ALL SECTIONS OF THIS MEMO RELATING TO LOS ALAMOS NATIONAL LABORATORY (LANL) OR LAWRENCE LIVERMORE NATIONAL LABORATORY (LLNL) ARE NO LONGER APPLICABLE.
University of California
Office of the President
Business and Finance
Research Administration Office
Memo
Operating Guidance
November 18, 1999
CONTRACT AND GRANT OFFICERS (CAMPUS AND LAB)*
Subject: UC DOE Laboratories -- Funds-In Agreements for Use by UC Campuses
This memo transmits the new Los Alamos National Laboratory (LANL) Funds-In Agreement and the revised Lawrence Berkeley and Lawrence Livermore National Laboratories (LBNL and LLNL) revised Memorandum Agreement for use by University campuses when requesting research or services from these UC DOE Laboratories. The LANL Funds-In Agreement (FIA) differs in several areas from the revised LBNL and LLNL Memorandum Agreement. In addition, this revised Memorandum Agreement replaced the previous version issued via Contract and Grant Memo 98-11 in December, 1998. (See C&G Memo 98-11, December 18, 1998.)
LANL Funds-In Agreement:
Unlike the Memorandum Agreement for campus use with LBNL and LLNL, the LANL Funds-In Agreement is a modification of the standard LANL FIA, with changes which recognize the relationship between the campuses and Laboratory as both being under The Regents. Some of the specific requirements that campuses should take note of are:
Section I. --
3. Estimated Performance Period allows the campus to provide an end date for performance since that is the general campus practice rather than only providing a number of months for performance.
10. This Agreement needs to be approved by the Department of Energy (DOE), Albuquerque Office.
Section II --
1. As with the LBNL and LLNL Memorandum Agreement, this Agreement is used to fund the broad scope of activities at the Laboratory as listed in this paragraph.
2. As with all Laboratory Funds-In Agreements, work cannot start until the Agreement is signed and the first advance payment is received.
APPENDIX A – Statement of Work
This Appendix is completed by the Laboratory Principal Investigator and Contract Administrator with the information needed in some sections provided by the campus.
The campus can provide information about any special considerations or restrictions related to the project or its budget in this section. Although the paragraph states it is not for "administrative matters", the Laboratory has stated that any special conditions can be set forth in this paragraph.
Los Alamos National Laboratory Participant/UC Campus Questionnaire
This form provides the Laboratory with contact names and other information related directly to each campus requested Funds-In Agreement. It will be sent to the campus Contract and Grant Officer on-line from the Laboratory.
Both this Funds-In Agreement and the Participant/UC Campus Questionnaire are available on-line on the OP Research
Administration website under this Operating Guidance Memo number. However, the Laboratory Contract Administrator
will send the campus Contract and Grant Officer an electronic version of both of these documents when it is contacted
by the campus about a potential award. Please be aware of the fact that about six weeks lead time is needed by
the Laboratory to complete and execute this document. The Laboratory Industrial Business Development Program Office
staff will complete as much of the Agreement as possible for the campus. The primary contact at LANL for these
agreements is Lucille Peralta at (505) 665-6711; email: lperalta@lanl.gov.
If Lucille is away, the other contact person is Kim Sherwood at (505) 665-1305. This Agreement has been reviewed
by DOE Albuquerque, LANL, and OP Counsel.
LBNL and LLNL Memorandum Agreement:
A few minor modifications have been made by DOE to this Agreement. They relate to the General Provisions General Indemnity Article 4. Under clause XI,. General Provisions in the Memorandum Agreement itself, the campus must check whether General Provision Article 4, General Indemnity is applicable or not. The guidance for the campus to make that determination is provided in clause XI.
Campuses initiate these Agreements for LBNL or LLNL, working with the Sponsored Projects Offices at those Laboratories. The primary contact for LBNL is Jeff Weiner (510) 486-7143 or for LLNL, Ed Bodily (925) 423-7474. Additional information about this Memorandum Agreement is provided in C&G Operating Guidance Memo 98-11.
Refer: Samuela A. Evans
(510) 987-9849
Samuela.evans@ucop.edu
Subject Index: 10
Organization Index: U-620
David F. Mears
Director, Research Administration
Enclosures
cc: Sandy Vinson, OP Lab Admin. (w/o enc.)
Ron Nelson, OP Lab Admin. "
Donna Smith, LANL "
Lucille Peralta, LANL "
Jeff Weiner, LBNL "
Ed Bodily, LLNL "
FUNDS-IN AGREEMENT
U.S. DEPARTMENT OF ENERGY (DOE)
Section I
1. UC CAMPUS NAME |
2. FUNDS-IN AGREEMENT NUMBER |
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| 3. ESTIMATED PERFORMANCE PERIOD (IN MONTHS OR END DATE) |
4. PROJECT TITLE/DESCRIPTION |
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5. FINANCIAL |
6. LOS ALAMOS NATIONAL LABORATORY |
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| a. Estimated Cost $ | a. Technical Representative: |
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[LANL Principal Investigator (PI) Name] |
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P. O. Box 1663, [PI's Group], [PI's MS] |
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| b. Incremental Funding Approved | "Yes" "No" |
Los Alamos, NM 87545 |
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| c. Amount Advanced This Action |
$ |
Telephone: (505) |
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Fax: (505) |
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See Attached Invoice for Advance Payment Instructions |
E-Mail: |
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9. AGREEMENT TERMS AND CONDITIONS |
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| This Agreement consists of this form with Terms and Conditions plus the following: | |||||||||
| a. Appendix A - Statement of Work | b. Other | ||||||||
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10. FOR UC CAMPUS
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U. S. DEPARTMENT OF ENERGY |
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Name: |
Name: Mr. David L. Katz |
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Title: |
Title:Branch Chief |
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Address: |
Address: Technology Partnership Branch Laboratory Programs Division Pennsylvania and H Street P. O. Box 5400 Albuquerque, NM 87185-5400 |
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Telephone: |
Fax: |
Telephone: (505) 845-5342 |
Fax: (505) 845-5754 |
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| Signature |
Date | Signature |
Date | ||||||
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TERMS AND CONDITIONS Section II |
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1. Parties to the Agreement. The Parties to this Agreement are the United States Government (the Government), as represented by the United States Department of Energy (DOE), and The Regents of the University of California (the University), acting through the University Campus identified above (the Campus). Under this Agreement services will be provided to the Campus by the University acting in its capacity as operator of the Los Alamos National Laboratory (the Laboratory). It is understood by the Parties to this Agreement that the Laboratory is obligated to comply with the terms and conditions of its Management and Operating (M&O) contract with the DOE when providing goods, services, products, processes, materials, or information to the Campus under this Agreement. |
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2. Term of the Agreement. This Agreement shall be effective as of the latter of (1) the date on which it is signed by the last of the Parties thereto, or (2) the date on which the Laboratory receives advance funding from the Campus, and shall continue for the estimated period stated in Section I.3. |
3. Costs. DOE has no obligation to continue or complete performance of the work at a cost in excess of its estimated cost stated in Section I.5, including any subsequent amendment. The DOE agrees to provide at least thirty (30) days notice to the Campus if it is anticipated that the actual cost to complete performance will exceed its estimated cost. Administration of this Agreement shall be governed by standards set forth in this Agreement and in DOE Contract No. W-7405-ENG-36 between the DOE and the University. |
[name of designated person and appropriate address] Advance payment shall be made by check to the Laboratory, payable to The Regents of the University of California, include the remittance invoice number, and be mailed to the address indicated on the invoice. 5. Source of Funds. If the Campus is receiving funding from another Government source, this Agreement does not serve to release the Campus from any obligations it has under the Agreement with the Government providing the funding. |
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6. Property. Equipment is defined as non-expendable, tangible, personal property which has an acquisition cost of $5,000 or more, is free-standing, and has a normal life expectancy of one year or more. Title to equipment shall remain with the University. All property under the $5,000 threshold shall vest with the Government. No Federal funds will be used to purchase property or equipment for this Agreement. Property or equipment produced or acquired as part of this Agreement will be accounted for and maintained during the term of this Agreement in the same manner as DOE property or equipment. Any property which becomes integrated into the Laboratory Facility becomes the property of the Government.
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8. Disclaimer. THE GOVERNMENT AND THE UNIVERSITY AT THE LABORATORY MAKE NO EXPRESS OR IMPLIED WARRANTY AS TO THE CONDITIONS OF THE RESEARCH OR ANY INTELLECTUAL PROPERTY, GENERATED INFORMATION, OR PRODUCT MADE, OR DEVELOPED UNDER THIS AGREEMENT, OR THE OWNERSHIP, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE RESEARCH OR RESULTING PRODUCT. THE GOVERNMENT SHALL NOT BE LIABLE FOR SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ATTRIBUTED TO SUCH RESEARCH OR RESULTING PRODUCT, INTELLECTUAL PROPERTY, GENERATED INFORMATION, OR PRODUCT MADE, OR DEVELOPED BY THE LABORATORY UNDER THIS AGREEMENT. |
9.a Product Liability Indemnity. To the extent permitted by California State law, the Campus hereby agrees to indemnify and hold harmless the Government, its officers, agents, and employees, from any and all liability, claims or damages, including attorney fees, and cost whatsoever, for injury to or death of persons, or damage to or destruction of property, as a result of or arising out of the making, using, or selling of a product, process, or service which was derived from the work performed under this Agreement by or on behalf of the Campus, its assignee or licensees, provided, however, that the Government shall not be considered an assignee or licensee of the University as a result of reserved Government rights. For licenses granted or assignments made by the Campus to any third party in Intellectual Property derived from Generated Information, such licenses must include the requirement that the third party will indemnify the Government and the University for all damages, costs and expenses, including attorneys’ 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 such third party, its assignees or licensees. |
9.b ;General Indemnity. To the extent permitted by California State law, the Campus hereby agrees to indemnify and hold harmless the Government, its officers, agents, and employees from any and all liability, claims or damages, including attorney fees and costs whatsoever, for injury to or death of persons, or damage to or destruction of property arising out of the performance of the work under this Agreement. The foregoing indemnity shall not, however, be applicable to the extent such injury or damage results from negligent acts or omissions of the Laboratory. |
10. Intellectual Property Indemnity – Limited. To the extent permitted by California State law, the Campus shall indemnify the Government and its officers, agents, and employees against liability, including attorney's fees and 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 by the Laboratory. 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. |
11. 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 they have knowledge. The Campus and the Laboratory shall report this to the DOE and shall furnish to the DOE, when requested, all evidence and information in the possession of the Campus or the Laboratory pertaining to such claim. |
14. 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 DOE, 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. |
15. Similar or Identical Services. The Government and/or the Laboratory shall have the right to perform services similar or identical to those set forth in the Statement of Work (SOW) for other parties, as long as Proprietary Information of the Campus is not utilized. |
16. Non Competition. The Campus represents that, to the best of the Campus’s knowledge, the Laboratory is not in competition with the domestic private sector with respect to the subject matter of this Agreement. |
17. Export Control. Each Party is responsible for its own compliance with laws and regulations governing export controls. |
18. Termination. Either Party, upon giving a thirty- (30) day written notice to the other Party may terminate performance of work under this Agreement at any time without liability. The DOE shall terminate this Agreement only when such termination is in the best interest of the Government, provided, however, that the DOE shall have the right to terminate if the Campus fails to advance the funds required by Article 4 within 90 days of the DOE's execution of this Agreement. In the event of termination, the Campus shall be responsible for the Laboratory's costs (including closeout costs), through the effective date of termination, but in no event shall the Campus cost responsibility exceed the total cost to the Campus as described in Section I. (5) Financial. |
19. Entire Agreement and Amendments to the Agreement. It is expressly understood and agreed that this Agreement with its Appendices contains the entire Agreement between the Parties. Any agreement to change any terms and conditions of this Agreement, or the Appendices, shall be valid only if the change is made in writing by mutual consent of the Parties, and the formal amendment executed by the authorized Contracting Officers at the DOE and Campus. |
OPTION FOR USE if it is determined by the University, and DOE that the Class Waiver IS NOT APPLICABLE to the work under this Agreement.
12. Patent Rights
A. Definitions.
1. "Invention" means any invention or discovery which is or may be patentable or otherwise protectable under Title 35 of the United States Code or any novel variety of plant that is or may be protectable under the Plant Variety Protection Action (7 U.S.C. 2321 et seq.).
2. "Campus Invention" means any invention, to the extent that the Campus is performing any work under this Agreement, of the Campus, conceived or first actually reduced to practice in the course of work under this Agreement.
3. "Patent Counsel" means the DOE Patent Counsel assisting the procuring activity, which has the administrative responsibility for the facility where the work under this Agreement is to be performed.
B. Laboratory Inventions.
The Government and the University shall have rights in any Invention conceived in the performance of work under this Agreement by employees of the University, at the Laboratory, in accordance with the provision of the Department of Energy’s (DOE) Management and Operating (M&O) contract with the University.
C. Campus’ Election to Retain Rights.
Subject to the provisions of 12.D.2 (Terms and Conditions of Waived Rights), with respect to any Campus Invention reported and elected in accordance with paragraph 12.E. (Invention Identification, Disclosures, and Reports) of this clause, the Campus may elect to obtain the entire right, title, and interest for the University in any patent application filed in any country on a Campus Invention, and in any resulting patent secured by the Campus. Where appropriate, the filing of patent application by the Campus is subject to DOE security regulations and requirements.
D. Rights of Campus and Government.
1. Assignment to the Government.
The Campus agrees to assign to the Government, or transfer to the control of the Laboratory for licensing, in accordance with the terms of the Laboratory's Management and Operating contract with the DOE, as requested by the Government, the entire right, title, and interest in any country to each Campus Invention where the Campus:
(a) does not elect pursuant to this article to retain such rights; or
(b) elects to obtain title to a Campus Invention pursuant to paragraph 12.C. (Campus’s Election to Retain Rights) but fails to have a patent application filed in that country on the Campus Invention, or decides not to continue prosecution, or not to pay any maintenance fees covering the invention; or
(c) elects to retain title to a Campus Invention but, at any time, no longer desires to retain title.
2. Terms and Conditions of Waived Rights.
(a) To preserve the Government’s residual rights to Campus Inventions, and in patent applications, and patents on Campus Inventions, the Campus shall take all actions in reporting, electing, filing on, prosecuting, and maintaining invention rights promptly, but in any event, in sufficient time to satisfy domestic and foreign statutory and regulatory time requirements, or, if the Campus decides not to take appropriate steps to protect the invention rights, it shall notify the Government in sufficient time to permit the Government to file, prosecute, and maintain patent applications, and any resulting patents prior to the end of such domestic or foreign statutory or regulatory time requirements.
(b) The Campus shall convey or ensure the conveyance of any executed instruments necessary
to vest in the Government the rights set forth in this article.
(c) With respect to any Campus Invention in which the Campus obtains title, the Campus hereby grants to the Government
a non-exclusive, nontransferable, irrevocable, paid-up license to practice or have practiced by or on behalf of
the United States, the Campus Invention throughout the world.
(d) The Campus shall provide the Government a copy of any patent applications filed on a Campus Invention within six (6) months after such application is filed, including its serial number and filing date.
(e) The Campus will coordinate all publications with the Laboratory to preserve the Government's residual rights in Campus and Laboratory Inventions.
(f) ;Preference for U.S. Industry.
Notwithstanding any other provision of this article, the Campus agrees that any products or processes embodying the Campus Invention for use or sale in the United States, shall be substantially manufactured in the United States, and that neither it, nor any assignee, will grant to any person the exclusive right to use or sell any Campus Invention in the United States, unless such person agrees that any products embodying the Campus Invention, or produced through the use of the Campus Invention, will be manufactured substantially in the United States. However, in individual cases, the requirement for such an agreement may be waived by DOE upon a showing by the Campus or its assignee that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United States, or that under the circumstances, domestic manufacture is not commercially feasible.
(g) March-in Rights.
The Campus agrees that with respect to any Campus Invention, the DOE shall retain the right to require the Campus to grant to a responsible applicant, a non-exclusive, partially exclusive, or exclusive license to use the Campus Invention in any field of use, on terms that are reasonable under the circumstances, or if the Campus fails to grant such a license, to grant the license itself. DOE may exercise this right only in exceptional circumstances and only if DOE determines that:
(1) the action is necessary to meet health or safety needs that are not reasonably satisfied by the Campus; or
(2) the action is necessary to meet the requirements for public use specified by Federal regulations, and such requirements are not reasonably satisfied by the Campus; or
(3) such action is necessary because a licensee of the exclusive right to use or sell any Subject Invention in the United States is in breach of this Agreement required by paragraph D.2.(f) (Preference for U.S. Industry).
(h) The Campus agrees to refund any amounts received as royalty charges on any Campus Invention in procurements by or on behalf of the Government, and to provide for that refund in any instrument transferring rights to any party in the invention.
(i) The Campus agrees to include, within the specification of any United States patent applications, and any patent issuing thereon covering a Campus Invention, the following statement. "The Government has rights in this invention pursuant to Funds-In-Agreement No: [DE-FI04-#]."
E. Invention Identification, Disclosures, and Reports.
2. The Laboratory shall report Laboratory Inventions it makes in accordance with the procedures set forth in the University Management and Operating Contract with DOE. In addition, the University shall disclose to the Campus, at the same time as disclosure to the Department, any Laboratory Inventions under this Agreement.
F. Limitation of Rights.
Nothing contained in this patent rights article shall be deemed to give the Government any rights with respect to any invention other than a Laboratory or Campus Invention, except as set forth in the Facilities License of paragraph 12.G.
G. Facilities License.
In addition to the rights of the Parties with respect to inventions or discoveries conceived or first actually reduced to practice in the course of or under this Agreement, the Campus agrees to, and does hereby grant to the Government, an irrevocable, non-exclusive, paid-up license in and to any inventions or discoveries regardless of when conceived or first actually reduced to practice, or acquired by the Campus, which at any time, through completion of this Agreement, are owned or controlled by the Campus, and are incorporated in a Laboratory Facility as a result of this Agreement, to such an extent that the Facility is not restored to the condition existing prior to this Agreement (1) to practice or to have practiced by or for the Government at the Facility, and (2) to transfer such license with the transfer of the Facility. The acceptance or exercise by the Government of the aforesaid rights and license shall not prevent the Government at any time from contesting the enforceability, validity, or scope of, or title to any rights or patents herein licensed.
H. Early Termination of Agreement.
The terms and conditions of this article shall survive this Agreement, even in the event that this Agreement is terminated before completion of the Statement of Work.
Los Alamos National Laboratory
Participant/UC Campus Questionnaire
The information collected in this questionnaire is necessary for Los Alamos National Laboratory (LANL) to meet government reporting requirements and to accurately complete the final original Funds-In Agreement contract. Please completely fill out this questionnaire.
1. UC Campus Information
2. Technical Contact
3. Contract Administrator Same as Technical Contact
4. Signature Authority Same as Technical Contact Same as Contract Administrator
Intellectual Property
Definition of Proprietary Information:
Information which embodies trade secrets developed at private expense and commercial or financial information which is privileged or confidential under the Freedom of Information Act 5 U.S.C.(b)(4) and which is marked as proprietary information.
| Documents may be supplied to the DOE. Please review all documents for information that you consider proprietary to your organization, and designate the specific information that is to be protected. Use any suitable designation. Note that LANL only considers information supplied by you, or developed as a result of information supplied by you, as proprietary; therefore you should limit these designations to proprietary information. |
Notices
I hereby represent that the above information may be relied upon for purposes of conducting the negotiation of the proposed Agreement.
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Signature
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Date |
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| Name (Print) |
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| (Dr., Mr., Ms., etc.) | (First Name) | (Middle Initial) | (Last Name) |
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APPENDIX A
Statement of Work
DE-FI04-[ ]
The Regents of the University of California at [Campus]
"Title"
I. Description of Services
1.0 Objective
This is the introduction and is intended to give a very brief overview of the specialty area and explain why this particular project is being pursued. The Objective should also state the overall requirement, the difficulties or deficiencies that do not allow the External Partner to meet the requirements, and the determinations which must be made to solve the problems.
2.0 Scope
This paragraph provides an overall picture of the desired work program in concise form. It may outline the various phases of the effort and tie down the overall limits of the project in terms of specific technical objectives, time, and any special provisions or limitations. This section should also describe, in a concise, specific statement, the end result desired or what the "product" of the effort should be.
3.0 Applicable Documents
This section is used to cite all applicable documents, specifications, reports, and other material, which have an impact on the project. The Campus should, by reading this listing, have a complete understanding of what it must be cognizant of in order to successfully complete the project.
4.0 Technical Tasks
This paragraph should define the work to be accomplished and indicate the main steps and actions, which are required of the Laboratory to perform properly. These main steps constitute the work phases (recommended approach). This paragraph gives known specific methods which could contribute to a solution, possible correlation with existing knowledge, operational and installation environments anticipated for the ultimate operational equipment, and cites such other factors (including all available foreign technology information) that would tend to assure that the Laboratory performs without reflecting an attitude that this is the only approach to the problem.
If the work encompasses several areas or lends itself to task division, this should be indicated. The essential procedures (e.g., theoretical analysis, design, fabrication, check out, tests, verification, formation of final recommendations, etc.), with limits on each, constitute the bulk of this paragraph. In some cases, the Campus may wish to indicate the percent of total effort each phase is to receive. Specify those considerations, which may guide the Laboratory in analysis, design or experimentation on the designated problem. These should include operational characteristics (if any) or other factors the Laboratory is expected to consider in performing under the Agreement. Definitions should also be included in this section.
When the burden of definition must be placed on the Laboratory, clearly impose the Requirement in a manner that is understood
Sample of Table Format Identifying Phases & Tasks:
4.0 Technical Tasks
Phase |
Task | Description | Start Month |
Duration (Months) |
| I | Title of Phase I (if Phase applicable) | |||
| 1 | Text for Task 1 | 1 | How long | |
| 2 | " " 2 | 2 | to | |
| II | Title of Phase II (if Phase applicable) | complete | ||
| 1 | " " 1 | 1 | each task | |
| 2 | " " 2 | 2 |
II. Reports, Data, and Other Deliverables
Contract data or reporting requirements should be indicated here. If deliverable hardware is required, it should also be listed in this paragraph as a separate entry.
III. Special Considerations
A paragraph outlining any special interrelationships between the Parties for use of Government property, for example, may be devised and added to the statement of work in this paragraph. Any other specific directions relative to technical work (not administrative matters) for the Laboratory to follow should be included here.
IV. Designated Signature Authorities/Representatives
The Regents of the University of California at [Campus] |
U.S. Department of Energy Albuquerque Operations Office |
| Attn.: [UC Campus Administrative Point of Contact] |
Attn.: Mr. David L. Katz Branch Chief |
|
Division Tel: () Fax: () |
Technology Partnership Branch Laboratory Programs Division Pennsylvania and H. Street, P.O. Box 5400 Albuquerque, NM 87185-5400 |
| Tel: (505) 845-5342 | |
| |
Fax: (505) 845-5754 |
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The Regents of the University of California Los Alamos National Laboratory Attn.: Ms. Lucille A. Peralta Industrial Business Development Office Los Alamos National Laboratory P.O. Box 1663, MS C334 Los Alamos, NM 87544 Tel: (505) 665-6711 Fax: (505) 665-6127 |
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MEMORANDUM AGREEMENT
(work performed by the Laboratory for the Campus)
Between the University of California, _________ Campus
and _________________ National Laboratory
This Memorandum Agreement (hereinafter called Agreement) is entered into by and between the University of California, [name of campus] (hereinafter called ["Campus" or "OP"]) and the ______________National Laboratory (hereinafter called Laboratory) both of which are governed by The Regents of the University of California for [a portion of the work originally awarded to Campus from prime Sponsor and agreement number or name of OP program or services].
The Regents of the University of California manage and operate the Laboratory for the U.S. Department of Energy and are obligated to comply with the terms and conditions of its Prime Contract No. _______________________ with the United States Government (hereinafter called "Government") represented by the United States Department of Energy (hereinafter called "Department" or "DOE") when providing goods, services, products, processes, materials, or information to the Campus under this Agreement.
The Parties mutually agree to the following terms and conditions:
I. SCOPE OF WORK
The research [or service] to be provided under this Agreement shall be in accordance with the Scope of Work and the Laboratory proposal entitled "_______," dated _______, incorporated herein by reference [or in accordance with the attached Exhibit A]. The Scope of Work may be modified by mutual agreement of the Parties to this Agreement.
II. PERIOD OF PERFORMANCE
This Agreement will be effective as of the latter date of (1) the date on which it is signed by the last of the Parties hereto, or (2) the date on which it is approved by DOE, if required, or (3) the receipt of the advance payment. Laboratory shall inform Campus of actual start date of Work. The end date shall be ___________________ [or _______ months after the effective date of this Agreement.]
Except as necessary to comply with any reporting and close-out procedures, Laboratory shall discontinue performance of work on the end date cited above unless Campus extends the period of performance by written notice to Laboratory, as agreed upon by both parties in accordance with Article VI, Amendments.
III. AMOUNT OF AWARD
A. Campus will reimburse Laboratory for actual work performed under this Agreement up to $________ . Campus has currently obligated $___________ as the maximum amount to be reimbursed to Laboratory.
B. No costs incurred prior to the start date of this Agreement as stated above in Article II are authorized.
C. Laboratory shall not incur costs and Campus shall not be obligated to make any payments under the Agreement in excess of the amount obligated in the absence of a written modification or notice from Campus authorized Contract Officer named in Article IX.
IV. FISCAL AND ADMINISTRATIVE STANDARDS
Allowable costs and administration shall be governed by standards set forth in Laboratory DOE Prime Contract No. __________ between the DOE and The Regents of University of California, this Agreement, and the _______________ (prime Sponsor or OP program name and guidelines), in that order of precedence.
V. INVOICING AND PAYMENT
A. The Campus shall provide sufficient funds in advance to reimburse the Laboratory for costs to be incurred in performance of the Scope of Work in this Agreement and the Laboratory shall have no obligation to performance of the Scope of Work in the absence of adequate advance funds. If the estimated period of performance exceeds 90 (ninety) days or the estimated cost exceeds $25,000, the Campus may, with Laboratory's approval, advance funds incrementally. In such a case, the Laboratory will initially invoice the Campus an amount sufficient to permit the work to proceed to 90 days and thereafter, invoice the Campus monthly so as to maintain approximately a 90-day period that is funded in advance. Payment will be made directly to the Laboratory. Upon termination or completion, any excess funds will be refunded by the Laboratory to the Campus.
B. Advance payment invoices and monthly invoices shall be prepared in accordance with Laboratory's standard practices.
C. Laboratory shall submit monthly invoices stating actual expenditures to
(Name of Campus Principal Investigator and appropriate address.)
D. Advance payment shall be made by check to The Regents of the University of California, include the remittance invoice number, and be mailed to the address indicated on the invoice.
E. Laboratory shall provide Campus with an invoice marked "Final Invoice," within sixty (60) days of the project end date or within sixty (60) days of the termination date, whichever comes first, notifying Campus that no further invoices and charges are forthcoming. Laboratory shall return any unused advanced funds.
VI. AMENDMENTS
All amendments or modifications to this Agreement shall be in writing signed by the authorized Contracts Officers in Article IX and shall be by mutual consent of the Parties.
VII. REPORTS
[Following clause is not applicable to Agreements for leases or services.]
Laboratory shall furnish Campus technical progress reports as required by the Campus Principal Investigator. A final technical report shall be submitted to Campus within sixty (60) days of the project end date or within sixty (60) days of the termination date, whichever comes first. Reports are to be submitted to:
(Name and address of Campus Principal Investigator )
VIII. TERMINATION
This Agreement may be terminated without cause by either party upon 30 days prior written notice to the other Party. Campus shall reimburse Laboratory for noncancellable obligations and allowable costs (including closeout costs) incurred to the effective date of termination.
IX. AUTHORIZED PERSONNEL
The following individuals are authorized to negotiate, modify, or terminate this Agreement:
(Laboratory Contract Officer)
(Campus Contract Officer)
The following individuals are authorized within the Scope of Work to provide technical direction or request supporting services for the Campus:
(Campus Principal Investigator)
Laboratory work shall be conducted by:
(Name of Laboratory Principal Investigator or person in charge of Work).
X. TITLE TO PROPERTY
Equipment is defined as non-expendable, tangible, personal property which has an acquisition cost of $1,500 or more, is free-standing, and has a normal life expectancy of two years or more. Title to purchased equipment shall remain with The Regents of the University of California. All property under the $1,500 threshold shall vest with the Government.
XI. GENERAL PROVISIONS
The document "Work for UC Campuses by UC National Laboratories General Provisions," dated ________, is incorporated herein by reference and is modified by the following:.
[Guidance: When it is determined that the Campus is providing material or equipment, or sending its employees to the Laboratory as part of the Scope of Work, or where the Campus has directed that specific activities not normally performed by the Laboratory be performed as part to of the Scope of Work, Article 4 "General Indemnity" shall apply to the project.]
General Provision Article 4, "General Indemnity":_____is _____is not applicable.
XII. SPECIAL PROVISIONS
[Any required special provisions not provided in the prime Sponsor's award cited in Article IV or special provisions required due to special arrangements between the Laboratory and UC Program are added here. Such provisions may include Publication Acknowledgments; Budget Restrictions; Rebudgeting Direct/Indirect Costs language, final withhold, additional intellectual property, etc. or None.]
XIII. ACKNOWLEDGMENT
The Parties to this Memorandum Agreement hereby acknowledge concurrence with the Scope of Work and other administrative matters herein.
AUTHORIZED: University of California, __________________________
By: _________________________________________________________
Title: ________________________________________________________
Date: ______________________________
ACCEPTED: _________________________________ National Laboratory
By: __________________________________________________________
Title: _________________________________________________________
Date: ______________________________
EXHIBIT E(ref.) 11/99
WORK FOR UC CAMPUSES BY UC NATIONAL LABORATORIES
GENERAL PROVISIONS - November 1999
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, and consult with DOE as needed, 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.
The Government makes no express or implied warranty as to the conditions of the research or any intellectual property, generated information, or product made or developed under this work for others agreement, or the ownership, merchantability, or fitness for a particular purpose of the research or resulting product; that the goods, services, materials, products, processes, information, or data to be furnished hereunder will accomplish intended results or are safe for any purpose including the intended purpose; or that any of the above will not interfere with privately owned rights of others. The Government shall not be liable for special, consequential, or incidental damages attributed to such research or resulting product, intellectual property, generated information, or product made or delivered under this work for others agreement.
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, and not directly resulting from the fault or negligence of the Government, the Department, the Laboratory or persons acting on their behalf.
5. 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 Regent's consent unless required by final decree of a court of competent jurisdiction.
6. 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.
7. 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.
8. 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.
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 provided by the Campus 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 Scope of Work.
10. 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.
11. SIMILAR OR IDENTICAL SERVICES
The Government and/or Laboratory shall have the right to perform similar or identical services in the Scope of Work (SOW) for other sponsors as long as the Campus's Proprietary Information is not utilized.
12. EXPORT CONTROL
Each Party is responsible for its own compliance with laws and regulations governing export control.