Exhibit 10.2
SUBCONTRACT AGREEMENT
NUMBER 9908089
BY AND BETWEEN EMPS RESEARCH CORPORATION
AND THE UNIVERSITY OF UTAH
This Subcontract Agreement ("Agreement") is entered into and effective
as of August 14, 2001 by and between EMPS Research Corporation, a corporation
having its principal place of business at 000 Xxxxxx Xxx, Xxxxx 000, Xxxx Xxxx
Xxxx, XX 00000, ("Company") and the University of Utah (Tax ID #876000525), an
institution of higher education for the State of Utah ("Subcontractor").
RECITALS:
WHEREAS, Company has received prime funding from the Department of
Energy (DOE) under Contract #DE-FG36-01G011035 (the "Prime Contract"), and has
provided to the Subcontractor a copy of the award document which is incorporated
herein by this reference, Attachment 1, for the research project entitled
Development of a High Frequency Eddy Current Separator (the "Project") and
WHEREAS, it is considered in the best interest of Company and DOE for
Subcontractor to participate in the Project; and
WHEREAS, Subcontractor wishes to enter into this Agreement with Company
to perform the work described herein and has the capability to complete the
work.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants,
conditions and undertakings herein set forth, the parties agree as follows:
1. Statement of Work. In connection with the Project, Subcontractor agrees to
perform for Company certain research (hereinafter "Research") described in the
Statement of Work and Deliverables set forth in Appendix A, which is attached
hereto and incorporated herein by this reference.
2. Period of Performance. The Project period under this Agreement is intended to
commence on August 15, 2001 and continue until August 14, 2003. Contingent upon
the continuation of prime funding under the Prime Contract, this Agreement may
be extended for additional periods of performance beyond the Initial Term, upon
written approval by Company of a continuation.
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3. Allowable Cost and Payment. For the performanc of this Agreement, Company
shall pay the Subcontractor the compensation as described below subject to the
applicable cost principles regarding allowable costs as amplified by OMB
Circular A-21 Cost Principals for Educational Institutions
3.1 Compensation. Company agrees to pay Subcontractor for performance
of the Research under this Agreement on a cost reimbursement basis. The total
compensation to be paid by Company to Subcontractor for the Research shall not
exceed forty nine thousand nine hundred eighty four dollars ($49,984) for the
first year of the project as set forth in the itemized budget contained in
Appendix B, which is attached hereto and incorporated herein by this reference.
Rebudgeting shall be allowed only with the prior written approval of Company at
Company's sole discretion, or as otherwise authorized under the Prime Contract.
Additional funds for the Project's second year are anticipated to be fifty four
thousand, nine hundred eighty four and, pending Prime authorization, shall be
authorized by amendment to this agreement at the end of the first year of
Project performance.
3.2 Payment. Progress payments shall be made by Company to
Subcontractor from the Prime award proceeds, based upon quarterly invoices
submitted by Subcontractor.
The amounts of all such progress payments shall be limited exclusively
to allowable costs and shall be based upon Subcontractor's verified progress in
completing the Research. Each invoice should state the period for which
reimbursement is being requested and should be submitted on the Subcontractor's
standard billing form. All invoices shall itemize current incurred costs,
cumulative incurred costs, indirect costs (calculated at rates approved by the
cognizant governmental authority) and shall reference the subcontract number
issued by the Company under this Agreement. Invoices shall be delivered to Xxxxx
Xxxxx, Project Manager, EMPS Research Corporation at 000 Xxxxxx Xxx, Xxxxx 000,
Xxxx Xxxx Xxxx, Xxxx 00000, fax 801-582- 8600. All properly submitted and
verified invoices shall be paid within 30 days of delivery to Company, provided
that Company's obligation to pay is contingent upon receipt by Company of
budgeted Award funds from the Prime and that Company shall have the right to
refuse to pay all or any portion of any invoice pending verification of the
accuracy of the invoice or resolution of any dispute with Subcontractor
regarding any invoice. Payment of final invoice shall be contingent upon
satisfactory completion of the Deliverables (as defined in Appendix A) and
acceptance by Company of all final reports required under this Agreement.
3.3 Disallowable Costs. In the event any payments to the Subcontractor
under this Agreement are subsequently disallowed by the Prime Contractor or
Company as items of cost to this Agreement, the subcontractor shall repay
Company on demand the amount of any such disallowed items or, at the discretion
of Company, Company may deduct such amounts from subsequent payments to be made
to the Subcontractor hereunder, without prejudice, however, subject to the
Subcontractor's right thereafter to establish the allowability of any such items
of cost under the Agreement.
4. General Provisions. Subcontractor shall carry out the activities and intent
of this Agreement in accordance with the General Provisions, Certifications and
Assurances set
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forth in Attachment 2, attached, hereto and incorporated herein by this
reference (the "General Provisions.")
5. Technical Supervision
5.1 Supervision by Company. The principal investigator under the Prime
Contract is Xxxxxxx Xxxxx, or such other person as may be designated by Company,
who shall have primary responsibility for technical supervision of the Project.
5.2 Supervision by Subcontractor. The person with primary
responsibility for supervision of the performance of the Research on behalf of
Subcontractor shall be Xx. Xxxxxxxx. No other person shall replace or substitute
for Xx. Xxxxxxxx in the supervisory responsibilities hereunder without the prior
written approval of Company, which may be granted or withheld at Company's sole
discretion.
6. Flow-Down of Provisions. This Agreement shall be subject to, and incorporate
by this reference, all applicable provisions of the Prime Contract; any contract
policy statements or manuals issued by any source of prime funding for the
Contract (with the exception that there shall be no automatic carryover of
un-obligated funds and no automatic no-cost extension without the prior written
approval of Company); and all applicable laws, regulations, guidelines and
policies referenced in any of the above described documents. Company shall
provide Subcontractor with copies of any such documents upon request.
7. Reporting Requirement. Upon the first day of the first full quarter after
commencement of the Research hereunder, and every quarter thereafter,
Subcontractor shall provide written reports to Company on all expenditures and
progress in the performance of Research as outlined or required in the Statement
of Work and Deliverables. Such reports shall fully and promptly disclose to
Company any formulae, inventions, discoveries, improvements or other significant
progress made or discovered in the course of the Project, whether patentable or
not. Subcontractor shall furnish a final written report to Company within sixty
(60) days of the completion of the Research.
8. Audits and Records.
8.1 Audit Requirement. Subcontractor shall comply with all federal
audit requirements, including the requirements of OMB Circulars A-110 and A-133.
A. A-133 or A-128 Single Audit. Subcontractor shall submit a
copy of the latest single audit report to the Company prior to the
first payment. In cases where the auditor's report identifies instances
of non compliance with federal laws and regulations in the performance
or administration of this Agreement, Subcontractor shall so notify
Company and provide Company with copies of Subcontractor's response to
the auditor's report and a Subcontractor's plan for corrective action.
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B. Project Specific Audit. This option may only be used if the
Subcontractor is not subject to an A-133 or A-128 Single Audit.
Subcontractor shall contract with an independent auditor to perform a
Project-Specific audit following generally accepted government audit
standards (GAGAS). The audit report is to be submitted to the Company
within ninety (90) days after Agreement end date. If the
Project-Specific audit report is not submitted to the Company within
such a time period, the Company will terminate the Agreement and the
Subcontractor shall refund all income received under the Agreement.
Moreover, Subcontractor will not be allowed to bid on future Company
subcontracts.
C. Company Documentation Audit. This option may only be used
if the Subcontractor is not subject to an A-133 or A-128 Single Audit.
Subcontractor shall submit to Company appropriate documentation (i.e.
time sheets, expenditure receipts, etc.) supporting Subcontractor's
expenses to be reimbursed by Company. Such documentation must be
attached to each invoice and will be reviewed by Company personnel for
compliance with applicable laws and regulations prior to reimbursement.
If the Company determines that the documentation is inadequate,
Subcontractor shall provide additional data before payment is made to
the Subcontractor.
8.2 Inspection of Records. Upon reasonable notice and during normal
business hours, Company, any sponsor of the Prime Contract, or any of their duly
authorized representatives shall have access to any financial records,
supporting documents, statistical records or other records pertinent to the
Research and this Agreement throughout the term of this Agreement and for a
period of at least three (3) years following completion of the Research.
9. Equipment. The cost of equipment acquired hereunder by Subcontractor, if any,
shall be considered allowable costs provided the cost of such equipment does not
exceed the budgeted cost as set forth in Appendix B hereof. Company shall have
no obligation to reimburse any equipment costs which, in the aggregate, exceed
twenty-five percent (25%) of the Total Direct Costs set forth in Appendix B,
unless Subcontractor receives prior written approval from Company. Title to all
equipment purchased by Subcontractor with funds provided in whole or in part
under this Agreement, and to all equipment otherwise furnished by Company or any
prime funding agency hereunder shall be subject to the Prime Contract sponsor's
equipment terms and conditions. Upon request, Subcontractor shall annually
provide Company with a list of all equipment acquired by Subcontractor with
funds budgeted under this Agreement, and upon completion or termination of this
Agreement, a composite list of all such equipment. Upon completion or
termination of this Agreement Company may, upon request by Subcontractor and at
Company's discretion, transfer title to such equipment to Subcontractor
according to such terms and conditions as may be specified in the Prime Contract
and all applicable policies of the Prime Contract sponsor.
10. Publication and Rights to Data. The results of any research conducted under
this Agreement may be published jointly by Company and Subcontractor, or by
either institution separately. Publications arising out of the Project shall
give due credit to all
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participants in the Project, including all sources of funding. To the extent
authorized under the Prime Award, Company shall have the right to copyright,
publish, disclose, disseminate or use for any purpose, in whole or in part, any
data and information received or developed under this Agreement. Subcontractor
may not use the name of Company in any news release or advertising or any
publications directed to the general public without written approval of Company.
11. Patents and Inventions. Subcontractor shall notify Company of any patentable
discoveries or inventions made and/or conceived, or for the first time actually
reduced to practice, by Subcontractor or any use of its employees or
subcontractors, in connection with the performance of the Research under this
Agreement. Ownership and administration of all such patents and inventions shall
be in accordance with the provisions of the Prime Award and with all applicable
federal regulations. Ownership of inventions, discoveries, and improvements
(hereinafter "Inventions") shall be determined according to inventorship and
inventorship shall be determined according to U.S. Patent law. Accordingly,
Subcontractor shall own all rights, title and interest in all inventions and
improvements conceived or reduced to practice solely by Subcontractor and/or its
agents or employees in the performance of the research or Services and may, at
its election, file all patent applications relating thereto. Any Inventions
conceived or reduced to practice solely by Company and/or its agents or
employees shall be the property of Company. Any Invention conceived or reduced
to practice jointly by Company and Subcontractor and/or their agents or
employees shall be joint property of Company and Subcontractor. In consideration
of sponsor's support, of Subcontractor in performance of the Services,
Subcontractor grants to Contractor an option for an exclusive license on any
such inventions, improvements, applications or patents. Contractor's right to
elect and exercise said option shall expire six months after Subcontractor has
provided written notice to Contractor of any such invention, improvement,
application or patent. In the event Subcontractor shall abandon its rights to
any such Invention, Subcontractor shall assign to Contractor all of
Subcontractor's rights, title and interest therein.
12. Indemnification
12.1 Subcontractor is a governmental entity and is subject to the Utah
Governmental Immunity Act, Section 63-30-1 et seq., Utah Code Xxx. (1993 and
Supp. 1995) (the "Act"). Subject to the provisions of the Act, Subcontractor
shall indemnify, defend and hold harmless Company, its officers, agents and
employees against any actions, suits, proceedings, liabilities and damages that
may result solely from the negligent acts or omissions of Subcontractor, its
officers, agents or employees in connection with this Agreement. Nothing in this
Agreement shall be construed as a waiver of any rights or defenses applicable to
Subcontractor under the Act, including without limitation, the provisions of
Section 63-30-34 regarding limitation of judgments. Subcontractor shall give
Company timely notice of any claim or suit instituted of which it has knowledge
that in any way, directly or indirectly, affects or might affect Company, and
Company shall have the right at its own expense to participate in the defense of
the same.
12.2 Indemnification by Company. Company shall indemnify, defend and
hold harmless Subcontractor, its directors, officers, agents and employees
against any
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actions, suits, proceedings, liabilities and damages that may result from the
negligent acts or omissions of Company, its officers, agents or employees in
connection with this Agreement. Company shall give Subcontractor timely notice
of any claim or suit instituted of which it has knowledge that in any way,
directly or indirectly, affects or might affect Subcontractor, and Subcontractor
shall have the right at its own expense to participate in the defense of the
same.
13. Compliance with Laws. In performance of the Research, both Company and
Subcontractor shall comply with all applicable federal, state and local laws,
codes, regulations, policies, guidelines and orders. Subcontractor shall obtain,
at its expense and as part of the price for Research, all required government
licenses, permits, and approvals for the performance of the Research, except
those licenses, permits and approvals which the Statement of Work and
Deliverables specifies will be obtained by Company.
15. Relationship of Parties. In assuming and performing the obligations of this
Agreement, Subcontractor and Company are each acting as independent parties and
neither shall be considered or represent itself as a joint venturer, partner,
agent or employee of the other. Neither Company nor Subcontractor shall use the
name or any trademark of the other in any advertising, sales promotion or other
publicity matter without the prior written approval of the other party.
16. Termination. This Agreement may be terminated by either party at any time
and from time to time, by giving written notice thereof to the other party.
Termination shall be effective (20) days after receipt of notice. Termination
shall not relieve either party of any obligation or liability accrued hereunder
prior to termination, or rescind or give rise to any right to rescind any
payments made prior to the time of termination.
17. Uncontrollable Forces. Neither Company nor Subcontractor shall be considered
to be in default of this Agreement if delays in or failure of performance shall
be due to uncontrollable forces the effect of which, by the exercise of
reasonable diligence, the non performing party could not avoid. The term
"uncontrollable forces" shall mean any event which results in the prevention or
delay of performance by a party of its obligations under this Agreement and
which is beyond the control of the non performing party. It includes, but is not
limited to fire, flood, earthquakes, storms, lightning, epidemic, war, riot,
civil disturbance, sabotage, inability to procure permits, licenses or
authorizations from any state, local or federal agency or person for any of the
supplies, materials, research or obligations required to be provided by either
Company or Subcontractor under this Agreement, strikes, work slowdowns or other
labor disturbances, and judicial restraint.
18. Subcontracts. Subcontractor shall not subcontract any portion of the
Research or substantive project effort without prior written approval of
Company.
19. Miscellaneous.
19.1 Assignment. Neither party shall assign or transfer any interest in
this Agreement, nor assign any claims for money due or to become due under this
Agreement, without the prior written consent of the other party.
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19.2 Entire Agreement. This Agreement, with its attachments,
constitutes the entire agreement between the parties regarding the subject
matter hereof and supersedes any other written or oral understanding of the
parties. This Agreement may not be modified except by written instrument
executed by both parties and signed by the authorizing authority representing
each party.
19.3 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties, their successors and permitted assigns.
19.4 Notices. Except as provided in Section 3 hereof with regard to
payment of invoices, any notice, reports or other communication required or
permitted to be given to either party hereto shall be in writing and shall be
deemed to have been properly given and effective: (a) on the date of delivery if
delivered in person during recipient's normal business hours; or (b) on the date
of delivery if delivered by courier, express mail service or first-class mail,
registered or certified, return receipt requested. Such notice shall be sent or
delivered to the respective addresses given below, or to such other address as
either party shall designate by written notice given to the other party as
follows:
In the case of Subcontractor:
Technical Contractual
--------- -----------
University of Utah University of Utah
412 WBB 0000 Xxxxxxx Xxx
Xxxx Xxxx Xxxx, Xxxx 00000 Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xx. Xxx Xxxxxxxx Attn: Xxxxx X. Xxxxxxxxxx,
Director
In the case of Company:
Technical Contractual
--------- -----------
Xxxxx Xxxxx Xxxxxxx Xxxxx
X.X. Xxx 000 000 Xxxxxx Xxx, Xxxxx 000
Xxx, Xxxx 00000-0000 Xxxx Xxxx Xxxx, XX 00000
Fax 000-000-0000 fax 000 000-0000
20. Order of Precedence. In the event of any conflict, inconsistency or
discrepancy amount, the Agreement and any other documents listed below shall be
resolved by giving precedence in the following order.
(a) This Agreement including the Exhibits hereto
(b) Prime Contract
(c) Purchase Order issued by Company. This agreement shall supercede
and replace any boilerplate provisions on a purchase order.
21. Disputes. Any dispute arising out of the performance or payment under this
Agreement shall be presented to the Subcontractor for resolution. Disputes that
cannot
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be resolved by Subcontractor shall be determined by a court of competent
jurisdiction in the State of Utah.
22. Governing Law. This Agreement shall be interpreted and construed in
accordance with the laws of the State of Utah, without application of any
principles of choice of laws.
23. Non waiver. A waiver by either party of any breach of this Agreement shall
not be binding upon the waiving party unless such waiver is in writing. In the
event of a written waiver, such a waiver shall not affect the waiving party's
rights with respect to any other or further breach.
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24. Execution by Counterpart. This Agreement may be executed separately or
independently in any number of counterparts, each and all of which together
shall be deemed to have been executed simultaneously and for all purposes to be
one Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives effective as of the day and
year first written above.
UNIVERSITY OF UTAH "UNIVERSITY" EMPS RESEARCH CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
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signature signature
Name: Xxxxx X. Xxxxxxxxxx Name: Xxxxxxx X. Xxxxx
----------------------------------- ---------------------------
(please print) (please print)
Title: Dir. Office of Sponsored Projects Title:
Date: Date:
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