WIYN AGREEMENT

TABLE OF CONTENTS

Paragraph

Warranties ...... 1

New Members and Transfer of Membership ...... 2

Governance...... 3-8

Capital Contributions ...... 9-12

Commissioning of the ...... 13-14

Operations and maintenance ...... 15-22

WIYN Director…………………………………………………………………………… 23

Use of the Observatory………………………………………………………… …24-29

Disputes and Arbitration ...... 30-31

Instrumentation...... 32

Dissolution ...... 33-34

Withdrawal...... 35-40

Transfer of a Partial Share of Observing Time ...... 41

Default...... 42-43

Site Lease ...... 44

Liability ...... 45

Amendment ...... 46

Memorandum ...... 47

Primary Representation...... 48

Execution...... 49

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EXHIBIT A......

MEMORANDUM......

TABLE 1 - WIYN PAYMENT SCHEDULE ......

EXHIBIT B ......

ESTIMATED COSTS AND SCHEDULE ......

TABLE 1 – PROTECTED EXPENDITURES ......

TABLE 2 - PROJECTED EXPENDITURES BY YEAR ......

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WIYN AGREEMENT

Subject to the terms and conditions set forth herein, the University of Wisconsin Madison (hereinafter "UW"), Indiana University (hereinafter "IU"), (hereinafter "Yale"), and the National Optical Astronomy (hereinafter "NOAO") hereby establish an educational and research Consortium to be known as the WIYN Consortium, or WIYN, for the design, construction, and operation of a 3.5 meter with a multi object spectrograph, additional instrumentation, and related support buildings to be located at Kitt Peak, a mountain in south central Arizona. The telescope, enclosure, support buildings, general use instrumentation, and associated equipment shall collectively be known as the WIYN Observatory (hereinafter the "Observatory"). The institutions forming the Consortium shall be referred to as the "Members". IU, Yale, and UW shall be referred to as the "University Members".

WHEREAS NOAO is an unincorporated division of the Association of Universities for Research in Astronomy, Inc. (AURA), a private, non profit corporation chartered under the laws of the State of Arizona. AURA has a cooperative agreement with the National Science Foundation (NSF), an instrumentality of the United States Government, to operate government owned astronomical research facilities on land leased by the NSF from the Tohono 0’Odham Tribe on Kitt Peak in the Quinlan Mountains in Arizona. This WIYN Agreement anticipates that NSF will grant WIYN a sublease for a portion of that site permitting WIYN to come upon the site, and there construct and operate the Observatory that is the subject of this Agreement. NOAO also has arranged for construction of the 3.5 meter mirror and cell that is a component of the telescope to be erected pursuant to this Agreement and will contribute the mirror and cell to the project. The Members recognize that NOAO’s participation in this Agreement and its obligation hereunder are subject to the approval of the NSF under Cooperative Agreement No. AST-8947990 with AURA and that such obligations are effective and enforceable only so long as that Cooperative Agreement and any successor Cooperative Agreement of the NSF with AURA remains in effect; and,

WHEREAS UW is a state institution of higher education within the University of Wisconsin System under the control and supervision of the Board of Regents, a body corporate of the State of Wisconsin. UW includes among its faculty engaged in research and teaching, the faculty of its Department of Astronomy. The Astronomy faculty believe that the Department, its faculty and students would benefit greatly by access to the use of the astronomical observatory facility that is the subject of this Agreement. Being convinced of the worth of the project by information received from the scientists and by the recommendation of the academic administrators the Board of Regents has authorized UW to become a Member of the WIYN Consortium and has authorized the Chancellor of UW to take such actions as are necessary and appropriate to fully participate in the responsibilities and benefits accruing the UW as a Member of such Consortium; and,

WHEREAS IU is a state institution of higher education entrusted by the State of Indiana to the control and supervision of The Trustees of Indiana University, a board created by Statute. IU includes among its faculty engaged in research and teaching, the faculty of its Department of Astronomy. The Astronomy faculty believe that the Department, its faculty and students would benefit greatly by access to the use of the astronomical Observatory facility that is the subject of

D:\WIYN AGREEMENT.doc 3 As amended through April 2004 this Agreement. The IU Astronomy faculty, as well as the appropriate academic administrators, have considered the cost and benefits and have recommended that IU become a Member of the WIYN Consortium and The Trustees of Indiana University, acting through the President of the University, have accepted the recommendation and authorized IU to become a Member of the VIIYN Consortium and to take such actions as are necessary and appropriate to fully participate in the responsibilities and benefits accruing to IU as a Member of such Consortium; and,

WHEREAS Yale is a corporation specially chartered by the Colony and State of Connecticut, which includes among its faculty engaged in research and teaching the faculty of its Department of Astronomy, and which has determined, based on the recommendations of that faculty, that Yale’s research and teaching will benefit from the use of the astronomical observatory facility that is the subject of this Agreement and from participation in the WIYN Consortium established herein.

NOW, THEREFORE, for good and valuable consideration and for the mutual covenants set forth in this Agreement; it is agreed by and between the parties as follows:

Warranties

1.) Each Member represents and warrants that the Member is familiar with the obligations and benefits contemplated by this Agreement and further represents and warrants that the Member is entering into this Agreement in the highest good faith, will use its best efforts to fulfill the commitments set forth in this Agreement and will promptly disclose to the other Members non- confidential information that may materially affect the funding, operation, or cooperative undertaking of the WIYN Consortium.

New Members and Transfer of Membership

2.) Additional members may be added to WIYN or current membership assigned to another institution only under such terms and conditions as shall be agreed upon by the Members, through a two thirds vote of all Directors with voting rights then in office on the Board of Directors established in this Agreement.

Governance

3.) The governing body of WIYN shall be known as the Board of Directors (hereinafter the "Board").

4.) The Board shall come into being upon the execution of this Agreement and shall be responsible for carrying out this Agreement.

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5.) The Board shall cause the formation of a not-for-profit corporation under the laws of the state of Arizona to be known as the WIYN Consortium, Inc., for the purpose of accomplishing the terms of this Agreement.

6.) The Board shall adopt By-Laws for the WIYN Consortium consistent with this Agreement.

7.) Any action of the Board involving financial commitments or liability of a Member institution is not binding on that institution without the approval of appropriate authorities at that institution.

8.) The individual responsibilities of the Members for the design, construction, commissioning, and operations of the observatory shall be determined by the Board. The Board will appoint a WIYN Project Manager who will be employed by NOAO or a University Member with salary and employee benefits shared by the Members as part of their Capital Contributions in proportion to their observing time as described in paragraph 25. The initial Project Manager will be employed by NOAO. The Board may remove the Project Manager upon ninety (90) days notice to the employing Member. Adjustments to the salary and employee benefits of the Project Manager shall be presented to the Board by the employing Member for approval and shall be commensurate with the salary and benefit range of similar employees of the employing Member. The Project Manager will oversee the design, construction, and commissioning of the observatory and will report to the Board about the progress of the project. No financial commitment for design, construction or commissioning may be authorized by the Board until sufficient funds to meet the obligation are received; provided, however, that the Board may authorize incremental funding of contracts consistent with the schedule of payments as established in paragraph 9.

Capital Contributions

9.) The University Members shall make a good faith effort to meet Capital Contributions for the design, construction, and commissioning of the Observatory. The specific dollar amounts of these contributions are spelled out in paragraph 1 of a Memorandum set forth as "Exhibit A" (hereafter "Memorandum"). The schedule of payments for these contributions, which may be modified by a majority vote of the Board, is set out in Table 1 of the Memorandum. The specific dates on which payments of Capital Contributions will occur will be established by the Board.

10.) NOAO will make available, as part of its Capital Contribution, a polished and coated 3.5 meter f/1.75 primary mirror and its support structure. The specific dollar values of these contributions are spelled out in paragraph 2 of the Memorandum. NOAO will provide the completed primary mirror and support systems by March, 1993. NOAO will design and construct the mult-object spectrograph and fiber positioner described in the minutes of the WIYN meeting of February 2-3, 1990, for the price specified in the Memorandum. NOAO will be responsible for preparing the site for the Observatory as set forth in paragraph 2 of the Memorandum. NOAO will take necessary steps to receive approval from the NSF for site clearing and the use of the mirror and related structure, including the continuous use if NOAO withdraws from the WIYN Consortium under paragraphs 35 to 40, transfers a partial share under paragraph 41 or defaults under paragraph 43. If evidence of such approval is not provided to the

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Board within twenty-four (24) months after the effective date of this Agreement, the Board will dissolve the WIYN Consortium.

11.) Capital Contributions shall consist of all contributions, whether money or in kind contributions. In kind contributions can include, as needed, personnel services, equipment, and building space. The Board will determine whether to accept such Capital Contributions and the value of the Capital Contribution. State or Federal law may require that title to certain property contributed by a Member remain with the Member or with the State or the Federal Government.

12.) Except as provided in paragraph 17, during the construction phase, no Member may be required to contribute more than its agreed upon Capital Contribution, as set out in the Memorandum.

Commissioning of the Observatory

13.) The time period between the end of the construction phase and the beginning of regular scientific operations shall be called the "commissioning phase". The Board will determine the onset and duration of this phase. The end of the construction phase will be set by the installation of a complete optical system and by completion of the telescope, pier, and enclosure. The construction phase will not be considered completed until the telescope operation (optical and mechanical) is within specifications agreed upon by the Board.

14.) During the commissioning phase, the requirements in personnel and services may exceed those necessary during regular scientific operations. These additional needs will be supported by the Members through a plan established by the Board. The level of support to be provided by each Member shall be proportional to the percent observing time allocation as specified in paragraph 5 of the Memorandum, unless the Board agrees otherwise.

Operations and maintenance

15.) NOAO’s participation in the operations phase of the Observatory is subject to a renewal of the Cooperative Agreement between NSF and AURA for operations of NOAO commencing October 1, 1994, and every five years thereafter (or such shorter period as the relevant successor Cooperative Agreement is effective). Subject to the foregoing, NOAO will operate and maintain the telescope, computers, buildings, WIYN general use instruments (see paragraph 32), and on- site remote observing equipment and will provide adequate technical staff for normal operations, as spelled out in the Memorandum. NOAO will operate the Observatory throughout the year with the exception of those holidays (currently Christmas Eve and Christmas Day) on which all Kitt Peak National Observatory are closed. The Observatory will be operated during the summer months. However, the level of technical assistance available at night will be reduced during that portion of the summer that night operations of Kitt Peak National Observatory are curtailed in order to undertake major maintenance during the day. Maintenance and operation commitments by NOAO will begin with the onset of the operations phase and will extend for a time period of 15 years. After the initial 15 years of operation, the Members shall share the

D:\WIYN AGREEMENT.doc 6 As amended through April 2004 operating costs of the Observatory in the same proportion as the allocation of observing time as specified in the Memorandum. The University Members will maintain their own instruments and their University based remote observing stations and will individually bear extraordinary expenses associated with their own observing projects, as well as transportation expenses. NOAO will make available mountain shuttle services, lodging, and food services for scientists and technical staff from University Members on legitimate working visits to the Observatory on the same basis as for other scientist visitors to NOAO facilities.

16.) NOAO agrees to operate and maintain the Observatory at a level of internal priority which is comparable to other NOAO facilities of similar capabilities, such as the Mayall 4 meter telescope. However, the level of NOAO support will not be required to exceed that specified in the Memorandum. NOAO will assure WIYN observers access to such services as computers, shuttle service, libraries, etc., at the same level provided to visiting observers at NOAO facilities.

17.) In the event that the Observatory’s operating, commissioning or construction programs, including programs for capital improvements to the Observatory and its general use instruments and for repair or replacement of equipment, require funds beyond those committed by the Members or required hereunder to be committed by the Members, the Board may request that each Member commit the additional funds in proportion to their allocation of observing time. If this is not possible for one or more Members but the improvements or repairs are deemed necessary, then the Board may allow one or more Members to increase the commitment of funds and receive a proportional increase in observing time or may allow withdrawal of any Member in a manner consistent with paragraphs 35 to 40 (see also paragraph 6 of the Memorandum).

18.) NOAO will provide the Observatory and associated University personnel with the requisite facilities to maintain the Observatory, telescope, and University instruments including, but not limited to, available electronics shop and instrument shop space, as well as the use of a reasonably well-equipped machine shop, subject to such safety and other rules as apply to NOAO employees. NOAO will also provide two adjacent offices for use by visiting scientists from the University Members at the headquarters complex in downtown Tucson, AZ. NOAO data reduction facilities will be made available to WIYN astronomers on the same basis as for other NOAO visiting scientists. NOAO will also provide a house on Kitt Peak at fair market value for rental by the University Members as lodging for visiting University scientists and personnel.

19.) The detailed operation and maintenance plan for the Observatory shall be presented to the Board by the WIYN Director on an annual basis. The preparation of this plan should involve the active participation of NOAO. The Board will determine if the plan satisfies the general guidelines of operations and maintenance as described in paragraphs 15, 16, 18, and the Memorandum.

20.) The Observatory will be reviewed at least once every five years by an external review committee known as the WIYN Review Committee. Issues for consideration in the review should include the status and development of the telescope and instrumentation, the effectiveness of operations, scientific productivity, and any additional topics thought to be appropriate by the WIYN Review Committee. The WIYN Review Committee will be composed of at least three

D:\WIYN AGREEMENT.doc 7 As amended through April 2004 impartial senior astronomers selected by the WIYN Board for their breadth of understanding of ground-based optical astronomy. Astronomers serving on the WIYN Review Committee will not be employees of Member institutions.

21.) Member Institutions will contribute in proportion to their share of observing time to meet the expenses associated with the WIYN Consortium activities, such as expenses for the Review Committee in paragraph 20 or any Oversight Committee in paragraph 31, incorporation-related expenses, and insurance costs.

22.) Contributions for operations and maintenance as set forth in paragraphs 3 and 4 of the Memorandum shall consist of all contributions, whether money or in-kind contributions. In-kind contributions can include, as needed, personnel services, equipment and building space. The Board will determine whether to accept such contributions and the value of the contribution. State or Federal law may require that title to certain property contributed by a Member remain with the Member or with the State or Federal Government.

WIYN Director

23.) The Board will appoint a WIYN Director who will be employed by NOAO or a University Member with salary and employee benefits shared by the Members as part of their operations and maintenance contribution in proportion to their observing time as described in paragraph 25. The Board may remove the WIYN Director at the expiration of the WIYN Director’s term of appointment. Adjustments to the salary and employee benefits of the WIYN Director shall be presented to the Board for approval and shall be commensurate with the salary and benefit range of similar employees of the employing member. The WIYN Director will report to the Board and will be responsible for ensuring the effective scientific use of the Observatory. The WIYN Director will help coordinate NOAO and University observing programs and will serve as the primary interface person between the Board and NOAO. The WIYN Director will define the technical support requirements for operations and maintenance at the Observatory, will request necessary support from the appropriate NOAO Manager, will provide oversight for repair and maintenance activity within the Observatory, and will provide to the Associate Director of NOAO for Kitt Peak National Observatory, as well as to the Board, an evaluation of the quality of the service received. The WIYN Director will directly supervise the WIYN related work performed by the technical support personnel provided by NOAO. Although the WIYN Director has the authority in dealing with day-to-day decisions regarding WIYN, the ultimate authority for WIYN operations rests with the Board, and the ultimate authority for the use of any staff employed by a Member but assigned to WIYN rests with the employing Member.

Use of the Observatory

24.) All facilities utilized in common by the Members shall be used, operated, and maintained in a manner compatible with the purposes and functions of the WIYN Consortium. Any use or modification of the facilities by individuals or by Member or nonmember institutions which

D:\WIYN AGREEMENT.doc 8 As amended through April 2004 affects or potentially affects the quality, utilization, effectiveness, or the cost of operating these facilities or the site, will be subject to the prior approval of the Board.

25.) The Board will decide the appropriate fractions of the telescope time to be set aside for maintenance and for discretionary scientific use. The WIYN Director will have the responsibility for the effective use of the maintenance time. At the onset of the operations phase and thereafter the remaining telescope time will be distributed in the proportions detailed in paragraph 5 of the Memorandum. These allocations presume that the University Members have met the schedule and proportion of Capital Contributions described in paragraphs 9, 11, and in the Memorandum. NOAO’s share presumes that NOAO meets the capital contributions and schedule described in paragraph 10 and the maintenance and operation obligations described in paragraphs 15, 16, 18, 19, and in the Memorandum. The proportions of time allocation may be modified in the event of cost overruns as detailed in the Memorandum.

26.) If a Member is unable to provide the operation and maintenance obligations described in paragraphs 15, 16, 18, 19 and in the Memorandum, it may become necessary to reallocate telescope time or to reallocate a share of the Observatory to an existing or new member in order to provide adequate operation and maintenance support. In this situation, the time reallocated would come from the Member’s share of the WIYN observing time (see also paragraphs 42 and 43).

27.) The time allocated by the above procedures shall be scheduled by the Board or its designate. The time will be equitably distributed with respect to seasons and phases of the Moon, as compatible with the scientific needs of the Members. Disagreements about the fairness of time allocations will be settled by the Board. Members will allocate their time internally by their own review process.

28.) University Members may negotiate trades of their observing time allocations on this observatory for allocations on other facilities operated by NOAO subject to availability and scientific appropriateness. NOAO and the University Member will negotiate in good faith and NOAO will not unreasonably withhold its agreement to such trades.

29.) The Board shall periodically establish the cost of providing telescope observing time. A University Member may assign part or all of its observing time to another institution as long as the charge made for such observing time does not exceed the cost established by the Board for telescope observing time. The University Member will remain fully responsible for the conduct of the assignee. NOAO will ordinarily use its time in a service operation mode but may also make assignments to other institutions. Any assignment must be consistent with the educational research purposes of the WIYN Consortium and its Members. By a majority vote, the Board may overrule any assignment which it judges to be inconsistent with the purposes of the WIYN Consortium.

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Disputes and Arbitration

30.) It is the intent of the Members that all decisions relating to the observatory and to the use of special instrumentation are to be made in a collegial manner. Any dispute among Members shall be resolved by the Board.

31.) If the Board is unable or unwilling to resolve a dispute, any Member may seek the services of an oversight Committee. The Oversight Committee will be formed by the Board. The Oversight Committee will be composed of experienced, impartial, and knowledgeable individuals equal in number to the number of Members. Each of these individuals must be selected by a two-thirds vote of all the Directors with voting rights then in office. If the Board cannot agree on the selection of these individuals, then one each will be appointed by the President, Director, or Chancellor or similar appropriate official of each Member. Members of the oversight Committee cannot be employees of member institutions. A decision of the Oversight Committee requires concurrence of two-thirds of the individuals serving on the Committee. Any decision of an oversight Committee is final and binding on the Board and on each Member. This arbitration clause may be invoked by a defaulting or withdrawing Member, if agreement cannot be reached by the Board on shares of observing time for such members under paragraphs 37, 41 and 43.

Instrumentation

32.) The observatory will utilize at least two categories of instruments, namely "general use instruments" and "restricted use instruments". The general use instruments will be NOAO maintained and will be available for use by Members and by the general astronomical community. The general community use of these instruments is envisioned to be performed primarily through a "service observing" mode whereby NOAO astronomers and/or technical support staff obtain the data and pass it on to the interested astronomer. The Board will decide upon the detailed characteristics of the complement of general use instruments to be available at the Observatory at commissioning and throughout the years of operations. The Board will decide how general use instruments will be built and how their construction costs will be shared among the Members. The restricted use instruments are those brought to the telescope and owned and maintained by Members or by individual scientists and/or their research groups. These instruments will not be available for community use unless special arrangements are made between NOAO, the Board, and the relevant Member. Other instruments maintained by NOAO and compatible with the telescope of the WIYN Observatory may be used at this telescope, if there are no scheduling conflicts with use at other NOAO telescopes and if NOAO resources are available to provide the support required for such use. Requests for such use of other NOAO instruments will be considered by the relevant NOAO managers on a case by case basis.

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Dissolution

33.) This Agreement may be terminated and the WIYN Consortium dissolved by the Board. Except as provided under paragraphs 10 and 44, a two-thirds vote of all the Directors with voting rights then in office is required for dissolution. Particular procedures governing dissolution will be spelled out in the By-Laws. The arbitration process described in paragraph 31 may be invoked in the event of a dispute.

34.) At dissolution of the WIYN Consortium, the assets of the Consortium will be distributed to the Members and any former members in proportion to the Member’s or former Member’s contribution as of the date of dissolution. A Member that transferred title to property as an in- kind contribution under paragraphs 11 or 22 to the Consortium may elect to reclaim such property at its fair market value. The Board may allow a former Member that transferred title to property as an in-kind contribution under paragraphs 11 or 22 to the Consortium to reclaim such property at its fair market value. The fair market value shall be established by the Board with reference to original cost, estimated replacement cost, present condition, and estimated continued usefulness.

Withdrawal

35.) During the construction or commissioning phases, if funding is needed beyond the commitments made in paragraphs 9 and 10 and in the Memorandum yet some of the Members decide to continue, then a Member may withdraw by advising the President of the Board of its intention to do so in writing within 90 days after being notified by the Board that sufficient funds are not available. Upon such withdrawal, the amount of any Capital Contribution actually paid by a University Member which exceeds its agreed upon proportional participation as set out in paragraph 1 of the Memorandum shall be refunded to the Member. Any withdrawing University Member that has contributed less than its agreed upon proportional amount of actual expenditures to the date of withdrawal will be liable for its share of the remaining balance of these actual expenditures. Such a withdrawing Member will be compensated for its investment up to the date of withdrawal in the form of observing time on the same basis as detailed in paragraph 37. As an alternative procedure to the provisions of this paragraph, a withdrawing University Member may elect to transfer its entire share in the Observatory, as described in paragraph 37, or a portion of its share, as described in paragraph 41.

36.)’ If NOAO withdraws during the construction or commissioning phases, the polished and coated 3.5 meter primary mirror and support structure will be furnished to the WIYN Consortium as part of the obligation entered into under this Agreement. NOAO will be compensated either by transfer of its share or by an observing time allocation, according to the provisions of paragraph 37.

37.) A Member may withdraw from the WIYN Consortium for any reason upon six months’ notice to the Board. A withdrawing Member is obligated to pay for its share of expenses up to the actual date of withdrawal. The withdrawing Member may not remove any assets of the WIYN Consortium, including assets provided as in-kind contributions without a two-thirds vote

D:\WIYN AGREEMENT.doc 11 As amended through April 2004 of all the Directors with voting rights then in office. The withdrawing Member may elect to try to recover its contributions to WIYN by transferring its share of the Observatory to an existing Member or to a prospective member or members. Admission of a new member and transfer of a withdrawing Member’s share of WIYN, whether to a new or existing member, must be approved by two-thirds vote of the WIYN Board. If a suitable member or members for such a transfer cannot be found within eighteen months of notification of the desire to leave the WIYN Consortium, the withdrawing Member will forfeit all financial interest in the WIYN Consortium. In such a case, however, the withdrawing Member will be compensated for its investment in the form of observing time, if and when the Observatory is completed. Due account will be taken of any delay or increased expenses caused by the withdrawal when computing any observing time of the withdrawing Member. Compensation for any property which was provided by the Member, the title to which remains with the Member or with a State or the Federal Government, will be based on the fair market value of the use of such equipment prior to the withdrawal. If the withdrawing Member makes provisions for the continued use of such equipment by the WIYN Consortium, the Member will also be compensated for the future use of the equipment. The nature and amount of compensation will be determined by the Board or an Oversight committee prior to the date of withdrawal. If NOAO elects to transfer its share of WIYN, it must be recognized by the prospective member or members that the full NOAO share of the available WIYN observing time, as described in paragraph 5 of the Memorandum, assumes that the new Member will provide for the maintenance and operations of WIYN as described in paragraphs 15, 16, 18 and 19 and in the Memorandum.

38.) Upon completion of the commissioning phase, NOAO is obligated by this Agreement to provide maintenance and operation services for fifteen (15) years as long as the Cooperative Agreement between NSF and AURA and the successors to that Cooperative Agreement remains in effect. In keeping with Article XIII.2 of the Cooperative Agreement between NSF and AURA, NOAO will give the Board and all Consortium Members fourteen (14) months notice in advance if the Cooperative Agreement or a successor Agreement is either terminated or not renewed by the NSF, or in the event that the Agreement or any successor Agreement is terminated more quickly because of an action mandated by the United States Congress, NOAO will give as much advance notice as reasonably possible in the circumstances. NOAO will cooperate with the Board and all Consortium Members in facilitating a transfer of its responsibilities to a successor entity or in accommodating any other resolution possible in the circumstances then existing. If NOAO withdraws from the WIYN Consortium, NOAO may not remove any assets of the Consortium without the approval of the Board.

39.) Any Member who withdraws from the WIYN Consortium shall not be entitled to recover any capital, purchased property, or operating contributions it has made, unless such withdrawal is within the terms of paragraph 35 and 37. Recovery of property upon dissolution of the WIYN Consortium is covered in paragraph 34. Upon withdrawal, a former Member will remain obligated to pay any contributions to the WIYN Consortium which are due and owing at the time of withdrawal. A former Member’s access to the Observatory will be the same as that of any other nonmember, except for the observing time provision of paragraphs 35 and 37.

40.) The WIYN Consortium shall retain the right to full use of all in-kind property to which title was transferred to the Consortium even if the Member of such property withdraws from the

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Consortium, except that the withdrawing Member may elect to provide equivalent replacements or cash in lieu of allowing continued use of such property. Prior to such substitution, the Board must approve the identity and value of any substituted property.

Transfer of a Partial Share of Observing Time

41.) A Member which finds that it cannot meet its financial or material obligations under this Agreement must withdraw, according to procedures of paragraphs 37 to 40, or default, according the procedures of paragraphs 42 and 43 with the following exceptions. If an existing Member or suitable new member can be found to take on the obligations which the Member cannot meet within eighteen months of the announcement by the Member of its need to do so, the Member may continue, as a Member of the WIYN Consortium with a proportionately reduced share of observing time by transferring a portion of its original share. Transfer of a share in WIYN Consortium, whether to a new member or an existing Member, must be approved by two-thirds vote of all the Directors with voting rights then in office. The precise conditions of such a transfer will be negotiated and approved by the Board and might involve revision or amendment of this Agreement. Due account will be taken of any delay or increased expenses caused by the transfer when computing the reduced observing time of the transferring Member.

Default

42.) The Board shall issue a notice of default to any Member whose obligations under this Agreement or as set forth in the Memorandum including such modifications as are adopted by the Board are overdue by six (6) months. The defaulting Member shall have one year from such notice to remedy the default by performing all obligations which are due as of the date of such performance or to negotiate a transfer of all or such part of its share as is necessary to cure such default in accord with paragraphs 37 and 41. While in default, a Member loses voting rights on the Board but may appeal disputes to the Oversight Committee. If the defaulting Member does not cure the default during the one year period, the defaulting Member forfeits its membership in the WIYN Consortium. The non-defaulting Members shall have the right to complete the design and construction of the observatory and operate it. The completing and operation of the Observatory shall be at the sole expense of the non-defaulting Members, but may be carried out by Members with such other entities as the non-defaulting Members, acting through the Board at their sole discretion, chose.

43.) If the non-defaulting Members complete and operate the observatory, the defaulting Member will be entitled to a portion of the observing time. Due account will be taken of any delay or increases expenses caused by the default when computing the observing time of the defaulting Member. Compensation for any property which was provided by the Member, the title to which remains with the Member or with a State or the Federal Government, will be based on the fair market value of the use of such equipment prior to the removal from membership. If the defaulting Member makes provisions for the continued use of such equipment by the WIYN Consortium, the Member will also be compensated for the future use of the equipment. The

D:\WIYN AGREEMENT.doc 13 As amended through April 2004 nature and amount of such observing time will be determined by the Board or, at the request of the defaulting party or other Member, by an Oversight Committee.

Site Lease

44.) WIYN will negotiate a sublease from NSF for the Observatory site at terms and conditions satisfactory to the Board. If a sublease as set forth in this paragraph is not negotiated within twelve (12) months after the effective date of this Agreement, the Board will dissolve the WIYN Consortium.

Liability

45.) The WIYN Consortium shall have primary responsibility for Consortium personnel and property. Each Member shall be responsible for any and all liability, including claims, demands, losses, costs, damages, and expenses of every kind and description (including death), or damages to its own personnel and restricted use instruments and other property that is only available for use by that Member. The WIYN Consortium will procure and maintain comprehensive general liability insurance and directors’ and officers’ liability insurance in such amounts as the Board shall decide. The WIYN Consortium will insure for the physical loss of Observatory property, including general use instruments and other property that is available for use by all of the Members even if such property is not owned by the Consortium. The cost of insurance to insure for the physical loss of Observatory property and to protect the WIYN Consortium and the Board against claims for personal injury or property damage will be shared by the Members in proportion to observing time allocation as set forth in paragraph 5 of the Memorandum.

Amendment

46.) This Agreement may be amended only by a two-thirds vote of all of the Directors with voting rights then in office.

Memorandum

47.) The Memorandum which details the specific obligations of Members during the construction, commissioning, and operations phases, the consequent allocation of observing time, and procedures for modifying these obligations and allocations can be altered as needed by action of the Board without affecting this Agreement.

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Primary Representation

48.) Each Member will designate and maintain a Principal Representative who shall receive communications with respect to the performance of this Agreement.

For NOAO: Dr. Sidney Wolff Director NOAO P.O. Box 26732 Tucson, AZ 82726 602-325-9282 FAX 602-325-9360 For UW: Dr. John D. Wiley Dean of the Graduate School University of Wisconsin Madison 333 Bascom Hall Madison, WI 53706 608-262-1044 FAX 608-262-5134 FOR IU: Dr. Morton Lowengrub Dean College of Arts and Sciences Kirkwood 104 Indiana University Bloomington, IN 47405 812-855-2392 FAX 812-855-5678 FOR YALE: Dr. Robert Szczarba Deputy Provost for Physical Sciences and Engineering Yale University . 113 Hall of Graduate Studies 320 York Street New Haven, CT 06520 203-432-4448 FAX 203-432-7107

The designation of the primary representative may be changed upon written notice to the Board.

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Execution

49.) This Agreement may be executed in any one or more counterparts, each of which shall be deemed to be an original instrument, but all of which together shall constitute but one instrument.

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Signature Page on file at NOAO

The effective date of this Agreement shall be the 18th day of October, 1990

Signed for THE BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN by: Donna E. Shalala Chancellor University of Wisconsin-Madison June 12, 1990

Signed for THE TRUSTEES OF INDIANA UNIVERSITY by: Kenneth R. R. Gros Louis Vice President, Indiana University; Chancellor, Indiana University Bloomington June 13, 1990

John D. Mulholland Treasurer, Indiana University June 20, 1990

Signed for YALE UNIVERSITY by: Benno C. Schmidt, Jr. President Yale University New Haven Connecticut June 29, 1990

Signed for the ASSOCIATION OF UNIVERSITITIES FOR RESEARCH IN ASTRONOMY, INC. by: Goetz K. Oertel President AURA, Inc. October 18, 1990

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EXHIBIT A

MEMORANDUM

This Memorandum summarizes the agreed-upon intentions of the four Members of the WIYN Consortium with respect to the obligations and benefits of the four parties.

1.) It is the intention of the University Members to provide the following Capital Contributions over the time period 1989-1994; the University of Wisconsin $4.51M, Indiana University $2.95M, and Yale University $2.95M. In-kind contributions toward these amounts must be approved by the WIYN Board. A Member wishing to make an in-kind contribution must present a proposal to the Board which includes a budget. The Board and the Member will negotiate the method and schedule by which the Member’s contribution will be credited, either by release from specified Capital Contributions in specified quarters, by reimbursement from WIYN funds already contributed, or some other means. The schedule of payments for Capital Contributions is given in Table 1 of this Memorandum. These numbers are actual dollars, assuming a 5% inflation rate. They include a low and high resolution fiber-optic multi-object spectrograph with detector system valued at $1.OOM in 1989 dollars; they include the telescope, enclosure, optical and control systems, auxiliary building, and 60% of the WIYN Director’s salary and benefits valued at $7.46M in 1989 dollars; and they include a CCD imagining camera with an estimated value of $300K in 1989 dollars. They also include 60% of expenses associated with commissioning at an estimated total value of $300K in 1989 dollars and 60% of annual corporation costs beginning upon incorporation of WIYN with an estimated total value of $60K/yr in 1989 dollars. The $60K/yr corporation expenses include $30K/yr for insurance, $20K/yr for fiscal management, and $lOK/yr for legal services.

2.) NOAO will provide to WIYN the finished 3.5 meter primary mirror and its support structure. For the purpose of calculating the Capital Contribution by NOAO, the 3.5 meter mirror and its support structure will be valued at $2.73M in 1989 dollars. NOAO will also pay 40% of the WIYN Director’s salary and benefits. NOAO will provide on Kitt Peak a cleared and leveled site suitable to the Board for the WIYN Observatory and auxiliary buildings. NOAO will also provide 40% of expenses associated with commissioning at an estimated total value of $300K in 1989 dollars and 40% of annual corporation costs beginning upon incorporation of WIYN with an estimated total value of $60K/yr in 1989 dollars.

3.) During the operations phase, WIYN technical support personnel will amount to 6.5 FTE, initially estimated to be: electrical engineer (0.25 FTE), mechanical engineer (0.25 FTE), dedicated telescope operators (2.00 FTE), electronics technician (1.0 FTE), electromechanical technician (1.0 FTE), computer programmer (1.0 FTE), and a dedicated instrument specialist/Operations Manager (1.0 FTE). In addition to the indicated staffing, the following items are included in operations: normal monthly utilities, long distance telephone use by Observatory staff, janitorial service, shuttle privileges, routine building maintenance, aluminizing of mirrors, meals and lodging for the 6.5 FTE employees while

D:\WIYN AGREEMENT.doc 18 As amended through April 2004 working on Kitt Peak and in accord with NOAO policy, and supplies and equipment amounting to approximately $50K per year in 1989 dollars. The total cost of operations and maintenance is established as $522K per year in 1989 dollars, as computed by a "footprint" method which uses telescope building footprints to allocate shares of Kitt Peak Mountain Operations costs. The estimated share for WIYN of Mountain Operations is 9.5%, which includes the 1.0 FTE for an electromechanical technician. The closing of other telescopes on Kitt Peak in the future is not an adequate justification for increasing the 1989 value of maintenance and operations adopted above. Subject to renewal of the Cooperative Agreement between NSF and AURA, NOAO is obligated to pay $363.2K per year in 1989 dollars of this established $522K annual cost, including 0.4 FTE of the instrument specialist/Operations Manager. The established cost and level of operations and maintenance support will be renegotiated five years after the start of the operations phase. In addition, NOAO will provide oversight by instrument scientists for the WIYN general use instruments.

4.) During the initial 15 years of the operations phase, subject to renegotiation at the end of the fifth year as provided by paragraph 3, the University Members will provide $158.8K/yr in 1989 dollars of the $522K/yr maintenance and operations costs in proportion to their observing time allocations, including 0.6 FTE of the instrument specialist/Operations Manager. In addition, the University Members will be responsible for the cost of such items as meals and lodging for their observers, cryogenics, and maintenance of University equipment, direct charges for long distance telephone calls and remote observing, and observing supplies like magnetic tapes. All labor charges associated with these activities will be at direct charge rates, plus the current NSF- approved indirect rates.

5.) If UW, IU, Yale, and NOAO meet the obligations detailed in paragraphs 1 to 4 of this Memorandum, then the observing time remaining after the allocation of maintenance and discretionary time (see paragraph 25 of the Agreement) will be apportioned as follows:

University of Wisconsin 26% Indiana University 17% Yale University 7% National Optical Astronomy Observatories 40%

6.) During any phase of this project, if costs rise above those for which the members are obligated under this Memorandum and the Agreement, the Members will share the additional expense in proportion to their target observing time shares in paragraph 5, if possible. Alternatively, any of the WIYN Members has the option of requiring the revision of the allocated shares of observing time. This recomputation will be made in adjusted 1989 dollars by tallying the total known and projected costs of the project with overruns, including 15 years of maintenance and operations. The observing time share of each Member is then to be the actual and projected contribution by the Member in adjusted 1989 dollars divided by the total project costs in adjusted 1989 dollars. After the discretionary and maintenance time allocations approved by the Board are subtracted from the total time available, the remaining telescope time shall be allocated to the Members in the new proportions. If a WIYN Member has invoked the above procedure, the proportions so computed will replace those given in paragraph 5 of this Memorandum for the initial telescope time allocations.

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7.) The procedure for recomputation of observing time shares described in paragraph 6 of this Memorandum may also be invoked for reasons other than cost overruns, including changes in payment schedules by the Board, withdrawal and default of Members, payments in arrears by Members, transfers of observing time shares, and admission of a new member. The 1989 values adopted in the Memorandum may only be changed in such computations by an action of the WIYN Board.

8.) In this Memorandum and in the accompanying Estimated Costs and Schedule document (Exhibit B), the value in 1989 dollars of a service or capital item is understood to mean the cost of that service or item if rendered or purchased entirely in 1989. For the computed actual dollar cost of the service or item in a later year, as in Table 1 of this Memorandum and Table 1 of the Estimated Costs and Schedule document (Exhibit B), an annual inflation rate of 5% is used. For the purposes of comparing the relative values of disparate contributions by Members to the total project, the inflated actual dollar value of a service or item in a given year is discounted back to 1989 at an annual rate of 8.5%. The latter is then referred to as the "adjusted 1989 value", as in Table 2 of the Estimated Costs and Schedule document (Exhibit B).

9.) It will require a unanimous vote of the Board to change the following numbers adopted in this Memorandum: the 5% inflation rate; the 8.5% discount rate; the 1989 dollar values of the mirror and its support structure ($2.73M) and of the multi-object spectrograph and detector system ($1.OOM); and the 1989 dollar value of the first five years of operations and maintenance ($522K/yr).

10.) The WIYN Consortium will negotiate a sublease from NSF for the WIYN Observatory site at a rental or charge not to exceed the amount set forth in Resolution 1991-10 for as long as the site is used for astronomical research, such sublease to remain in effect regardless of whether NOAO continues as a Member of the Consortium or withdraws from or defaults on the Agreement at any time.

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TABLE 1

WIYN PAYMENT SCHEDULE UNIVERSITY CAPITAL CONTRIBUTIONS

Year UW IU Yale 1989 $108K $ 82K $ 0K 1990 Jan. 0 0 0 April 0 0 89 July 291 179 179 Oct. 57 37 37 1991 Jan. 281 184 184 April 260 170 170 July 740 483 483 Oct. 465 305 305 1992 Jan. 248 162 162 April 222 145 145 July 545 356 356 Oct. 471 308 308 1993 Jan. 189 123 123 April 51 33 33 July 458 301 301 Oct. 40 26 26 1994 Jan. 80 53 53 TOTALS $4506K $2947K $2954K

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EXHIBIT B

ESTIMATED COSTS AND SCHEDULE

The following tables give projected expenditures by IU, UW, Yale, and NOAO for construction, commissioning, and 15 years of operations based on the best available plans and estimates, assuming completion of the construction phase in the first half of 1993. Table 1 details these projected expenditures incorporating a 5% annual inflation rate. Table 2 adjusts these expenditures to 1989 dollars using an 8.5% annual discount rate. The Members are not bound to make payments to meet these projected expenditures in these tables except as otherwise specified in the accompanying Agreement and Memorandum. The numbers included in these tables are our best current estimates but are subject to revision. The purpose of these tables is to show that the division of institutional contributions to the various phases of this project as envisioned in the Agreement and Memorandum leads to the target proportionate shares of 17:26:17:40 for IU, UW, Yale, and NOAO, respectively, as shown in Table 2.

The following 1989 values have been adopted:

Mirror and Support Structure $2.73M Multi-Object Spectrograph 1.00M Operations and Maintenance 0.522M/yr

An additional $300K in 1989 dollars for a CCD camera is included in the Universities’ totals. The exact value of the camera remains to be determined and set by the Board. The capital expenditures by the Universities are distributed among IU, UW, and Yale, along with the camera and MOS, in 17:26:17 proportions. The operations and maintenance costs are assumed to begin in mid-1994. Starting in mid-1990, corporation expenses with an estimated value of $60K/yr in 1989 dollars are distributed in 17:26:17:40 proportions. Commissioning expenses with an estimated value of $300K are distributed in the same proportions in 1993 and 1994.

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TABLE 1

PROTECTED EXPENDITURES (in Thousands of Dollars)

Year IU UW Yale NOAC 1989 $ 82 $ 108 $ 0 $1607 1990 216 348 305 718 1991 1142 1746 1142 607 1992 971 1486 971 126 1993 483 738 483 144 1994 94 143 94 339 1995 74 113 74 519 1996 78 119 78 545 1997 82 125 82 572 1998 86 131 86 601 1999 90 138 90 631 2000 94 144 94 662 2001 99 152 99 695 2002 104 159 104 730 2003 109 167 109 767 2004 115 176 115 805 2005 120 184 120 845 2006 127 194 127 887 2007 133 203 133 932 2008 139 213 139 978 2009 60 91 60 482

Total Operations (in Thousands of 1989 Dollars): $522.0/ yr IU Share 45.0/ yr UW Share 68.8/ yr Yale Share 45.0/ yr. NOAO Share 363.2/ yr

Note: The numbers in this table include an annual inflation rate of 5%.

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TABLE 2

PROJECTED EXPENDITURES BY YEAR ADJUSTED TO 1989 DOLLARS (In Thousands of Dollars)

Year IU UW Yale NOAO 1989 $ 82 $ 108 $ 0 $1607 1990 199 321 281 662 1991 970 1483 970 516 1992 761 1163 761 98 1993 348 533 348 104 1994 62 95 62 225 1995 45 69 45 318 1996 44 67 44 308 1997 42 65 42 298 1998 41 63 41 288 1999 40 61 40 279 2000 38 59 38 270 2001 37 57 37 261 2002 36 55 36 253 2003 35 53 35 245 2004 34 52 34 237 2005 33 50 33 229 2006 32 48 32 222 2007 31 47 31 215 2008 30 45 30 208 2009 12 18 12 94

Dollars $2951 $4513 $2951 $6936 Percent 17.0 26.0 17.0 40.0

Universities $10415 60.0$ NOAO $ 6936 40.0 TOTAL $17351

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