Compared to the PRC Renewable Energy Law of 2006, the Amendment has included some new provisions to promote the utilization of electricity generated from renewable sources.

Mandatory Connection Policy

Probably the most significant principle of the Renewable Energy Law when it was originally passed was the introduction of the “Mandatory Connection” policy, which required grid companies to connect and purchase all renewable energy generated that could be injected into the grid. After few years of experience it has been clear that not all grid companies were complying with their obligations to purchase all renewable power and connect it to the grid. This was caused by various factors, including technical infrastructure weaknesses that impeded the reception of all that renewable energy by the grid companies.

Part of the amendments are aimed at addressing this “bottleneck problem” by creating a legal framework that requires grid companies to invest in expanding and strengthening their facilities.

Also the amendments have increased the responsibilities of the grid companies by now requiring them to meet a new type of target- a proportion of renewable power generated relative to overall power generation (Art. 14, paragraph 1).

In contrast with the previous targets, the new target created by the amendments places responsibility directly on grid companies to purchase a fixed share of their power generation from renewable energy sources, and these grid-level targets will be enforced through penalties for non-compliance (Art. 29).

On the other hand, the amendments also decrease the grid companies’ obligations by adding a limitation to the scope of the grid companies’ obligations under the Mandatory Connection Policy. The original law required grid companies to purchase all renewable energy regardless of its “quality,” but the amended law now limits grid companies’ responsibility to only those renewable energy generators that meet certain technical requirements for connection (Art. 14, paragraph 2).

Renewable Energy Development Fund

Another important addition to the law is how grid companies are compensated when purchasing renewable energy instead of cheaper, dirtier forms of energy, such as coal.

Since renewable power is generally more expensive than conventional fossil fuels, China has instituted feed-in tariffs for a variety of renewable energy technologies to compensate grid companies for the additional cost of purchasing renewable energy.

According to the Amendment, instead of the grid companies’ collecting the surcharge directly from the end-user, the end-user shall pay the surcharge into a Renewable Energy Development Fund. Once the surcharges have been pooled, the grid company will then seek compensation from the fund for the additional cost of purchasing the renewable energy, including the costs associated with integration. This large fund will allow the government to use this amount of money not only to compensate grid companies, but also to invest in various renewable energy development projects, including R&D (Art. 24).

The Amendment strengthens the penalty to the companies which break the rules. Electric grid companies, natural gas & heat pipeline companies, and gas-selling enterprises which fail to purchase or accommodate renewable sources of power or fuel are liable for compensation. The energy department of the State Council or provincial level governments shall order them to correct the situation within a stipulated period of time. If they refuse to correct the situation, a fine of up to double the amount of actual amount of the economic loss shall be imposed against them.

The Amendment has reflected the Chinese government’s determination of developing and utilizing the renewable energy sources in order to decrease the carbon emission and air pollution. China has 9% of primary energy consumption come from renewable energy sources at present and China will aim to have 15% of primary energy consumption by 2020 come from renewable energy sources. It also aims to reduce the carbon intensity, or the amount of carbon consumed when producing per unit of GDP, of between 40 and 45 percent by 2020 compared with 2005.

What is needed for Patent licensing?

1. Patent licensing request.
2. Patent Licensing agreement.
3. Patent Certificate.
4. Identification documents of the transferor.
5. Identification documents of the licensee.
6. Power of attorney.
7. The declaration of the patent licensing agreement to prove the effectiveness of it if the agreement has been conducted more than 3 months.
8. The proof of changing names if it was not the same with the one in the agreement.

Therefore, if you’re meant to license a patent in China, please feel free to contact us, we would be glad to help you in dealing with this matter.

ABOUT THE AUTHOR: Borsam IP & Law Firm
Borsam is a professional I.P. law office, which consists by I.P. attorney, patent attorney and trademark attorney with ten-year experience and cooperates with Taiwan professional patent/trademark attorney. Borsam establish a long cooperation with I.P. firms of more than fifty countries.

Our aim is to assist individuals and organizations to maximize the potential of their intellectual property and to minimize the risks faced from exposure to third party rights. We deal with patents, copyright, trademarks and associated issues in China, Hong Kong, Taiwan, USA, Europe and worldwide.

It is therefore a good idea to include in the contract or an addendum the maximum fee, or the construction cost or budget you have in mind, to avoid a later surprise and higher building and architectural costs.

Architects’ estimates of construction costs are often too low, and the A.I.A. form contracts typically absolve the architect from responsibility if the actual construction cost comes out higher than the designer’s estimate.

Your contract should require that the Architect redesign the project if necessary to bring the contractor’s costs within your budget, if the contractors’ bid is too high.

Architects also often provide construction supervision (or “observation”) services, to assure that the builder meets the design requirements, correctly interprets the drawings, receives approval of shop drawings, and to assure that the contractor’s payment applications are correct as to the amount owed for the percentage of work complete.

It usually a good idea to have the architect performs these services and maybe also help you find or evaluate prospective contractors. These construction phase costs can add about 5% – 15% to the amount of your bill, or more.

The A.I.A. form design contracts allow the owner to terminate the architect for “cause” or for “convenience”.

To terminate the architect for “cause” usually requires that there be some material breach of the contract, incompetence, fraud, etc.

If the contract termination is for your “convenience”, you may be required to pay the full architectural fee, even if the architect’s work was only partly performed.

Because architects (and other designers) have a Copyright in the original or creative part of their designs and drawings, if you terminate an architect for your “convenience”, you may not be able to have someone else complete the architect’s design, or to construct the project at all based on the original architect’s design, unless the termination was for good “cause”, as determined by a court or arbitration panel. “Cause” personably means incompetence, delays, breaches of contract, etc.

Designers may sue in Federal Court for violation or infringement of a registered Copyright, and seek an injunction against the unauthorized use of the drawings to construct the project, statutory damages, actual damages, any profit made by unauthorized use of the drawings as well as, plus costs and attorneys fees.

A.I.A. form contracts usually provide for or require mediation or arbitration of disputes with architects.

Licensed Architects, Engineers or Surveyors in California who have written contracts with property owners also have a right to a “Design Professional’s Lien” on the owner’s property, for the amount claimed to be owed for their design work.

Unlike mechanics liens in California, these liens can be effective even if no construction work is ever commenced on the property. But for a designer’s lien to be validly recorded, at least a building permit or similar government approval for the project must have been issued.

The amount of the lien is the amount still owed on the design contract. Ten days prior to recording the lien, the designer must first serve a written demand for payment on the owner, by certified or registered mail.

The lien must be recorded with the County Recorder within 90 days of when the architect first learns that construction is not going forward, and suit must be filed on the lien within 90 days of its recording or the lien becomes invalid.

If the project proceeds to construction, the designer may of course record a regular Mechanics Lien any time before or within 90 days of “completion” or “cessation” of construction work on the whole project.

Of course, architects and even unlicensed designers may also sue for breach of contract, Copyright Infringement, and on other claims, as may as property owners.

Most architects carry limited “claims made” liability or “errors and omissions” insurance for their negligence or errors or omissions. But always ask to see the actual insurance policies to be sure the designer is insured, as current certificates of insurance are difficult or impossible to enforce. The typical designer’s insurance policy only covers claims made during the period covered by the policy, not claims arising later, unless the designer also has subsequent policies.

For design contracts on a project of any significant size or complexity, it is advisable to consult with an experienced Construction Attorney to make sure the agreement will satisfy your needs, and those of the architect, and protect your interests.

N.B. The contents of this Article do not constitute legal advice or create an attorney-client
relationship, and you may not rely on it without seeking legal advice regarding your
particular situation and contract from a competent government construction contracts attorney. Please also note that contracts very, and statutes and case law are frequently changing, and thus these materials may become outdated or incorrect.

The purpose of prevailing wage laws is to prevent contractors and subcontractors from bidding low in an effort to obtain lucrative government contracts, only to turn around and pay their employees less than what they would earn under non-government contracts. The federal government and numerous states have enacted prevailing wage legislation. Depending on the applicable law, the wage rates may be determined by collective bargaining agreements or various statistical data. For federally-contracted projects, the United States Department of Labor determines and enforces the applicable prevailing wage. Comparatively, on state-contracted projects, the various state labor departments usually determine and enforce the locally prevailing wage.

The seminal federal act in the context of prevailing wages is the Davis-Bacon and Related Acts, commonly referred to as the “Davis-Bacon Act.”(2) The Davis-Bacon Act applies to contractors and subcontractors performing federally-funded contracts in excess of $2,000 for the construction, alteration, or repair, including painting and decorating, of public buildings and public works.(3) Under the Davis-Bacon Act, contractors and subcontractors must pay their laborers and mechanics employed under the contract no less than the prevailing wages and benefits for corresponding work on similar projects in the area.(4) Furthermore, “in order to qualify for federal construction projects subject to the Davis-Bacon Act, contractors must ‘certify’ that ‘each laborer or mechanic has been paid not less than the applicable wage rates.”(5) Therefore, in the context of the False Claims Act (“FCA”), a contractor’s false certification that its workers were paid the prevailing wage pursuant to the Davis-Bacon Act can give rise to FCA liability.(6)

For example, in United States ex rel. Wall v. Circle Cons., LLC, the court held that Circle Construction (“Circle C”) violated the FCA when it falsely certified that prevailing wages were paid to subcontractor employees on a project for United States Army.(7) Pursuant to the contract, Circle C was to “pay electricians according to the wage determinations in the contract, to ensure that persons doing electrical work were paid as electricians, to submit payroll certifications to Fort Campbell as a condition of payment; and to ensure that its subcontractors complied with the Davis-Bacon Act and that the payroll certifications submitted to Fort Campbell were complete and accurate, including information on Circle C’s subcontractors.”(8) Circle C failed to list subcontractor employees for electric work in the payroll certifications for the first two years after the project commenced and failed to verify its subcontractor’s subsequent certifications for the years following.(9) The certifications contained a total of 62 non-complying hourly wages for laborers and electricians that fell below the amounts required under the Davis-Bacon Act.(10) In total, the United States paid Circle C $553,807.71 for the subcontractor’s electrical portion of the contract that “should have been paid to [the subcontractor]’s electric and other workers.”(11) The court held that because the Davis-Bacon Act and its regulations require payroll certifications for payment of federal funds(12) and because the prime contractor is responsible for both the submission of copies of payrolls by all subcontractors(13) and compliance by subcontractors to all provisions in the contract,(14) Circle C’s “wage certifications wrongly certified that the prevailing wages were paid on the Fort Campbell project in violation of the FCA.”(15) Because the Army paid out over $553,000 that it “would not have paid if the United States had known about Circle C’s false certifications,” the court assessed an award of three times the actual damages to the United States—$1,661,423.13.(16)

Of the fifty states, thirty-two(17) have enacted their own state prevailing wage laws, which vary considerably in their application and scope. The remaining eighteen states(18) without a prevailing wage law allow for the market to set the rates on state-sponsored construction. As in the federal FCA arena, the false certification of prevailing wages in those states with a prevailing wage law and a state equivalent of the FCA, could lead to liability for a state contractor.

Federal and State prevailing wage laws provide various threshold amounts for contract coverage.

See 40 U.S.C. § 3141 et seq.

40 U.S.C. § 3142(a).
40 U.S.C. § 3142(a)–(b). The locally prevailing wage and fringe benefits for each contract is determined by the United States Department of Labor
United States ex rel. Plumbers & Steamfitters Local Union No. 38 v. C.W. Roen Const. Co., 183 F.3d 1088, 1092 (9th Cir. 1999) (citing 29 C.F.R. § 5.5(a)(3)(B)(3)); See also 40 U.S.C. § 3145.

Id. (“[T]he FCA does indeed extend to false statements regarding the payment of prevailing wages”).
United States ex rel. Wall v. Circle Const., LLC, 700 F. Supp. 2d 926, 938–939 (M.D. Tenn. 2010).
Id. at 930–931.

Id. at 931–932.
Id. at 932.
Id.
See 40 U.S.C. § 3145; 29 C.F.R. § 5.5(a)(3)(I), (ii)(A)(B).

See 29 C.F.R. § 5.5(a)(3)(ii)(A).
See Id. at § 5.5(a)(6).
Circle Cons., 700 F. Supp. 2d at 939.

Id. at 940.
These states include: Alaska (Alaska Stat. § 36.05.010 et seq.), Arkansas (Ark. Code Ann. § 22-9-301 et seq.), California (Cal. Lab. Code § 1720 et seq.), Connecticut (Conn. Gen. Stat. Ann. § 31-53), Delaware (Del. Code Ann. tit. 29, § 6960), Hawaii (Haw. Rev. Stat. Ann. § 104 et seq.), Illinois (820 Ill. Comp. Stat. Ann. § 130/1 et seq.), Indiana (Ind. Code Ann. § 5-16-7-1 et seq.), Kentucky (Ky. Rev. Stat. Ann. § 337.505 et seq.), Maine (Me. Rev. Stat. Ann. tit. 26, § 1303 et seq.), Maryland (Md. Code Ann., State Fin. & Proc. § 17-201 et seq.), Massachusetts (Mass. Gen. Laws Ann. ch. 149, § 26 et seq.), Michigan (Mich. Comp. Laws Ann. § 408.551 et seq.), Minnesota (Minn. Stat. Ann. § 177.41 et seq.), Missouri (Mo. Ann. Stat. 290.210 et seq.), Montana (Mont. Code Ann. § 18-2-401 et seq.), Nebraska (Neb. Rev. Stat. § 73-101 et seq.), Nevada (Nev. Rev. Stat. Ann. § 338.010 et seq.), New Jersey (N.J. Stat. Ann. § 34:11-56.25 et seq.), New Mexico (N.M. Stat. Ann. § 13-4-11 et seq.), New York (New York Labor Law § 220(3)), Ohio (Ohio Rev. Code Ann. § 4115.03 et seq.), Oregon (Or. Rev. Stat. Ann. § 279C.800 et seq.), Pennsylvania (43 Pa. Stat. Ann. § 165-1 et seq.), Rhode Island (R.I. Gen. Laws § 37-13-1 et seq.), Tennessee (Tenn. Code Ann. § 12-4-401 et seq.), Texas (Tex. Gov’t Code Ann. § 2258.001 et seq.), Vermont (Vt. Stat. Ann. tit. 29, § 161 et seq.), Washington (Wash. Rev. Code Ann. § 39.12.010 et seq.), West Virginia (W. Va. Code Ann. § 21-5A-1 et seq.), Wisconsin (Wis. Stat. Ann. § 66.0901 et seq.), and Wyoming (Wyo. Stat. Ann. § 27-4-401 et seq.).

These states include: Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Mississippi, New Hampshire, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, and Virginia.

iAuthor of treatise, Federal False Claims Act and Qui Tam Litigation, Law Journal Press (2010), research source of the issues discussed in this article.
Notice

This website is designed to provide general information only. This information is not and should not be construed to be formal legal advice. The transmission of the information found on this website also does not result in the formation of a lawyer-client relationship.

Certainly in some circumstances, these nursing home alternatives can offer a tremendous opportunity for elderly people who may not require the level of care provided in nursing homes. However, despite the differences between nursing homes and RCFE’s on paper, I am beginning to see more and more instances where these alternative care facilities providing inferior care in the following circumstances:

- Admitting patients who require more care than they can provide;
- Neglecting patients;
- Failing to obtain medical care for patients who are sick or have a medical condition that is significantly deteriorated.

I recently saw an article in the Visalia Times-Delta, that highlighted some of of the problems encountered at two RCFE’s in California.

Woodlake Senior Care

The owners of Woodlake Senior Care had their residential care license stripped by the California Department of Social Services following an investigation that determined the operators of the small facility severely neglected the residents they were caring for. On at least three occasions the owners of Wooklake allegedly failed to transfer residents to facilities where they could obtain necessary skilled nursing care.

While investigating the care provided to the three residents, the facility failed to notify any people outside of the facility that residents had developed advanced decubitus ulcers that had become infected and had progressed to the point that underlying tissue and bones were exposed.

Rainbow Gardens

The Visalia Times-Delta reported how similar violations were discovered at Rainbow Gardens, another residential care facility for the elderly, when the facility failed to meet take basic care precautions such as:

- Maintaining doctors orders for patients;
- Keeping the facility clean;
- Ensuring that there was adequate food at the facility; and
- Lack of regulation for residential care facilities for the elderly.

Like other states, RCFE are subject to the same regulations that foster homes and child-care facilities are– not the more stringent nursing home inspections. In California, this means that residential care facilities for the elderly only get inspected once every five years!

As a lawyer who has worked on cases involving elder abuse and injury in alternative care settings, I strongly encourage lawmakers to reevaluate cost cutting measures that really endanger elders. I would also add, that many of the people living in these facilities are particularly– or completely isolated from the outside world– thereby making such inspections of their living conditions even more critical than likely envisioned.