Exhibit
10.53
























DE-EE0002724
 Attachment
1 – Intellectual Property Provisions
 
 GDLB-1003
 Intellectual
Property Provisions (GDLB-1003)
 Grant
- Special Data Statute
 Research,
Development, or Demonstration
 Large
Businesses, State and Local Governments, and Foreign Entities
 
 01.
      10 CFR 600.325   Appendix A
              
              Rights
      in Data - Programs Covered Under Special Data Statutes (OCT
      2003)02.
      FAR 52.227-12
              
              Patent
      Rights – Waiver (JUL 1996), as modified by 10 C.F.R. 784, DOE Patent
      Waiver Regulations03.
      FAR 52.227-23
              
              Rights
      to Proposal Data (Technical) (JUN 1987)
 
 NOTE: In
reading these provisions, any reference to “contractor” shall mean “recipient,”
and any reference to “contract” or “subcontract” shall mean “award” or
“subaward.”
  
  01.
10 CFR 600.325 Appendix A, Rights in Data - Programs Covered Under Special Data
Statutes (OCT 2003)
 
 (a)
Definitions
 
 Computer
Data Bases, as used in this clause, means a collection of data in a form capable
of, and for the purpose of, being stored in, processed, and operated on by a
computer. The term does not include computer software.
 Computer
software, as used in this clause, means (i) computer programs which are data
comprising a series of instructions, rules, routines, or statements, regardless
of the media in which recorded, that allow or cause a computer to perform a
specific operation or series of operations and (ii) data comprising source code
listings, design details, algorithms, processes, flow charts, formulae and
related material that would enable the computer program to be produced, created
or compiled. The term does not include computer data bases.
 Data, as
used in this clause, means recorded information, regardless of form or the media
on which it may be recorded. The term includes technical data and computer
software. The term does not include information incidental to administration,
such as financial, administrative, cost or pricing or management
information.
 Form,
fit, and function data, as used in this clause, means data relating to items,
components, or processes that are sufficient to enable physical and functional
interchangeability as well as data identifying source, size, configuration,
mating and attachment characteristics, functional characteristics, and
performance requirements except that for computer software it means data
identifying source, functional characteristics, and performance requirements but
specifically excludes the source code, algorithm, process, formulae, and flow
charts of the software.
 Limited
rights data, as used in this clause, means data (other than computer software)
developed at private expense that embody trade secrets or are commercial or
financial and confidential or privileged.
 Restricted
computer software, as used in this clause, means computer software developed at
private expense and that is a trade secret; is commercial or financial and
confidential or privileged; or is published copyrighted computer software;
including modifications of such computer software.
 Protected
data, as used in this clause, means technical data or commercial or financial
data first produced in the performance of the award which, if it had been
obtained from and first produced by a non-federal party, would be a trade secret
or commercial or financial information that is privileged or confidential under
the meaning of 5 U.S.C. 552(b)(4) and which data is marked as being protected
data by a party to the award.
 Protected
rights, as used in this clause, mean the rights in protected data set forth in
the Protected Rights Notice of paragraph (g) of this clause.
 Technical
data, as used in this clause, means that data which are of a scientific or
technical nature. Technical data does not include computer software, but does
include manuals and instructional materials and technical data formatted as a
computer data base.
 Unlimited
rights, as used in this clause, means the right of the Government to use,
disclose, reproduce, prepare derivative works, distribute copies to the public,
and perform publicly and display publicly, in any manner and for any purpose
whatsoever, and to have or permit others to do so.
 
 (b)
Allocation of Rights
 
 (1)
Except as provided in paragraph (c) of this clause regarding copyright, the
Government shall have unlimited rights in--
 (i) Data
specifically identified in this agreement as data to be delivered without
restriction;
 (ii)
Form, fit, and function data delivered under this agreement;
 (iii)
Data delivered under this agreement (except for restricted computer software)
that constitute manuals or instructional and training material for installation,
operation, or routine maintenance and repair of items, components, or processes
delivered or furnished for use under this agreement; and (iv) All other data
delivered under this agreement unless provided otherwise for protected data in
accordance with paragraph (g) of this clause or for limited rights data or
restricted computer software in accordance with paragraph (h) of this
clause.
 (2) The
Recipient shall have the right to--
 (i)
Protect rights in protected data delivered under this agreement in the manner
and to the extent provided in paragraph (g) of this clause;
 (ii)
Withhold from delivery those data which are limited rights data or restricted
computer software to the extent provided in paragraph (h) of this
clause;
 (iii)
Substantiate use of, add, or correct protected rights or copyrights notices and
to take other appropriate action, in accordance with paragraph (e) of this
clause; and
 (iv)
Establish claim to copyright subsisting in data first produced in the
performance of this agreement to the extent provided in subparagraph (c)(1) of
this clause.
  
  (c)
Copyright
 
 (1) Data
first produced in the performance of this agreement. Except as otherwise
specifically provided in this agreement, the Recipient may establish, without
the prior approval of the Contracting Officer, claim to copyright subsisting in
any data first produced in the performance of this agreement. If claim to
copyright is made, the Recipient shall affix the applicable copyright notice of
17 U.S.C. 401 or 402 and acknowledgment of Government sponsorship (including
agreement number) to the data when such data are delivered to the Government, as
well as when the data are published or deposited for registration as a published
work in the U.S. Copyright Office. For such copyrighted data, including computer
software, the Recipient grants to the Government, and others acting on its
behalf, a paid-up nonexclusive, irrevocable, worldwide license to reproduce,
prepare derivative works, distribute copies to the public, and
perform  publicly and display publicly, by or on behalf of the
Government, for all such data.
 (2) Data
not first produced in the performance of this agreement. The Recipient shall
not, without prior written permission of the Contracting Officer, incorporate in
data delivered under this agreement any data that are not first produced in the
performance of this agreement and that contain the copyright notice of 17 U.S.C.
401 or 402, unless the Recipient identifies such data and grants to the
Government, or acquires on its behalf, a license of the same scope as set forth
in subparagraph (c)(1) of this clause; provided, however, that if such data are
computer software, the Government shall acquire a copyright license as set forth
in subparagraph (h)(3) of this clause if included in this agreement or as
otherwise may be provided in a collateral agreement incorporated or made a part
of this agreement.
 (3)
Removal of copyright notices. The Government agrees not to remove any copyright
notices placed on data pursuant to this paragraph (c), and to include such
notices on all reproductions of the data.
 
 (d)
Release, Publication and Use of Data
 
 (1) The
Receipt shall have the right to use, release to others, reproduce, distribute,
or publish any data first produced or specifically used by the Recipient in the
performance of this contract, except to the extent such data may be subject to
the Federal export control or national security laws or regulations, or unless
otherwise provided in this paragraph of this clause or expressly set forth in
this contract.
 (2) The
Recipient agrees that to the extent it receives or is given access to data
necessary for the performance of this agreement which contain restrictive
markings, the Recipient shall treat the data in accordance with such markings
unless otherwise specifically authorized in writing by the Contracting
Officer.
 
 (e)
Unauthorized Marking of Data
 
 (1)
Notwithstanding any other provisions of this agreement concerning inspection or
acceptance, if any data delivered under this agreement are marked with the
notices specified in subparagraph (g)(2) or (g)(3) of this clause and use of
such is not authorized by this clause, or if such data bears any other
restrictive or limiting markings not authorized by this agreement, the
Contracting Officer may at any time either return the data to the Recipient or
cancel or ignore the markings. However, the following procedures shall apply
prior to canceling or ignoring the markings.
 (i) The
Contracting Officer shall make written inquiry to the Recipient affording the
Recipient 30 days from receipt of the inquiry to provide written justification
to substantiate the propriety of the markings;
 (ii) If
the Recipient fails to respond or fails to provide written justification to
substantiate the propriety of the markings within the 30-day period (or a longer
time not exceeding 90 days approved in writing by the Contracting Officer for
good cause shown), the Government shall have the right to cancel or ignore the
markings at any time after said period and the data will no longer be made
subject to any disclosure prohibitions.
 (iii) If
the Recipient provides written justification to substantiate the propriety of
the markings within the period set in subdivision (e)(1)(i) of this clause, the
Contracting Officer shall consider such written justification and determine
whether or not the markings are to be cancelled or ignored. If the Contracting
Officer determines that the markings are authorized, the Recipient shall be so
notified in writing. If the Contracting Officer determines, with concurrence of
the head of the contracting activity, that the markings are not authorized, the
Contracting Officer shall furnish the Recipient a written determination, which
determination shall become the final agency decision regarding the
appropriateness of the markings unless the Recipient files suit in a court of
competent jurisdiction within 90 days of receipt of the Contracting Officer's
decision. The Government shall continue to abide by the markings under this
subdivision (e)(1)(iii) until final resolution of the matter either by the
Contracting Officer's determination become final (in which instance the
Government shall thereafter have the right to cancel or ignore the markings at
any time and the data will no longer be made subject to any disclosure
prohibitions), or by final disposition of the matter by court decision if suit
is filed.
  
  (2) The
time limits in the procedures set forth in subparagraph (e)(1) of this clause
may be modified in accordance with agency regulations implementing the Freedom
of Information Act (5 U.S.C. 552) if necessary to respond to a request
thereunder.
 
 (f)
Omitted or Incorrect Markings
 
 (1) Data
delivered to the Government without either the limited rights or restricted
rights notice as authorized by paragraph (g) of this clause, or the copyright
notice required by paragraph (c) of this clause, shall be deemed to have been
furnished with unlimited rights, and the Government assumes no liability for the
disclosure, use, or reproduction of such data. However, to the extent the data
has not been disclosed without restriction outside the Government, the Recipient
may request, within 6 months (or a longer time approved by the Contracting
Officer for good cause shown) after delivery of such data, permission to have
notices placed on qualifying data at the Recipient's expense, and the
Contracting Officer may agree to do so if the Recipient--
 (i)
Identifies the data to which the omitted notice is to be applied;
 (ii)
Demonstrates that the omission of the notice was inadvertent;
 (iii)
Establishes that the use of the proposed notice is authorized; and
 (iv)
Acknowledges that the Government has no liability with respect to the
disclosure, use, or reproduction of any such data made prior to the addition of
the notice or resulting from the omission of the notice.
 (2) The
Contracting Officer may also:
 (i)
Permit correction at the Recipient's expense of incorrect notices if the
Recipient identifies the data on which correction of the notice is to be made,
and demonstrates that the correct notice is authorized; or
 (ii)
Correct any incorrect notices.
 
 (g)
Rights to Protected Data
 
 (1) The
Recipient may, with the concurrence of DOE, claim and mark as protected data,
any data first produced in the performance of this award that would have been
treated as a trade secret if developed at private expense. Any such claimed
“protected data'' will be clearly marked with the following Protected Rights
Notice, and will be treated in accordance with such Notice, subject to the
provisions of paragraphs (e) and (f) of this clause.
 
 PROTECTED
RIGHTS NOTICE
 
 These
protected data were produced under agreement no. DE-EE0002724 with the U.S.
Department of Energy and may not be published, disseminated, or disclosed to
others outside the Government until five (5) years from the date the data was
generated, unless express written authorization is obtained from the recipient.
Upon expiration of the period of protection set forth in this Notice, the
Government shall have unlimited rights in this data. This Notice shall be marked
on any reproduction of this data, in whole or in part.
 
 (2) Any
such marked Protected Data may be disclosed under obligations of confidentiality
for the following purposes:
 (a) For
evaluation purposes under the restriction that the “Protected Data” be retained
in confidence and not be further disclosed; or
 (b) To
subcontractors or other team members performing work under the Government's
program
 (3) The
obligations of confidentiality and restrictions on publication and dissemination
shall end for any Protected Data.
 (a) At
the end of the protected period;
 (b) If
the data becomes publicly known or available from other sources without a breach
of the obligation of confidentiality with respect to the Protected
Data;
 (c) If
the same data is independently developed by someone who did not have access to
the Protected Data and such data is made available without obligations of
confidentiality; or
 (d) If
the Recipient disseminates or authorizes another to disseminate such data
without obligations of confidentiality.
 (4)
However, the Recipient agrees that the following types of data are not
considered to be protected and shall be provided to the Government when required
by this award without any claim that the data are Protected Data. The parties
agree that notwithstanding the following lists of types of data, nothing
precludes the Government from seeking delivery of additional data in accordance
with this award, or from making publicly available additional nonprotected data,
nor does the following list constitute any admission by the Government that
technical data not on the list is Protected Data.
  
  List of
nonprotected data:  "Information as defined in the Reporting
Requirements Checklist, specifically, within the Final Progress
Report."
 (5) The
Government's sole obligation with respect to any protected data shall be as set
forth in this paragraph (g).
 
 (h)
Protection of Limited Rights Data
 
 When data
other than that listed in subparagraphs (b)(1)(i), (ii), and (iii) of this
clause are specified to be delivered under this agreement and such data qualify
as either limited rights data or restricted computer software, the Recipient, if
the Recipient desires to continue protection of such data, shall withhold such
data and not furnish them to the Government under this agreement. As a condition
to this withholding the Recipient shall identify the data being withheld and
furnish form, fit, and function data in lieu thereof.
 
 (i)
Subaward/Contract
 
 The
Recipient has the responsibility to obtain from its subrecipients/contractors
all data and rights therein necessary to fulfill the Recipient's obligations to
the Government under this agreement. If a subrecipient/contractor refuses to
accept terms affording the Government such rights, the Recipient shall promptly
bring such refusal to the attention of the Contracting Officer and not proceed
with subaward/contract award without further authorization.
 
 (j)
Additional Data Requirements
 
 In
addition to the data specified elsewhere in this agreement to be delivered, the
Contracting Officer may, at anytime during agreement performance or within a
period of 3 years after acceptance of all items to be delivered under this
agreement, order any data first produced or specifically used in the performance
of this agreement. This clause is applicable to all data ordered under this
subparagraph. Nothing contained in this subparagraph shall require the Recipient
to deliver any data the withholding of which is authorized by this clause or
data which are specifically identified in this agreement as not subject to this
clause. When data are to be delivered under this subparagraph, the Recipient
will be compensated for converting the data into the prescribed form, for
reproduction, and for delivery.
  (k) The
Recipient agrees, except as may be otherwise specified in this agreement for
specific data items listed as not subject to this paragraph, that the
Contracting Officer or an authorized representative may, up to three years after
acceptance of all items to be delivered under this contract, inspect at the
Recipient's facility any data withheld pursuant to paragraph (h) of this clause,
for purposes of verifying the Recipient's assertion pertaining to the limited
rights or restricted rights status of the data or for evaluating work
performance. Where the Recipient whose data are to be inspected demonstrates to
the Contracting Officer that there would be a possible conflict of interest if
the inspection were made by a particular representative, the Contracting Officer
shall designate an alternate inspector.
     02.
FAR 52.227-12 Patent Rights – Waiver (JUL 1996), as modified by 10 C.F.R. 784,
DOE Patent Waiver Regulations
 
 (a)
              Definitions.
  As used
in this clause:
  Background patent
means a domestic patent covering an invention or discovery which is not a
Subject Invention and which is owned or controlled by the Contractor at any time
through the completion of this contract:
  (i)
              Which
      the Contractor, but not the Government, has the right to license to others
      without obligation to pay royalties thereon, and(ii)
              Infringement
      of which cannot reasonably be avoided upon the practice of any specific
      process, method, machine, manufacture or composition of matter (including
      relatively minor modifications thereof) which is a subject of the
      research, development, or demonstration work performed under this
      contract.
  Contract means any
contract, grant, agreement, understanding, or other arrangement, which includes
research, development, or demonstration work, and includes any assignment or
substitution of parties.
 
 DOE patent waiver
regulations means the Department of Energy patent waiver regulations at
10 CFR Part 784.
  
  Invention as used in
this clause, means any invention or discovery which is or may be patentable or
otherwise protectable under Title 35 of the United States Code or any novel
variety of plant that is or may be protectable under the Plant Variety
Protection Act (7 U.S.C. 2321 et seq.).
 
 Made when used in
relation to any invention means the conception or first actual reduction to
practice of such invention.
 
 Nonprofit
organization means a university or other institution of higher education
or an organization of the type described in section 501(c)(3) of the Internal
Revenue Code of 1954 (26 U.S.C. 501(c)) and exempt from taxation under section
501(a) of the Internal Revenue Code (26 U.S.C. 501(a)) or any nonprofit
scientific or educational organization qualified under a state nonprofit
organization statute.
 
 Patent Counsel means
the Department of Energy Patent Counsel assisting the procuring
activity.
 
 Practical application
means to manufacture, in the case of a composition or product; to practice, in
the case of a process or method; or to operate, in the case of a machine or
system; and, in each case, under such conditions as to establish that the
invention is being utilized and that its benefits are, to the extent permitted
by law or Government regulations, available to the public on reasonable
terms.
 
 Secretary means the
Secretary of Energy.
 
 Small business firm
means a small business concern as defined at Section 2 of the Pub. L. 85-536 (15
U.S.C. 632) and implementing regulations of the Administrator of the Small
Business Administration.  For the purpose of this clause, the size
standards for small business concerns involved in Government procurement and
subcontracting at 13 CFR 121.3-8 and 13 CFR 121.3-12, respectively, will be
used.
 
 Subject invention
means any invention of the Contractor conceived or first actually reduced to
practice in the course of or under this contract, provided that in the case of a
variety of plant, the date of determination (as defined in section 41(d) of the
Plant Variety Protection Act (7 U.S.C. 2401(d)) must also occur during the
period of contract performance.
 
 (b)
              Allocation
      of principal rights.
  Whereas
DOE has granted a waiver of rights to subject inventions to the Contractor, the
Contractor may elect to retain the entire right, title, and interest throughout
the world to each subject invention subject to the provisions of this clause and
35 U.S.C. ''202 and 203.  With respect to any subject invention in
which the Contractor elects to retain title, the Federal Government shall have a
nonexclusive, nontransferable, irrevocable, paid-up license to practice or have
practiced for or on behalf of the United States the subject invention throughout
the world.
 (c)
                Invention
      disclosure, election of title, and filing of patent applications by
      Contractor.
 
 (1)           The
Contractor shall disclose each subject invention to the Patent Counsel within
six months after conception or first actual reduction to practice, whichever
occurs first in the course of or under this contract, but in any event, prior to
any sale, public use, or public disclosure of such invention known to the
Contractor.  The disclosure to the Patent Counsel shall be in the form
of a written report and shall identify the inventors and the contract under
which the invention was made.  It shall be sufficiently complete in
technical detail to convey a clear understanding, to the extent known at the
time of the disclosure, of the nature, purpose, operation, and physical,
chemical, biological, or electrical characteristics of the
invention.  The disclosure shall also identify any publication, on
sale, or public use of the invention and whether a manuscript describing the
invention has been submitted for publication and, if so, whether it has been
accepted for publication at the time of disclosure.  In addition,
after disclosure to the Patent Counsel, the Contractor shall promptly notify the
Patent Counsel of the acceptance of any manuscript describing the invention for
publication or of any on sale or public use planned by the
Contractor.
 
 (2)           The
Contractor shall elect in writing whether or not to retain title to any such
invention by notifying the Patent Counsel at the time of disclosure or within 8
months of disclosure, as to those countries (including the United States) in
which the Contractor will retain title; provided, that in any case where
publication, on sale, or public use has initiated the 1-year statutory period
wherein valid patent protection can still be obtained in the United States, the
period of election of title may be shortened by the Agency to a date that is no
more than 60 days prior to the end of the statutory period.  The
Contractor shall notify the Patent Counsel as to those countries (including the
United States) in which the Contractor will retain title not later than 60 days
prior to the end of the statutory period.
 
 
  (3)           The
Contractor shall file its United States patent application on an elected
invention within 1 year after election, but not later than at least 60 days
prior to the end of any statutory period wherein valid patent protection can be
obtained in the United States after a publication, on sale, or public
use.  The Contractor shall file patent applications in additional
countries (including the European Patent Office and under the Patent Cooperation
Treaty) within either 10 months of the corresponding initial patent application
or 6 months from the date permission is granted by the Commissioner of Patents
and Trademarks to file foreign patent applications where foreign filing has been
prohibited by a Secrecy Order.
 
 (4)           Requests
for extension of the time for disclosure to the Patent Counsel, election, and
filing may, at the discretion of DOE, be granted, and will normally be granted
unless the Patent Counsel has reason to believe that a particular extension
would prejudice the Government's interest.
 
 (d)
              Conditions
      when the Government may obtain title notwithstanding an existing
      waiver.
  The
Contractor shall convey to DOE, upon written request, title to any subject
invention--
 
 (1)           If
the Contractor elects not to retain title to a subject invention;
 
 (2)           If
the Contractor fails to disclose or elect the subject invention within the times
specified in paragraph (c) of this clause (provided that DOE may only request
title within 60 days after learning of the Contractor's failure to report or
elect within the specified times);
 
 (3)           In
those countries in which the Contractor fails to file patent applications within
the times specified in paragraph (c) of this clause; provided, however, that if
the Contractor has filed a patent application in a country after the times
specified in paragraph (c) of this clause, but prior to its receipt of the
written request of DOE, the Contractor shall continue to retain title in that
country;
  (4)           In
any country in which the Contractor decides not to continue the prosecution of
any application for, to pay the maintenance fees on, or defend in reexamination
or opposition proceeding on, a patent on a subject invention; or
 
 (5)           If
the waiver authorizing the use of this clause is terminated as provided in
paragraph (p) of this clause.
 
 (e)
              Minimum
      rights to Contractor when the Government retains
  title.
 
 (1)           The
Contractor shall retain a nonexclusive, royalty-free license throughout the
world in each subject invention to which the Government obtains title under
paragraph (d) of this clause except if the Contractor fails to disclose the
subject invention within the times specified in paragraph (c) of this
clause.  The Contractor's license extends to its domestic subsidiaries
and affiliates, if any, within the corporate structure of which the Contractor
is a part and includes the right to grant sublicenses of the same scope to the
extent the Contractor was legally obligated to do so at the time the contract
was awarded.  The license is transferable only with the approval of
DOE except when transferred to the successor of that part of the Contractor's
business to which the invention pertains.
 
 (2)           The
Contractor's domestic license may be revoked or modified by DOE to the extent
necessary to achieve expeditious practical application of the subject invention
pursuant to an application for an exclusive license submitted in accordance with
applicable provisions in 37 CFR part 404 and DOE licensing
regulations.  This license shall not be revoked in that field of use
or the geographical areas in which the Contractor has achieved practical
application and continues to make the benefits of the invention reasonably
accessible to the public.  The license in any foreign country may be
revoked or modified at the discretion of DOE to the extent the Contractor, its
licensees, or its domestic subsidiaries or affiliates have failed to achieve
practical application in that foreign country.
 
 (3)           Before
revocation or modification of the license, DOE shall furnish the Contractor a
written notice of its intention to revoke or modify the license, and the
Contractor shall be allowed 30 days (or such other time as may be authorized by
DOE for good cause shown by the Contractor) after the notice to show cause why
the license should not be revoked or modified.  The Contractor has the
right to appeal, in accordance with applicable agency licensing regulations and
37 CFR part 404 concerning the licensing of Government-owned inventions, any
decision concerning the revocation or modification of its license.
  
  (f)
              Contractor
      action to protect the Government's
interest.
 
 (1)           The
Contractor agrees to execute or to have executed and promptly deliver to DOE all
instruments necessary to:
 
 (i)      establish
or confirm the rights the Government has throughout the world in those subject
inventions to which the Contractor elects to retain title, and
 
 (ii)           convey
title to DOE when requested under paragraphs (d) and (n)(2) of this clause, and
to enable the Government to obtain patent protection throughout the world in
that subject invention.
 
 (2)           The
Contractor agrees to require, by written agreement, its employees, other than
clerical and nontechnical employees, to disclose promptly in writing to
personnel identified as responsible for the administration of patent matters and
in a format suggested by the Contractor each subject invention made under
contract in order that the Contractor can comply with the disclosure provisions
of paragraph (c) of this clause, and to execute all papers necessary to
file  patent applications on subject inventions and to establish the
Government's rights in the subject inventions.  This disclosure format
should require, as a minimum, the information required by paragraph (c)(1) of
this clause.  The Contractor shall instruct such employees through
employee agreements or other suitable educational programs on the importance of
reporting inventions in sufficient time to permit the filing of patent
applications prior to U.S. or foreign statutory bars.
 
 (3)           The
Contractor shall notify DOE of any decision not to continue the prosecution of a
patent application, pay maintenance fees, or defend in a reexamination or
opposition proceeding on a patent, in any country, not less than 30 days before
the expiration of the response period required by the relevant patent
office.
 
 (4)           The
Contractor agrees to include, within the specification of any United States
patent application and any patent issuing thereon covering a subject invention,
the following statement:  "This invention was made with Government
support under (identify the contract) awarded by DOE.  The Government
has certain rights in this invention."
 
 (5)           The
Contractor shall establish and maintain active and effective procedures to
assure that subject inventions are promptly identified and disclosed to
Contractor personnel responsible for patent matters within 6 months of
conception and/or first actual reduction to practice, whichever occurs first in
the course of or under this contract.  These procedures shall include
the maintenance of laboratory notebooks or equivalent records and other records
as are reasonably necessary to document the conception and/or the first actual
reduction to practice of subject inventions, and records that show that the
procedures for identifying and disclosing the inventions are
followed.  Upon request, the Contractor shall furnish the Patent
Counsel a description of such procedures for evaluation and for determination as
to their effectiveness.
 
 (6)           The
Contractor agrees, when licensing a subject invention, to arrange to avoid
royalty charges on acquisitions involving Government funds, including funds
derived through Military Assistance Program of the Government or otherwise
derived through the Government; to refund any amounts received as royalty
charges on the subject invention in acquisitions for, or on behalf of, the
Government; and to provide for such refund in any instrument transferring rights
in the invention to any party.
 
 (7)           The
Contractor shall furnish the Patent Counsel the following:
 
 (i)      Interim
reports every 12 months (or such longer period as may be specified by the Patent
Counsel) from the date of the contract, listing subject inventions during that
period and stating that all subject inventions have been disclosed or that there
are no such inventions.
 
 (ii)           A
final report, within 3 months after completion of the contracted work, listing
all subject inventions or stating that there were no such inventions, and
listing all subcontracts at any tier containing a patent rights clause or
certifying that there were no such subcontracts.
 
 (8)           The
Contractor shall promptly notify the Patent Counsel in writing upon the award of
any subcontract at any tier containing a patent rights clause by identifying the
subcontractor, the applicable patent rights clause, the work to be performed
under the subcontract, and the dates of award and estimated
completion.  Upon request of the Patent Counsel, the Contractor shall
furnish a copy of such subcontract, and no more frequently than annually, a
listing of the subcontracts that have been awarded.
  
  (9)           The
Contractor shall provide, upon request, the filing  date, serial
number and title, a copy of the patent application (including an
English-language version if filed in a language other than English), and patent
number and issue date for any subject invention for which the Contractor has
retained title.
 
 (10)           Upon
request, the Contractor shall furnish the Government an irrevocable power to
inspect and make copies of the patent application file.
 
 (g)
              Subcontracts.
 
 (1)           Unless
otherwise directed by the Contracting Officer, the Contractor shall include the
clause at 48 CFR 952.227-11, suitably modified to identify the parties, in all
subcontracts, regardless of tier, for experimental, developmental, or research
work to be performed by a small business firm or nonprofit organization, except
where the work of the subcontract is subject to an Exceptional Circumstances
Determination by DOE.  In all other subcontracts, regardless of tier,
for experimental, developmental, demonstration, or research work, the Contractor
shall include the patent rights clause at 48 CFR 952.227-13 (suitably modified
to identify the parties).
 
 (2)           The
Contractor shall not, as part of the consideration for awarding the subcontract,
obtain rights in the subcontractor's subject inventions.
 
 (3)           In
the case of subcontractors at any tier, the Department, the subcontractor, and
Contractor agree that the mutual obligations of the parties created by this
clause constitute a contract between the subcontractor and the Department with
respect to those matters covered by this clause.
 
 (4)           The
Contractor shall promptly notify the Contracting Officer in writing upon the
award of any subcontract at any tier containing a patent rights clause by
identifying the subcontractor, the applicable patent rights clause, the work to
be performed under the subcontract, and the dates of award and estimated
completion.  Upon request of the Contracting Officer, the Contracting
Officer shall furnish a copy of such subcontract, and, no more frequently than
annually, a listing of the subcontracts that have been awarded.
 
 (h)
              Reporting
      on utilization of subject
inventions.
 
 The
Contractor agrees to submit on request periodic reports no more frequently than
annually on the utilization of a subject invention or on efforts at obtaining
such utilization that are being made by the Contractor and any of its licensees
or assignees.  Such reports shall include information regarding the
status of development, date of first commercial sale or use, gross royalties
received by the Contractor, and such other data and information as DOE may
reasonably specify.  The Contractor also agrees to provide additional
reports as may be requested by DOE in connection with any march-in proceedings
undertaken by DOE in accordance with paragraph (j) of this clause.  To
the extent data or information supplied under this paragraph is considered by
the Contractor, its licensee or assignee to be privileged and confidential and
is so marked, DOE agrees that, to the extent permitted by law, it shall not
disclose such information to persons outside the Government.
 
 (i)
              Preference
      for United States industry.
 
 Notwithstanding
any other provision of this clause, the Contractor agrees that neither it nor
any assignee will grant to any person the exclusive right to use or sell any
subject invention in the United States unless such person agrees that any
products embodying the subject invention will be manufactured substantially in
the United States.  However, in individual cases, the requirement for
such an agreement may be waived by DOE upon a showing by the Contractor or its
assignee that reasonable but unsuccessful efforts have been made to grant
licenses on similar terms to potential licensees that would be likely to
manufacture substantially in the United States or that under the circumstances
domestic manufacture is not commercially feasible.
  
  (j)
              March-in
      rights.
 
 The
Contractor agrees that with respect to any subject invention in which it has
acquired title, DOE has the right in accordance with the procedures in 48 CFR
27.304-1(g) to require the Contractor, an assignee, or exclusive licensee of a
subject invention to grant a nonexclusive, partially exclusive, or exclusive
license in any field of use to a responsible applicant or applicants, upon terms
that are reasonable under the circumstances, and if the Contractor, assignee, or
exclusive licensee refuses such a request, DOE has the right to grant such a
license itself if DOE determines that--
 
 (1)           Such
action is necessary because the Contractor or assignee has not taken, or is not
expected to take within a reasonable time, effective steps to achieve practical
application of the subject invention in such field of use;
 
 (2)           Such
action is necessary to alleviate health or safety needs which are not reasonably
satisfied by the Contractor, assignee, or their licensees;
  (3)           Such
action is necessary to meet requirements for public use specified by Federal
regulations and such requirements are not reasonably satisfied by the
Contractor, assignee, or licensees; or
 
 (4)           Such
action is necessary because the agreement required by paragraph (i) of this
clause has not been obtained or waived or because a licensee of the exclusive
right to use or sell any subject invention in the United States is in breach of
such agreement.
 (k)
                Background
      Patents [reserved]
 
 (l)
              Communications.
  All
reports and notifications required by this clause shall be submitted to the
Patent Counsel unless otherwise instructed.
 
 (m)
              Other
      inventions.
  Nothing
contained in this clause shall be deemed to grant to the Government any rights
with respect to any invention other than a subject invention, except with
respect to Background Patents, above.
 
 (n)
              Examination
      of records relating to inventions.
 
 (1)           The
Contracting Officer or any authorized representative shall, until 3 years after
final payment under this contract, have the right to examine any books
(including laboratory notebooks), records, and documents of the Contractor
relating to the conception or first actual reduction to practice of inventions
in the same field of technology as the work under this contract to determine
whether--
 
 (i)      Any
such inventions are subject inventions;
  (ii)     The
Contractor has established and maintains the procedures required by paragraphs
(f)(2) and (f)(5) of this clause; and
 (iii)    The
Contractor and its inventor have complied with the procedures.
 
 (2)           If
the Contracting Officer determines that an inventor has not disclosed a subject
invention to the Contractor in accordance with the procedures required by
paragraph (f)(5) of this clause, the Contracting Officer may, within 60 days
after the determination, request title in accordance with paragraphs (d)(2) and
(d)(3) of this clause.  However, if the Contractor establishes that
the failure to disclose did not result from the Contractor's fault or
negligence, the Contracting Officer shall not request title.
 
 (3)           If
the Contracting Officer learns of an unreported Contractor invention which the
Contracting Officer believes may be a subject invention, the Contractor may be
required to disclose the invention to DOE for a determination of ownership
rights.
 
 (4)           Any
examination of records under this paragraph shall be conducted in such a manner
as to protect the confidentiality of the information involved.
  
  (o)
              Withholding
      of payment.
  NOTE:  This
paragraph does not apply to subcontracts or grants.
 
 (1)           Any
time before final payment under this contract, the Contracting Officer may, in
the Government's interest, withhold payment until a reserve not exceeding
$50,000 or 5 percent of the amount of the contract, whichever is less, shall
have been set aside if, in the Contracting Officer's opinion, the Contractor
fails to--
 (i)           
Establish, maintain, and follow effective procedures for identifying and
disclosing subject inventions pursuant to paragraph (f)(5) of this
clause;
 (ii)           Disclose
any subject invention pursuant to paragraph (c)(1) of this clause;
 (iii)         
Deliver acceptable interim reports pursuant to paragraph (f)(7)(I) of this
clause;
 (iv)          Provide
the information regarding subcontracts pursuant to paragraph (f)(6) of this
clause; or
 (v)           Convey
to the Government, using a DOE-approved form, the title and/or rights of the
Government in each subject invention as required by this clause.
 
 (2)           Such
reserve or balance shall be withheld until the Contracting Officer has
determined that the Contractor has rectified whatever deficiencies exist and has
delivered all reports, disclosures, and other information required by this
clause.
 
 (3)           Final
payment under this contract shall not be made before the Contractor delivers to
the Patent Counsel all disclosures of subject inventions required by paragraph
(c)(1) of this clause, an acceptable final report pursuant to paragraph
(f)(7)(ii) of this clause, and all past due confirmatory instruments, and the
Patent Counsel has issued a patent clearance certification to the Contracting
Officer.
 
 (4)           The
Contracting Officer may decrease or increase the sums withheld up to the maximum
authorized above.  If the maximum amount authorized above is already
being withheld under other provisions of the contract, no additional amount
shall be withheld under this paragraph.  The withholding of any amount
or the subsequent payment thereof shall not be construed as a waiver of any
Government right.
 
 (p)
              Waiver
      Terminations.
 
 Any
waiver granted to the Contractor authorizing the use of this clause (including
any retention of rights pursuant thereto by the Contractor under paragraph (b)
of this clause) may be terminated at the discretion of the Secretary or his
designee in whole or in part, if the request for waiver by the Contractor is
found to contain false material statements or nondisclosure of material facts,
and such were specifically relied upon by DOE in reaching the waiver
determination.  Prior to any such termination, the Contractor will be
given written notice stating the extent of such proposed termination and the
reasons therefore, and a period of 30 days, or such longer period as the
Secretary or his designee shall determine for good cause shown in writing, to
show cause why the waiver of rights should not be so terminated.  Any
waiver termination shall be subject to the Contractor's minimum license as
provided in paragraph (e) of this clause.
 
 (q)
              Atomic
      Energy.
  No claim
for pecuniary award or compensation under the provisions of the Atomic Energy
Act of 1954, as amended, shall be asserted by the Contractor or its employees
with respect to any invention or discovery made or conceived in the course of or
under this contract.
 
 (r)
              Publication.
 
 It is
recognized that during the course of work under this contract, the contractor or
its employees may from time to time desire to release or publish information
regarding scientific or technical developments conceived or first actually
reduced to practice in the course of or under this contract.  In order
that public disclosure of such information will not adversely affect the patent
interests of DOE or the contractor, approval for release of publication shall be
secured from Patent Counsel prior to any such release or
publication.  In appropriate circumstances, and after consultation
with the contractor, Patent Counsel may waive the right of prepublication
review.
  
  (s)
              Forfeiture
      of rights in unreported subject
inventions.
 
 (1)           The
contractor shall forfeit and assign to the Government, at the request of the
Secretary of Energy or designee, all rights in any subject invention which the
contractor fails to report to Patent Counsel within six months after the time
the contractor:
 (i)
              Files
      or causes to be filed a United States or foreign patent application
      thereon; or
 (ii)     Submits
the final report required by paragraph (f)(7)(ii) of this clause, whichever is
later.
 
 (2)           However,
the Contractor shall not forfeit rights in a subject invention if, within the
time specified in paragraph (n)(1) of this clause, the contractor:
 (i)      Prepares
a written decision based upon a review of the record that the invention was
neither conceived nor first actually reduced to practice in the course of or
under the contract and delivers the decision to Patent Counsel, with a copy to
the Contracting Officer; or
 (ii)     Contending
that the subject invention is not a subject invention, the contractor
nevertheless discloses the subject invention and all facts pertinent to this
contention to the Patent Counsel, with a copy to the Contracting Officer,
or
 (iii)    Establishes
that the failure to disclose did not result from the contractor's fault or
negligence.
 
 (3)           Pending
written assignment of the patent application and patents on a subject invention
determined by the Contracting Officer to be forfeited (such determination to be
a Final Decision under the Disputes clause of this contract), the contractor
shall be deemed to hold the invention and the patent applications and patents
pertaining thereto in trust for the Government.  The forfeiture
provision of this paragraph shall be in addition to and shall not supersede any
other rights and remedies which the Government may have with respect to subject
inventions.
 (t)
                U.
      S. Competitiveness
 
 The
Contractor agrees that any products embodying any waived invention or produced
through the use of any waived invention will be manufactured substantially in
the United States unless the Contractor can show to the satisfaction of the DOE
that it is not commercially feasible to do so.  In the event the DOE
agrees to foreign manufacture, there will be a requirement that the Government's
support of the technology be recognized in some appropriate manner, e.g.,
recoupment of the Government's investment, etc.  The Contractor agrees
that it will not license, assign or otherwise transfer any waived invention to
any entity unless that entity agrees to these same
requirements.  Should the Contractor or other such entity receiving
rights in the invention undergo a change in ownership amounting to a controlling
interest, then the waiver, assignment, license, or other transfer of rights in
the waived invention is suspended until approved in writing by the
DOE.
 
 
 03.
FAR 52.227-23 Rights to Proposal Data (Technical) (JUN 1987)
 
 Except
for data contained on pages 5 and 8, it is agreed that as a condition of award
of this contract, and notwithstanding the conditions of any notice appearing
thereon, the Government shall have unlimited rights (as defined in the "Rights
in Data--General" clause contained in this contract) in and to the technical
data contained in the proposal dated May 18, 2009, upon which this contract is
based.


STATEMENT
OF PROJECT OBJECTIVES
 “RECOVERY ACT EXPANDING THE FIRST
SIGNIFICANT U.S.-BASED MANUFACTURING
 CAPACITY FOR AUTOMOBILE-GRADE LITHIUM
BATTERIES”
 
 A.
              PROJECT
      OBJECTIVES
 
 The goal of this project is to expand
US-based manufacturing capacity for automobile-grade lithium ion
batteries.
 
 B.
              PROJECT
      SCOPE
 
 The
project is comprised of tasks associated with acquisition and upgrade of
manufacturing facilities, acquisition and upgrade of manufacturing
equipment,  integration of manufacturing lines to provide high-volume
output, selection of material suppliers, and recipient certification as a tier I
auto parts supplier.
 
 C.
              TASKS TO BE
      PERFORMED
 
 Task
1.0 Purchase and expand the
Recipient’s existing site locations and equipment capacity
 
 The Recipient shall optimize
existing sites for cell manufacturingandpack assembly.  The recipient shall
purchasea third sitefor pack assembly, warehousing and cell
manufacturing. The
Recipient shall enhanceexistingequipment capabilitiesand purchase new equipmentat the sitesas required.
 
 Task
2.0 Develop competitive mass
production and engineering capability
 The Recipient shall enhanceengineeringcapability to address multiple
automotive requirementsviaahigh-volume, high-speed automated
production line for cell manufacturing.  The Recipient shall
implementahigh-volume, lean-manufacturing
production line for battery system assemblyby establishinga prototype production line,
optimizingit, and then deployingsimilar production linesin order to meet customer capacity
requirements.The Recipient shall recruit and train necessary human capital
resourcesto supportmass production battery
output.
 
 Task 3.0Enhance Supply Chain and Promote Cost
Competitiveness of Base Materials
 The Recipient shall identify key suppliersand materials for domestic
sourcing.The Recipient shall conductthequalification process for suppliers and
materials for the Recipient Lithium-Ion Battery manufacturing.The recipient will implement strategies
that prioritize the selection of domestic suppliers whenever feasible withinpricing, supply, and quality standard
requirements.
 
 
  Task
4.0 Position the Recipient as a
Tier 1 auto parts supplier
 The recipient shall implement
strategies, achieve standards, and complete certifications required to become a
tier I auto parts supplier.
 
 
 D.  DELIVERABLES
 
 Periodic
and final reports shall be submitted in accordance with the Federal Assistance
Reporting Checklist and the instructions accompanying the
Checklist.  In addition to reports listed in the Checklist, the
Recipient shall submit the following directly to the DOE Program Manager
identified in Block 15. of the Assistance Agreement Cover Page.
 
 1)Fifty (50)battery cells manufactured using
      material or components made by the completed manufacturing facility for low rate
      initial production for validation purposes;
 2) Material/component screening
      test plan to meet customer specification;
 3) Material/component screening
      test report;
 4) Cell or battery test plan to
      meet customer specification;and,
 5) Cell or battery performance and
      abuse tests and associated test report.
 
 E.  BRIEFINGS/PRESENTATIONS
 
 The
Recipient shall prepare detailed briefings for presentation to the Project
Manager and other DOE officials to explain the plans, progress, and results of
the technical effort.  These briefings shall be made at one of the
DOE/NETL locations (Washington DC / Pittsburgh, PA / Morgantown, WV) or at one
of the project team sites, as appropriate.
 
 The
following briefings are currently planned:
 1) In
person kickoff meeting to be held within 30 calendar days of award
receipt.
 2) In
person briefing to review final results of program after
completion.
 3) In
person technical presentations as requested to support annual DOE Program Merit
Review meetings.
 4)
Quarterly progress briefing.


DOE F
4600.2
 (5/09)
 All Other
Editions Are Obsolete
 ATTACHMENT
3
  U.S.
Department of Energy
 FEDERAL
ASSISTANCE REPORTING CHECKLIST
 AND
INSTRUCTIONS
  1.
      Identification Number:
                DE-EE0002724
              2.
      Program/Project Title:
                "Recovery
      Act Expanding the First Significant US-based Manufacturing Capacity for
      Automobile-Grade Lithium Batteries"3.
      Recipient:
                EnerDel, Inc.4.
      Reporting Requirements:
                
                A.
      MANAGEMENT REPORTING
                xProgress
      Report
                xSpecial
      Status Report
              Frequency
              No.
      of Copies
              AddresseesQ,
      F*
                
                A
              Upload
      only 1 copy to the address in the next column at the interval specified in
      the previous column.
              https://www.eere-pmc.energy.gov/SubmitReports.aspxB.
      SCIENTIFIC/TECHNICAL REPORTING
                (Reports/Products
      must be submitted with appropriate DOE F 241.  The 241 forms are
      available at www.osti.gov/elink)
                Report/Product                                                          Form
                o Final
      Scientific/Technical
      Report                                      DOE
      F 241.3
                oConference
      papers/proceedings*                                       DOE
      F 241.3
                o Software/Manual                                                              
      DOE F 241.4
                o Other
      (see Special
      Instructions)                                        DOE
      F 241.3
                *
      Scientific and technical
      conferences only
              
              
              http://www.osti.gov/elink-2413
                http://www.osti.gov/elink-2413
                http://www.osti.gov/estsc/241-4pre.jspC.
      FINANCIAL REPORTING
                x SF-425,
      Federal Financial Report
              Q, F
              
              https://www.eere-pmc.energy.gov/SubmitReports.aspxD.
      CLOSEOUT REPORTING
                x Patent
      Certification
                x Property
      Certification
                x Other
      (see Special Instructions)
              F
                F
              
              https://www.eere-pmc.energy.gov/SubmitReports.aspxE.
      OTHER REPORTING
                x Annual
      Indirect Cost Proposal
                x Annual
      Inventory Report of Federally Owned Property, if any
                x Other
              A
                A
                A**
              
              https://www.eere-pmc.energy.gov/SubmitReports.aspxF.
      AMERICAN RECOVERY AND REINVESTMENT ACT REPORTING
                xReporting
      and Registration Requirements
              A
              See
      instructions
              http://www.federalreporting.govFREQUENCY
      CODES AND DUE DATES:
                A - Within 5 calendar days after events or as specified.
                F -  Final; 90 calendar days after expiration or
      termination of the award.
                Y - Yearly; 90 days after the end of the reporting
      period.
              S
      -   Semiannually; within 30 days after end of reporting
      period.
                Q
      -  Quarterly; within 30 days after end of the reporting
      period.5.Special
      Instructions: Forms are available at https://www.eere-pmc.energy.gov/forms.aspx.
                
                *The
      Recipient shall submit a Final Progress Report which shall document and
      summarize all work performed during the award period in a comprehensive
      manner. This report shall not merely be a compilation of information
      contained in previously submitted quarterly reports, but shall present
      that information in an integrated fashion. It must contain an estimate of
      total production capacity for the facility(ies) funded by this award,
      including production capacity of any material or component
      sub-awards.  It shall also present the final production cost
      estimates of end products manufactured in the completed manufacturing
      facility, the unit test plan based on at least one OEM specification, as
      well as unit performance and abuse test results.
                **
      Other reports as specified in the Deliverables section of the
      SOPO.
  
  Federal
Assistance Reporting Instructions (5/09)
 
 
 A.   MANAGEMENT
REPORTING
 
 Progress
      Report
 
 The
Progress Report must provide a concise narrative assessment of the status of
work and include the following information and any other information identified
under Special Instructions on the Federal Assistance Reporting
Checklist:
  1.
                The
      DOE award number and name of the
recipient.
 
 2.
                The
      project title and name of the project director/principal
      investigator.
 
 3.
                Date
      of report and period covered by the
report.
 
 4.
                A
      comparison of the actual accomplishments with the goals and objectives
      established for the period and reasons why the established goals were not
      met.
 
 5.
                A
      discussion of what was accomplished under these goals during this
      reporting period, including major activities, significant results, major
      findings or conclusions, key outcomes or other
      achievements.  This section should not contain any proprietary
      data or other information not subject to public release.  If
      such information is important to reporting progress, do not include the
      information, but include a note in the report advising the reader to
      contact the Principal Investigator or the Project Director for further
      information.
 
 6.
                Cost
      Status.  Show approved budget by budget period and actual costs
      incurred.  If cost sharing is required break out by DOE share,
      recipient share, and total costs.
 
 7.
                Schedule
      Status. List milestones, anticipated completion dates and actual
      completion dates.  If you submitted a project management plan
      with your application, you must use this plan to report schedule and
      budget variance.  You may use your own project management system
      to provide this information.
 
 8.
                Any
      changes in approach or aims and reasons for change.  Remember
      significant changes to the objectives and scope require prior approval by
      the contracting officer.
 
 9.
                Actual
      or anticipated problems or delays and actions taken or planned to resolve
      them.
 
 10.
                Any
      absence or changes of key personnel or changes in consortium/teaming
      arrangement.
 
 11.
                A
      description of any product produced or technology transfer activities
      accomplished during this reporting period, such
  as:
  2
  A.
                Publications
      (list journal name, volume, issue); conference papers; or other public
      releases of results.  Attach or send copies of public releases
      to the DOE Program Manager identified in Block 15 of the Assistance
      Agreement Cover Page.
 
 B.
                Web
      site or other Internet sites that reflect the results of this
      project.
 
 C.
                Networks
      or collaborations fostered.
 
 D.
                Technologies/Techniques.
 
 E.
                Inventions/Patent
      Applications
 
 F.
                Other
      products, such as data or databases, physical collections, audio or video,
      software or netware, models, educational aid or curricula, instruments or
      equipment.
  Special
      Status Report
 
 The recipient must report the following
events by e-mail as soon as possible after they occur:
  1.
                Developments
      that have a significant favorable impact on the
  project.
 
 2.
                Problems,
      delays, or adverse conditions which materially impair the recipient’s
      ability to meet the objectives of the award or which may require DOE to
      respond to questions relating to such events from the
      public  The recipient must report any of the following incidents
      and include the anticipated impact and remedial action to be taken to
      correct or resolve the
problem/condition:
  a.
                Any
      single fatality or injuries requiring hospitalization of five or more
      individuals.
 
 b.
                Any
      significant environmental permit
violation.
 
 c.
                Any
      verbal or written Notice of Violation of any Environmental, Safety, and
      Health statutes.
 
 d.
                Any
      incident which causes a significant process or hazard control system
      failure.
 
 e.
                Any
      event which is anticipated to cause a significant schedule slippage or
      cost increase.
 
 f.
                Any
      damage to Government-owned equipment in excess of
  $50,000.
 
 g.
                Any
      other incident that has the potential for high visibility in the
      media.
  3
 
 B.   FINANCIAL
REPORTING
 
 Recipients
must complete the SF-425 as identified on the Reporting Checklist in accordance
with the report instructions.   A fillable version of the form is
available at http://www.whitehouse.gov/omb/grants/grants_forms.aspx.
 
 
 C.   
CLOSEOUT REPORTS
 
 Final Invention and Patent
Report
 
 The
recipient must provide a DOE Form 2050.11, “PATENT
CERTIFICATION.”  This form is available at http://www.directives.doe.gov/pdfs/forms/2050-11.pdf
and http://grants.pr.doe.gov.
  Property
Certification
 
 The
      recipient must provide the Property Certification, including the required
      inventories of non-exempt property, located at http://www.management.energy.gov/documents/PropertyCertFINAL.doc.
 
 
 D.    OTHER REPORTING
 
 Annual
Indirect Cost Proposal and Reconciliation
 
 Requirement.  In
accordance with the applicable cost principles, the recipient must submit an
annual indirect cost proposal, reconciled to its financial statements, within
six months after the close of the fiscal year, unless the award is based on a
predetermined or fixed indirect rate(s), or a fixed amount for indirect or
facilities and administration (F&A) costs.
 
 Cognizant
Agency.  The recipient must submit its annual indirect cost
proposal directly to the cognizant agency for negotiating and approving indirect
costs.  If the DOE awarding office is the cognizant agency, submit the
annual indirect cost proposal to the DOE Administrator at the address listed in
Block 16 of the Assistance Agreement Cover Page.
 
 Annual
Inventory of Federally Owned Property
 
 Requirement.  If
at any time during the award the recipient is provided Government-furnished
property or acquires property with project funds and the award specifies that
the property vests in the Federal Government (i.e. federally owned property),
the recipient must submit an annual inventory of this property to the DOE
Administrator at the address listed in Block 16 of the Assistance Agreement
Cover Page. no later than October 30thof each
calendar year, to cover an annual reporting period ending on the preceding
September 30th.
 
 Content of
Inventory.  The inventory must include a description of the
property, tag number, acquisition date, location of property, and acquisition
cost, if purchased with project funds.  The report must list all
federally owned property, including property located at subcontractor’s
facilities or other locations.
 
 4
 
 E.    AMERICAN RECOVERY AND REINVESTMENT
ACT OF 2009 (RECOVERY ACT) REPORTING
 
 Refer to
the award term entitled, Reporting and Registration Requirements, of the Special
Terms and Conditions for Grants and Cooperative Agreements for details on the
reporting requirements under Section 1512 of the Recovery Act.  The
reports are due no later than ten calendar days after each calendar quarter in
which the recipient receives the assistance award funded in whole or in part by
the Recovery Act.
 
 5


Attachment
4 – Budget Pages
  APPLICANT'S
      NAME: EnerDel, Inc.Total
    ProjectBUDGET
      INFORMATION - Construction ProgramsNOTE: Certain
      Federal assistance programs require additional computations to arrive at
      the Federal share of project costs eligible for
                  participation.
      If such is the case, you will be
  notified.
 COST
      CLASSIFICATION
                
                a.
      Total Cost
                
                
                b.
      Costs Not
                  Allowable
      for
                  Participation
                
                
                c.
      Total Allowable
                  Costs

                    (Columns
      a-b)
                
                
                Percent
                  of
      Total1
                
                Administrative
      and legal expenses
                
                $
                5,406,429.00
                
                
                $
                0.00
                
                
                $
                5,406,429.00
                
                
                
                2
                %2
                
                Land,
      structures, rights-of-way, appraisals, etc
                
                $
                30,474,412.00
                
                
                $
                0.00
                
                
                $
                30,474,412.00
                
                
                
                13
                %3
                
                Relocation
      expenses and payments
                
                $
                0.00
                
                
                $
                0.00
                
                
                $
                0.00
                
                
                
                0
                %4
                
                Architectural
      and engineering fees
                
                $
                1,255,284.00
                
                
                $
                0.00
                
                
                $
                1,255,284.00
                
                
                
                1
                %5
                
                Other
      architectural and engineering fees
                
                $
                0.00
                
                
                $
                0.00
                
                
                $
                0.00
                
                
                
                0
                %6
                
                Project
      inspection fees
                
                $
                33,170.00
                
                
                $
                0.00
                
                
                $
                33,170.00
                
                
                
                0
                %7
                
                Site
      work
                
                $
                129,691.00
                
                
                $
                0.00
                
                
                $
                129,691.00
                
                
                
                0
                %8
                
                Demolition
      and removal
                
                $
                0.00
                
                
                $
                0.00
                
                
                $
                0.00
                
                
                
                0
                %9
                
                Construction
                
                $
                29,872,311.00
                
                
                $
                0.00
                
                
                $
                29,872,311.00
                
                
                
                13
                %10
                
                Equipment
                
                $
                165,764,927.00
                
                
                $
                0.00
                
                
                $
                165,764,927.00
                
                
                
                70
                %11
                
                Miscellaneous
                
                $
                4,000,008.00
                
                
                $
                0.00
                
                
                $
                4,000,008.00
                
                
                
                2
                %12
                
                SUBTOTAL
                
                $
                236,936,232.00
                
                
                $
                0.00
                
                
                $
                236,936,232.00
                
                
                
                100
                %13
                
                Contingencies
                
                $
                0.00
                
                
                $
                0.00
                
                
                $
                0.0014
                
                SUBTOTAL
                
                $
                236,936,232.00
                
                
                $
                0.00
                
                
                $
                236,936,232.0015
                
                Project
      (program) income
                
                $
                0.00
                
                
                $
                0.00
                
                
                $
                0.0016
                
                TOTAL
      PROJECT COSTS (subtract
      #15from
      #14)
                
                $
                236,936,232.00
                
                
                $
                0.00
                
                
                $
                236,936,232.00
 FEDERAL
      FUNDING17
                
                Federal assistance requested,
      calculated asfollows: (Consult Federal agency
      for Federal percentage share.) Enter the resulting Federal
      share.
                
                
                Enter eligible costs from line
      16c
                  Multiply X
    50%
                
                
                $
                118,468,116.00
 
 
  INSTRUCTIONS
FOR THE SF-424C
 SF-424C
(Rev. 7-97) Back
 
 
 This
sheet is to be used for the following types of applications: (1) "New" (means a
new [previously unfunded] assistance award); (2) "Continuation" (means funding
in a succeeding budget period which stemmed from a prior agreement to fund); and
(3) "Revised" (means any changes in the Federal Government’s financial
obligations or contingent liability from an existing obligation). If there is no
change in the award amount, there is no need to complete this form. Certain
Federal agencies may require only an explanatory letter to effect minor (no
cost) changes. If you have questions, please contact the Federal
agency.
  Column
      a. - If this is an application for a "New" project, enter the total
      estimated cost of each of the items listed on lines 1 through 16 (as
      applicable) under "COST CLASSIFICATION."
                    
                    If
      this application entails a change to an existing award, enter the eligible
      amounts approved under the previous award for the items under "COST
      CLASSIFICATION."
                    
                    Column
      b. - If this is an application for a "New" project, enter that portion of
      the cost of each item in Column a. which is not allowable for Federal
      assistance. Contact the Federal agency for assistance in determining the
      allowability of specific costs.
                    
                    If
      this application entails a change to an existing award, enter the
      adjustment [+ or (-)] to the previously approved costs (from column a.)
      reflected in this application.
                    
                    _________________
                    
                    
                    Column.
      - This is the net of lines 1 through 16 in columns "a." and
      "b."
                    
                    Line
      1 - Enter estimated amounts needed to cover administrative expenses. Do
      not include costs which are related to the normal functions of government.
      Allowable legal costs are generally only those associated with the
      purchases of land which is allowable for Federal participation and certain
      services in support of construction of the project.
                    
                    Line
      2 - Enter estimated site and right(s)-of-way acquisition costs (this
      includes purchase, lease, and/or easements).
                  
                  Line
      3 - Enter estimated costs related to relocation advisory assistance,
      replacement housing, relocation payments to displaced persons and
      businesses, etc.
                    
                    Line
      4 - Enter estimated basic engineering fees related to construction (this
      includes start-up services and preparation of project performance work
      plan).
                    
                    Line
      5 - Enter estimated engineering costs, such as surveys, tests, soil
      borings, etc.
                    
                    Line
      6 - Enter estimated engineering inspection costs.
                    
                    Line
      7 - Enter estimated costs of site preparation and restoration which are
      not included in the basic construction contract.
                    
                    Line
      9 - Enter estimated cost of the construction contract.
                    
                    Line
      10 - Enter estimated cost of office, shop, laboratory, safety equipment,
      etc. to be used at the facility, if such costs are not included in the
      construction contract.
                    
                    Line
      11 - Enter estimated miscellaneous costs.
                    
                    Line
      12 - Total of items 1 through 11.
                    
                    Line
      13 - Enter estimated contingency costs. (Consult the Federal agency for
      the percentage of the estimated construction cost to use.)
                    
                    Line
      14 - Enter the total of lines 12 and 13.
                    
                    Line
      15 - Enter estimated program income to be earned during the grant period,
      e.g., salvaged materials, etc.
                    
                    Line
      16 - Subtract line 15 from line 14.
                    
                    Line
      17 - This block is for the computation of the Federal share. Multiply the
      total allowable project costs from line 16, column "c." by the Federal
      percentage share (this may be up to 100 percent; consult Federal agency
      for Federal percentage share) and enter the product on line
      17.
  
  Terms
and Conditions
  SPECIAL
      TERMS AND CONDITIONS FOR USE IN MOST GRANTS AND COOPERATIVE
      AGREEMENTS
                  4RESOLUTION
      OF CONFLICTING CONDITIONS
                  4AWARD
      AGREEMENT TERMS AND CONDITIONS
                  4CONDITIONS
      ON AWARD
                  4PAYMENT
      PROCEDURES - REIMBURSEMENT THROUGH THE AUTOMATED CLEARING HOUSE (ACH)
      VENDER INQUIRY PAYMENT ELECTRONIC REPORTING SYSTEM
(VIPERS)
                  6INCREMENTAL
      FUNDING AND MAXIMUM OBLIGATION - COEXTENSIVE BUDGET PERIOD AND PROJECT
      PERIOD
                  6COST
      SHARING FFRDC'S NOT INVOLVED
                  7REBUDGETING
      AND RECOVERY OF INDIRECT COSTS - REIMBURSABLE INDIRECT COSTS AND FRINGE
      BENEFITS
                  7USE
      OF PROGRAM INCOME - COST SHARING
                  7STATEMENT
      OF FEDERAL STEWARDSHIP
                  7SITE
      VISITS
                  8REPORTING
      REQUIREMENTS
                  8PUBLICATIONS
                  8FEDERAL,
      STATE, AND MUNICIPAL REQUIREMENTS
                  9INTELLECTUAL
      PROPERTY PROVISIONS AND CONTACT INFORMATION
                  9LOBBYING
      RESTRICTIONS
                  9NOTICE
      REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS -- SENSE OF
      CONGRESS
                  9PROPERTY
                  9INSOLVENCY,
      BANKRUPTCY OR RECEIVERSHIP
                  9INDEMNITY
                  10NATIONAL
      ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS
                  10DECONTAMINATION
      AND/OR DECOMMISSIONING (D &D) COSTS
                  11SPECIAL
      PROVISIONS RELATING TO WORK FUNDED  UNDR AMERICAN RECOVERY AND
      REINVESTMENT ACT OF 2009 (MAR 2009)
                  11REPORTING
      AND REGISTRATION REQUIREMENTS UNDER SECTION 1512 OF THE RECOVERY
      ACT
                  14RECOVERY
      ACT TRANSACTIONS LISTED IN SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS AND
      RECIPIENT RESPONSIBILITIES FOR INFORMING SUBRECIPIENTS
                  14DAVIS
      BACON ACT AND CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
                  15RECIPIENT
      FUNCTIONS
                  22FINAL
      INCURRED COST AUDIT
                  23
  3
 SPECIAL
TERMS AND CONDITIONS FOR USE IN MOST GRANTS AND COOPERATIVE
AGREEMENTS
 
 
 RESOLUTION OF CONFLICTING
CONDITIONS
 
 Any
apparent inconsistency between Federal statutes and regulations and the terms
and conditions contained in this award must be referred to the DOE Award
Administrator for guidance.
 
 AWARD AGREEMENT TERMS AND
CONDITIONS
 
 This
award/agreement consists of the Grant and Cooperative Agreement cover page, plus
the following:
 a.
                  Special
      terms and conditions.
 b.
                  Attachments:
 Attachment
      No.
                  Title
 1
                  Intellectual
      Property Provisions
 2
                  Statement
      of Project Objectives
 3
                  Federal
      Assistance Reporting Checklist
 4
                  Budget
      Pages
 5
                  Wage
      Determinations
 6
                  Negotiated
      Changes To Award
 c.           Applicable
program
regulations.                                 .
 d.           DOE
Assistance Regulations, 10 CFR Part 600 at http://ecfr.gpoaccess.gov
and if the award is for research and to a university or non-profit, the Research
Terms & Conditions and the DOE Agency Specific Requirements at http://www.nsf.gov/bfa/dias/policy/rtc/index.jsp.
 e.           Application/proposal
dated May 18, 2009 and revised through negotiation; revisions contained in
Attachment 6 to award.
 f.           National
Policy Assurances to Be Incorporated as Award Terms in effect on date of award
at  http://management.energy.gov/business_doe/1374.htm.
 
 CONDITIONS
ON AWARD
 
 a.
                  Payment of
      Costs
 
 DOE has
obligated $118,423,163 for completion of the project authorized by this
award.  However, only $11,842,316 is available for work performed by
the Recipient during the definitization period of the
project.   In the event the award is not definitized within 120
days of the award date, and either party elects to declare the award terminated,
the maximum DOE liability to the Recipient is DOE’s share of incurred costs up
to $11,842,316 provided such costs are reasonable, allocable to the award, and
allowable under the terms of the award and the applicable Federal Cost
Principles. The Recipient may incur costs beyond this limit at its own risk,
subject to later reimbursement by DOE in the event the project proceeds beyond
the definitization period.  DOE reserves the right to unilaterally
deobligate the balance of funds obligated, but not authorized for expenditure,
in the event the Conditions on Award and NEPA requirements are not
satisfied.
 
 b.
                  Limitation of
      Costs
 
 Contingency
costs shall not be charged to nor reimbursement requested for this project nor
shall contingency costs from this project be allocated to any other Federally
sponsored project.  In addition, contingency costs shall not be
counted as cost share unless approved by the Contracting Officer.
 
 c.
                  Financial
      Commitment/Funding Plan
  Not later
than twelve (12) months after the effective date of the award:
  4
  1.  The
Recipient shall provide to DOE an updated total project cost estimate along with
evidence of firm commitments for the full private sector share of the project
cost.  Such evidence may include executed loans, bond financing
agreements, state or local grants, and third party contribution
agreements.   For each non-governmental source of cost-sharing,
the Recipient shall provide audited financial statements for the most recent two
years.
  2.  If
firm commitments for the full private sector share of the project cost have not
been secured, Recipient shall provide evidence of firm commitments made to date,
as set forth in paragraph (1), and a detailed Funding Plan in accordance with
the requirements set forth below:
  ·
                  The
      Funding Plan will demonstrate a reasonable plan to obtain the balance of
      funding for the private sector share of the project cost.  The
      Funding Plan must identify all anticipated sources of the private sector
      cost-share such as bank loans, bond offerings, state or local grants, and
      equity contributions.
  ·
                  The
      Recipient shall provide a full description of any limitations, conditions
      or other factors that could affect the availability of
      funding.  If third party financing will be a source of project
      funds, the Recipient shall discuss the timing, conditionality and terms
      and conditions of such financing.
  ·
                  Audited
      financial statements for the most recent two fiscal years shall be
      provided for each non-governmental source of funds.  If a source
      does not have audited financial statements, that source should provide
      equivalent financial statements prepared by the party, in accordance with
      Generally Accepted Accounting Principles, and certified as to accuracy and
      completeness by the Chief Financial Officer of the party providing the
      statements.
  ·
                  The
      Recipient shall obtain and provide a commitment letter from each source,
      signed by an officer of the corporation or other entity that is authorized
      to commit the funding to the proposed project.  The amount of
      funds to be provided, the timing of the funding, and any contingencies,
      should be specified.  Commitment letters should identify the
      type of proposed cost sharing (e.g., cash, services, and/or property) to
      be contributed.
  ·
                  If
      in-kind contributions of property or services are proposed, the Recipient
      shall provide support for their valuation and explain how the valuation
      was determined.
  ·
                  If
      the project will be financed on a non-recourse basis, the Recipient
      shall  provide a working financial model (in excel 2003 or 2007)
      that provides projections of the project including an income statement,
      balance sheet, cash flow statement, and sources and uses of funds
      statement, all on an annual basis with appropriate supporting
      schedules.    The financial projections should be
      developed in this financial model, commencing with the initial project
      development phase and extending through the period of operations needed to
      obtain funding.  The model should be provided in electronic form
      including cell formulas so that review of the model assumptions and
      sensitivity calculations may be facilitated.  The recipient
      shall provide a description and explanation for each of the financial,
      economic, and operating assumptions for the project.  The
      assumptions should be consistent with and supported by the information
      provided in the project cost
estimate.
  In the
event, DOE determines that the information provided by Recipient is inadequate
to assure the availability of full funding for the private sector share of the
project cost, DOE reserves the right, at DOE’s discretion, to: (1) stop payment,
(2) renegotiate the project scope and/or payment schedule, or (3) after
Recipient is provided 30 days advance written notice and opportunity to cure,
declare the grant terminated by mutual agreement.  Should DOE declare
the grant terminated, the Recipient shall be entitled to payment of DOE’s share
of allowable project cost incurred prior to the date of termination plus the
reasonable cost of terminating the grant.  DOE’s maximum liability for
project cost in the event of termination is $44,900,000.
  5
  PAYMENT PROCEDURES - REIMBURSEMENT
THROUGH THE AUTOMATED CLEARING HOUSE (ACH) VENDER INQUIRY PAYMENT ELECTRONIC
REPORTING SYSTEM (VIPERS)
 
 a.           Method
of Payment.  Payment will be made by reimbursement through
ACH.
 
 b.           Requesting
Reimbursement.  Requests for reimbursements must be made
electronically through Department of Energy's Oak Ridge Financial Service Center
(ORFSC) VIPERS.  To access and use VIPERS, you must enroll at
https://finweb.oro.doe.gov/vipers.htm.  Detailed instructions on how
to enroll are provided on the web site.
 
 For
non-construction awards, you must submit a Standard Form (SF) 270, "Request for
Advance or Reimbursement" at https://finweb.oro.doe.gov/vipers.htm and attach a
file containing appropriate supporting documentation.  The file
attachment must show the total federal share claimed on the SF 270, the
non-federal share claimed for the billing period if cost sharing is required,
and cumulative expenditures to date (both Federal and non-Federal) for each of
the following categories: salaries/wages and fringe benefits; equipment; travel;
participant/training support costs, if any; other direct costs, including
subawards/contracts; and indirect costs.  For construction awards, you
must submit a SF 271, "Outlay Report and Request for Reimbursement for
Construction Programs," through VIPERS.
 
 c.           Timing
of submittals.  Submittal of the SF 270 or SF 271 should coincide with
your normal billing pattern, but not more frequently than every two
weeks.  Requests for reimbursement must be limited to the amount of
disbursements made during the billing period for the federal share of direct
project costs and the proportionate share of any allowable indirect costs
incurred during that billing period.
 
 d.           Adjusting
payment requests for available cash.  You must disburse any funds that
are available from repayments to and interest earned on a revolving fund,
program income, rebates, refunds, contract settlements, audit recoveries,
credits, discounts, and interest earned on any of those funds before requesting
additional cash payments from DOE.
 
 e.           Payments.  The
DOE approving official will approve the invoice as soon as practicable but not
later than 30 days after your request is received, unless the billing is
improper.  Upon receipt of an invoice payment authorization from the
DOE approving official, the ORFSC will disburse payment to you.  You
may check the status of your payments at the VIPER web site.  All
payments are made by electronic funds transfer to the bank account identified on
the ACH Vendor/Miscellaneous Payment Enrollment Form (SF 3881) that you
filed.
  INCREMENTAL
FUNDING AND MAXIMUM OBLIGATION - COEXTENSIVE BUDGET PERIOD AND PROJECT
PERIOD
 
 This
award is funded on an incremental basis.  The maximum obligation of
the DOE is limited to the amount shown on the Agreement Face Page except as
otherwise limited by the “Conditions on Award” provision. You are not obligated
to continue performance of the project beyond the total amount obligated and
your pro rata share of the project costs, if cost sharing is required.
Additional funding is contingent upon the availability of appropriated funds and
substantial progress towards meeting the objectives of the award.
  6
  COST SHARING FFRDC'S NOT
INVOLVED
 
 a.           Total
Estimated Project Cost is the sum of the Government share and Recipient share of
the estimated project costs.  The Recipient's cost share must come
from non-Federal sources unless otherwise allowed by law.  By
accepting Federal funds under this award, you agree that you are liable for your
percentage share of total allowable project costs, on a budget period basis,
even if the project is terminated early or is not funded to its
completion.  This cost is shared as follows:
 
 Budget
      Period No.
                  
                  Budget
      Period Start
                  
                  Government
      Share $/%
                  
                  
                  Recipient
      Share $/%
                  
                  
                  Total
      Estimated Cost1
                  
                  01/29/2010
                  
                  $
                  118,468,116
      / 50
                  %
                  
                  $
                  118,468,116
      / 50
                  %
                  
                  $
                  236,936,232
      / 100
                  %Total
      Project
                  
                  $
                  118,468,116
                  
                  
                  $
                  118,468,116
                  
                  
                  $
                  236,936,232
 
 b.           If
you discover that you may be unable to provide cost sharing of at least the
amount identified in paragraph a of this article, you should immediately provide
written notification to the DOE Award Administrator indicating whether you will
continue or phase out the project.  If you plan to continue the
project, the notification must describe how replacement cost sharing will be
secured.
 
 c.           You
must maintain records of all project costs that you claim as cost sharing,
including in-kind costs, as well as records of costs to be paid by
DOE.  Such records are subject to audit.
 
 d.           Failure
to provide the cost sharing required by this Article may result in the
subsequent recovery by DOE of some or all the funds provided under the
award.
 
 REBUDGETING AND RECOVERY OF INDIRECT
COSTS - REIMBURSABLE INDIRECT COSTS AND FRINGE BENEFITS
 
 a. If
actual allowable indirect costs are less than those budgeted and funded under
the award, you may use the difference to pay additional allowable direct costs
during the project period. If at the completion of the award the Government's
share of total allowable costs (i.e., direct and indirect), is less than the
total costs reimbursed, you must refund the difference.
 
 b.
Recipients are expected to manage their indirect costs. DOE will not amend an
award solely to provide additional funds for changes in indirect cost rates. DOE
recognizes that the inability to obtain full reimbursement for indirect costs
means the recipient must absorb the underrecovery. Such underrecovery may be
allocated as part of the organization's required cost sharing.
 
 c. The budget for this award includes
indirect costs, but does not include fringe benefits. Therefore, fringe benefit
costs shall not be charged to nor shall reimbursement be requested for this
project nor shall the fringe benefit costs for this project be allocated to any
other federally sponsored project. In addition, fringe benefit costs shall not
be counted as cost share unless approved by the Contracting
Officer.
 
 USE OF PROGRAM INCOME - COST
SHARING
 
 If you
earn program income during the project period as a result of this award, you may
use the program income to meet your cost sharing requirement.
 
 STATEMENT OF FEDERAL
STEWARDSHIP
 
 DOE will
exercise normal Federal stewardship in overseeing the project activities
performed under this award.  Stewardship activities include, but are
not limited to, conducting site visits; reviewing performance and financial
reports; providing technical assistance and/or temporary intervention in unusual
circumstances to correct deficiencies which develop during the project; assuring
compliance with terms and conditions; and reviewing technical performance after
project completion to ensure that the award objectives have been
accomplished.
  7
  SITE VISITS
 
 DOE's
authorized representatives have the right to make site visits at reasonable
times to review project accomplishments and management control systems and to
provide technical assistance, if required.  You must provide, and must
require your subawardees to provide, reasonable access to facilities, office
space, resources, and assistance for the safety and convenience of the
government representatives in the performance of their duties.  All
site visits and evaluations must be performed in a manner that does not unduly
interfere with or delay the work.
 
 REPORTING
REQUIREMENTS
 
 a.           Requirements.  The
reporting requirements for this award are identified on the Federal Assistance
Reporting Checklist, DOE F 4600.2, attached to this award.  Failure to
comply with these reporting requirements is 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.  A willful failure to perform, a history
of failure to perform, or unsatisfactory performance of this and/or other
financial assistance awards, may also result in a debarment action to preclude
future awards by Federal agencies.
 
 b.           Dissemination
of scientific/technical reports.  Scientific/technical reports
submitted under this award will be disseminated on the Internet via the DOE
Information Bridge (www.osti.gov/bridge), unless the report contains patentable
material, protected data, or SBIR/STTR data.  Citations for journal
articles produced under the award will appear on the DOE Energy Citations
Database (www.osti.gov/energycitations).
 
 c.           Restrictions.
Reports submitted to the DOE Information Bridge must not contain any Protected
Personal Identifiable Information (PII), limited rights data (proprietary data),
classified information, information subject to export control classification, or
other information not subject to release.
 
 NOTE: 
Subject to OMB approval pursuant to the Paperwork Reduction Act, DOE reserves
the right to amend the reporting requirements to request more frequent and
more detailed reporting.
 
 PUBLICATIONS
 
 a.           You
are encouraged to publish or otherwise make publicly available the results of
the work conducted under the award.
 
 b.           An
acknowledgment of Federal support and a disclaimer must appear in the
publication of any material, whether copyrighted or not, based on or developed
under this project, as follows:
 
 Acknowledgment:  "This
material is based upon work supported by the Department of Energy under Award
Number DE-EE0002724."
 
 Disclaimer:  "This
report was prepared as an account of work sponsored by an agency of the United
States Government.  Neither the United States Government nor any
agency thereof, nor any of their employees, makes any warranty, express or
implied, or assumes any legal liability or responsibility for the accuracy,
completeness, or usefulness of any information, apparatus, product, or process
disclosed, or represents that its use would not infringe privately owned
rights.  Reference herein to any specific commercial product, process,
or service by trade name, trademark, manufacturer, or otherwise does not
necessarily constitute or imply its endorsement, recommendation, or favoring by
the United States Government or any agency thereof.  The views and
opinions of authors expressed herein do not necessarily state or reflect those
of the United States Government or any agency thereof."
 
 FEDERAL, STATE, AND MUNICIPAL
REQUIREMENTS
 
 You must
obtain any required permits and comply with applicable federal, state, and
municipal laws, codes, and regulations for work performed under this
award.
 
 8
 
 INTELLECTUAL PROPERTY PROVISIONS AND
CONTACT INFORMATION
 
 a.           The
intellectual property provisions applicable to this award are provided as an
attachment to this award or are referenced on the Agreement Face
Page.  A list of all intellectual property provisions may be found at
http://www.gc.doe.gov/financial_assistance_awards.htm.
 
 b.           Questions
regarding intellectual property matters should be referred to the DOE Award
Administrator and the Patent Counsel designated as the service provider for the
DOE office that issued the award.  The IP Service Providers List is
found at http://www.gc.doe.gov/documents/Intellectual_Property_(IP)_Service_Providers_for_Acquisition.pdf
 
 LOBBYING
RESTRICTIONS
 
 By
accepting funds under this award, you agree that none of the funds obligated on
the award shall be expended, directly or indirectly, to influence congressional
action on any legislation or appropriation matters pending before Congress,
other than to communicate to Members of Congress as described in 18 U.S.C.
1913.  This restriction is in addition to those prescribed elsewhere
in statute and regulation.
 
 NOTICE REGARDING THE PURCHASE OF
AMERICAN-MADE EQUIPMENT AND PRODUCTS -- SENSE OF CONGRESS
 
 It is the
sense of the Congress that, to the greatest extent practicable, all equipment
and products purchased with funds made available under this award should be
American-made.
 
 PROPERTY
 
 Real
property, and equipment acquired by the Recipient shall be subject to the rules
set forth in 10 CFR 600.130-137, 10 CFR 600.231-233, or 10 CFR 600.320-324 as
applicable.
  Consistent
with the goals and objectives of this project, the Recipient may continue to use
Recipient acquired property beyond the Period of Performance, without
obligation, during the period of such use, to extinguish DOE's conditional title
to such property as described in 10 CFR 600.132-135, 10 CFR 600.231-233,
600.321-324, subject to the following: (a) the Recipient continues to utilize
such property for the objectives of the project as set forth in the Statement of
Project Objectives; (b) DOE retains the right to periodically ask for, and the
Recipient agrees to provide, reasonable information concerning the use and
condition of the property; and (c) the Recipient follows the property
disposition rules set forth in the applicable sections of 10 CFR Part 600, if
the property is no longer used by the Recipient for the objectives of the
project, and the fair market value of property exceeds $5,000.
   Once the
per unit fair market value of the property is less than $5,000, pursuant to the
applicable sections of 10 CFR Part 600, DOE's residual interest in the property
shall be extinguished and Recipient shall have no further obligation to the DOE
with respect to the property.
   The
regulations as set forth in 10 CFR Part 600 and the requirements of this article
shall also apply to property in the possession of any team member, sub-recipient
or other entity where such property was acquired in whole in part with funds
provided by DOE under this grant or where such property was counted as
cost-sharing under the grant.
  
 INSOLVENCY, BANKRUPTCY OR
RECEIVERSHIP
 
 a.           You
shall immediately notify the DOE of the occurrence of any of the following
events: (i) you or your parent's filing of a voluntary case seeking liquidation
or reorganization under the Bankruptcy Act; (ii) your consent to the institution
of an involuntary case under the Bankruptcy Act against you or your parent;
(iii)  the filing of any similar proceeding for or against you or your
parent, or its consent to, the dissolution, winding-up or readjustment of your
debts, appointment of a receiver, conservator, trustee, or other officer with
similar powers over you, under any other applicable state or federal law; or
(iv) your insolvency due to your inability to pay your debts generally as they
become due.
  9
  b.           Such
notification shall be in writing and shall:  (i) specifically set out
the details of the occurrence of an event referenced in paragraph a; (ii)
provide the facts surrounding that event; and (iii) provide the impact such
event will have on the project being funded by this award.
 
 c.           Upon
the occurrence of any of the four events described in the first paragraph, DOE
reserves the right to conduct a review of your award to determine your
compliance with the required elements of the award (including such items as cost
share, progress towards technical project objectives, and submission of required
reports).  If the DOE review determines that there are significant
deficiencies or concerns with your performance under the award, DOE reserves the
right to impose additional requirements, as needed, including (i) change your
payment method; or (ii) institute payment controls.
 
 d.           Failure
of the Recipient to comply with this provision may be considered a material
noncompliance of this financial assistance award by the Contracting
Officer.
 
 INDEMNITY
  The
Recipient shall indemnify the Government and its officers, agents, or employees
for any and all liability, including litigation expenses and attorneys' fees,
arising from suits, actions, or claims of any character for death, bodily
injury, or loss of or damage to property or to the environment, resulting from
the project, except to the extent that such liability results from the direct
fault or negligence of Government officers, agents or employees, or to the
extent such liability may be covered by applicable allowable costs
provisions.
 
 NATIONAL ENVIRONMENTAL POLICY ACT
(NEPA) REQUIREMENTS
 
 The
Recipient is restricted from taking any action using Federal funds that would
have an adverse effect on the environment or limit the choice of reasonable
alternatives prior to DOE issuing a Finding of No Significant Impact (FONSI) for
projects requiring an environmental assessment or a Record of Decision (ROD) for
projects requiring an environmental impact statement. Prior to issuance of FONSI
(or ROD if EIS becomes necessary), DOE will reimburse EnerDel up to $11,842,316
for project planning, design, and placement of long lead time equipment orders
for tasks 1 and 2 and all activities in Tasks 3, 4, and 5 identified in the SOPO
at the DOE share ratio established in the grant.  Unless and until DOE
issues a FONSI or ROD, all other costs incurred by EnerDel will be at EnerDel
risk.  Prohibited actions include, but are not limited to,
demolition/decontamination of existing buildings, site preparation/clearing,
ground breaking, excavation/construction, and/or detailed
design.  However, activities necessary to perform site
characterization/sampling/monitoring; preparation of conceptual design
data/analysis/documentation to include project planning assistance/training, may
be performed before a FONSI or ROD is issued.
  In the
event the Recipient elects to proceed with activities that could have an
adverse impact on the environment prior to DOE issuing a FONSI or a ROD, the
Recipient acknowledges that such activities are  at Recipient’s
risk in that the DOE may not reimburse the cost depending on the
outcome of the NEPA process.
  Prior to
the issuance of a FONSI or ROD, DOE agrees to discuss with the Recipient any
proposed conditions and requirements that may be included in it if DOE decides
to proceed with its proposed action.   However, DOE retains sole
discretion on whether to issue a FONSI or ROD and what conditions and
requirements to include in it if one is issued.
 
 If DOE
decides to proceed with its proposed action subject to conditions, limitations,
mitigation requirements, or monitoring requirements specified in a FONSI or ROD,
the Recipient agrees to:
 
 a) abide
by the conditions, limitations, mitigation requirements, and monitoring
requirements specified in the FONSI or ROD;
 
 b)
negotiate changes to the project schedule, costs, and/or scope as necessary to
effect the requirements or conditions in the FONSI or ROD;
 
 10
 
 c) allow
DOE’s authorized representatives  to visit the site and facilities
upon notice to verify project status and compliance to include conditions and
requirements in the FONSI or ROD; and
 
 d)  submit
data or otherwise meet specified reporting requirements that may be in the FONSI
or ROD.
 
 If the
Recipient finds the conditions and requirements to be unacceptable, the
Recipient reserves the right to terminate the award in accordance with 10 CFR
600.161(a)(3), 244(b), 351(a)(3), as applicable.
 
 DECONTAMINATION AND/OR
DECOMMISSIONING (D &D) COSTS
 
 Notwithstanding
any other provisions of this Agreement, the Government shall not be responsible
for or have any obligation to the Recipient for (i) Decontamination and/or
Decommissioning (D&D) of any of the Recipient's facilities, or (ii) any
costs which may be incurred by the Recipient in connection with the D&D of
any of its facilities due to the performance of the work under this Agreement,
whether said work was performed prior to or subsequent to the effective date of
this Agreement.
 
 SPECIAL
PROVISIONS RELATING TO WORK FUNDED  UNDR AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009 (MAR 2009)
 
 Preamble
 
 The
American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, (Recovery Act)
was enacted to preserve and create jobs and promote economic recovery, assist
those most impacted by the recession, provide investments needed to increase
economic efficiency by spurring technological advances in science and health,
invest in transportation, environmental protection, and other infrastructure
that will provide long-term economic benefits, stabilize State and local
government budgets, in order to minimize and avoid reductions in essential
services and counterproductive State and local tax
increases.  Recipients shall use grant funds in a manner that
maximizes job creation and economic benefit.
 
 The
Recipient shall comply with all terms and conditions in the Recovery Act
relating generally to governance, accountability, transparency, data collection
and resources as specified in Act itself and as discussed below.
 
 Recipients
should begin planning activities for their first tier subrecipients, including
obtaining a DUNS number (or updating the existing DUNS record), and registering
with the Central Contractor Registration (CCR).
 
 Be
advised that Recovery Act funds can be used in conjunction with other funding as
necessary to complete projects, but tracking and reporting must be separate to
meet the reporting requirements of the Recovery Act and related
guidance.  For projects funded by sources other than the Recovery Act,
Contractors must keep separate records for Recovery Act funds and to ensure
those records comply with the requirements of the Act.
 
 The
Government has not fully developed the implementing instructions of the Recovery
Act, particularly concerning specific procedural requirements for the new
reporting requirements.  The Recipient will be provided these details
as they become available.  The Recipient must comply with all
requirements of the Act.  If the recipient believes there is any
inconsistency between ARRA requirements and current award terms and conditions,
the issues will be referred to the Contracting Officer for
reconciliation.
 
 Definitions
 
 For
purposes of this clause, Covered Funds means funds expended or obligated from
appropriations under the American Recovery and Reinvestment Act of 2009, Pub. L.
111-5.  Covered Funds will have special accounting codes and will be
identified as Recovery Act funds in the grant, cooperative agreement or TIA
and/or modification using Recovery Act funds.  Covered Funds must be
reimbursed by September 30, 2015.
 
 Non-Federal
employer means any employer with respect to covered funds -- the contractor,
subcontractor, grantee, or recipient, as the case may be, if the contractor,
subcontractor, grantee, or recipient is an employer; and any professional
membership organization, certification of other professional body, any agent or
licensee of the Federal government, or any person acting directly or indirectly
in the interest of an employer receiving covered funds; or with respect to
covered funds received by a State or local government, the State or local
government receiving the funds and any contractor or subcontractor receiving the
funds and any contractor or subcontractor of the State or local government; and
does not mean any department, agency, or other entity of the federal
government.
  11
  Recipient
means any entity that receives Recovery Act funds directly from the Federal
government (including Recovery Act funds received through grant, loan, or
contract) other than an individual and includes a State that receives Recovery
Act Funds.
 
 Special
Provisions
 
 A. Flow
Down Requirement
 
 Recipients
must include these special terms and conditions in any subaward.
 
 B.
Segregation of Costs
 
 Recipients
must segregate the obligations and expenditures related to funding under the
Recovery Act.  Financial and accounting systems should be revised as
necessary to segregate, track and maintain these funds apart and separate from
other revenue streams.  No part of the funds from the Recovery Act
shall be commingled with any other funds or used for a purpose other than that
of making payments for costs allowable for Recovery Act projects.
 
 C.  Prohibition
on Use of Funds
 
 None of
the funds provided under this agreement derived from the American Recovery and
Reinvestment Act of 2009, Pub. L. 111-5, may be used by any State or local
government, or any private entity, for any casino or other gambling
establishment, aquarium, zoo, golf course, or swimming pool.
 
 D.  Access
to Records
 
 With
respect to each financial assistance agreement awarded utilizing at least some
of the funds appropriated or otherwise made available by the American Recovery
and Reinvestment Act of 2009, Pub. L. 111-5,  any representative of an
appropriate inspector general appointed under section 3 or 8G of the Inspector
General Act of 1988 (5 U.S.C. App.) or of the Comptroller General is authorized
--
 (1) to examine any records of the
contractor or grantee, any of its subcontractors or subgrantees, or any State or
local agency administering such contract that pertain to, and involve
transactions that relate to, the subcontract, subcontract, grant, or subgrant;
and
 (2) to interview any officer or
employee of the contractor, grantee, subgrantee, or agency regarding such
transactions.
 
 E.   Publication
 
 An
application may contain technical data and other data, including trade secrets
and/or privileged or confidential information, which the applicant does not want
disclosed to the public or used by the Government for any purpose other than the
application.  To protect such data, the applicant should specifically
identify each page including each line or paragraph thereof containing the data
to be protected and mark the cover sheet of the application with the following
Notice as well as referring to the Notice on each page to which the Notice
applies:
 
 Notice of
Restriction on Disclosure and Use of Data
 The data
contained in pages ---- of this application have been submitted in confidence
and contain trade secrets or proprietary information, and such data shall be
used or disclosed only for evaluation purposes, provided that if this applicant
receives an award as a result of or in connection with the submission of this
application, DOE shall have the right to use or disclose the data here to the
extent provided in the award.  This restriction does not limit the
Government's right to use or disclose data obtained without restriction from any
source, including the applicant.
 
 12
 
 Information
about this agreement will be published on the Internet and linked to the website
www.recovery.gov, maintained by the Accountability and Transparency
Board.  The Board may exclude posting contractual or other information
on the website on a case-by-case basis when necessary to protect national
security or to protect information that is not subject to disclosure under
sections 552 and 552a of title 5, United States Code.
 
 F.   Protecting
State and Local Government and Contractor Whistleblowers.
 
 The
requirements of Section 1553 of the Act are summarized below.  They
include, but are not limited to:
 
 Prohibition
on Reprisals:  An employee of any non-Federal employer receiving
covered funds under the American Recovery and Reinvestment Act of 2009, Pub. L.
111-5, may not be discharged, demoted, or otherwise discriminated against as a
reprisal for disclosing, including a disclosure made in the ordinary course of
an employee's duties, to the Accountability and Transparency Board, an inspector
general, the Comptroller General, a member of Congress, a State or Federal
regulatory or law enforcement agency, a person with supervisory authority over
the employee (or other person working for the employer who has the authority to
investigate, discover or terminate misconduct), a court or grand jury, the head
of a Federal agency, or their representatives information that the employee
believes is evidence of:
 - gross mismanagement of an agency
contract or grant relating to covered funds;
 - a gross waste of covered
funds;
 - a substantial and specific danger to
public health or safety related to the implementation or use of covered
funds;
 - an abuse of authority related to the
implementation or use of covered funds; or
 - as violation of law, rule, or
regulation related to an agency contract (including the competition for or
negotiation of a contract) or grant, awarded or issued relating to covered
funds.
 
 Agency
Action:  Not later than 30 days after receiving an inspector general
report of an alleged reprisal, the head of the agency shall determine whether
there is sufficient basis to conclude that the non-Federal employer has
subjected the employee to a prohibited reprisal.  The agency shall
either issue an order denying relief in whole or in part or shall take one or
more of the following actions:
 - Order the employer to take
affirmative action to abate the reprisal.
 - Order the employer to reinstate the
person to the position that the person held before the reprisal, together with
compensation including back pay, compensatory damages, employment benefits, and
other terms and conditions of employment that would apply to the person in that
position if the reprisal had not been taken.
 - Order the employer to pay the
employee an amount equal to the aggregate amount of all costs and expenses
(including attorneys' fees and expert witnesses' fees) that were reasonably
incurred by the employee for or in connection with, bringing the complaint
regarding the reprisal, as determined by the head of a court of competent
jurisdiction.
 
 Nonenforceablity
of Certain Provisions Waiving Rights and remedies or Requiring
Arbitration:  Except as provided in a collective bargaining agreement,
the rights and remedies provided to aggrieved employees by this section may not
be waived by any agreement, policy, form, or condition of employment, including
any predispute arbitration agreement.  No predispute arbitration
agreement shall be valid or enforceable if it requires arbitration of a dispute
arising out of this section.
 
 Requirement
to Post Notice of Rights and Remedies:  Any employer receiving covered
funds under the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5,
shall post notice of the rights and remedies as required therein. (Refer to
section 1553 of the American Recovery and Reinvestment Act of 2009, Pub. L.
111-5, www.Recovery.gov, for specific requirements of this section and
prescribed language for the notices.).
 
 G.
RESERVED
 
 H. False
Claims Act
 
 Recipient
and sub-recipients shall promptly refer to the DOE or other appropriate
Inspector General any credible evidence that a principal, employee, agent,
contractor, sub-grantee, subcontractor or other person has submitted a false
claim under the False Claims Act or has committed a criminal or civil violation
of laws pertaining to fraud, conflict of interest, bribery, gratuity or similar
misconduct involving those funds.
  13
  I.
Information in Support of Recovery Act Reporting
 
 Recipient
may be required to submit backup documentation for expenditures of funds under
the Recovery Act including such items as timecards and
invoices.  Recipient shall provide copies of backup documentation at
the request of the Contracting Officer or designee.
 
 J.
Availability of Funds
 
 Funds
appropriated under the Recovery Act and obligated to this award are available
for reimbursement of costs until September 30, 2015.
 
 
 K.
RESERVED
 
 REPORTING AND REGISTRATION
REQUIREMENTS UNDER SECTION 1512 OF THE RECOVERY ACT
 
 (a) This
award requires the recipient to complete projects or activities which are funded
under the American Recovery and Reinvestment Act of 2009 (Recovery Act) and to
report on use of Recovery Act funds provided through this award. Information
from these reports will be made available to the public.
 
 (b) The
reports are due no later than ten calendar days after each calendar quarter in
which the recipient receives the assistance award funded in whole or in part by
the Recovery Act.
 
 (c)
Recipients and their first-tier recipients must maintain current registrations
in the Central Contractor Registration (http://www.ccr.gov) at all times during
which they have active federal awards funded with Recovery Act funds. A Dun and
Bradstreet Data Universal Numbering System (DUNS) Number (http://www.dnb.com) is
one of the requirements for registration in the Central Contractor
Registration.
  (d) The
recipient shall report the information described in section 1512(c) of the
Recovery Act using the reporting instructions and data elements that will be
provided online at http://www.FederalReporting.gov and ensure that any
information that is pre-filled is corrected or updated as needed.
 
 RECOVERY ACT TRANSACTIONS LISTED IN
SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS AND RECIPIENT RESPONSIBILITIES FOR
INFORMING SUBRECIPIENTS
 
 (a) To
maximize the transparency and accountability of funds authorized under the
American Recovery and Reinvestment Act of 2009 (Pub. L. 111--5) (Recovery Act)
as required by Congress and in accordance with 2 CFR 215.21 "Uniform
Administrative Requirements for Grants and Agreements" and OMB Circular A--102
Common Rules provisions, recipients agree to maintain records that identify
adequately the source and application of Recovery Act funds. OMB Circular A--102
is available at
http://www.whitehouse.gov/omb/circulars/a102/a102.html.
 
 (b) For
recipients covered by the Single Audit Act Amendments of 1996 and OMB Circular
A--133, "Audits of States, Local Governments, and Non-Profit Organizations,"
recipients agree to separately identify the expenditures for Federal awards
under the Recovery Act on the Schedule of Expenditures of Federal Awards (SEFA)
and the Data Collection Form (SF--SAC) required by OMB Circular A--133. OMB
Circular A--133 is available at
http://www.whitehouse.gov/omb/circulars/a133/a133.html. This shall be
accomplished by identifying expenditures for Federal awards made under the
Recovery Act separately on the SEFA, and as separate rows under Item 9 of Part
III on the SF--SAC by CFDA number, and inclusion of the prefix "ARRA-" in
identifying the name of the Federal program on the SEFA and as the first
characters in Item 9d of Part III on the SF--SAC.
 
 (c)
Recipients agree to separately identify to each subrecipient, and document at
the time of subaward and at the time of disbursement of funds, the Federal award
number, CFDA number, and amount of Recovery Act funds. When a recipient awards
Recovery Act funds for an existing program, the information furnished to
subrecipients shall distinguish the subawards of incremental Recovery Act funds
from regular subawards under the existing program.
 
 (d)
Recipients agree to require their subrecipients to include on their SEFA
information to specifically identify Recovery Act funding similar to the
requirements for the recipient SEFA described above. This information is needed
to allow the recipient to properly monitor subrecipient expenditure of ARRA
funds as well as oversight by the Federal awarding agencies, Offices of
Inspector General and the Government Accountability Office.
  14
  DAVIS BACON ACT AND CONTRACT WORK
HOURS AND SAFETY STANDARDS ACT
 
 Definitions:For purposes of this
article, Davis Bacon Act and Contract Work Hours and Safety Standards Act, the
following definitions are applicable:
 
 (1) “Award” means any grant, cooperative
agreement or technology investment agreement made with Recovery Act funds by the
Department of Energy (DOE) to a Recipient.  Such Award must require
compliance with the labor standards clauses and wage rate requirements of the
Davis-Bacon Act (DBA) for work performed by all laborers and mechanics employed
by Recipients (other than a unit of State or local government whose own
employees perform the construction) Subrecipients, Contractors and
subcontractors.
 
 (2) “Contractor” means an entity that
enters into a Contract.  For purposes of these clauses, Contractor
shall include (as applicable) prime contractors,  Recipients,
Subrecipients, and Recipients’or Subrecipients’contractors, subcontractors, and
lower-tier subcontractors. “Contractor” does not mean a unit of State or local
government where construction is performed by its own
employees.”
 
 (3) “Contract” means a contract executed
by a Recipient, Subrecipient, prime contractor or any tier subcontractor for
construction, alteration, or repair.  It may also mean (as applicable)
(i) financial assistance instruments such as grants, cooperative agreements,
technology investment agreements, and loans; and, (ii) Sub awards, contracts and
subcontracts issued under financial assistance agreements.  “Contract”
does not mean a financial assistance instrument with a unit of State or local
government where construction is performed by its own
employees.
 
 (4) “Contracting Officer” means the DOE
official authorized to execute an Award on behalf of DOE and who is responsible
for the business management and non-program aspects of the financial assistance
process.
 
 (5) “Recipient” means any entity other
than an individual that receives an Award of Federal funds in the form of a
grant, cooperative agreement or technology investment agreement directly from
the Federal Government and is financially accountable for the use of any DOE
funds or property, and is legally responsible for carrying out the terms and
conditions of the program and Award.
 
 (6) “Subaward” means an award of
financial assistance in the form of money, or property in lieu of money, made
under an award by a Recipient to an eligible Subrecipient or by a Subrecipient
to a lower- tier subrecipient.  The term includes financial assistance
when provided by any legal agreement, even if the agreement is called a
contract, but does not include the Recipient’s procurement of goods and services to
carry out the program nor does it include any form of assistance which is
excluded from the definition of “Award” above.
 
 (7) “Subrecipient” means a non-Federal
entity that expends Federal funds received from a Recipient to carry out a
Federal program, but does not include an individual that is a beneficiary of
such a program.
  15
  (a) Davis Bacon
Act
 
 (1) Minimum
wages.
 (i) All
laborers and mechanics employed or working upon the site of the work (or under
the United States Housing Act of 1937 or under the Housing Act of 1949 in the
construction or development of the project), will be paid unconditionally and
not less often than once a week, and without subsequent deduction or rebate on
any account (except such payroll deductions as are permitted by regulations
issued by the Secretary of Labor under the Copeland Act (29 CFR part 3) ), the
full amount of wages and bona fide fringe benefits (or cash equivalents thereof)
due at time of payment computed at rates not less than those contained in the
wage determination of the Secretary of Labor which is attached hereto and made a
part hereof, regardless of any contractual relationship which may be alleged to
exist between the Contractor and such laborers and mechanics.
 
 Contributions made or costs reasonably
anticipated for bona fide fringe benefits under section 1(b)(2) of the
Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to
such laborers or mechanics, subject to the provisions of paragraph (a)(1)(iv) of
this section; also, regular contributions made or costs incurred for more than a
weekly period (but not less often than quarterly) under plans, funds, or
programs which cover the particular weekly period, are deemed to be
constructively made or incurred during such weekly period. Such laborers and
mechanics shall be paid the appropriate wage rate and fringe benefits on the
wage determination for the classification of work actually performed, without
regard to skill, except as provided in § 5.5(a)(4). Laborers or mechanics
performing work in more than one classification may be compensated at the rate
specified for each classification for the time actually worked therein:Provided, That the employer's payroll records
accurately set forth the time spent in each classification in which work is
performed. The wage determination (including any additional classification and
wage rates conformed under paragraph (a)(1)(ii) of this section) and the
Davis-Bacon poster (WH-1321) shall be posted at all times by the Contractor and
its subcontractors at the site of the work in a prominent and accessible place
where it can be easily seen by the workers.
 
 (ii)(A) The Contracting Officer shall
require that any class of laborers or mechanics, including helpers, which is not
listed in the wage determination and which is to be employed under the Contract
shall be classified in conformance with the wage determination. The Contracting
Officer shall approve an additional classification and wage rate and fringe
benefits therefore only when the following criteria have been
met:
 
 (1) The work to be performed by the
classification requested is not performed by a classification in the wage
determination; and
 
 (2) The classification is utilized in
the area by the construction industry; and
 
 (3) The proposed wage rate, including
any bona fide fringe benefits, bears a reasonable relationship to the wage rates
contained in the wage determination.
 
 (B) If the
Contractor and the laborers and mechanics to be employed in the classification
(if known), or their representatives, and the Contracting Officer agree on the
classification and wage rate (including the amount designated for fringe
benefits where appropriate), a report of the action taken shall be sent by the
Contracting Officer to the Administrator of the Wage and Hour Division, U.S.
Department of Labor, Washington, DC 20210. The Administrator, or an authorized
representative, will approve, modify, or disapprove every additional
classification action within 30 days of receipt and so advise the Contracting
Officer or will notify the Contracting Officer within the 30-day period that
additional time is necessary.
 
 (C) In the
event the Contractor, the laborers or mechanics to be employed in the
classification or their representatives, and the Contracting Officer do not
agree on the proposed classification and wage rate (including the amount
designated for fringe benefits, where appropriate), the Contracting Officer
shall refer the questions, including the views of all interested parties and the
recommendation of the Contracting Officer, to the Administrator for
determination. The Administrator, or an authorized representative, will issue a
determination within 30 days of receipt and so advise the Contracting Officer or
will notify the Contracting Officer within the 30-day period that additional
time is necessary.
  16
 (D) The wage
rate (including fringe benefits where appropriate) determined pursuant to
paragraphs (a)(1)(ii)(B) or (C) of this section, shall be paid to all workers
performing work in the classification under this Contract from the first day on
which work is performed in the classification.
 (iii)
Whenever the minimum wage rate prescribed in the Contract for a class of
laborers or mechanics includes a fringe benefit which is not expressed as an
hourly rate, the Contractor shall either pay the benefit as stated in the wage
determination or shall pay another bona fide fringe benefit or an hourly cash
equivalent thereof.
 
 (iv) If the
Contractor does not make payments to a trustee or other third person, the
Contractor may consider as part of the wages of any laborer or mechanic the
amount of any costs reasonably anticipated in providing bona fide fringe
benefits under a plan or program,Provided, That the Secretary of Labor has found,
upon the written request of the Contractor, that the applicable standards of the
Davis-Bacon Act have been met. The Secretary of Labor may require the Contractor
to set aside in a separate account assets for the meeting of obligations under
the plan or program.
 
 (2)
Withholding. The Department of Energy or the Recipient or Subrecipient shall
upon its own action or upon written request of an authorized representative of
the Department of Labor withhold or cause to be withheld from the Contractor
under this Contract or any other Federal contract with the same prime
contractor, or any other federally-assisted contract subject to Davis-Bacon
prevailing wage requirements, which is held by the same prime contractor, so
much of the accrued payments or advances as may be considered necessary to pay
laborers and mechanics, including apprentices, trainees, and helpers, employed
by the Contractor or any subcontractor the full amount of wages required by the
Contract. In the event of failure to pay any laborer or mechanic, including any
apprentice, trainee, or helper, employed or working on the site of the work (or
under the United States Housing Act of 1937 or under the Housing Act of 1949 in
the construction or development of the project), all or part of the wages
required by the Contract, the Department of Energy, Recipient, or
Subrecipient,  may, after written notice to the Contractor, sponsor,
applicant, or owner, take such action as may be necessary to cause the
suspension of any further payment, advance, or guarantee of funds until such
violations have ceased.
 
 (3) Payrolls
and basic records.
 
 (i) Payrolls
and basic records relating thereto shall be maintained by the Contractor during
the course of the work and preserved for a period of three years thereafter for
all laborers and mechanics working at the site of the work (or under the United
States Housing Act of 1937, or under the Housing Act of 1949, in the
construction or development of the project). Such records shall contain the
name, address, and social security number of each such worker, his or her
correct classification, hourly rates of wages paid (including rates of
contributions or costs anticipated for bona fide fringe benefits or cash
equivalents thereof of the types described in section 1(b)(2)(B) of the
Davis-Bacon Act), daily and weekly number of hours worked, deductions made and
actual wages paid. Whenever the Secretary of Labor has found under 29 CFR
5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of
any costs reasonably anticipated in providing benefits under a plan or program
described in section 1(b)(2)(B) of the Davis-Bacon Act, the Contractor shall
maintain records which show that the commitment to provide such benefits is
enforceable, that the plan or program is financially responsible, and that the
plan or program has been communicated in writing to the laborers or mechanics
affected, and records which show the costs anticipated or the actual cost
incurred in providing such benefits. Contractors employing apprentices or
trainees under approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of trainee programs,
the registration of the apprentices and trainees, and the ratios and wage rates
prescribed in the applicable programs.
 17
  (ii)
                  (A) The Contractor shall submit
      weekly for each week in which any Contract work is performed a copy of all
      payrolls to the Department of Energy if the agency is a party to the
      Contract, but if the agency is not such a party, the Contractor will
      submit the payrolls to the Recipient or Subrecipient (as applicable),
      applicant, sponsor, or owner, as the case may be, for transmission to the
      Department of Energy.The payrolls submitted shall set
      out accurately and completely all of the information required to be
      maintained under 29 CFR 5.5(a)(3)(i), except that full social security
      numbers and home addresses shall not be included on weekly transmittals.
      Instead the payrolls shall only need to include an individually
      identifying number for each employee (e.g., the last four digits of the
      employee's social security number).The required weekly payroll
      information may be submitted in any form desired. Optional Form WH-347 is
      available for this purpose from the Wage and Hour Division Web site at
      http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor site. The
      prime Contractor is responsible for the submission of copies of payrolls
      by all subcontractors. Contractors and subcontractors shall maintain the
      full social security number and current address of each covered worker,
      and shall provide them upon request to the Department of Energy if the
      agency is a party to the Contract, but if the agency is not such a party,
      the Contractor will submit them to the Recipient or Subrecipient (as
      applicable), applicant, sponsor, or owner, as the case may be, for
      transmission to the Department of Energy, the Contractor, or the Wage and
      Hour Division of the Department of Labor for purposes of an investigation
      or audit of compliance with prevailing wage requirements. It is not a
      violation of this section for a prime contractor to require a
      subcontractor to provide addresses and social security numbers to the
      prime contractor for its own records, without weekly submission to the
      sponsoring government agency (or the Recipient or Subrecipient (as
      applicable), applicant, sponsor, or
  owner).
 
 (B) Each
payroll submitted shall be accompanied by a “Statement of Compliance,” signed by
the Contractor or subcontractor or his or her agent who pays or supervises the
payment of the persons employed under the Contract and shall certify the
following:
 
 (1) That the payroll for the payroll
period contains the information required to be provided under § 5.5 (a)(3)(ii)
of Regulations, 29 CFR part 5, the appropriate information is being maintained
under § 5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information
is correct and complete;
 
 (2) That each laborer or mechanic
(including each helper, apprentice, and trainee) employed on the Contract during
the payroll period has been paid the full weekly wages earned, without rebate,
either directly or indirectly, and that no deductions have been made either
directly or indirectly from the full wages earned, other than permissible
deductions as set forth in Regulations, 29 CFR part 3;
 
 (3) That
each laborer or mechanic has been paid not less than the applicable wage rates
and fringe benefits or cash equivalents for the classification of work
performed, as specified in the applicable wage determination incorporated into
the Contract.
 
 (C) The weekly submission of a
      properly executed certification set forth on the reverse side of Optional
      Form WH-347 shall satisfy the requirement for submission of the “Statement
      of Compliance” required by paragraph (a)(3)(ii)(B) of this
      section.
 
 (D) The
falsification of any of the above certifications may subject the Contractor or
subcontractor to civil or criminal prosecution under section 1001 oftitle 18 and section 3729 of title 31 of the United States
Code.
 
 (iii) The
Contractor or subcontractor shall make the records required under paragraph
(a)(3)(i) of this section available for inspection, copying, or transcription by
authorized representatives of the Department of Energy or the Department of
Labor, and shall permit such representatives to interview employees during
working hours on the job. If the Contractor or subcontractor fails to submit the
required records or to make them available, the Federal agency may, after
written notice to the Contractor, sponsor, applicant, or owner, take such action
as may be necessary to cause the suspension of any further payment, advance, or
guarantee of funds. Furthermore, failure to submit the required records upon
request or to make such records available may be grounds for debarment action
pursuant to29 CFR 5.12.
 18
  (4)
Apprentices and trainees--
 
 (i)
Apprentices. Apprentices will be permitted to work at less than the
predetermined rate for the work they performed when they are employed pursuant
to and individually registered in a bona fide apprenticeship program registered
with the U.S. Department of Labor, Employment and Training Administration,
Office of Apprenticeship Training, Employer and Labor Services, or with a State
Apprenticeship Agency recognized by the Office, or if a person is employed in
his or her first 90 days of probationary employment as an apprentice in such an
apprenticeship program, who is not individually registered in the program, but
who has been certified by the Office of Apprenticeship Training, Employer and
Labor Services or a State Apprenticeship Agency (where appropriate) to be
eligible for probationary employment as an apprentice. The allowable ratio of
apprentices to journeymen on the job site in any craft classification shall not
be greater than the ratio permitted to the Contractor as to the entire work
force under the registered program. Any worker listed on a payroll at an
apprentice wage rate, who is not registered or otherwise employed as stated
above, shall be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed. In addition,
any apprentice performing work on the job site in excess of the ratio permitted
under the registered program shall be paid not less than the applicable wage
rate on the wage determination for the work actually performed. Where a
Contractor is performing construction on a project in a locality other than that
in which its program is registered, the ratios and wage rates (expressed in
percentages of the journeyman's hourly rate) specified in the Contractor's or
subcontractor's registered program shall be observed. Every apprentice must be
paid at not less than the rate specified in the registered program for the
apprentice's level of progress, expressed as a percentage of the journeymen
hourly rate specified in the applicable wage determination. Apprentices shall be
paid fringe benefits in accordance with the provisions of the apprenticeship
program. If the apprenticeship program does not specify fringe benefits,
apprentices must be paid the full amount of fringe benefits listed on the wage
determination for the applicable classification. If the Administrator determines
that a different practice prevails for the applicable apprentice classification,
fringes shall be paid in accordance with that determination. In the event the
Office of Apprenticeship Training, Employer and Labor Services, or a State
Apprenticeship Agency recognized by the Office, withdraws approval of an
apprenticeship program, the Contractor will no longer be permitted to utilize
apprentices at less than the applicable predetermined rate for the work
performed until an acceptable program is approved.
 
 (ii)
Trainees. Except as provided in29 CFR 5.16, trainees will not be permitted to work at
less than the predetermined rate for the work performed unless they are employed
pursuant to and individually registered in a program which has received prior
approval, evidenced by formal certification by the U.S. Department of Labor,
Employment and Training Administration. The ratio of trainees to journeymen on
the job site shall not be greater than permitted under the plan approved by the
Employment and Training Administration. Every trainee must be paid at not less
than the rate specified in the approved program for the trainee's level of
progress, expressed as a percentage of the journeyman hourly rate specified in
the applicable wage determination. Trainees shall be paid fringe benefits in
accordance with the provisions of the trainee program. If the trainee program
does not mention fringe benefits, trainees shall be paid the full amount of
fringe benefits listed on the wage determination unless the Administrator of the
Wage and Hour Division determines that there is an apprenticeship program
associated with the corresponding journeyman wage rate on the wage determination
which provides for less than full fringe benefits for apprentices. Any employee
listed on the payroll at a trainee rate who is not registered and participating
in a training plan approved by the Employment and Training Administration shall
be paid not less than the applicable wage rate on the wage determination for the
classification of work actually performed. In addition, any trainee performing
work on the job site in excess of the ratio permitted under the registered
program shall be paid not less than the applicable wage rate on the wage
determination for the work actually performed. In the event the Employment and
Training Administration withdraws approval of a training program, the Contractor
will no longer be permitted to utilize trainees at less than the applicable
predetermined rate for the work performed until an acceptable program is
approved.
 
 (iii) Equal
employment opportunity. The utilization of apprentices, trainees and journeymen
under this part shall be in conformity with the equal employment opportunity
requirementsof Executive Order 11246, as amended and 29 CFR part
30.
  19
 (5)
Compliance with Copeland Act requirements. The Contractor shall comply with the
requirements of 29 CFR part 3, which are incorporated by reference in this
Contract.
 
 (6)
Contracts and Subcontracts. The Recipient, Subrecipient, the
Recipient’s and Subrecipient’s contractors and subcontractor shall
insert in any Contracts the clauses contained herein in(a)(1) through (10) and
such other clauses as the Department of Energy may by appropriate instructions
require, and also a clause requiring the subcontractors to include these clauses
in any lower tier subcontracts. The Recipient shall be responsible for the
compliance by any subcontractor or lower tier subcontractor with all of the
paragraphs in this clause.
 
 (7) Contract
termination: debarment. A breach of the Contract clauses in 29 CFR 5.5 may be
grounds for termination of the Contract, and for debarment as a contractor and a
subcontractor as provided in29 CFR 5.12.
 
 (8)
Compliance with Davis-Bacon and Related Act requirements. All rulings and
interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1,
3, and 5 are herein incorporated by reference in this
Contract.
 
 (9) Disputes
concerning labor standards. Disputes arising out of the labor standards
provisions of this Contract shall not be subject to the general disputes clause
of this Contract. Such disputes shall be resolved in accordance with the
procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7.
Disputes within the meaning of this clause include disputes between the
Recipient, Subrecipient, the Contractor (or any of its subcontractors) and the
contracting agency, the U.S. Department of Labor, or the employees or their
representatives.
 
 (10)
Certification of eligibility.
 
 (i) By
entering into this Contract, the Contractor certifies that neither it (nor he or
she) nor any person or firm who has an interest in the Contractor's firm is a
person or firm ineligible to be awarded Government contracts by virtue of
section 3(a) of the Davis-Bacon Actor 29 CFR
5.12(a)(1).
 
 (ii) No part of this Contract shall be subcontracted to
any person or firm ineligible for award of a Government contract by virtue of
section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
 
 (iii) The penalty for making false statements is
prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
 
 
 (b) Contract Work Hours and Safety
Standards Act. As used in this paragraph, the termslaborers and mechanics include watchmen
and guards.
 
 (1) Overtime
requirements. No Contractor or subcontractor contracting for any part of the
Contract work which may require or involve the employment of laborers or
mechanics shall require or permit any such laborer or mechanic in any workweek
in which he or she is employed on such work to work in excess of forty hours in
such workweek unless such laborer or mechanic receives compensation at a rate
not less than one and one-half times the basic rate of pay for all hours worked
in excess of forty hours in such workweek.
  20
  
 (2)
Violation; liability for unpaid wages; liquidated damages. In the event of any
violation of the clause set forth in paragraph (b)(1) of this section the
Contractor and any subcontractor responsible thereforeshall be liable for the unpaid wages.
In addition, such Contractor and subcontractor shall be liable to the United
States (in the case of work done under contract for the District of Columbia or
a territory, to such District or to such territory), for liquidated damages.
Such liquidated damages shall be computed with respect to each individual
laborer or mechanic, including watchmen and guards, employed in violation of the
clause set forth in paragraph (b)(1) of this section, in the sum of $10 for each
calendar day on which such individual was required or permitted to work in
excess of the standard workweek of forty hours without payment of the overtime
wages required by the clause set forth in paragraph (b)(1) of this
section.
 
 (3)
Withholding for unpaid wages and liquidated damages. The Department of Energy or
the Recipient or Subrecipient shall upon its own action or upon written request
of an authorized representative of the Department of Labor withhold or cause to
be withheld, from any moneys payable on account of work performed by the
Contractor or subcontractor under any such contract or any other Federal
contract with the same prime Contractor, or any other federally-assisted
contract subject to the Contract Work Hours and Safety Standards Act, which is
held by the same prime contractor, such sums as may be determined to be
necessary to satisfy any liabilities of such Contractor or subcontractor for
unpaid wages and liquidated damages as provided in the clause set forth in
paragraph (b)(2) of this section.
 
 (4)
Contracts and Subcontracts. The Recipient, Subrecipient, and
Recipient’s and Subrecipient’s contractor or subcontractor shall
insert in any Contracts, the clauses set forth in paragraph (b)(1) through (4)
of this section and also a clause requiring the subcontractors to include these
clauses in any lower tier subcontracts. The Recipient shall be responsible for
compliance by any subcontractor or lower tier subcontractor with the clauses set
forth in paragraphs (b)(1) through (4) of this section.
 
 (5) The
Contractor or subcontractor shall maintain payrolls and basic payroll records
during the course of the work and shall preserve them for a period of three
years from the completion of the Contract for all laborers and mechanics,
including guards and watchmen, working on the Contract. Such records shall
contain the name and address of each such employee, social security number,
correct classifications, hourly rates of wages paid, daily and weekly number of
hours worked, deductions made, and actual wages paid.  The records to
be maintained under this paragraph shall be made available by the Contractor or
subcontractor for inspection, copying, or transcription by authorized
representatives of the Department of Energy and the Department of Labor, and the
Contractor or subcontractor will permit such representatives to interview
employees during working hours on the job.
 
 RECIPIENT
FUNCTIONS
 
 (1) On
behalf of the Department of Energy (DOE), Recipient shall perform the following
functions:
 (a)
Obtain, maintain, and monitor all DBA certified payroll records submitted by the
Subrecipients and Contractors at any tier under this Award;
 (b)
Review all DBA certified payroll records for compliance with DBA requirements,
including applicable DOL wage determinations;
 (c)
Notify DOE of any non-compliance with DBA requirements by Subrecipients or
Contractors at any tier, including any non-compliances identified as the result
of reviews performed pursuant to paragraph (b) above;
 (d)
Address any Subrecipient and any Contractor DBA non-compliance issues; if DBA
non-compliance issues cannot be resolved in a timely manner, forward complaints,
summary of investigations and all relevant information to DOE;
 (e)
Provide DOE with detailed information regarding the resolution of any DBA
non-compliance issues;
 (f)
Perform services in support of DOE investigations of complaints filed regarding
noncompliance by Subrecipients and Contractors with DBA
requirements;
 (g)
Perform audit services as necessary to ensure compliance by Subrecipients and
Contractors with DBA requirements and as requested by the Contracting Officer;
and
  21
  (h)
Provide copies of all records upon request by DOE or DOL in a timely
manner.
 (2) All
records maintained on behalf of the DOE in accordance with paragraph (1) above
are federal government (DOE) owned records. DOE or an authorized representative
shall be granted access to the records at all times.
 (3) In
the event of, and in response to any Freedom of Information Act, 5 U.S.C. 552,
requests submitted to DOE, Recipient shall provide such records to DOE within 5
business days of receipt of a request from DOE.
 
 FINAL INCURRED COST
AUDIT
 
 In
accordance with 10 CFR 600, DOE reserves the right to initiate a final incurred
cost audit on this award.  If the audit has not been performed or
completed prior to the closeout of the award, DOE retains the right to recover
an appropriate amount after fully considering the recommendations on disallowed
costs resulting from the final audit.
  22
  Attachment
6 - Negotiated Changes To Award from Application Dated May 18, 2009
 
 ·
                Originally
      the Recipient intended to expand their Indianapolis site on Hague road,
      and their site at Noblesville. After further consideration they found that
      it would be more cost effective to buy a third site, their planned
      facility in Greenfield, IN. Rather instead of expanding the facilities at
      Hague Road and Noblesville, they will bring these up to full capacity for
      the current building footprints, and then the additional production
      capability will be put into the Greenfield site. The focus of the
      Noblesville site has changed slightly also. They originally intended the
      Noblesville site to be for testing and Pack assembly. They will now use
      the Noblesville site primarily for testing, and pack assembly will take
      place at Greenfield. Despite these changes, the total estimated production
      capability has not changed from the original
  application.
   ·
                The
      original application requested a Federal cost share of 75%. Upon selection
      the selection official requested the Recipient provide 50% cost share as a
      condition of award.  The Recipient has concurred with this
      selection condition.  The project total cost has not changed
      from the original application. The Recipient will simply be paying 50% of
      the cost share instead of the proposed
25%.
 
 ·
                The
      Recipient submitted confidence letters in regards to the ability to meet
      the cost share.
 
 ·
                The
      Recipient elected to participate in the class
  waiver.
  ·
                Contingencies
      have been removed from the proposed
budget.