's reports.
b. Accounting Procedures
The Recipient's costs shall be determined on the basis of the Recipient's accounting
system procedures and practices employed as of the effective date of this
Agreement, provided that the Recipient shall use generally accepted accounting
principles and cost reimbursement practices. The Recipient'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 Recipient'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.
c. Allowability of Costs
1) Allowable Costs
The costs for which the Recipient shall be reimbursed under this Agreement
include all costs, direct and indirect, incurred in the performance of work
that are identified in the grant Budget. Costs must be incurred within the
term of the Agreement. Factors to be considered in determining whether an
individual item of cost is allowable include (i) reasonableness of the item,
(ii) appropriate use of the allowability of the item to the work, (iii)
applicable federal OMB circulars and/or federal regulations incorporated by
reference in this Agreement, and (iv) the terms and conditions of this
T &Cs for PON-08 -011 and PON 09 -002 20
Agreement.
2) Unallowable Costs
The following is a description of some specific items of cost that are
unallowable; provided, however, that the fact that a particular item of cost is
not included shall not mean that it is allowable. Details concerning the
allowability of costs are available from the Energy Commission's
Accounting Office.
a) Profit or Fees, Contingency Costs, Imputed Costs (e.g., Cost of
Money), Fines and Penalties, Losses, Excess Profit Taxes and
increased rates and fees for this Agreement.
b) The Commission will pay for state or local sales or use taxes on
expenditures. The State of California is exempt from Federal
excise taxes.
3) Except as provided for in this Agreement, Recipient shall use the federal
OMB circulars and/or federal regulations incorporated by reference in this
Agreement when determining allowable and unallowable costs. In the event
of a conflict, this Agreement takes precedence over the OMB Circulars
and/or federal regulations.
d. Audit Rights
Recipient shall maintain books, records, documents, and other evidence, based on
the procedures set forth above, sufficient to reflect properly all costs claimed to have
been incurred in performing this Agreement. The Energy Commission, an agency of
the state or, at the Energy Commission's option, a public accounting firm designated
by the Energy Commission, may audit such accounting records at all reasonable
times with prior notice by the Energy Commission. The Energy Commission shall
bear the expense of such audits. It is the intent of the parties that such audits shall
ordinarily be performed not more frequently than once every twelve (12) months
during the performance of the work and once at any time within three (3) years
following payment by the Energy Commission of the Recipient's final invoice.
However, performance of any such interim audits by the Energy Commission does
not preclude further audit.
Recipient agrees that the Energy Commission, the Department of General
Services, the Bureau of State Audits, or their designated representative shall have
the right to review and to copy any records and supporting source documentation
pertaining to the performance of this Agreement. Recipient agrees to maintain
such records for possible audit for a minimum of three (3) years after final
payment, unless a longer period of record retention is stipulated. Recipient agrees
to allow the auditor(s) access to such records during normal business hours and to
allow interviews of any employees who might reasonably have information
related to such records. Further, Recipient agrees to include a similar right of the
T &Cs for PON- 08-011 and PON 09 -002 21
state to audit records and interview staff in any subcontract related to performance
of this Agreement.
e. Refund to the Energy Commission
If the Energy Commission determines, that any invoiced and paid amounts exceed
the actual allowable incurred costs, Recipient shall repay such amounts to the
Energy Commission within thirty (30) days of request or as otherwise agreed by the
Energy Commission and Recipient. If the Energy Commission does not receive such
repayments, the Energy Commission shall be entitled to withhold further payments
to the Recipient or seek repayment from the Recipient.
f. Audit Cost
The Energy Commission's cost of the audit shall be borne by the Energy
Commission except when the results of the audit reveal an error detrimental to the
Energy Commission exceeding more than ten percent (10 %) or $5,000 (whichever
is greater) of 1) the amount audited, or 2) if a royalty audit, the total royalties due in
the period audited. Recipient shall pay the refund as specified in "e. Refund to the
Energy Commission," and Recipient agrees to reimburse the Energy Commission
for reasonable costs and expenses incurred by the Energy Commission in
conducting such audit. The Recipient is responsible for any costs it incurs as part of
the audit.
g. Match or Cost Share (match)
If the Budget includes a match share requirement, the Recipient's commitment of
resources, as described in this Agreement, is a required expenditure for receipt of
Energy Commission funds. Grant funds will be released only if the required match
percentages are expended. The Recipient must maintain accounting records
detailing the expenditure of the match (actual cash and in -kind services) and report
on match share expenditures on the Recipient's request for payment.
18. Indemnification
The Recipient agrees to indemnify, defend, and save harmless the state, its officers, agents,
and employees from any and all claims and losses accruing or resulting to Recipient and to
any and all contractors, subcontractors, materialmen, laborers, and any other person, firm, or
corporation furnishing or supplying work, services, materials, or supplies in connection with
the performance of this Agreement, and from any and all claims and losses accruing or
resulting to any person, firm, or corporation who may be injured or damaged by the
Recipient in the performance of this Agreement.
19. Disputes
In the event of a dispute or grievance between Recipient and the Energy Commission,
both parties shall follow the procedure below. Recipient shall continue with the
responsibilities under this Agreement during any dispute.
T &Cs for PON -08 -011 and PON 09 -002 22
a. Commission Dispute Resolution
The Recipient shall first discuss the problem informally with the Commission
Project Manager. If the problem cannot be resolved at this stage, the Recipient
must direct the grievance together with any evidence, in writing, to the Grants and
Loans Office. The grievance must state the issues in the dispute, the legal
authority or other basis for the Recipient's position and the remedy sought. The
Grants and Loans Office and the Program Office Manager must make a
determination on the problem within ten (10) working days after receipt of the
written communication from the Recipient. The Grants and Loans Office shall
respond in writing to the Recipient, indicating a decision and explanation for the
decision. Should the Recipient disagree with the Grants and Loans Office's
decision, the Recipient may appeal to the second level.
The Recipient must prepare a letter indicating why the Grants and Loans Office's
decision is unacceptable, attaching to it the Recipient's original statement of the
dispute with supporting documents, along with a copy of the Grants and Loans
Office's response. This letter shall be sent to the Energy Commission's Executive
Director within ten (10) working days from receipt of the Grants and Loans
Office's decision. The Executive Director or designee shall meet with the
Recipient to review the issues raised. A written decision signed by the Executive
Director or designee shall be returned to the Recipient within twenty (20) working
days of receipt of the Recipient's letter. The Executive Director may inform the
Energy Commission of the decision at an Energy Commission business meeting.
Should the Recipient disagree with the Executive Director's decision, the
Recipient may appeal to the Energy Commission at a regularly scheduled business
meeting. Recipient will be provided with the current procedures for placing the
appeal on a Energy Commission business meeting agenda.
b. Binding Arbitration
Should the Energy Commission's Dispute Resolution procedure above fail to
resolve an Agreement dispute or grievance to the satisfaction of either party, the
Recipient and the Energy Commission mutually may elect to have the dispute or
grievance resolved through binding arbitration. If one party does not agree, the
matter shall not be submitted 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 AAA commercial
arbitration rules. If arbitration is mutually decided by the parties, arbitration is in
lieu of any court action and the decision rendered by the arbitrator shall be final
and may not be appealed to a court through the civil process). However, judgment
may be entered upon the arbitrator's decision and is enforceable in accordance
with the applicable law in any court having jurisdiction over this Agreement. The
demand for arbitration shall be made no later six (6) months after the date of the
T &Cs for PON-08-011 and PON 09 -002 23
Agreement's termination, despite when the dispute or grievance arose, and despite
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 sole
forum to resolve a dispute is California state 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 borne equally by the parties, unless the
arbitrator apportions or assesses the expenses otherwise as part of the
award.
At the option of the parties, any or all of these arbitration costs may be deducted
from any balance of Agreement funds. Both parties must agree, in writing, to
utilize Agreement funds to pay for arbitration costs.
20. Workers' Compensation Insurance
a. Recipient hereby warrants that it carries Worker's Compensation Insurance for all of
its employees who will be engaged in the performance of this Agreement, and
agrees to furnish to the Commission Project Manager satisfactory evidence of this
insurance at any time the Commission Project Manager may request.
b. If Recipient is self - insured for worker's compensation, it hereby warrants such self -
insurance is permissible under the laws of the State of California and agrees to
furnish to the Commission Project Manager satisfactory evidence of this insurance
at any time the Commission Project Manager may request.
21. Confidentiality
a. Information Considered Confidential
All Recipient information considered confidential at the commencement of this
Agreement is designated an Attachment to this Agreement.
b. Confidential Products: Labeling and Submitting Confidential Information
Prior to the commencement of this Agreement, the parties have identified in an
Attachment to this Agreement, specific Confidential Information to be provided
T &Cs for PON -08 -011 and PON 09-002 24
as a product. All such confidential products shall be marked, by the Recipient, as
"Confidential" on each page of the document containing the Confidential
Information and presented in a sealed package to the Grants and Loans Office.
(Non - confidential products are submitted to the Commission Project Manager.)
All Confidential Information will be contained in the "confidential" volume: no
Confidential Information will be in the "public" volume.
c. Submittal of Unanticipated Confidential Information as a Product
The Recipient and the Commission agree that during this Agreement, it is possible
that the Recipient may develop additional data or information not originally
anticipated as a confidential product. In this case, Recipient shall follow the
procedures for a request for designation of Confidential Information specified in
title 20 CCR 2505. The Energy Commission's Executive Director makes the
determination of confidentiality. Such subsequent determinations may be added to
the list of confidential products in an Attachment to this Agreement.
d. Disclosure of Confidential Information
Disclosure of Confidential Information by the Energy Commission may only be
made pursuant to 20 CCR 2506 and 2507. All confidential data, records or
products that are legally disclosed by the Recipient or any other entity become
public records and are no longer subject to the above confidentiality designation.
e. Waiver of Consequential Damages
IN NO EVENT WILL THE ENERGY COMMISSION BE LIABLE FOR
ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT,
NEGLIGENCE, STRICT TORT, OR ANY OTHER LEGAL THEORY FOR
THE DISCLOSURE OF RECIPIENT'S CONFIDENTIAL RECORDS,
EVEN IF THE ENERGY COMMISSION HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. DAMAGES THAT THE ENERGY
COMMISSION WILL NOT BE RESPONSIBLE FOR INCLUDE, BUT ARE
NOT LIMITED TO, LOSS OF PROFIT; LOSS OF SAVINGS OR
REVENUE; LOSS OF GOODWILL; LOSS OF USE OF THE PRODUCT
OR ANY ASSOCIATED EQUIPMENT; COST OF CAPITAL; COST OF
ANY SUBSTITUTE EQUIPMENT, FACILITIES, OR SERVICES;
DOWNTIME; THE CLAIMS OF THIRD PARTIES INCLUDING
CUSTOMERS; AND INJURY TO PROPERTY.
22. Intellectual Property Items Developed Prior to This Agreement
a. Intellectual property information is designated in an Attachment to this
Agreement.
b. The Energy Commission makes no claim to intellectual property that existed prior
T &Cs for PON -O8 -011 and PON 09 -002 25
to this Agreement and was developed without Energy Commission funding.
23. Rights of Parties Regarding Intellectual Property
a. Energy Commission's Rights in Products Original to this Agreement
Products and reports originally developed under this Agreement specified for
delivery to the Energy Commission shall become the property of the Energy
Commission. The Energy Commission may use, publish, and reproduce the
products and reports subject to the provisions of Section 21, Confidentiality, above.
b. Energy Commission's Rights to in Material Prepared for DOE
Recipient will prepare material for DOE under its ARRA agreement with DOE.
Under this Agreement with the Energy Commission, the Recipient must submit to
the. Energy Commission some of the material prepared for DOE, as identified in
Sections 6 and 16 of this document and in the Work Scope (Attachment D). The
Energy Commission reserves the right to use and reproduce and allow others to use
and reproduce all material prepared for DOE submitted to the Energy Commission
under this Agreement.
c. Limitations on Recipient Disclosure of Grant Data, Information, Reports and
Records
1) After any document submitted has become a part of the public records of the
state, Recipient may, if it wishes to do so at its own expense, publish or
utilize the same.
2) Notwithstanding the foregoing, in the event any public statement is made by
the Energy Commission as to the role of Recipient or the content of any
preliminary or Final Report of Recipient hereunder, Recipient may, if it
believes such statement to be incorrect, state publicly what it believes is
correct.
3) Recipient acknowledges that each of its officers, employees, and
subcontractors who are involved in the performance of this Agreement will
be informed about the restrictions contained herein and to abide by the
above terms.
T &Cs for PON -08 -011 and PON 09 -002 26
d. Intellectual Property Indemnity
Recipient warrants that Recipient will not, in supplying work under this
Agreement's Work Statement, knowingly infringe or misappropriate any intellectual
property right of a third party, and that it will conduct a reasonable investigation of
the intellectual property rights of third parties to avoid such infringement. Recipient
will defend and indemnify Energy Commission from and against any claim, lawsuit
or other proceeding, loss, cost, liability or expense (including court costs and
reasonable fees of attorneys and other professionals) to the extent arising out of: (i)
any third party claim that a product infringes any patent, copyright, trade secret or
other intellectual property right of any third party, or (ii) any third party claim
arising out of the negligent or other tortious act(s) or omission(s) by the Recipient,
its employees, subcontractors or agents, in connection with or related to the products
or the Recipient's performance thereof under this Agreement.
24. General Provisions
a. Governing Law
It is hereby understood and agreed that this Agreement shall be governed by the
laws of the State of California as to interpretation and performance.
b. Independent Capacity
The Recipient, and the agents and employees of the Recipient, in the performance of
this Agreement, shall act in an independent capacity and not as officers or
employees or agents of the State of California.
c. Assignment
Without the written consent of the Energy Commission in the form of a formal
written amendment, this Agreement is not assignable or transferable by Recipient
either in whole or in part.
d. Timeliness
Time is of the essence in this Agreement.
e. Unenforceable Provision
In the event that any provision of this Agreement is unenforceable or held to be
unenforceable, then the parties agree that all other provisions of this Agreement
have force and effect and shall not be affected thereby.
f. Waiver
No waiver of any breach of this Agreement shall be held to be a waiver of any other
T &Cs for PON -08-011 and PON 09 -002 27
or subsequent breach. All remedies afforded in this Agreement shall be taken and
construed as cumulative, that is, in addition to every other remedy provided therein
or by law.
g. Assurances
The Commission reserves the right to seek further written assurances from the
Recipient and its team that the work of the project under this Agreement will be
performed consistent with the terms of the Agreement.
h. Change in Business
1) Recipient shall promptly notify the Energy Commission of the occurrence
of any of the following:
a) A change of address.
b) A change in the business name or ownership.
c) The existence of any litigation or other legal proceeding affecting the
project.
d) The occurrence of any casualty or other loss to project personnel,
equipment or third parties.
e) Receipt of notice of any claim or potential claim against Recipient
for patent, copyright, trademark, service mark and/or trade secret
infringement that could affect the Energy Commission's rights.
2) Recipient shall not change or reorganize the type of business entity under
which it does business except upon prior written notification to the Energy
Commission. A change of business entity or name change requires an
amendment assigning or novating the Agreement to the changed entity. In
the event the Energy Commission is not satisfied that the new entity can
perform as the original Recipient, the Energy Commission may terminate
this Agreement as provided in the termination section.
Access to Sites and Records
The Energy Commission staff or its representatives shall have reasonable access to
all project sites and to all records related to this Agreement.
j. Survival of Terms
It is understood and agreed that certain provisions shall survive the completion or
termination date of this Agreement for any reason. The provisions include, but are
not limited to:
T &Cs for PON-08-W 1 and PON 09 -002 28
• "Payments of Funds"
• "Equipment"
• "Change in Business"
• "Disputes"
• "Termination"
• "Recordkeeping, Cost Accounting, and Auditing"
• "Indemnification"
• "Right of Parties Regarding Intellectual Property"
• Access to Sites and Records
25. Certifications and Compliance
a. Federal, State & Local Laws
Recipient shall comply with all applicable federal, state and local laws, rules and
regulations.
b. Nondiscrimination Statement of Compliance
During the performance of this Agreement, Recipient and its subcontractors shall
not unlawfully discriminate, harass or allow harassment, against any employee or
applicant for employment because of sex, sexual orientation, race, color, ancestry,
religious creed, national origin, physical disability (including HIV and AIDS),
mental disability, medical condition (cancer), age (40), marital status, and denial
of family care leave. Recipient and its subcontractors shall insure that the
evaluation and treatment of their employees and applicants for employment are
free from such discrimination and harassment. Recipient and its subcontractors
shall comply with the provisions of the Fair Employment and Housing Act
(Government Code Sections 12990 et seq.) and the applicable regulations
promulgated thereunder (California Code of Regulations, Title 2, Section 7285et
seq.). The applicable regulations of the Fair Employment and Housing
Commission implementing Government Code Section 12990 (a-t), set forth in
Chapter 5 of Division 4 of Title 2 of the California Code of Regulations are
incorporated into this Agreement by reference and made a part of it as if set forth
in full. Recipient and its subcontractors shall give written notice of their
obligations under this section to labor organizations with which they have a
collective bargaining or other Agreement.
The Recipient shall include the nondiscrimination and compliance provisions of
this section in all subcontracts to perform work under this Agreement.
c. Drug Free Workplace Certification
By signing this Agreement, the Recipient hereby certifies under penalty of perjury
under the laws of the State of California that the Recipient will comply with the
requirements of the Drug -Free Workplace Act of 1990 (Government Code Section
8350 et seq.) and will provide a drug -free workplace by taking the following
T &Cs for PON -08 -01 1 and PON 09 -002 29
actions:
1) Publish a statement notifying employees that unlawful manufacture,
distribution, dispensation, possession, or use of a controlled substance is
prohibited and specifying actions to be taken against employees for
violations as required by Government Code Section 8355(a).
2) Establish a Drug -Free Awareness Program as required by Government Code
Section 8355(b) to inform employees about all of the following:
• The dangers of drug abuse in the workplace;
• The person's or organization's policy of maintaining a drug -free
workplace;
• Any available counseling, rehabilitation, and employee assistance
programs; and
• Penalties that may be imposed upon employees for drug abuse
violations.
3) Provide, as required by Government Code Section 8355(c), that every
employee who works on the proposed project:
• Will receive a copy of the company's drug -free policy statement;
• Will agree to abide by the terms of the company's statement as a
condition of employment on the project.
Failure to comply with these requirements may result in suspension of payments
under the Agreement or termination of the Agreement or both, and the Recipient
may be ineligible for any future state awards if the Commission determines that any
of the following has occurred: (1) the Recipient has made false certification, or (2)
violates the certification by failing to carry out the requirements as noted above.
d. National Labor Relations Board Certification (Not applicable to public entities)
Recipient, by signing this Agreement, does swear under penalty of perjury that no
more than one final unappealable finding of contempt of court by a Federal Court
has been issued against the Recipient within the immediately preceding two year
period because of the Recipient's failure to comply with an order of a Federal Court
which orders the Recipient to comply with an order of the National Labor Relations
Board.
e. Child Support Compliance Act (Applicable to California Employers)
For any agreement in excess of $100,000, the Recipient acknowledges that:
1) It recognizes the importance of child and family support obligations and
shall fully comply with all applicable state and federal laws relating to
child and family support enforcement, including, but not limited to,
disclosure of information and compliance with earnings assignment
T &Cs for PON -08 -011 and PON 09 -002 30
orders, as provided in Chapter 8 (commencing with section 5200) of Part 5
of Division 9 of the Family Code; and
2) To the best of its knowledge is fully complying with the earnings
assignment orders of all employees and is providing the names of all new
employees to the New Hire Registry maintained by the California
Employment Development Department.
f. Air or Water Pollution Violation
Under the state laws, the Recipient shall not be:
1) In violation of any order or resolution not subject to review promulgated
by the State Air Resources Board or an air pollution control district;
2) Subject to cease and desist order not subject to review issued pursuant to
Section 13301 of the Water Code for violation of waste discharge
requirements or discharge prohibitions; or
3) Finally determined to be in violation of provisions of federal law relating to
air or water pollution.
g. Americans With Disabilities Act
By signing this Agreement, Recipient assures the State that it complies with the
Americans with Disabilities Act (ADA) of 1990 (42 U.S.C. 12101, et seq.), which
prohibits discrimination on the basis of disability, as well as applicable regulations
and guidelines issued pursuant to the ADA.
26. Definitions
• Affiliate of the Recipient means any natural person, corporation, partnership, joint
venture, sole proprietorship or other business entity directly or indirectly through
one or more intermediaries, controlling, controlled by, or under common control
with the Recipient. The term "control" (including the terms "controlled by" and
"under common control with ") means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a person, whether
through the ownership of voting securities, by agreement, or otherwise. For
purposes of this Agreement, it is presumed that ownership or control of the voting
power of more than fifty percent (50 %) of the voting stock or partnership interests in
an entity constitutes control of that entity.
• Agreement Period is the length of this Agreement between the Energy Commission
and the Recipient. The Recipient's Project may coincide with or extend outside the
Agreement Period.
• Confidential Information is information Recipient has submitted to the Energy
Commission and has satisfactorily identified and which the Energy Commission has
T &Cs for PON -08 -011 and PON 09 -002 31
agreed to designate as confidential pursuant to Title 20 CCR 2501 and following
(and amendments).
• Equipment is defined as having a useful life of at least one year, having an
acquisition unit cost of at least $5,000, and purchased with Energy Commission
funds. Equipment means any products, objects, machinery, apparatus,
implements or tools purchased, used or constructed within the Project, including
those products, objects, machinery, apparatus, implements or tools from which
over thirty percent (30%) of the equipment is composed of Materials purchased
for the Project. For purposes of determining depreciated value of equipment used
in the Agreement, the Project shall terminate at the end of the normal useful life of
the equipment purchased, funded and/or developed with Energy Commission
funds. The Energy Commission may determine the normal useful life of such
equipment.
• Match Funds means cash or in -kind (non -cash) contributions provided by
Recipient, subcontractors or other parties that will be used in performance of this
Agreement.
• Materials means the substances used in constructing a finished object, commodity,
device, article or product.
• Project refers to the entire effort undertaken and planned by the Recipient and
consisting of the work co- funded by the Energy Commission. The project may
coincide with or extend beyond the Agreement Term.
• Technology refers to the general subject area where the product or innovation will
be used. For example, solar thermal electric generation is a Technology area; direct
steam generation is an innovation in this Technology area.
• A Trade Secret is any formula, plan, pattern, process, tool, mechanism, compound,
procedure, production data, or compilation of information which is not patented and
which is generally known only to certain individuals with a commercial concern and
are using it to fabricate, produce or compound an article of trade or a service having
commercial value and which gives its user an opportunity to obtain a business
advantage over competitors who do not know or use it.
T &Cs for PON -08 -011 and PON 09 -002 32
PAYMENT REQUEST FORM
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ATTACHMENT 1
CONTENT AND FORMAT OF PROGRESS REPORTS
PROGRESS REPORT for
Project Title, Agreement Number
Period Covered by Report (Month, Year to Month, Year)
Recipient Project Manager:
Commission Project Manager:
What we planned to accomplish this period
[This is taken directly from the section on "What we expect to accomplish during the next
period" from the last progress report]
What we actually accomplished this period
[Concise description of major activities and accomplishments.]
How we are doing compared to our plan
[Explain the differences, if any, between the planned and the actual accomplishments. Describe
what needs to be done, if anything, to get back on track.]
Significant problems or changes
[Describe any significant technical or fiscal problems. Request approval for significant changes
in work scope, revised milestone due dates, changes in key personnel assigned to the project, or
reallocation of budget cost categories. If none, include the following statement: "Progress and
expenditures will result in project being completed on time and within budget. "]
What we expect to accomplish during the next period
[Concise description of major activities and accomplishments expected. This will be transferred
to the next progress report]]
Discussion of correspondence with DOE, including emails, meetings, reports
[Explain the nature of the correspondence, dates and contacts (name and phone number) and the
resulting outcome as it affects future funding and work]
T &Cs for PON -08 -011 and PON 09-002 38
Status of Milestones and Products:
[This should be the complete list as contained in the revised Work Statement and Exhibit B.
Highlight differences between actual and planned.]
Description Start Date Due Date Status ( %)
Planned Actual Planned Actual
Identify top 3 assessment candidates 4/15/12 4/15/12 5/1/12 5/1/12 Ontime
100%
Develop test plan 4/20/12 4/10/12 7/7/12 6/10/12 Ahead
100%
Analyze experimental data 5/1/12 6/1/12 1/1/13 2/1/13 Delayed
25%
2001 2002 2003 2004
Task 2.1
Task 2.2
Task 2.3
Task 2.4 _
Overall schedule for the project.
[Planned is solid blue, actual is red striped. This work flow diagram needs to correlate with the
schedule in Exhibit B. This example has been prepared as a Word Picture, but a comparable
Excel diagram or Gantt chart is fine.]
Overview of Fiscal Status: (See invoices for detail.)
[It is useful to track the rate of expenditure of project funds. The most useful way to do this is to
compare the actual expenditure rate with the planned expenditure rate. You get the planned rate
at the beginning of the project, so it becomes a baseline. If you change course at a critical project
review, you should show the original and the modified baseline, and then track against the new
one.]
Photographs:
[Include photographs where appropriate to document progress.] The photos shall be shot with color
print film or be very high quality digital photos (at least 300 dpi).
T &Cs for PON-08-011 and PON 09 -002 39
Evidence of Progress:
If there is a long time between interim products, then attach evidence of the progress being made
(e.g., test data, product mock -ups, field site descriptions, preliminary analyses) to the progress
reports to allow the Commission Project Manager to review progress and gauge the quality of
research results.
The progress report on each project should be 1 -2 pages long (plus photographs) and take about 1
hour to prepare for each reporting period.
T &Cs for PON-08-011 and PON 09 -002 40