Firm Fixed Price Agreement
Number 108252
Between
The Regents of the University of California
And
SpaceDev, Incorporated
This Firm Fixed Price Agreement is executed this 1st day of November 1999 by and
between The Regents of the University of California, a public corporation,
(hereafter referred to as "University"), and SpaceDev, Incorporated, a State of
California corporation (hereafter referred to as "SpaceDev').
WHEREAS, SpaceDev can provide the below defined Statement of Work and University
is desirous of said Statement of Work; and,
WHEREAS it is has been approved by the Federal Sponsoring Agency, National
Aeronautics and Space Administration (NASA), and deemed in the best interest of
the University;
NOW, THEREFORE, the parties, in consideration of the following mutual covenants
and undertakings and other good and valuable consideration, hereby agree as
follows:
BACKGROUND
----------
The Cosmic Hot Interstellar Plasma Spectrometer (CHIPS) is a NASA sponsored
University-class Explorer space flight mission. CHIPS will map the sky in 50
degree x 26 degree "resels" in the scientifically critical but virtually
unexplored extreme ultraviolet (EUV) band between 90 and 260 angstrom. The CHIPS
spectrograph will be carried aboard a dedicated mini-satellite (CHIPSat) to be
developed by SpaceDev, Inc. and launched as a secondary payload aboard a
Delta-II booster with a Global Positioning Satellite primary payload. Although
this configuration differs from the flight implementation envisioned in the
original proposal, the scientific goals are unchanged and the data products are
improved.
The University of California Berkeley Space Sciences Laboratory has received
NASA Research Grant Number NAG5-5213 to perform the CHIPS mission. The
University's Principal Investigator for CHIPS is Xx. Xxxx X. Xxxxxxx.
The University's largest subcontractor (First Tier) under this grant is
SpaceDev, Incorporated (SpaceDev). SpaceDev shall be responsible for
manufacturing and supplying the spacecraft bus for the CHIPS scientific payload.
During the concept study period, a NASA review committee reviewed and approved
SpaceDev as the spacecraft provider to CHIPS.
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ARTICLE 1. STATEMENT OF WORK
----------------------------
This Statement Of Work (SOW) outlines SpaceDev's efforts throughout the Phase
B/C/D/E periods of the CHIPS mission. Under this agreement, and as defined in
this SOW, SpaceDev is required to provide the specified spacecraft bus along
with associated services and defined deliverables to the University in support
of NASA Research Grant NAG5-5213 entitled: COSMIC HOT INTERSTELLAR PLASMA
SPECTROMETER (CHIPS).
1.1 SCOPE OF WORK
The scope of the work encompasses all effort required by SpaceDev to design,
manufacture, integrate, test, and deliver and integrate the CHIPS spacecraft
with the Delta-II launch vehicle. Additionally, SpaceDev shall also support all
meetings and reviews for each phase.
1.2 DELIVERABLES
1.2.1 PHASE B, C, AND D
SpaceDev shall develop, produce, deliver, and maintain the following items for
the Phase B, C, and D portions of the program:
SDRL DESCRIPTION SOW QTY DUE DATE
NO. REF.
--------------- -------------------------------------- ----------- ---------- -----------------------
001 Confirmation Review Inputs 1 On or before
Confirmation Review
002 Spacecraft Simulator H/W 1 August, 2000
003 Design Verification Review 1.5.1 1 17, September, 2000
Inputs
004 Spacecraft Bus which X/X 0 0, Xxxxxxxx, 0000
satisfies verification matrix
005 Spacecraft Bus Acceptance 1.5.4 1 1, February, 2000
Data Package (ADP)
006 Monthly Technical 1.4.4 & 1 As agreed between
Meetings 1.5.5 University and
SpaceDev
007 Semi-Annual Progress 1 Twice yearly, TBD
Report
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1.3 TASKS
1.3.1 MISSION DESIGN
SpaceDev shall support University by performing analyses relating to the launch
vehicle, its orbit, and the preliminary mission timeline. SpaceDev shall develop
and support the communications network to be utilized and the interface
requirements, along with identifying potential impacts or conflicts with other
users of the selected communications resources. SpaceDev shall support
University in developing a traceability matrix showing how the proposed mission
design complies with the stated objectives, requirements, and the constraints of
the proposed investigation.
1.3.2 SPACECRAFT
SpaceDev shall describe the spacecraft design approach particularly as it
relates to new versus existing hardware and redundant versus single-string
hardware. SpaceDev shall fully identify the spacecraft systems and describe the
spacecraft characteristics and requirements. A preliminary description of the
flight system design with a block diagram showing the flight element subsystems
and their interfaces shall be included along with a description of the flight
software and a summary of the estimated performance of the flight system. The
flight heritage or rationale used to select the flight system and its
subsystems, major assemblies, and interfaces shall be described.
Subsystem characteristics and requirements shall be described. These include
mass, volume, power, pointing knowledge, pointing accuracy, new developments
needed, space qualification plan, and logistics support. Design features
incorporated to effect cost savings shall be identified along with the benefits
assumptions, and risks. A summary of the resource elements of the flight system
concept, including key margins, shall be provided.
The rationale for, and derivation of, margin allocations including mass, power,
link, etc., shall be provided. Design margins that are driving costs shall be
identified.
1.3.3 PAYLOAD INTEGRATION
SpaceDev shall support University in the development of the interface
requirements between the spacecraft bus and the instrument. Defined interfaces
shall include volumetric envelope, fields of view, weight, power requirements,
thermal requirements, command and telemetry requirements, sensitivity to, or
generation of, contamination (e.g., electromagnetic interference, gaseous
effluents, etc.), and data processing requirements, as well as the planned
process for physically and analytically integrating them with the flight system.
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1.3.4 MANUFACTURING, INTEGRATION, AND TEST
SpaceDev shall describe the manufacturing strategy that will be used to produce
and test the hardware/software of the spacecraft bus. This strategy shall
include a description of the main processes/procedures planned in the
fabrication of flight hardware, software, production personnel resources,
incorporation of new technology/materials, and the preliminary test and
verification program. SpaceDev shall describe the approach for the transition
from design to manufacturing and specify data products which will be used to
assure produce ability and adequate tooling.
SpaceDev shall describe the approach, techniques, and facilities planned for the
integration, test and verification, and launch operations as it relates to the
spacecraft bus. SpaceDev shall provide a preliminary schedule for the
manufacturing, integration, and test activities for the spacecraft bus through
delivery to University. SpaceDev shall provide a list and description of the
planned end items, including engineering and qualification hardware and relevant
documentation.
1.4 PHASE B
1.4.1 SPACECRAFT BUS CONFIRMATION REVIEW
SpaceDev shall support the Confirmation Review by providing date that: (i)
Demonstrates that the spacecraft bus preliminary design meets all mission and
system requirements with acceptable risk; (ii) Exhibits that acceptable
spacecraft bus design options have been selected, subsystem-to-subsystem
interfaces are defined in detail, and verification methodologies associated with
each operational, functional, interface, and performance requirement have been
satisfactorily described; (iii) Provides the engineering basis for design
approaches; (iv) Demonstrates that mission requirements are well understood and
the mission design is adequate to meet mission requirements; (v) Management and
system engineering processes are sufficient to develop and operate the mission,
and (vi) Schedules and control processes demonstrate that the mission will
remain within the Firm Fixed Price of the contract.
1.4.2 PROCUREMENT
SpaceDev shall initiate the procurement of critical, long-lead parts, and
components as required to meet schedule requirements established by University.
1.4.3 MONTHLY TECHNICAL MEETINGS
Monthly Technical Meetings shall be held with SpaceDev and University
Representatives. The Monthly Technical Meetings will discuss the status of
significant technical issues associated with the spacecraft bus and/or its
interface with the instrument. These meetings will be held either in person at
SpaceDev or at University or by teleconference by prior arrangement with the
CHIPS Principal Investigator.
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1.5 PHASES C and D
1.5.1 SPACECRAFT BUS DESIGN
SpaceDev shall provide all resources necessary to develop the spacecraft bus
design through the Design Verification Review (DVR). The DVR shall: (i) Disclose
the complete spacecraft bus systems designs in full detail, and illustrate that
technical problems and design anomalies have been resolved; (ii) Ensure that the
design maturity justifies the decision to proceed with manufacturing,
verification, and integration of the mission hardware and software, and (iii)
Verify the adequacy of the spacecraft bus detailed designs in meeting all
mission requirements. University has identified the Delta-II as the selected
launch vehicle and authorizes SpaceDev to design the spacecraft bus toward the
Delta-II secondary accommodation.
1.5.2 PROCUREMENT
SpaceDev shall complete the procurement of parts and components as required to
meet schedule requirements established by University.
1.5.3 MANUFACTURING, INTEGRATION, AND TEST
SpaceDev shall provide the facilities, services, and personnel necessary for the
successful and on-time implementation of all efforts necessary to produce the
spacecraft bus, integrate the science payload, and integrate the spacecraft with
the Delta-II vehicle.
1.5.4 ACCEPTANCE DATA PACKAGE
SpaceDev shall produce an Acceptance Data Package (ADP) for the spacecraft bus.
At a minimum, the ADP shall contain a cover sheet, signature page, as-built
configuration record, drawing(s) of the spacecraft bus, test data,
nonconformance documentation, waivers, deviations and acceptance test failure
documentation, and inspection records.
1.5.5 MONTHLY TECHNICAL MEETINGS
Monthly Technical Meetings shall be conducted between SpaceDev and University.
The Monthly Technical Meeting will discuss the status of significant technical
issues associated with the spacecraft bus and/or its interface with the
instrument.
1.6 PHASE E
Following successful on-orbit checkout of the spacecraft, SpaceDev shall support
one year of operations, including transfer of data to the University and
spacecraft operations. A more detailed description of operations support will be
amended to this agreement at a later date.
1.6.1 PHASE E FUNDING
The Phase E effort is not currently funded under this Agreement.
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1.7 REVIEWS
SpaceDev shall represent the spacecraft bus and interfaces at the following
reviews:
A. Confirmation Review Location: SpaceDev Estimated Date: 02/29/00
B. Design Verification Review Location: TBD Estimated Date: 08/25/00
C. Pre-Ship Review Location: SpaceDev Estimated Date: 12/03/01
D. Flight Readiness Review Location: TBD Estimated Date: 01/29/02
1.8 MODIFICATIONS TO THE STATEMENT OF WORK
University shall at all times maintain control and direction over the Statement
of Work performed under this Agreement and University reserves the right to
change or delete the tasks to be performed by SpaceDev and to alter required due
dates in accordance with Article 10 of this Agreement.
ARTICLE 2. PERIOD OF PERFORMANCE
--------------------------------
The Period of Performance for this Agreement is:
NOVEMBER 1, 1999 TO DECEMBER 31, 2003
ARTICLE 3. TOTAL PRICE AND PAYMENT
----------------------------------
The total Firm Fixed Price of this subcontract is Four Million, Nine Hundred and
Ninety-five Thousand, Eight Hundred and Sixty-eight Dollars ($4,995,868) Net
Thirty (30) Days upon receipt of all invoices.
Total Firm Fixed Price: $4,995,868.
----------------------
3.1. INCREMENTAL FUNDING AND ALLOCATION
The total cost for this Agreement for the period defined in ARTICLE 3. TOTAL
PRICE AND PAYMENT is $4,995.868. The amount currently available for payment and
allocation to this Agreement is $500,000.00 for the period November 1, 1999
through January 31, 2000.
It is understood that the University will allocate additional funds
incrementally to this Agreement to the full Firm Fixed Price, however, such
additional funding is contingent upon receipt by University of funding
increments to the prime award under which this Agreement is made.
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3.2. PAYMENT AND SUBMISSION OF INVOICES
SpaceDev shall submit monthly invoices not to exceed the amounts shown in
Attachment VIII to this Agreement. Costs must be identified on each invoice by
line item and conform to the approved SpaceDev Chipsat Cost Summary as shown in
Attachment VIII to this Agreement.
All invoices shall be submitted in triplicate and include University Purchase
Order Number 108252. Invoices shall be submitted on SpaceDev's billing forms to:
University of California, Berkeley
Disbursement Xxxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
University will make provisional payments on all invoices submitted in
accordance with the terms of this Agreement. Payment of an invoice for receipt
of goods and/or services shall not constitute acceptance of same. The final
invoice, clearly marked Final must be submitted within 60 days after the
expiration date of this Agreement.
NOTE: The final invoice shall include the following certification: "Payment of
this final invoice shall constitute complete satisfaction of all of University's
obligations under this agreement and SpaceDev releases and discharges University
from all further claims and obligations upon payment thereof."
3.3. INCENTIVE PLAN
Included in the Phase A study and approved by NASA, University has proposed, and
hereby effects, that an incentive fee of $250,000.00 - above and beyond the Firm
Fixed Price amount of this Agreement - shall be paid to SpaceDev upon the
successful completion of three (3) months of On-Orbit operations wherein the
spacecraft has performed to all identified requirements.
In addition to the above, University has also agreed to a second incentive fee
of $250,000.00 - above and beyond the Firm Fixed Price amount of this Agreement
-- that will be paid to SpaceDev upon one full year from the launch date of
On-Orbit operation wherein the spacecraft has performed to all identified
requirements and should sufficient Project Reserve funds exist.
The incentive pool is derived from the CHIPS Project Reserve and represents
approximately 10% of the total cost of the spacecraft bus. Incentive award
distribution is contingent upon availability of Project Reserve funds.
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ARTICLE 4. KEY PERSONNEL (TECHNICAL)
------------------------------------
The following Key Personnel cannot be substituted during the term of this
Agreement without written notification and concurrence of the University:
University: Xx. Xxxx X. Xxxxxxx
----------- Principal Investigator
University of CA, Berkeley
Space Sciences Laboratory #0000
Xxxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxx@xxx.xxxxxxxx.xxx
Xx. Xxxxxxx Xxxxx
CHIPS Project Manager
University of CA, Berkeley
Space Sciences Laboratory #0000
Xxxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxx.xxxxx@xxx.xxxxxxxx.xxx
SpaceDev: Xxx Xxxx
--------- Vice President for Space Engineering
CHIPSAT Program Manager
SpaceDev, Incorporated
00000 Xxxxx Xxxxx
Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: Xxx.Xxxx@XxxxxXxx.xxx
ARTICLE 5. INSURANCE
--------------------
SpaceDev shall maintain, at its expense and throughout the period of this
agreement, insurance acceptable to the University in terms as expressed in
Attachment I, University of California Terms and Conditions of Purchase
(Appendix A), Article 17 -- INSURANCE.
8
ARTICLE 6. DEBARMENT AND SUSPENSION
-----------------------------------
SpaceDev, in executing this Agreement, is certifying that it is not currently
debarred, suspended, proposed for debarment, declared ineligible, or voluntarily
excluded from participating in this agreement by any federal department or
agency, as described in Attachment IX, "Certification Regarding Debarment,
Suspension, Ineligibility and Voluntary Exclusion (Attachment IX), which is
hereby incorporated by reference and made a part of this Agreement.
ARTICLE 7. LEVEL OF EFFORT
--------------------------
The performance of work and services at any tier under this Agreement shall
conform to the highest professional standards. SpaceDev shall perform all
services with a degree of skill and judgment normally exercised by recognized
professional engineers and scientists performing research and development
services of a similar nature.
ARTICLE 8. SOCIO-ECONOMIC CLAUSES
---------------------------------
8.1 CIVIL RIGHTS NON-DISCRIMINATION
SpaceDev must comply with applicable provisions of Title VI of the Civil Rights
Act of 1964, as amended; Executive Orders 11246 and 11375; the Age
Discrimination Act of 1975, as amended; Title IX of the Education Amendments of
1972, as amended; and Section 504 of the Rehabilitation Act of 1973, as amended.
8.2 CLEAN AIR AND WATER
SpaceDev shall comply with all applicable standards, orders, or regulations
issued pursuant to the Clean Air Act of 1970, as amended, and the Federal Water
Pollution Control Act, as amended. Violations shall be reported to NASA and the
Regional Office of the Environmental Protection Agency. SpaceDev agrees to
insert the substance of the provisions of this clause into any nonexempt
subaward or subcontract under this Agreement.
8.3 USE OF U.S.- FLAG CARRIERS
If foreign air travel is authorized under this Agreement, U.S.-flag carrier
service shall be used to the extent such service is available, as specified in
NASA Research Grant NAS5-5213. The substance of this clause shall be inserted in
all subcontracts at any tier under this Agreement.
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ARTICLE 9. ASSIGNMENT AND SUBCONTRACTING
----------------------------------------
This Agreement is assignable by the University provided that no such assignment
shall relieve the assignee of any of the University's obligations to SpaceDev
hereunder. Except as to any payment due hereunder, this Agreement may not be
assigned or subcontracted by SpaceDev without written authorization of the
University. In the event such consent is given, it shall not relieve SpaceDev
from any of the obligations of this Agreement and any transferee or
subcontractor shall be considered the agent of SpaceDev and, as between the
parties hereto, SpaceDev shall be and remain liable as if no such transfer or
subcontracting had been made.
ARTICLE 10. AMENDMENTS
----------------------
This Agreement may be amended only with the express written approval of both
parties.
ARTICLE 11. AUDITS/ACCESS TO RECORDS
------------------------------------
Upon formal notification to SpaceDev, University, NASA (the Federal Sponsoring
Agency), the Comptroller General of the United States, or any of their duly
authorized representatives, shall have access to any books, documents, paper and
records of SpaceDev which are directly pertinent to this Agreement for the
purpose of making audits, examinations, excerpts and transcription.
ARTICLE 12. SITE VISITS
-----------------------
University and NASA (the Federal Sponsoring Agency), through authorized
representatives, have the right, at all reasonable times, to make site visits to
review project accomplishments and to provide such technical assistance as may
be required. If any site visit is made on the premises of SpaceDev, SpaceDev
shall provide, and shall require its sub-recipients and subcontractors to
provide, all reasonable facilities and assistance for the safety and convenience
of University and NASA representatives in the performance of their duties. All
site visits and evaluation shall be performed in such a manner as will not
unduly interfere with or delay the work.
ARTICLE 13. NOTICE
------------------
Any notice which may be or is required to be given under this Agreement shall be
submitted in writing as follows:
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University (Contractual, Non-Technical):
----------------------------------------
Xxxxx Xxxxxx, Buyer IV
University of California, Berkeley
Procurements & Business Contracts
Space Sciences Laboratory #0000
Xxxxxxxxxx @ Xxxxxxx Xxxx Xxxx.
Xxxxxxxx, XX 00000-0000
Tel: (000) 0000000
Fax: (000) 000-0000
Email:jkeenan@~xxx.xxxxxxxx.xxx
SpaceDev (Contractual. Non-Technical)
-------------------------------------
Xxxxxxx Xxxxx
Chief Financial Officer
SpaceDev, Incorporated
00000 Xxxxx Xxxxx
Xxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxx.xxxxx@XxxxxXxx.xxx
ARTICLE 14. GOVERNING LAW
-------------------------
This Agreement is governed by applicable Federal laws and State of California
laws.
ARTICLE 15. ORDER OF PRECEDENCE
-------------------------------
In the event of a conflict between this agreement and the attachments hereto,
the articles of this Agreement shall prevail.
ARTICLE 16. SEVERABILITY
------------------------
If any article, term or provision of this agreement shall be held illegal,
unenforceable or in conflict with any law of a federal, state or local
government having jurisdiction over this agreement, the validity of the
remaining portions or provisions shall not be affected thereby.
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ARTICLE 17. ENTIRE AGREEMENT
----------------------------
This Agreement, University of California Terms and Conditions of Purchase
(Attachment I); University Purchase Order 108252 (Attachment II); SpaceDev
Proposal to the CHIPS Program (Attachment III); Instrument Description and
Satellite Requirements for the Cosmic Hot Interstellar Plasma Spectrometer
(Attachment IV); SpaceDev CHIPSAT Project Milestones Document (Attachment V);
CHIPS Concept Study (Attachment VI); SpaceDev Inputs to the Concept Review
(Attachment VII); Chipsat Cost Summary (Attachment VIII); Exhibit A.
Certification Regarding Debarment (Attachment IX); Exhibit B. Certification and
Disclosure Regarding Payments to Influence Certain Federal Transactions
(Attachment X); Certificate of Current Cost or Pricing Data (Attachment XI);
Clean Air and Water Certification (Attachment XII), and SpaceDev Certificate of
Insurance (Attachment XIII) constitutes the entire agreement between the parties
regarding the subject matter of this Agreement and supersedes all prior written
or oral agreements with respect to such. This Agreement may not be modified
orally, and no modifications shall be binding unless in writing and signed by
authorized representatives of both parties. In the event of any conflict between
this Agreement and any other document incorporated here either by attachment or
reference, the terms of this Agreement shall take precedence.
IN WITNESS WHEREOF, SpaceDev, Inc. and UNIVERSITY have caused this Agreement to
be executed this 9th day of November 1999.
The Regents of the University of California SpaceDev. Inc.
------------------------------------------- --------------
By: /s/ Xxxx Xxxxx By: /s/ X.X. Xxxxxx
----------------------------- -----------------------------
Name: Xxxx Xxxxx Name: X.X. Xxxxxx
Title: Director, Material Management Title: President
Date: 11/9/99 Date: 11/9/99
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ATTACHMENTS:
Attachment I University of California Terms and Conditions of Purchase
Attachment II University Purchase Order Number 108252
Attachment III SpaceDev Proposal to the CHIPS Program Instrument
Attachment IV SPECIFICATION - Description and Satellite Requirements
for the Cosmic Hot Interstellar Plasma Spectrometer
Attachment V SpaceDev CHIPSAT Project Milestones Document
Attachment VI CHIPS Concept Study
Attachment VII SpaceDev Inputs to the Concept Review
Attachment VIII Chipsat Cost Summary
Attachment IX Exhibit A. Certification Regarding Debarment
Attachment X Exhibit B. Certification and Disclosure Regarding Payments
to Influence Certain Federal Transactions
Attachment XI Certificate of Current Cost or Pricing Data
Attachment XII Clean Air and Water Certification
Attachment XIII SpaceDev Certificate of Insurance
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ATTACHMENT I
Appendix A
University of California
TERMS AND CONDITIONS OF PURCHASE
ARTICLE I - The materials, supplies or services covered by this order shall be
furnished by Seller subject to all the terms and conditions set forth in this
order including the following, which Seller, in accepting this order, agrees to
be bound by and to comply with in all particulars and no other terms or
conditions shall be binding upon the parties unless hereafter accepted by them
in writing. Written acceptance or shipment of all or any portion of the
materials or supplies, or the performance of all or any portion of the services,
covered by this order shall constitute unqualified acceptance of all its terms
and conditions. The terms of any proposal referenced to in this order are
included and made a part of the order only in the extent it specifies the
materials, supplies, or services ordered, the price therefor, and the delivery
thereof, and then only to the extent that such terms are consistent with the
terms and conditions of this order.
ARTICLE 2 - INSPECTION. The services, materials and supplies furnished shall be
exactly as specified in this order free from all defects in Seller's
performance, design, workmanship and materials, and, except as otherwise
provided in this order, shall be subject to inspection and test by University at
all times and places. If, prior to final acceptance, any services and any
materials and supplies furnished therewith are found to be incomplete, or not as
specified, University may reject them, require Seller to correct them without
charge, or require delivery of such materials, supplies, or services at a
reduction in price which is equitable under the circumstances. If Seller is
unable or refuses to correct such items within a time deemed reasonable by
University, University may terminate the order in whole or in part, Seller shall
bear all risks as to rejected services and, in addition to any costs for which
Seller may become liable to University under other provisions of this order,
shall reimburse University for all transportation costs, other related costs
incurred, or payments to Seller in accordance with the terms of this order for
unaccepted services and materials and supplies incidental thereto.
Notwithstanding final acceptance and payment, Seller shall be liable for latent
defects, fraud or such gross mistakes as amount to fraud.
ARTICLE 3 - CHANGES. University may make changes within the general scope of
this order in drawings and specifications for specially manufactured supplies,
place of delivery, method of shipment or packing of the order by giving notice
to Seller and subsequently confirming such changes in writing. If such changes
affect the cost of or the time required for performance of this order, an
equitable adjustment in the price or delivery or both shall be made. No change
by Seller shall be allowed without written approval of University. Any claim of
Seller for an adjustment under this Article must be made in writing within
thirty (30) days from the date of receipt by Seller of notification of such
change unless University waives this condition in writing. Nothing in this
Article shall excuse Seller from proceeding with performance of the order as
changed hereunder.
ARTICLE 4 - TERMINATION
A. University may, by written notice stating the extent and effective date,
cancel and/or terminate this order for convenience in whole or in part, at any
time. University shall pay Seller as full compensation for performance until
such termination:
(1) the unit or pro rata order price for the performed and accepted portion; and
(2) a reasonable amount, not otherwise recoverable from other sources by Seller
as approved by University, with respect to the unperformed or unaccepted portion
of this order, provided compensation hereunder shall in no event exceed the
total order price.
B. University may by written notice terminate this order for Seller's default,
in whole or in part, at any time, if Seller refuses or fails to comply with the
provisions of this order, or so fails to make progress as to endanger
performance and does not cure such failure within a reasonable period of time,
or fails to perform the services within the time specified or any written
extension thereof. In such event, University may purchase or otherwise secure
services and, except as otherwise provided herein, Seller shall be liable to
University for any excess costs occasioned University thereby. If, after notice
of termination for default, University determines that the Seller was not in
default or that the failure to perform this order was due to causes beyond the
control and without the fault or negligence of Seller (including, but not
restricted to, acts of God or of the public enemy, acts of University, acts of
Government, fires, floods, epidemics, quarantine restrictions, strikes, freight
embargoes, unusually severe weather, and delays of a subcontractor or supplier
due to such causes and without the fault or negligence of the subcontractor or
supplier), termination shall be deemed for the convenience of University, unless
University shall determine that the services covered by this order were
obtainable by Seller from other sources in sufficient time to meet the required
performance schedule.
C. If University determines that Seller has been delayed in the work due to
causes beyond the control and without the fault or negligence of Seller,
University may extend the time for completion, of the work called for by this
order, when promptly applied for in writing by Seller; any extension granted
shall be effective only if given in writing. If such delay is due to failure of
University, not caused or contributed to by Seller, to perform services or
deliver property in accordance with the terms of the order, the time and price
of the order shall be subject to change under the Changes Article. Sole remedy
of Seller in event of delay by failure of University to perform shall, however,
be limited to any money actually and necessarily expended in the work during the
period of delay, solely by reason of the delay. No allowance will be made for
anticipated profits.
D. The rights and remedies of University provided in this Article shall not be
exclusive and are in addition to any other rights and remedies provided by law
or under this order.
E. As used in this Article, the word Seller includes Seller and its subsuppliers
at any tier.
ARTICLES - LIABILITY FOR UNIVERSITY - FURNISHED PROPERTY. Seller assumes
complete liability for any tooling, articles or material furnished by University
to Seller in connection with this order and Seller agrees to pay for all such
tooling, articles or material damaged or spoiled by it or not otherwise
accounted for to University's satisfaction. The furnishing to Seller of any
tooling, articles, or material in connection with this order shall not, unless
otherwise expressly provided, be construed to vest title thereto in Seller.
ARTICLE 6 - TITLE. Title to the material and supplies purchased hereunder shall
pass directly from Seller to University at the f.o.b. point shown, or as
otherwise specified in this order, subject to the right of University to reject
upon inspection.
ARTICLE 7 - PAYMENT, EXTRA CHARGES, DRAFTS. Seller shall be paid, upon
submission of acceptable invoices, for materials and supplies delivered and
accepted or services rendered and accepted. University will not pay cartage,
shipping, packaging or boxing expenses, unless specified in this order. Drafts
will not be honored. Invoices must be accompanied by shipping documents or
photocopies of such, if transportation is payable and charged as a separate
item.
ARTICLE 8 - CHARACTER OF SERVICES. Seller, as an independent contractor, shall
furnish all equipment, personnel and material sufficient to provide the services
expeditiously and efficiently during as many hours per shift and shifts per week
and at such locations as the University may so require and designate.
ARTICLE 9 - FORCED, CONVICT, AND INDENTURED LABOR
A. By accepting this order, Seller hereby certifies that no foreign-made
equipment, materials, or supplies furnished to the University pursuant to this
order will be produced in whole or its part by forced labor, convict labor, or
indentured labor under penal sanction.
B. Any Seller contracting with the University who knew or should have known that
the foreign-made equipment, materials, or supplies furnished to the University
were produced in whole or in part by forced labor, convict labor, or indentured
labor under penal sanction, when entering into a contract pursuant to the above,
may have any or all of the following sanctions imposed:
(1.) The contract under which the prohibited equipment, materials, or supplies
were provided maybe voided at the option of the University.
(2.) Seller may be removed from consideration for University contracts for a
period not to exceed 360 days.
Rev. 8/99 Page 1 of 3
Appendix A
ARTICLE 10-INDEMNITY.
A. General. Seller shall defend, indemnify, and hold harmless University, its
officers, employees, and agents, from and against all losses, expenses
(including attorneys' fees), damages, and liabilities of any kind resulting from
or arising out of this agreement and/or Seller's performance hereunder, provided
such losses, expenses, damages and liabilities are due or claimed to be due to
the negligent or willful acts or omissions of Seller, its officers, employees,
agents, subcontractors, or anyone directly or indirectly employed by them, or
any person or persons under Seller's direction and control.
B. Proprietary Rights. Seller shall indemnify, defend, and hold harmless
University, its officers, agents, and employees against all losses, damages,
liabilities, costs, and expenses (including but not limited to attorneys' fees)
resulting from any judgment or proceeding in which it is determined, or any
settlement agreement arising out of the allegation, that Seller's furnishing or
supplying University with parts, goods, components, programs, practices, or
methods under this order or University's use of such parts, goods, components,
programs, practices, or methods supplied by Seller under this order constitutes
an infringement of any patent, copyright, trademark, trade name, trade secret,
or other proprietary or contractual right of any third party. The foregoing
shall not apply unless University has informed Seller as soon as practicable of
the suit or action alleging such infringement. Seller shall not settle such suit
or action without the consent of University. University retains the right to
participate in the defense against any such suit or action.
C. Products. Seller shall fully indemnify, defend, and hold harmless University
from and against any and all claim, action, and liability, for injury, death,
and property damage, arising out of the dispensing or use of any of Seller's
product provided under authorized University orders. In addition to the
liability imposed by law on the Seller for damage or injury (including death) to
persons or property by reason of the negligence, willful acts or ommissions, or
strict liability of the Seller or his agents, which liability is not impaired or
otherwise affected hereby, the Seller hereby assumes liability for and agrees to
save University harmless and indemnify it from every expense, liability or
payment by reason of any damage or injury (including death) to persons or
property suffered or claimed to have been suffered through any act or omission
of the Seller. The University agrees to provide Seller with prompt notice of any
such claims and to permit Seller to defend any claim or suit, and that it will
cooperate fully in such defense.
ARTICLE 11 - DECLARED VALUATION OF SHIPMENTS. Except as otherwise provided on
the face of this order, all shipments by Seller under this order for
University's account shall be made at the maximum declared value applicable to
the lowest transportation rate or classification and the xxxx of lading shall so
note.
ARTICLE 12 - WARRANTY. Seller agrees that the supplies or services furnished
under this order shall be covered by the most favorable commercial warranties
the Seller gives to any customer for the same or substantially similar supplies
or services, or such other more favorable warranties as specified in this order.
The rights and remedies so provided are in addition to and do not limit any
rights afforded to University by any other article of this order. Such
warranties will be effective notwithstanding prior inspection and/or acceptance
of the services or supplies by the University.
ARTICLE 13 - ASSIGNMENT AND SUBCONTRACTING. This order is assignable by
University. Except as to any payment due hereunder, this order may not be
assigned or subcontracted by Seller without written approval of University. In
case such consent is given, it shall not relieve Seller from any of the
obligations of this Agreement and any transferee or subcontractor shall be
considered the agent of Seller and, as between the parties hereto, Seller shall
be and remain liable as if no such transfer or subcontracting had been made.
ARTICLE 14 - EQUAL OPPORTUNITY AFFIRMATIVE ACTION. Seller shall not maintain or
provide racially segregated facilities for employees at any establishment under
its control. Seller agrees to adhere to the requirements set forth in Executive
Orders 11246 and 11375. and with respect to activities occurring in the State of
California, to the California Fair Employment and Housing Act (Government Code
section 12900 et seq.). Expressly, Seller shall not discriminate against any
employee or applicant for employment because of race, color, religion, sex,
national origin, ancestry, medical condition (as defined by California Code
section 12925f]), marital status, age, physical and mental handicap in regard to
any position for which the employee or applicant for employment is qualified, or
because he or she is a disabled veteran or veteran of the Vietnam era. Seller
shall further specifically undertake affirmative action regarding the hiring,
promotion and treatment of minority group persons, women, the handicapped, and
disabled veterans and veterans of the Vietnam era. Seller shall communicate this
policy in both English and Spanish to all persons concerned within its company,
with outside recruiting services, and the minority community at large. Seller
shall provide the University on request a breakdown of its labor force by
groups, specifying the above characteristics within job categories, and shall
discuss with the University its policies and practices relating to its
affirmative action programs.
ARTICLE 15 - The clauses contained in the following paragraphs of the Federal
Acquisition Regulations are incorporated by reference. The full text is
available upon request:
FAR 52.222-04 Contract Work Hours and Safety Standards Act
FAR 52.222-26 Equal Opportunity
FAR 52.223-02 Clean Air and Water (If order exceeds $100,000)
ARTICLE 16 - WORK ON UNIVERSITY OR GOVERNMENT PREMISES. If Seller's work under
this order involves performance by Seller at University or United States
Government owned sites or facilities, the following provisions shall apply:
A. Liens. Seller agrees that at any time upon request of University he will
submit a sworn statement setting forth the work performed or material furnished
by subcontractors, suppliers and materialmen, and the amount due and to become
due to each, and that before the final payment called for hereunder, will if
requested, submit to University a complete set of vouchers showing what payments
have been made for materials and labor used in connection with the work called
for hereunder.
Seller shall:
(1) Indemnify and hold harmless University from all claims, demands, causes of
action or suits, of whatever nature, arising out of the services, labor and
materials furnished by Seller or its subcontractors under this order, and from
all laborers', materialmen's and mechanics' liens upon the real property upon
which the work is located or any other property of University;
(2) Promptly notify University in writing, of any such claims, demands, causes
of action, or suits brought to its attention. Seller shall forward with such
notification copies of all pertinent papers received by Seller with respect to
any such claims, demands, causes of action or suits and, at the request of
University shall do all things and execute and deliver all appropriate documents
and assignments in favor of University of all Seller's rights and claims growing
out of such asserted claims as will enable University to protect its interest by
litigation or otherwise. The final payment shall not be made until Seller, if
required, shall deliver to University a complete release of all liens arising
out of this order, or receipts in full in lieu thereof as University may
require, and if required in either case, an affidavit that as far as it has
knowledge or information, the receipts include all the labor and materials for
which a lien could be filed; but Seller may, if any subcontractor refuses to
furnish a release or receipt in full, furnish a bond satisfactory to University
to indemnify it against any claim by lien or otherwise. If any lien or claim
remains unsatisfied after all payments are made, Seller shall refund to
University all monies that the latter may be compelled to pay in discharging
such lien or claim, including all costs and reasonable attorneys' fees.
B. Cleaning Up. Seller shall at all times keep University premises where the
work is performed and adjoining premises free from accumulations of waste
material or rubbish caused by its employees or work of any of its
subcontractors, and, at the completion of the work; shall remove all rubbish
from and about the building and all its and its subcontractors tools,
scaffolding, and surplus materials, and shall leave the work "broom clean" or
its equivalent, unless more exactly specified. In case of dispute between Seller
and the subcontractors employed on or about the structure or structures upon
which the work is to be done, as herein provided, as to responsibility for the
removal of the rubbish, or in case the same be not promptly removed as herein
required. University may remove the rubbish and charge the cost to Seller.
C. Employees. Seller shall not employ on the work any unfit person or anyone not
skilled in the work assigned to him or her, and shall devote only its
best-qualified personnel to work under this order. Should University deem anyone
employed on the work incompetent or unfit for his or her duties and so inform
Seller, Seller shall immediately remove such person from work under this order
and he or she shall not again, without written permission of University, be
assigned to work under this order.
Rev. 8/99 Page 2 of 3
Appendix A
It is understood that if employees of University shall perform any acts for the
purpose of discharging the responsibility undertaken by the Seller in this
Article 15, whether requested to perform such acts by the Seller or not, such
employees of the University while performing such acts shall be considered the
agents and servants of the Seller subject to the exclusive control of the
Seller.
D. Safety, Health and Fire Protection. Seller shall take all reasonable
precautions in the performance of the work under this order to protect the
health and safety of employees and members of the public and to minimize danger
from all hazards to life and property, and shall comply with all health, safety,
and fire protection regulations and requirements (including reporting
requirements) of University. In the event that Seller fails to comply with said
regulations or requirements of University, University may, without prejudice to
any other legal or contractual rights of University, issue an order stopping all
or any part of the work; thereafter a start order for resumption of work may be
issued at the discretion of the University. Seller shall make no claim for
extension of time or for compensation or damages by reason of or in connection
with such work stoppage.
The safety of all persons employed by Seller and its subcontractors on
University premises, or any other person who enters upon University premises for
reasons relating to this order, shall be the sole responsibility of Seller.
Seller shall at all times maintain good order among its employees and shall not
employ on the work any unfit person or anyone not skilled in the work assigned
to him or her. Seller shall confine its employees and all other persons who come
onto University's premises at Seller's request or for reasons relating to this
order and its equipment to that portion of University's premises where the work
under this order is to be performed or to roads leading to and from such work
sites, and to any other area which University may permit Seller to use. Seller
shall take all reasonable measures and precautions at all times to prevent
injuries to or the death of any of its employees or any other person who enters
upon University premises. Such measures and precautions shall include, but shall
not be limited to, all safeguards and warnings necessary to protect workers and
others against any conditions on Owner's premises which could be dangerous and
to prevent accidents of any kind whenever work is being performed in proximity
to any moving or operating machinery, equipment or facilities, whether such
machinery, equipment or facilities are the property of or are being operated by,
the Seller, its subcontractors, the University or other persons.
To the extent compliance is required, Seller shall comply with all University
safety rules and regulations when on University premises.
ARTICLE 17 - INSURANCE
Seller shall defend, indemnify, and hold the University, its officers,
employees, and agents harmless from and against any and all liability, loss,
expense (including reasonable attorneys' fees), or claims for injury or damages
that are caused by or result from the negligent or intentional acts or omissions
of Seller, its officers, agents, or employees.
Seller, at its sole cost and expense, shall insure its activities in connection
with the work under this order and obtain, keep in force, and maintain insurance
as follows:
A. Comprehensive or Commercial Form General Liability Insurance (contractual
liability included) with limits as follows:
Each Occurrence $ 1,000,000.00
Products/Completed Operations
Aggregate $ 2,000,000.00
Personal and Advertising Injury $ 1,000,000.00
General Aggregate (Not applicable
to the Comprehensive Form) $ 2,000,000.00
If this insurance is written on a claims-made form, it shall continue for three
years following termination of this Agreement. The insurance shall have a
retroactive date of placement prior to or coinciding with the effective date of
this Agreement.
B. Business Automobile Liability Insurance for owned, scheduled, non-owned or
hired automobiles with a combined single limit not less than N/A dollars
($______) per occurrence. (REQUIRED ONLY IF SELLER DRIVES ON UNIVERSITY PREMISES
IN THE COURSE OF PERFORMING WORK FOR UNIVERSITY.)
C. Professional Liability Insurance with a limit of 1,000,000 dollars
($1,000,000) per occurrence with an aggregate of not less than $1,000,000
dollars ($1,000,000). If this insurance is written on a claims-made form, it
shall continue for three years following termination of this Agreement. The
insurance shall have a retroactive date of placement prior to or coinciding with
the effective date of this Agreement.
D. Workers Compensation as required by California State law.
It is understood that the coverage and limits referred to under a., b., and c.
above shall not in any way limit the liability of Seller. Seller shall furnish
the University with certificates of insurance evidencing compliance with all
requirements prior to commencing work under this Agreement. Such certificates
shall:
(1) Provide for thirty (30)-days advance written notice to the University of any
modification, change, or cancellation of any of the above insurance coverage.
(2) Indicate that The Regents of the University of California has been endorsed
as an additional insured for the coverage referred to under a. and b. This
provision shall only apply in proportion to and to the extent of the negligent
acts or omissions of Seller, its officers, agents, or employees.
(3) Include a provision that the coverage will be primary and will not
participate with nor be excess over any valid and collectible insurance or
program of self-insurance carried or maintained by the University.
ARTICLE 18 - PERMITS. Seller agrees to procure all necessary permits or licenses
and abide by all applicable laws, regulations and ordinances of the United
States and of the state, territory and political subdivision in which the work
under this order is performed. Seller shall be liable for all damages and shall
indemnify and save University harmless from and against all damages and
liability which may arise out of failure of Seller to secure and pay for any
such licenses or permits or to comply fully with any and all applicable laws,
ordinances and regulations.
ARTICLE 19-COOPERATION. Seller and its subcontractors, if any, shall cooperate
with University and other vendors and contractors on the premises and shall so
carry on their work that other cooperating vendors and contractors shall not be
hindered, delayed or interfered with in the progress of their work, and so that
all of such work shall be a finished and complete job of its kind.
ARTICLE 20 - WAIVER OF DEFAULT. Any failure of University at any time, or from
time to time, to enforce or require the strict keeping and performance by Seller
of any of the terms or conditions of this order shall not constitute a waiver by
University of a breach of any such terms or conditions and shall not affect or
impair such terms or conditions in any way, or the right of University at any
time to avail itself of such remedies as it may have for any such breach or
breaches of such terms or conditions.
ARTICLE 21 - TAXES. Seller shall pay all contributions, taxes and premiums
payable under federal, state and local laws measured upon the payroll of
employees engaged in the performance of work under this order, and all
applicable sales, use, excise, transportation, privilege, occupational and other
taxes applicable to materials and supplies furnished or work performed hereunder
and shall save University harmless from liability for any such contributions,
premiums, and taxes.
ARTICLE 22 - OTHER APPLICABLE LAWS. Any provision required to be included in a
contract of this type by any applicable and valid federal, state or local law,
ordinance, rule or regulations shall be deemed to be incorporated herein.
ARTICLE 23 - GOVERNING LAW. The law of the State of California shall control
this Appendix and any document to which it is appended.
Rev. 8/99 Page 3 of 3
ATTACHMENT II
PURCHASE ORDER
UNIVERSITY OF CALIFORNIA, BERKELEY P.O. No.: 1-000108252
Rev.:
Date: 10/26/99
Vendor: SPACEDEV, INCORPORATED Xxxx To: DISBURSEMENT XXXXXX
00000 XXXXX XXXXX 000 XXXXXXXXXX XXXX
XXXXX, XX 00000 XXXXXXXX, XX 00000-0000
XXX XXX
DEPARTMENT CONTACT NAME/PHONE: Xxxxx Xxxxxx 000-000-0000
Ship To: UNIVERSITY OF CALIFORNIA, BERKELEY Resale/Tax Exempt No.:
SPACE SCIENCES LABORATORY ROOM 170
MC#7450 Payment Terms: NET 30
CENTENNIAL AT GRIZZLY PEAK BLVD Freight Terms: Not Applicable
BERKELEY, CA 9472O-7450 Ship Via: Not Applicable
USA
Item Description Due Date Quantity UOM Unit Price Extended Amt
1 CHIPS Spacecraft Bus 01/31/00 1.0 EA 500,000.00 500,000.00
Tax 0.00% 0.00
Total Amount of this Firm Fixed Price Purchase Order is $4,995,868.00
Period of Performance: November 1, 1999 through December 31, 2003
The initial Purchase Order Allotment Amount is $500,000.00
The Period of Performance for this initial allotment amount is
November 1, 1999 through January 31, 2000.
Sub total $500,000.00
Tax $0.00
------------------------
Total $500,000.00
------------------------
This Purchase Order (Attachment II to University Agreement Number 108252)
is established for payment purposes only. The Purchase Order number must
appear on all invoices and shipping documents. All terms and conditions are
in accordance with the Firm Fixed Price Agreement Number 108252 between The
Regents of the University of California and SpaceDev Incorporated.
For internal use by the University:
449580 23892 8 7300 475,000.00
449580 23892 8 7305 25,000.00
Purchase Order number must appear on all documents,
packages, packing slips, bills of lading, and freight
bills. Invoices sent without purchase order number /s/ Xxxxx X. Xxxxxx
will be returned. No variations, deletions, price --------------------
increases, changes or modifications shall be Buyer: Xxxxxx, Xxxxx
effective without written approval of Buyer. 10/27/99
