CANCELLED

University of California
Office of the President

Senior Vice PresidentóBusiness and Finance
Research Administration Office

Memo
Operating Guidance

No. 98-11
December 18, 1998


CONTRACT AND GRANT OFFICERS (CAMPUS AND LAB)*

Subject: Agreements for Work Performed Between UC Campuses and UC DOE Laboratories

In 1994, a Campus/Laboratory Intra-University Transaction Agreement (IUT) was established for use by the three University-managed Department of Energy (DOE) Laboratories to fund work performed at a University of California campus. (Ref: Operating Guidance Memo No. 94-15, July 27, 1994, Subject: Campus/Laboratory Intra-University Transactions.) This Operating Guidance Memo updates and replaces the IUT issued with C&G Memo No. 94-15. Section I below, Modifications to the Intra-University Transaction, provides an explanation of the changes made to the IUT.

We now have a new Memorandum Agreement approved by DOE Oakland for use by campuses to fund work done at the Lawrence Livermore and Lawrence Berkeley National Laboratories. OP Laboratory Administration is working on having this Memorandum Agreement accepted by DOE Albuquerque for use with the Los Alamos National Laboratory. Section II below, Use of the New Memorandum Agreement, explains the new Memorandum Agreement, including the companion GENERAL PROVISIONS - May 1998.

I. Modifications to the Intra-University Transaction Agreement

The Intra-University Transaction Agreement (Enclosure I) distributed with Contract and Grant Operating Guidance Memo No. 94-15 (July 27, 1994) was modified in two places. First, in order to differentiate the IUT used for work performed by campuses for the Laboratories from the new Memorandum Agreement, the subtitle "Work performed by the Campus for the Laboratory" has been added at the top of this Agreement.

Secondly, a new Article VII, Intellectual Property, has been added. This article indicates that, for purposes of intellectual property rights, campuses are treated like nonprofit subcontractors under the Laboratory DOE prime contracts. DOE prime contract clauses 7.2 - Rights in Data-Technology Transfer Activities (Special) and 7.7, DEAR 970.5204-71 Patent Rights - Nonprofit Management and Operating Contracts (FEB 1995) state that, for data, copyrightable works, and inventions, campuses "shall be treated as if the campus were a nonprofit subcontractor." Laboratory subcontracts with educational and nonprofit organizations incorporate DEAR 952.227-11, Patent Rights - Retention by the Contractor (Short Form) (MAR 1995) and FAR 52.227-14, Rights in Data-General (JUN 1987) with Alternatives I, IV, and V. 952.227-11 allows contractors to elect to retain rights to subject inventions and provides the federal government with a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the United States the subject invention throughout the world. 52.227-14 with Alt. IV provides the contractor with the right to establish copyright without prior DOE approval. Alt. I applies to confidential or privileged data and Alt. V allows DOE to inspect data for up to three years after acceptance of deliverables.

II. Use of the New Memorandum Agreement

The new Memorandum Agreement (Enclosure II) may be used for research or services provided to a campus by a Laboratory. It may be for either a direct award from the campus or for a subaward under a prime award to the campus. The boilerplate provides the campus a selection of either "research" or "services" in Article I and the option of either attaching a scope of work as Exhibit A or incorporating the proposal.

In Article II, Period of Performance, the campus can choose either an end date for the Memorandum Agreement or a number of months after the Agreement is effective. The reason for providing this choice is that the Laboratories cannot start work until the Agreement is fully executed and the advance payment is received. So the campus has an option to provide the number of months for the work to be performed if a specific end date is not required.

Article III. A., Award Amount, provides for a statement of the total anticipated funding as well as the current amount obligated, if the funding will be incremental. If funding is not incremental, both statements would have the same dollar amount in them or the first sentence can be deleted.

Article V. E. requires the Laboratory to close out within 60 days of the end of the project or the termination date so that the campus receives the information in time to close-out its prime agreement within 90 days where this is required.

Article VII., Reports, does not need to be included in Agreements for services or leases if reports are not required. Article XII, Special Provisions, can be deleted if there are not additional special provisions applicable to the Agreement.

The attachment entitled, "Work for UC campuses by UC National Laboratories GENERAL PROVISIONS Ė May 1998", applies to the Laboratories for work performed under these Agreements. These Provisions are incorporated by reference into the Memorandum Agreement and do not need to be attached to each Agreement the campus prepares.

III. Electronic Versions of these Agreements

The revised IUT and the new Memorandum Agreement described above are posted on the OP Research Administration website under this Memo number. The Agreements can be copied from this website for use by campuses or Laboratories as applicable.

Refer: Samuela A. Evans

 

Enclosures

cc: Sandy Vinson, OP Lab Admin.

Ron Nelson, OP Lab Admin.


Enclosure 1

UNIVERSITY OF CALIFORNIA - STANDARD PRACTICES
Subject: 44.1 Intra-University Transactions
Exhibit: 44.1.a Memorandum Agreement
______________________________________________________________________________

MEMORANDUM AGREEMENT

(work performed by the Campus for the Laboratory)
  

THIS MEMORANDUM AGREEMENT (hereinafter called Agreement) is entered into by and between the University of California at [ Laboratory ] (hereinafter called Laboratory) and the University of California [ campus ] (hereinafter called Campus) for [ work/research ] authorized under Contract [ Prime Contract number ] between The Regents of the University of California (The Regents) and the United States Department of Energy (DOE).

The parties hereby acknowledge that intellectual property rights are governed as if the campus were a nonprofit subcontractor under the Prime Contract No. ____________

[ Name of individual ]

[ Name of Laboratory ]

[ Address of Laboratory ]

 

[ Name of individual ]

[ Name of Campus ]

[ Address of Campus ]

[ Name of individual(s) ]

 

AUTHORIZED: [ Name of Laboratory ]

By __________________________

Title _________________________ 

Date _________________________

 

ACCEPTED: [ Name of Campus

By __________________________ 

Title _________________________

Date _________________________


WORK FOR UC CAMPUSES BY UC NATIONAL LABORATORIES

GENERAL PROVISIONS - May 1998 

These General Provisions are for projects and services provided by the UC National Laboratories to UC Campuses under a Memorandum Agreement.

1. GOVERNING TERMS AND CONDITIONS
It is understood by the Parties that the Laboratory, on behalf of the Regents of the University of California (hereinafter called the "Regents") is obligated to comply with the terms and conditions of its M&O contract with the United States Government (hereinafter called the "Government") represented by the United States Department of Energy (hereinafter called the "Department" or "DOE") when providing goods, services, products, processes, materials, or information to the Campus under this Agreement. It is also understood by the Parties that the Campus, on behalf of the Regents, is obligated to comply with the terms and conditions of its external funding agreement(if any) that is providing the funds for this transaction. The parties will be responsible for resolving any inconsistencies between the prime Sponsor agreement and Laboratory's M&O contract prior to taking any action which would violate either party's governing agreement.


2. LEGAL NOTICE
The Parties agree that the following legal notice shall be affixed to each report furnished to the Campus under this Agreement and to any report resulting from this Agreement which may be distributed by the Campus:
This document may contain research results which are experimental in nature. Neither the United States Government, nor any agency thereof, nor The Regents of the University of California, nor any of their employees, makes any warranty, express or implied, or assumes any legal responsibility for the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed, or represents that its use would not infringe privately owned rights. Reference to any specific commercial product, process, or service by its trade name, trademark, manufacturer, or otherwise, does not constitute or imply an endorsement or recommendation by the United States Government or any agency thereof, or by The Regents of the University of California. The views and opinions of authors expressed herein do not necessarily state or reflect those of the United States Government or any agency thereof, or of The Regents of the University of California and shall not be used for advertising or product endorsement purposes.


3. GENERAL INDEMNITY( When the campus is providing material or equipment or sending its employees to the Laboratory as part of the Statement of Work, the following applies)
To the extent permitted by California law, the Regents agree to indemnify and hold harmless the Government, the Department, and persons acting on their behalf from all liability, including costs and expenses incurred, to any person, including the Campus, for injury to or death of persons or other living things or injury to or destruction of property arising out of the performance of the Agreement by the Government, the Department, the Laboratory, or persons acting on their behalf, or arising out of the use of the services performed, materials supplied, or information given hereunder by any person including the Campus. The foregoing waiver and indemnity shall not, however, be applicable to the extent such injury or damage results from Government, or Departmentís negligent or intentional acts or omissions.


4. PRODUCT LIABILITY INDEMNITY
To the extent permitted by California law, the Regents agrees to indemnify the Government for all damages, costs, and expenses, including attorney's fees, arising from personal injury or property damage occurring as a result of the making, using, or selling of a product, process, or service by or on behalf of the Regents, its assignees, or licensees, which was derived from the work performed under this Agreement. In respect to this Article, the Government shall not be considered an assignee or licensee of the Regents, as a result of reserved Government rights. The indemnity set forth in this paragraph shall apply only if the Regents shall have been informed as soon and as completely as practical by the Government of the action alleging such claim and shall have been given an opportunity, to the maximum extent afforded by applicable laws, rules, or regulations, to participate in and control its defense, and Government shall have provided all reasonably available information and reasonable assistance requested by the Regents. No settlement for which the Regents would be responsible shall be made without the Regentís consent unless required by final decree of a court of competent jurisdiction.


5. INTELLECTUAL PROPERTY INDEMNITY - LIMITED
To the extent permitted by California law, the Regents shall indemnify the Government and its officers, agents, and employees against liability, including costs, for infringement of any United States patent, copyright, or other intellectual property arising out of any acts required or directed by the Campus to be performed under this Agreement to the extent such acts are not already performed at the facility. Such indemnity shall not apply to a claimed infringement that is settled without the consent of the Campus unless required by a court of competent jurisdiction.


6. NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT
The Campus and the Laboratory, shall report promptly and in reasonable written detail to each other, each claim of patent or copyright infringement based on the performance of this Agreement of which any party has knowledge. The Laboratory shall report this to the Department and shall furnish to the Department, when requested by the Department, all evidence and information in the possession of the Campus or Laboratory pertaining to such claim.


7. PATENT RIGHTS
The Regents will comply with Clause 7.7, DEAR 970.5204-71, "Patent Rights -Nonprofit Management And Operating Contractors" of its prime contract.

8. RIGHTS IN TECHNICAL DATA - USE OF FACILITY
A. The following definitions shall be used.

(1) "Generated Information" means information produced in the performance of this Agreement.

(2) "Proprietary Information" means information which is developed at private expense, is marked as Proprietary Information, and embodies (1) trade secrets or (2) commercial or financial information which is privileged or confidential under the Freedom of Information Act (5 U.S.C. 552 (b)(4)).

(3) "Unlimited Rights" means the right to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so.

B. The Laboratory, Campus and the Government will have Unlimited Rights in all Generated Information, except for information that is disclosed in a Subject Invention disclosure being considered for patent protection.

C. The Government and Laboratory agree not to disclose properly marked Proprietary Information without written approval of the Campus, except to Government employees who are subject to the statutory provisions against disclosure of confidential information set forth in the Trade Secrets Act (18 U.S.C. 1905).

D. The terms and conditions of this article shall survive the Agreement, in the event that the Agreement is terminated before completion of the Statement of Work.


9. ASSIGNMENT
Neither this Agreement nor any interest therein or claim thereunder shall be assigned or transferred by either Party, except as authorized in writing by the other Party to this Agreement, provided, the Laboratory may transfer it to the Department, or its designee, with notice of such transfer to the Campus, and the Laboratory shall have no further responsibilities except for the confidentiality, use, and/or non-disclosure obligations of this Agreement.


10. SIMILAR OR IDENTICAL SERVICES
The Government and/or Laboratory shall have the right to perform similar or identical services in the Statement of Work (SOW) for other campuses as long as the Campusís Proprietary Information is not utilized.


11. EXPORT CONTROL
Each Party is responsible for its own compliance with laws and regulations governing export control.