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HomeMy WebLinkAboutResolution - 3133 - Agreement - TTU, & HSCRF - Technical Reserch Programs, LP&L - 06_22_1989DGV:dw RESOLUTION Rpsplution # 3133 June 22 1989 Item #H WHEREAS, the City Council deems it to be in the best interest of the citizens of the City of Lubbock, Texas, to enter into a Research and Development Agreement with the Texas Tech University and Health Sciences Center Research Foundation; and WHEREAS, said Agreement will serve to benefit the citizens by improving the efficiency of Lubbock Power and Light through specific technical research programs as described in said Agreement; NOW THEREFORE: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for'and on behalf of the City of Lubbock a Research and Development Agreement with the Texas Tech University and Health Sciences Center Research Foundation, a nonprofit corporation, for technical research programs. A copy of said Agreement is attached hereto and made a part hereof for all purposes and shall be spread upon the minutes of the City Council of the City of Lubbock. Passed by the City Council this 22nd , City Secrdtary APP VED AS TO CONT NT: Carroll McDonald, Assistant City Manager of Utilities APPROVED AS TO FORM. �� g� &!A "- DoW d G. Vandiv'er,.First Assistant City Attorney day of June , 1989. B . �C . McM N , MAYOR 1 RESEARCH AND DEVELOPMENT AGREEMENT THIS.AGREEMENT, effective this day of , 1989, by and between the_C1ty of Lubbock, acting through Lubbock Power and Light (hereinafter referred to as "LP8L") and Texas Tech University and Health Sciences Center Research Foundation (hereinafter referred to as the "Research Foundation"). WITNESSETH: WHEREAS, the research and development program contemplated by this Agreement is of mutual interest and benefit to LP8L and to the Research Foundation, will further the instructional and research objectives of the Research Foundation in a manner consistent with its status as a non-profit, tax-exempt institution, and may derive benefits for both LP8L and the Research Foundation through inventions, improvements, and/or discoveries; WHEREAS, LP8L and the Research Foundation are both not -for -profit organizations, and all funds covered by this Agreement shall be expended directly on the research efforts discussed herein; NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, the parties hereto agree to the following: ARTICLE 1 - DEFINITIONS ----------------------- As used herein, the following terms shall have the following meanings: 1.1 "Program" shall mean the description of the overall program or _combination of tasks, as described in Appendix A hereof, under the direction of Ernst W. Kiesling, Ph.D., or his designee as Program Manager. 1.2 "Task" or "project" shall mean any of a series of specific research requirements as specified by LP8L. in this Agreement, the terms "task" and "project" are used interchangeably. Combined, all Tasks so specified shall comprise the Program. All Tasks, once identified by LP8L, shall be incorporated into this Agreement, and included herewith as Appendix A. 1.3 A "Project Director" or "Task Director" shall be named for each task. Responsibilities of the person so named include fulfilling the terms of the Task requirements as outlined in the Task description. The Program Manager may act as Task Director. 1.4 "Program Contract Period" is January 15, 1989, through September 30, 1990, regardless of the date signed. 1.5 "Task Performance Period" shall be stipulated on a Task by Task basis and included in Appendix A. 1.6 "Intellectual Property" shall mean individually and collect- ively all inventions, improvements and/or discoveries which are conceived and/or made (1) by one or more employees of the Research Foundation, or (ii) by one or more employees of LP&L working jointly with Research Founda- tion personnel In the performance of the Program. 1.7 "Task Funds" shall be defined as all costs of performing a Task covered by this Program. Task funds shall ordinarily be provided by LP&L, but additional Task Funds may, under certain circumstances, be provided by the Research Foundation. Examples of Task Funds include, but are not limited to, salaries and wages, fringe benefits, research supplies, recovery of indirect costs, and the costs associated with the application, filing, prosecution, and maintenance of a patent or other Intellectual Property protection. 1.8 The "Distribution Formula" is the arithmetic means by which an equitable distribution of benefits derived from Intellectual Property shall be accomplished, pursuant to Paragraph 7.3. The Distribution Formula Is defined below: X = Task'Funds Provided by LP&L Y = Task Funds Provided by the Research Foundation X LP&L's Share of Benefits------- 2 (X+Y) Research Foundation's K Share of Benefits 1 -------- 2 (K+Y) ARTICLE 2 - RESEARCH WORK 2.1 The Research Foundation shall commence the performance of a Task promptly upon written notification from LP&L, and shall use reason- able efforts to perform such Task substantially In accordance with the terms and conditions of this Agreement. LP&L and the Research Foundation may at any time amend a Task or the Program by mutual written agreement. 2.2 Should LP&L find it necessary to discontinue a Task or the Program, or in the event that the Task Director and/or Program Manager becomes unable or unwilling to continue a Task or the Program, and a mutually acceptable substitute is not available, the Research Foundation and/or LP&L shall have the option to terminate either a Task or the Program or both, pursuant to the terms In Article 9 below. 2 ARTICLE 3 - REPORTS AND CONFERENCES ----------------------------------- 3.1 Written program reports shall be provided by the Research Foundation to LP&L,on a Task by Task basis. A final -report for.,each Task shall be submitted by the Research Foundation within thirty (30) days of the conclusion of each Task Performance Period, or upon early termination of this Agreement. 3.2 During the term of this Agreement, representatives of the Research Foundation will meet with representatives of LP&L at times and places mutually agreed upon to discuss the progress and results, as well as ongoing plans, or changes therein, of the Tasks and the Program to be per- formed hereunder. ARTICLE 4 - COSTS, BILLINGS, AND OTHER SUPPORT ---------------------------------------------- 4.1 It is agreed to and understood by the parties hereto that, subject to Article 2, total costs to LP&L hereunder shall not exceed the sum of One Hundred Thousand Dollars ($100,000). Further, the sum of Fifty Thousand Dollars ($50,000) shall not be exceeded during either of the twelve month periods ending September 30, 1989, or September 30, 1990. A firm fixed price shall be assigned to each Task, and payments shall be made by LP&L according to the schedule established In the description of each Task. In the absence of a specified payment schedule, the.Research Foundation will bill LP&L on a quarterly basis. 4.2 As stated in Article 2, LP&L will commit to each Task indi- vidually in writing and will be responsible only for Tasks so authorized. Tasks will be authorized only upon proper appropriation of funds by the City of Lubbock. LP&L will not be responsible for any unauthorized Tasks. Further, the Research Foundation will commit to each Task individually and will assume liability for performance of only those Tasks so authorized. 4.3 In the conduct of a Task, should the Research Foundation make use of equipment or facilities owned by LP&L, then the terms and conditions of such use shall be specified and attached to the corresponding Task specification included In Appendix A. When .special equipment must be purchased to complete a Task and such purchase affects the cost of the Task to LP&L, then the distribution of costs and the disposition or ownership of the special equipment shall_be specified in the Task specification. 4.4 Anything herein to the contrary notwithstanding, in the event of early termination of this Agreement by LP&L pursuant to Article 9 hereof, LP&L shall pay all costs accrued by the Research Foundation as of the date of termination, including non -cancellable obligations, which shall include all non -cancellable contracts and fellowships or postdoctoral associate appointments called for In Appendix A, incurred prior to the effective date of termination. The Research Foundation shall provide cost data pertaining to each Task in such a way that LP&L can readily determine the extent of 3 such obligations noted in this paragraph. This data must be provided to LP&L prior to LPBL authorizing any task. LP&L will not be obligated for more than is outlined in the Task budgets. After termination, any obliga- tion of LPBL for fellowships or postdoctoral associates shall end no later than the end of the Research Foundation's fiscal year (August 31) following termination. ARTICLE 5 - PUBLICITY 5.1 LP&L will not use the name of the Research Foundation, nor of any member of the Research Foundation's Project staff, in any publicity, advertising, or news release without the prior written approval of an authorized representative of the Research Foundation. The Research Foundation will not use the name of LP&L, nor any employee of LP&L, in any publicity without the prior written approval of LP&L. ARTICLE 6 - PUBLICATIONS ------------------------ 6.1 LP&L recognizes that under Research Foundation policy, the results of sponsored projects are normally publishable and agrees that researchers engaged in the Program shall be permitted to present at symposia, national or regional professional meetings, and to publish in journals, theses or disserations, or otherwise of their own choosing, methods and results of the Program, provided, however, that LP&L shall have been furnished copies of any proposed publication or presentation at least one (1) month in advance of the submission of such proposed publication or presentation to a Journal, editor, or other third party. LP&L shall have one (1) month, after receipt of said copies, to object to such proposed presentation or proposed publication because there is patent- able or proprietary subject matter which needs protection. In the event that LP&L makes such objection, said Researcher(s) shall refrain from making such publication or presentation for a maximum of twelve (12) months from date of receipt of such objection. This twelve (12) month time period will allow the Research Foundation, either acting on its own initiative or upon receiving directions from LP&L, to file patent application(s) with the United States Patent and Trademark Office and/or foreign patent office(s) directed to the patentable subject matter contained in the proposed publica- tion or presentation. The provisions of Article 7 shall govern distribution of filing costs and the ownership and distribution of rights to Intellectual Property. ARTICLE 7 - INTELLECTUAL PROPERTY --------------------------------- 7.1 The purpose of this article is to provide for equitable distribution of the costs and income to,be derived from Intellectual 4 Property, including but not limited to inventions, improvements, and/or discoveries, whether patentable or not. The intent is to achieve fairness and equity between LPBL and the Research Foundation, while encouraging a spirit of cooperation among employees of both organizations, and creating a stimulating environment that fosters initiative and creativity among all those involved in a Task under this Agreement. 7.2 When it can be mutually agreed upon that employees of the Research Foundation or employees of LPBL developed Intellectual Property entirely on their own, without help or assistance from those in the other organization, then all rights to such Intellectual Property shall remain with the employer of the person(s) developing such property. However, the party claiming ownership shall grant to the other party non-exclusive, royalty -free rights to the property. 7.3 Employees of LPBL and the Research Foundation shall, within ten (10) working days, notify the other organization of any Intellectual Property which might be patentable or copyrightable. Notification shall also be given when information of possible proprietary interest is dis- covered. Except when exclusivity as discussed in Article 7.2 exists,, owner- ship of Intellectual Property shall ordinarily reside with the Research Foundation, while LPBL shall ordinarily recognize the potential value of the Intellectual Property. Should the parties agree that both organizations have contributed to the evolution of the Intellectual Property, then the parties shall negotiate the distribution of the costs associated with the application, filing, prosecution, and maintenance of a patent or other Intellectual Property protection. The benefits derived from such Intellect- ual Property shall be distributed using the "Distribution Formula" defined In Paragraph 1.8. The distribution of benefits shall also pertain to Intellectual Property developed after a Task Performance Period, if the nature and scope of the Task led to the subsequent development of the Intellectual Property. 7.4 if LPBL elects not to exercise its option to participate in a patent application pursuant to Article 7.3 above, the Research Foundation shall be free to, at its sole expense, file or continue prosecution or maintain any such application(s), and to maintain any protection issuing thereon in the U.S. and in any foreign country. ARTICLE 8 - GRANT OF RIGHTS --------------------------- 8.1 Pursuant to Article 7, the Research Foundation grants LPBL the first option, at LPBL's sole selection, for either a non-exclusive, royalty -free license or, for consideration, an exclusive license with a right to sublicense on terms and conditions to be mutually agreed upon. The option for an exclusive license shall extend for a time period of twelve (12) months from the date of -termination of the Agreement. LPBL shall have a continuous option for a non-exclusive, royalty -free license. LPBL shall also be granted a non-exclusive,.royalty-free license on all modifications and/or, improvements to Intellectual,Property as they occur. 5 ARTICLE 9 - TERM AND TERMINATION -------------------------------- 9.1 This Agreement shall become effective upon the date first hereinabove written and shall continue in effect for the full duration of the Contract Period unless sooner terminated in accordance with the provisions of this Article. The parties hereto may, however, extend the term of this Agreement for additional periods as desired under mutually agreeable terms and conditions which the parties reduce to writing and sign. Either party may terminate this agreement upon ninety (90) days prior written notice to the other. 9.2 In the event that either party hereto shall commit any breach of or default in any of the terms or conditions of this Agreement, and also shall fail to remedy such default or breach within ninety (90) days after receipt of written notice thereof from the other party hereto, the party giving notice may, at its option and in addition to any other remedies which It may have at law or in equity, terminate this Agreement by sending notice of termination in writing to the other party to such effect, and such termi- nation shall be effective as of the date of the receipt of such notice. In the event of termination of the Agreement, Article 7 regarding Intellectual Property shall remain in effect for any Intellectual Property rights filed for as a result of work performed while the Agreement was in effect. Article 7 shall also remain in effect for any Intellectual Proprerty which may be developed as a result of a Task authorized by LP&L. 9.3 Subject to Article 8, termination of this Agreement by either party for any reason shall not affect the rights and obligations of the parties accrued prior to the effective date of termination of this Agreement. No termination of this Agreement, however effectuated, shall affect LP&L's rights and duties under Article 7 hereof, or release the parties hereto from their rights and obligations under Articles 4, 5, 6, 7, 8, and 10. ARTICLE 10 - INDEPENDENT CONTRACTOR ----------------------------------- 10.1 In the performance of all services hereunder: 10.1.1 The Research Foundation shall be deemed to be and shall be an independent contractor and, as such, the Research Foundation shall not be entitled to any benefits applicable to the employees of LP&L. 10.1.2 Neither party is authorized or empowered to act as agent for the other for any purpose and shall not on behalf of the other enter into any contract, warranty, or representation as to any matter. Neither shall be bound by the acts or conduct of the other. 6 ARTICLE 11 - INSURANCE 11.1 The Research Foundation warrants and represents that the Research Foundation has workers compensation insurance, such protection being applicable to employees and agents while acting within the scope of their employment by the.Research Foundation, -and the Research Foundation has no liability Insurance policy as such that can extend protection to any other person. 11.2 Each party hereby assumes any and all risks of personal injury and property damage attributable to the negligent acts or omissions of that party and the officers, employees, and agents thereof. ARTICLE 12 - GOVERNING LAW -------------------------- 12.1 This Agreement shall be governed and construed In accordance with the laws of the State of Texas. ARTICLE 13 - ASSIGNMENT ----------------------- 13.1 This Agreement shall not be assigned by either party without the prior written consent of the parties hereto. ARTICLE 14 - AGREEMENT MODIFICATION ----------------------------------- 14.1 Any agreement to change the terms of this Agreement in any way shall be valid only if the change is made in writing and approved by mutual agreement of authorized representatives of the parties hereto. ARTICLE 15 - NOTICES -------------------- 15.1 Notices, invoices, communications, and payments hereunder shall be deemed made if given by U.S. mail, postage prepaid, and addressed to the party to receive such notice, invoice, or communication at the address given below, or such other address as may hereafter be designated by notice in writing: 7 If to LPBL: TOM BUCHANAN LUBBOCK POWER & LIGHT CITY OF LUBBOCK P.O. BOX 2000 LUBBOCK, TEXAS 79457 If to the Research Foundation: SCOTT BADGETT TEXAS TECH RESEARCH FOUNDATION OFFICE OF DEVELOPMENT P.O. BOX 4650 LUBBOCK, TEXAS 79409-1081 If Technical Matter: ERNST W. KIESLING, PH.D. DIRECTOR, CENTER FOR ADVANCED RESEARCH AND ENGINEERING P.O. BOX 4200 LUBBOCK, TEXAS 79409-3103 IN WITNESS WHEREOF, the parties have caused these presents to be executed in duplicate as of the day and year first above written. The City of Lubbock By: B. C. McMinn Title: Mayor. Date: to-ao2-9 T: Rane to Boyd, City Secreta APPROVED AS'TO CONTENT: Carroll McDonald, Assistant City Manager of Utilities AP VED AS FORM: b-�D ald G. Vandiver, st Assistant City Attorney 0 Texas Tech University and Health Sciences Center Research Foundation By: Jens Hansen t /./ T le: Vick Chairman Date: � APPENDIX A TASK SPECIFICATIONS --------------------------------------- Task #1: Building Energy Use in Lubbock --------------------------------------- Task Director: -------------- John P. Craig, Ph.D. Electrical Engineering Texas Tech University Task Performance Period: ------------------------ January 15, 1989 to August 31, 1989 Use of Equipment or Facilities Owned by LP&L: --------------------------------------------- None Firm Fixed Price: ----------------- $14,000.00 Statement of Work: ------------------ The objective of this task is to develop a user-friendly computer program that calculates energy use for various types of buildings and residences in the Lubbock climate. To achieve good accuracy, the input data must be carefully selected. A special input section will be included in order for an operator with little training In computer usage and/or energy calculation to use the program. The user will be led through the data entry one question at a time. The responses to individual questions may be quantitative, e.g., a wall length or height, or they may be chosen from a menu containing a variety of choices. For example, the operator may be asked whether the building is residential or commercial, or he/she may be asked to select one of several types of wall construction. The operator will not have to supply detailed weather data. However, since the weather does vary from year to year, and does affect the building energy use, the operator can select from choices of mild, medium or severe winters 9 It and summers. Additionally, the operator must specify whether the air conditioning 1s refrigeration or evaporative, and whether the heating Is all electric, resistive or heat pumps, gas, or some combination thereof. in the case of commercial buildings, some information concern- ing the building use and any special energy consuming equipment must be supplied. The output section of the program will provide cost as well as quantity of energy usage. This means that energy cost rates must be supplied In the input section of the program. The program can be rerun for different combinations of mild, medium and severe winters and summers to see how much the energy use and costs may vary from year to year. The program will be designed to run on an inexpensive MS-DOS portable IBM compatible PC. A hard disk may be desirable, but will not be required. Verification of the program's accuracy will be obtained by applying It to several different buildings whose energy use histories are known. 10 V • ------------------------------------------------- Task #2: Heat Exchanger Tube Replacement Schedule ------------------------------------------------- Task Director: -------------- Ernesto Fischer, Ph.D. Chemical Engineering Texas Tech University Task Performance Period: ------------------------ January 15, 1989 to August 31, 1989 Use of Equipment or Facilities Owned by LPBL: --------------------------------------------- None Firm Fixed Price: ----------------- $21,000.00 Statement of Work: ------------------ The objective of this research is to determine the optimal bundle replacement schedule for the heat exchangers at LP&L. As a result of this project, a maximum tube covering percentage will be determined from the operational and economic factors that govern this particular power cycle. The first task will be to determine the operational parameters for the system, e.g.: - Actual physical dimensions of the bundle; - Historical operational data, to obtain Heat transfer correlation applicable Fouling coefficient variation with use - Operational constraints Maximum flow rates Maximum heat loads Economical parameters Cost of bundle replacement Other costs, e.g., maintenance, pumping, water treatment