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UI WETLAND RESEARCH FACILITY SHARED USE AND ACCESS AGREEMENT BETWEEN REGENTS OF THE UNIVERSITY OF IDAHO AND CITY OF MOSCOW, IDAHO This UI WETLAND RESEARCH FACILITY SHARED USE AND ACCESS AGREEMENT BETWEEN REGENTS OF THE UNIVERSITY OF IDAHO,AND CITY OF MOSCOW, IDAHO (hereinafter "Agreement") is made and entered into thisay of f}c:f; , 201 2 (hereinafter "Effective Date") by and between the REGENTS OF THE UNIVERSITY OF IDAHO, a public corporation, state educational institution, and body politic and corporate organized and existing under the Constitution and laws of the State of Idaho (hereinafter "UNIVERSITY"), and the CITY OF MOSCOW, a municipal corporation of the State ofldaho (hereinafter "CITY"), with its principal office at 206 East Third Street, Moscow, Idaho 83843. RECITALS WHEREAS, UNIVERSITY is the owner of certain real property generally described on Exhibit A, which is attached hereto and incorporated herein by reference (hereinafter "Site"). This real property is located adjacent to, and west of, CITY's wastewater treatment plant at 2221 West Pullman Road, Moscow, Latah County, Idaho; WHEREAS, UNIVERSITY owns and operates a wetland research facility (depicted on Exhibit B) on the Site; WHEREAS, CITY owns and operates a wastewater treatment plant (hereinafter "WWTP") (depicted on Exhibit B) adjacent to the Site, which discharges wastewater to Paradise Creek pursuant to National Pollutant Discharge Elimination System ("NPDES") permit No. ID-002149-1 (hereinafter "Permit"); WHEREAS, UNIVERSITY, CITY, and the Palouse-Clearwater Environmental Institute (hereinafter "PCEI'') executed that certain "Memorandum of Understanding Paradise Creek Watershed Restoration Artificial Wetlands Demonstration Project," dated October 21, 1996 (hereinafter "MOU"); WHEREAS, CITY previously provided some treated effluent from its WWTP to UNIVERSITY's wetland research facility pursuant to the MOU; WHEREAS, CITY has ceased providing treated effluent from its WWTP to the Site; WHEREAS, UNIVERSITY desires CITY to resume providing some treated effluent from its WWTP to UNIVERSITY's wetland research facility; SHARED USE AND ACCESS AGREEMENT UNIVERSITY OF IDAHO AND CtTY PAGE I OF 11 2.01 z, ·1211 ---PAGE BREAK--- WHEREAS, UNIVERSITY desires CITY to use and access the Site and its related data so that CITY may evaluate and inspect UNIVERSITY's wetland research facility; evaluate the efficacy of the Site to further treat wastewater; take water, plant, soil, and other measurements; and to conduct photography, videography, surveys, testing, and other activities related to CITY providing treated effluent to the Site or related to CITY's permits concerning wastewater (collectively, "CITY Activities"); WHEREAS, UNIVERSITY acknowledges that CITY's discharge to Paradise Creek is subject to permitting, compliance, and enforcement obligations by the U.S. Environmental Protection Agency (hereinafter "EPA") and that CITY's providing some treated effluent to the Site may cause the Site to fall within the scope of government agency permitting, compliance, and enforcement, including without limitation EPA and the Idaho Department of Environmental Quality; WHEREAS, CITY acknowledges that UNIVERSITY may operate UNIVERSITY's wetland research facility for the purposes of scientific research, education, and environmental enhancement and that UNIVERSITY may modify the wetland research facility; evaluate and inspect the wetland research facility; evaluate the efficacy of the Site to further treat wastewater; take water, plant, soil, and other measurements; and conduct photography, videography, surveys, testing, and other activities related to UNIVERSITY conducting scientific research, education, and environmental enhancement or related to UNIVERSITY's ownership of the Site (collectively, "UNIVERSITY Activities"); WHEREAS, CITY acknowledges that UNIVERSITY Activities may occur at the same time or place as CITY Activities, UNIVERSITY acknowledges that CITY Activities may occur at the same time or place as UNIVERSITY Activities, and each party wishes to minimize interference with the other; and WHEREAS, UNIVERSITY and CITY (collectively, "Parties") desire to have this Agreement supersede any terms of the MOU or any other document or agreement that may govern the relationship between the Parties related to UNIVERSITY's wetland research facility. WITNESSETH NOW THEREFORE, in consideration of the recitals above, of the mutual promises contained herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, the Parties do hereby covenant and agree as follows: 1. RIGHT OF ACCESS. Subject to the limitations, restrictions, and conditions herein and for the purposes set forth herein, UNIVERSITY hereby gives CITY, and CITY's employees, contractors, and agents, access to, over, under, and across the Site (including any outfalls :from the Site to Paradise Creek) to perform CITY Activities, for the benefit of the Site and University's grantees, successors, and assigns. CITY agrees to use its best efforts to conduct CITY Activities in a manner that does not inconvenience UNIVERSITY Activities or UNIVERSITY's use of, or access to, the Site. SHARED USE AND ACCESS AGREEMENT UNIVERSITY OF IDAHO AND CiTY PAGE2 OF II ---PAGE BREAK--- 2. LIMITATIONS ON AGREEMENT. CITY's right of access shall be non-exclusive, and UNIVERSITY may use the Site for any use that does not interfere with CITY Activities. The Parties agree that the association of the Parties is strictly limited to the objects and purposes herein declared and that this Agreement shall not be construed as creating a partnership, a joint venture, intergovernmental agreement, or other similar relationship. Nothing contained herein shall be construed as granting to CITY any property or ownership interest in the Site, granting to CITY the right to conduct any further activities not delineated by this Agreement, or granting to CITY any rights to the Site other than those explicitly granted herein. Except for the rights granted in this Agreement, CITY disclaims any rights to any of the Site. CITY acknowledges that the Site is being made available in an "as-is" condition and that UNIVERSITY has not made any representations or warranties as to the Site or the Site's condition. 3. PRIVATE BENEFIT. This Agreement is for the private benefit of the Parties. Nothing in this Agreement shall be deemed to create an easement or any other property right or to allocate rights to the general public or any public or governmental entity, it being the intention of the Parties that this Agreement be limited to the purposes herein expressed. 4. OWNERSHIP OF EQUIPMENT. All wetland cells, piping, equipment, and their related components, supports, and appurtenances placed in the Site by CITY or UNIVERSITY (collectively, "Equipment") shall be the property of UNIVERSITY, who agrees to maintain such Equipment consistent with applicable law, regulation, or permit, public health standards, and good engineering practice. The Parties acknowledge that the pump which delivers treated effluent to the Site (hereinafter "Pump") is not in the Site and so is not part of the Equipment. For so long as CITY delivers treated effluent to the Site by the Pump, CITY agrees to maintain the Pump consistent with applicable law, regulation, or permit, public health standards, and good engineering practice. 5. CITY ACTIVITIES COST AND UNIVERSITY ACTIVITIES COST. CITY Activities shall be at the cost of CITY, and CITY agrees that UNIVERSITY shall be under no obligation to pay any part of the cost of CITY Activities. UNIVERSITY Activities shall be at the cost of UNIVERSITY, and UNIVERSITY agrees that CITY shall be under no obligation to pay any part of the cost of UNIVERSITY Activities. The Parties agree that UNIVERSITY shall be under no obligation to pay, or to be paid, for CITY's provision of treated effluent to the Site. 6. DURATION. CITY's right of access shall begin as of the Effective Date. UNIVERSITY may, in its sole discretion, terminate CITY's right of access, with or without cause, at any time upon seven days' written notice to CITY. CITY shall have the right to send treated effluent to the Site at the time, duration, and rate that CITY, in its sole discretion, deems consistent with its Permit, applicable law, public health standards, good engineering practice, and management of CITY's wastewater flow and quality. CITY, in its sole discretion, shall have the right temporarily or permanently to halt providing treated effluent to the Site and (ii) to plug or to unplug the outfalls from the Site to Paradise Creek to prevent or allow the release of treated effluent. SHARED USE AND ACCESS AGREEMENT UNIVERSITY Of IDAHO AND CITY PAGE 3 Of II ---PAGE BREAK--- 7. CITY ACTIVITIES. CITY agrees that all CITY Activities shall be done in a workmanlike manner, during reasonable business hours unless UNIVERSITY allows otherwise, without undue noise or light that may constitute a nuisance, in accordance with applicable law, regulation, or permit, public health standards, and good engineering practice, in a prompt and timely manner, and in manner that minimizes interference with UNIVERSITY Activities. In the event that UNIVERSITY detennines that CITY Activities are not consistent with applicable law, public health standards, or good engineering practice, UNIVERSITY may, but is under no obligation to, stop CITY Activities and require CITY to leave the Site immediately in addition to any other remedies UNIVERSITY may have. CITY shall keep the Site free from liens relating to or arising out of CITY Activities, and in the event that liens are placed on the Site relating to or arising out of CITY Activities, CITY agrees to use its best efforts to cause such liens to be removed. 8. UNIVERSITY ACTIVITIES. UNIVERSITY states that it uses the Site generally for educational learning for students of all ages as related to the functioning of wetland systems (ecosystems, plants, and animals) in a fashion that does not have an impact on water quality. The Site is not protected from general public access. For UNIVERSITY Activities outside of the aforedescribed general use of educational learning, where such UNIVERSITY Activities are reasonably likely to have an impact on, or relate to, water quality, UNIVERSITY agrees to give CITY written notice and description of such UNIVERSITY Activities in the Site and to conduct all UNIVERSITY Activities in a workmanlike manner, without undue noise or light that may constitute a nuisance, with adequate dust control and noxious weed control, in accordance with applicable law, regulation, or permit (including without limitation the Permit and any EPA order under Section 308 of the Clean Water Act), public health standards, and good engineering practice, in a prompt and timely manner, and in manner that minimizes interference with CITY Activities. UNIVERSITY also agrees to give CITY written notice if UNIVERSITY has reason to believe that a violation of the Clean Water Act or applicable law, regulation, or permit has occurred that is related to UNIVERSITY Activities, CITY Activities, or use of the Site. 9. PCEI ACCESS. CITY acknowledges that UNIVERSITY may grant PCEI access to the Site generally for educational learning for students of all ages as related to the functioning of wetland systems (ecosystems, plants, and animals) in a fashion that does not have an impact on water quality. If UNIVERSITY grants permission to PCEI for a use outside of the aforedescribed general use of educational learning, where such use is reasonably likely to have an impact on, or relate to, water quality (or if UNIVERSITY grants petmission to other person or entity to use or access the Site), UNIVERSITY agrees to give CITY written notice, including the terms of such use or access, and to require PCEI (or such other person or entity) to give CITY written notice and description of such PCEI (or other person or entity's) activities in the Site. UNIVERSITY agrees to give CITY written notice when UNIVERSITY knows that anyone other than UNIVERSITY, PCEI, or CITY or their employees, contractors, agents, or students has altered the Equipment or (ii) used or accessed the Site, other than incidental access by the general public, where such use or access is reasonably likely to have an impact on, or relate to, water quality. SHARED USE AND ACCESS AGREEMENT UNJVERSITY OF IDAHO AND CJTY PAGE40F 11 ---PAGE BREAK--- 10. OWNERSHIP AND ACCESS TO INVESTIGATION INFORMATION. Unless specifically prohibited by law, regulation, or contract, UNIVERSITY shall own, together with CITY, all information acquired or generated by UNNERSITY or CITY concerning the Site (collectively, "Investigation Information"). Investigation Information shall include without limitation tests, surveys, photographs, data collections, sampling results, documents, records, reports, studies, and correspondence to and from government agencies concerning the Site. At UNIVERSITY's request, CITY shall give to UNIVERSITY copies of all Investigation Information acquired or generated by CITY, and at CITY's request, UNIVERSITY shall give to CITY copies of all Investigation Information acquired or generated by UNNERSITY and all information acquired or generated by PCEI (or by other person or entity UNIVERSITY has granted permission to use or access the Site) where such information is in UNIVERSITY's possession, custody, or control. 11. INTERACTIONS WITH GOVERNMENT AGENCIES. UNIVERSITY shall provide CITY with draft copies of all reports and correspondence about the Site or UNIVERSITY Activities sent to government agencies so that CITY may provide comments on such reports and correspondence before they are provided to such government agencies. UNIVERSITY shall inform CITY of all meetings and other communications with government agencies concerning the Site or UNIVERSITY Activities and shall make best efforts to allow CITY to participate in such meetings and communications. UNIVERSITY agrees to cooperate with CITY in CITY answering inquiries from government agencies concerning the Site, including without limitation any EPA order under Section 308 of the Clean Water Act, and otherwise make reasonably available UNIVERSITY employees, contractors, or agents with knowledge of the Site or UNIVERSITY Activities. 1 2. GOVERNMENT PERMITS. UNIVERSITY acknowledges that CITY does not control the terms of, or the interpretation of the terms of, CITY's Pennit and that EPA may change the terms of CITY's Permit, either when the Permit is renewed or otherwise. UNIVERSITY agrees that CITY has not made any representations concerning the scope of CITY's Permit and the Permit's applicability to the Site. CITY acknowledges that UNIVERSITY has not made any representations concerning any permits for UNIVERSITY Activities, and the Parties agree that any permits for UNIVERSITY Activities remain the obligation of UNIVERSITY. 13. WATER RIGHTS. The Parties agree that this Agreement is not intended to convey, and does not convey, any water rights between the Parties or to third parties. UNIVERSITY agrees that it shall not remove water from the Site, other than may occur through the existing outfalls to Paradise Creek, through evaporation/transpiration or infiltration, or through de minimus tests and sampling. 14. HAZARDOUS SUBSTANCES. CITY agrees it shall not, and UNIVERSITY agrees it shall not, dispose of or place any hazardous substance in the Site, where hazardous substance means any material the exposure to which or the manufacture, possession, presence, use, generation, SHARED USE AND ACCESS AGREEMENT UNIVERSITY OF IDAHO AND CJTY PAGES OF II ---PAGE BREAK--- storage, transportation, treatment, release, disposal, abatement, cleanup, removal, remediation, or handling of which is prohibited, controlled, or regulated by any environmental law. 15. MAINTENANCE, INSPECTION, AND REPAIR. UNIVERSITY, at its expense, shall maintain, inspect, and repair the Equipment in good order and in a properly operating condition. CITY may, at its discretion and expense, maintain, inspect, and repair the Equipment but shall not have any obligation to do so. For so long as the CITY delivers treated effluent to the Site by the Pump, CITY, at its expense, shall maintain, inspect, and repair the Pump. 16. SAME CONTRACTORS. UNIVERSITY agrees that CITY may, in its sole discretion, hire some of the contractors or subcontractors that UNIVERSITY has hired or will hire to conduct UNIVERSITY Activities. 17. OTHER FUTURE IMPROVEMENTS. UNIVERSITY, at its discretion and expense, may place permanent improvements in the Site. In such event, UNIVERSITY shall bear the cost of any contemporaneous modifications to already placed Equipment required by applicable law or by good engineering practice. 18. RELOCATION AND EXTENSION. UNIVERSITY, at its expense, may relocate all or a portion of any Equipment, as long as such relocation does not materially injure CITY's use of the Equipment. CITY shall not use or extend the Equipment to service real property other than the Site without UNIVERSITY's written consent. 19. WAIVER OF CONDEMNATION A WARD. CITY agrees that nothing contained herein shall be construed as giving CITY, and CITY hereby waives, any interest in any award or payment made in connection with the exercise of eminent domain or transfer in lieu thereof affecting the Site. 20. PARTIAL INVALIDITY. In the event that any court of competent jurisdiction detennines that any portion of this Agreement is invalid, void, or otherwise unenforceable, the remaining portions shall remain in full force and effect and shall not be affected, impaired, or invalidated thereby, it being understood and agreed that such remaining portions shall be construed in a manner most closely approximating the intentions of the Parties with respect to the invalid, void, or unenforceable portion thereof. 21. FORBEARANCE. The Parties agree that acceptance by either party or that performance after default shall not be deemed, construed, or considered as waiving or surrendering any of the conditions or covenants of this Agreement or of any subsequent default that may be made by either party. 22. MUTUAL INDEMNIFICATION. CITY agrees to indemnify, to defend, and to hold UNIVERSITY hannless from any and all claims, liability, losses, costs, charges, or expenses arising out of any act or omission of CITY or of its employees, agents, contractors, or SHARED USE AND ACCESS AGREEMENl UNIVERSITY Of IDAHO AND CITY PAGE6 OF ll ---PAGE BREAK--- subcontractors in the use of the Site. If any action, claim, or demand is made against UNIVERSITY for any act or omission of CITY or of its employees, agents, contractors, or subcontractors, CITY agrees to assume the expense and shall pay all costs, charges, attorneys' fees, settlements, judgments, or other expenses incurred or obtained against UNIVERSITY. UNIVERSITY agrees to indemnify, to defend, and to hold CITY harmless from any and all claims, liability, losses, costs, charges, or expenses arising out of any act or omission of UNIVERSITY or of its employees, agents, contractors, or subcontractors in the use of the Site. If any action, claim, or demand is made against CITY for any act or omission of UNIVERSITY or of its employees, agents, contractors, or subcontractors, UNIVERSITY agrees to assume the expense and shall pay all costs, charges, attorneys' fees, settlements, judgments, or other expenses incurred or obtained against CITY. Nothing herein shall be deemed to extend the liability of CITY or of UNIVERSITY for claims governed by the Idaho Tort Claims Act (Idaho Code§§ 6-901 through 6-929) beyond the limits of liability specified in that Act. 23. REMEDIES. In the event of any controversy, claim, or action being filed or instituted between the Parties to enforce the terms or conditions of this Agreement or arising from the breach of any provision hereof, the prevailing party shall be entitled to receive from the other party all costs, damages, and reasonable attorneys' fees, whether or not such controversy, claim, or action is litigated to judgment and appeal thereof. The prevailing party shall be that party who was awarded judgment or who receives a payment of money from the other party in settlement of.claims asserted by that party. The Parties have the right to seek all remedies at law or at equity, including without limitation damages or injunctions. 24. NOTICES. Notices to UNIVERSITY shall be to Assistant VP for Facilities University of Idaho P 0 Box 2281 Moscow, ID 83844-2281 with copy to Office of General Counsel University ofldaho P 0 Box 3158 Moscow, ID 83 844-3158 Notices to CITY shall be to City of Moscow, Idaho Attn: Director of Public Works P 0 Box 9203 Moscow, ID 83843 SHARED USE AND ACCESS AGREEMENT UNIVERSITY OF IDAHO AND CITY PAGE 7 OF II ---PAGE BREAK--- with copy to City of Moscow, Idaho Attn: City Clerk P 0 Box 9203 Moscow, ID 83843 Each party agrees to amend its notice address information only in a writing to the other party. 2 5. N 0 RECORDING. Each party agrees not to have this Agreement recorded in any land records. The rights granted herein shall be personal, and any recording, if undertaken contrary to this Section, shall have no force or effect. 26. MODIFICATION AND WAIVER. This Agreement may be amended, changed, or modified only in a writing signed by both Parties. No waiver of any provision of this Agreement shall be valid unless in a writing signed by both Parties. 27. APPLICABLE LAW. This Agreement is executed, delivered, and intended to be performed in the State of Idaho and shall be construed and enforced in accordance with, and governed by, the laws of the State of Idaho. 28. JURISDICTION AND VENUE. This Agreement shall be construed under and governed by the laws of the State ofldaho. In the event of litigation concerning this Agreement, the Parties agree that proper venue shall be the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah. 29. HEADINGS, RECITALS, AND EXHIBITS. The headings of the sections contained herein are for convenience only and do not explain, define, limit, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Agreement. The recitals and exhibits contained herein are incorporated herein as if set forth in full; however, in the event of any conflict between the recitals or exhibits and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall control. 30. AUTHORIZATION. Each individual signing below on behalf of his or her respective party warrants that he or she is duly authorized to execute this Agreement on behalf of his or her respective party and that such execution is binding upon his or her party without further action or ratification. 31. EXECUTION. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. The Parties understand that facsimile or electronic signatures are legally binding for the Agreement to be in full force and effect. 32. ENTIRE AGREEMENT. This Agreement is the entire agreement between the Parties regarding CITY's and UNIVERSITY's shared use of and access to the Site and supersedes any SHARED USE AND ACCESS AGREEMENT UNIVERSITY OF IDAHO AND CITY PAGES OF 11 ---PAGE BREAK--- prior agreements concerning the Site, either oral or in writing, including without limitation superseding any terms of the MOU that may govern the relationship between the Parties. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. SHARED USE AND ACCESS AGREEMENT UNIVERSITY OF IDAHO AND CiTY REGENTS OF THE UNIVERSITY OF IDAHO, a public corporation, state educational institution and body politic and corporate organized and existing under the Constitution and laws of the State of Idah CITY OF MOSCOW, IDAHO, a municipal corporation of the State of Idaho, ATTEST: JULY 12 1887 PAGE 9 OF II ---PAGE BREAK--- Exhibit A General Property Description of Wetland Research Facility The wetland research facility is situated directly west of the City of Moscow Wastewater Treatment Facilities and is comprised of that land bordered on the north by the existing railroad southerly right-of-way line, on the west by the Idaho I Washington State border, and on the south and east by Paradise Creek. SHARED USE AND ACCESS AGREEMENT UNIVERSITY OF IDAHO AND CITY PAGE IOOF II ---PAGE BREAK--- Exhibit B Aerial View STATE H'IGHWAY 8 · CHIPMAN TRAIL ' ' ' . z 0 0 :r 1- Q z - IIIIETLAND RESEARCH FACILITY I: 1 . SJIARED USE AND ACCESS AGREEMENT UNIVERSITY OF IDAHO AND CITY PARADISE CREEK EXHIBIT WETLANDS AREA EFFLUENT AGREEMENT PAGE II OF I I ---PAGE BREAK--- Universityotldaho Office of General Counsel Administration Bldg 127 875 Perimeter Drive MS 3158 Moscow ID 83844-3158 Phone:[PHONE REDACTED] Fax:[PHONE REDACTED] [EMAIL REDACTED] MEMORANDUM October 29, 2012 To: Stephanie Kalasz, City Clerk From: Jennifer Magelky-Seiler, Administrative Assistant 1 - Office of General Cow1se Re: UI Wetland Shared Use and Access Agreement Enclosed you will find a fully executed original of the UI Wetland Research Facility Shared Use and Access Agreement for your records. Please let our office know if you have any questions or concerns. To enrich education through diversity, the University of Idaho is an equal opportunity/affirmative action employer.