EXHIBIT 10.1
OHIO Grant Agreement
AGREEMENT
BETWEEN
STATE OF OHIO
DEPARTMENT OF DEVELOPMENT
COMMUNITY DEVELOPMENT DIVISION
OFFICE OF ENERGY EFFICIENCY
(hereinafter referred to as the GRANTOR)
AND
HydroGen Inc.
0000 Xxxxx 00 Xxxxx
Xxxxxxxxx Xxxxx, XX 00000
FED. TAX I.D. #: 00-0000000
(hereinafter referred to as the GRANTEE)
FOR
SEP-Utilities/Power-Renewables-Advanced Energy Technologies
Beginning: September 1, 2005
and
Ending: July 31, 2007
Grant Number: 06-05
GRANT AGREEMENT
This Grant Agreement (the "Agreement") is entered into by and between the
State of Ohio, Department of Development (hereinafter variously referred to as
the "Grantor"), located at 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 and
HydroGen Inc., (hereinafter variously referred to as the "Grantee"), located at
0000 Xxxxx 00 Xxxxx, Xxxxxxxxx Xxxxx, XX 00000, for the purpose of undertaking
the project and activities as set forth in the "Scope of Work" attached hereto
and incorporated herein as Exhibit I (hereinafter referred to as "the Project")
during the period September 1, 2005 through July 31, 2007.
Grantee Federal Tax ID No. 00-0000000 Grant No. 06-05
STATEMENT OF THE AGREEMENT
In consideration of the mutual promises and covenants herein set forth, the
parties hereto mutually agree that:
1. Grant of Funds. The State of Ohio, Department of Development hereby
grants Federal funds in the amount of $1,250,000.00 for Grantee's performance of
the Project.
2. Compliance. The Project shall be performed in accordance with any and
all applicable local, state, and federal statutes, constitutions, regulations,
directives, guidelines, approved state plans, or other requirements of the
Grantor in effect at the time of the execution of this Agreement or thereafter.
The Grantee accepts full responsibility for payment of any and all unemployment
compensation, insurance premiums, workers' compensation premiums, income tax
deductions, social security deductions, and any and all other taxes or payroll
deductions required for all employees engaged by Grantee in the performance of
the work and activities authorized by this Agreement. The Grantee accepts full
responsibility for providing workers with proper safety equipment and taking any
and all necessary precautions to guarantee the safety of workers or persons
otherwise affected.
3. Management of Moneys. The funds granted herein shall be paid to the
Grantee on a reimbursement basis and are to be requested with supporting
financial documentation as set forth in Exhibit II. The Grantee shall record all
moneys received under this Agreement in a separate account on the books and
records of the Grantee. All payments to the Grantee under this Agreement are to
be used solely for the Project. All requests for payment must be completed on
forms B.1 and B.2, with payment to be made in accordance with Exhibit II. The
Grantee shall not pledge said moneys as security for any loan or debt of any
kind. If said money is not so used, it shall be returned to the Grantor. In the
event that the total amount of the grant exceeds the cost of the project during
the term of this Agreement, the remaining moneys shall be returned to the
Grantor within sixty (60) days of the expiration or termination of this
Agreement.
4. Limitation on Expenditure of Funds. Expenses charged against the funds
granted herein shall not be incurred by the Grantee except during the period of
this Agreement as set forth above, and may be incurred only as necessary in the
performance of the Project. All expenses incurred or obligated for the approved
program must be supported by approved signed contracts, purchase orders,
requisitions, bills, or other evidence of liability consistent with the
Grantee's established procurement procedures. The Grantee shall require delivery
before payment is made for purchased goods, equipment, or services, unless the
Grantee obtains reasonably satisfactory security from the vendor for payment
made. The Grantee and Grantor shall act in accordance with the provisions of 10
CFR 600.134 in relationship to the use and disposition of any and all equipment
purchased with the funds granted to the Grantee hereunder.
5. Reports, Records and Evaluations. The Grantee shall submit to the
Grantor reports detailing the expenditures of the funds granted pursuant to this
Agreement and such other reports as may be reasonably required by the Grantor,
including the reports listed, and according to the schedule set forth, in
Exhibit II, which is attached hereto, made a part hereof and incorporated by
reference herein as if fully set forth herein. The Grantor shall evaluate, and
provide guidance to the Grantee in preparing all required reports, records, and
evaluations to be submitted under the terms of this Agreement. Grantee staff and
Board members shall cooperate with authorized personnel of the Grantor in their
program monitoring and shall maintain, and make available all programmatic and
performance records necessary for said monitoring within a reasonable time.
Failure to submit any one of the reports listed in Exhibit II, submission of
erroneous information in said reports, failure to maintain any one of the
records listed in Exhibit II, or failure to correct any discrepancies or
weaknesses identified by the Grantor as a result of examination of any reports
or records, which continues for a period of thirty (30) days following written
notice of such failure, may be considered grounds for suspension of financial
assistance and termination of this Agreement. Using generally accepted
accounting principles, the Grantee shall prepare and retain any books and
records necessary to ensure compliance with the terms and conditions of this
Agreement as set forth in Exhibit II.
6. Auditing Standards. The Grantee acknowledges that this Agreement
involves the use of federal funds and as such is subject to audit by the agency
of the United States government granting funds to the Grantor for purposes of
performing the Project. As directed by the Grantor, the Project will be subject
to fiscal and compliance audits in accordance with Generally Accepted Auditing
Standards as promulgated by OMB Circulars X-000, X-000, xx X-000 (whichever
applicable), United States General Accounting Office Guidelines for Financial
and Compliance Audits of Federally Assisted Programs.
7. Rights of Inspection. The Grantee shall permit the Grantor and/or its
agents, including but not limited to the Auditor of the State of Ohio, upon
reasonable notice from Grantor, to inspect, during normal business hours, any
books and records necessary to ensure compliance with the terms and conditions
of this Agreement as set forth in Exhibit II. Any such information determined to
be Trade Secrets pursuant to ORC Section 1333.61 will be held as confidential.
The Grantee warrants by executing this Agreement its understanding that rights
of inspection (i) extend to agents of the Grantor's federal agency, including
but not limited to the Inspector General's Office, the Government Accounting
Office, and the Comptroller General; (ii) include the rights to examine the
Grantee's corporate accounts or other accounts and/or funding sources within the
control and/or name of the Grantee when there is evidence (e.g., vouchers,
invoices, canceled checks, descriptions, etc.) that these books contain original
or substantial source documentation of the federal funds granted herein; and
(iii) contain the Grantee's covenant to make all fiscal records available for
inspection to authorized audit personnel of the Grantor and its federal
agencies. The Grantee shall further permit the Grantor to perform monitoring,
evaluation, and audit activities as determined to be necessary in the sole
reasonable discretion of the Grantor.
8. Maintenance of Records. All required records as set forth in Exhibit II
shall be maintained by the Grantee for a period of three (3) years from the date
the final report is submitted, except in cases where unresolved audit questions
may require retention of some or all of said records for a longer period as
determined by Grantor.
9. Federal Assurances, Certifications, and Property Provisions. The
Grantee shall review and complete the documents attached hereto in Exhibit III
in accordance with any and all instructions contained within such documents and
shall comply with any laws, directives, guidelines, or other requirements
described therein.
10. Instructions from Grantor. The Grantor may, from time to time as it
deems appropriate and necessary, communicate specific instructions and requests
to the Grantee concerning the performance of the work described in this
Agreement. Upon such notice and within a reasonable time, the Grantee shall
comply with such instructions and fulfill such requests to the reasonable
satisfaction of the Grantor, which instructions shall be consistent with the
terms and purposes of this Agreement. It is expressly understood by the parties
that these instructions and requests are for the sole purpose of performing the
specific tasks requested to ensure the satisfactory completion of the work
described in this Agreement and are not intended to amend or alter this
Agreement or any part thereof.
11. Covenant Against Contingency Fees. The Grantee covenants that no
person or selling agency or other organization has been employed or retained to
solicit or secure this Agreement upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee. For breach or violation of
this covenant the Grantor shall have the right to rescind this Agreement without
liability or, in its discretion, to deduct from the Agreement or otherwise
recover the full amount of such commission, percentage, brokerage, or contingent
fee, or to seek such other remedies as may be legally available.
12. Termination. The Grantor may terminate this Agreement in any one of
the following instances:
(i) the Grantor determines that the governing board of the Grantee
cannot or will not take the necessary action to bring the Grantee
into compliance with applicable requirements of 10 C.F.R. 600, with
the requirements of any applicable program statute or rule, or with
any other term or condition of this Agreement within the time
allowed by the Grantor;
(ii) the Grantee ceases to exist or becomes legally incapable of
performing its responsibilities under this Agreement; or
(iii) the Grantee fails to comply with any provision of this Agreement
which failure continues following the expiration of any applicable
cure period.
(a) Notice of Termination. The Grantor shall provide written notification
of intent to terminate to the governing board of the Grantee. The
notification shall include the charges for such proposed action, sections
of the statutes, rules, regulations or contractual obligations that the
Grantee is charged with violating, and a statement of the Grantee's right
to request a public hearing on the proposed termination by making a
written request within thirty days of the date of receipt of the notice.
The notice shall also inform the Grantee that the Grantee may be
represented by an attorney or by such other representative as designated
by a majority of the governing board of the Grantee.
(b) Failure of Notice Process. When any notice of intent to terminate sent
by certified mail is returned because of inability to deliver, the notice
required shall be sent by ordinary mail evidenced by a certificate of
mailing to the chairperson of the Grantee.
(c) Partial Termination. The Grantor and the Grantee may agree to a
partial termination of this Agreement, in which event the Grantor and the
Grantee shall, in writing, specify the nature and extent of the partial
termination.
13. Force Majeure. Neither party hereto shall be considered in default in
the performance of its obligations hereunder, or be liable in damages or
otherwise except as expressly set forth in this Agreement for any failure or
delay in performance which is due to strike, lockout, concerted act of workers
or other industrial disturbance, riot or armed conflict whether declared or
undeclared, curtailment, shortage, rationing or allocation of normal sources of
supply of labor, materials, transportation, energy, or utilities, accident, Act
of God, delay of Grantee's subcontractors or vendors, sufferance of or voluntary
compliance with acts of government and government regulations (whether or not
valid), embargo, machinery or equipment breakdown, or due to any other cause
whether similar or dissimilar to any of the causes or categories of causes above
and which is beyond the reasonable control of the party claiming excuse
hereunder.
14. Effects of Termination. In the event of termination, all property and
finished or unfinished documents, data, studies and reports purchased or
prepared by the Grantee under this Agreement shall be disposed of according to
Grantor directives, and the Grantee shall be entitled to compensation for any
unreimbursed expenses reasonably and necessarily incurred in the satisfactory
performance of this Agreement at any time up to the effective date of
termination (notwithstanding that a request for reimbursement may not be
submitted until following such termination date). [The Grantee shall incur no
new obligations after the notice of the termination of this Agreement, and shall
cancel as many outstanding obligations as possible, it being understood,
however, that this sentence shall apply solely to obligations being funded by or
through Grantor.] In the case of a partial termination, the Grantee shall incur
no obligations other than those specifically identified in the contract
governing the partial termination. Notwithstanding any of the provisions of this
section, the Grantee shall not be relieved of its responsibility for damages
sustained by the Grantor by virtue of any breach of contract by the Grantee, and
the Grantor may withhold any reimbursement to the Grantee for the purpose of
set-off until such time as the exact amount of damages due the Grantor from the
Grantee is agreed upon or otherwise determined.
15. Request to Terminate by Grantee. Notwithstanding any of the provisions
of this section, if the Grantee is unable or unwilling to comply with such
additional conditions as may be lawfully applied by the Grantor, the Grantee may
request to terminate this Agreement by giving reasonable written notice to the
Grantor, signifying the effective date thereof, the reasons for requesting the
termination, and an appropriate budget revision. In such event, the Grantor
shall terminate the Agreement only if both parties agree to the termination and
to the conditions under which it shall occur.
16. Equal Employment Opportunity. The Grantee will not discriminate
against any employee or applicant for employment because of race, religion,
color, sex, national origin, handicap, or age. The Grantee will take affirmative
action to ensure the employment of qualified applicants without regard to the
race, religion, color, sex, national origin, handicap, or age of such
applicants. Such action shall include, but not be limited to, the following:
Employment, Upgrading, Demotion, Termination, Rates of Pay or other Forms of
Compensation, and Selection for Training, including Apprenticeship. The Grantee
agrees to post in conspicuous places, available to employees and applicants for
employment, notices setting forth the provisions of this non-discrimination
clause. The Grantee will, in all solicitations or advertisements for employment
positions, expressly indicate that applications placed for consideration of
employment will be reviewed without regard to the race, religion, color, sex,
national origin, handicap, or age of the applicant. The Grantee will incorporate
the foregoing requirements of this section in all of its contracts for any of
the work described herein and will require all of its subcontractors for any
part of such work to incorporate such requirements in all subcontracts for such
work.
17. Age Discrimination. Any prohibition against discrimination on the
basis of age under the Age Discrimination Act of 1975 or with respect to an
otherwise qualified handicapped individual as provided in Section 504 of the
Rehabilitation Act of 1973 shall also apply to any program or activity funded in
whole or in part with funds made available under this Agreement.
18. Indemnification. The Grantee agrees to indemnify and to hold the
Grantor and State of Ohio harmless and immune from any and all claims for injury
or damages arising from this Agreement and Grantee's performance of the
obligations or activities in furtherance of the Project which are attributable
to the Grantee's own actions or omissions or those of its trustees, officers,
employees, subcontractors, suppliers, third parties utilized by the Grantee, or
joint venturers while acting under this Agreement. Such claims shall include,
but are not limited to, any claims made under the Fair Labor Standards Act or
under any other federal or state law involving wages, overtime, or employment
matters and any claims involving patents, copyrights, and trademarks. The
Grantee shall bear all costs associated with defending the Grantor and the State
of Ohio against any claims.
19. Conflict of Interest. No personnel of Grantee, any subcontractor of
Grantee or public official, who exercises any functions or responsibilities in
connection with the review or approval of the work completed under this
Agreement shall, prior to the completion of said work, voluntarily or
involuntarily acquire any personal interest, direct or indirect, which is
incompatible or in conflict with the discharge or fulfillment of his functions
or responsibilities with respect to the completion of the work contemplated
under this Agreement. Any such person who, prior to or after the execution of
this Agreement, acquires any personal interest, involuntarily or voluntarily,
shall immediately disclose his interest to Grantor in writing. Thereafter, he
shall not participate in any action affecting the work under this Agreement
unless Grantor determines that, in light of the personal interest disclosed, his
participation in any such action would not be contrary to the public interest.
20. Certification of Funds. None of the rights, duties and obligations
described in this Agreement shall be binding on either party until all statutory
provisions of the Ohio Revised Code, including but not limited to Section
126.07, have been complied with and until such time as all necessary funds are
made available and forthcoming from the appropriate state or federal agencies.
21. Miscellaneous.
a). Governing Law. This Agreement shall be governed by the laws of the
State of Ohio as to all matters, including but not limited to matters of
validity, construction, effect and performance.
b). Forum and Venue. All actions regarding this Agreement shall be forumed
and venued in a court of competent subject matter jurisdiction in Franklin
County, Ohio.
c). Entire Agreement. This Agreement and its exhibits and any documents
referred to herein constitute the complete understanding of the parties and
merge and supersede any and all other discussions, agreements and
understandings, either oral or written, between the parties with respect to the
subject matter hereof.
d). Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provisions of this Agreement.
e). Waiver. Terms, conditions, or requirements of the Agreement may be
waived only upon the express written consent of the Grantor as allowed by law.
No act or forbearance or failure to insist on the prompt performance by the
Grantee of its obligations under this Agreement, either express or implied,
shall be construed as a waiver by the Grantor of any of its rights hereunder or
at law.
f). Notices. All notices, consents, demands, requests and other
communications which may or are required to be given hereunder shall be in
writing and shall be deemed duly given if personally delivered or sent by United
States mail, prepaid, to the addresses set forth hereunder or to such other
address as the other party hereto may designate in written notice transmitted in
accordance with the provision.
1.) In case of the Grantor to:
Ohio Department of Development
Office of Energy Efficiency
P. O. Xxx 0000
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx Xxxx
(000) 000-0000
2.) In case of the Grantee to:
HydroGen Inc.
0000 Xxxxx 00 Xxxxx
Xxxxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
(000)000-0000
g). Amendments or Modifications. Either party may at any time during the
term of this Agreement request amendments or modifications. Requests for
amendment or modification of this Agreement shall be in writing and shall
specify the requested changes and the justification of such changes. The parties
shall review the request for modification in terms of the regulations and goals
relating to the Project. Should the parties consent to modification of the
Agreement, then an amendment shall be drawn, approved, and executed in the same
manner as the original Agreement.
h). Pronouns. The use of any gender pronoun shall be deemed to include all
the other genders, and the use of any singular noun or verb shall be deemed to
include the plural, and vice versa, whenever the context so requires.
i). Headings. Section headings contained in this Agreement are inserted
for convenience only and shall not be deemed to be a part of this Agreement.
j). Assignment. Neither this Agreement nor any rights, duties, or
obligations described herein shall be assigned or subcontracted by the Grantee
without the prior express written consent of the Grantor, which shall not be
unreasonably withheld.
k). Travel Expenses. If contemplated under this Agreement, the Grantee,
its employees or agents, shall be reimbursed for travel expenses pursuant to the
requirements listed in Ohio Administrative Code Section 126-1-02.
l). Outstanding Liabilities. The Grantee affirmatively covenants that it
does not owe: (1) any delinquent taxes to the State of Ohio (the "State") or a
political subdivision of the State; (2) any monies to the State or a state
agency for the administration or enforcement of any environmental laws of the
State; and (3) any other moneys to the State, a state agency or a political
subdivision of the State that are past due, whether the amounts owed are being
contested in a court of law or not.
m). Falsification of Information. The Grantee affirmatively covenants that
it has made no false statements to the Grantor in the process of obtaining this
grant of funds. If the Grantee has knowingly made a false statement to the
Grantor to obtain this grant of funds, the Grantee shall be required to return
all funds immediately pursuant to Ohio Revised Code Section 9.66(C)(2) and shall
be ineligible for any future economic development assistance from the State, any
state agency or a political subdivision pursuant to O.R.C. Section 9.66(C)(1).
Any person who provides a false statement to secure economic development
assistance may be guilty of falsification, a misdemeanor of the first degree,
pursuant to O.R.C. Section 2921.13(D)(1), which is punishable by a fine of not
more than $1,000.00 and/or a term of imprisonment of not more than six months.
n). Successor In Interest. Each and all of the terms and conditions of
this Agreement shall extend to and bind and inure to the benefit of not only
Grantee, but to its successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Grant Agreement
as of the day and year set forth below.
GRANTEE: GRANTOR:
HydroGen Inc. State of Ohio
Department of Development
By: /S/ Xxxxx Xxxxxxx
---------------------------
By: /S/Xxxxxx Xxxxxxxx Lt. Governor Xxxxx Xxxxxxx
---------------------- Director of Development
Xxxxxx Xxxxxxxx,
President
Date: 8/26/05
Date: 8/26/05
Attachments:
Exhibit I - Proposal
Exhibit II - Reporting Requirements
Exhibit III - Federal Assurances, Certifications and Property Provisions
