January 10, 1989
National Aeronautics and
Reply to Attention of: CP
Mr. Richard A. Anthes
University Corporation for Atmospheric Research
1850 Table Mesa Drive
Boulder, CO 80303
Dear Mr. Anthes:
Enclosed please find an original signed copy of the Memorandum of Agreement Between the University Corporation for Atmospheric Research (UCAR) and the National Aeronautics and Space Administration (NASA) for UCAR’s Suborbital Use of Shuttle External Tanks (ET), which you signed in my office on December 13, 1988. I am pleased that you were able to be in Washington, DC, for the signing, which also gave me the opportunity to meet you, NASA and the Office of Commercial Programs looks forward to assisting you in your development of suborbital use of Shuttle ET’s for intertank experiments.
James T. Rose
for Commercial Programs
AGREEMENT NO. 1560-001
MEMORANDUM OF AGREEMENT BETWEEN
THE UNIVERSITY CORPORATION FOR ATMOSPHERIC RESEARCH (UCRR)
AND THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) FOR UCAR’S SUBORBITAL USE OF SHUTTLE EXTERNAL TANKS
Section 102(c) of the National Aeronautics and Space Act of 1958 directs NASA to seek and encourage, to the maximum extent possible, the fullest commercial use of space. Consistent with this Act, in September 1987, NASA and UCAR entered into a Memorandum of Understanding (MOU) through which the parties agreed to cooperate in exploring the concept of utilizing Space Shuttle external tanks (ET) for scientific and commercial purposes. The MOU did not grant UCAR the right to use or take title to any ET’s. During the implementation of the MOU, UCAR became interested in conducting scientific research in the unpressurized 5,000 cubic feet intertank volume of jettisoned ET’s during suborbital trajectories.
In a February 1988 “Space Policy and Commercial Space Initiative to Begin the Next Century” announcement, President Reagan stated that expended ET’s would be made available for 5 years ” . . . to all feasible U.S. commercial and non-profit endeavors, for uses such as research, storage, or manufacturing in space.” UCAR, through the UCAR Foundation and the External Tanks Corporation, is proceeding with a program to develop and use ET’s for scientific, commercial, and industrial activities in space. The initial phase of this program commences with suborbital utilization of the ET intertank.
This Memorandum of Agreement (MOA) sets out the terms and conditions under which NASA will provide certain support to UCAR for the initial phase of its program. No NASA funds will pass to UCAR under the MOA, nor will UCAR pay NASA any monies except to reimburse the agency for the direct costs which NASA incurs in meeting its obligation under this MOA. For the purpose of this Agreement only, direct costs are those specific charges identifiable to or resulting from any UCAR request, including utility costs. Where regular labor is chargeable, a factor for leave and fringe benefits will be applied.
Article I: Genaral
A. To assist UCAR in developing its suborbital use of the ET for intertank experiments, NASA agrees to make available to UCAR intertank space on up to five designated ET’s, subject to NASA requirements and constraints. The suborbital intertank experiments conducted by UCAR shall not require operational or programmatic changes in Shuttle operations.
B. This MOA does not obligate NASA to provide UCAR with ET’s for orbital use, nor to continue participation with UCAR beyond the terms of this MOA.
C. All services and technical assistance to be furnished by NASA to UCAR shall be furnished by NASA using its best efforts without interfering with other NASA activities. NASA does not warrant nor guarantee the technical or financial success of any UCAR experiments.
D. In order to provide for timely implementation of work under the MOA, NASA and UCAR each will appoint Project Managers who will exchange technical, programmatic, and other needed information. Project Managers may call upon other individuals from their respective organizations, including contractors and consultants, to participate as necessary and appropriate. UCAR will be responsible for all direct costs NASA incurs in this participation, 4ncluding analysis and testing needed to establish the technical feasibility of the proposed experiments. Payment will be according to ARTICLE III below. Either party may replace its Project Manager by informing the other party in writing of such action. The following individuals are designated as Project Managers:
– UCAR Project Manager – Dr. Randolph Ware, Director, Space Phoenix Program, UCAR Foundation, P.O Box 3000, Boulder, Colorado 80302
– NASA Project Manager – Mr. John Butler, Payload and Orbital Systems Office, NASA George C. Marshall Space Flight Center, Huntsville, Alabama 35812
At NASA Headquarters, the Program Coordinator far this Agreement is Robert L. Tucker, Office of Space Flight, or designee. The Program Coordinator will be responsible for coordinating all financial and policy matters related to this Agreement.
E. Within 180 days of the signing of this document, the NASA and UCAR Project Managers shall establish a Technical Implementation Plan (TIP) which will detail the tasks to be performed by the respective parties. Implementation of TIP will lead to a further agreement between parties for the provision of launch and associated services, under separate terms, conditions, and financial arrangements, for UCAR’s ET intertank experiments.
F. TIP shall also include a projected timetable for implementation of UCAR’s suborbital utilization program with specific milestones, one of which will be a date by which an agreement or agreements for launch and associated services will be executed. Failure of UCAR to meet these milestones will constitute a breach of the Agreement, allowing termination or renegotiation of the Agreement. If NASA elects to terminate, due to UCAR’s failure to meet an established milestone, it shall exercise this option only after written notice to UCAR. If, due to UCAR’s failure to meet an established milestone, NASA terminates, NASA shall have the right to use whatever UCAR hardware, device, software, or data that had been developed under this MOA to complete and carry out the experiment, subject to NASA reimbursing UCAR for such hardware, device, software, or data.
G. Upon a request that reasonably describes the information sought, NASA will make available to UCAR publicly available ET designs, software, procedures, and other appropriate information needed by UCAR as it relates to the use of the ET’s intertank for scientific, commercial, and industrial activities in space.
H. The NASA services and technical assistance to he provided under this MOA will be primarily associated with (1) defining NASA requirements and constraints, (2) assessing technical feasibility of UCAR proposed experiments within the ET intertank, and (3) the preparation of TIP for the overall NASA/UCAR integration effort (including an integrated milestone schedule of UCAR and NASA activities necessary to support UCAR’s suborbital intertank experiments). Once a particular experiment is selected by UCAR and agreed to by NASA, a separate agreement for launch and associated services is required as stated in ARTICLE I, paragraph E. This separate agreement will be between UCAR and NASA Headquarters, unless otherwise agreed.
I. Upon the request of UCAR, NASA from time to time may make certain items of NASA or NASA-controlled equipment, facilities, or NASA services available for use by UCAR, its contractors, and subcontractors in support of UCAR’s intertank experiments. The provision of such equipment, facilities, or services and the specific terms and conditions of such provision, including terms of reimbursement, shall be as mutually agreed upon by NASA and UCAR, under amendments to this Agreement or separate agreements as appropriate.
J. UCAR will insure that its experiments comply with all applicable NASA requirements and specifications, except where UCAR may have requested and NASA may have granted deviations, UCAR will provide to NASA adequate documentation at required milestones for NASA’s verification of compliance.
K. This MOA, or any rights established thereunder, shall not be assigned by UCAR without the prior written consent of NASA, which consent shall not be unreasonably withheld.
Article II: NASA Rights
A. NASA shall have the right to delay, defer, postpone the use of, or destroy an ET for an intertank experiment if such action is deemed appropriate.
B. NASA shall have the right to approve or disapprove experiments proposed for use on ET’s, whether or not modifications to ET’s are required. This includes the right of verification of documentation and inspection/testing of hardware/software.
C. NASA shall, in its own discretion, have the unilateral right to approve (1) any modifications to the Space Shuttle system requested or required under this Agreement, and (2) the installation of UCAR or UCAR-required equipment into the Space Shuttle system,
D. Nothing in this MOA in any way precludes NASA or any other Federal Government entity from utilizing ET’s designated for UCAR intertank experiment for the government’s own purpose(s). Also, nothing in this MOA precludes NASA from entering into agreements with other nongovernment entities as long as those agreements are consistent with the terms set out in ARTICLE X.
Article III: Payment for Provision of Services and Technical Assistance
A. An initial payment of $100,000 for reimbursement of NASA’s services furnished under this Agreement will be required at the time this MOA is signed.
B. Prompt payment is required under this MOA. While UCAR may request, and NASA may agree, to the provision of NASA or NASA-controlled services and technical assistance under this MOA, no NASA or NASA-controlled services or technical assistance will be provided to UCAR until all of the following occur;
1. A written description of the service(s) or technical assistance is prepared;
2. A phased estimate of the cost is available and is included in Attachment A;
3. The Project Managers have agreed to and signed the description of service(s)/assistance including the cost estimate referred to in sub-paragraph B.2 of this ARTICLE;
4. UCAR has on deposit with NASA sufficient funds to cover the estimated cost of the services/assistance for a minimum of 6 months; and
5. In the event that the UCAR deposit is, at any time, insufficient to cover the requested NASA-provided or NASA-controlled support, UCAR will increase its deposit, as required by a special NASA billing, before additional work will continue.
C. Except for the initial payment and instances where funds on deposit are insufficient to cover NASA costs, all advanced payments will be due on the established payment due dates shown on the progress payment schedule in Attachment A. UCAR will be billed approximately 60 days in advance of the payment due dates in Attachment A based on estimates of the costs to be incurred during the 6 months subsequent to the payment due date. These estimates will be available to the Project Managers in accordance with subparagraph 6.3 of this ARTICLE.
D. If UCAR fails to make a payment by the payment due date, NASA may terminate this Agreement for UCAR’s breach of this Agreement. Although payment must be rendered according to the terms of billing, a disagreement over the amount or other aspects of a particular billing notice is subject to the DISPUTES resolution procedure outlined in ARTICLE IX: DISPUTES.
E. Expenditures incurred hereunder by NASA will be recorded by NASA following NASA’s normal accounting practices. A final billing statement and final bill will be issued for all related support provided to UCAR under this MOA, This bill will identify any additional payment required or refund due and provide reconciliation of costs incurred to payments received.
F, If, as the result of a final billing, a refund is due UCAR, NASA will make such refund in the amount of the overpayment within 60 days after the date of the final billing. If, as a result of final billing, an additional payment from UCAR is required, such payment shall be due 60 days after the billing date of the final billing.
G All payments defined in this MOA shall be (1) in United States dollars, (2) payable to the National Aeronautics and Space Administration, (3) sent to the Director, Financial Management Division (Code BF), NASA Headquarters, Washington, DC 20546, and (4) received at NASA Headquarters by the first United States Government working day which is also a day on which commercial banks are open for business in both New York, New York, and Washington, DC, in the month in which such payments are scheduled, unless otherwise explicitly stated herein, or directed or agreed to by NASA in writing. As an alternative to sending payments to NASA as specified in (3) above, UCAR may elect payment by wire transfer to the United States Treasury FEDWIRE Deposit System in accordance with instructions available upon written request to the Director, financial Management Division. All payments toward and other communications regarding this Agreement shall reference the title and date of this Agreement.
Article IV: Safety
UCAR, its contractors or subcontractors, will comply with all requirements and regulations applicable to users and/or activities on government-owned, NASA-controlled property or in using government-owned, NASA-controlled services. UCAR agrees that NASA shall have the authority to require that any UCAR activity which NASA determines poses a hazard to property or personnel be promptly ended or corrected by UCAR. Unless specifically agreed to in advance, NASA property and equipment will be only operated by NASA personnel, including NASA contractor or subcontractor personnel.
Article V: Liability
In consideration for the access to NASA-controlled facilities and services, including ET intertank space, provided under this Agreement, UCAR waives and agrees not to make any claims against NASA, its contractors or subcontractors, for any damages arising as a result of activities under this Agreement, unless such damage is caused by the willful misconduct of NASA or its contractors or subcontractors.
In addition, UCAR agrees to indemnify and hold NASA or NASA contractors or subcontractors harmless from any claim, judgment, or cost arising from the injury to or death of any third party, or for damage to or loss of ‘any property, whether caused by NASA or UCAR or their contractors or subcontractors, as a result of activities under this Agreement, unless such damage results from the willful misconduct of NASA or its contractors or subcontractors.
Article VI: Patent and Data Rights
A. Data furnished to NASA by UCAR pursuant to paragraph C. below shall be furnished with unlimited rights (the right to use, reproduce, disclose in any manner, and for any purpose whatsoever) and without restrictive legend. Recognizing that the requirements for and the need for protection of data may change, NASA and UCAR may from time to time, upon mutual agreement, change the listing of data furnished pursuant to paragraph C, below.
B. NASA will use its best efforts to assure that all other data required to be furnished by UCAR, or in fact furnished under this MOA by UCAR, will be used, reproduced, and disclosed by the United States Government only far the purpose of carrying out its responsibilities under this MOA. In the event that such other data qualifies as confidential or trade secret information and the originator of such data desires to protect the confidential information from disclosure or maintain trade secret rights therein, such other data will be marked with the following (and no other) notice and the United States Government will thereafter treat the data in accordance with the notice:
“This data constitutes confidential or trade secret Information of _________ and is submitted in confidence to NASA under Memorandum of Agreement (MOA), dated _________. NASA agrees that the data will not, without permission of UCAR, be duplicated, used, or disclosed by NASA or its contractors for any purpose other than as necessary to carry out NASA’s obligations under this MOA. If required by such contractors, the data will be furnished only after the contractors have agreed with NASA in writing to protect the data from unauthorized use, duplication, and disclosure- This Notice shall be marked on any reproduction of the data, in whole or in part.”
C. The following information, some of which shall be furnished by UCAR to NASA, may be released to the public without consultation between NASA and UCAR: (1) the contents of this MOA; (2) general performance data concerning a UCAR intertank experiment, excluding detailed design information and trade secrets; (3) overall system descriptions of UCAR intertank experiments, but excluding design details; (4) governmental costs and schedules.
D. Except as provided for in ARTICLE I, paragraph F., and ARTICLE VI, paragraph A., NASA shall not acquire through this MOA rights to inventions, patents, or confidential information or trade secrets used in or arising from UCAR’s activities under this MOA.
Article VII: Patent Infringement
UCAR agrees to -indemnify the U.S. Government against U.S. patent infringement costs (including, but not limited to, any judgment against the U.S. Government by a court of competent jurisdiction, administrative and litigation costs, and settlement payments made as a result of an administrative claim) incurred by the U.S. Government which are attributable to products, processes, or articles of manufacture used in the experiment and any supporting equipment, facilities, and services to be furnished or furnished to the U.S. Government under this MOA by UCAR’or its contractors or subcontractors provided that UCAR shall be notified of every claim and suit, and shall be given the opportunity afforded by applicable laws, rules, or regulations to participate in the defense of such suits and no settlement of any such claim or suit will be made without UCAR’s written consent other than as required by final decree of a court of competent jurisdiction.
Article VIII: Public Information
Release of public information regarding this project may be made by NASA and UCAR as to their participation and activities as desired, and insofar as the participation and activities of the other is involved, after suitable consultation, except as provided for in ARTICLE VI.
Article IX: Disputes
Any dispute arising out of this MOA which is not disposed of by the NASA and UCAR Project Managers named in ARTICLE I, paragraph D., shall be submitted in writing to the signatories of this MOA for resolution. Any dispute which is not resolved by mutual agreement of the signatories or their designees within 60 days of both signatories or their designees receiving written notice of the dispute, may be submitted in writing to the NASA Administrator. The decision of the Administrator, or his duly authorized representative, shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent or capricious or arbitrary or so grossly erroneous as necessary to imply bad faith, or not supported by substantial evidence. Pending resolution of any dispute, the parties agree that performance of all obligations shall be pursued diligently in accordance with the direction of the NASA signatories. In the event resolution of any dispute causes UCAR to fail to meet a milestone under ARTICLE I, paragraph E., the projected timetable shall be adjusted by mutual consent of the Project Managers. This disputes procedure shall be the exclusive procedure followed by the parties in resolving any dispute arising out of the execution of this MOA.
Article X: UCAR Rights to Designated External Tanks
NASA may not, without UCAR’s express permission, enter into an agreement with any other nongovernment entity for suborbital use of space designated for UCAR’s use within particular ET intertanks under this MOA.
NASA may, however, enter into agreements with other nongovernment entities for additional suborbital use of ET intertank space within the same intertank as that designated for UCAR, provided that such additional use doesn’t interfere with UCAR’s use of the space.
Once NASA has designated space within a particular ET’s intertank to UCAR, NASA will not subsequently reassign UCAR solely to accommodate another non-government entity’s use.
Article XI: Modification to Agreement
This MOA may be modified, in whole or in part, by mutual agreement between the signatories of this MOA. Only the signatories of this MOA or their designees shall have the authority to execute any such amendments to this MOA.
Article XII: Term of Agreement
This MOA shall be effective for a term of 5 years after the date of last signature, but may be extended upon mutual agreement of the parties.
Article XIII: Termination
NASA’s ability to perform its obligations under this MOA is subject to the availability of appropriated funds, and nothing in this MOA commits the United States Congress to appropriate funds therefor, if adequate appropriations are not forthcoming, this shall be construed as a unilateral termination by NASA. The MOA may be terminated upon 60 days advance notice by UCAR, except as otherwise agreed to in other implementing agreements. The MOA may be terminated by NASA, in whole or in part, without advance notice for: (1) except as otherwise provided herein, failure of UCAR to comply with any provision or condition of this MOA or any implementing agreement, (2) a declaration of war or national emergency, (3) failure of the United States Congress to provide NASA adequate appropriations, (4) a determination in writing that NASA is required to terminate for reasons beyond NASA’s control. For purposes of this Agreement, “reasons beyond NASA’s control” means reasons which include, but are not limited to, Acts of God or the public enemy; acts of the United States Government other than NASA, in either its sovereign or contractual capacity; fires; floods; strikes; freight embargoes: unusually severe weather or like circumstances which make impractical NASA’s or its contractors’ or subcontractors’ performance of any service required by this Agreement.
Neither of the parties shall be entitled to any compensation due to such termination except that, in the event either party terminates this MOA, then UCAR will remain responsible for the direct cost of all NASA-provided services agreed to under ARTICLE I, paragraph D., incurred by NASA before the termination, including any services necessitated by the termination.
Article XIV: Services Consistent with Public law and Government Policy
A. NASA shall provide services and technical assistance to the extent consistent with United States obligations, United States Federal Law, and United States published policy.
B. UCAR and NASA designate the United States Federal Law to govern this MOA for all purposes, including but not limited to determining the validity of this MOA; the meaning of its provisions; and the rights, obligations, and remedies of NASA and UCAR.
Article XV: Government Officials not to Benefit
No member of, or delegate to, Congress or resident commissioner shall be admitted to any share or part of this MOA or to any benefit that may arise therefrom; but this provision shall not be construed to extend to this MOA, if made with a corporation for its general benefit.
Article XVI: Notices
Any notice to be given hereunder shall be in writing and shall be sent to the Program Coordinator by registered or certified mail, postage prepaid, to the parties at the following addresses:
National Aeronautics and Space Administration
Attn: C/Assistant Administrator for Commercial Programs
Washington, DC 20546
National Aeronautics and Space Administration
Attn: M/Associate Administrator for Space Flight
Washington, DC 20546
University Corporation for Atmospheric Research
P. 0. Box 3000
Boulder, CO 80306
IN WITNESS WHEREOF, the undersigned have executed this MOA on the dates indicated below:
Signed by Richard A. Anthes, 12/13/88
University Corporation for
Signed by Dale D. Myers, 12/12/88
National Aeronautics and
Attachment A -1
|Due Date||Amount Due|
|Date of Agreement Signature||$100,000|
|+ 6 Months||TBD|