11_RFQ-24-702_Att11_Standard_Agreement_Example_ada.pdf

2. The term of this Agreement is:

Attachment 11

EXHIBIT A

Scope of Work described in the RFQ

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RFQ-24-702

DCBO Willow Rock Energy Center

ATTACHMENT 12

Standard Agreement Example

EXHIBIT B

Budget Detail and Payment Provisions

1. PAYMENT PROVISIONS

Payment for DCBO services will be made by the Project Owner through a separate Agreement between the Contractor and the Project Owner. Contractor shall enter into a separate contract with the Project Owner for payment of DCBO services that Contractor provides under this Contract. The Contractor shall incorporate Exhibit B-1 in the Agreement between the Contractor and Project Owner, and the Energy Commission shall be an express and intended creditor third-party beneficiary in the Agreement between the Contractor and Project Owner.

2. RATES

The Contractor shall invoice the Project Owner for DCBO services under Agreement ______________ in accordance with the budget and rates negotiated between the Contractor and the Energy Commission. The Energy Commission is not liable for any payments to the Contractor.

3. TRAVEL AND PER DIEM RATES

The Contractor shall invoice the Project Owner for travel and per diem expenses using the Energy Commission Contractor Travel Rates. The Contractor must pay for travel in excess of these rates. The Contractor may obtain current rates from the Energy Commission’s Web Site at: http://www.energy.ca.gov/contracts/TRAVEL_PER_DIEM.PDF.

4. RATES & CLASSIFICATIONS: CHANGES IN CONTRACTOR PERSONNEL OR

SUBCONTRACTOR PERSONNEL

This section contains provisions allowing rate and classification changes without a formal amendment. Exhibit D contains the rules for adding or replacing personnel and subcontractors listed in the Agreement. When a Contractor makes personnel and subcontractor changes in accordance with Exhibit D that do not require a formal amendment, the following rules explain the rates and classifications for which the Contractor can invoice. Changes outside of these rules require a formal amendment to the Agreement.

A. New Personnel

If Contractor or a subcontractor adds new personnel after the Agreement has been executed, the Contractor shall submit the new personnel’s resume and proposed job classification/rate, consistent with classifications/rates within the respective budget, to CAM for review and approval. If the Agreement budget includes a job classification with the person identified as “To Be Determined”, and a person is later identified, this person is considered to be new personnel.

The new personnel shall not provide services until the CAM approves the new personnel request in writing and notifies the Commission Agreement Officer (CAO). Any work performed by these new personnel prior to CAM approval is at Contractor’s expense.

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RFQ-24-702

http://www.energy.ca.gov/contracts/TRAVEL_PER_DIEM.PDF

B. Labor Rates & Classifications

The Agreement budget identifies individuals and/or job classifications and the maximum rates that the Contractor can invoice for them. The Contractor shall only invoice for the actual rates up to the maximum amount listed. Contractor can only increase rates or add new job classifications to the Agreement through a formal amendment to this Agreement.

1. Contractor Changes: Addition or Replacement of Personnel

a) Labor Rates

If the Contractor adds a new person to a job classification listed in the Contractor’s budget or replaces a person listed in the Contractor’s budget, the Contractor can only invoice for the new person’s actual rate up to the maximum amount listed for that classification in the Contractor’s budget. The Contractor cannot use for its personnel a rate of a subcontractor.

b) Classifications

Additions or replacement of personnel can only be made within existing job classifications identified in the Contractor’s budget. The Contractor cannot use for its personnel a job classification of a subcontractor. The new person must be invoiced within job classifications that already exist in the budget for the Contractor. If the Contractor wishes to add a new job classification to the Agreement (for instance to bring in a new person or possibly promote a person) this will require a formal amendment to the Agreement.

c) Promotions

Contractor personnel listed in the Contractor’s budget can be moved to a higher-paying job classification listed in the Contractor’s budget with prior written approval of the CAM and the appropriate Division Deputy Director.

The written approval must be submitted to the CAO.

2. Subcontractor Changes: Addition or Replacement of Personnel

a) Labor Rates

If a subcontractor adds a new person to a job classification listed in the subcontractor’s budget or replaces a person listed in the subcontractor’s budget for that subcontractor, the subcontractor can only invoice for the new person’s actual rate up to the maximum amount listed for that classification in the subcontractor’s budget. The subcontractor cannot use for its personnel a rate of another subcontractor or of the Contractor.

b) Classifications

Additions or replacement of personnel can only be made within existing job classifications identified in the subcontractor’s budget. The

June 2025 Page 5 of 47 Attachment 11, Sample Agreement subcontractor cannot use for its personnel a job classification of another

June 2025 Page 6 of 47 Attachment 11, Sample Agreement subcontractor or of the Contractor. The new person must be invoiced within job classifications that already exist in the budget for the subcontractor. If the subcontractor wishes to add a new job classification to the Agreement (for instance to bring in a new person or possibly promote a person) this will require a formal amendment to the Agreement.

c) Promotions

Subcontractor personnel listed in the subcontractor’s budget can be moved to a higher-paying job classification listed in the subcontractor’s budget with prior written approval of the CAM and the appropriate Division Deputy Director. The written approval must be submitted to the

CAO.

C. Changes in Assigned Personnel Hours

Contractor may move hours allocated for a specific person (employee or subcontractor) to another person listed in the Agreement, upon written notification to the CAM. However such changes cannot change the amount of the budget for the task or labor category. If a change in personnel will result in a change in the dollar amount of the task or in the labor category, then the Agreement or Work Authorization must be amended.

5. BUDGET DETAIL

Budget detail is contained in the Attachments to this Exhibit.

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EXHIBIT B-1

Third-Party Beneficiary Language for Contract Between Project Owner and Delegate Chief Building Official (DCBO)

All of the following provisions must be included in the Agreement between the Project Owner and the DCBO:

1. Parties A. [EXAMPLE - NextEra Energy] (herein after referred to as “Project Owner”) is the Project

Owner of [EXAMPLE - Blythe Solar Power Project Phase 2, Units 3 and 4] (“Project”), Docket Log [09-AFC-06C], which was approved by the California Energy Commission (“Energy Commission”) in January 2014. Review by the Energy Commission is evidenced by the Presiding Member’s Proposed Decision (“Proposed Decision”), which includes draft conditions of certification providing the requirements for project construction, operation and closure. Approval of the Project by the Energy Commission is evidenced by the Presiding Member’s Final Decision (“Final Decision”), which includes conditions of certification providing the requirements for project construction, operation and closure. The DCBO and Project Owner must construct the Project according to the requirements in the Final Decision.

B. Project Owner is a party to On-Call Delegate Chief Building Official Services.

C. The Energy Commission has authority to approve the Project pursuant to Public Resources Code Section 25500 et. seq. Under the California Building Code Standards (CBCS), while monitoring project construction and operation, staff of the Energy Commission acts as, and has the authority of, the Chief Building Official.

D. ____________________________ was selected by the Energy Commission as its Delegated Chief Building Official (“DCBO”) in accordance with the California Building Standards Code (California Code of Regulations, Title 24, Parts 1 through 12) to verify compliance with all applicable conditions of certification in the Final Decision, and facilitate compliance with the design, plan review, construction inspection and monitoring for the Project facility’s compliance plan in accordance with all appropriate building codes; laws, ordinances, regulations and standards (“LORS”); and Energy Commission requirements. _____________________ (hereinafter referred to as “DBCO”) is a party to On-Call Delegate Chief Building Official Services.

2. Express Third-Party Beneficiary

A. To ensure proper enforcement of the Energy Commission’s Final Decision and the success of the Project, in the event that the Energy Commission approves the Project, the Energy Commission is the express and intended creditor third-party beneficiary in On-Call Delegate Chief Building Official Services between Project Owner and DCBO.

B. The Energy Commission does not guarantee the approval of the Project by being named the creditor third-party beneficiary in On-Call Delegate Chief Building Official Services.

C. DCBO entered into On-Call Delegate Chief Building Official Services for the express benefit of the Energy Commission as the creditor third-party beneficiary. It is recognized that DCBO’s performance under On-Call Delegate Chief Building Official Services is tied to and related to Project Owner’s obligations under the Energy Commission’s conditions of certification in its Final Decision. DCBO acknowledges that its performance underJune 2025 Page 8 of 47

Attachment 11, Sample Agreement

On-Call Delegate Chief Building Official Services is the benefit contemplated by Project Owner and is a motivating cause of making On-Call Delegate Chief Building Official Services. Naming the Energy Commission as the creditor third-party beneficiary is a material condition of On-Call Delegate Chief Building Official Services.

D. In the event the Energy Commission approves the Project, the Energy Commission must ensure that the Project is designed, constructed, and operated in conformity with the Final Decision; the California Building Standards Code (CBSC); the local building codes adopted by the [County] of [EXAMPLE - Riverside]; and LORS. If the Project Owner anticipates site mobilization immediately following issuance of the Final Decision, the Project Owner may be permitted to file compliance submittals prior to the issuance of the Final Decision. Compliance verifications may be submitted in advance of the Final Decision, but the Project Owner submits the compliance verifications at its own risk.

Additionally, any work undertaken by DCBO prior to the issuance of the Final Decision shall be performed at the sole risk of DCBO. Any compliance approvals by Energy Commission staff prior to the issuance of the Final Decision are subject to change, and staff compliance approvals provided before the issuance of the Final Decision does not imply that the Energy Commission will approve the Project for actual construction and operation.

E. DCBO, as the delegate of the Energy Commission, shall be compensated by Project Owner to certify Project Owner’s obligations for compliance with the conditions of certification in the Final Decision. ___________________ shall charge Project Owner, and Project Owner shall compensate _______________________, Option A: for work satisfactorily completed in advance, in arrears, or from a credit account established with the DCBO Firm by the Project Owner OR Option B: for services based on the rates in the attached rate schedule (Exhibit B-2) negotiated between the Energy Commission and DCBO.

3. Duties of Project Owner and DCBO

A. The Final Decision will require that [Example - NextEra Energy], or current Project Owner, submit engineering plans, calculations, specifications, and other project-related facility design, construction, and operational compliance information (as required by sections 105.3 and 106.1 in Appendix Chapter 1 of the California Building Standards Code) to DCBO prior to and during construction of the Project, for review and oversight by the Energy Commission pursuant to the terms and conditions of its Final Decision as specified in California Public Resources Code section 25500 et seq.

B. The design review, construction inspections, and necessary approvals prior to and during construction will be provided by DCBO, a fully qualified chief building official contractor experienced in providing industrial building official services, acting as the Energy Commission’s delegate to ensure independent review of the Project.

C. Although DCBO will function as the Energy Commission’s delegate, the Energy Commission has the final authority and responsibility to ensure that the Project is built in accordance with the applicable engineering LORS, the Decision, and subsequent amendments.

D. DCBO shall carry out these duties with all the rights and immunities afforded the Chief Building Official by applicable LORS and building codes.

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E. DCBO is authorized to take any action allowed by the California Code of Regulations and the CBSC to ensure that the Energy Commission’s interests are properly addressed and protected. If DCBO has issued, or is considering issuing, a stop-work order to ensure compliance, to ensure that the Energy Commission’s interests are protected, or for any other reason, DCBO shall seek the cooperation and assistance of the Energy Commission’s Compliance Project Manager (“CPM”).

F. Project Owner shall maintain its books, records, documents, and other evidence sufficient to properly reflect all payments made to DCBO under On-Call Delegate Chief Building Official Services for a period of three (3) years after final payment to DCBO.

Project Owner shall permit the Energy Commission, another state agency, and/or a public accounting firm designated by the Energy Commission to audit Project Owner’s accounting records associated with On-Call Delegate Chief Building Official Services at all reasonable times, with prior notice by the Energy Commission.

G. Project Owner shall provide the Energy Commission with two (2) copies of the executed On-Call Delegate Chief Building Official Services.

4. Enforcement

A. On-Call Delegate Chief Building Official Services is made expressly for the benefit of the Energy Commission as the creditor third-party beneficiary and may be enforced by the Energy Commission at any time.

B. The Energy Commission has a right of enforcement and may elect to take enforcement action against Project Owner or DCBO, and may join them in one action, for failure to perform under On-Call Delegate Chief Building Official Services.

C. Nothing in On-Call Delegate Chief Building Official Services will limit or impede the Energy Commission’s legal authority to enforce the terms and conditions of its Decision as specified in Public Resources Code sections 25534 and 25900. The Energy Commission may amend or revoke a project certification and may impose a civil penalty for any significant failure to comply with the terms or conditions of the Decision.

5. Satisfactory Performance

Project Owner and DCBO agree that DBCO’s work under On-Call Delegate Chief Building Official Services must be performed to the satisfaction of the Energy Commission and that the Energy Commission shall decide all questions as to the adequacy of DCBO’s performance. However, lack of objection by the Energy Commission shall not constitute a waiver or estoppel of the Energy Commission’s rights and remedies. Failure of DCBO to comply with the roles, responsibilities, and tasks expected of an DCBO service provider may be a basis for its termination as the delegate of the Energy Commission.

6. Amendment, Assignment and Termination

Project Owner and DCBO agree that On-Call Delegate Chief Building Official Services confers rights and remedies upon the Energy Commission as the creditor third-party beneficiary. No person, other than Project Owner, DCBO, and the Energy Commission, has any rights or remedies under On-Call Delegate Chief Building Official Services. Project Owner and DCBO further agree:

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A. No Right to Amend without Consent of the Energy Commission

Neither Project Owner nor DCBO shall amend of On-Call Delegate Chief Building Official Services expressly naming the Energy Commission as the creditor third-party beneficiary to the Agreement, without the prior written consent of the Energy Commission.

B. No Right to Assign and Delegate without Consent of the Energy Commission

Neither Project Owner nor DCBO shall assign or delegate the duties and responsibilities of Project Owner or DCBO, without the prior written consent of the Energy Commission.

C. No Right to Terminate without Consent of the Energy Commission

Neither Project Owner nor DCBO shall terminate On-Call Delegate Chief Building Official Services or terminate payments to DCBO under On-Call Delegate Chief Building Official Services without the prior written consent of the Energy Commission.

7. No Liability Project Owner and DCBO agree that the Energy Commission, as intended creditor third-party beneficiary, is not liable for any events or occurrences that result in harm to persons or property during the course of construction or operation of the Project. The Energy Commission assumes no liability for errors and omissions on the design elements of the Project. If Project Owner or DCBO fail to perform their obligations under On-Call Delegate Chief Building Official Services, the Energy Commission shall in no way have any liability to any parties that may be harmed as a result of failure of Project Owner or DCBO to perform their obligations. Further, the Energy Commission is in no way liable for payment to DCBO for its services in the event Project Owner fails to make timely payment.

8. Flow-Down Rights in Subcontracts

A. DCBO may retain the services of one or more independent qualified subcontractor(s) to supplement its employees in the environmental monitoring, design review, plan check, and construction inspection of the project. The subcontractor(s) shall answer directly to, and be responsible to, DCBO. DCBO shall retain responsibility for the construction inspections required by Appendix Chapter 1, section 109 of the CBSC and for monitoring special inspections required by Chapter 17, section 1704 and 1707 of the CBSC.

B. It is expressly recognized that DCBO’s performance under On-Call Delegate Chief Building Official Services is tied to and related to the performance of its subcontractor(s).

The Energy Commission shall be expressly recognized and acknowledged as an intended creditor third-party beneficiary in all contracts between DCBO and its subcontractor(s). DCBO shall reserve for the Energy Commission, as an intended creditor third-party beneficiary, the right to proceed directly against its subcontractor(s) in the event subcontractor(s) breaches or fails to perform in whole or in part as required in its contract(s) with DCBO. The Energy Commission’s right to proceed against subcontractor(s) shall be made independent of DCBO's rights.

C. DCBO shall provide the Energy Commission two (2) copies of all executed contracts it enters into with subcontractor(s) in order to substantiate compliance with the requirements of On-Call Delegate Chief Building Official Services.

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EXHIBIT D

Special Terms and Conditions

1. AGREEMENT MANAGEMENT

A. Contractor may change Project Manager but the Energy Commission reserves the right to approve any substitution of the Project Manager.

B. The Energy Commission may change the Energy Commission Agreement

Manager (CAM) at any time and will send a written notice to the Contractor signed by the Energy Commission Agreement Officer (CAO).

C. Energy Commission staff will be permitted to work side by side with Contractor's staff to the extent and under conditions that may be directed by the CAM. In this connection, Energy Commission staff will be given access to all data, working papers, etc., which Contractor may seek to utilize.

D. Contractor will not be permitted to utilize Energy Commission personnel for the performance of services, which are the responsibility of Contractor unless the CAM previously agrees to such utilization in writing and an appropriate adjustment in price is made. No charge will be made to Contractor for the services of Energy Commission employees while performing, coordinating or monitoring functions.

E. If the Schedule of Deliverables and Due Dates needs to be revised after the execution of the Agreement, the revised dates cannot extend beyond the term end date of the Agreement. Contractor shall work with the CAM to agree on the new deliverable due dates. The CAM shall issue the revised Schedule of Deliverables and Due Dates to the Contractor and the CAO. Although the dates can be revised, the deliverables cannot be changed through this process.

2. STANDARD OF PERFORMANCE

Contractor shall be responsible in the performance of Contractor's/subcontractor's work under this Agreement for exercising the degree of skill and care required by customarily accepted good professional practices and procedures. Any costs for failure to meet these standards, or otherwise defective services, which require reperformance, as directed by CAM or its designee, shall be borne in total by the Contractor/subcontractor and not the Energy Commission. In the event the Contractor/subcontractor fails to perform in accordance with the above standard the following will apply. Nothing contained in this section is intended to limit any of the rights or remedies which the Energy Commission may have under law.

A. Contractor/subcontractor will reperform, at its own expense, any task, which was not performed to the reasonable satisfaction of the CAM. Any work reperformed pursuant to this paragraph shall be completed within the time limitations originally set forth for the specific task involved. Contractor/subcontractor shall work any overtime required to meet the deadline for the task at no additional cost to the Energy Commission.

B. The Energy Commission shall provide a new schedule for the reperformance of any task pursuant to this paragraph in the event that reperformance of a task within the original time limitations is not feasible.

C. If the Energy Commission directs the Contractor not to reperform a task; the CAM and Contractor shall negotiate a reasonable settlement for satisfactory

June 2025 Page 12 of 47 Attachment 11, Sample Agreement services rendered. No previous payment shall be considered a waiver of the Energy Commission's right to reimbursement.

3. SUBCONTRACTS

Contractor shall enter into subcontracts with the following firms and/or individuals and shall manage the performance of the subcontractors.

OR

No Subcontractors are named for this Agreement. If subcontractors are needed to perform any portion of this Agreement, the following criteria must be met and Contractor shall manage the performance of the subcontractors.

AND

A. Nothing contained in this Agreement or otherwise, shall create any contractual relationship between the State and any subcontractors, and no subcontractors and no subcontract shall relieve Contractor of its responsibilities and obligations hereunder. Contractor agrees to be as fully responsible to the State for the acts and omissions of its subcontractors and/or persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by Contractor. Contractor’s obligation to pay its subcontractors is an independent obligation from the State’s obligation to make payments to Contractor.

As a result, the State shall have no obligation to pay or to enforce the payment of any monies to any subcontractor.

B. Contractor shall be responsible for establishing and maintaining contractual agreements with and the reimbursement of each of the subcontractors for work performed in accordance with the terms of this Agreement. Contractor shall be responsible for scheduling and assigning subcontractors to specific tasks in the manner described in this Agreement; coordinating subcontractor accessibility to Energy Commission staff, and submitting completed products to the CAM.

C. Contractor shall not allow any subcontractor to assign any portion of a subcontract related to this Agreement to a third party or subsequent tier subcontractor (lower tier subcontractor) without first obtaining the written consent of the CAM and following the procedures below “Process for New Subcontractors”.

D. All subcontracts entered into pursuant to this Agreement shall be subject to examination and audit by the Bureau of State Audits for a period of three (3) years after final payment under the Agreement.

E. Upon request by the CAM or CAO, Contractor shall provide copies of all contractual agreements with subcontractors and lower tier subcontractors.

F. Contractors who are subcontracting with University of California or California State University may use the terms and conditions negotiated by the Department of General Services with University of California/California State University for their subcontracts. Contractors who are subcontracting with the Department of Energy’s (DOE) Lawrence Livermore National Laboratory, Lawrence Berkeley National Laboratory, and the Sandia National Laboratories may use the terms

June 2025 Page 13 of 47 Attachment 11, Sample Agreement and conditions negotiated with the Department of General Services. Contractors who are subcontracting with all other DOE laboratories may use the terms and conditions negotiated by the Energy Commission with DOE for their subcontracts.

G. Upon the termination of any subcontract or lower tier subcontract, Contractor shall notify the CAM and CAO immediately in writing.

H. In addition to any other flow-down provisions required by this Agreement, all subcontracts shall contain the following: 1) the audit rights and non-discrimination provision stated in the General Terms and Conditions (Exhibit C) and in D above;

and 2) further assignments shall not be made to any lower tier subcontractor without written consent of the CAM and 3) the confidentiality provisions in the Reports paragraph of this Agreement.

I. Process for New Subcontractors The Energy Commission reserves the right to replace a subcontractor, request additional subcontractors, and approve additional subcontractors requested by Contractor. A replaced subcontractor and an added subcontractor are both defined as a “new” subcontractor. Such changes shall be subject to the following conditions:

1) The new subcontractor shall be selected using either: (a) A competitive bid process with written evaluation criteria by obtaining three or more bids and advertising the work to a suitable pool of subcontractors including without limitation: California Contracts Register; Contractor’s mailing lists; mass media; professional papers or journals; posting on websites; and telephone or email solicitations; or (b) Non-competitive bid (sole source) process with a specific subcontractor.

2) Contractor may also need to comply with Disabled Veteran Business Enterprise requirements for the proposed subcontractor.

3) When a new subcontractor is proposed the CAM shall complete and submit to the CAO a “Subcontractor Addition” form. The proposed subcontract can be executed only after the CAO approves the Subcontractor Addition form.

This form identifies the new subcontractor and bidding method used (competitive or non-competitive), the tasks the new subcontractor will be performing and the following shall be attached: resumes and completed Energy Commission budget forms.

4) Labor Rates & Classifications: Personnel of new subcontractors must fit within a classification and be equal to or less than a rate already listed in the Agreement budget and the rate cannot exceed the subcontractor’s actual rate. Adding classifications and/or higher rates for the new subcontractor other than ones currently listed in the Agreement requires a formal amendment.

5) Other Direct Operating Expenses: The new subcontractor may charge other direct operating expenses (such as material or equipment) as already identified in the Agreement budget. No new types of operating expenses are allowed to be charged by the new subcontractor. Adding new types of operating expenses for the new subcontractor requires a formal amendment.

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4. DISABLED VETERAN BUSINESS ENTERPRISE (DVBE) REQUIREMENTS

A. Certification Report

If Contractor made a commitment to achieve DVBE participation for this Agreement with DVBE subcontractor(s), then upon completion of the work or upon the Agreement end date, whichever is earlier, Contractor shall certify in a DVBE Subcontracting Report to the CAO that DVBE subcontractor participation under this Agreement is in compliance with the goals specified at the time of award of the Agreement or with any subsequent amendment. The report shall include: (1) the total amount the Contractor received under this Agreement; (2) the name and address of the DVBE(s) that participated in the performance of the Agreement and the Agreement number; (3) the amount and percentage of work the Contractor committed to provide to one or more DVBEs under the requirements of the Agreement and the amount each DVBE received from the Contractor; (4) that all payments under the Agreement have been made to the DVBE(s); and (5) the actual percentage of DVBE participation that was achieved. Upon request by the Commission, the Contractor shall provide proof of payment for the work. A person or entity that knowingly provides false information shall be subject to a civil penalty for each violation. Military & Veterans Code section 999.5(d).

B. Withholding

1) $10,000 Withholding

If Contractor made a commitment to achieve DVBE participation for this Agreement with DVBE subcontractor(s), then the Commission shall withhold $10,000 (or full payment if less than $10,000) from Contractor’s final payment, pending receipt of the certification report in A above. This withholding is in addition to retention, if any, in Exhibit B, para 4.

2) Failure to comply with Certification Report In addition to any other rights and remedies available to the Commission, if Contractor fails to comply with the certification report, Contractor shall, after notice by the Commission, be allowed to cure the defect.

Notwithstanding any other law, if, after at least 15 calendar days but not more than 30 calendar days from the date of notice, Contractor refuses to comply with the certification report requirements, the Commission shall permanently deduct $10,000 from the final payment (or the full payment if less than $10,000). Military & Veterans Code section 999.7(a) and (c).

For purposes of this paragraph, time is of the essence; Contractor is deemed to have refused to comply with the certification report requirements, if the Commission does not receive the report within 30 calendar days from the date of the notice.

C. Substitution of DVBE Contractor shall use each DVBE identified in its proposal or listed in this Agreement. Contractor understands and agrees that if DVBE(s) were identified in its proposal or listed in this Agreement, award of this Agreement is based in part on its commitment to use the DVBE subcontractor(s). If Contractor believes an identified DVBE must be replaced or substituted, Contractor shall request a substitution in writing to CAM and CAO, including the reason for the DVBE substitution. Contractor shall complete revised DVBE certification forms

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(provided by the CAO) identifying the proposed new DVBE. A DVBE subcontractor may only be replaced by another DVBE subcontractor and must be approved by the Commission and the Department of General Services (DGS). Any work by the proposed new subcontractor can be performed only after written approval by the Commission and DGS. The substitution shall maintain, at minimum, the level of DVBE participation stated in the original Proposal. Military and Veterans Code section 999.5(g); 2 California Code of Regulations 1896.73.

D. Amendment This Agreement shall be amended if a DVBE must be substituted and DGS has given approval. This Agreement shall be amended if there are changes to the scope of work that impact the DVBE subcontractor(s) identified in the proposal or listed in this Agreement. If there are modifications for additional work, the same percentage of DVBE participation is required as in the original Agreement. The Commission shall document the modification and DVBE participation. 2 California Code of Regulations 1896.76.

E. Compliance with Law; Grounds for Termination; Damages; Penalties Contractor shall comply with all applicable statutory and regulatory DVBE requirements, which include in part, adherence to the DVBE participation level identified in the Proposal or listed in this Agreement, and seeking substitution of a DVBE if necessary. Failure of Contractor to comply with or violation of statutory, regulatory and Agreement requirements may be cause for: termination of this Agreement; recovery of damages under rights and remedies due to the State; loss of certification; bidding suspension; sanctions; imprisonment;

penalties; and civil actions. Military and Veterans Code sections 999.5, 999.9 and Public Contract Code section 10115.10.

F. Commercially Useful Function During the course of the Agreement, Contractor shall ensure that all DVBEs performing work under the Agreement maintain a commercially useful function related to the work scope. Military and Veterans Code section 999; 2 California Code of Regulations section 1896.71.

G. Records Retention Contractor shall retain all records related to DVBE participation for this Agreement for a minimum of six years following final payment under the Agreement. Military and Veterans Code section 999.55.

A. DVBE Name for this Agreement: Insert DVBE name

5. PROCESS FOR OFFERING WORK

If the Energy Commission or Contractor requires the replacement of a person listed in the Agreement to provide a particular service, or requires that a new person is added, the Contractor shall:

A. First offer the work to qualified persons already listed in this Agreement (either an employee of Contractor or a subcontractor).

B. If there is no available qualified person listed in this Agreement who can perform the work, then Contractor shall provide documentation from all the persons who were offered and declined the work to the CAM. Then, Contractor may request to add a new person to the Agreement in accordance with Exhibit B, Rates & Classifications:

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Changes in Contractor Personnel or Subcontractor Personnel. A person added to the Agreement is thereafter treated as a person listed in this Agreement and can be offered future work without first offering it to originally listed people.

C. If the person to be replaced or substituted was identified in the Agreement as a Disabled Veteran Business Enterprise (DVBE) firm, refer to the DVBE provision above for changes to DVBEs.

D. If the person added is a new subcontractor, Contractor shall use the process outlined in the Subcontracts provision, Process for New Subcontractors.

6. PERFORMANCE EVALUATION

The Energy Commission shall, upon completion of this Agreement, prepare a performance evaluation of the Contractor. Upon filing an unsatisfactory evaluation with the Department of General Services, Office of Legal Services (DGS) the Energy Commission shall notify and send a copy of the evaluation to the Contractor within 15 days. The Contractor shall have 30 days to prepare and send statements to the Energy Commission and the DGS defending his or her performance. The Contractor's statement shall be filed with the evaluation in the Energy Commission's Contract file and with DGS for a period of 36 months and shall not be a public record.

7. REPORTS

A. Progress and Final Reports: Contractor shall prepare progress reports summarizing all activities conducted by Contractor to date on a schedule as provided in Exhibit A. At the conclusion of this Agreement, Contractor shall prepare a comprehensive Final Report, on a schedule as provided in Exhibit A.

B. Title: Contractor's name shall only appear on the cover and title page of reports as follows:

California Energy Commission Project Title Contractor Number By (Contractor)

C. Ownership: Each report shall become the property of the Energy Commission.

D. Non-disclosure: Contractor will not disclose data or disseminate the contents of the final or any progress report without written permission of the CAM, except as provided in F, below. Permission to disclose information on one occasion or at public hearings held by the Energy Commission relating to the same shall not authorize Contractor to further disclose and disseminate the information on any other occasion. Contractor will not comment publicly to the press or any other media regarding its report, or the Energy Commission's actions on the same, except to Energy Commission staff, Contractor's own personnel involved in the performance of this Agreement, or at a public hearing, or in response to questions from a legislative committee. Notwithstanding the foregoing, in the event any public statement is made by the Energy Commission or any other party, based on information received from the Energy Commission as to the role of Contractor or the content of any preliminary or final report, Contractor may, if it believes the statement to be incorrect, state publicly what it believes is correct.

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E. Confidentiality: No record which has been designated as confidential, or is the subject of a pending application of confidentiality, shall be disclosed by the Contractor, Contractor's employees or any tier of subcontractors, except as provided in 20 California Code of Regulations, Sections 2506 and 2507, unless disclosure is ordered by a court of competent jurisdiction (20 California Code of Regulations, Sections 2501, et seq.). At the election of the CAM, Contractor, Contractor's employees and any subcontractor shall execute a "Confidentiality Agreement," supplied by the CAM or CAO. Each subcontract shall contain provisions similar to the foregoing related to the confidentiality and nondisclosure of data.

F. Disclosure: Ninety days after any document submitted by the contractor is deemed by the CAM to be a part of the public records of the State, Contractor may, if it wishes to do so at its own expense, publish or utilize a report or written document but shall include the following legend:

"LEGAL NOTICE"

"This report was prepared as a result of work sponsored by the California Energy Commission. It does not necessarily represent the views of the Energy Commission, its employees, or the State of California. The Energy Commission, the State of California, its employees, contractors, and subcontractors make no warranty, express or implied, and assume no legal liability for the information in this report; nor does any party represent that the use of this information will not infringe upon privately owned rights."

8. CONFIDENTIAL CONTRACTOR INFORMATION

A. Identification of Confidential Contractor Information

For the purposes of this Section, “Confidential Contractor Information” refers to information the Contractor has satisfactorily identified as confidential and the Energy Commission has agreed to designate as confidential under Title 20 California Code of Regulations Section 2505. If applicable, all Contractor information considered confidential at the commencement of this Agreement is designated in an Attachment to this Exhibit.

B. Confidential Deliverables: Labeling and Submitting Confidential Information Prior to the commencement of this Agreement, if applicable, the parties have identified in an Attachment to this Exhibit, specific Confidential Contractor Information to be provided as a deliverable. All such confidential deliverables shall be marked, by the Contractor, as “Confidential” on each page of the document containing the Confidential Contractor Information and presented in a sealed package to the Commission Agreement Officer. (Non-confidential deliverables are submitted to the Accounting Office.) All Confidential Information will be contained in the “confidential” volume: no Confidential Information will be in the “public” volume.

C. Submittal of Unanticipated Confidential Contractor Information as a Deliverable

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The Contractor and the Energy Commission agree that during this Agreement, it is possible that the Contractor may obtain or develop additional data or information not originally identified as a confidential deliverable. In this case, Contractor shall follow the procedures for a request for designation of Confidential Information specified in 20 CCR 2505. The Energy Commission’s Executive Director makes the determination of confidentiality. Such subsequent determinations may be added to the list of confidential deliverables in an Attachment to this Exhibit.

D. Disclosure of Confidential Contractor Information Disclosure of Confidential Information by the Energy Commission may only be made pursuant to 20 CCR 2506 and 2507. All confidential data, records or deliverables that are legally disclosed by the Contractor or any other entity become public records and are no longer subject to the above confidentiality designation.

9. RECEIPT OF CONFIDENTIAL INFORMATION AND PERSONAL INFORMATION

A. Application: These special terms and conditions set forth information privacy and security requirements Contractor must follow if Confidential Information or Personal Information as defined herein is disclosed to Contractor, or is collected, created, maintained, stored, transmitted, or otherwise used by Contractor in the performance of this Agreement. Contractor must ensure that all individuals and entities participating in any way with this Agreement, including but not limited to its officers, employees, agents, subcontractors, subawardees, vendors, and other project partners, comply with this Section. Contractor must incorporate this Section into each subcontract, subaward, vendor agreement, and all other project partner agreements that will be provided access to Confidential Information or Personal Information before the individual or entity has access to any such information.

B. Definitions:

1) “Confidential Information” means information the Energy Commission has designated as confidential pursuant to Title 20 of the California Code of Regulations, Section 2505 et seq., information the Energy Commission has otherwise deemed or stated to be confidential, and other information exempt from Disclosure under the Public Records Act or any other applicable state or federal laws. Contractor may obtain confidential information from the Energy Commission or third parties on behalf of the Energy Commission for the performance of this Agreement.

2) “Disclose” or Disclosure” refers to the release, transfer, provision of, access to, or divulging in any manner of information outside the entity holding the information.

3) “Personal Information” means information that meets the definition of “personal information” in California Civil Code Section 1798.3(a) or one of the data elements set forth in California Civil Code Section 1798.29(g)(1) or (g)(2). Personal information is a type of confidential information and is therefore subject to all requirements for Confidential Information provided in this Agreement and applicable law.

However, there are additional requirements specific to personal information.

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4) “Security Incident” means the theft, loss, damage, unauthorized destruction, unauthorized modification, or any intentional, unintentional, negligent, inappropriate or unauthorized release of any Confidential Information, data classified as confidential, sensitive, or personal, including critical infrastructure information.

C. Labeling. Confidential Information and Personal Information shared by the Energy Commission will be provided as follows:

1) List Describing Confidential Information and Personal Information. A description of Confidential Information and Personal Information that the Energy Commission anticipates it will provide to Contractor is attached as an appendix to this Exhibit. If the Energy Commission needs to add items after execution of this Agreement, the Energy Commission will update the list and provide a copy to Contractor; and

2) Identification of Confidential Information. Each individual item of Confidential Information and Personal Information will be visibly identifiable, regardless of file type, before the Energy Commission provides access to Contractor. The Confidential Information and Personal Information could be identified as a separate folder, workbook, document, field, electronic tag, etc.

D. Use and Disclosure Restrictions. Notwithstanding any other provision in this Agreement, Contractor and all individuals and entities participating in any way with this Agreement must:

1) Protect all Confidential Information and Personal Information from unauthorized Disclosure. This includes but is not limited to implementing administrative, physical, and technical safeguards that reasonably and appropriately protect the privacy, confidentiality, security, integrity, and availability of Confidential Information, including electronic or computerized Confidential Information.

2) Promptly transmit to the Energy Commission’s Commission Agreement Manager all requests for Disclosure of any Confidential Information or Personal Information unless prohibited from doing so by applicable state or federal law.

3) Not use any Confidential Information or Personal Information for any purpose other than performing Contractor’s work under this Agreement.

4) Not Disclose any Confidential Information or Personal Information to anyone other than the Energy Commission without prior written authorization from the Energy Commission’s Commission Agreement Manager, except as otherwise specifically permitted by this Agreement, as provided in 20 California Code of Regulations, Sections 2506 and 2507, or when disclosure is required by State or Federal law.

E. Information Security Program Plan.

1) Attestation and Review. Before Contractor is provided access to

Confidential Information or Personal Information, Contractor must attest, using a form provided by the Energy Commission, it has in place an Information Security Program Plan (ISPP) that meets or exceeds the minimum requirements as stated in the California State Administrative Manual Chapter 5300, Information Security

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(https://www.dgs.ca.gov/Resources/SAM), and any other applicable law.

Further, the Energy Commission may, at its discretion, also request a copy of Contractor’s ISPP for review. After the Energy Commission’s review, the Energy Commission may choose whether to direct Contractor to perform work that involves Confidential Information or Personal Information.

2) Content. Contractor’s ISPP can be represented in a single document or a compilation of documents.

3) Implementation. Contractor must implement and maintain appropriate procedural safeguards to secure Confidential Information and Personal Information from Security Incidents and unauthorized use for the term of this Agreement. Contractor is responsible for the security and confidentiality of the Confidential Information and Personal Information under its control and the control of its employees, agents, subcontractors, and other project partners and follow the requirements of its ISPP.

F. Encryption. All Confidential information and Personal Information accessed by Contractor must be encrypted in transit and at rest.

G. Computer Security Updates. Contractor must use computer, software and network systems that are updated with the latest security patches, upgrades, and virus software at all times Contractor has access to Confidential Information or Personal Information.

H. Nondisclosure Agreements.

1) Need to Access Confidential Information or Personal Information. Contractor agrees to release Confidential Information and Personal Information only to the individuals who need to access such information to complete work under the Agreement. Contractor must ensure individuals properly handle and secure Confidential Information and Personal Information from unauthorized use or Disclosure, including signed nondisclosure agreements and security awareness training as described in this Section and Section I, Security Awareness Training, below.

2) Maintain Current List of Individual Employees. Contractor must maintain a current list, and keep past versions of it, of all individuals who have access to Confidential Information or Personal Information and the dates each individual has access. Contractor must remove individuals who are no longer employed or no longer have access to Confidential Information or Personal Information and add individuals who are subsequently granted access.

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3) Nondisclosure Agreement. Contractor must ensure all individuals who will have access to Confidential Information or Personal Information are provided a copy of, and comply with, these special terms and conditions.