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EXHIBIT 10.5
MEMORANDUM OF AGREEMENT
FOR
TRANSFER AND FUNDING OF AVLIS
BETWEEN
THE UNITED STATES DEPARTMENT OF ENERGY
AND
UNITED STATES ENRICHMENT CORPORATION
DATED AS OF APRIL 27, 1995
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TABLE OF CONTENTS
ARTICLE I - DEFINITIONS AND INTERPRETATION...................................
Section 1.1 Definitions...........................................
Section 1.2 Headings..............................................
Section 1.3 Rules of Interpretation...............................
ARTICLE II - AUTHORITY OF THE PARTIES........................................
Section 2.1 USEC..................................................
Section 2.2 DOE...................................................
ARTICLE III - TRANSFER OF PROPERTY RELATED TO AVLIS..........................
Section 3.1 Options to Transfer AVLIS Property....................
Section 3.2 Title.................................................
Section 3.3 Transfer of AVLIS Property and USEC Property..........
Section 3.4 Care and Use of AVLIS Property........................
Section 3.5 Subdivision; Further Assurances.......................
Section 3.6 Exercise of Options...................................
Section 3.7 Term of Options.......................................
ARTICLE IV - TRANSFER OF INTELLECTUAL PROPERTY...............................
Section 4.1 Transfer of Patents...................................
Section 4.2 Transfer of Other Intellectual Property...............
Section 4.3 Nature of Transfer....................................
Section 4.4 Liability for Infringement Claims.....................
Section 4.5 Sharing of Royalties..................................
Section 4.6 M&O Contract..........................................
Section 4.7 Exclusive Commercial Rights...........................
Section 4.8 Special Isotope Separation............................
ARTICLE V - WORK AND SERVICES................................................
Section 5.1 DOE Work and Services.................................
Section 5.2 Budget; Statement of Work.............................
Section 5.3 Report................................................
Section 5.4 Project Cost Review...................................
Section 5.5 Termination...........................................
Section 5.6 Modification or Replacement of M&O Contract...........
Section 5.7 Cooperative Arrangements..............................
Section 5.8 Disclaimer............................................
Section 5.9 Accounting............................................
Section 5.10 Property Management...................................
Section 5.11 Location of the Work and Services.....................
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Section 5.12 Coordination of the Work..............................
Section 5.13 Standard of Performance...............................
ARTICLE VI - MODIFICATION OF EXHIBITS........................................
Section 6.1 Correction of Exhibits................................
Section 6.2 Option to Abandon USEC Property.......................
ARTICLE VII - ALLOCATION OF LIABILITIES......................................
Section 7.1 Liability and Reimbursement...........................
Section 7.2 Generation of Waste...................................
Section 7.3 Decontamination and Decommissioning...................
Section 7.4 DOE Liabilities.......................................
Section 7.5 USEC Liabilities......................................
Section 7.6 Right to Defend.......................................
ARTICLE VIII - INSURANCE AND DAMAGE..........................................
Section 8.1 Insurance.............................................
Section 8.2 Partial or Total Casualty to the Program Buildings or
AVLIS Property........................................
ARTICLE IX - XXXXX-XXXXXXXX INDEMNIFICATION..................................
ARTICLE X - OVERSIGHT........................................................
Section 10.1 Environment, Safety, And Health.......................
Section 10.2 Emergencies...........................................
Section 10.3 DOE Oversight.........................................
Section 10.4 New/Modified Operations...............................
ARTICLE XI - REPRESENTATIVES.................................................
Section 11.1 DOE AVLIS Manager. ...................................
Section 11.2 USEC AVLIS Manager....................................
ARTICLE XII - MODIFICATIONS AND PRIVATIZATION................................
Section 12.1 Amendments............................................
Section 12.2 Privatization.........................................
ARTICLE XIII - ASSIGNMENTS...................................................
Section 13.1 Assignment by DOE.....................................
Section 13.2 Assignment by USEC....................................
ARTICLE XIV - CONFIDENTIAL MATTERS...........................................
Section 14.1 Proprietary Information; FOIA.........................
Section 14.2 Security..............................................
ARTICLE XV - COMPLIANCE WITH NEPA............................................
Section 15.1 Joint Effort; Lead Agency.............................
Section 15.2 Costs.................................................
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ARTICLE XVI - MISCELLANEOUS..................................................
Section 16.1 Entire Agreement......................................
Section 16.2 Notices...............................................
Section 16.3 Severability..........................................
Section 16.4 No Waiver.............................................
Section 16.5 Applicable Law........................................
Section 16.6 Binding Nature of Agreement...........................
Section 16.7 Agreement not Joint Venture...........................
Section 16.8 Further Assistance....................................
Section 16.9 Survival..............................................
Section 16.10 No Rights in Others...................................
Section 16.11 Payment Obligations...................................
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LIST OF EXHIBITS
Exhibit A Program Buildings
Exhibit B AVLIS Personal Property
Exhibit C Patents
Exhibit D Budget
Exhibit E Statement of Work
Exhibit F Liens and Other Encumbrances
Exhibit G Cooperative Arrangements
Exhibit H Third Party Reservation of Intellectual Property Rights
Exhibit I Premises
Exhibit J Memorandum of Option
Exhibit K Termination Costs
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THIS MEMORANDUM OF AGREEMENT FOR TRANSFER AND FUNDING OF AVLIS is
entered into as of April 27, 1995, between THE UNITED STATES DEPARTMENT OF
ENERGY ("DOE"), and UNITED STATES ENRICHMENT CORPORATION ("USEC").
WITNESSETH:
WHEREAS, the Congress of the United States of America has enacted
the Energy Policy Act of 1992, Public Law 102-486, and pursuant to Title IX
thereof further amended the Atomic Energy Act of 1954 (as amended from time to
time, the "Act") which established USEC; and
WHEREAS, DOE has been engaged in research in regard to the
development of Atomic Vapor Laser Isotope Separation ("AVLIS") and of
alternative technologies for uranium enrichment; and
WHEREAS, pursuant to Section 1601 of the Act, USEC has determined to
proceed with the commercialization of AVLIS and of alternative technologies for
uranium enrichment; and
WHEREAS, pursuant to Section 1602 of the Act and in order to ensure
that USEC achieves the objectives of the Act with respect to commercialization
of AVLIS and alternative technologies for uranium enrichment, and to prepare
USEC for its eventual privatization, and consistent with DOE's duties under the
Act, Congress has directed that USEC shall have the exclusive commercial right
to deploy and use AVLIS technology upon completion of a royalty agreement with
DOE, and that the President shall transfer to USEC to the extent requested by
USEC all of DOE's right, title or interest in and to property owned by DOE, or
by the United States but under control or custody of DOE, that is directly
related to and materially useful in the performance of USEC's purposes regarding
AVLIS and regarding alternative technologies for uranium enrichment; and
WHEREAS, USEC desires to acquire from DOE title to and other rights
in certain property related to AVLIS and to reserve its rights with respect to
other property regarding AVLIS and to alternative technologies for uranium
enrichment; and
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WHEREAS, DOE has entered into Contract No. W-7405-ENG-48 with the
Regents of the University of California (the "Regents") for the management and
operation of the Xxxxxxxx Livermore National Laboratory ("LLNL"), a U.S.
Government-owned facility; and
WHEREAS, DOE and USEC have entered into a Memorandum of Agreement,
dated as of October 1, 1993, as amended by an Amendment #1 thereto dated April
26, 1994, an Amendment #2 thereto dated July 27, 1994, an Amendment #3 thereto
dated September 19, 1994, an Amendment #4 thereto dated November 18, 1994, an
Amendment #5 thereto dated January 25, 1995, and an Amendment #6 thereto dated
March 31, 1995 (the "AVLIS Funding MOA"), providing for USEC to fund cooperative
research by DOE with respect to AVLIS at LLNL on certain terms and conditions;
and
WHEREAS, DOE and USEC have entered into a Memorandum of Agreement
Relating to the Transfer of Functions and Activities from the United States
Department of Energy to United States Enrichment Corporation, dated as of
December 15, 1994, which provides, among other things, for an agreement on the
responsibility for termination costs and decontamination and decommissioning
costs, and for the transfer of certain funds and property with respect to AVLIS
from DOE to USEC as provided in the Act; and
WHEREAS, pursuant to Section 1606 of the Act, Congress has provided
that, if requested by USEC, DOE shall provide, on a reimbursable basis, research
and development of AVLIS and of alternative technologies for uranium enrichment;
and
WHEREAS, Sections 1314 of the Act and 3001(d) of the Energy Policy
Act of 1992 provide for certain protection for information of USEC, in addition
to protections afforded by other provisions of law; and
WHEREAS, the work to be performed in the Statement of Work can
currently best be obtained through the unique capabilities of the M&O Contractor
(as defined below) and the LLNL facilities and currently cannot be performed
reasonably and expeditiously through ordinary business channels; and
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WHEREAS, it is understood that any information furnished herein by
DOE is based upon the best information furnished to and/or available to DOE and
that DOE has utilized its best efforts to assure that the information is
current, accurate and complete;
NOW THEREFORE, under the authority of the Act and other law, and in
order to carry out the mandates which Congress has given DOE and USEC therein,
DOE and USEC hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions. The following additional terms when
capitalized and used in this Agreement shall have the meanings indicated below.
All meanings specified are applicable to both the singular and the plural.
"Agreement" means this Memorandum of Agreement for Transfer and
Funding of AVLIS and all its Exhibits.
"Alternative Technologies" means technologies to enrich uranium by
methods other than the gaseous diffusion process.
"AVLIS Personal Property" has the meaning ascribed to it in Section
3.1.
"AVLIS Program" means AVLIS and each component thereof and each
application and use of any of the foregoing, other than SIS technology, each
component thereof, and each application and use of SIS technology.
"AVLIS Property" has the meaning ascribed to it in Section 3.1.
"Budget" means the budget attached to this Agreement as Exhibit D
which USEC has requested and DOE has tasked the M&O Contractor to prepare for
the performance of the Work and the provision of the Services to USEC at LLNL
for the period from May 1, 1995 through September 30, 1995 and each budget
prepared for each succeeding Fiscal Year as provided in Section 5.2(c).
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"Cooperative Arrangement" has the meaning ascribed to it in Section
5.7(a).
"Corrective Action" has the meaning given such term by the
Administrator of the Environmental Protection Agency under section 3004(u) of
the Solid Waste Disposal Act, 42 U.S.C. Section 6924(u), as amended from time to
time.
"CRADA" means cooperative research and development agreements
between one or more federal government laboratories, units of state or local
government, industrial organizations (including corporations, partnerships,
limited partnerships and industrial development organizations), public and
private foundations, nonprofit organizations (including universities), or other
persons entered into under the Federal Technology Transfer Act of 1986 and the
National Competitiveness Technology Transfer Act of 1989 for collaborative
research.
"DOE AVLIS Manager" has the meaning ascribed to it in Section 11.1.
"Eligible Costs" means those items or categories of expense within
the Statement of Work which are set forth in the Budget.
"Environmental Claim" means any claim, action, cause of action,
investigation or notice by any person or entity alleging potential liability
(including potential liability for investigatory costs, cleanup costs, Response
Actions, Corrective Actions, natural resource damages, property damages,
personal injuries, penalties, or fines) arising out of, based on or resulting
from (a) the presence, transportation, handling, storage, management,
treatment, disposal, discharge, emission or release of any Material of
Environmental Concern at any location, (b) circumstances forming the basis of
any violation, or alleged violation, of or liability under any Environmental
Laws, or (c) the revocation, suspension, failure to renew, or violation of the
terms or conditions of any Permit or License issued pursuant to any
Environmental Law.
"Environmental Laws" means all Laws and Regulations relating to
pollution or protection of human health or the environment (including ambient
air, surface water, ground water, land surface or subsurface strata) or
regulating the handling of or exposure to radioactive
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materials, including the Laws and Regulations relating to emissions, discharges,
releases or threatened releases of Material of Environmental Concern, or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Material of Environmental Concern.
"Fiscal Year" means the fiscal year of the United States Government,
provided, however, that the first Fiscal Year pursuant to this Agreement shall
commence on the date hereof and the last Fiscal Year of this Agreement shall end
on the last day on which this Agreement is in effect.
"FOIA" means the Freedom of Information Act, 5 U.S.C. Section 552 et
seq., as amended from time to time.
"Government Authority" means any department, agency or
instrumentality of the federal government, of any state, or of any municipality
or of any political subdivision of any state or municipality.
"Governmental Purposes" means the use or manufacture of AVLIS
technology or the use of AVLIS technical information by or for the United States
Government, including use or manufacture by a contractor, a subcontractor, or
any other person for the United States Government and with the authorization and
consent of the United States Government.
"Intellectual Property" means, collectively, Patents, Technology,
copyrights and other forms of intellectual property (including mask works)
related to and useful in USEC's purposes regarding AVLIS, other than any
intellectual property relating to SIS.
"Laws and Regulations" means all applicable laws and regulations
(including all Environmental Laws), and all other applicable requirements of any
Government Authority.
"Material of Environmental Concern" means any material subject to
classification as a solid waste or hazardous waste under the Solid Waste
Disposal Act, as amended from time to time; subject to classification as a
hazardous substance under the Comprehensive Environmental Response, Compensation
and Liability Act, as amended from
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time to time; and any other material such as chemicals, pollutants,
contaminants, wastes, toxic substances, petroleum and refined petroleum
products, hazardous substances, radioactive materials, hazardous materials and
other like subject matter.
"M&O Contract" means Contract No. W-7405-ENG-48, between DOE and
the Regents, as supplemented, modified, amended or replaced from time to time.
"M&O Contractor" means the Regents and any successor Person
operating LLNL under the M&O Contract, and any Person performing Work under any
similar arrangement.
"Patents" means the patents of all countries and patent applications
(including classified patent applications) and invention disclosures owned or
controlled or under the custody of or licensed to DOE related to and useful in
USEC's purposes regarding AVLIS, other than any patents related to SIS.
"Permits and Licenses" means all permits, licenses, approvals,
authorizations, consents, waivers, variances, and exemptions issued by any
Government Authority required for compliance with any Laws and Regulations.
"Person" means any individual, partnership, joint venture, firm,
corporation, educational institution, association, trust or other enterprise or
any foreign government or Governmental Authority.
"Premises" has the meaning ascribed to it in Section 3.1(d).
"Program Buildings" has the meaning ascribed to it in Section 5.11.
"Program Termination" has the meaning ascribed to it in Section
5.5(d).
"Proprietary Information" has the meaning ascribed to it in Section
14.1(b).
"Records" has the meaning ascribed to it in Section 3.1(c).
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"Report" means the report defined in Section 5.3.
"Representative" has the meaning ascribed to it in Section 14.1(b).
"Response Actions" has the meaning given the term "response" in
section 101(25) of the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601(25), as amended from time to time.
"Services" has the meaning ascribed to it in Section 5.1.
"Special Isotope Separation Program" or "SIS" means a DOE-managed
program which designed a technology similar in concept to the AVLIS technology
for the separation of isotopes of plutonium for Governmental Purposes.
"Statement of Exceptional Circumstances" means a determination made
by DOE, in accordance with the authority granted to DOE under 35 U.S.C. Section
202(a)(ii), that restriction or elimination of the statutory right of DOE
non-profit or small business contractors to elect under 35 U.S.C. Section 202 to
retain title to certain inventions will better promote the policies and
objectives of 35 U.S.C. Section 200 to Section 212, which determination was
filed by DOE in 1985 with the Assistant Secretary for Productivity, Technology,
and Innovation of the U.S. Department of Commerce in accordance with 35 U.S.C.
Section 202(a)(ii) with respect to DOE's uranium enrichment programs, including
the AVLIS program.
"Statement of Work" means the work which DOE has tasked the M&O
Contractor to perform on a best efforts basis with respect to the research and
development of the AVLIS Program, as more fully described in the Statement of
Work attached as Exhibit E to this Agreement, and in each Statement of Work
prepared for each succeeding Fiscal Year as provided in Section 5.2.
"Technology" means trade secrets, know-how or other information
which is owned or controlled or under the custody of or licensed to DOE relating
to the AVLIS Program, whether or not reduced to writing. "Technology" includes,
or may be disclosed in, but not limited to, inventions (whether or not
patentable), intellectual prop-
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erty licenses, software programs, prototypes, designs, techniques, methods,
procedures, data, engineering information, specifications, diagrams, drawings,
schematics, blueprints, parts lists, and the Records.
"USEC AVLIS Manager" has the meaning ascribed to it in Section 11.2.
"Warranties" has the meaning ascribed to it in Section 3.1(b).
"Work" has the meaning ascribed to it in Section 5.1.
Section 1.2 Headings. Article and Section headings in this Agreement
are provided only for ease of reference and not for purposes of interpretation
of this Agreement.
Section 1.3 Rules of Interpretation.
(a) The words "without limitation", whether stated or not, are
implied to follow the use of any words such as "including" or "excluding" that
are employed in this Agreement. The words "hereof" or "here in" or "hereunder"
when used in this Agreement shall mean pertaining to this Agreement.
(b) All Exhibits to this Agreement shall be incorporated into
this Agreement by reference as appropriate and will be deemed to be an integral
part of this Agreement. In the event of any inconsistency between the language
of an Exhibit to this Agreement and the Articles of this Agreement, the
Articles of this Agreement shall control.
ARTICLE II
AUTHORITY OF THE PARTIES
Section 2.1 USEC. USEC is authorized under the Act and under other
law to enter into this Agreement, and this Agreement is executed by its
authorized representative. USEC has taken all the necessary actions required of
USEC to execute, deliver and perform its obligations under this Agreement.
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Section 2.2 DOE. DOE is authorized under the Act and under other law
to enter into this Agreement, and this Agreement is executed by its authorized
representative. DOE has taken all the necessary actions required of DOE to
execute, deliver and perform its obligations under this Agreement.
ARTICLE III
TRANSFER OF PROPERTY RELATED TO AVLIS
Section 3.1 Options to Transfer AVLIS Property. Effective as of the
date hereof, DOE hereby grants to USEC an irrevocable, exclusive, fully paid
right and option to acquire from time to time any and all of the following
property related to the AVLIS Program (collectively, the "AVLIS Property"):
(a) any and all of the right, title and interest of DOE, or of
the United States but under control or custody of DOE, in and to those items of
personal property that are directly related to and materially useful in the
performance of USEC's purposes regarding the AVLIS Program as described more
fully in Exhibit B and other personal property incidental thereto (the "AVLIS
Personal Property");
(b) any and all of the right, title and interest of DOE, or of
the United States but under control or custody of DOE, in and to manufacturer's
warranties with respect to the AVLIS Property (the "Warranties") unless such
transfer is prohibited by the terms of any such warranty; provided, that if such
transfer is not permitted by the terms of any such warranty, DOE shall exercise
on behalf of USEC, at USEC's request, all rights under such warranty (provided
further, that in such event, USEC will have the responsibility to identify to
DOE the specific item or items, the warranties involved, and the actions USEC
requires);
(c) except for all SIS program information, and subject to
security and classification requirements, all of the right, title and interest
in and to documents, notes, memoranda, files, computer files, records, logs,
indices, minutes, correspondence, publications, articles, ledgers, and other
information whether in draft or final and in whatever form and wherever located
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of DOE, or of the United States but under the control or custody of DOE, that
are related to and useful in the performance of USEC's purposes regarding the
AVLIS Program (the "Records"); and
(d) good and marketable fee title to that certain parcel or
parcels of real property and the improvements and fixtures (except that in no
event shall fixtures include items listed on Exhibit B, as may be amended
pursuant to Article VI) thereto located thereon, situated at LLNL, all of which
are more fully identified and described in the maps and attachments which form
Exhibit I to this Agreement (the "Premises"), and all rights to common areas
(including utility lines, the fiber optic network, corridors, party walls,
retention ponds, pipes, parking areas, service roads, railway lines, loading
facilities, and sidewalks), together with all easements, rights of way,
appurtances, and avenues of ingress, egress and access to public roads and all
other similar items or rights which appertain to the Premises and which are
required in order to use the Premises; provided, however, that the option to
acquire the Premises is subject to all easements, rights of way and
appurtenances over, across, in and upon the Premises existing as of the date of
this Agreement. DOE will not grant any additional easements, rights of way or
appurtenances over, across, in or upon the Premises without the approval of
USEC, which approval shall not be unreasonably withheld.
Section 3.2 Title.
(a) Except for certain items of the AVLIS Personal Property
which are being procured on a lease to ownership basis or which may be software
subject to licensing agreements, as provided on Exhibit F, DOE hereby represents
that, as of the date of any exercise of the option set forth in Section 3.1(a):
(i) it will have good and marketable fee title to and the right to transfer,
assign and convey the AVLIS Personal Property, and (ii) all AVLIS Personal
Property will be free and clear of all liens, claims and encumbrances.
(b) DOE hereby represents and warrants that, as of the date of
any exercise of the option set forth in Section 3.1(d): (i) it will have good
and marketable fee title to and the right to transfer, assign and
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convey the Premises, and (ii) the Premises will be free and clear of all liens,
claims and encumbrances.
(c) As soon as practicable after the execution and delivery of
this Agreement, DOE and USEC agree to execute and record in the land records of
Alameda County a memorandum of option substantially in the form attached hereto
as Exhibit J.
Section 3.3 Transfer of AVLIS Property and USEC Property.
(a) USEC reserves the right to transfer to other locations
any or all AVLIS Property at any time after exercise of any option set forth in
Section 3.1 with respect to such item of AVLIS Property, and to transfer any
property that is furnished by USEC or that becomes the property of USEC pursuant
to Section 5.10 hereof at any time. USEC will be responsible for all transfer
activities including transport and compliance with physical security,
environmental, safety, and health requirements.
(b) If, subsequent to USEC's exercise of its option to acquire
the Premises, as described in Section 3.1(d), neither USEC nor any other Person
who may be substituted for USEC under Section 13.2(a) intends to use the
Premises for USEC's purposes as contemplated by the Act, said Premises shall
revert back to DOE.
(c) At USEC's cost, DOE shall manage the Records when and as
requested by USEC. Subject to Article XIV and Section 4.3(b), upon transfer of
the Records to USEC as provided in Section 3.1(c), USEC shall provide to DOE a
copy of the Records for Governmental Purposes. DOE will xxxx each such copy not
in, or removed from, protective storage as the proprietary and business
confidential information of USEC.
Section 3.4 Care and Use of AVLIS Property.
(a) The physical condition of the AVLIS Property (including
the Program Buildings) is as it is found on the date hereof. DOE will use,
operate, and account for the AVLIS Property, and will maintain, repair and keep
the AVLIS Property in the condition in which it is found on the date hereof, as
part of the Work and the Services, to the extent provided in any Statement of
Work, whether or not USEC exercises any option set forth in Section 3.1. DOE
will reserve the Premises for the Work
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and will not sell, transfer, assign, lease, or otherwise dispose of, the
Premises. DOE will not grant any easements, rights of way or appurtenances
over, across, in or upon the vicinity of the Premises which would interfere with
the performance of the Work or the provision of the Services or with USEC's use
of the Premises as provided in this Agreement without the approval of USEC,
which approval shall not be unreasonably withheld.
Section 3.5 Subdivision; Further Assurances.
(a) Upon request of USEC, DOE at USEC's expense shall take all
actions that may be required under applicable Laws and Regulations and the terms
and conditions of applicable Permits and Licenses to subdivide or adjust the
boundary lines of LLNL and the Premises such that the Premises will constitute a
legal lot or parcel and shall deliver to USEC evidence reasonably satisfactory
to USEC that the Premises constitutes a legal subdivision or that subdivision is
not required.
(b) DOE and USEC agree to negotiate in good faith any changes
that may be required to the performance of the Work or the provision of the
Services, security, access, and such other sections as may be directly and
materially affected by the exercise of the option to transfer the Premises set
forth in Section 3.1(d).
Section 3.6 Exercise of Options.
(a) USEC may exercise any option set forth in Section 3.1 by
sending to DOE written notice, thirty (30) days prior to the effective date USEC
exercises such option, specifying the item or items with respect to which such
option is exercised, including items on Exhibit A, B or I, as applicable. The
options set forth in Section 3.1 may be exercised in whole or may be exercised
in part on more than one occasion. Failure to exercise any such option with
respect to any item or items of AVLIS Property on any occasion shall not be
deemed a waiver of such option.
(b) Upon exercise of any option set forth in Section 3.1, this
Agreement shall become a binding agreement for the transfer of the item or
items of AVLIS Property with respect to which such option is exercised.
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(c) Title to and, except as specifically provided elsewhere
in this Agreement, risk of loss or damage of each item of the AVLIS Property
will pass to USEC upon the effective date of the exercise of any option with
respect to such item of the AVLIS Property as specified in Section 3.1.
Section 3.7 Term of Options. (a) The options set forth in Section
3.1 will expire on the date of privatization of USEC as contemplated by the Act
except to the extent USEC shall have sent a notice or notices to DOE as set
forth in Section 3.6(a) on or prior to such date exercising one or more of such
options with respect to any item or items of AVLIS Property.
(b) In the event that USEC shall be privatized as contemplated
by the Act prior to the sending by USEC of a notice or notices under Section
3.6(a), except to the extent USEC shall have disclaimed the right to exercise
any option described in Section 3.1 with respect to any specific item or items
of AVLIS Property by notice to DOE, USEC shall be deemed by this Section 3.7(b)
to have exercised immediately prior to such privatization the options described
in Section 3.1 with respect to the AVLIS Personal Property listed on Exhibit B
(as amended pursuant to Article VI), the Warranties relating to such items of
AVLIS Personal Property, the Records, and the Premises as described on Exhibit I
(as amended pursuant to Article VI).
ARTICLE IV
TRANSFER OF INTELLECTUAL PROPERTY
Section 4.1 Transfer of Patents. (a) Effective as of the date
hereof, DOE hereby transfers to USEC sole custody and administration of the
Patents listed on Exhibit C. Upon the privatization of USEC pursuant to the Act
and without the payment of any consideration or the requirement for any further
action by DOE or USEC, the United States Government shall be deemed to have
transferred, assigned and conveyed to USEC or such private corporation as has
assumed the duties and obligations of USEC pursuant to such privatization, all
of the United States Government's right, title and interest in and to the
Patents. USEC shall have the right at any time after the date hereof to record
one or more assignments of any
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or all the Patents with the U.S. Patent and Trademark Office and DOE agrees to
execute such documents as are reasonably required to evidence such assignment.
(b) DOE will continue to prosecute and to maintain the patents
at USEC's request and at USEC's expense in accordance with USEC's letter of
August 12, 1994 to DOE and subject to the terms thereof, until such time as the
transfer of responsibility for the Patents as well as copies of all Patent
dockets and administrative records related thereto has been completed to the
reasonable satisfaction of DOE and USEC.
Section 4.2 Transfer of Other Intellectual Property. (a) Effective
as of the date hereof, DOE hereby transfers, assigns and conveys to USEC all
right, title and interest of DOE in and to the Intellectual Property (other than
the Patents transferred pursuant to Section 4.1 hereof).
(b) As soon as practicable after the date of this Agreement,
DOE will provide USEC with a list and copy of any software licenses and other
intellectual property licenses, if any, included in the Intellectual Property,
including a description of any restrictions on assignment, sublicensing or other
transfer thereof imposed in or as a condition to such license.
Section 4.3 Nature of Transfer.
(a) The transfer under Sections 4.1 and 4.2 shall be
irrevocable, assignable, licensable and royalty-free, except as provided
hereinafter in Sections 4.3(b), 4.5, and 4.7(a).
(b) The transfer of the Patents and the Intellectual Property
pursuant to Section 4.1 and Section 4.2, respectively, is subject to the
reservation of a nonexclusive, irrevocable, royalty-free license to the United
States Government to practice such Patents and to use such Intellectual Property
for Governmental Purposes, and USEC shall deliver to DOE a copy of the Records,
which DOE shall have the right to use for Governmental Purposes as provided in
Section 3.3(c); provided, that such license to practice such Patents and to use
such Intellectual Property and such Records shall not include the right (i) to
release, display or disclose detailed design, manufacturing
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or process data, or (ii) to use, modify, reproduce, release, perform, display
or disclose the information for commercial purposes (including for
manufacturing, for enrichment of materials for use in commercial reactors
whether or not owned or operated by or for the United States Government, for
separation of medical isotopes, or for materials applications); and provided,
further, that any release or disclosure by the United States Government to any
Person outside the United States Government shall be subject to a prohibition on
the further use, modification, reproduction, release, performance, display or
disclosure of the information so released or disclosed for any purpose other
than Governmental Purposes as provided in this Section 4.3(b), which prohibition
shall be acknowledged in writing by the Person to whom such release or
disclosure is made.
Section 4.4 Liability for Infringement Claims. Subject to USEC's
offset rights set forth in Section 4.5, USEC hereby assumes liability for any
payments made or awards under Section 157(b)(3) of the Act or any settlements
or judgments relating to claims of infringement with respect to the AVLIS
technology as used or practiced by or on behalf of USEC or its licensees, other
than SIS. Upon receiving notice or obtaining knowledge of the assertion of any
right under Section 157(b)(3) of the Act or of any claim of infringement
relating to the AVLIS technology, DOE shall promptly notify USEC of such claim.
DOE represents and warrants that it has no present knowledge of any claim of
infringement by any third party.
Section 4.5 Sharing of Royalties. In the event that USEC grants to
any Person a license to practice one or more of the Patents transferred to USEC
pursuant to Section 4.1 for a use that is unrelated to the enrichment of
materials for use in facilities used for the generation of electrical energy,
USEC shall share with DOE or its designee or designees a portion of any
royalties received from such Person. The amount of such royalties to be shared
on a per invention basis with DOE or its designee or designees shall be the
greater of (a) fifty percent (50%) of the royalties actually received by USEC
after subtraction of the reasonable costs (including attorneys' fees) to USEC of
(i) negotiating, auditing and administering the license to such Person, (ii)
collection of the royalty payments (iii) maintaining the Patents, and (iv)
prosecution and maintenance of the Patents referred to in
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Section 4.1(b), or (b) fifteen percent (15%) of gross royalties received by
USEC. The amounts otherwise due and owing to DOE pursuant to this Section 4.5
shall be reduced on a basis to be determined by USEC by the amount of any
payments made or awards under Section 157(b)(3) of the Act (subject to USEC's
rights under Section 1405 of the Act), or of settlements or judgements for which
USEC becomes liable relating to claims of infringement with respect to the AVLIS
technology as used or practiced by or on behalf of USEC or its licensees. USEC
shall notify DOE of the grant of any such license within thirty (30) days
following the execution thereof. Within forty-five (45) days following the end
of each Fiscal Year beginning with the first Fiscal Year in which USEC has
granted any such license, USEC shall pay to DOE or its designee or designees all
amounts owing to DOE pursuant to this Section 4.5, along with a statement
detailing the royalties received by USEC during such Fiscal Year and the
applicable offsets to such royalties. DOE shall have the right to audit such
royalties and offsets upon reasonable notice to USEC.
Section 4.6 M&O Contract.
(a) DOE agrees it shall require that the entire right, title
and interest throughout the world in and to each invention conceived or reduced
to practice (i) under Work funded by USEC pursuant to Article V hereof by
employees of the M&O Contractor, its subcontractors, consultants and all other
Persons working within the scope of the M&O Contract or any extension or
replacement thereof, or (ii) that otherwise is directly related to and
materially useful in the performance of USEC's purposes regarding the AVLIS
Program shall be assigned to DOE and upon such assignment shall be transferred,
conveyed and assigned to USEC, at USEC's request. DOE shall promptly notify USEC
of the receipt by its Contracting Officer under the M&O Contract of any
disclosure of a Subject Invention (as defined in the M&O Contract) by the M&O
Contractor related to the AVLIS Program or which arises from the performance of
the Work. USEC and DOE agree that without limiting Section 4.7(a), and except as
otherwise provided in this Agreement, DOE's "Class Waiver of Governmental
Rights in Inventions Arising from the Use of DOE Facilities and Facility
Contractors by or for Third Party Sponsors," dated June 29, 1982, as amended
December 4, 1987, shall apply to the Work and any inventions or patents created
under this Agreement.
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(b) DOE agrees that it shall not change the designation of any
invention related to and useful in USEC's purposes regarding AVLIS as an
Exceptional Circumstance Subject Invention (as defined in the M&O Contract),
nor amend the M&O Contract to delete any invention related to and useful in
USEC's purposes regarding AVLIS as an Exceptional Circumstance Subject
Invention, without the prior written consent of USEC. DOE represents that: (i)
the Statement of Exceptional Circumstances exempts AVLIS inventions from
ownership by DOE nonprofit or small business contractors, including the M&O
Contractor, (ii) the Statement of Exceptional Circumstances remains in full
force and effect and has not been appealed by any Person, (iii) it has not
amended the M&O Contract to delete any invention related to and useful in USEC's
purposes regarding AVLIS as an Exceptional Circumstance Subject Invention, nor
waived or returned any rights to any Exceptional Circumstance Subject Invention
developed under the M&O Contract related to and useful in USEC's purposes
regarding AVLIS (other than with the written consent of USEC), (iv) except as
provided on Exhibit H neither the M&O Contractor nor any other Person has
requested any right to reserve a license or any other intellectual property
rights with respect to the same, and (v) except as provided on Exhibit H, all
inventions from research relating to alternative applications of AVLIS (other
than uranium enrichment) which are related to and useful in USEC's purposes
regarding AVLIS are included in Exhibit C.
(c) DOE shall take such actions as are required for USEC to
obtain ownership of or exclusive rights to use or practice Intellectual Property
first produced, developed, or specifically used in the performance of the Work
under the M&O Contract funded by USEC pursuant to Article V hereof. Subject to
the rights of the United States Government under Sections 3.3(c) and 4.3(b), any
such ownership rights obtained by DOE shall be transferred, assigned and
conveyed to USEC, upon USEC's request.
(d) DOE shall not take any action or fail to take any action
under the M&O Contract that would be inconsistent with USEC's rights to the
Intellectual Property provided for in this Agreement. At USEC's request, DOE
shall obtain from an authorized officer of the M&O Contractor a written
acknowledgement of USEC's rights to the Intellectual Property provided for in
this Agree-
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ment. DOE shall not grant to the M&O Contractor the right to release publicly
any Intellectual Property or Proprietary Information without the prior written
consent of USEC.
Section 4.7 Exclusive Commercial Rights.
(a) DOE acknowledges that USEC has the exclusive commercial
right throughout the world to deploy and use any Intellectual Property owned or
controlled by the United States Government. DOE waives any rights it may have to
use or practice any Intellectual Property transferred hereunder or conceived or
reduced to practice in the course of or under this Agreement, subject only to
the reservation of a license for Governmental Purposes described in Sections
3.3(c) and 4.3(b).
(b) DOE represents that, except for numerous past publications
relating to and describing the AVLIS technology or components thereof which, in
order to be published in recognized scientific and technical journals, or for
inclusion in published scientific texts, have required a release of copyright
authority to the publisher, and except as identified in Exhibit H hereto,
neither the M&O Contractor nor any other Person (i) has retained title to any
rights of ownership to, or has a license to or has requested to use or practice
any Intellectual Property related to the AVLIS Program, or (ii) has asserted
copyright in any data related to the AVLIS Program.
(c) DOE represents that the list of Patents identified on the
list attached hereto on the date of this Agreement as Exhibit C is a complete
and accurate list of all Patents.
Section 4.8 Special Isotope Separation. All rights to SIS patents,
technology, intellectual property, records and the like shall remain with the
United States Government, and such rights shall survive termination of the Work
and this Agreement; provided, however, that no Patent listed on Exhibit C as of
the date hereof and no Intellectual Property directly related thereto shall be
deemed to relate to an SIS invention.
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ARTICLE V
WORK AND SERVICES
Section 5.1 DOE Work and Services.
(a) Pursuant to Section 1606 of the Act, DOE will provide or
cause to be provided by the M&O Contractor the work requested by USEC for
research, development and demonstration (including research, development and
analyses for the purposes of commercialization) of the AVLIS Program and other
activities incidental thereto ("Work"), as more specifically described on
Exhibit E (the "Statement of Work") and services required for performance of the
Work (charged as indirect costs) such as maintenance, utilities, waste
management and disposal, security, fire protection, and such other services and
shared facilities required for the performance of the Work (the "Services").
(b) In consideration of the benefits to DOE for the operation
of AVLIS research at LLNL, the USEC costs for the AVLIS work at LLNL will be
determined by reducing the Eligible Costs as defined in Article I by eight
percent (8%), up to a maximum of $5,000,000.00 per Fiscal Year, prorated for
partial Fiscal Years (from May 1, 1995 to April 30, 1997). The continuation of
this arrangement thereafter is contingent upon future DOE agreement to
continue the arrangement, such agreement not to be unreasonably withheld.
Section 5.2 Budget; Statement of Work. DOE shall provide the Work
and the Services as follows:
(a) Commencing on May 1, 1995 until September 30, 1995, USEC
will make payments up to a total of $29,515,000 available to DOE for the payment
of the costs of AVLIS research performed in connection with the Statement of
Work and in accordance with the Budget for such Work and the Services to be
provided for such period. On July 1 of each Fiscal Year, USEC shall advise DOE
of its anticipated budget and required work for the M&O Contractor's activity
with respect to the AVLIS Program for the succeeding Fiscal Year.
(b) USEC's financial liability under this Article V shall be
limited to the amount stated in
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the then-current Budget. USEC's liability for termination costs is described in
Section 5.5(d)(ii) and Exhibit K.
(c) DOE shall require the M&O Contractor to prepare a
proposed Budget and Statement of Work in such detail as USEC shall require for
the M&O Contractor's activity with respect to the AVLIS Program by August 1 of
each Fiscal Year in accordance with the guidance provided by USEC under Section
5.2(a), and DOE shall submit them to USEC for USEC's written approval. Such new
Budget and Statement of Work shall become effective when approved in writing by
USEC.
(d) USEC shall pay DOE monthly in advance the Eligible Costs
for the Work and for the Services for such month as provided in the Budget. The
advance funding amount shall be based on monthly estimates which DOE has tasked
the M&O Contractor to provide in the monthly Reports described in Section 5.3,
and will include funding sufficient to cover longer term commitments, for
example, long lead items wherein obligations are required to initiate
procurement that must be fully funded at time of order placement. In addition to
the monthly advance funding, USEC will provide funds equal to the costs for an
additional 15-day period at the current month's level of funding to avoid a
potential anti-deficiency issue for DOE. This amount will be based upon the
Budget and vary with the level of funding requested for each month. Monthly
advance funding requests shall be included as part of the monthly Reports. The
monthly requested amount will be adjusted to account for changes in the plan for
work performed and for procurements made. The additional 15- day funding amount
will be adjusted to account for changes in the amount of available funds at the
end of each month, i.e. if available funds are equal to 10 days of funding, then
the additional amount will equal 5 days. If over the course of time USEC and DOE
determine that the additional 15-day funding is excessive and not fully
necessary to avoid a potential anti-deficiency issue, USEC and DOE may agree to
reduce the funding amount to cover a shorter period. With USEC's prior written
approval, the monthly requested amount may deviate from the monthly spending
plan described in the Budget, provided that the total funding for any Fiscal
Year shall not exceed the funding limitation in the currently approved Budget.
USEC will reconcile its advance funding payments with the monthly Reports of the
M&O Contractor's actual expenditures.
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Without the prior written approval of USEC in its sole discretion, neither DOE
nor the M&O Contractor shall make any expenditure or incur any liability with
respect to the AVLIS Program in excess of the Eligible Costs specified in the
then-current Budget for any line item (or in the aggregate) (i) in any month by
more than ten percent (10%) or (ii) in any Fiscal Year by any amount.
(e) The disbursement of USEC funds to DOE shall be made by
wire transfer to the M&O Contractor according to the breakout of the M&O
Contractor's approved monthly budget requests as provided in Section 5.2(d), on
the first day of each month commencing on May 1, 1995. Such wire transfers shall
be made to the following account (or such other account as DOE may specify by
notice):
M&O Contractor: ABA#000000000
ACCT#1233957246
Address: Bank of America
0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
(f) The funds disbursed by USEC under this Article V shall be
used by DOE only to pay the Eligible Costs of Work performed and Services
provided as provided in the Statement of Work and the Budget.
(g) Costs of compliance with any requirement of state or
local Laws and Regulations and the terms and conditions of state and local
Permits and Licenses for the performance of the Work and Services which are not
required by applicable Federal statutes, Laws and Regulations, and Executive
Orders, shall not be incurred by DOE as a direct cost to the AVLIS project
unless prior approval in writing is obtained from USEC as an allowable cost of
the Budget.
(h) Eligible Costs shall be exclusive of depreciation and
Federal Headquarters and Field charges (Added Factor). The charges will be
reviewed prior to December 1, 1995, and annually thereafter, to determine
whether such charges are fair and equitable to USEC and DOE and whether the
charges should be adjusted.
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Section 5.3 Report. On the 20th day of each month, DOE will cause
the M&O Contractor to submit a Report (the "Report") to USEC describing in
detail the Work performed, the Services provided, and the expenditures incurred
by the M&O Contractor during the preceding month. The Report will itemize the
expenditures and arrange them in accordance with the categories of items
indicated in the Budget. If any expenditures exceed by ten percent (10%) or more
the amount estimated for such item in the Budget, the Report will explain the
cost variance. The Report will also describe the progress that the M&O
Contractor has made in performing the Work and indicate the amount required for
funding by USEC for the following month. The Report shall be certified by the
M&O Contractor as true, correct and complete in all material respects.
Section 5.4 Project Cost Review.
(a) USEC shall have the right, upon reasonable notice and
with participation by DOE AVLIS staff to conduct a cost-incurred review,
performed by USEC's accountants, of the books and records related to the AVLIS
project. DOE shall provide USEC with reasonable access to such accounts and
facilities necessary to permit USEC to monitor and review the use of its funds.
(b) To the extent requested by USEC, DOE will enforce its
rights under the M&O Contract with respect to the performance of Work and the
provision of the Services by the M&O Contractor.
Section 5.5 Termination.
(a) Any or all of the Work or the Services of DOE or the M&O
Contractor provided pursuant to this Article V may be terminated by USEC upon
ninety (90) days written notice to DOE.
(b) USEC shall determine, prior to July 1 of each Fiscal Year,
whether its funding of AVLIS research at LLNL shall continue beyond the end of
such Fiscal Year. It shall provide notice thereof to DOE by July 1 of each
Fiscal Year.
(c) DOE shall only have the right to terminate the provision
of the Work and the Services under
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this Article V in the event that: (i) USEC fails to provide the funds it is
required to provide under this Article V and such failure continues for a period
of thirty (30) days following written notice from DOE; (ii) DOE determines to
terminate all operations of LLNL (other than decontamination and decommissioning
as provided in Section 7.3) and not to transfer such operations to any successor
Person or successor operator of LLNL; (iii) national security needs require DOE
to terminate, and DOE gives USEC ninety (90) days notice; or (iv) DOE notifies
USEC that USEC has materially breached its obligations under this Agreement, and
such breach has not been cured by USEC within ninety (90) days of such notice
or, if such breach is not capable of cure within such ninety (90) day period but
ultimately is capable of cure, USEC has not commenced diligently to cure such
breach within such ninety (90) day period. DOE shall notify USEC at least six
(6) months prior to termination of operations at LLNL as described in Section
5.5(c)(ii) and, at USEC's request, DOE shall negotiate in good faith to provide
for orderly termination or transfer of the Work to another location or
continuance of the Work and the Services at LLNL.
(d) At any time USEC terminates the Work and the Services
pursuant to Section 5.5(a) and at any time DOE exercises its rights under
Section 5.5(c) hereof (collectively, "Program Termination"), USEC shall be
liable for the payment for Work and the Services performed prior to the
effective date of termination and shall be liable to DOE for the costs of the
termination requirements set forth in Exhibit K.
Section 5.6 Modification or Replacement of M&O Contract. In the
event the M&O Contract is amended, modified, supplemented, or terminated, or
expires and is re placed with another M&O Contract, DOE agrees that it shall
cause the Work and the Services to be performed or provided so that there will
be no material adverse impact on USEC, including in the performance of the Work
and the provision of the Services pursuant to this Article V, and so that there
will be no material adverse impact on the rights of USEC under this Agreement.
Section 5.7 Cooperative Arrangements.
(a) DOE will not approve or authorize any CRADA, Work-for
Others (as defined in the M&O Contract),
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funding agreement, cooperative research agreement, research agreement, or
similar arrangement involving the use of any part of the AVLIS Program, the
AVLIS Property, or the Intellectual Property (collectively, a "Cooperative
Arrangement"), without the prior written consent of USEC. USEC may participate
in proposals for Cooperative Arrangements from the M&O Contractor and proposed
partners in Cooperative Arrangements, subject to the provisions of The Federal
Technology Transfer Act of 1986 and The National Competitiveness Technology
Transfer Act of 1989.
(b) DOE represents that:
(i) the only Cooperative Arrangements currently in
effect or pending are those that are already approved by USEC in
writing and described on Exhibit G; and
(ii) USEC has no obligation to fund any such
Cooperative Arrangement or any other obligation with respect thereto.
(c) In the event that USEC or the AVLIS Program is transferred
to private ownership or to a private corporation as contemplated by the Act,
the successor shall have the option to have the Work and the Services
contemplated by this Article V: (i) to be performed or provided pursuant to a
Cooperative Arrangement (subject to the agreement of the M&O Contractor as
provided in the M&O Contract), or (ii) to continue to be performed or provided
under the terms of this Agreement.
Section 5.8 Disclaimer. USEC will not hold DOE responsible for any
inaccuracy in the information provided by the M&O Contractor to USEC in
connection with this Article V or that such information and the Work will
accomplish the results for which it was intended.
Section 5.9 Accounting. DOE acknowledges that the M&O Contract
requires the M&O Contractor to follow accounting principles and practices
consistent with generally accepted accounting principles consistently applied
in the development of estimates and the recording and reporting of actual costs
under this Agreement. DOE shall require the M&O Contractor to continue to follow
this practice.
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Section 5.10 Property Management. Except as provided in this
Agreement, all property related to or used in the Work shall be managed and
maintained in accordance with the M&O Contract. For the purposes of this
Agreement, capital equipment is defined as equipment anticipated to have a
service life of two (2) years or more and an acquisition cost of $5,000 or more.
All such capital equipment purchased by DOE in connection with the Work shall
be the property of USEC. Any equipment or supplies with a value less than $5,000
shall be the property of DOE, unless USEC requests ownership thereof. DOE shall
establish and follow (or cause to be established and followed) a property,
document, equipment and materials tracking, inventory, and management system in
form and substance reasonably acceptable to USEC. If such system differs from
the management system otherwise in effect under the M&O Contract, such effort
shall be included in the Work.
Section 5.11 Location of the Work and Services. The Work shall be
performed at, and the Services shall be provided to, the facilities situated at
LLNL and at Oak Ridge, Tennessee which are identified and described in the maps
and attachments which form Exhibit A to this Agreement ("Program Buildings").
Section 5.12 Coordination of the Work.
(a) USEC shall have access to the Premises and the Program
Buildings for (i) the purpose of research, development and demonstration
(including research, development and analyses for the purposes of
commercialization) of the AVLIS Program and other activities incidental thereto,
and (ii) direction of the Work as provided in this Agreement and the Statement
of Work.
(b) DOE and USEC will cooperate to coordinate the performance
of the Work as reasonably may be directed by USEC. Pursuant to Section 1606 of
the Act, USEC shall have the right to direct the Work; provided that DOE shall
have overall responsibility for regulatory compliance with respect to matters
related to the environment, health, safety and safeguards, and security. DOE
shall have the right to conduct research and development activities unrelated to
the AVLIS Program at the Premises and the Program Buildings on a
non-interference basis with
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the prior written consent of USEC, such consent not to be unreasonably withheld.
(c) USEC shall have access to those parts of LLNL which are
not part of the Premises or the Program Buildings but are reasonably necessary
to the exercise of its rights or the performance of its duties under this
Agreement or to the comfort, safety and convenience of USEC and its officers,
directors, employees, agents and contractors, subject to procedures to be agreed
upon by DOE and USEC (including without limitation confidentiality and security
procedures as described in Article XIV).
(d) Consistent with the emergency procedures currently in
place at LLNL, either party will have the right to take such action as may be
reasonably necessary to respond to emergencies or to protect life or property
from imminent danger.
(e) USEC shall be permitted to have USEC employees,
contractors, subcontractors, agents, consultants and other representatives on
site at LLNL. Such USEC employees and other representatives shall abide by all
applicable environmental protection, health and safety, and security
requirements. If requested by USEC, DOE will provide suitable facilities on site
at LLNL for a USEC site office on a reimbursable basis.
(f) USEC shall assure that its contractors and subcontractors
maintain worker's compensation, employer's liability, comprehensive general
liability (bodily injury), and comprehensive automobile liability (bodily injury
and property damage) insurance in commercially reasonable amounts.
Section 5.13 Standard of Performance. (a) The performance of the
Work and the provision of the Services by DOE and its agents, employees,
contractors and subcontractors shall comply with applicable Laws and
Regulations.
(b) DOE and its agents, employees, contractors and
subcontractors will have, and shall continue to maintain in full force and
effect, all Permits and Licenses required for the performance of the Work, the
provision of the Services, and the ownership and operation of LLNL.
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(c) DOE and its agents, employees, contractors and
subcontractors are and will remain in compliance with such Permits and Licenses
in all material respects.
(d) Except as provided in Section 5.2(g), costs for
maintaining Permits and Licenses associated solely with the performance of the
Work and the provision of the Services shall be included in the Budget.
ARTICLE VI
MODIFICATION OF EXHIBITS
Section 6.1 Correction of Exhibits.
(a) Exhibits A, B, C, and I attached hereto on the date of
this Agreement were prepared by DOE or by the M&O Contractor at the request of
DOE. DOE has utilized its best efforts to assure that such Exhibits are
accurate and complete. However, DOE and USEC recognize that the Exhibits may not
identify all property related to and useful in USEC's purposes regarding AVLIS
or all Patents and that there may be a need to add to or subtract from AVLIS
Property or Intellectual Property transferred or deemed to be transferred
pursuant to this Agreement. Accordingly, subject to mutual agreement of the
parties, any list or description of the AVLIS Property in Exhibit A, B, and I,
which is subject to the option of Section 3.1 and any list of Patents on Exhibit
C subject to transfer under Article IV may be modified from time to time to add
property or Patents, as the case may be, that is related to and useful in
performance of USEC's purposes regarding the AVLIS Program, or to delete any
property or Patents.
(b) USEC's right to add additional property to any such
Exhibit shall expire upon the privatization of USEC as contemplated by the Act;
provided, that if at any time prior to or after such privatization it is
discovered that any such Exhibit was not accurate and complete as of the date
of this Agreement, notwithstanding the best efforts of DOE to assure that such
Exhibits are accurate and complete or to assure DOE's title to AVLIS Personal
Property, (i) USEC shall have the right to amend such Exhibit to include an
accurate and complete list or description of property related to and useful in
USEC's purposes regarding AVLIS as contemplated by the Act, or of
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Patents, and such property or Patent shall be deemed to have been transferred
upon the earlier of (x) the date such Exhibit is so amended, or (y) the date
immediately prior to the privatization of USEC as contemplated by the Act, and
(ii) DOE shall remedy any defect in title with respect to AVLIS Personal
Property. The exercise of the rights provided to USEC by this Section 6.1(b)
shall not be deemed to be a new transfer of property under Article III or
Article IV of this Agreement or under Section 1602 of the Act, but rather shall
be deemed to be the exercise by USEC of a remedy in the nature of a warranty
with respect to the failure by DOE to assure that Exhibits A, B, C and I are
accurate and complete as of the date of this Agreement.
(c) If DOE shall identify any property which is related to and
useful in USEC's purposes regarding AVLIS and which is not listed on Exhibit A,
B, C or I, DOE will notify USEC prior to disposing of any such property or
utilizing it for any other purpose.
Section 6.2 Option to Abandon USEC Property.
(a) Based upon what options or rights USEC has exercised, and
subject to the consent of DOE, which shall not be withheld unreasonably, and
subject to the safe shutdown and decontamination and decommissioning preparation
procedures described in Exhibit K, USEC may abandon and return to DOE any of the
Premises or related facilities listed on Exhibit I, and may abandon and return
to DOE any part of the AVLIS Personal Property or any Patent listed on Exhibit
C.
(b) Upon abandonment under Section 6.2(a), USEC may leave any
of its contaminated personal property at the Premises for decontamination and
decommissioning, as defined in the Act, at USEC's expense or at DOE's expense
as provided in Section 7.3.
(c) If USEC seeks to abandon any property described in Section
6.2(a), USEC shall provide sixty (60) days notice thereof to DOE. Any property
returned to DOE pursuant to Section 6.2(a) may be returned in the condition in
which such property is found on the date returned. USEC will have no obligation
to place the property in any better condition. The rights to abandon and return
prop-
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erty and Patents under Section 6.2(a) shall survive the privatization of USEC as
contemplated by the Act.
ARTICLE VII
ALLOCATION OF LIABILITIES
Section 7.1 Liability and Reimbursement. Except for liability
expressly assumed by USEC pursuant to Section 7.5, DOE shall retain liability
for and reimburse USEC to the extent it incurs or becomes liable for any and all
costs and expenses (including reasonable attorney's fees incurred by USEC),
claims, damages, injunctions, orders, judgments and penalties which are
attributable to or arising out of the ownership or operation, by DOE or any
agent, contractor, or employee thereof, of LLNL, the Premises, the Program
Buildings, the AVLIS Property, or the AVLIS Program or out of the performance of
the Work or the provision of the Services. Such liability includes but is not
limited to:
(a) any pollution, contamination, or threat to human health or
the environment attributable to the operation of LLNL, the Premises, the Program
Buildings, the AVLIS Property, or the AVLIS Program by DOE, in whole or in
part, prior to the date of the exercise of the option to acquire the Premises
set forth in Section 3.1 hereof, regardless of when the event or condition
giving rise to liability is discovered by USEC, including, with out limitation,
all Remedial Action required by the Federal Facility Agreement under CERCLA
Section 120 in the matter of U.S. Department of Energy, Xxxxxxxx Livermore
National Laboratory, Livermore, California and Impacted Environs, dated November
2, 1988;
(b) any Environmental Claim not the result of the negligence
or misconduct of USEC;
(c) USEC's status, if any, as a permittee, licensee, holder,
signatory, owner, operator, assign, or successor in relation to any Permit
(including without limitation any requirement to obtain a Permit), or any
administrative or judicial order, decree, or judgment, whereby and to the extent
USEC is held responsible or liable in any manner for DOE's operation of LLNL,
the Premises, the Program Buildings, the AVLIS Property, the AVLIS Program prior
to the date of the exercise of the
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option to acquire the Premises set forth in Section 3.1 hereof;
(d) any act or failure to act by DOE in transporting, storing,
or disposing of any material;
(e) the release, discharge, removal, disposal, change out, or
replacement of polychlorinated biphenyls, transuranics, chromates,
trichloroethylene, asbestos, or pentachlorophenol existing or present at LLNL,
the Premises, the Program Buildings, the AVLIS Property, or any portion thereof,
regardless of whether such portion is transferred and regardless of the time at
which such existence or presence becomes known to USEC; provided, however, this
subsection shall not apply to the extent that any such material has been
introduced to the Premises by USEC after the date of the exercise of the option
to acquire the Premises set forth in Section 3.1 hereof. DOE's responsibility
under this subsection (e) shall be governed by the Laws and Regulations and the
Permits and Licenses in effect at the time the cost or liability for the
release, discharge, removal, disposal, change out or replacement of such
material is incurred by or imposed on USEC;
(f) actions taken or not taken under or pursuant to the M&O
Contract, whether based on contract, tort or otherwise, and regardless of
whether known or not known by USEC; and
(g) any other liability of DOE with respect to the
performance of the Work, the Services, or the ownership or operation by DOE or
any agent, employee or contractor thereof of LLNL, the Program Buildings, the
AVLIS Property, the Intellectual Property or the AVLIS Program except for the
liability for infringement claims assumed by USEC in Section 4.4 above.
Section 7.2 Generation of Waste. Without limiting DOE's obligations
under Section 5.13, until but not subsequent to the exercise by USEC of the
option to acquire the Premises provided in Section 3.1(d), DOE (i) shall
manage, process, distribute, use, treat, store, dispose of, transport and handle
all Materials of Environmental Concern, and (ii) shall control the rate of
generation of wastes (including hazardous, low level, and mixed waste) and types
of wastes to be generated in the
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performance of the Work and the provision of the Services, in each case
consistent with the conditions and requirements contained within: (1) existing
and future Laws and Regulations (including Environmental Laws), Permits and
Licenses, and environmental agreements; (2) the LLNL site-wide EIS/EIR and other
existing or future NEPA documentation; and (3) other constraints applicable to
all waste generators on site at LLNL.
Section 7.3 Decontamination and Decommissioning. Except as provided
in this Section 7.3, DOE shall remain responsible for all costs associated with
the decontamination and decommissioning, as defined in the Act, of AVLIS
facilities. If USEC's use or operation of AVLIS facilities increases the costs
paid by DOE, exclusive of internal DOE overhead costs and the costs of work
performed by DOE employees, for the decontamination and decommissioning of the
AVLIS facilities over that which DOE would have incurred in the absence of such
use or operation, then USEC shall reimburse DOE for such increased costs
incurred.
Section 7.4 DOE Liabilities. DOE agrees to retain liability for and
to reimburse USEC to the extent USEC incurs or becomes liable for any and all
costs and expenses (including reasonable attorney's fees), claims, damages,
injunctions, orders, judgments and penalties which are attributable to or
arising out of actions taken or omissions by DOE or its agents, employees, or
contractors (other than USEC) with respect to the operation, occupation or use
of, or activities at, LLNL, the Program Buildings, the AVLIS Property, the AVLIS
Program or any portion of any of them, after the date hereof.
Section 7.5 USEC Liabilities. USEC agrees to retain liability for
and to reimburse DOE to the extent DOE incurs or becomes liable for any and all
costs and expenses (including reasonable attorneys fees), claims, damages,
injunctions, orders, judgments and penalties which are attributable to or
arising out of actions taken by USEC or its agents, employees, or contractors
(other than DOE or the M&O Contractor) with respect to operation, occupation or
use of, or activities at, LLNL, the Program Buildings, the AVLIS Property, the
AVLIS Program or any portion of any of them, after the date hereof.
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Section 7.6 Right to Defend. Promptly after receipt by a party
entitled to reimbursement pursuant to this Article VII of notice of any claim or
the commencement of any action, such party shall notify the other party of the
claim or commencement of an action. The party liable for reimbursement shall
have the right to participate in the defense of any third party claim or action
through counsel of its own selection at its own expense; provided, that
regardless of which party assumes the defense of a third party claim or action,
neither party shall settle or compromise any such claim or action without the
consent of the other party, which consent shall not be withheld unreasonably.
The party entitled to reimbursement shall, at the expense of the party liable,
cooperate to make available to the party liable all pertinent information under
the control of the party entitled to reimbursement and shall make appropriate
personnel reasonably available in connection with such claims.
ARTICLE VIII
INSURANCE AND DAMAGE
Section 8.1 Insurance. USEC will not be required to have any
insurance coverage. However, after privatization of USEC as contemplated by the
Act, USEC will maintain worker's compensation, employer's liability,
comprehensive general liability (bodily injury), and comprehensive automobile
liability (bodily injury and property damage) insurance in commercially
reasonable amounts.
Section 8.2 Partial or Total Casualty to the Program Buildings or
AVLIS Property. If all or a part of the Program Buildings or AVLIS Property are
damaged or destroyed not due to the fault or negligence of USEC, its agents,
employees, contractors, or subcontractors (other than DOE or its agents,
employees, contractors or subcontractors) prior to USEC's exercise of the
options set forth in Section 3.1 with respect to such property, USEC will have
the option to require DOE to repair or rebuild such casualty.
ARTICLE IX
XXXXX-XXXXXXXX INDEMNIFICATION
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DOE represents, warrants and covenants that the indemnification
clause contained in Article XVII of the M&O Contract is and will continue to be
effective as to all activities or things performed or provided in connection
with the Work or the Services, and that USEC would be an indemnified person
under such clause to the same extent as the University (as defined in the M&O
Contract) or any other Person. DOE shall furnish evidence of such effectiveness
at any time upon request of USEC.
ARTICLE X
OVERSIGHT
Section 10.1 Environment, Safety, And Health. Activities performed
in connection with the Work and the Services shall comply with applicable Laws
and Regulations and the terms and conditions of applicable Permits and Licenses.
Section 10.2 Emergencies. DOE and USEC shall have the right to stop
the Work or any portion thereof whenever there exists a situation that
jeopardizes personnel or public health or safety, without the approval of the
other party. If time permits, immediate notice of the circumstances requiring
cessation of Work or any portion thereof shall be given to the other party prior
to the issuance of a stop work order. DOE will determine when work resumption is
safe for personnel, and/or the facility can be approved for restart. If the risk
is to property only, DOE may allow USEC to accept the financial risk provided
the deficiencies are to be corrected while the facility is continuing
operations.
Section 10.3 DOE Oversight.
(a) DOE will assure that its employees, agents, contractors
and subcontractors (including the M&O Contractor) shall comply with applicable
Laws and Regulations and the terms and conditions of applicable Permits and
Licenses, including with respect to the environment, health and safety, quality
assurance (limited to ES&H QA), classification, safeguards, and security in the
performance of the Work and the provision of Services.
(b) Until Program Termination, USEC shall pay to DOE a fee of
$200,000.00 each Fiscal Year (pro-
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rated for partial Fiscal Years) to cover the costs of administration of this
Agreement and of providing oversight as provided in this Section 10.3. This fee
will be included in the Budget.
Section 10.4 New/Modified Operations. DOE approval shall be obtained
prior to initial operations of new facilities, processes or safety-significant
modifications of existing Program Buildings or processes, such approval not to
be withheld unreasonably.
ARTICLE XI
REPRESENTATIVES
Section 11.1 DOE AVLIS Manager. DOE appoints its AVLIS Manager at
LLNL as its on-site representative ("DOE AVLIS Manager") with authority to act
on behalf of DOE with respect to the Work and the Services other than
modifications of this Agreement pursuant to Article XII hereof. DOE may
designate a different DOE AVLIS Manager at any time. Within thirty (30) days
thereafter, DOE shall provide notice thereof to USEC.
Section 11.2 USEC AVLIS Manager. USEC shall appoint a person as its
on-site representative ("USEC AVLIS Manager") with authority to act on behalf of
USEC with respect to the Work and the Services other than modifications of this
Agreement pursuant to Article XII hereof. USEC may designate a different USEC
AVLIS Manager at any time. Within thirty (30) days thereafter, USEC shall
provide notice thereof to DOE.
ARTICLE XII
MODIFICATIONS AND PRIVATIZATION
Section 12.1 Amendments. Except for the changes made pursuant to
Article VI and Section 12.2 hereof, no change, amendment or modification of this
Agreement shall be valid or binding unless such change, amendment or
modification is described in a writing and is duly executed and consented to by
the Secretary of Energy or any person authorized by the Secretary of Energy to
provide such consent, and by the Chief Executive Officer of USEC or any person
authorized by the Board of Directors of USEC to provide such consent.
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Section 12.2 Privatization.
(a) In the event USEC is privatized as contemplated by the
Act, this Agreement will be changed, amended or modified as provided in such
privatization plan and otherwise shall remain in full force and effect
according to its terms. USEC will notify DOE promptly after the adoption of a
resolution by the Board of Directors of USEC authorizing a transaction to
privatize USEC.
(b) In the event USEC is privatized as contemplated by the Act
or the AVLIS Program, the AVLIS Property, or the Intellectual Property is
transferred to a private corporation as contemplated by the Act, and the duties
and obligations of USEC are assumed by a private corporation pursuant to such
privatization or transfer, this Agreement shall survive such privatization and
be transferred to such private corporation without the need for DOE or USEC to
take any further action under this Agreement or otherwise. In such event, the
name of such private corporation shall be substituted for that of USEC in this
Agreement. In addition, DOE and USEC shall take whatever further action is
required to transfer to such private corporation any memorandum of agreement or
other agreements, instruments or documents related to this Agreement and entered
into by DOE and USEC on or after the date hereof which cannot be transferred to
such private corporation by the operation of their terms.
ARTICLE XIII
ASSIGNMENTS
Section 13.1 Assignment by DOE. DOE shall not have the right to
assign this Agreement or any portion hereof and any such assignment shall be
void. This Agreement and the obligations of DOE hereunder shall survive
transfer of DOE's operations at LLNL, in whole or in part, to any other Person.
DOE shall not subcontract or delegate any Work or the Services to any M&O
Contractor other than the Regents without the consent of USEC, such consent not
to be withheld unreasonably. No subcontracting or delegation of the Work or the
Services to the M&O Contractor or any other person shall relieve DOE of any of
its obligations or liabilities hereunder.
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Section 13.2 Assignment by USEC.
(a) USEC shall not have the right to assign this Agreement or
any portion hereof and any such assignment shall be void; except that, as
provided by the Act, USEC may be substituted under this Agreement by (i) a
successor in interest, (ii) a private corporation formed or caused to be formed
by USEC for the purpose of commercializing AVLIS, or (iii) any Person to whom
USEC transfers its rights to commercialize the AVLIS Program, which in the case
of (i), (ii) or (iii) assumes all of the duties and obligations of USEC under
this Agreement.
(b) With the consent of DOE, which shall not be withheld
unreasonably, USEC shall have the right to exercise its rights or perform its
duties under this Agreement through one or more agents or contractors for the
same, and to assign such rights and delegate such duties to such agent or
contractor as USEC may elect. No such assignment or delegation shall be deemed
an assignment of this Agreement.
(c) Nothing in this Section 13.2 shall be deemed to restrict
USEC's right to sell, assign, license or otherwise transfer any Intellectual
Property or to sell, assign, lease, or otherwise transfer any item of AVLIS
Property upon exercise of any of the options described in Section 3.1 with
respect to such item of AVLIS Property.
ARTICLE XIV
CONFIDENTIAL MATTERS
Section 14.1 Proprietary Information; FOIA.
(a) Except as provided in this Agreement (including the
reservation of a license to use the Intellectual Property and the Records for
Governmental Purposes as provided in Sections 3.3(c) and 4.3(b)), DOE shall not,
without the prior written approval of USEC: (i) utilize any Proprietary
Information for any purpose other than for the purpose of performing the Work;
(ii) disclose, permit disclosure of, provide access to, release, or disseminate,
by any means, any Proprietary Information, to any other Person (except as
contemplated by this Agreement for the performance of the Work); (iii) provide
access to any Pro-
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prietary Information to any Representative of DOE or any other Person affiliated
in any way with DOE that is not necessary for the purposes of performing the
Work; or (iv) disclose Proprietary Information to any DOE employee who is not
subject to 18 U.S.C. Section 1905; provided, however, that DOE may disclose USEC
designated Proprietary Information to the extent such disclosure may be
lawfully required, and provided that, prior to such disclosure, DOE gives USEC
prompt notice of the required disclosure so that USEC may take whatever action
it deems appropriate, including the intervention in any proceeding and the
seeking of an injunction to prohibit such disclosure.
(b) "Proprietary Information" means all information in any
form or medium, written, oral, or electronic, (i) transferred to USEC pursuant
to the terms of this Agreement, (ii) generated in the course of the Work, or
(iii) identified or marked by USEC as Proprietary Information or business
confidential information which is furnished to DOE or any employee, agent or
contractor thereof in connection with this Agreement by or on behalf of USEC or
any of its directors, officers, employees, agents, contractors, accountants or
other representatives, and (iv) those portions of any analyses, compilations,
studies, reports, presentations or other instruments, prepared by DOE or its
employees, agents, contractors, sub contractors, or other representatives
("Representatives") that contain, or are based in whole or in part, on
information described in (i) through (iii) above. "Proprietary Information"
shall not include information which: (x) is or becomes generally available to
the public other than as result of disclosure by DOE or its Representatives; (y)
is hereafter received by DOE from a third Person who has the right to disclose
such information; or (z) is independently developed by any Representative of
DOE who has not had access at any time to Proprietary Information in the
possession of DOE.
(c) Upon USEC's written request and in accordance with its
directions, and subject to Section 3.3(c), Proprietary Information (including
all copies thereof made by a recipient) shall be returned to USEC or destroyed
with written confirmation of same provided to USEC.
(d) Without limitation to subsection (a) above, the current
AVLIS classification guidance will
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remain in effect until USEC proposes, and DOE agrees to, new guidelines. DOE
will safeguard Proprietary Information from unauthorized access, disclosure,
modification or destruction in accordance with applicable DOE classification,
security regulations, orders and directives, and in accordance with the
requirements of this Article XIV.
(e) At USEC's request, DOE shall obtain from an authorized
officer of the M&O Contractor a written acknowledgement, for itself, its
employees, agents, and subcontractors, of the requirements of this Article XIV.
(f) The M&O Contractor shall xxxx all work product of the M&O
Contractor produced in connection with the Work as the proprietary and business
confidential information of USEC.
(g) DOE shall develop and implement procedures acceptable to
USEC for marking and protecting Proprietary Information and business
confidential information from public release as provided in this Article XIV.
(h) Prior to privatization of USEC as contemplated by the Act,
USEC shall have responsibility for all requests for information under FOIA
relating to the AVLIS Program or the transactions contemplated by this
Agreement, and DOE promptly shall refer any such FOIA requests received by it
to USEC. Following such privatization, DOE shall consult with USEC with respect
to any FOIA request it receives relating to the AVLIS Program or the
transactions contemplated by this Agreement.
(i) The parties acknowledge that, notwithstanding Sections
3.3(c) and 4.3(b), any USEC information or records (including Proprietary
Information and the Records) located at LLNL or any other DOE facility are the
property of USEC, and that such information or records are provided by USEC to
DOE for the convenience of performing the Work and the provision of the
Services. Information or records generated in the course of the Work that may
constitute government-owned records under the M&O Contract shall be deemed the
property of USEC.
(j) USEC designates this Agreement business confidential
information and DOE will coordinate any FOIA response with USEC.
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Section 14.2 Security.
(a) USEC will follow DOE guidelines for classification,
safeguards, and security requirements.
(b) Both USEC and DOE approval will be required for all
third-party visitors to AVLIS facilities at LLNL.
ARTICLE XV
COMPLIANCE WITH NEPA
Section 15.1 Joint Effort; Lead Agency. Until the date of
privatization of USEC as contemplated by the Act, compliance with the National
Environmental Policy Act relative to any actions taken pursuant to or
contemplated by this Agreement will be achieved with a joint effort between DOE
and USEC, with USEC as the Lead Agency and DOE as the Cooperating Agency.
Section 15.2 Costs. DOE and USEC each will bear its own costs and
expenses incurred in connection with compliance with the National Environmental
Policy Act.
ARTICLE XVI
MISCELLANEOUS
Section 16.1 Entire Agreement. This Agreement contains the entire
understanding of DOE and USEC with respect to the subject matter of this
Agreement, and supersedes all agreements entered into by DOE and USEC prior to
the date hereof with respect to the subject matter of this Agreement. There are
no other oral or written understandings, terms or conditions and neither DOE
nor USEC has relied upon any representation or statement, express or implied,
which is not contained in this Agreement.
Section 16.2 Notices. In order to be effective, any notice, demand,
offer, response, request or other communication made with respect to this
Agreement by either DOE, the M&O Contractor, or USEC must be in writing and
signed by the one initiating the communication and must be hand-delivered or
sent by registered letter, telefax or by a recognized overnight delivery
service that re-
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quires evidence of receipt at the addresses for such communication given below:
For DOE:
Xxxxx X. Xxxxxx, Ph.D.
Acting Manager
U. S. Department of Energy
Oakland Operations Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
For the M&O Contractor:
Xxxxx Early
Program Leader
Isotope Separation and Advanced
Manufacturing Technology Program
Xxxxxxxx Livermore National
Laboratory
P. O. Box 808, L466
0000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
For USEC:
J. Xxxxxxx Xxxxxxx
Vice President
United States Enrichment Corporation
2 Democracy Center
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
DOE, the M&O Contractor and USEC have the right to change the place to which
communications are sent or delivered by similar notice sent or delivered. The
effective date of any communication shall be the date of the receipt of such
communication by the addressee.
Section 16.3 Severability. The invalidity of one or more phrases,
sentences, clauses, subsections, sections or articles contained in this
Agreement shall not affect the validity of the remaining portions of this
Agreement so long as the material purposes of this Agree-
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46
ment can be determined and effectuated. If such invalidity alters the
fundamental allocation of risks or benefits or the rights and obligations of DOE
or USEC contemplated in this Agreement, DOE and USEC will use their best
efforts to negotiate in good faith to restructure this Agreement to reflect its
original purposes.
Section 16.4 No Waiver.
(a) The failure of either DOE or USEC to rely upon any of the
provisions of this Agreement or to require compliance with any of its terms at
any time shall in no way affect the validity of this Agreement or any part
thereof, and shall not be deemed a waiver of the right of DOE or USEC, as the
case may be, to rely upon or require compliance with any and each such provision
at a different time.
(b) Nothing in this Agreement should be construed as a waiver
of any right, title or interest in and to property owned by DOE or by the United
States Government relating to Alternative Technologies as provided in the Act.
Section 16.5 Applicable Law. This Agreement will be governed and
construed in accordance with the federal laws of the United States of America.
Section 16.6 Binding Nature of Agreement. This Agreement will inure
to the benefit of and will be binding upon the Government of the United States,
DOE and USEC and their respective successors and assigns permitted by Article
XIII.
Section 16.7 Agreement not Joint Venture. Nothing contained in this
Agreement will be construed as creating or establishing a joint venture or
partnership between or among DOE, the M&O Contractor and USEC.
Section 16.8 Further Assistance. DOE and USEC will provide such
information, execute and deliver any agreements, instruments and documents and
take such other actions as may be reasonably necessary or required, which are
not inconsistent with the provisions in this Agreement and which do not involve
the assumption of obligations other than those provided for in this Agreement,
in order
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to give full effect to this Agreement and to carry out its intent and the intent
of the Act.
Section 16.9 Survival. This Agreement shall survive the expiration,
conclusion or termination of the Work and the Services.
Section 16.10 No Rights in Others. Except as provided in Section
12.2 and Section 13.2, this Agreement is intended only to improve the internal
management of the United States Government, and is not intended to create any
right or benefit, substantive or procedural, enforceable by a party against the
United States, its agencies or instrumentalities (including DOE and USEC),
officers or employees of the United States Government, or any other person.
Section 16.11 Payment Obligations.
(a) DOE's obligations to make payments to USEC under this
Agreement are subject to the availability of appropriated funds. DOE will use
its best efforts, consistent with Laws and Regulations, to make such payments
from existing appropriations (including reprogramming funds). If such payments
cannot be made by DOE from existing appropriations, DOE will use its best
efforts to request such additional appropriations as are needed from the
Congress of the United States in order to make such payments.
(b) Unless and until USEC is privatized as contemplated by
Section 1502 of the Act or the AVLIS Program is transferred to a private
corporation as contemplated by Section 1604 of the Act, USEC's obligations to
make payments to DOE under this Agreement are subject to the availability of
appropriated funds.
(c) This Section 16.11 does not limit either party's rights as
provided for in the Act.
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IN WITNESS WHEREOF, DOE and USEC have caused this Agreement to be
executed and delivered as of April 27, 1995, and hereby affix the signatures of
their duly authorized representatives:
/s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx, Ph.D.
ACTING MANAGER
OAKLAND OPERATIONS OFFICE
UNITED STATES DEPARTMENT OF ENERGY
AND
/s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
EXECUTIVE VICE PRESIDENT, OPERATIONS
UNITED STATES ENRICHMENT CORPORATION
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AMENDMENT FY98-1
TO THE
MEMORANDUM OF AGREEMENT
FOR
TRANSFER AND FUNDING OF AVLIS
BETWEEN THE
UNITED STATES DEPARTMENT OF ENERGY
AND THE
UNITED STATES ENRICHMENT CORPORATION
THE MEMORANDUM OF AGREEMENT ("Agreement") that was entered into on April 27,
1995, and most recently amended on July 1, 1997, between the UNITED STATES
DEPARTMENT OF ENERGY ("DOE") and the UNITED STATES ENRICHMENT CORPORATION
("USEC"), is hereby amended as follows:
1. Beginning on October 1, 1997 and ending on the date of USEC
privatization or when the amount transferred in (b) below has been
expended, whichever occurs first,
(a) Sections 5.2(b), 5.2(e), 5.2(f), 5.5(d), and 7.3 are hereby
suspended;
(b) the monthly advance payment requirements contained in Section
5.2(d) of the Agreement will be replaced by a transfer from USEC to
DOE of an amount not to exceed $60,000,000, as specified in Section
509 of the 1998 Energy and Water Development Appropriations Act, P.L.
105-62, for AVLIS demonstration and development activities; and
(c) DOE shall fund the Work and Services, as described in the most
recent approved Statement of Work and Budget, and shall be responsible
for all costs associated with the termination of all or part of the
Work or Services and the decontamination and decommissioning of the
AVLIS facilities.
2. After the funds transferred pursuant to P.L. 105-62 have been expended
or privatization happens, whichever occurs first, (i) the Sections in
1.(a) above are reinstated; (ii) AVLIS funding will be provided by
USEC, or a new entity (the "privatized" USEC), in accordance with the
requirements of Section 5.2(d); and (iii) responsibility for funding
the Work and Services, for termination costs, and for decontamination
and decommissioning of the AVLIS facilities will be in accordance with
the Agreement including the reinstated Sections as specified in 2.(i).
3. Section 1.1 definitions of Work and Services are amended by adding at
the end of each "and shall include any Work (Services) funded by DOE
pursuant to Section 509 of the 1998 Energy and Water Development
Appropriations Act."
4. All other terms and conditions of the Agreement shall remain in full
force and effect.
5. The effective date of this Amendment is October 1, 1997.
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MOA Amendment FY98-1. page 2
IN WITNESS WHEREOF, and intending to be legally bound, DOE and USEC have
caused this Amendment to the Agreement to be executed and delivered upon
the latter date of the signature of the two parties, and hereby affix the
signatures of their duly authorized representatives.
/s/ XXXXX X. XXXXXX 10/24/97 /s/ XXXXXX X. XXXXXXX 10/23/97
----------------------------- ----------------------------------
Xxxxx X. Xxxxxx, Ph.D. Date Xxxxxx X. Xxxxxxx Date
Manager Executive Vice President
Oakland Operations Office U.S. Enrichment Corporation
U.S. Department of Energy
