HomeMy WebLinkAboutResolution 2000-064 agreement for delivery of CAP incentive recharge water F. ANN RODRIGUEZ, RECORDER
RECORDED B~: DSC
DEPUT]~ RECORDER
1212 ROOF
SMa~A
TOWN OF M~RANA
ATTN: TOWN CLERK
13251 N LON ADAMS RD
M~RANA AZ 85653
DOCKET: 11316
PAGE: 1552
NO. OF PAGES: 2
SEQUENCE: 20001120589
06/09/2000
RES 16:22
M~IL
AMOUNT PAID $ 8.00
MARANA RESOLUTION NO. 2000-64
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA,
ACCEPTING AND AUTHORIZING THE APPROVAL OF AN AGREEMENT BETWEEN THE
TOWN OF MARANA AND CENTRAL ARIZONA WATER CONSERVATION DISTRICT
PROVDING FOR THE DELIVERY OF CENTRAL ARIZONA PROJECT INCENTIVE
RECHARGE WATER.
WHEREAS, the Town of Marana, in order to maintain its Designation of Assured Water
Supply, is required by the Arizona Department of Water Resources (ADWR) to recharge or directly
use renewable resource water to offset the groundwater pumped each year; and
WHEREAS, the Town of Marana pumped 464 acre-feet of groundwater in 1999 and has a
current agreement with CAWCD to acquire 47 acre-feet of CAP water for recharge; and
WHEREAS, the United States of America, acting through the Deparlrnent of the Interior, and
the Central Arizona Water Conservation District (the "CAWCD") entered into an agreement on
December 1, 1988, whereby the CAWCD may sell for various uses water that is not already allocated
for distribution by the CAWCD; and
WHEREAS, the Town of Marana desires to obtain an additional source of water for the
purpose of recharge or directly using a renewable water source to fulfill its Designation of Assured
Water Supply; and
WHEREAS, the CAWCD may annually have additional water that the Town may use for
recharge or for directly using a renewable water source and has offered to contract, through the
Agreement, with the Town for the contingent purchase of that water; and
WHEREAS, acceptance of the Agreement between the Town of Marana and the CAWCD
providing for the delivery of Central Arizona Project ("CAP") Incentive Recharge water will enable
the Town to contingently purchase additional CAP incentive recharge water; and
WHEREAS, the Town will contract with Cortaro/Marana Irrigation District to recharge the
CAP water and the Town will gain stored water credits for the recharged water, which will satisfy
the recharge requirement of ADWR.
WHEREAS, the Mayor and Council find that it is in the best interest of the Town to enter
into the Agreement with CAWCD to purchase CAP Incentive Recharge water; and
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Marana, Arizona Resolution No. 2000-64 Page I of 2 '~
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of
Marana, Arizona, accepting and authorizing the approval of the Agreement between the Town of
Marana and the Central Arizona Water Conservation District providing for the delivery of Central
Arizona Project Incentive Recharge Water.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this
6th day of June 2000.
ATTEST: Mayo~3(~Bi~Y SUTTON, JR.
~/f'Jocel/d(C. Entz
G/ Town Clerk
APPROVED AS TO FORM:
--~'"'"'-'-Daniel J. Hoct/td'i, Esq.
As Town Attorney
and not personally
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Marana, Arizona Resolution No. 21×)0d>4 Page 2 of 2
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F. ANN RODRIGU RECORDER
RECORDED BY: D::.""
DEPUTY RECORDER
1212 ROOE
SMARA
TOWN OF MARANA
ATTN: TOWN CLERK
13251 N LON ADAMS RD
MARANA AZ 85653
AGREEMENT
Between
D(-~7~T: 11335
P~_ ...: 1432
NO. OF PAGES: 90
SEQUENCE: 20001310404
07/07/2000
AG 15:48
MAIL
AMOUNT PAID $ 50.50
THE CENTRAL ARIZONA WATER CONSERVATION DISTRICT
And
TOWN OF MARAN A
PROVIDING FOR THE DELIVERY OF
CENTRAL ARIZONA PROJECT INCENTIVE RECHARGE WATER
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Incentive Recharge Contract
[4/27/00]
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AGREEMENT BETWEEN THE CENTRAL ARIZONA
WATER CONSERVATION DISTRICT AND TOWN OF MARANA
PROVIDING FOR THE DELIVERY OF
CENTRAL ARIZONA PROJECT INCENTIVE RECHARGE WATER
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Preamble
6
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1.
THIS AGREEMENT, made this 23rd day of
June
8 2000, in pursuance generally of the Act of June 17, 1902 (32 Stat.
9 388), and acts amendatory thereof or supplementary thereto, including
10 but not limited to the Boulder Canyon Project Act of December 21, 1928
11 (45 Stat. 1057, as amended, the Reclamation Project Act of August 4,
12 1939 (53 Stat. 1187), as amended, the Reclamation Reform Act of
13 October 12, 1982 (96 Stat. 1263), and particularly the Colorado River
14 Basin Project Act of September 30, 1968 (82 Stat. 885), as amended
15 (the "Basin proj ect Act"), between the CENTRAL 'ARIZONA WATER
16 CONSERVATION DISTRICT ("CAWCD") and TOWN OF MARANA ("Contractor");
17 WITNESSETH, THAT:
18 Explanatory Recitals
19
2 .
WHEREAS, the Basin proj ect Act provides, among other things,
20 that for the purposes of furnishing irrigation and municipal and
21 industrial ("M&I") water supplies to water deficient areas of Arizona
22 and western New Mexico through direct diversion or exchange of water,
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23 control of floods, conservation and development of fish and wildlife
24 resources, enhancement of recreation opportunities, and for other
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25 purposes, the Secretary shall construct, operate, and maintain the
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26 Central Arizona proj ect, hereinafter referred to as the "proj ect"; and
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WHEREAS, the united States and CAWCD have entered into
2 Contract No. 14-06-W-245, Amendment No.1, dated December 1, 1988,
3 hereinafter referred to as the "Repayment Contract," which is attached
4 hereto as Exhibit A and by this reference made a part hereof, whereby
5 CAWCD has agreed to repay to the United States the reimbursable costs
6 of the Project allocated to CAWCD; and
7
WHEREAS, Article 8.7(e) of the Repayment Contract grants
8 CAWCD the authority to resell or exchange Excess Water; and
9
WHEREAS, the Contractor is in need of a water supply and
10 desires to contract with CAWCD for Incentive Recharge Water;
11 NOW, THEREFORE, in consideration of the mutual and dependent
12 covenants herein contained, it is agreed as follows:
13 Repavment Contract Controlling
14
3.
The Contractor expressly approves and agrees to all the
15 terms presently set out in the Repayment Contract, or as such terms
16 may be hereafter amended, and agrees to be bound by the actions to be
17 taken and the determinations to be made under that Repayment Contract,
18 except as otherwise provided herein.
Definitions included in the
19 Repayment Contract are applicable to this Agreement, Provided,
20 however, that the terms "Agricultural Water" or "Irrigation Water"
21 shall mean water used for the purposes defined in the Repayment
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22 Contract on tracts of land operated in units of more than 5 acres.
23 The first letters of terms so defined are capitalized herein.
24 Additional Definitions
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4.
"Excess Water" shall mean Project Water which, in any Year,
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26 is available for delivery and has not been scheduled for delivery
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1 pursuant to a contract with the United States or a subcontract with
2 the United States and CAWCD providing for Project Water service for a
3 period of 50 years or more.
4
5.
"Incentive Recharge Water" shall mean specially priced
5 Excess Water made available by CAWCD to M&I subcontractors on an
6 annual basis for recharge purposes only.
7 Delivery of Water by CAWCD
8
6.
In so far as Project Water supplies and the delivery
9 capability of the Project will permit, and subject to the provisions
10 of the RepaYment Contract, CAWCD will deliver Incentive Recharge Water
11 to the Contractor in an amount, and at a water service charge, to be
12 determined in accordance with the terms of this Agreement. The
13 determination of whether and how much Incentive Recharge Water is
14 available for delivery under this Agreement in any year, is a
15 determination within the exclusive discretion of CAWCD; Provided,
16 however, that delivery of Incentive Recharge Water under this
17 Agreement shall be subj ect to the prior satisfaction of all water
18 deliveries scheduled pursuant to a contract with the United States or
19 a subcontract with the United States and CAWCD providing for Project
20 Water service for a period of 50 years or more.
21
Term
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7.
This Agreement shall terminate on December 31, 2003, unless
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23 the parties agree in writing to extend the term or unless it is sooner
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24 terminated in accordance with Article 15 hereof.
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25 Conditions Relating to Delivery and Use
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The delivery and use of water under this Agreement is
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1 conditioned on the following, and the Contractor hereby agrees that:
2
(a) All uses of Project Water and Return Flow shall be
3 consistent with Arizona water law except to the extent that such law
4 is inconsistent with the Congressional directives applicable to the
5 Central Arizona Project.
6
(b)
Project Water furnished to the Contractor pursuant to
7 this Agreement shall be used within Contractor's service area or place
8 of use for direct or indirect recharge purposes only. The
9 Contractor's service area or place of use is described in Exhibit B
10 which is incorporated by reference and may be amended by Contractor
11 from time to time.
12
(c) The system or systems through which Project Water is
13 conveyed after delivery to the Contractor shall consist of pipelines,
14 canals, distribution systems, or other conduits which will prevent
15 excessi ve conveyance losses.
16
(d) Project Water furnished to the Contractor pursuant to
17 this Agreement may not be resold or exchanged by the Contractor
18 without the prior written approval of CAWCD.
If, with the prior
19 approval of CAWCD, such water is resold or exchanged by the Contractor
20 for an amount in excess of that which the Contractor is obligated to
21 pay under this Agreement, the excess amount shall be paid forthwith by
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22 the Contractor to CAWCD; Provided, however, that the Contractor shall
23 be entitled to recover its actual costs, if any, in transporting and
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~ distributing such water.
The provisions of this Article 8(d) shall
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25 not apply to any sale or exchange of stored water credits earned by
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26 Contractor pursuant to this Agreement.
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(e) Except as otherwise agreed by CAWCD, the Contractor
2 shall not sell or otherwise dispose of or permit the sale or other
3 disposition of any Project Water for use outside of Maricopa, Pinal,
4 or pima Counties.
5
(f) Notwithstanding any other provision of this Agreement,
6 project Water shall not be delivered to the Contractor unless and
7 until the Contractor has obtained final environmental clearance from
8 CAWCD for the system or systems through which Project Water is to be
9 conveyed after delivery to the Contractor at the Contractor's Project
10 delivery point.
11
(g) The Contractor may direct that Incentive Recharge Water
12 made available pursuant to this Agreement be delivered to a
13 groundwater savings facility for indirect recharge pursuant to a
14 separate agreement between the Contractor and the operator of the
15 groundwater savings facility; Provided, however, that:
16
(i) Incentive Recharge Water shall be used by an
17 identified groundwater user on a gallon-for-gallon substitute basis
18 directly in lieu of groundwater as provided in A.R.S. ~ 45-812.01.
19 (ii) The Contractor and the operator of the groundwater
20 savings facility must demonstrate to CAWCD's satisfaction that they
21 have the appropriate permits issued by the Arizona Department of Water
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22 Resources.
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23 (iii) Where the operator of the groundwater savings
24 facility is an agricultural entity participating in CAWCD' s target
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25 pricing program, only proj ect Water over and above the amount of
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26 Project Water taken by the agricultural entity in the immediately
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1 preceding year, not including Incentive Recharge Water, may qualify as
2 Incentive Recharge Water.
3 (iv) The Contractor shall provide CAWCD a copy of its
4 agreement with the operator of the groundwater savings facility for
5 Incentive Recharge Water.
6
(h) Only Project Water for which the Contractor receives
7 long-term storage credits from the Arizona Department of Water
8 Resources may qualify as Incentive Recharge Water.
9
(i)
Upon the expiration of this Agreement, CAWCD will
10 determine whether any Project Water delivered pursuant to this
11 Agreement did not qualify as Incentive Recharge Water for the reasons
12 specified in sections 8(g) (iii) or 8(h) of this Agreement. For any
13 such Project Water not qualifying as Incentive Recharge Water, CAWCD
14 will bill the Contractor for the difference between the water service
15 charge for Incentive Recharge Water and the standard M&I water service
16 charge.
17 Procedure for Ordering Water
18
9.
(a) On or before the date of execution of this Agreement,
19 or as soon thereafter as is practicable, CAWCD will notify the
20 Contractor of the amount of Incentive Recharge Water available for
22 shall, within a reasonable period of time as determined by CAWCD,
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21 delivery during the initial year of this Agreement. The Contractor
23 submit a written schedule to CAWCD showing the quantity of Incentive
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25 initial year. CAWCD will review the requested schedule and determine
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26 whether Incentive Recharge Water is available for delivery, and, if
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1 so, the amount of Incentive Recharge Water available for delivery
2 under this Agreement during the initial year. within thirty (30) days
3 of CAWCD's receipt of the Contractor's requested schedule, CAWCD shall
4 determine and furnish to the Contractor a water delivery schedule
5 which shall show the amount of Incentive Recharge Water projected to
6 be delivered to the Contractor during each month of the initial year,
7 contingent upon the Contractor remaining eligible to receive water
8 under all terms contained herein.
9
(b) The amounts, times, and rates of delivery of Incentive
10 Recharge Water to the Contractor during any subsequent year shall be
11 in accordance with a water delivery schedule for that year.
Such
12 schedule shall be determined in the following manner:
13
(i) On or before October 15 of each year beginning
14 with October 15 of the initial year of water delivery, CAWCD shall
15 issue to the Contractor a notice of availability of Incentive Recharge
16 Water for the following year.
17
(ii) Within thirty days of
CAWCD's notice of
18 availability, the Contractor shall submit in writing to CAWCD a water
19 delivery schedule indicating the amounts of Incentive Recharge Water
20 desired by the Contractor during each month of the following year.
21 (iii) Upon receipt of the schedule, CAWCD shall review
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22 it together with all other water delivery schedules, and determine the
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23 amount of Incentive Recharge Water available for delivery under this
M Agreement in the following year.
25 (iv) On or before December 15 of each year, CAWCD shall
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26 determine and furnish to the Contractor the water delivery schedule
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1 for the following year which shall show the amount of Incentive
2 Recharge Water to be delivered to the Contractor during each month of
3 that year, contingent upon the Contractor remaining eligible to
4 receive water under all terms contained herein.
5
(c) The monthly water delivery schedule may be amended upon
6 the Contractor's written request to CAWCD. Proposed amendments shall
7 be submitted by the Contractor to CAWCD no later than 15 days before
8 the desired change is to become effective, and shall be subject to
9 review and modification in like manner as the schedule. CAWCD shall
10 notify the Contractor of its action on the Contractor I s requested
11 schedule modification within 10 days of CAWCD 1 S receipt of such
12 request.
13
(d)
If the Contractor elects to have Incentive Recharge
14 Water made available pursuant to this Agreement delivered to a
15 groundwater savings facility for indirect recharge, CAWCD will
16 coordinate delivery of Incentive Recharge Water directly with the
17 operator of the groundwater savings facility.
18
(e) The Contractor shall hold CAWCD, its officers, agents,
19 and employees, harmless on account of damage or claim of damage of any
20 nature whatsoever arising out of or connected with the actions of
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21 CAWCD regarding water delivery schedules furnished by or to the
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22 Contractor.
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Contractor's Project Delivery Point, Measurement
and Responsibility for Distribution of Water
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(a) Incentive Recharge Water furnished to the Contractor
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pursuant to this Agreement shall be delivered to the Contractor at U
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1 such point(s) on the Water Supply System as are agreed upon in writing
2 by CAWCD and the Contractor. All such point(s) shall hereinafter be
3 referred to as the "Contractor's Project delivery point."
4
(b) Unless CAWCD and the Contractor agree by contract to
5 the contrary, the Contractor shall construct and install, at its sole
6 cost and expense, all connection facilities required to convey water
7 furnished to the Contractor pursuant to this Agreement to the
8 Contractor's service area or place of use, as the case may be. The
9 Contractor shall furnish, for written approval by CAWCD, drawings and
10 specifications showing all connection facilities to be constructed or
11 installed within the Water Supply System right-of-way, and shall
12 obtain such approval before commencing construction or installation of
13 such facilities. All facilities constructed, installed, operated or
14 maintained on the Water Supply System right-of-way by or for the
15 Contractor shall be subject to such further agreements and to such
16 restrictions and regulations as to type, location, method of
17 installation, operation, and maintenance as may be prescribed by
18 CAWCD.
19
(c) The Contractor shall construct, operate, and maintain
20 its connection facilities and appurtenant works in a good and
21 workmanlike manner and in full compliance with the laws of the State
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22 of Arizona and with all laws, regulations, and orders of the United
23 States affecting such operations. The failure of the Contractor after
~ due notice to construct, operate, and maintain its connection
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25 facilities and appurtenant works in a good and workmanlike manner or
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26 to abide by any of the terms and conditions of any applicable laws,
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1 regulations, or orders, shall cause this Agreement to be subject to
2 immediate termination at the option of CAWCD.
The Contractor shall
3 reimburse CAWCD within thirty (30) days of Contractor's receipt of a
4 statement for the costs of repairing any damage to Project facilities
5 or Project rights-of-way caused by or arising out of the Contractor's
6 activities under this Agreement.
7
(d) Upon termination of this Agreement, the Contractor
8 shall promptly remove, at its sole cost and expense, all connection
9 facilities constructed or installed on the Water Supply System
10 right-of-way and restore said right-of-way and all Project facilities
11 affected to their condition immediately prior to the construction or
12 installation of such connection facilities. If the Contractor fails
13 to remove said connection facilities and restore said right-of-way and
14 Project facilities within thirty (30) days after receiving any written
15 notice from CAWCD to do so, CAWCD may remove said connection
16 facilities and restore said right-of-way and Project facilities at the
17 Contractor's cost and expense, and, within thirty (30) days after
18 receiving written demand from CAWCD to do so, the Contractor shall pay
19 CAWCD, as specified in such written demand, for all costs and expenses
20 incurred by CAWCD in removing said connection facilities and restoring
21 said right-of-way and Project facilities.
22
(e)
If the Contractor I s Project delivery point is a Project
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23 turnout or Project turnouts constructed by the United States, and if
~ the Contractor intends to convey water furnished to the Contractor
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25 pursuant to this Agreement through connection facilities owned or
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26 operated by others, the use by the Contractor of such connection
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1 facilities shall be the subject of written agreement(s) between the
2 Contractor and the owner(s) or operator(s) of such connection
3 facilities, and all such agreements shall include such terms and
4 conditions as may be required by CAWCD and shall be subject to the
5 prior, written approval of CAWCD before becoming binding upon the
6 parties thereto.
7
(f) Unless the Contractor's Project delivery point is a
8 Project turnout or Project turnouts constructed by the United States,
9 all water delivered from the Water Supply System shall be measured
10 with equipment furnished and installed by the Contractor and operated
11 and maintained by the Contractor at the Contractor's sole cost and
12 expense. The results of such measurements shall be reported to CAWCD
13 in such manner and at such time(s) as CAWCD may prescribe. Upon the
14 request of CAWCD, the accuracy of such measurements shall be
15 investigated by the Contractor, and any errors which are determined to
16 have occurred therein shall be adjusted; Provided, however, that in
17 the event the parties cannot agree on the required adjustment, CAWCD's
18 determination shall be conclusive.
19
(g) If the Contractor's Project delivery point is a project
20 turnout or Project turnouts constructed by the United States, all
21
water delivered from the Water Supply System shall be measured with
equipment furnished and installed by the United States and operated
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and maintained by CAWCD.
Upon the request of the Contractor, or
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25 CAWCD and the Contractor, and any errors which are mutually determined
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~ CAWCD, the accuracy of such measurements shall be investigated by
26 to have occurred therein shall be adjusted; Provided, however, that in
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1 the event the parties cannot agree on the required adjustment, CAWCD's
2 determination shall be conclusive.
3
(h) Neither the united States nor CAWCD shall be
4 responsible for the control, carriage, handling, use, disposal, or
5 distribution of water beyond the Contractor's Project delivery point.
6 The Contractor shall hold the united States and CAWCD harmless on
7 account of damage or claim of damage of any nature whatsoever for
8 which there is legal responsibility, including property damage,
9 personal injury, or death arising out of or connected with the
10 control, carriage, handling, use, disposal, or distribution of water
11 beyond the Contractor's Project delivery point.
12 Interruptions and Reductions
13
11. In addition to the right of the United States under
14 Subarticle 8.3(a) (iv) of the Repayment Contract to temporarily
15 discontinue or reduce the amount of water to be delivered, CAWCD may
16 discontinue or reduce the quantity of water to be furnished to the
17 Contractor as herein provided for the purposes of investigation,
18 inspection, construction, testing, maintenance, repair, or replacement
19 of any of the Project facilities or any part thereof. CAWCD may also
20 discontinue or reduce the quantity of water to be furnished to the
21 Contractor if there is insufficient Project Water or Project delivery
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22 capacity to deliver the Contractor's water order, the water orders of
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23 other contractors of Incentive Recharge Water and Excess Water
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25 with the United States or a subcontract with the United States and
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26 CAWCD providing for Project Water service for a period of 50 years or
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1 more. So far as feasible, CAWCD shall attempt to coordinate any such
2 discontinuance or reduction with the Contractor and to give the
3 Contractor due notice in advance of such discontinuance or reduction.
4 In case of emergency, no notice need be given. The united States, its
5 officers, agents, and employees, and CAWCD, its officers, agents, and
6 employees, shall not be liable for damages when, for any reason
7 whatsoever, any interruption, discontinuance, or reduction in delivery
8 of water occurs.
If any such discontinuance or temporary reduction
9 results in deliveries to the Contractor of less water than what has
10 been paid for in advance, the Contractor shall be entitled to be
11 reimbursed for the appropriate proportion of such advance paYments
12 prior to the date of the Contractor's next paYment of water service
13 charges or the Contractor may be given credit toward the next paYment
14 of water service charges if the Contractor should so desire.
15 No Lonq-Term Commitment to the Delivery of project Water
16
12. Nothing in this Agreement shall be construed as an
17 allocation of Project Water to the Contractor, nor shall this
18 Agreement entitle the Contractor to any Project Water other than as
19 provided herein.
20 Oualitv of Water
21 13. CAWCD does not warrant the quality of any Project Water
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22 furnished under this Agreement and is under no obligation to construct
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23 or furnish water treatment facilities to maintain or better the
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24 quality of any Project Water. The Contractor waives its right to make
25 a claim against the United States, CAWCD, or any other Project
26 subcontractor or contractor on account of the quality of Project Water
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1 or any changes in water quality caused by the commingling of Project
2 Water with other water.
3 Water Service Charqes
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14.
(a) The Contractor shall pay in advance water service
5 charges established annually by CAWCD.
On or before the date of
6 execution of this Agreement, or as soon thereafter as is practicable,
7 CAWCD shall notify the Contractor of the water service charges in
8 effect for the initial year of this Agreement. On or before October
9 15 of each year, CAWCD will notify the Contractor of the water service
10 charges in effect for the following year. On or before the first day
11 of each month, the Contractor shall pay CAWCD the water service
12 charges due for Incentive Recharge Water scheduled for delivery during
13 that month.
The Contractor shall pay in advance all water service
14 charges established by CAWCD for Incentive Recharge Water scheduled
15 for delivery under this Agreement; Provided, however, that the
16 Contractor shall be relieved of the pumping energy portion of the
17 water service charges associated with any Project Water scheduled for
18 delivery that is not delivered to the Contractor.
19
(b) The paYment of all water service charges when due under
20
this Agreement is a condition precedent to delivery of
Incentive
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Recharge Water.
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(c) The obligation of the Contractor to pay CAWCD as
23 provided in this Agreement is a legally binding obligation of the
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~ Contractor notwithstanding the manner in which the obligation may be
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25 distributed among the Contractor I s water users and notwithstanding the
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1 default of individual water users in their obligations to the
2 Contractor.
3 Termination of Contract
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15. If the Contractor remains in arrears in the payment of any
5 charges due CAWCD for a period of 60 days or more, CAWCD may terminate
6 this Agreement, which termination shall be effective 30 days after
7 mailing written notice of termination to the Contractor. The
8 Contractor shall remain obligated to pay all charges required to be
9 paid under this Agreement during the time period until and including
10 the date of termination.
The Contractor's obligation to pay any
11 amounts due but unpaid as of the date of termination shall survive
12 termination of this Agreement.
CAWCD's right to terminate this
13 Agreement as provided in this Article 15 shall be in addition to the
14 other rights of CAWCD under this Agreement and to all other rights
15 provided by law.
16 Charges for Delinquent Payments
17 16. (a) The Contractor shall be subj ect to interest,
administrative and penalty charges on delinquent installments or
18 payments. The Contractor shall pay an interest charge for each day
the payment is delinquent beyond the due date. When a payment becomes
19 60 days delinquent, the Contractor shall pay an administrative charge
to cover additional costs of billing and processing the delinquent
20 payment. When a payment is delinquent 90 days or more, the Contractor
shall pay an additional penalty charge of 6 percent per year for each
21 day the payment is delinquent beyond the due date. Further, the
Contractor shall pay any fees incurred for debt collection services
n associated with a delinquent payment.
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23 (b) The interest charge rate shall be the greater of the
rate prescribed quarterly in the Federal Register by the Department of
24 the Treasury for application to overdue payments, or the interest rate
of 0.5 percent per month prescribed by Section 6 of the Reclamation
25 Project Act of 1939 (Public Law 76-260). The interest charge rate
shall be determined as of the due date and remain fixed for the
26 duration of the delinquent period.
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1 (C) When a partial payment on a delinquent account is
received, the amount received shall be applied first to the penalty
2 and administrative charges, second, to the accrued interest, and third
to the overdue payment.
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Rules, Regulations and Determinations
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17. (a) The parties agree that the delivery of water or the use
5 of Federal facilities pursuant to this Agreement is subject to
Reclamation law, as amended and supplemented, and the rules and
6 regulations promulgated by the Secretary of the Interior under
Reclamation law.
7
(b) The Contracting Officer shall have the right to make
8 determinations necessary to administer this Agreement that are
consistent with the expressed and implied provisions of this
9 Agreement, the laws of the united States and the State of Arizona, and
the rules and regulations promulgated by the Secretary of the
10 Interior. Such determinations shall be made in consultation with
CAWCD and the Contractor.
11
Com?liance with Environmental Laws
12
18. The Contractor, in carrying out this Agreement, shall comply
13 with all applicable environmental laws and regulations of the united
States and the State of Arizona and shall obtain all required permits
14 or licenses from the appropriate Federal, State, or local authorities.
15 Equal Opportunity
16 19. During the performance of this Agreement, the Contractor
agrees as follows:
17
(a) The Contractor will not discriminate against any
18 employee or applicant for employment because of race, color, religion,
sex, or national origin. The Contractor will take affirmative action
19 to ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion, sex,
20 or national origin. Such action shall include, but not be limited to
the following: employment, upgrading, demotion, or transfer;
21 recruitment or recruitment advertising; layoff or termination; rates
of payor other forms of compensation; and selection for training,
22 including apprenticeship. The Contractor agrees to post in
conspicuous places, available to employees and applicants for
23 employment, notices to be provided by the Contracting Officer setting
forth the provisions of this nondiscrimination clause.
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(b) The Contractor will, in all solicitations or
25 advertisements for employees placed by or on behalf of the Contractor,
state that all qualified applicants will receive consideration for
26 employment without discrimination because of race, color, religion,
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1 sex, or national origin.
2 (c) The Contractor will send to each labor union or
representative of workers with which it has a collective bargaining
3 agreement or other contract or understanding, a notice, to be
provided by the Contracting Officer, advising said labor union or
4 workers' representative of the Contractor's commitments under Section
202 of Executive Order 11246 of September 24, 1965, .s amended, and
5 shall post copies of the notice in conspicuous places available to
employees and applicants for emploYment.
6
(d) The Contractor will comply with all provisions of
7 Executive Order No. 11246 of September 24, 1965, as amended, and of
the rules, regulations, and relevant orders of the Secretary of Labor.
8
(e) The Contractor will furnish all information and reports
9 required by said amended Executive Order and by the rules,
regulations, and orders of the Secretary of Labor, or pursuant
10 thereto, and will permit access to its books, records, and accounts by
the contracting Officer and the Secretary of Labor for purposes of
11 investigation to ascertain compliance with such rules, regulations,
and orders.
12
(f) In the event of the Contractor I s noncompliance with the
13 nondiscrimination clauses of this Agreement or with any of such rules,
regulations, or orders, this Agreement may be canceled, terminated, or
14 suspended, in whole or in part, and the Contractor may be declared
ineligible for further Government contracts in accordance with
15 procedures authorized in said amended Executive Order, and such other
sanctions may be imposed and remedies invoked as provided in said
16 amended Executive Order, or by rule, regulation, or order of the
Secretary of Labor, or as otherwise provided by law.
17
(g) The Contractor will include the provisions of
18 paragraphs (a) through (g) in every subcontract or purchase order
unless exempted by rules, regulations, or orders of the Secretary of
19 Labor issued pursuant to Section 204 of said amended Executive Order,
so that such provisions will be binding upon each subcontractor or
20 vendor. The Contractor will take such action with respect to any
subcontract or purchase order as may be directed by the Secretary of
21 Labor as a means of enforcing such provisions, including sanctions for
noncompliance; Provided, however, that in the event the Contractor
22 becomes involved in, or is threatened with, litigation with a
subcontractor or vendor as a result of such direction, the Contractor
23 may request the United States to enter into such litigation to protect
the interests of the United States.
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Compliance With Civil Riqhts Laws and Requlations
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20. (a)
Rights Act
The Contractor shall comply with Title VI of the Civil
of 1964 (42 U.S.C. 2000d), section 504 of the
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1 Rehabilitation Act of 1975 (Public Law 93-112, as amended), the Age
Discrimination Act of 1975 (42 U.S.C. 6101, et seq.) and any other
2 applicable civil rights laws, as well as with their respective
implementing regulations and guidelines imposed by the U. S. Department
3 of the Interior and/or Bureau of Reclamation.
4 (b) These statutes require that no person in the united
States shall, on the grounds of race, color, national origin,
5 handicap, or age, be excluded from participation in, be denied the
benefits of, or be otherwise subjected to discrimination under any
6 program or activity receiving financial assistance from the Bureau of
Reclamation. By executing this Agreement, the Contractor agrees to
7 immediately take any measures necessary to implement this obligation,
including permitting officials of the United States to inspect
8 premises, programs, and documents.
9 (c) The Contractor makes this Agreement in consideration of
and for the purpose of obtaining any and all Federal grants, loans,
10 contracts, property discounts or other Federal financial assistance
extended after the date hereof to the Contractor by the Bureau of
11 Reclamation, including installment paYffients after such date on account
of arrangements for Federal financial assistance which were approved
12 before such date. The Contractor recognizes and agrees that such
Federal assistance will be extended in reliance on the representations
13 and agreements made in this article, and that the United States
reserves the right to seek judicial enforcement thereof.
14
Books, Records, and Reports
15
21. The Contractor shall establish and maintain accounts and
16 other books and records pertaining to administration of the terms and
conditions of this Agreement, including: the Contractor's financial
17 transactions, water supply data, project operation, maintenance and
replacement logs, and project land and right-of-way use agreements;
18 the water users' land-use (crop census), land ownership, land-leasing
and water-use data; and other matters that CAWCD may require. Reports
19 thereon shall be furnished to CAWCD in such form and on such date or
dates as CAWCD may require. Subject to applicable Federal laws and
20 regulations, each party to this Agreement shall have the right during
office hours to examine and make copies of each other party's books
21 and records relating to matters covered by this Agreement.
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22 Notices
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23 22. Any notice, demand, or request authorized or required by
this Agreement shall be deemed to have been given, on behalf of CAWCD,
24 when mailed, postage prepaid, or delivered to C. Brad DeSpain,
Utilities Director, Town of Marana, 12775 N. Sanders Road, Marana,
25 Arizona 85653, and on behalf of the Contractor when mailed, postage
prepaid, or delivered to the General Manager, Central Arizona Water
26 Conservation District, 23636 North Seventh Street, Phoenix, Arizona
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1 85024. The designation of the addressee or the address may be changed
by notice given in the same manner as provided in this Article for
2 other notices.
3 Assignment Limited--Successors and Assigns Obliqated
4 23. The provisions of this Agreement shall apply to and bind the
successors and assigns of the parties hereto, but no assignment or
5 transfer of this Agreement or any right or interest therein shall be
valid unless and until approved in writing by CAWCD. The provisions
6 of this Article 23 shall not apply to any assignment or transfer of
stored water credits earned by Contractor pursuant to this Agreement.
7
Cancellation
8
24. This Agreement is subject to cancellation in accordance with
9 the provisions of A.R.S. ~ 38-511.
10
IN WITNESS WHEREOF, the parties hereto have executed this
11 Agreement No.
IR032-00
effective the day and year first
12 above-written.
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CENTRAL ARIZONA WATER
CO~VATION DISTRICr
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15 \,,)('j (0 n
Attest:~ .~"'-"'.
16 Secretary
By
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TOWN OF MARANA
Approved as to form:
BY'~
Title: /lUr~r
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EXHIBIT A
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Article No.
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7.
DUPUCA TE-OR18111AL
Contract No. 14-06-W-245
Amendment No. 1
B.C. Draft 11/28/88
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
CONTRACT BEnlEEN THE UNITED STATES
AND THE CENTRAL ARIZONA WATER CONSERVATION DISTRICT
FOR DELIVERY OF WATER AND REPAYMENT OF COSTS OF THE
CENTRAL ARIZONA PROJECT
INDEX
PART! ES
AUTHORITIES
RECITALS .
ARTICLES OF AGREEMENT .
DEFINITIONS . . . . .
PROJECT CONSTRUCTION
Tit 1 e
Agreement of the United States
Costs of Project . . . . . . .
Principal Works of the Project
Changes in Project Works . . . . . . . - . . . .
Construction Conditions. . . . .
Annual Work Program . . . . . . . . . . . . . . .
Inability of the United States to Complete
Project on Basis of Cost Estimates . . .". . .
PROJECT OPERATION, MAINTENANCE, AND
REPLACEMENT . . . . . . . . . . . .
. . . . . .
Operation aAd Maintenance and Water Deliveries
by the United States Prior to Completion
of Con struct ion . . . . . . . . . . . ... . . .
Operation and Maintenance and Water Deliveries
after Completion of Construction . . . . . .
.1
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Paqe No.
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IS
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Article No.
Tit 1 e
8. DELIVERY OF WATER
.1 Obligation of United States
.2 Term of Contract ...
.3 Conditions Relating to Delivery
. 4 De 1 i very Poi n t s. .... .
.5 Measurement... .... ..
.6 Responsibility for Distribution of Water
after Leaving Water Supply System
.7 Quantity of Water to be Delivered. ..
.8 Subcontracts..............
.9 Shortages . . .. . .. ..
.10 Rate of Diversions of Colorado River Water
.11 Priority in Case of Shortage . . . . .
.12 No Guarantee of Availability of Water
.13 Secretarial Control of Return Flow
.14 Water and Air Pollution Control. . . .
.15 Quality of Water .........
.16 Exchange Water. . . . . . . .
.17 Rights Reserved to the United States to Have
Water Carried by Project Facilities. .
.18 Wheeling Non-Project Water . . . . . .
.19 Use of Project Power to Wheel Non-Project
Water ... .........
9. PAYMENT OF PROJECT COSTS ALLOCATED TO
CONTRACTOR . . . . . .. ..
.1 Allocation of Construction Costs
.2 Repayment Concepts . . . . . . . . . .
.3 Contractor's Construction Cost Repayment
Obligation .. ... .......
.4 Payment of Contractor's Construction Cost
Repayment Obligation. .....
.5 Commercial Power Rates .. ....
.6 Other Costs Borne by the Contractor. . .
.7 Repayment of Costs of Excess Capacity in
Granite Reef Aqueduct.. .....
.8 Ad Valorem Taxes, Assessments, Tolls, and
Other Charges . . . . . . . .
.9 Continuation of Payments after Project
Payout
.10 Defaults
10. GENERAL PROVISIONS
.1 Other Contracts .
.2 Title to Project Works
.3 Reserve Funds . .
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Title
Paqe No.
Recreational Use of Water Facilities
Confirmation of Contract. . . . . .
Rules, Regulations, and Determinations
Books, Records, and Reports . . . . . .
Notices . . . . . . . - . . . . . . . .
Contingent on Appropriation or Allotment
of Funds . . . . . . . . . . . . . . . .
Changes in Contractor's Organization. . .
Assignment Limited--$uccessors and Assigns
Db 11 ga ted . . . . . . . . . . . . . . .
Judicial Remedies Not Foreclosed. . .
Equal Opportunity .... . . . . . .
Compliance with Civil Rights Laws and
Regulations . . . . . . . . . . .
Officials Not to Benefit. . . . . .
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STATUS OF DECEMBER 15, 1972 CONTRACT .
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r~'~tract No. 14-06-W-245
ndment No. 1
B.C. Draft 11/28/88
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF REC~TION
CONTRACT BEnlEEN THE UNITED STATES
AND THE CENTRl ARIZONA WATER CONSERVATION DISTRICT
FOR DELIVERY OF WATER AND REPAYMENT OF COSTS OF THE
CENTRAL ARIZONA PROJECT
1.
PART! ES
8 The parties to thi s contract, executed as of this first day of
9 December, 1988, are the United States of America, acting through the
10 Department of the Interior, and the Central Arizona Water Conservation
11 District, a multi-county water conservation district organized under
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the laws of Arizona, with its principal place of business in Phoenix,
Arizona.
2. AUTHORITIES
This contract is made pursuant to the:
2.1 Act of June 17, 1902, 32 Stat. 388. and acts amendatory
thereof and supplementary thereto.
2.2 Boul der Canyon Project Act, approved December 21, 1928,
45 Stat. 1057, a supplement to the Federal Reclamation Laws.
2.3 Reclamation Project Act of 1939, approved August 4, 1939,
53 Stat. 1187, as amended.
2.4 Colorado River Basin Project Act, approved
September 30, 1968, 82 Stat. 885. as amended. a supplement to the Federal
Reclamation Laws.
1 Contractor's repayment obligation will exceed $1.2 billion, the
2 Contracting Officer shall consult with the Contractor and continuation of
3 construction will be contingent upon the execution of an amendatory contract
4 to cover the increased repayment obligation.
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3.6
Both parties acknowledge that the Contractor's repayment
obligation will exceed $1.2 billion, and have agreed to increase the
Contractor's repayment ceiling to a level sufficient to facilitate
completion of the project.
4.
ARTICLES OF AGREEMENT
NOW, THEREFORE, in consideration of the mutual and dependent
stipulations and covenants herein contained, it is agreed by and between the
parties hereto as follows:
5.
DEFINITIONS
When used herein, unless otherwise distinctly expressed, or
manifestly incompatible with the intent hereof, the terms:
5.1 "Federal Reclamation Laws" or "Reclamation Laws" shall
mean the Act of June 17, 1902, 32 Stat. 388, and all acts amendatory
thereof or supplementary thereto.
5.2 IIBasin Project Act" shall mean the Colorado River Basin
Project Act, 82 Stat. 885, dated September 3D, 1968, as amended, which is a
supplement to the Federal Reclamation Laws.
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5.3 "Secretary" shall mean the Secretary of the Interior of the
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United States or his duly authorized representative.
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5.4 "Contracting Officer" shall mean the Secretary or his
authorized designee acting in his behalf.
5.5 "Contractor" shall mean the Central Arizona Water
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1 distributing the project water supply within the service area after said
2 project water supply has been transported or delivered through the water
3 supply system.
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5.12
IIAgricultural waterll or lIirrigation water" shall mean
5 project water used primarily in the commercial production of agricultural
6 crops or livestock, including domestic use incidental thereto, on tracts of
7 land operated in units of more than 5 acres.
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5.13 "Miscellaneous water" shall mean water delivered from the
9 project, or by exchange for project water, for recreational and fish and
10 wildlife purposes at other than project facilities and shall have a lesser
11 priority of use than agricultural water.
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5.14
"Municipal and industrial water,lI herein referred
13 to as "M&I water," shall mean project water other than agricultural or
14 miscellaneous water delivered by means of the project works.
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5.15
"Lands not having a recent irrigation history" shall
16 mean, except where otherwise determined by the Secretary for efficiency of
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subcontractor's operation, lands which the Secretary determines were not
18 irrigated during the period September 30, 1958, to September 30, 1968.
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5.16
1I0M&R" shall mean the care, operation, ma i ntenance, and
20 replacement of project works.
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5.17 IIExchange water" shall mean Colorado River water made
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available in exchange for or in replacement of existing supplies from
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surface sources other than the mainstream of the Colorado River.
5.18 "Transferred works" shall mean such facil ities of the water
supply system or of other construction stages as to which OM&R
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1 succeeding December 31.
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"Contractor's Construction Cost Repayment Obligation;"
5.25
3 hereinafter referred to as "repayment obligation," shall mean the total
4 amount of all construction costs including related construction claims and
5 interest thereon, OM&R costs duri ng construction, and interest on costs
6 allocated to the M&I water and power functions during construction, of the
7 Central Arizona Project, incurred therefor and as determined by the
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United States and further described in Article 6.2 hereof, excluding
reimbursable costs allocated to fish and wildlife and recreation, and costs
associated with the delivery of water to entities other than the Contractor
or subcontractors, and which is determined by the Secretary, after
consultation with the Contractor, to be allocable to and repayable by the
Contractor in accordance with the provisions of the Basin Project Act and
this contract.
5.26
II Return flow" sha 11 mean all agri cul tura 1, M&I, and
mi sce 11 aneous waste water, seepage, and ground water wh~h ori gi nates or
resu1 ts from water contracted for from the C,entra 1 Ari zona Project, but
shall not include any water delivered through the .project works for ground
water recharge purposes.
5.27 "Project water" shall mean (a) all water allocated by the
Secretary for project purposes by Federal Reqister notice dated
March 24, 1983. and any subsequent reallocation by the Secretary as
contemplated in paragraph 6 of said Federal Reqister notice. which water is
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available pursuant to contracts with the Secretary from:
( 1) the
Colorado River; (2) Central Arizona Project dams and reservoirs; and (3)
return flows captured by the Secretary for project use;- (b) any water
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5.31
"Plan 6" shall mean Plan 6 for the Regulatory Storage
Division of the Central Arizona Project as approved by Record of Decision
of the Secretary dated April 3, 1984 as amended and supplemented by Records
of Dee; sion of the Secretary dated May 20, 1986 (Supplement One) and
June 17, 1988 (Supplement Two).
5.32 "Allocable cost" shall mean (a) with respect to the project,
the total project cost less' (1) the cost of non-Indian distribution works,
(2) the cost of the safety of dams component of Plan 6, (3) the cost of
Indian distribution systems, (4) the cost of the Colorado River Division and
the New Mexico fish hatchery, (5) the cost of cultural resources studies,
(6) the contributions provided by the States of Arizona and New Mexico prior
to execution of the Plan 6 Funding Agreement, (7) the costs of Charleston
Dam and San Pedro Aqueduct, (8) the cost of 500 cubic feet per second of
incremental capacity in the Granite Reef Aqueduct and related costs in the
Navajo Project, and (9) such other costs as determined appropriate by the
Contracting Officer; and (b) with respect to each construction stage, the
total cost of such stage less that portion of the following costs associated
with such stage: (1) the cost of the safety of dams component of Plan 6,
(2) the cost of cultural resources studies, (3) the contributions provided
by the States of Arizona and New Mexico prior to execution of the Plan 6
Funding Agreement, (4) the cost of 500 cubic feet per second of incremental
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capacity in the Granite Reef Aqueduct and related costs in the Navajo
Project, and (5) such other costs as determined appropriate by the
Contracting Officer.
5.33 "OM&R Transfer Contract" shall mean the August 5, 1987,
contract entitled "Contract Between the United States of America and the
9
1 conditions of this contract and within the limits of the funds made
2 ava i1 ab 1 e therefor by Congress, the Un i ted States will expend toward the
3 construction of the project, exclusive of interest costs during
4 construction, $832,180,000 based on 1967 cost estimates, plus or minus such
5 amounts, if any, as may be justified by reason of ordinary fluctuations in
6 construction costs as indicated by engineering cost indices applicable to
7 the types of construction involved therein, or so much of such amount, as in
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the opinion of the Secretary, is necessary to construct said project,
whichever amount is the lesser. The aforementioned amount includes the
United States' costs of participation in the Navajo Project.
6.2 Costs of Project.
(a) The estimated construction cost of $832,180,000 for the
project, based upon 1967 prices, has been determined as follows:
Main System
Granite Reef Division
Orme Division
Salt-Gila Division
Tucson Aqueduct (Colorado River source)
Buttes Dam
Navajo Project
Subtotal
Other Separate Features
Hooker Dam or suitable alternative
Charleston Dam and San Pedro Aqueduct
(San Pedro River source)
Subtotal
Miscellaneous Features
~Gila River Division
Indian Distribution System
Colorado River Division
Drainage System
Subtotal
Total Project
$ 1. 000 I s
407,740
42,340
47,170
46,300
35,240
106.000
684,790
31,730
36.420
68 , 150
5,250
19,970
42,450
11,570
79,240
$832,180
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Fish hatchery costs, some of which may be located on the
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Co 1 orado"R i ve r.
Provided, however, That (i) the adjustment provisions of Article 6.1 apply
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works:
(a) A system of main conduits and canals. including the
Havasu Pumping Plant and a main canal and pumping plants (Granite Reef
Aqueduct and pumping plants). for diverting and carrying water from
lake Havasu to the confluence of the Salt and Verde Rivers. which system
will have a capacity of 3.000 cubic feet per second;
(b) Salt-Gila Aqueduct and pumping plant;
(c) Tucson Aqueduct and pumping plants;
(d) New Waddell and Modified Roosevelt Dams;
(e) replacement features or programs for Cliff Dam;
(f) Tucson Terminal Storage (if approved by the Secretary);
(g) Buttes Dam and Reservoir;
(h) Hook.er Dam and Reservoir or suitable alternative which
shall be constructed in such manner as to give effect to the provisions of
Section 304(f) of the Basin Project Act;
(1) Charleston Dam and Reservoir and the San Pedro Aqueduct;
(j) related canals. regulating facflities. and electric
transmission facilities required for the operation of said principal works;
(k) related water distribution and drainage works; and
(1) appurtenant works.
No works or facilities for the treatment of water are included in the
project works to be constructed by the United States. Nothing contained
herein shall be construed to indicate the order in which the aforedescribed
works will be constructed.
6.4 Chanqe sin Proj act Works. Shou 1 d the Secreta ry. either
before or during construction. determine it to be in the best interests of
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1 to the proposed program. The action of the Contracting Officer concerning
2 the program after such consultation shall be final.
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6.7 Inability of the United States to Complete Project on Basis
4 of Cost Estimates. If construction of the project work.s shall have been
5 commenced but, prior to completion, the Secretary determines that the cost
6 of constructi ng the project wi 11 exceed the maximum amount to be expended
7 therefor by the United States as provided for in Article 6.1 hereof, the
8 Secretary may after consultation with the Contractor terminate construction
9 and declare the ob1 igations of the United States hereunder with regard to
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completion of construction of the project to have been fulfilled.
If
appropriations for the continuance and/or completion of construction in
amounts sufficient in the opinion of the Secretary to complete said
construction are authorized by Congress and are available, the Secretary
sha 11 con su 1 t wi th the Contractor and sha 11 mak.e cont i nuat i on of
constructi on conti ngent upon the execution of an amendatory contract wi th
the Contractor wherein the Contractor I s maximum repayment obl igation ;s
increased so as to cover the increased reimbursable costs as determined by
the Secretary; Provided, however, That the Contractor shall not utilize any
part of the completed or unfinished project facilities in the absence of
written agreement with the Secretary for reimbursement therefor.
7.
PROJECT OPERATION, MAINTENANCE, AND REPLACEMENT
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7.1 Operation and Maintenance and Water Deliveries by the
United States Prior to Completion of Construction. Except as provided in
the OM&R Transfer Contract, prior to completion of project works by the
United States, as determined and announced to the Contractor in writing by
the Secretary, the United States will operate and maintain said project
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deliver said water to the subcontractors.
After transfer of OM&R the
2 United States will make deliveries of Colorado River water to'the Operating
3 Agency; del iveries of other project waters wi 11 be made pursuant to
4 determinations made by the Secretary.
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8.2 Term of Contract.
Subject to the terms, conditions, and
provisions set forth herein, this contract is for permanent service.
8.3 Conditions Relatinq to Delivery.
(a) The obligation of the United States to deliver water
under this contract is subject to:
(i) The availability of such water for use in Arizona
under the provisions of the Colorado River Compact,
executed November 24, 1922; the Boulder Canyon
Project Act, 45 Stat. 1057, dated December 21,
1928; the Colorado River Basin Project Act, dated
September 30, 1968, 82 Stat. 885; the contract
between the United States and the State of Arizona,
dated February 9, 1944; the Opinion of the
Supreme Court of the United States in the case of
Arizona v. California et a-1., 373 U.S. 546,
rendered June 3, 1963; and the March 9, 1964,
Decree of that Court in said case, 376 U.S. 340, as
amended on February 28, 1966, at 383 U.S. 268, and
supplemented on January 9, 1979, at 439 U.S. 419,
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as now issued or hereafter modified.
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(ii) Executive A, Seventy-eighth Congress, Second
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Session, a treaty between the United States of
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lak.e Mead, canal s and other work.s, and the
storage, diversion, delivery, and use of water
to be delivered to Contractor hereunder.
(iv) The ri ght of the Uni ted States temporarily to
di scontinue or reduce the amount of water to be
delivered hereunder whenever such discontinuance or
reduction is made necessary for purposes of
investigations, inspections, replacements,
ma i ntenance, or repairs to any work.s whatsoever
affecting, utilized or, in the opinion of the
Secretary, necessary for del ivery of water
hereunder, it being understood that so far as
feasible the United States will (1) do so during
periods of low water demands and (2) give
reasonable notice in advance of such temporary
discontinuance or reduction.
(b) Delivery of Colorado River water by the United States
under this contract shall be charged to the State of Arizona's apportionment
under the aforementioned Supreme Court Decree of March 9,1964, in
Arizona v. California and will discharge to that extent the obligation of
the United States to deliver water under the aforementioned contract between
the United States and the State of Arizona, dated February 9, 1944.
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Colorado River water to be furnished
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8.4 Delivery Points.
to the Contractor pursuant to this contract will be delivered by the
United States in the Colorado River at the point of diversion from
lak.e Havasu where the intake structures of the Havasu Pumping Plant are
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1 and ri ghts-of-way of a subcontractor for the purpose of inspecting and
2 checking said measuring devices.
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8.6 Responsibility for Distribution of Water after Leavinq
Water Supply System.
Whether or not the United States operates and
maintains the project facilities, the United States shall not be responsible
for the control, carriage, handling, use, disposal, or distribution of water
after said water has been diverted from the water supply system. At such
time as the Operating Agency assumes responsibility for the OM&R of project
works, the responsibility for diversion, carriage, and transportation of
the water through the water supply system shall be the sole responsibility
of the Operati ng Agency. Responsibil ity for di stribution of water beyond
the water supply system sha 11 be that of the subcontractors to whom said
water is delivered from the water supply system. The United States, its
officers, agents, and employees, shall not be liable for damage or claim of
damage of any nature whatsoever for which there is legal responsibility
arising out of or connected with the control, carriage, handling, use,
disposal~ or distribution of such water, and each subcontractor shall hold
the United States, its officers, agents, and employees, harmless from any
and all such claims.
8.7 Quantity of Water to be Delivered.
(a) The Secretary reserves the right to determine that
quantity of Colorado River water to be released each year from lake Mead for
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use by the Central Arizona Project pursuant to applicable law, which shall
include the Quantity of water which may be allocated by the Secretary for
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use on Indian lands.
!b) The quantity of Colorado River water available under
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1 shall have the same priority as to delivery as the quantities of
2 Colorado River water del ivered pursuant to water del ivery contracts,
3 "Federal reservations of water, and other arrangements between the
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Un i ted States and water users in Ari zona entered into subsequent to
September 30, 1968, for use of Colorado River water on Federal, State or
privately owned lands in Arizona in total quantities not to exceed
164,652 acre-feet of diversions per year; Provided, however, That the
Contractor shall hold the United States, its officers, agents, employees,
and successors or assigns, harmless as to any and all claims for damages to
persons or to property direct or indirect and of whatever nature, arising
out of or which may in any manner be connected with the operation and/or
eff~ct of this Subarticle.
(d) The limitation on contracting in Subarticle 8.7(c) above
shall not apply to contracts with holders of present perfected rights to
Colorado River water in Arizona or to the Secretary's order of
November 24, 1982, reserving Colorado River water for the Cibola National
Wildlife Refuge. Nothing in Subarticle 8.7(c) shall restrict the right of
the Secretary under water service contracts referred to in said Subarticle
to terminate and/or reduce any entity's entitlement to Colorado River water
and to make that entitlement available to other water users in Arizona.
(e) During any year when the subcontractors cannot use any
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portion of their entitlement to project water, and such water cannot be
resold or exchanged in accordance with the terms and conditions of the water
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service subcontracts, the Contractor shall have the right in its discretion
to resell any or all of such water or to use any or all of such water for
ground water recharge purposes, including the subsequent recovery and resale
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(ii1) the canals and distribution systems through which
water is conveyed after its delivery to the sub-
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contractors shall be provided and maintained with
linings adequate in the Secretary's judgment to
prevent excessive conveyance losses;
(iv) ne i ther the Secretary, the Contractor nor any
subcontractor shall pump or permit others to pump
ground water from within the exterior boundaries of
the service area of a subcontractor receiving
water from the Central Arizona Project for any use
outside of said subcontractor's service area
unless the Secretary, the Contractor, and such
subcontractor shall agree, or shall have previously
agreed, that a surplus of ground water exists and
that drainage is or was required;
(v) except as otherwi se agreed by the Contracting
Officer, neither the Contractor nor any
subcontractor shall sell or otherwise dispose of or
permit the sale or other disposition of any project
water. including return flows, for use outside the
Contractor's service area;
(vi) irrigation water made available thereunder may
be made available by the Secretary for M&I purposes
if and to the extent that such wa ter is no longer
required by the subcontractor for irrigation
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purposes and shall be made available in all cases
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(vii) the acreage limitation provisions of Reclamation
Laws shall apply solely to agricultural water
serv ice;
(viii) except as specifically provided therein, it shall
be the provisions of this contract which shall be
controlling in the event of any inconsistency
between this contract and any subcontract;
(ix) the subcontractor shall levy all necessary assess-
ments, tolls, and other charges and shall use all
of the authority and resources available to the
subcontractor to collect the same in order that the
subcontractor may meet its obligations thereunder
to make in full all payments required under said
subcontract on or before the date such payments
become due and to meet other obligations under the
subcontracts;
(x) the subcontractor establish, maintain, and provide
the United States and the Contractor with land,
water use, and crop census records.
8.9 Shortaqes.
As provided in Section 301(b) of the Basin
Project Act, Article I1(B)(3) of the Decree of the Supreme Court of the
United States in Arizona v. California, 376 U.S. 340, dated March 9, 1964,
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shall be so administered that in any year in which, as determined by the
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Secretary, there is i nsuffi ci ent ma i nstream Colorado River water avail abl e
for release to satisfy the annual consumptive use of 7,500,000 acre-feet in
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Arizona, California, and Nevada, diversions from the mainstream of the
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1 the project so as to maximize project benefits; Provided, however, That the
2 use of such capacity shall not result in the annual diversion of a quantity
3 of water in excess of the project's legal entitlement under the Basin
4 Project Act.
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8.11 Priority in Case of Shortage.
(a) Subject to the provisions of Section 304(e) of the Basin
Project Act and the Secretary's allocation decisions published in the
Federal Reqister on December 10, 1980, and March 24, 1983, any project water
as defined in Subarticle 5.27(a) hereof, furnished t.hrough project
facilities shall, in the event of shortages thereof, be reduced pro rata
until exhausted, first for miscellaneous uses and next for agricultural
uses, before such project water furni shed for M&I uses is reduced.
Thereafter, such project water for M&I uses will be reduced pro rata among
all M&I water users. Each subcontract or other water delivery arrangement
entered into pursuant to this contract shall so provide. This article shall
not apply to Indian uses; Provided, however, That the relative priorities
. between Indian and non-Indian uses shall be as determined by the Secretary.
Notwithstanding the provisions of this Subarticle, project water made
available as a result of construction and operation of modifications to
Roosevelt Dam as part of Plan 6 shall be distributed as provided in the
Plan 6 Funding Agreement, and shall not be subject to reduction in the event
of shortages of other project water supplies.
(b) Any project water, as defined in Subarticles 5.27(b),
(c) and (d) hereof, shall retain its priority relative to project water as
defined in Subarticle 5.27(a) hereof.
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8.12 No Guarantee of Availability of Water. The United States
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1 within the service area and/or by any subcontractor therein may be delivered
2 by the United States to a subcontractor as a part of the water supply for
3 which the subcontractor contracts hereunder and such water shall be
4 accounted and paid for pursuant to the provisions hereof.
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8.14 Water and Air Pollution Control.
The Contractor, in
6 carrying out this contract, shall comply with all applicable water and air
7 pollution laws and regulations of the United States and the State of
8 Arizona, and shall obtain all required permits or 1 icenses from the
9 appropriate Federal, State, or local authorities.
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8.15 Qua 1 ity of Water.
The operation and maintenance of
project facilities shall be performed in such manner as is practicable to
maintain the quality of project water made available through such
facilities at the highest level reasonably attainable as determined by the
Contracting Officer or the Operating Agency. Neither the United States nor
the Operating Agency warrants the quality of water and are under no
obligation to construct or furnish water treatment facilities to maintain
or better the quality of water.
8.16 Exchanqe Water.
Where the Secretary determines that a
subcontractor 1s physically able to receive Colorado River mainstream water
in exchange for or in replacement of existing supplies of surface water from
sources other than the Colorado River to provide water supplies for users
upstream from New Waddell, Modified Roosevelt and Buttes Dams, the
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Secretary may require that said subcontractor agree to accept said
mainstream water in exchange for or in replacement of said existing supplies
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pursuant to the provisions of Section 304(d) of the Basin Project Act.
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1 The Contractor shall be entitled to retain revenues from wheeling charges
2 sufficient to cover all OM&R costs associated with wheeling such non-project
3 water, plus an administrative charge to be jointly determined by the
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Contractor and the Contracting Officer. All revenues from wheeling charges
in excess of the OM&R costs and administrative charges shall be remitted by
th.e Contractor to the Contracting Officer and deposited into the
Development Fund.
8.19 Use of Project Power to Wheel Non-Project Water. If the
energy requirements necessary for the pumping of project water are met and
subject to the requirements of the Navajo Power Marketing Plan published in
the Federal ReQister on December 21, 1987, project power may be used to
wheel non-project water through project facilities under such conditions of
use, including amounts, times of use, losses, costs, and other conditions as
are established by the Contractor and approved by the Contracting Officer.
9.
PAYMENT OF PROJECT COSTS ALLOCATED TO CONTRACTOR
9.1 Allocation of Construction Costs.
(a)
Upon comp 1 et i on of each con struct i on stage, the
Contract i ng Offi cer will allocate costs to the vari ous project purposes
using the separable costs-remaining benefits procedure.
(b) For repayment purposes the reimbursable cost allocated
to irrigation and M&I water by the separable costs-remaining benefits
procedure will be combined and will hereinafter be termed the "water supply
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allocation."
Upon completion of each construction stage, and at the
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periodic intervals specified in Subarticle 9.3(d), suballocation of the
water supply allocation will be made to the irrigation and M&I water
functions proportional to the water estimated to be used for each purpose
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1 and wildlife are anticipated to be covered by a separate contract and repaid
2 by the beneficiaries thereof.
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(d) Repayment of costs allocated to irrigation of Indian
4 lands shall be governed by the provisions of Section 402 of the
5 Basin Project Act.
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(e)
Repayment of the project will occur by construction
7 stages, with each stage having a separate 50-year repayment schedule. Upon
8 completion of each cost allocation study referred to in
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Subarticle 9.1(a). subsequent to the initial study associated with the
first construction stage, the Contractor's repayment obligation and the
obligation allocated to each construction stage will be adjusted based on
the latest cost allocation study, and the Contractor will be provided with a
revised repayment schedule for the project and each construction stage. The
Contracting Officer will adjust previous principal and interest payments
made by the Contractor to refl ect the new repayment schedul e.
For each
year where an adjustment in payments is necessary, there will be an over or
underpayment which will accrue with interest at the rate of 3.342 percent
per annum (compounded annually) to the adjustment date. If the adjustment
indicates that the Contractor overpaid principal and interest, the
Contractor shall be entitled to a credit against its next payments to the
United States. Conversely, if the Contractor owes additional principal and
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interest to the United States, such amount shall be paid to the United
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States by the Contractor within 12 months of receipt of a statement therefor
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from the Contracting Officer. The Contractor may use the repayment reserve
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fund under Subarticle lO.3(b) hereof for any payment to the United States
required as a result of the above adjustment.
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project costs allocated to the water supply
function by a ratio developed by dividing the
quantity of project water projected to be delivered
throughout the overall repayment period to entities
other than the Contractor, the subcontractors, and
those users in New Mexi co to whom water has been
made available through the construction of
Hooker Dam or suitable alternative by the
total quantity of project water projected to be
delivered throughout the overall repayment period;
Provided, That project water projected to be
delivered to such users will be computed based on
an assumption of full development not later than
the year 200S.
(b) The costs determined under Subarticles 9.3(a)(i) and
(ii) above shall be subtracted from the water supply costs obtained from the
separab 1 e costs-rema i n i ng benefits procedure to determi ne the Contractor's
water supply costs.
The Contracting Officer shall suballocate the
Contractor's water supply costs to each of the construction stages based on
the ratios obtained by dividing the allocable cost of the construction stage
by the allocable cost of the project (see Operation 1, Exhibit "All). The
water supply costs assigned to each construction stage are then further
suballocated between irrigation and M&I water use in proportion to projected
total water deliveries to each function over the 50-year repayment period of
each construction stage (Operation 2, Exhibit IIAII). The summarization of
the suballocations to each construction stage determines the total water
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1 per annum on the unpaid interest-bearing component of the repayment
2 obligation for each stage. For the water supply system, the portion of each
3 principal payment which is made by the Contractor from irrigation revenues
4 recei ved by the Contractor each year will be used by the United States to
5 reduce the interest-free obligation. The remaining portion of the principal
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payments made by the Contractor each year for the water supply system will
be used by the United States to reduce the interest-bearing obligation. and
once the interest-bearing obligation has been retired, the entire principal
payment made by the Contractor will be applied by the United States toward
the interest-free obligation. For the other construction stages, the entire
principal payment made by the Contractor each year for such stages will be
applied by the United States to reduce the interest-bearing obligation
first. and once such obligation has been retired. to reduce the interest-
free obligation.
(d) At 7-year intervals following the determination of the
Contractor's repayment obligation for the water supply system. or at more
frequent intervals if it becomes apparent to the Contracting Officer that a
significant change in water use has or will occur, until such time as the
interest-bearing obligation for each construction stage has been rep~id. the
Contracting Officer will re-estimate the proportions of total water
deliveries to irrigation and M&I water use over the 50-year repayment period
for each stage. At such intervals, the Contracting Officer will adjust the
original interest-bearing and interest-free allocation for each stage based
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on the new estimates and recalculate all preceding interest payments.
Differences between amounts owed and amounts paid by the Contractor shall be
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adjusted by the Contracting Officer, who shall apply a credit against the
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1 Contracting Officer by an amount equal to or less than the respective amount
2 identified in Exhibit "8" by written notice thereof from the Contracting
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Officer to the Contractor.
If construction of such other construct ion
stage will result in an increase in the Contractor's repayment obligation
by an amount greater than the respective amount identified in Exhibit liB. II
the Contracting Officer shall consult with the Contractor and the
Contractor and the Contracting Officer shall agree upon one of the
following courses of action prior to initiation of construction of such
construction stage: (1) that additional repayment ceiling be made available
from other construction stages. in which event the Contractor's repayment
ceiling- will be increased to the agreed-to amount by written notice from
the Contracting Offi cer to the Contractor; or (2) that thi s contract be
renegotiated to increase the Contractor's repayment ceiling; Provided. That
these courses of action shall also apply in the event that. prior to
completion of construction of such stage. the Contracting Officer determines
that the construction of such stage will result in an increase in the
Contractor's repayment obligation by an amount greater than the respective
amount identified in Exhibit "B.II
(f) Annual percentages of the repayment obligation for each
con struct i on stage sha 11 be those set out in the fo 11 owi ng schedu1 e or- any
revision thereof mutually agreed upon:
Repayment Year
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8-14
15-21
22-28
29-35
36-42
43-49
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Percent of Repayment
Obliqat;on (Annual)
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allocation for each construction stage.
(i11) Determine the total amount of all interest and
principal payments due for all construction
stages.
(iv) Subtract therefrom the revenues estimated to be
available from the Development Fund anticipating
a zero balance at the end of each year in the
Development Fund.
(v) Make adjustments for differences between estimated
and actual revenues for the preceding year.
(c) On or before each December 15, beginning with
December 15 of the year in which the Secretary notifies the Contractor of
the substantial completion of the first construction stage, the Secretary
will notify the Contractor of the amount of the annual payment due on the
following January 15, which has been determined by the Secretary on the
basis of the aforesaid calculation.
(d) The Contractor may make additional payments on the
repayment obligation at any time subject to such terms and conditions as may
be agreed upon by the Contractor and the Contracting Officer; Provided,
however, That all interest due is paid at the same time, whereupon
appropriate adjustments in the schedule of future payments will be made by
the Secretary, who shall as promptly as possible give the Contractor
written notice of the adjusted repayment schedule.
(e) It is understood and agreed that the Contractor shall
be obligated for the payments set forth in Subarticle 9.4(a) hereof and
that regardless of the del inquency or default in payment of any charges
.s.
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1 admini strative expense for the OM&R of the water supply system. Advance
2 payments sha 11 be made in subsequent years by the Contractor to the
3 United States on the basis of estimates to be furnished by the United States
4 on or before November 15 preceding said subsequent year and the advances of
5 said payments shall be due and payable in equal semiannual payments on the
6 following December 15 and June 15. Said OM&R costs are the total annual
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OM&R costs of completed construction stages which are allocated to the
irrigation and M&I water supply functions less (1) the costs described in
Subartic1e 9.6(c) hereof>> and (n) an amount determined by multiplying the
total of said annual costs by the ratio obtained by dividing the estimated
amount of project water projected to be delivered in the subsequent year to
entities other than the Contractor>> the subcontractors>> and those entities
in New Mexico to which project water will be made available from Hooker Dam
or suitable alternative>> by the total amount of project water estimated to
be delivered for use in that year.
(b) Differences between actual OM&R costs and the estimated
costs shall be determined by the Contracting Officer and shall be adjusted
in next succeeding estimates; Provided>> however. That if ir. the opinion of
the Contracting Officer the amounts advanced by the Contractor for any year
are likely to be insufficient to pay the above-mentioned OM&R costs during
such year. additional and sufficient sums of money shall be paid forthwith
by the Contractor to the United States upon notice thereof and demand
therefor by the Contracting Officer; Provided. further. That the
United States will give Contractor reasonable notice in advance of any such
deficiency.
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(c) The Contractor's obl igation to pay said OM&R costs
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1 established by Section 2 of the Boulder Canyon Project Act.
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Repayment of Costs of Exces s Capacity in Granite Reef
9.7
3 Aqueduct. The costs of providing any capacity in the Granite Reef Aqueduc~
4 and pumping plants in excess of 2,500 cubic feet per second shall be repaid
5 by Contractor from funds available to Arizona pursuant to the provisions of
6 Section 403(f) of the Basin Project Act, or by funds from sources other than
7 the Development Fund.
8 9.8 Ad Valorem Taxes, Assessments, Tolls, and Other Charqes.
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Within the legal limits available to it, the Contractor shall levy
ad valorem taxes upon the taxable property within the service area of the
Contractor at rates determined necessary by the Contractor to raise funds
which, together with the revenues from the sale of water and such financial
assi stance from the Development Fund as the Secretary determines is
available therefor, are sufficient to meet the obligations of the Contractor
to make in full all payments to the United States on or before the date such
payments become due and to meet its other obligations under this contract.
9.9 Continuation of Payments After Project Payout.
Fo 11 owi ng
payment to the United States of the Contractor's final payment for the last
construction stage, the Contractor shall continue" to make annual payments to
the United States to be credited to the Development Fund in amounts ~qual to
the average annual principal payment for the project during the overall
repayment period.
In the event that no augmentation project, as
contemplated in the Basin Project Act, has been authorized or is under
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active consideration by the Congress at the time project construction costs
have been repaid in full, payments under this formula will be not required;
Provided, however, That payments will commence after repayment of the
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shall accumulate and maintain an emergency OM&R reserve fund, which the
Contractor shall keep ava i1 ab 1 e to meet costs incurred duri ng peri ods of
interruption of water service.
(i i) The Contractor shall accumul ate the reserve fund
with annual deposits, including interest and dividends accruing to fund
balances or holdings, of not less than $400,000 in any year in which the
fund balance is less than $4,000,000.
The fund sha 11 be invested in a
Federally insured interest- or dividend-bearing account, or in securities
gua ranteed by the Federal Government; Provi ded, That money in the reserve
fund shall be available within a reasonable time to meet expenses for such
purposes as those identified in Subarticle 10.3(a)(iv) hereof. Such annual
deposits and the accumulation of interest and dividends to the reserve fund
shall continue until $4,000,000 is accumulated.
Interest and dividends
accruing to fu~ balances shall be added to the fund in any year when the
fund balance is greater than $4,000,000; Provided, That in no event shall
the fund be increased to an amount greater than the actual amount of fixed
OM&R costs for the preceding year as mutually determined by the Contractor
and the Contracting Officer. Any balance in the fund in excess of the
amount of fixed OM&R costs for the previous year shall be considered to be
the general funds of the Contractor and available for use as such.
(i i i) Upon mutua 1 agreement between the Contractor and
the Contracting Officer, the amount to be accumulated and maintained in the
"
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.:.
reserve fund provided for in this Subarticle may be adjusted in
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consideration of the risk and uncertainty stemming from the size and
"
,
complexity of the project, the size of the annual.OM&R budget, additions
::Jo
to, deletions from, or changes in project works, or OM&R costs not
49
1
purpose for which it was establi shed.
Such annua 1 depos i ts and the
2 accumulation of interest to the reserve fund shall continue until
Any balance in the fund in excess of
3
4
5
6
$40.000.000 is accumul ated.
$40,000.000 shall be considered to be the general funds of the Contractor
and available for use as such.
(iii) Upon mutual agreement between the Contractor and
7 the Contracting Officer. the amount to be accumulated and maintained in the
8 reserve fund provided for in this Subarticle may be adjusted.
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(iv) Proposed expendi tures from the fund shall be
submitted to the Contracting Officer in writing for review and written
approval prior to disbursement.
(v) On or before February 1 of each year. the
Contractor shall provide to the Contracting Officer an annual statement of
the principal and accumulated interest in the repayment reserve fund as of
December 31 of the preceding year.
10.4 Recreational Use of Water Facilities.
(a) The enhancement of recreational opportunities in
connection with the project works authorized pursuant to Title III of the
Basin Project Act shall be in accordance with the provisions of the .Federal
Water Project Recreation Act. 79 Stat. 213. dated July 9. 1965. except as
provided in Subarticle 10.4(b) hereof.
(b) Recreational development at Orme Dam and Reservoir
shall be governed by the provisions of Section 302(d) of the Basin Project
Act.
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10.5 Confirmation of Contract.
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(a) The Contractor. after the execution of this contract.
51
1 carry out this contract, and to supply necessary details of its
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administration which are not covered by express provisions of this contract.
The Contractor and each subcontractor shall observe such rules, regulations,
and determinations and each subcontract shall so provide.
(c) Where the terms of this contract provide for action
to be based upon the opinion or determination of either party to this
contract, whether or not stated to be conclusive, said terms shall not be
construed as permitting such action to be predicated upon arbitrary,
capricious, or unreasonable opinions or determinations. In the event that
the Contractor questions any factual determination made by the
Contracting Officer, the findings as to the facts shall be made by the
Secretary only after consultation with the Contractor and shall be
conclusive upon the parties.
10.7 Books. Records. and Reports. The Contractor shall establish
and maintain accounts and other books and records pertaining to
administration of the terms and conditions of this contract, including: the
Contractor I s financial transactions, water supply data, project operation,
maintenance and replacement logs, project land and right-of-way use
agreements, and other matters specifically relating to this contract that
the Contracting Officer may require. Reports thereon shall be furnished to
the Contracting Offi cer in such form and on such date or dates as the
;;
i
Contracting Officer may require.
Subj ect to app 1 i cab 1 e Federa 1 1 aws and
regulations, each party to this contract shall have the right during office
hours to examine and make copies of the other party's books and records
5
relating to matters covered by this contract.
, ,
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10.8
Notices.
Any notice, demand, or request authorized or
53
1 contract or any part or interest therein shall be valid until approved in
2 writing by the Contracting Officer.
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10.12 Judicial Remedies Not Foreclosed.
Nothing herein shall
be construed (a) as depriving either party from pursuing and prosecuting any
remedy in any appropriate court of the United States or the State of Arizona
which would otherwise be available to such parties even though provisions
herein may declare that determinations or decisions of the Secretary or
other persons are conclusive or (b) as depriving either party of any defense
thereto which would otherwise be available.
10.13
EQ ua 1 Opportun i ty.
Ouri ng the performance of thi s
contract, the Contractor agrees as follows:
(a) The Contractor will not discriminate against any
employee or applicant for employment because of race, color, religion, sex,
or national origin. The Contractor will take affirmative action to ensure
that appl icants are employed, and that employees are treated during
employment, without regard to their race, color, religion, sex, or national
origin. Such action shall include, but not be limited to, the following:
Emp 1 oyment, upgradi ng, demot; on, or transfer; recruitment or recruitment
advert; sing; 1 ayoff or termi nat; on; rates of payor other forms of
compensation; and selection for training, including apprenticeship.
The
Contractor agrees to post in conspicuous places, available to employees and
applicants for employment, notices to be provided by the Contracting Officer
setting forth the provisions of this Equal Opportunity clause.
(b) The Contractor will, in all solicitations or
:3
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1
advertisements for employees placed by or on behalf of the Contractor, state
that all qualified applicants will receive consideration for employment
55
1
(g) The Contractor will include the provisions of paragraphs
2 (a) through (g) in every subcontract or purchase order unless exempted by
3 rules, regulations, or orders of the Secretary of Labor issued pursuant to
4 Section 204 of said amended Executive Order, so that such provisions will be
5 bi ndi ng upon each subcontractor or vendor. The Contractor wi 11 take such
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action with respect to any subcontract or purchase order as the
Contracting Officer may direct as a means of enforcing such provisions,
including sanctions for noncompliance; Provided, however, That in the event
the Contractor becomes involved in, or is threatened with, litigation with a
subcontractor or vendor as a result of such direction by the
Contract i ng Offi cer, the Contractor may request the United States to enter
into such litigation to protect the interests of the United States.
10.14 Compliance With Civil RiQhts Laws and ReQulations.
(a) The Contractor shall complY with Title VI of the
Civil Rights Act of 1964 (42 U.S.C. 2000d), Section 504 of the
Rehabilitation Act of 1975 (Public Law 93-112, as amended), the
Age Discrimination Act of 1975 (42 U.S.C. 6101, et gs.) and any other
applicable civil rights laws, as well as with their respective.implementing
regulations and guidelines imposed by the U.S. Department of the Interior
and/or Bureau of Reclamation.
(b) These statutes require that no person in the United
.:
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States shall, on the grounds of race, color, national origin, handicap, or
age, be excluded from participation in, be denied the benefits of, or be
otherwi se subjected to di scrimination under any program or activity
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receiving financial assistance from the Bureau of Reclamation. By executing
this contract, the Contractor agrees to immediately take any measures
57
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~
Incentive Recharge Contract
[4/27/00]
1
3
AGREEMENT BETWEEN THE CENTRAL ARIZONA
WATER CONSERVATION DISTRICT AND TOWN OF MARANA
PROVIDING FOR THE DELIVERY OF
CENTRAL ARIZONA PROJECT INCENTIVE RECHARGE WATER
2
4
5
Preamble
6
7
1.
THIS AGREEMENT, made this 23rd day of
June
8 2000, in pursuance generally of the Act of June 17, 1902 (32 Stat.
9 388), and acts amendatory thereof or supplementary thereto, including
10 bu t not 1 imi ted to the Boulder Canyon proj ect Act of December 21, 1928
11 (45 Stat. 1057, as amended, the Reclamation Project Act of August 4,
12 1939 (53 Stat. 1187), as amended, the Reclamation Reform Act of
13 October 12, 1982 (96 Stat. 1263), and particularly the Colorado River
14 Basin Project Act of September 30, 1968 (82 Stat. 885), as amended
15 (the "Basin Project Act"), between the CENTRAL 'ARIZONA WATER
16 CONSERVATION DISTRICT ("CAWCD") and TOWN OF MARANA ("Contractor");
17 WITNESSETH, THAT:
18 Explanatory Recitals
19
2 .
WHEREAS, the Basin Project Act provides, among other things,
20 that for the purposes of furnishing irrigation and municipal and
21 industrial ("M&I") water supplies to water deficient areas of Arizona
1
22 and western New Mexico through direct diversion or exchange of water,
i
.il.
3
23 control of floods, conservation and development of fish and wildlife
3
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24 resources, enhancement of recreation opportunities, and for other
1
25 purposes, the Secretary shall construct, operate, and maintain the
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26 Central Arizona proj ect, hereinafter referred to as the "proj ect"; and
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1
WHEREAS, the United States and CAWCD have entered into
2 Contract No. 14-06-W-245, Amendment No.1, dated December 1, 1988,
3 hereinafter referred to as the "Repayment Contract," which is attached
4 hereto as Exhibit A and by this reference made a part hereof, whereby
5 CAWCD has agreed to repay to the United States the reimbursable costs
6 of the Project allocated to CAWCD; and
7
WHEREAS, Article 8.7(e) of the Repayment Contract grants
8 CAWCD the authority to resell or exchange Excess Water; and
9 WHEREAS, the Contractor is in need of a water supply and
10 desires to contract with CAWCD for Incentive Recharge Water;
11 NOW, THEREFORE, in consideration of the mutual and dependent
12 covenants herein contained, it is agreed as follows:
13 Repayment Contract Controllinq
14
3.
The Contractor expressly approves and agrees to all the
15 terms presently set out in the Repayment Contract, or as such terms
16 may be hereafter amended, and agrees to be bound by the actions to be
17 taken and the determinations to be made under that Repayment Contract,
18 except as otherwise provided herein.
Definitions included in the
19 Repayment Contract are applicable to this Agreement, Provided,
20 however, that the terms "Agricultural Water" or "Irrigation Water"
21 shall mean water used for the purposes defined in the Repayment
II Contract on tracts of land operated in units of more than 5 acres.
23 The first letters of terms so defined are capitalized herein.
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24 Additional Definitions
25
4 .
"Excess Water" shall mean Project Water which, in any Year,
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26 is available for delivery and has not been scheduled for delivery
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1 pursuant to a contract with the United States or a subcontract with
2 the United States and CAWCD providing for Project Water service for a
3 period of 50 years or more.
4
5 .
"Incentive Recharge Water" shall mean specially priced
5 Excess Water made available by CAWCD to M&I subcontractors on an
6 annual basis for recharge purposes only.
7 Delivery of Water by CAWCD
8
6.
In so far as proj ect Water supplies and the delivery
9 capability of the Project will permit, and subject to the provisions
10 of the RepaYment Contract, CAWCD will deliver Incentive Recharge Water
11 to the Contractor in an amount, and at a water service charge, to be
12 determined in accordance with the terms of this Agreement. The
13 determination of whether and how much Incentive Recharge Water is
14 available for delivery under this Agreement in any year, is a
15 determination within the exclusive discretion of CAWCD; Provided,
16 however, that delivery of Incentive Recharge Water under this
17 Agreement shall be subj ect to the prior satisfaction of all water
18 deliveries scheduled pursuant to a contract with the United States or
19 a subcontract with the United States and CAWCD providing for Project
20 Water service for a period of 50 years or more.
21
Term
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This Agreement shall terminate on December 31, 2003, unless
23 the parties agree in writing to extend the term or unless it is sooner
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~ terminated in accordance with Article 15 hereof.
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25 Conditions Relating to Delivery and Use
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The delivery and use of water under this Agreement is
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1 conditioned on the following, and the Contractor hereby agrees that:
2
(a) All uses of Project Water and Return Flow shall be
3 consistent with Arizona water law except to the extent that such law
4 is inconsistent with the Congressional directives applicable to the
5 Central Arizona Project.
6
(b) Project Water furnished to the Contractor pursuant to
7 this Agreement shall be used within Contractor's service area or place
8 of use for direct or indirect recharge purposes only. The
9 Contractor's service area or place of use is described in Exhibit B
10 which is incorporated by reference and may be amended by Contractor
11 from time to time.
12
(c) The system or systems through which Project Water is
13 conveyed after delivery to the Contractor shall consist of pipelines,
14 canals, distribution systems, or other conduits which will prevent
15 excessi ve conveyance losses.
16
(d) Project Water furnished to the Contractor pursuant to
17 this Agreement may not be resold or exchanged by the Contractor
18 without the prior written approval of CAWCD.
If, with the prior
19 approval of CAWCD, such water is resold or exchanged by the Contractor
20 for an amount in excess of that which the Contractor is obligated to
21 pay under this Agreement, the excess amount shall be paid forthwith by
22 the Contractor to CAWCD; Provided, however, that the Contractor shall
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23 be entitled to recover its actual costs, if any, in transporting and
~ distributing such water.
The provisions of this Article 8(d) shall
26 Contractor pursuant to this Agreement.
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(e) Except as otherwise agreed by CAWCD, the Contractor
2 shall not sell or otherwise dispose of or permit the sale or other
3 disposition of any Project Water for use outside of Maricopa, Pinal,
4 or Pima Counties.
5
(f) Notwithstanding any other provision of this Agreement,
6 proj ect Water shall not be delivered to the Contractor unless and
7 until the Contractor has obtained final environmental clearance from
8 CAWCD for the system or systems through which Project Water is to be
9 conveyed after delivery to the Contractor at the Contractor's Project
10 delivery point.
11
(g) The Contractor may direct that Incentive Recharge Water
12 made available pursuant to this Agreement be delivered to a
13 groundwater savings facility for indirect recharge pursuant to a
14 separate agreement between the Contractor and the operator of the
15 groundwater savings facility; Provided, however, that:
16
(i) Incentive Recharge Water shall be used by an
17 identified groundwater user on a gallon-for-gallon substitute basis
18 directly in lieu of groundwater as provided in A.R.B. ~ 45-812.01.
19 (ii) The Contractor and the operator of the groundwater
20 savings facility must demonstrate to CAWCD's satisfaction that they
21 have the appropriate permits issued by the Arizona Department of Water
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22 Resources.
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23 (iii) Where the operator of the groundwater savings
24 facility is an agricultural entity participating in CAWCD' s target
1
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25 pricing program, only proj ect Water over and above the amount of
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26 Project Water taken by the agricultural entity in the immediately
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1 preceding year, not including Incentive Recharge Water, may qualify as
2 Incentive Recharge Water.
3 (iv) The Contractor shall provide CAWCD a copy of its
4 agreement with the operator of the groundwater savings facility for
5 Incentive Recharge Water.
6
(h) Only Project Water for which the Contractor receives
7 long-term storage credits from the Arizona Department of Water
8 Resources may qualify as Incentive Recharge Water.
9
(i)
Upon the expiration of this Agreement, CAWCD will
10 determine whether any Project Water delivered pursuant to this
11 Agreement did not qualify as Incentive Recharge Water for the reasons
12 specified in sections 8(g) (iii) or 8(h) of this Agreement. For any
13 such Project Water not qualifying as Incentive Recharge Water, CAWCD
14 will bill the Contractor for the difference between the water service
15 charge for Incentive Recharge Water and the standard M&I water service
16 charge.
17 Procedure for Ordering Water
18
9 .
(a) On or before the date of execution of this Agreement,
19 or as soon thereafter as is practicable, CAWCD will notify the
20 Contractor of the amount of Incentive Recharge Water available for
21 delivery during the initial year of this Agreement. The Contractor
22 shall, wi thin a reasonable period of time as determined by CAWCD,
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23 submit a written schedule to CAWCD showing the quantity of Incentive
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24 Recharge Water desired by the Contractor during each month of the
25 initial year. CAWCD will review the requested schedule and determine
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26 whether Incentive Recharge Water is available for delivery, and, if
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1 so, the amount of Incentive Recharge Water available for delivery
2 under this Agreement during the initial year. Within thirty (30) days
3 of CAWCD's receipt of the Contractor's requested schedule, CAWCD shall
4 determine and furnish to the Contractor a water delivery schedule
5 which shall show the amount of Incentive Recharge Water projected to
6 be delivered to the Contractor during each month of the initial year,
7 contingent upon the Contractor remaining eligible to receive water
8 under all terms contained herein.
9
(b) The amounts, times, and rates of delivery of Incentive
10 Recharge Water to the Contractor during any subsequent year shall be
11 in accordance with a water delivery schedule for that year.
Such
12 schedule shall be determined in the following manner:
13
(i) On or before October 15 of each year beginning
14 with October 15 of the initial year of water delivery, CAWCD shall
15 issue to the Contractor a notice of availability of Incentive Recharge
16 Water for the following year.
17
(ii) Within thirty days of
CAWCD's notice of
18 availability, the Contractor shall submit in writing to CAWCD a water
19 delivery schedule indicating the amounts of Incentive Recharge Water
20 desired by the Contractor during each month of the following year.
21 (iii) Upon receipt of the schedule, CAWCD shall review
1
22 it together with all other water delivery schedules, and determine the
i
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23 amount of Incentive Recharge Water available for delivery under this
M Agreement in the following year.
1
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25 (i v) On or before December 15 of each year, CAWCD shall
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26 determine and furnish to the Contractor the water delivery schedule
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1 for the following year which shall show the amount of Incentive
2 Recharge Water to be delivered to the Contractor during each month of
3 that year, contingent upon the Contractor remaining eligible to
4 receive water under all terms contained herein.
5
(c) The monthly water delivery schedule may be amended upon
6 the Contractor's written request to CAWCD. Proposed amendments shall
7 be submitted by the Contractor to CAWCD no later than 15 days before
8 the desired change is to become effective, and shall be subject to
9 review and modification in like manner as the schedule. CAweD shall
10 notify the Contractor of its action on the Contractor I s requested
11 schedule modification within 10 days of CAWCD's receipt of such
12 request.
13
(d)
If the Contractor elects to have Incentive Recharge
14 Water made available pursuant to this Agreement delivered to a
15 groundwater savings facility for indirect recharge, CAWCD will
16 coordinate delivery of Incentive Recharge Water directly with the
17 operator of the groundwater savings facility.
18
(e) The Contractor shall hold CAWCD, its officers, agents,
19 and employees, harmless on account of damage or claim of damage of any
20 nature whatsoever arising out of or connected with the actions of
21 CAWCD regarding water delivery schedules furnished by or to the
i
22 Contractor.
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23
Contractor's Project Delivery Point, Measurement
and Responsibility for Distribution of Water
1
24
10.
(a) Incentive Recharge Water furnished to the Contractor
4
25
pursuant to this Agreement shall be delivered to the Contractor at ~
26
-8.-
1 such point(s) on the Water Supply System as are agreed upon in writing
2 by CAWCD and the Contractor. All such point(s) shall hereinafter be
3 referred to as the "Contractor's Project delivery point."
4
(b) Unless CAWCD and the Contractor agree by contract to
5 the contrary, the Contractor shall construct and install, at its sole
6 cost and expense, all connection facilities required to convey water
7 furnished to the Contractor pursuant to this Agreement to the
8 Contractor's service area or place of use, as the case may be. The
9 Contractor shall furnish, for written approval by CAWCD, drawings and
10 specifications showing all connection facilities to be constructed or
11 installed within the Water Supply System right-of-way, and shall
12 obtain such approval before commencing construction or installation of
13 such facilities. All facilities constructed, installed, operated or
14 maintained on the Water Supply System right-of-way by or for the
15 Contractor shall be subject to such further agreements and to such
16 restrictions and regulations as to type, location, method of
17 installation, operation, and maintenance as may be prescribed by
18 CAWCD.
19
(c) The Contractor shall construct, operate, and maintain
20 its connection facilities and appurtenant works in a good and
21 workmanlike manner and in full compliance with the laws of the State
n of Arizona and with all laws, regulations, and orders of the United ~
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23 States affecting such operations. The failure of the Contractor after
25 facilities and appurtenant works in a good and workmanlike manner or
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A
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~ due notice to construct, operate, and maintain its connection
26 to abide by any of the terms and conditions of any applicable laws,
-9-
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1 regulations, or orders, shall cause this Agreement to be subject to
2 immediate termination at the option of CAWCD. The Contractor shall
3 reimburse CAWCD within thirty (30) days of Contractor's receipt of a
4 statement for the costs of repairing any damage to Project facilities
5 or Project rights-of-way caused by or arising out of the Contractor's
6 activities under this Agreement.
7
(d) Upon termination of this Agreement, the Contractor
8 shall promptly remove, at its sole cost and expense, all connection
9 facilities constructed or installed on the Water Supply System
10 right-of-way and restore said right-of-way and all Project facilities
11 affected to their condition immediately prior to the construction or
12 installation of such connection facilities. If the Contractor fails
13 to remove said connection facilities and restore said right-of-way and
14 Project facilities within thirty (30) days after receiving any written
15 notice from CAWCD to do so, CAWCD may remove said connection
16 facilities and restore said right-of-way and Project facilities at the
17 Contractor's cost and expense, and, within thirty (30) days after
18 receiving written demand from CAWCD to do so, the Contractor shall pay
19 CAWCD, as specified in such written demand, for all costs and expenses
20 incurred by CAWCD in removing said connection facilities and restoring
21 said right-of-way and Project facilities.
22
(e)
If the Contractor I s Project delivery point is a Project
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23 turnout or Project turnouts constructed by the United States, and if
5
M the Contractor intends to convey water furnished to the Contractor
i
25 pursuant to this Agreement through connection facilities owned or
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26 operated by others, the use by the Contractor of such connection
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1 facilities shall be the subject of written agreement(s) between the
2 Contractor and the owner(s) or operator(s) of such connection
3 facilities, and all such agreements shall include such terms and
4 conditions as may be required by CAWCD and shall be subject to the
5 prior, written approval of CAWCD before becoming binding upon the
6 parties thereto.
7
(f) Unless the Contractor's project delivery point is a
8 Project turnout or Project turnouts constructed by the United States,
9 all water delivered from the Water Supply System shall be measured
10 with equipment furnished and installed by the Contractor and operated
11 and maintained by the Contractor at the Contractor I s sole cost and
12 expense. The results of such measurements shall be reported to CAWCD
13 in such manner and at such time(s) as CAWCD may prescribe. Upon the
14 request of CAWCD, the accuracy of such measurements shall be
15 investigated by the Contractor, and any errors which are determined to
16 have occurred therein shall be adjusted; Provided, however, that in
17 the event the parties cannot agree on the required adjustment, CAWCD's
18 determination shall be conclusive.
19
(g) If the Contractor's Project delivery point is a Project
20 turnout or proj ect turnouts constructed by the United States, all
21
water delivered from the Water Supply System shall be measured with
equipment furnished and installed by the United States and operated
i
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22
23
and maintained by CAWCD.
Upon the request of the Contractor, or
3
5
24 CAWCD, the accuracy of such measurements shall be investigated by
25 CAWCD and the Contractor, and any errors which are mutually determined
1
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26 to have occurred therein shall be adjusted; Provided, however, that in
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1 the event the parties cannot agree on the required adjustment, CAWCD's
2 determination shall be conclusive.
3
(h) Neither the United States nor CAWCD shall be
4 responsible for the control, carriage, handling, use, disposal, or
5 distribution of water beyond the Contractor's Project delivery point.
6 The Contractor shall hold the United States and CAWCD harmless on
7 account of damage or claim of damage of any nature whatsoever for
8 which there is legal responsibility, including property damage,
9 personal injury, or death arising out of or connected with the
10 control, carriage, handling, use, disposal, or distribution of water
11 beyond the Contractor's Project delivery point.
12 Interruptions and Reductions
13
11. In addition to the right of the United States under
14 Subarticle 8.3(a) (iv) of the RepaYment Contract to temporarily
15 discontinue or reduce the amount of water to be delivered, CAWCD may
16 discontinue or reduce the quantity of water to be furnished to the
17 Contractor as herein provided for the purposes of investigation,
18 inspection, construction, testing, maintenance, repair, or replacement
19 of any of the Project facilities or any part thereof. CAWCD may also
20 discontinue or reduce the quantity of water to be furnished to the
21 Contractor if there is insufficient Project Water or Project delivery
22 capacity to deliver the Contractor's water order, the water orders of
1
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23 other contractors of Incentive Recharge Water and Excess Water
........
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~ service, and all water deliveries scheduled pursuant to a contract
4
25 with the United States or a subcontract with the United States and
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26 CAWCD providing for Project Water service for a period of 50 years or
-12-
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1 more. So far as feasible, CAWCD shall attempt to coordinate any such
2 discontinuance or reduction with the Contractor and to give the
3 Contractor due notice in advance of such discontinuance or reduction.
4 In case of emergency, no notice need be given. The united States, its
5 officers, agents, and employees, and CAWCD, its officers, agents, and
6 employees, shall not be liable for damages when, for any reason
7 whatsoever, any interruption, discontinuance, or reduction in delivery
8 of water occurs.
If any such discontinuance or temporary reduction
9 results in deliveries to the Contractor of less water than what has
10 been paid for in advance, the Contractor shall be entitled to be
11 reimbursed for the appropriate proportion of such advance paYments
12 prior to the date of the Contractor's next paYment of water service
13 charges or the Contractor may be given credit toward the next paYment
14 of water service charges if the Contractor should so desire.
15 No Long-Term Commitment to the Delivery of Project Water
16
12. Nothing in this Agreement shall be construed as an
17 allocation of proj ect Water to the Contractor, nor shall this
18 Agreement entitle the Contractor to any Project Water other than as
19 provided herein.
20 Quality of Water
21
13. CAWCD does not warrant the quality of any Project Water
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22 furnished under this Agreement and is under no obligation to construct
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23 or furnish water treatment facilities to maintain or better the 5
24 quality of any Project Water. The Contractor waives its right to make
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25 a claim against the United States, CAWCD, or any other proj ect ~
26 subcontractor or contractor on account of the quality of Project Water
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1 or any changes in water quality caused by the commingling of Project
2 Water with other water.
3 Water Service Charges
4
14.
(a) The Contractor shall pay in advance water service
5 charges established annually by CAWCD.
On or before the date of
6 execution of this Agreement, or as soon thereafter as is practicable,
7 CAWCD shall notify the Contractor of the water service charges in
8 effect for the initial year of this Agreement. On or before October
9 15 of each year, CAWCD will notify the Contractor of the water service
10 charges in effect for the following year. On or before the first day
11 of each month, the Contractor shall pay CAWCD the water service
12 charges due for Incentive Recharge Water scheduled for delivery during
13 that month.
The Contractor shall pay in advance all water service
14 charges established by CAWCD for Incentive Recharge Water scheduled
15 for delivery under this Agreement; Provided, however, that the
16 Contractor shall be relieved of the pumping energy portion of the
17 water service charges associated with any Project Water scheduled for
18 delivery that is not delivered to the Contractor.
19
(b) The paYment of all water service charges when due under
20 this Agreement is a condition precedent to delivery of Incentive
21 Recharge Water.
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(c) The obligation of the Contractor to pay CAWCD as
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23 provided in this Agreement is a legally binding obligation of the
~ Contractor notwithstanding the manner in which the obligation may be
25 distributed among the Contractor I s water users and notwithstanding the
6
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1 default of individual water users in their obligations to the
2 Contractor.
3 Termination of Contract
4
15. If the Contractor remains in arrears in the payment of any
5 charges due CAWCD for a period of 60 days or more, CAWCD may terminate
6 this Agreement, which termination shall be effective 30 days after
7 mailing written notice of termination to the Contractor. The
8 Contractor shall remain obligated to pay all charges required to be
9 paid under this Agreement during the time period until and including
10 the date of termination.
The Contractor I s obligation to pay any
11 amounts due but unpaid as of the date of termination shall survive
12 termination of this Agreement.
CAWCD's right to terminate this
13 Agreement as provided in this Article 15 shall be in addition to the
14 other rights of CAWCD under this Agreement and to all other rights
15 provided by law.
16 Charges for Delinquent Payments
17 16. (a) The Contractor shall be subj ect to interest,
administrative and penalty charges on delinquent installments or
18 payments. The Contractor shall pay an interest charge for each day
the payment is delinquent beyond the due date. When a payment becomes
19 60 days delinquent, the Contractor shall pay an administrative charge
to cover additional costs of billing and processing the delinquent
20 payment. When a payment is delinquent 90 days or more, the Contractor
shall pay an additional penalty charge of 6 percent per year for each
21 day the payment is delinquent beyond the due date. Further, the
Contractor shall pay any fees incurred for debt collection services
22 associated with a delinquent payment.
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23 (b) The interest charge rate shall be the greater of the
rate prescribed quarterly in the Federal Register by the Department of
24 the Treasury for application to overdue payments, or the interest rate
of 0.5 percent per month prescribed by Section 6 of the Reclamation
25 Project Act of 1939 (Public Law 76-260). The interest charge rate
shall be determined as of the due date and remain fixed for the
26 duration of the delinquent period.
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1 (C) When a partial payment on a delinquent account is
received, the amount received shall be applied first to the penalty
2 and administrative charges, second, to the accrued interest, and third
to the overdue payment.
3
Rules, Regulations and Determinations
4
17. (a) The parties agree that the delivery of water or the use
5 of Federal facilities pursuant to this Agreement is subject to
Reclamation law, as amended and supplemented, and the rules and
6 regulations promulgated by the Secretary of the Interior under
Reclamation law.
7
(b) The Contracting Officer shall have the right to make
8 determinations necessary to administer this Agreement that are
consistent with the expressed and implied provisions of this
9 Agreement, the laws of the united States and the State of Arizona, and
the rules and regulations promulgated by the Secretary of the
10 Interior. Such determinations shall be made in consultation with
CAWCD and the Contractor.
11
Com?liance with Environmental Laws
12
18. The Contractor, in carrying out this Agreement, shall comply
13 with all applicable environmental laws and regulations of the United
States and the State of Arizona and shall obtain all required permits
14 or licenses from the appropriate Federal, State, or local authorities.
15 Equal Opportunity
16 19. During the performance of this Agreement, the Contractor
agrees as follows:
17
(a) The Contractor will not discriminate against any
18 employee or applicant for employment because of race, color, religion,
sex, or national origin. The Contractor will take affirmative action
19 to ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion, sex,
20 or national origin. Such action shall include, but not be limited to
the following: employment, upgrading, demotion, or transfer;
21 recruitment or recruitment advertising; layoff or termination; rates
of payor other forms of compensation; and selection for training,
22 including apprenticeship. The Contractor agrees to post in
conspicuous places, available to employees and applicants for
23 employment, notices to be provided by the Contracting Officer setting
forth the provisions of this nondiscrimination clause.
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(b) The Contractor will, in all solicitations or
25 advertisements for employees placed by or on behalf of the Contractor,
state that all qualified applicants will receive consideration for
26 employment without discrimination because of race, color, religion,
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1 sex, or national origin.
2 (c) The Contractor will send to each labor union or
representative of workers with which it has a collective bargaining
3 agreement or other contract or understanding, a notice, to be
provided by the Contracting Officer, advising said labor union or
4 workers' representative of the Contractor's commitments under Section
202 of Executive Order 11246 of September 24, 1965, .s amended, and
5 shall post copies of the notice in conspicuous places available to
employees and applicants for emploYment.
6
(d) The Contractor will comply with all provisions of
7 Executive Order No. 11246 of September 24, 1965, as amended, and of
the rules, regulations, and relevant orders of the Secretary of Labor.
8
(e) The Contractor will furnish all information and reports
9 required by said amended Executive Order and by the rules,
regulations, and orders of the Secretary of Labor, or pursuant
10 thereto, and will permit access to its books, records, and accounts by
the Contracting Officer and the Secretary of Labor for purposes of
11 investigation to ascertain compliance with such rules, regulations,
and orders.
12
(f) In the event of the Contractor's noncompliance with the
13 nondiscrimination clauses of this Agreement or with any of such rules,
regulations, or orders, this Agreement may be canceled, terminated, or
14 suspended, in whole or in part, and the Contractor may be declared
ineligible for further Government contracts in accordance with
15 procedures authorized in said amended Executive Order, and such other
sanctions may be imposed and remedies invoked as provided in said
16 amended Executive Order, or by rule, regulation, or order of the
Secretary of Labor, or as otherwise provided by law.
17
(g) The Contractor will include the provisions of
18 paragraphs (a) through (g) in every subcontract or purchase order
unless exempted by rules, regulations, or orders of the Secretary of
19 Labor issued pursuant to Section 204 of said amended Executive Order,
so that such provisions will be binding upon each subcontractor or
20 vendor. The Contractor will take such action with respect to any
subcontract or purchase order as may be directed by the Secretary of
21 Labor as a means of enforcing such provisions, including sanctions for
noncompliance; Provided, however, that in the event the Contractor
22 becomes involved in, or is threatened with, litigation with a
subcontractor or vendor as a result of such direction, the Contractor
23 may request the united States to enter into such litigation to protect
the interests of the United States.
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Compliance With Civil Riqhts Laws and Regulations
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The Contractor shall comply with Title VI of the Civil
of 1964 (42 U.S.C. 2000d), Section 504 of the
26
20. (a)
Rights Act
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1 Rehabilitation Act of 1975 (Public Law 93-112, as amended), the Age
Discrimination Act of 1975 (42 U.S.C. 6101, et seq.) and any other
2 applicable civil rights laws, as well as with their respective
implementing regulations and guidelines imposed by the U. S. Department
3 of the Interior and/or Bureau of Reclamation.
4 (b) These statutes require that no person in the United
States shall, on the grounds of race, color, national origin,
5 handicap, or age, be excluded from participation in, be denied the
benefits of, or be otherwise subjected to discrimination under any
6 program or activity receiving financial assistance from the Bureau of
Reclamation. By executing this Agreement, the Contractor agrees to
7 immediately take any measures necessary to implement this obligation,
including permitting officials of the United States to inspect
8 premises, programs, and documents.
9 (c) The Contractor makes this Agreement in consideration of
and for the purpose of obtaining any and all Federal grants, loans,
10 contracts, property discounts or other Federal financial assistance
extended after the date hereof to the Contractor by the Bureau of
11 Reclamation, including installment paYments after such date on account
of arrangements for Federal financial assistance which were approved
12 before such date. The Contractor recognizes and agrees that such
Federal assistance will be extended in reliance on the representations
13 and agreements made in this article, and that the United States
reserves the right to seek judicial enforcement thereof.
14
15
Books. Records. and Reports
21. The Contractor shall establish and maintain accounts and
16 other books and records pertaining to administration of the terms and
conditions of this Agreement, including: the Contractor's financial
17 transactions, water supply data, project operation, maintenance and
replacement logs, and Project land and right-of-way use agreements;
18 the water users' land-use (crop census), land ownership, land-leasing
and water-use data; and other matters that CAWCD may require. Reports
19 thereon shall be furnished to CAWCD in such form and on such date or
dates as CAWCD may require. Subject to applicable Federal laws and
20 regulations, each party to this Agreement shall have the right during
office hours to examine and make copies of each other party's books
21 and records relating to matters covered by this Agreement.
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22 Notices
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23 22. Any notice, demand, or request authorized or required by
this Agreement shall be deemed to have been given, on behalf of CAWCD,
24 when mailed, postage prepaid, or delivered to C. Brad DeSpain,
Utilities Director, Town of Marana, 12775 N. Sanders Road, Marana,
25 Arizona 85653, and on behalf of the Contractor when mailed, postage
prepaid, or delivered to the General Manager, Central Arizona Water
26 Conservation District, 23636 North Seventh Street, Phoenix, Arizona
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1 85024. The designation of the addressee or the address may be changed
by notice given in the same manner as provided in this Article for
2 other notices.
3 Assignment Limited--Successors and Assigns Obligated
4 23. The provisions of this Agreement shall apply to and bind the
successors and assigns of the parties hereto, but no assignment or
5 transfer of this Agreement or any right or interest therein shall be
valid unless and until approved in writing by CAWCD. The provisions
6 of this Article 23 shall not apply to any assignment or transfer of
stored water credits earned by Contractor pursuant to this Agreement.
7
Cancellation
8
24. This Agreement is subject to cancellation in accordance with
9 the provisions of A.R.S. ~ 38-511.
10
IN WITNESS WHEREOF, the parties hereto have executed this
11 Agreement No.
IR032-00
effective the day and year first
12 above-written.
14
15 Attest:1& ~""-'"
16 Secretary
CENTRAL ARIZONA WATER
CO~VATION DISTRICT
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18
TOWN OF MARANA
24
By :;-;-tIt:
Title: /1'l4t;~r
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21
22
Approved as to form:
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25 lo\incentiv\marana
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EXHIBIT A
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2
3
4
5
6
7
8
9
10
11
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13
14
15
16
17
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22
23
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26
Article No.
1.
2.
3.
4.
5.
6.
.1
.2
.3
.4
.5
.6
.7
7.
DUPUCATE~RIGINAL
Contract No. 14-06-W-245
Amendment No. 1
B.C. Draft 11/28/88
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
CONTRACT BETWEEN THE UNITED STATES
AND THE CENTRAL ARIZONA WATER CONSERVATION DISTRICT
FOR DELIVERY OF WATER AND REPAYMENT OF COSTS OF THE
CENTRAL ARIZONA PROJECT
INDEX
Tit 1 e
PART! ES
AUTHORITIES
RECITALS .
ARTICLES OF AGREEMENT .
DEFINITIONS . . . . .
PROJECT CONSTRUCTION
Agreement of the United States
Costs of Project . . . . . . .
Principal Works of the Project
Changes in Project Works . . . .
Construction Conditions . . . . .
Annual Work Program . . . . . . . . . . .
Inability of the United States to Complete
Project on Basis of Cost Estimates . . .". . .
PROJECT OPERATION, MAINTENANCE, AND
REPLACEMENT . . . . . . . . . . . .
.1
Operation aAd Maintenance and Water Deliveries
by the United States Prior to Completion
of Con struct ion . . . . . . . . . . . .'. . . .
Operation and Maintenance and Water Deliveries
after Completion of Construction . . . . . . .
.2
Paqe No.
1
1
2
3
3
10
10
11
12
13
14
14
15
15
1
3
5
15
16
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Article No.
Tit 1 e
Paqe No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
8. DELIVERY OF WATER
.1 Obligation of United States
.2 Term of Contract ...
.3 Conditions Relating to Delivery
.4 Delivery Points. .... .
.5 Measurement... ... ..
.6 Responsibility for Distribution of Water
after Leaving Water Supply System
.7 Quantity of Water to be Delivered. ..
.8 Subcontracts....... .......
.9 Shortages ... ...........
.10 Rate of Diversions of Colorado River Water
.11 Priority in Case of Shortage . . . . .
.12 No Guarantee of Availability of Water.
.13 Secretarial Control of Return Flow
.14 Water and Air Pollution Control. . .
.15 Quality of Water .... ....
.16 Exchange Water . . . . . .. . ..
.17 Rights Reserved to the United States to Have
Water Carried by Project Facilities. .
.18 Wheeling Non-Project Water . . . . . . .
.19 Use of Project Power to Wheel Non-Project
Water ..... .. . ...
16
16
17
17
19
20
21
21
24
27
28
29
29
30
31
31
31
32
32
33
9. PAYMENT OF PROJECT COSTS ALLOCATED TO
CONTRACTOR .........
.1 Allocation of Construction Costs
.2 Repayment Concepts . . . .. ....
.3 Contractor's Construction Cost Repayment
Obligation .. ... . . . . .
.4 Payment of Contractor's Construction Cost
Repayment Obligation . . . . . . .
.5 Commercf a 1 Power Rates . .. ...
.6 Other Costs Borne by the Contractor. . . .
.7 Repayment of Costs of Excess Capacity in
Granite Reef Aqueduct.. .....
.8 Ad Valorem Taxes, Assessmentst Tollst and
Other Charges. .... . . .
.9 Continuation of Payments after Project
Payout
.10 Defaults
33
33
34
36
42
44
44
47
47
47
48
48
48
48
48
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10. GENERAL PROVISIONS
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.1 Other Contracts ..
.2 Title to Project Works
.3 Reserve Funds . .
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2 .6
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3 .8
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4 .10
5 .11
6 .12
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7 .14
8 .15
9 II.
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14
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16
17
18
19
20
21
22
23
24
25
26
Title
Recreational Use of Water Facilities
Confirmation of Contract. . . . . .
Rules, Regulations, and Determinations ..
Books, Records, and Reports . . . . . .
Notices . . . . . . . - . . . . . . . . .
Contingent on Appropriation or Allotment
of Funds . . . . . . . . . . . . . . . .
Changes in Contractor's Organization. . .
Assignment Limited--Successors and Assigns
Db 11 ga ted . . . . . . . . . . . . .
Judicial Remedies Not Foreclosed. . .
Equal Opportunity . . . . . . . . . .
Compliance with Civil Rights Laws and
Regulations . . . . . . . . . . .
Officials Not to Benefit. . . . . .
STATUS OF DECEMBER 15, 1972 CONTRACT
Paqe No.
51
51
52
53
53
54
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55
55
57
58
58
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r"''''tract No. 14-06-W-245
I Ildment No. 1
B.C. Draft 11/28/88
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLNMATION
CONTRACT BETWEEN THE UNITED STATES
AND THE CENTRL ARIZONA WATER CONSERVATION DISTRICT
FOR DELIVERY OF WATER AND REPAYMENT OF COSTS OF THE
CENTRAL ARIZONA PROJECT
1.
PARTIES
8 The parties to this contract, executed as of this first day of
9 December, 1988, are the United States of America, acting through the
10 Department of the Interior, and the Central Arizona Water Conservation
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
District, a multi-county water conservation district organized under
the laws of Arizona, with its prinCipal place of business in Phoenix,
Arizona.
2. AUTHORITIES
This contract is made pursuant to the:
2.1 Act of June 17, 1902, 32 Stat. 388, and acts amendatory
thereof and supplementary thereto.
2.2 Boulder Canyon Project Act, approved December 21, 1928,
45 Stat. 1057, a supplement to the Federal Reclamation Laws.
2.3 Reclamation Project Act of 1939, approved August 4, 1939,
53 Stat. 1187, as amended.
2.4 Colorado River Basin Project Act, approved
September 30, 1968, 82 Stat. 885, as amended, a supplement to the Federal
Reclamation Laws.
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2
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2.5 Arizona Revised Statutes, Section 48-3701 et ~.
3.
RECITALS
3.1 The Colorado River Basin Project Act provides, among other
4 things, that for the purposes of furnishing irrigation water
5 and municipal and industrial water supplies to water-deficient areas
6 in Arizona and western New Mexico through direct diversion or exchange
7 of water, control of floods, conservation and development of fish and
8 wildl i fe resources, enhancement of recreation opportunities, and
9 for other purposes, the Secretary of the Interior shall construct,
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
operate, and maintain the Central Ar'izona Project, consisting of the
principal works hereinafter described in Article 6.3.
3.2 Pursuant to the provisions of Arizona Revised Statutes,
Section 48-3701 et~., the Central Arizona Water Conservation District
has been organized with the power to enter into a contract or contracts with
the Secretary of the Interior to accomplTsh the purposes of Arizona Revised
Statutes, Section 48-3701 et ~.
3.3 On December 15, 1972, the United States and the Contractor
entered into a contract entitled "Contract Between the United States and the
Central Arizona Water Conservation District for Delivery of Water and
Repayment of Costs of the Central Arizona Project" (Contract
No." 14-06-W-245), whereby, among .other thi ngs, the United States agreed to
construct the Central Arizona Project and the Contractor agreed to repay the
costs of the project properly allocable to the Contractor.
3.4 Subart-icle 9.3(b) of said contract provides that the
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Contractor's repayment obligation shall not exceed $1.2 billion.
.,.
3.5 Subarticle 9.3(b) of said contract also provides that if the
2
1 Contractor's repayment obligation will exceed $1.2 billion. the
2 Contracting Officer shall consult with the Contractor and continuation of
3 construction will be contingent upon the execution of an amendatory contract
4 to cover the increased repayment obligation.
5
6
7
8
9
10
11
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13
14
15
16
17
18
19
20
21
22
23
24
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3.6
Both parties acknowl edge that the Contractor's repayment
obligation will exceed $1.2 billion. and have agreed to increase the
Contractor's repayment ceiling to a level sufficient to facilitate
completion of the project.
4.
ARTICLES OF AGREEMENT
NOW. THEREFORE I in con s i dera t i on of the mutual and dependent
stipulations and covenants herein contained, it is agreed by and between the
parties hereto as follows:
5.
DEFINITIONS
When used herein, unless otherwise distinctly expressed, or
manifestly incompatible with the intent hereof, the terms:
5.1 "Federal Reclamation Laws" or "Reclamation Laws" shall
mean the Act of June 17, 1902, 32 Stat. 388. and all acts amendatory
thereof or supplementary thereto.
5.2 "Basin Project Act" shall mean the Colorado River Basin
Project Act, 82 Stat. 885, dated September 30, 1968, as amended, which is a
supplement to the Federal Reclamation Laws.
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5.3 "Secretary" shall mean the Secretary of the Interior of the
United States or his duly authorized representative.
5.4 "Contracting Officer" shall mean the Secretary or his
authorized designee acting in his behalf.
5.5 "Contractor" sha 11 mean the Centra 1 Ari zona Water
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1 Conserva t ion Oi stri ct, organ i zed pursuant to Ari zona Revi sed Statutes,
2 Section 48-3701 et ~.
3
5.6 "Service area" shall mean the area now included within
4 the Central Arizona Water Conservation District, consisting of Maricopa,
5 Pinal, and Pima Counties of Arizona and such other counties as may
6 hereafter become part of the District, exclusive of any Indian reservation
7 land lying wholly or partly within said Counties.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
5.7 "Subcontractor" shall mean any irrigation district,
municipality, individual, or any entity which enters into a water service
subcontract with the United .States and the Contractor in furtherance of the
provisions of the Basin Project Act.
5.8. "Central Arizona Project" or "project" shall mean the
project and works authorized by Section 301(a) of the Basin Project
Act and constructed by the United States pursuant to the provisions
of said Act and this contract.
5.9 "Project worksll shall mean the principal works described
in Section 301(a) of the Basin Project Act, and appurtenances thereto,
or as modified pursuant to Article 6.4 hereof, together with lands,
interests in lands, and rights-of-way for such works and appurtenances.
5.10 "Water supply system" shall mean the Navajo Project, Havasu
Pumping Plant, the Granite Reef, Salt Gila and Tucson aqueducts and
associated pumping plants and appurtenant works, but not including Tucson
Terminal Storage or any distribution works.
5.11 IIDistribution works" shall mean those facilities
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constructed or financed by the United States under the authorization in
Section 309(b) of the Basin Project Act for the primary purpose of
4
1 distributing the project water supply within the service area after said
2 project water supply has been transported or del ivered through the water
3 supply system.
4
5.12
"Agricultural water" or "irrigation waterll shall mean
5 project water used primarily in the commercial production of agricultural
6 crops or livestock, including domestic use incidental thereto, on tracts of
7 land operated in units of more than 5 acres.
8
5.13 IIMiscellaneous water" shall mean water delivered from the
9 project, or by exchange for project water, for recreational and fish and
10 wildlife purposes at other than project facilities and shall have a lesser
11 priority of use than agricultural water.
12
5.14
"Municipal and industrial water," herein referred
13 to as "M&I water," shall mean project water other than agricultural or
14 miscellaneous water delivered by means of the project works.
15
5.15
"Lands not having a recent irrigation history" shall
16 mean, except where otherwise determined by the Secretary for efficiency of
17
subcontractor's operation, lands which the Secretary determines were not
18 irrigated during the period September 30, 1958, to September 30, 1968.
19
5.16 "OM&R" shall mean the care, operation, maintenance, and
20 replacement of project works.
21
22
23
24
25
26
5.17
"Exchange wa ter" sha 11 mean Co 1 orado Ri ver water made
1
available in exchange for or in replacement of existing supplies from
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surface sources other than the mainstream of the Colorado River.
3
5.18 "Transferred works" shall mean such facil Hies of the water
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2 Agency.
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7
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16
17
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20
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22
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26
5.19
"Operating Agency" shall mean the entity or entities
authori zed to assume OM&R responsibi lity of transferred works and approved
for that purpose by the Contracting Officer.
5.20 IITransfer notice" shall mean a written notice or notices,
numbered consecutively, which the Contracting Officer transmits to the
Operating Agency and which shall designate:
(a) the transferred works;
(b) items of equipment and suppl ies transferred to the
Operating Agency; and
(c) the date upon which such transfer will be effected.
5.21 "Gila River system waters" shall mean waters of the
Gila River and tributaries thereof east of the Yuma-Maricopa County line.
5.22 "Notice of completion" shall mean the notice which the
Contract i ng Off; cer issues to Contractor to announce the substantia 1
completion of a construction stage. Each such notice of completion shall
include the estimated amount of the repayment obligation for the
construction stage to which the notice pertains, the date of initiation of
repayment for the construction stage and indicate the amount and due date
for the first payment for the construction st~e.
5.23 "Deve 1 opment Fund" shall mean the separate fund, known
as the Lower Colorado River Basin Development Fund, established 1n
the Treasury of the United States pursuant to Section 403(a) of the
Basin Project Act.
5.24 "Yearll sha 11 mean the period January 1 through the next
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1 succeeding December 31.
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"Contractor's Construction Cost Repayment Obligation;"
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3 hereinafter referred to as IIrepayment obligation," shall mean the total
4 amount of all construction costs including related construction claims and
5 interest thereon, OM&R costs during construction, and interest on costs
6 allocated to the M&I water and power functions during construction, of the
7 Centra 1 Ari zona Project, incurred therefor and as determined by the
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United States and further described in Article 6.2 hereof, excluding
reimbursable costs allocated to fish and wildlife and recreation, and costs
associated with the delivery of water to entities other than the Contractor
or subcontractors, and which is determined by the Secretary, after
consultation with the Contractor, to be allocable to and repayable by the
Contractor in accordance with the provisions of the Basin Project Act and
this contract.
5.26
"Return flow" shall mean all agricultural, M&I, and
mi sce 11 aneous waste water, seepage, and ground water wh1-ch ori gi nates or
resul ts from water contracted for from the C,entral Ari zona Project, but
shall not include any water delivered through the project works for ground
water recharge purposes.
5.27 "Project water" shall mean (a) all water allocated by the
Secretary for project purposes by Federal Reqister notice dated
March 24, 1983, and any subsequent reallocation by the Secretary as
contemplated in paragraph 6 of said Federal Reqister notice, which water is
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available pursuant to contracts with the Secretary from:
( 1) the
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Colorado River; (2) Central Arizona Project dams and reservoirs; and (3)
return flows captured by the Secretary for project use;- (b) any water
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delivered to entities in Arizona, through the project works, as a
replacement supply for Cliff Dam; (c) water delivered to water users in
Arizona, through the project works, in exchange for water delivered to users
in New Mexico from or by means of the project works; and (d) any additional
water not included in (a) above, that is required to be delivered by the
Secretary through the project, pursuant to the Ak-Chin Water Rights
Settlement Act of 1978 (Public Law 95-328), as amended on October 19, 1984
(Public Law 98-530); the Southern Ariz.ona Water Rights Settlement Act of
October 12, 1982 (Title III of Public Law 97-293); and, subject to the
execution of a settlement agreement by the Contractor providing for the
settlement of the water rights claims of the Salt River Pima-Maricopa Indian
Community and to the Salt River Pima-Maricopa Indian Community Water Rights
Settlement Act of 1988 (Public Law 100-512), up to 22,000 acre-feet annually
of Colorado River water to be delivered through the project works in
accordance with said settlement agreement and legislation.
5:"'28 "Indian landsll shall mean the lands within any Indian
reservation for which an allocation of project water has or will be made by
the Secretary for delivery through project works.
5.29 "Navajo Project" shall mean the interests of the United
States in the Navajo Generating Station and the Transmission System, or any
replacement thereof, as authorized by Section 303 of the Basin Project Act
and as described in contracts entered into pursuant to that Act.
5.30 "Construction stage" shall mean anyone of the following:
(1) the water supply system; (2) New Waddell and Modified Roosevelt Dams;
(3) replacement features or programs for Cliff Dam; (4) Tucson terminal
storage; (5) Hooker Dam or suitable alternative; and (6) Buttes Dam.
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5.31
"p1 an 6" shall mean P1 an 6 for the Regu1 atory Storage
Division of the Central Arizona Project as approved by Record of Decision
of the Secretary dated April 3, 1984 as amended and supplemented by Records
of Deci sian of the Secretary dated May 20, 1986 (Supplement One) and
June 17, 1988 (Supplement Two).
5.32 "Allocable cost" shall mean (a) with respect to the project,
the total project cost less' (1) the cost of non-Indian distribution works,
(2) the cost of the safety of dams component of Plan 6, (3) the cost of
Indian distribution systems, (4) the cost of the Colorado River Division and
the New Mexico fish hatchery, (5) the cost of cultural resources studies,
(6) the contributions provided by the States of Arizona and New Mexico prior
to execution of the Plan 6 Funding Agreement, (7) the costs of Charleston
Dam and San Pedro Aqueduct, (8) the cost of 500 cubic feet per second of
incremental capacity in the Granite Reef Aqueduct and related costs in the
Navajo Project, and (9) such other costs as determined appropriate by the
Contracting Officer; and (b) with respect to each construction stage, the
total cost of such stage less that portion of the following costs associated
with such stage: (1) the cost of the safety of dams component of Plan 6,
(2) the cost of cultural resources studies, (3) the contributions provided
by the States of Arizona and New Mexico prior to execution of the Plan 6
Funding Agreement, (4) the cost of 500 cubic feet per second of incremental
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capacity in the Granite Reef Aqueduct and related costs in the Navajo
Project, and (5) such other costs as determined appropriate by the
Contracting Officer.
5.33 "OM&R Transfer Contract" shall mean the August 5, 1987,
contract ent it 1 ed "Contract Between the Un ited States of Ameri ca and the
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1 Central Arizona Water Conservation District for the Transfer of Operation
2 and Maintenance of Facil ities" (Contract No. 7-07-30-W0167), and any
3 amendment or revision thereof.
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5.34 "Qvera 11 repayment period" shall mean the peri od of time
5 beginning with initiation of repayment of the first construction stage and
6 ending with final payment of the last construction stage.
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5.35 "Plan 6 Funding Agreement" shall mean the April 15, 1986,
agreement entitled "Agreement Among the United States, the Central Ari zona
Water Conservation District. the Flood Control District of Maricopa County,
the Salt River Agricultural Improvement and Power District and Salt River
Valley Water Users' Association. the Arizona Cities of Chandler. Glendale,
Mesa, Phoenix, Scottsdale, and Tempe, the State of Arizona, and the City of
Tucson for Funding of Plan Six Facilities of the Central Arizona Project,
Arizona. and for other Purposes." as it may be supplemented or amended.
5.36 "Permanent service" shall mean that water supply servi ce
commencing in the year following substantial completion of the water supply
system and continuing in perpetuity.
5.37 "Ground water recharge" shall mean the recharge of water
pursuant to title 45, chapter 2, article 13. Arizona Revised Statu~es, or
the underground storage and recovery of water pursuant to title 45,
chapter 3, Arizona Revi sed Statutes, or as said statutes may hereafter be
amended or revised.
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5.38 "Project power" shall mean the United States' entitlement
to capacity and energy from the Navajo Project.
6.
PROJECT CONSTRUCTION
6.1 Agreement of the United States. Subject to the terms and
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1 conditions of this contract and within the limits of the funds made
2 available therefor by Congress, the United States will expend toward the
3 construction of the project, exclusive of interest costs during
4 construction, $832,180,000 based on 1967 cost estimates, plus or minus such
5 amounts, if any, as may be justified by reason of ordinary fluctuations in
6 construction costs as indicated by engineering cost indices applicable to
7 the types of construction involved therein, or so much of such amount, as in
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the opinion of the Secretary, is necessary to construct said project,
whichever amount is the lesser. The aforementioned amount includes the
United States' costs of participation in the Navajo Project.
6.2 Costs of Project.
(a) The estimated construction cost of $832,180,000 for the
project, based upon 1967 prices, has been determined as follows:
Main System
Granite Reef Division
Orme Division
Salt-Gila Division
Tucson Aqueduct (Colorado River source)
Buttes Dam
Navajo Project
Subtotal
Other Separate Features
Hooker Dam or suitable alternative
Charleston Dam and San Pedro Aqueduct
(San Pedro River source)
Subtotal
Miscellaneous Features
"'Gila River Division
Indian Distribution System
Colorado River Division
Drainage System
Subtotal
Total Project
$ 1. 000 I s
407,740
42,340
47,170
46,300
35,240
106.000
684,790
31,730
36.420
68 , 1 SO
5,250
19,970
42,450
11.570
79.240
$832,180
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Fish hatchery costs, some of which may be located on the
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Provided, however, That (i) the adjustment provisions of Article 6.1 apply
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to the total construction costs of the project and not to the costs of the
individual line items set out in this Subarticle 6.2(a), and (ii) in
accordance with provisions of Article 6.4 herein, the references to the
individual line items set out in this Subarticle 6.2(a) are not to be deemed
a determination that each of the features referred to in the individual line
items will be constructed or that costs will be incurred for each of said
individual line items based upon a percentage which the estimated costs for
8 each individual line item bears to the project's total estimated
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construction costs.
(b) The Central Arizona Project costs incurred by the
United States which are to be repaid by Contractor shall include the share
allocated to the Contractor of (i) construction costs of the project. (ii)
all expenses of whatsoever kind or nature heretofore or hereafter incurred
by the United States in connection with. growing out of, or resulting from
the construction. and (iii) the OM&R during construction of project works.
The aforementioned share of allocated costs shall also include, but shall
not be limited to. interest during construction on costs allocated to the
M&I water and power functions, the cost of labor. materials, equipment,
engineering. legal services, surveys, investigations, property,
superi ntendence, admi n i stra t ion, overhead, genera 1 expense s. spec i a 1
services. damages of all kinds and character. inspection. repair, and
protection of project works and water supply, and the costs of all lands.
interests in lands, and rights-of-way acquired by the United States for the
project, all as determined by the Secretary.
6.3 Principal Works of the Project. The works and facilities to
be construct~'~er this contract shall consist of the following principal
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works:
(a) A system of main conduits and canals, including the
Havasu Pumping Plant and a main canal and pumping plants (Granite Reef
Aqueduct and pumping plants), for diverting and carrying water from
Lake Havasu to the confluence of the Salt and Verde Rivers, which system
will have a capacity of 3,000 cubic feet per second;
(b) Salt-Gila Aqueduct and pumping plant;
(c) Tucson Aqueduct and pumping plants;
(d) New Waddell and Modified Roosevelt Dams;
(e) replacement features or programs for Cliff Dam;
(f) Tucson Terminal Storage (if approved by the Secretary);
(g) Buttes Dam and Reservoir;
(h) Hooker Dam and Reservoir or suitable alternative which
shall be constructed in such manner as to give effect to the provisions of
Section 304(f) of the Basin Project Act;
(i) Charleston Dam and Reservoir and the San Pedro Aqueduct;
(j) related canals, regulating facflities, and electric
transmission facilities required for the operation of said principal works;
(k) related water distribution and drainage works; and
(1) appurtenant works.
No works or facil it i es for the treatment of water are i ncl uded in the
project works to be constructed by the United States. Nothing contained
herein shall be construed to indicate the order in which the aforedescribed
works will be constructed.
6.4 Chanqes in Project Works. Should the Secretary, either
before or during construction, determine it to be in the best interests of
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1 the project, he may, upon the completion of the studies currently being made
2 or to be made, including land classifications, hydrological, engineering,
3 geological, sedimentation, water supply, and repayment ability, and after
4 consultation with the Contractor, change the location, size, or capacity of
5 any of the project works, or may eliminate works, or add works to those
6 described above, and the Secretary's decision on such changes,
7 eliminations, and additions shall be conclusive.
6.5 Construction Conditions.
The Un i ted S ta te s sha 11 be unde r
9 no obligation to commence or, having commenced, to continue construction of
10 project works until transfer from the State of Arizona of such State-owned
11 lands or interests therein, in a form acceptable to the Attorney General of
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the Uni ted States, as the Secretary determi nes is necessary in the
construction, operation, or maintenance of the project.
6.6 Annual Work Proqram.
Ouri ng construction of the proj ect
wor~s the Contracting Officer will consult with the Contractor and/or with
any subcontractor through or within whose service area project works are to
be constructed to achieve maximum coordi nati on between such construction
program and the annual programs of any affected subcontractor.
Within
30 days following the enactment by Congress and Presidential appr?val of
annual or supplementary appropriation acts and the allotment of funds
thereunder for continued construction of the project, the United States will
furn ish the Contractor wi th a not; ce and statement showing the propo sed
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construction ~rogram for the balance of the current fiscal year and for the
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following fiscal year or years.
I f so requested in wri t i ng by the
Contractor within 30 days of its receipt of such notice, the Secretary will
consult with the Contractor and/or the affected subcontractor with respect
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1 to the proposed program. The action of the Contracting Officer concerning
2 the program after such consultation shall be final.
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6.7 Inability of the United States to Complete Project on Basis
4 of Cost Estimates. If construction of the project works shall have been
5 commenced but, prior to completion, the Secretary determines that the cost
6 of constructing the project will exceed the maximum amount to be expended
7 therefor by the United States as provided for in Article 6.1 hereof, the
8 Secretary may after consultation with the Contractor terminate construction
9 and declare the obl igations of the United States hereunder with regard to
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completion of construction of the project to have been fulfilled.
If
appropriations for the continuance and/or completion of construction in
amounts sufficient in the opinion of the Secretary to complete said
constructi on are authori zed by Congress and are available, the Secretary
shall consult with the Contractor and shall make continuation of
construction contingent upon the execution of an amendatory contract with
the Contractor wherein the Contractor I s maximum repayment obl igation is
increased so as to cover the increased reimbursable costs as determined by
the Secretary; Provided, however, That the Contractor shall not utilize any
part of the completed or unfinished project facilities in the absence of
written agreement with the Secretary for reimbursement therefor.
7.
PROJECT OPERATION, MAINTENANCE, AND REPLACEMENT
7.1 Operation and Maintenance and Water Deliveries by the
United States Prior to Completion of Construction. Except as provided in
the OM&R Transfer Contract, prior to completion of project works by the
United States, as determined and announced to the Contractor in writing by
the Secretary, the United States will operate and maintain said project
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facilities.
The cost of said OM&R allocated to the Contractor shall be
2 included in the Contractor's repayment obl igation; Provided, however, That
3 said OM&R cost shall not be included with the project cost ceiling se-t out
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in Article 6.1 hereof.
During the aforesaid period, project water, if
5 available, may be di sposed of by the Secretary at charges which the
6 Secretary determines to be appropriate; Provided, however, That to the
7 extent deemed feasible by the Secretary, preference will be given to
8 subcontractors and Indian lands. Payment for water shall be made in advance
9 by the water user. The places of measurement and delivery of said water
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shall be establ i shed by the Secretary after consultation with the
Contractor. Except as provided in the OM&R Transfer Contract, the proceeds
accruing from the disposal of such water shall be credited to the
Development Fund and applied toward the costs of the project as determined
by the Secretary.
7.2 Operation and Maintenance and Water Deliveries after
Completion of Construction.
Except as provided in the OM&R Transfer
Contract and any future agreements for the transfer of OM&R of the project
work.s or portions thereof, upon completion of construction of a
construction stage or upon completion of construction of the project, the
United States shall operate and maintain such construction stage or the
project and shall mak.e project water available to project water users.
8.
DELIVERY OF WATER
8.1 Obliqation of United States.
Subject to the terms,
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conditions, and provisions set forth herein, the United States will deliver
project water to Contractor and, during such periods as it operates and
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maintains the water supply system, the United States will also transport and
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de 1 her sa i d water to the subcontractors.
After transfer of OM&R the
2 United States will make deliveries of Colorado River water to'the Operating
3 Agency; del iveries of other project waters wi 11 be made pursuant to
4 determinations made by the Secretary.
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8.2 Term of Contract.
Subject to the terms, conditions, and
provisions set forth herein, this contract is for permanent service.
8.3 Conditions Re1atinq to Delivery.
(a) The obligation of the United States to deliver water
under this contract is subject to:
(i) The availability of such water for use in Arizona
under the provisions of the Colorado River Compact,
executed November 24, 1922; the Boulder Canyon
Project Act, 45 Stat. 1057, dated December 21,
1928; the Colorado River Basin Project Act, dated
September 3D, 1968, 82 Stat. 885; the contract
between the United States and the State of Arizona,
da ted Februa ry 9, 1944; the Op in i on 0 f the
Supreme Court of the Uni ted States in the case of
Arizona v. Ca1 ifornia et a-l., 373 U.S. 546,
rendered June 3, 1963; and the March 9, 1964,
Decree of that Court in said case, 376 U.S. 340, as
amended on February 28, 1966, at 383 U.S. 268, and
supplemented on January 9, 1979, at 439 U.S. 419,
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as now issued or hereafter modified.
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(i1) Executi ve A, Seventy-eighth Congress, Second
Session, a treaty between the United States of
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America and the United Mexican States. signed at
Washington on February 3. 1944. relating to the
utilization of the water of the Colorado River and
Tijuana River and of the Rio Grande from
Fort Quitman. Texas. to the Gulf of Mexico. and
Executive H. Seventy-eighth Congress.
Second Session. a protocol signed at Washington on
November 14. 1944, supplementary to the Treaty.
(i i i) The express understandi ng and agreement by the
Contractor that this contract 1 s subject to
the condit ion that Hoover Dam and Lake Mead sha 11
be used: first. for river regulation. improvement
of navigation. and flood control; second, for
irrigation and domestic uses and satisfaction of
present perfected rights in pursuance of
Article VIII of the Colorado River Compact approved
by Section 13(a) of the Boulder Canyon Project Act;
and third. for power; and furthermore, that
this contract is made upon the express condition
and with the express covenant that all rights
hereunder shall be subject to and controlled by the
Colorado River Compact and that the United States
and the Contractor shall observe and be subject to
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and controlled by said Colorado River Compact and
Boulder Canyon Project Act in the construction.
management. and operation of Hoover Dam.
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La ke Mead, cana 1 s and other work.s, and the
storage, diversion, delivery, and use of water
to be delivered to Contractor hereunder.
(iv) The right of the United States temporarily to
di sconti nue or reduce the amount of water to be
delivered hereunder whenever such discontinuance or
reduction is made necessary for purposes of
investigations, inspections, replacements,
ma i ntenance, or repa i rs to any works whatsoever
affecting, utilized or, in the opinion of the
Secretary, necessary for del ivery of water
hereunder, it being understood that so far as
feasible the United States will (1) do so during
periods of low water demands and (2) give
reasonab 1 e notice in advance of such temporary
discontinuance or reduction.
(b) Del fvery of Colorado River water by the United States
under this contract shall be charged to the State of Arizona's apportionment
under the aforementioned Supreme Court Decree of March 9,1964, in
Arizona v. California and will discharge to that extent the ob1fgation of
the United States to deliver water under the aforementioned contract between
the United States and the State of Arizona, dated February 9, 1944.
8.4 Delfvery Points.
Colorado River water to be furnfshed
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to the Contractor pursuant to thi s contract wi 11 be del ivered by the
United States in the Colorado River at the point of diversion from
Lake Havasu where the intake structures of the Havasu Pumping Plant are
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constructed.
Agua Fria and Upper Gila River system waters will be
2 delivered to the Contractor at New Waddell and Buttes Dams, respectively.
3 Delivery points for other project water supplies and for return flows will
4 be determined by the Contracting Officer after consultation with the
5 Contractor and/or the affected subcontractor therefor.
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8.5 Measurement.
( a)
The quantity of Colorado River water pumped from
8 lake Havasu for the project shall be measured by means of measuring devices
9 to be i nsta 11 ed as part of the project works. If, for any reasonJ in the
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opinion of the Secretary, said measuring devices shall fail to operate
satisfactorily, the Secretary will, from the best information available,
estimate the amount of water delivered to the Contractor.
(b)
Del iveries of project water to the various
subcontractors shall be measured by means of measuring devices to be
installed as part of the project works at the points along the various
aqueducts at which such water may be diverted for each of said
subcontractors, and/or at the points in the various reservoirs formed by the
dams constructed as part of the project works at which such water may be
diverted for subcontractors and/or at the points where return flow may be
delivered. These points of measurement will be established by the Secretary
after consultation with Contractor and the affected subcontractor. If, for
any reason, in the opinion of the Secretary, said measuring devices shall
fail to operate satisfactorily, the Secretary will, from the best
information available and after consultation with the Contractor and the
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affected subcontractor, estimate the amount of water delivered to each such
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subcontractor. The Secretary shall at all times have access over any lands
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1 and ri ghts-of-way of a subcontractor for the purpose of inspecting and
2 checking said measuring devices.
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8.6 Responsibility for Distribution of Water after leaving
Water Supply System.
Whether or not the United States operates and
maintains the project facilities, the United States shall not be responsible
for the control, carriage, handling, use, disposal, or distribution of water
after said water has been diverted from the water supply system. At such
time as the Operating Agency assumes responsibility for the OM&R of project
works, the responsibil ity for diversion, carriage, and transportation of
the water through the water supply system shall be the sole responsibility
of the Operating Agency. Responsibility for distribution of water beyond
the water supply system shall be that of the subcontractors to whom said
water is del ivered from the water supply system. The United States, its
officers, agents, and employees, shall not be liable for damage or claim of
damage of any nature whatsoever for which there is legal responsibility
arising out of or connected with the control, carriage, handling, use,
disposal, or distribution of such water, and each subcontractor shall hold
the United States, its officers, agents, and employees, harmless from any
and all such claims.
8.7 Quantity of Water to be Delivered.
(a) The Secretary reserves the right to determine that
quantity of Colorado River water to be released each year from lake Mead for
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use by the Central Arizona Project pursuant to applicable law, which shall
include the Quantity of water which may be allocated by the Secretary for
use on Indian lands.
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!b) The quantity of Colorado River water avai lable under
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2 available to Arizona under the aforementioned Supreme Court Decree in
3 Arizona v. California and in Arizona's water delivery contract with the
4 United States after first providing for satisfaction of:
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(i) present perfected rights and perfected rights
described in Article U(D) of the Decree and the
ri ghts of other Federal reservations establ i shed
prior to September 30, 1968; Provided, however,
That the quantities of Colorado River water
reserved to satisfy the aforesaid rights shall not,
except as provi ded in sa i d Decree, be reduced
under any ci rcumstances or for any reason what-
soever including, without limitation, a temporary
use permitted by the Secretary by other water users
in Arizona, California, or Nevada, of water
reserved pursuant to the foregoing but not
needed during any calendar year; And provided
further, That no rights to the recurrent use of
such water shall accrue by reason of said temporary
use; and
(ii) the quantities of water provided for in all
water del ivery CMtracts between the United States
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and water users in Arizona as of September 30,
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1968.
(c) The quantity of Colorado River water available under
this contract for project purposes, including water for use on Indian lands
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1 shall have the same priority as to delivery as the quantities of
2 Colorado River water delivered pursuant to water delivery contracts,
3 "Federal reservations of water, and other arrangements between the
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United States and water users in Arizona entered into subsequent to
September 30, 1968, for use of Colorado River water on Federal, State or
privately owned lands in Arizona in total quantities not to exceed
164,652 acre-feet of diversions per year; Provided, however, That the
Contractor shall hold the United States, its officers, agents, employees,
and successors or assigns, harmless as to any and all claims for damages to
persons or to property direct or indirect and of whatever nature, arising
out of or whi ch may in any manner be connected with the operation and/or
eff~ct of this Subarticle.
(d) The limitation on contracting in Subarticle a.7(c) above
shall not apply to contracts with holders of present perfected rights to
Colorado River water in Arizona or to the Secretary's order of
November 24, 1982, reserving Colorado River water for the Cibola National
Wildlife Refuge. Nothing in Subarticle a.7(c) shall restrict the right of
the Secretary under water service contracts referred to in said Subarticle
to terminate and/or reduce any entity's entitlement to Colorado River water
and to make that entitlement available to other water users in Arizona.
(e) During any year when the subcontractors cannot use any
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portion of their entitlement to project water, and such water cannot be
resold or exchanged in accordance with the terms and conditions of the water
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service subcontracts, the Contractor shall have the right in its discretion
to resell any or all of such water or to use any or all of such water for
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ground water recharge purposes, including the subsequent recovery and resale
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2 Reclamation Reform Act of 1982, State of Arizona law, and such rules and
3 regulations as the Secretary may deem appropriate. Subject to the terms and
4 conditions of water service subcontracts, the water orders of all
5 subcontractors shall be met before any project water is made available to
6 the Contractor under this provision.
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8.8 Subcontracts.
(a) The United States shall be a party to subcontracts.
(b) The Secretary and the Contractor shall require in each
subcontract that:
(i) unless and until otherwise provided by Congress,
water from the Centra 1 Ari zona Project shall not
be made available directly or indirectly for the
irrigation of lands not having a recent irrigation
history, as determined by the Secretary, except in
the case of Indian lands, national wildlife
refuges, and, with the approval of the Secretary,
State-administered wildlife management areas;
(11) there be in effect measures, adequate .1n the
judgment of the Secretary and the Contractor,
to control expansion of irrigation. from aquifers
affected by irrigation in the Contractor's service
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area and to reduce pumping of ground water in the
agri cultura 1 subcontractors' servi ce areas by the
amount of project water received by said
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(i11) the canals and distribution systems through which
water is conveyed after 1 ts deli very to the sub-
contractors shall be provided and maintained with
linings adequate in the Secretary1s judgment to
prevent excessive conveyance losses;
(iv) ne i ther the Secretary, the Contractor nor any
subcontractor shall pump or permit others to pump
ground water from within the exterior boundaries of
the serv i ce area of a subcontractor recei vi ng
water from the Central Arizona Project for any use
outside of said subcontractor's service area
unless the Secretary, the Contractor, and such
subcontractor shall agree, or shall have previously
agreed, that a surplus of ground water exists and
that drainage is or was required;
(v) except as otherwise agreed by the Contracting
Officer, neither the Contractor nor any
subcontractor shall sell or otherwise dispose of or
permit the sale or other disposition of any project
water, including return flows, for use outside the
Contractor's service area;
(vi) irrigation water made available thereunder may
be made available by the Secretary for M&I purposes
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if and to the extent that such water is no longer
required by the subcontractor for irrigation
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purposes and shall be made available in all cases
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where lands receiving project water have been
converted to municipal and industrial use;
Provi ded, however, That subcontracts effectuat i n9
such transfers are subject to the approval of the
Secretary and the Contractor, which approval shall
not be wtthheld unreasonably; And provided further,
That it shall be deemed unreasonable for the
Secretary or the Contractor to withhold such
approval on the basis that the right to convert
from irrigatt"on to M&I use for a specific
development could better be exercised in some other'
subcontractor' s ~rvi ce area.
The water so
converted from irrigation to M&I purposes will be
delivered with the same priority and at the same
rate per acre-foot as other M&I water. likewise,
subcontracts for furnishing water for M&I
purposes, including, but not limited to, ground
water recharge to the extent ground water recharge
is consistent with Arizona law, shall provide that,
if water to be delivered thereunder is not
presently required for such purposes, such water
may be made available by. the Secretary to other
users; Provided, further, That the subcontractor
shall be relieved of its payment obligation under
its subcontract only to the extent of the amount
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paid by such other users;
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(vii) the acreage limitation provisions of Reclamation
laws shall apply solely to agricultural water
serv ice;
(viii) except as specifically provided therein, it shall
be the provisions of this contract which shall be
controll ing in the event of any inconsistency
between this contract and any subcontract;
(ix) the subcontractor sha 11 1 evy all necessary assess-
ments, tolls, and other charges and shall use all
of the authority and resources ava i1 ab 1 e to the
subcontractor to collect the same in order that the
subcontractor may meet its obligations thereunder
to make in full all payments required under said
subcontract on or before the date such payments
become due and to meet other obligations under the
subcontracts;
(x) the subcontractor establish, maintain, and provide
the United States and the Contractor with land,
water use, and crop census records.
8.9 Shortaqe s.
As provided in Section 301(b) of the Basin
Project Act, Article II(B)(3) of the Decree of the Supreme Court of the
United States in Arizona v. California, 376 U.S. 340, dated March 9, 1964,
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shall be so administered that in any year in which, as determined by the
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Secretary, there is i nsuffi ci ent ma i nstream Colorado River water avail abl e
for release to satisfy the annual consumptive use of 7,500,000 acre-feet in
Arizona, Cal Hornia, and Nevada, diversions from the mainstream of the
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1 Colorado River for the Central Arizona Project and for other uses in Arizona
2 under contracts or other agreements wi th the United States executed
3 subsequent to September 30. 1968. shall be so limited as to assure
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the availability of water in quantities sufficient to provide for
the aggregate annual consumptive use by holders of present perfect.ed
rights, by other users in the State of California served under contracts
existing as of September 30, 1968, with the United States by diversion works
heretofore constructed, and by other Federal reservations in Cal Hornia of
4,400,000 acre-feet of Colorado River water, and by users of the same
character in Ari zona and Nevada. Water users' in the State of Nevada shall
not be required to bear shortages in any proportion greater than would have
been imposed in the absence of said Section 301(b). nor shall said Section
affect the relative priorities, among themselves, of water users in Arizona,
California, and Nevada which are senior to diversions for the Central
Arizona Project, or amend any provisions of said Decree. The aforesaid
limitation stated in Section 301(b) shall not apply so long as the
Secretary shall determine and proclaim that means are available and
in operation which augment the water supply of the Colorado River system in
such quantity as to make sufficient Colorado River mainstream
water available tor release to satisfy annual consumptive use of
7,500,000 acre-feet in Arizona, California, and Nevada.
8.10 Rate of Diversions of Colorado River Water.
Subject to
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(a) the first proviso in Section 301(a) of the Basin Project Act, (b) the
provisions of Subartic1e lO.6(b) hereof, and (c) the provisions of
Subarticle 8.l(a) hereof, any capacity in the Granite Reef Aqueduct in
excess of 2,500 cubic feet per second may be utilized in the operations of
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1 the project so as to maximize project benefits; Provided, however, That the
2 use of such capacity shall not result in the annual diversion of a quantity
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of water in excess of the project's legal entitlement under the Basin
4 Project Act.
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8.11 Priority in Case of Shortaqe.
(a) Subject to the provisions of Section 304(e) of the Basin
Project Act and the Secretary's allocation decisions published in the
Federal Reqister on December 10, 1980, and March 24, 1983, any project water
as defined in Subarticle 5.27(a) hereof, furnished t.hrough project
facilities shall, in the event of shortages thereof, be reduced pro rata
until exhausted, first for miscellaneous uses and next for agricultural
uses, before such project water furnished for M&I uses is reduced.
Thereafter, such project water for M&I uses will be reduced pro rata among
all M&I water users. Each subcontract or other water delivery arrangement
entered into pursuant to this contract shall so provide. This article shall
not apply to Indian uses; Provided, however, That the relative priorities
. between Indian and non-Indian uses shall be as determined by the Secretary.
Notwithstanding the provisions of this Subarticle, project water made
available as a result of construction and operation of modifications to
Roosevelt Dam as part of Plan 6 shall be distributed as provided in the
Plan 6 Funding Agreement, and shall not be subject to reduction in the event
of shortages of other project water supplies.
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(b) Any project water, as defined in Subarticles 5.27(b),
(c) and (d) hereof, shall retain its priority relative to project water as
defined in Subarticle 5.27(a) hereof.
8.12 No Guarantee of Availability of Water. The United States
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for delivery pursuant to this contract.
Inn 0 event sha 11 the
3 United States, its officers, agents, or employees, be liable for any
damages, direct or indirect, of whatsoever nature, arising out of or in any
way connected with any suspension or reduction in the del ivery of water
pursuant to this contract or with any shortage in the quantity of water
available for delivery hereunder or to any subcontractor for any cause
whatsoever including, but not limited to, drought, delay in the construction
of the Navajo Project, the failure of the Navajo Project to be completed, or
the lack of power for pumping.
8.13 Secretarial Control of Return Flow.
(a) The Secretary reserves the right to capture all return
flow flowing from the exteri6r"boundaries of the Contractor as a source of
supply and for distribution to and use of the Central Arizona Project to the
fullest extent practicable.
The Secretary a 1 so reserves the ri ght to
capture for project use return flows within the boundaries of Contractor if
in his judgment such return flow is not being put to a beneficial use. Any
subcontractor may sell its return flow; Provided, however, That except as
otherwi se agreed by the Contracting Off1 cer, such return flow may. not be
sold for use outside the Contractor's exterior boundaries; And provided
further, That if the price received for such return flow is higher than the
price paid for such project water, the amount of the excess price shall be
paid by such subcontractor to the Contractor for application against the
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Contractor's repayment obligation to the United States.
(b) Any return flow captured by the United States and
determined by the Secretary to be suitable and available for use on lands
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within the service area and/or by any subcontractor therein may be delivered
by the United States to a subcontractor as a part of the water supply for
wh1 ch the subcontractor contracts hereunder and such water shall be
accounted and paid for pursuant to the provisions hereof.
8.14 Water and Air Pollution Control.
The Contractor, in
carrying out this contract, shall comply with all applicable water and air
pollution laws and regulations of the United States and the State of
Arizona, and shall obtain all required permits or licenses from the
appropriate Federal, State, or local authorities.
8.15 Quality of Water.
The operation and maintenance of
project facilities shall be performed in such manner as is practicable to
maintain the quality of project water made available through such
facilities at the highest level reasonably attainable as determined by the
Contracting Officer or the Operating Agency. Neither the United States nor
the Operating Agency warrants the quality of water and are under no
obligation to construct or furnish water treatment facilities to maintain
or better the quality of water.
8.16 ExchanQe Water.
Where the Secretary determines that a
subcontractor is physically able to receive Colorado River mainstream water
in exchange for or in replacement of existing supplies of surface water from
sources other than the Colorado River to provide water supplies for users
upstream from New Waddell, Modified Roosevelt and Buttes Dams, the
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Secretary may require that said subcontractor agree to accept said
mainstream water in exchange for or in replacement of said existing supplies
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pursuant to the provisions of Section 304(d) of the Basin Project Act.
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8.17 Rights Reserved to the United States to Have Water Carried
by Project Facilities.
As a condition to the construction of project
3 facilities and the delivery of water hereunder, the Contractor agrees that
4 all project facilities will be available for the diversion, transportation,
5 and carriage of water for Indi an and non-Indian uses pursuant to
6 arrangements or contracts therefor entered into on their behal f with the
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Secretary.
In the event the responsibi 1 ity for the OM&R of project
8 facilities is transferred to and assumed by the Operating Agency, such
9 transfer shall be subject to the condition that the Operatfng'l,gency shall
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divert, transport, and carry such water for such uses pursuant to the
provi sions of the aforesaid arrangements or contracts; Provided, however,
That the aforesaid arrangements or contracts will include provisions for the
payment of applicable construction costs and OM&R costs in accordance with
Articles 9.3 and 9.6 of this contract.
8.18
Wheel i nq Non-Project Water.
After taking into
consideration the water delivery requirements of contracts for project water
servi ce and subj ect to a va il abil i ty of proj ect capacity, non-proj ect water
may be wheeled through proj ect facil it i es pursuant to wheel i ng agreements
between the Contractor and the entity desiring to use project facilities for
wheeling purposes. All such agreements shall be subject to the approval of
the Contracting Officer who shall consider, among other things, the impact
that the wheel ing of such non-project water will have on the quality of
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project water.
The Contractor and the Contracting Offi cer sha 11 jot nt ly
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develop a standard form of wheeling agreement including the rate structure
for wheeling non-project water. All wheeling charges shall be paid to the
Contractor by the entity contracting for the wheeling of non-project water.
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1 The Contractor shall be entitled to retain revenues from wheeling charges
2 sufficient to cover all OM&R costs associated with wheeling such non-project
3 water, plus an administrative charge to be jointly determined by the
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Contractor and the Contracting Officer. All revenues from wheeling charges
in excess of the OM&R costs and administrative charges shall be remitted by
th.e Contractor to the Contracting Officer and deposited into the
Development Fund.
8.19 Use of Project Power to Wheel Non-Project Water. If the
energy requirements necessary for the pumping of project water are met and
subject to the requirements of the Navajo Power Marketing Plan published in
the Federal ReQi ster on December 21, 1987, project power may be used to
wheel non-project water through project facilities under such conditions of
use, including amounts, times of use, losses, costs, and other conditions as
are established by the Contractor and approved by the Contracting Officer.
9.
PAYMENT OF PROJECT COSTS ALLOCATED TO CONTRACTOR
9.1 Allocation of Construction Costs.
(a)
Upon completion of each construction stage, the
Contract i ng Officer will allocate costs to the various project purposes
using the separable costs-remaining benefits procedure.
(b) For repayment purposes the reimbursable cost allocated
to irrigation and M&I water by the separable costs-remaining benefits
procedure will be combined and will hereinafter be termed the "water supply
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allocation.1I
Upon completion of each construction stage, and at the
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periodic intervals specified in Subarticle 9.3(d), suballocation of the
water supply allocation will be made to the irrigation and M&I water
functions proportional to the water estimated to be used for each purpose
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during the repayment period of each construction stage.
The cost thus
2 suballocated to the irrigation function will hereinafter be termed the
3 "interest-free allocation." The cost thus suballocated to the M&r water
4 funct ion sha 11 be added to the cost allocated to the commerci a 1 power
5 function. plus interest during construction for both. and the sum will
6 hereinafter be termed the "interest-bearing allocation."
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( c)
During construction. simple interest at the rate of
8 3.342 percent per annum shall be charged on costs allocated to the interest-
9 bearing function as adjusted by the Secretary (1.e.. net disbursements
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nonrei mbursab 1 e expen ses fi nanced from construct ion funds).
The tota 1
amount of a 11 interest thus accumul ated through the construction peri od
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prior to the date of completion of each construction stage shall be added to
and become part of the actual construction cost of each construction stage.
r ntere st duri ng con struct i on sha 11 not accrue duri ng any period in
which construction is defer~ed or postponed by the United States as a result
of a national emergency. as determined by the ""Secretary, if authority to
forego such interest exists or is made available to the Secretary.
9.2 Repayment Concepts.
(a) Costs suballocated to non-Indiafl irrigation water wi 11
be pa i d by the subcontractors to the Contractor on the basi s of thei r
ability to pay as determined by the Secretary.
(b)
Costs allocated to commercial power and costs
suballocated to M&I water use shall be combined and repaid with interest at
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a rate of 3.342 percent per annum on the unpaid balance.
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(c)
Reimbursab1e COSts allocated to recreation and fish
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1 and wildlife are anticipated to be covered by a separate contract and repaid
2 by the beneficiaries thereof.
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(d) Repayment of costs allocated to irrigation of Indian
4 lands shall be governed by the provisions of Section 402 of the
5 Basin Project Act.
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(e)
Repayment of the project wi 11 occur by construction
7 stages, with each stage having a separate 50-year repayment schedule. Upon
8 completion of each cost allocation study referred to in
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Subarticle 9.1(a), subsequent to the initial study associated with the
first construction stage, the Contractor's repayment obligation and the
obligation allocated to each construction stage will be adjusted based on
the latest cost allocation study, and the Contractor will be provided with a
revised repayment schedule for the project and each construction stage. The
Contracting Officer will adjust previous principal and interest payments
made by the Contractor to refl ect the new repayment schedul e.
For each
year where an adjustment in payments is necessary, there will be an over or
underpayment which will accrue with interest at the rate of 3.342 percent
per annum (compounded annually) to the adjustment date. If the adjustment
indicates that the Contractor overpaid principal and interest, the
Contractor shall be entitled to a credit against its next payments to the
United States. Conversely, if the Contractor owes additional principal and
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interest to the United States, such amount shall be paid to the United
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States by the Contractor within 12 months of receipt of a statement therefor
from the Contracting Officer. The Contractor may use the repayment reserve
fund under Subarticle lO.3(b) hereof for any payment to the United States
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9.3 Contractor's Construction Cost Repayment Obliqation.
(a) The Contractor's repayment obligation shall consist of
the total cost allocated to the water supply and power functions plus OM&R
during construction and interest during construction on costs allocated to
the M&I water and power functions, but shall not include costs allocated to
fish and wildlife and recreation, and costs associated with the delivery of
wa ter to ent it 1 es other than the Contractor or subcontractors.
Such
entities shall include but not be limited to Indian tribes and councils in
central Arizona receiving project water and the New Mexico recipients of
water service from Hooker Dam or suitable alternative.
The costs to be
excluded shall be calculated as follows:
(1) Costs excl uded from the Contractorl s repayment
obligation for New Mexico water service shall be
determined by multiplying the project costs
allocated to the water supply function by the ratio
developed by dividing the quantity of project water
proj ected to be de 1 i vered th roughout the overa 11
repayment period to water users in Arizona
in exchange for water del ivered to users
in New Mexico from or by means of project
worKs, by the total quantity of Colorado River
water projected to be delivered by the project
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throughout the overall repayment period.
(ii) The amount of other project costs which shall
be excluded from the Contractor's repayment
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obl igation shall be determined by multiplying the
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project costs allocated to the water supply
function by a ratio developed by dividing the
quantity of project water projected to be delivered
throughout the overall repayment period to entities
other than the Contractor, the subcontractors, and
those users in New Mexi co to whom water has been
made available through the construction of
Hooker Dam or suitable alternative by the
total quantity of project water projected to be
delivered throughout the overall repayment period;
Provided, That project water projected to be
delivered to such users will be computed based on
an assumption of full development not later than
the year 2005.
(b) The costs determined under Subarticles 9.3(a)(i) and
(ii) above shall be subtracted from the water supply costs obtained from the
separable costs-remaining benefits procedure to determine the Contractor's
water supply costs.
The Contracting Officer shall suballocate the
Contractor's water supply costs to each of the construction stages based on
the ratios obtained by dividing the allocable cost of the construction stage
by the allocable cost of the project (see Operation 1, Exhibit nAil). The
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water supply costs assigned to each construction stage are then further
suballocated between irrigation and M&I water use in proportion to projected
total water deliveries to each function over the 50-year repayment period of
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each construction stage (Operation 2, Exhibit nAil). The summarization of
the suballocations to each construction stage determines the total water
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1 supply cost to be assigned to irrigation and M&I water use (Operation 3,
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Exhibit flAil).
To determine the Contractor's repayment obligation, the
3 Contractor's water supply suballocation to irrigation and M&I water uses,
4 a-nd the power allocation from the separable costs-remaining benefits
5 procedure, sha 11 each be adjusted for any revenues received by the
United States prior to the notice(s) of completion and for any contributions
received by the United States under the Plan 6 Funding Agreement for the
features constructed in that stage, and for the 500 cubic feet per second of
incremental capacity in the Granite Reef Aqueduct and pumping plants (see
Article 9.7) to determine the net amount of each function assigned to the
Contractor (Operation 4, Exhibit "A").
The Con tractor's repayment
obligation shall be the summation of the net amount for each function.
(c) Once the Contractor's estimated or final repayment
obligation has been determined by the Contracting Officer, the obligation
shall be allocated to each construction stage based on the ratio obtained by
dividing the allocable cost of each construction stage by the allocable cost
of the project. Each construction stage will have a separate 50-year
repayment period. The repayment obligation for each stage will be divided
into i nterest-beari ng and interest-free components.
The interest-free
component shall be the amount allocable to irrigation purposes for the
stage.
The interest-bearing component will be the amount obtained by
subtracting the irrigation allocation for the stage from the obligation for
the stage. The principal payments for each stage shall be determined by
applying the percentages in Subarticle 9.3(f) to the repayment obligation
for each stage. The total payment for each stage for any year shall be
equal to the principal payment plus interest at the rate of 3.342 percent
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1 per annum on the unpaid interest-bearing component of the repayment
2 obligation for each stage. For the water supply system, the portion of each
3 principal payment which is made by the Contractor from irrigation revenues
4 received by the Contractor each year wi 11 be used by the United States to
5 reduce the interest-free obligation. The remaining portion of the principal
payments made by the Contractor each year for the water supply system will
be used by the United States to reduce the interest-bearing obligation, and
once the interest-bearing obligation has been retired, the entire principal
payment made by the Contractor will be applied by the United States toward
the interest-free obligation. For the other construction stages, the entire
principal payment made by the Contractor each year for such stages will be
appl ied by the United States to reduce the interest-bearing obligation
first, and once such obligation has been retired. to reduce the interest-
free obligation.
(d) At 7-year intervals following the determination of the
Contractor's repayment obligation for the water supply system, or at more
frequent intervals if it becomes apparent to the Contracting Officer that a
significant change in water use has or will occur. until such time as the
interest-bearing obligation for each construction stage has been rep~id. the
Contracting Officer wi 11 re-estimate the proportions of total water
deliveries to irrigation and M&I water use over the 50-year repayment period
for each stage. At such intervals, the Contracting Officer will adjust the
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original interest-bearing and interest-free allocation for each stage based
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on the new estimates and recalculate all preceding interest payments.
Differences between amounts owed and amounts paid by the Contractor shall be
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adjusted by the Contracting Officer, who shall apply a credit against the
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1 Contractor's next payment due or notify the Contractor of the additional
2 amount due, as the case may be. All such adjustments shall include interest
3
at the rate of 3.342 percent per annum (compounded annually).
Any
4 additional payments required from the Contractor shall be made within
5 12 months of the Contractor's receipt of a statement from the Contracting
6 Offi cer therefor. The Contractor may use the repayment reserve fund under
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Subarticle 10.3(b) hereof for any payment to the United States required as a
result of the above adjustment.
(e) The Contracting Officer will notify the Contractor of
(i) its estimated repayment obligation when construction of the first
construction stage is substantially complete and upon completion of each
subsequent construction stage, and (ii) the actual repayment obligation when
the fin a 1 con st ruc'\:. ion stage ha s been comp 1 eted, as determi ned by the
Contracting Officer. In the event that the project ultimately consists only
of the water supply system, New Waddell Dam, and Modified Roosevelt Dam, the
Contractor's actual repayment obligation shall be limited to $2.0 billion.
If prior to completion of construction of such features the Contracting
Officer determines that too Contractor's repayment obligation for such
features will exceed $2.0 billion, the Contracting Officer shall ,consult
with the Contractor and continuation of construction will be contingent upon
the execution of an amendatory contract to cover the increased repayment
obligation. If constructfon of any other construction stage will result in
an increase in the Contractor's repayment obligation by an amount equal to
or less than the respective amount identified in Exhibit IlB,lI which is
attached hereto and made part of this contract, the Contractor's repayment
ceiling may, after consultation with the Contractor, be increased by the
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1 Contracting Officer by an amount equal to or less than the respective amount
2 identified in Exhibit "B" by written notice thereof from the Contracting
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Officer to the Contractor.
If construction of such other construction
stage will result in an increase in the Contractor's repayment obligation
by an amount greater than the respective amount identified in Exhibit "Bt"
the Contracting Officer shall consult with the Contractor and the
Contractor and the Contracting Officer shall agree upon one of the
following courses of action prior to initiation of construction of such
construction stage: (1) that additional repayment ceiling be made available
from other construction stagest in which event the Contractor's repayment
ceil i ng. will be i ncrea sed to the agreed-to amount by wri tten notice from
the Contracting Offi cer to the Contractor; or (2) that thi s contract be
renegotiated to increase the Contractor's repayment ceiling; Providedt That
these courses of action shall also apply in the event thatt prior to
completion of construction df such staget the Contracting Officer determines
that the construction of such stage will result in an increase in the
Contractor's repayment obligation by an amount greater than the respective
amount identified in Exhibit "B."
(f) Annual percentages of the repayment obligation for each
con struct i on stage sha 11 be those set out in the fo 11 owi ng schedul e or" an;v
revision thereof mutually agreed upon:
Repayment Year
1-7
8-14
15-21
22-28
29-35
36-42
43-49
50
Percent of Repayment
Ob1iqation (Annual)
1.0
1.3
1.6
2.0
2.6
2.7
2.7
2.7
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(g) In the event that the Secretary contracts for del ivery
2 of non-project water under the provisions of Article 10.1, capital charges
3 associated with such delivery shall be calculated, charged, and utilized in
4 the same manner as capital charges deposited in the Development Fund
5 pursuant to Article 8.18.
6
9.4 Payment of Contractor's Construction Cost Repayment
7 Obliqation.
(a)
The Contractor shall make annua 1 payments to the
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United States, to be credited to the Development Fund, which shall be
sufficient, when combined with accruals from the other sources described in
Sectio" 403(f) of the Basin Project Act, the Hoover Power Plant Act of 1984,
and other miscellaneous revenues, including but not limited to net wheeling
charges, to effect repayment of the repayment obl igation for each
construction stage within a period of not more than SO years beginning with
the year following substantial completion of each construction stage. The
Contractor's first payment shall be due on or before January 15 of the year
following the year in which the Secretary announces the substantial
compl eti on of each constructi on stage. Annual payments thereafter shall
be due on or before January 15 of each following year.
(b) The Contractor agrees to make annual payments
calculated by the Secretary as follows:
(i) Calculate the annual principal payments required by
the -schedule in Subarticle 9.3(f) or any revision
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thereof for each construction stage.
(ii) Add to (1) the annual interest, at 3.342 percent,
on the unpaid balance of the interest-bearing
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allocation for each construction stage.
(iii) Determine the total amount of all interest and
principal payments due for all construction
stages.
(iv) Subtract therefrom the revenues estimated to be
available from the Development Fund anticipating
a zero balance at the end of each year in the
Development Fund.
(v) Make adjustments for differences between estimated
and actual revenues for the preceding year.
(c) On or before each December 15, beginning with
December 15 of the year in which the Secretary notifies the Contractor of
the substantial completion of the first construction stage, the Secretary
will notify the Contractor of the amount of the annual payment due on the
following January 15, which has been determined by the Secretary on the
basis of the aforesaid calculation.
(d) The Contractor may make addit i ona 1 payments on the
repayment obligation at any time subject to such terms and conditions as may
be agreed upon by the Contractor and the Contracting Officer; Provided,
however, That all interest due is paid at the same time, whereupon
appropriate adjustments in the schedule of future payments will be made by
the Secretary, who shall as promptly as possible give the Contractor
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written notice of the adjusted repayment schedule.
(e) It is understood and agreed that the Contractor shall
be obligated for the payments set forth in Subarticle 9.4(a) hereof and
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that regardless of the delinquency or default in payment of any charges
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1 due to the Contractor from any subcontractor, or a diminution in the water
2 supply-available to the Contractor, or regardless of any other reason, the
3 Contractor shall comp 1 ete repayment of each construction stage wi thi n a
4 50-year period beginning in the year following the announcement by the
5 Secretary of substantial completion of such construction stage.
9.5 Commercial Power Rates. The Secretary will, consistent
7 with applicable law, periodically review and provide for appropriate
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adjustments in the rates established for the sales of power and energy,
revenues from which contribute to the Development Fund.
9.6 Other Costs Borne by the tontractor.
(a) In addition to the payments provided for in Article 9.4
hereof, and subject to the provisions of Subarticle 9.6(d) hereof, during
such periods as the United States operates and maintains completed
con struct i on stage s, the Contractor sha 11 make advance payments for
OM&R costs incurred by the United States. The United States will furnish
the Contractor with an estimate in writing at least 6 months
prior to substantial completion of construction of the water supply system,
of the OM&R cost due from the Contractor to the end of the then current
year, together with an estimate of such cost for the calendar year
immediately following.
Within a reasonable time of the receipt of said
estimates, as determined by the Contracting Officer, the Contractor shall
advance to the United States the payments for the estimated OM&R cost to the
!
end of the then current year and without further notice or demand shall on
December 15 of the then current yea r and on June 15 of the fo 11 owi ng year
advance to the United States in equal semiannual installments the
Contractorls share of the estimated cost, including supervision and
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1 admini strative expense for the OM&R of the water supply system. Advance
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payments sha 11 be made in subsequent years by the Contractor to the
United States on the basis of estimates to be furnished by the United States
on or before November 15 preceding said subsequent year and the advances of
said payments shall be due and payable in equal semiannual payments on the
6 following December 15 and June 15. Said OM&R costs are the total annual
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OM&R costs of completed construction stages which are allocated to the
irrigation and M&I water supply functions less (1) the costs described in
Subarticle 9.6(c) hereof, and (ii) an amount determined by multiplying the
total of said annual costs by the ratio obtained by dividing the estimated
amount of project water projected to be delivered in the subsequent year to
entities other than the Contractor, the subcontractors, and those entities
in New Mexico to which project water will be made available from Hooker Dam
or suitable alternative, by the total amount of project water estimated to
be delivered for use in that year.
(b) Differences between actual OM&R costs and the estimated
costs shall be determined by the Contracting Officer and shall be adjusted
in next succeeding estimates; Provided, however, That if ir. the opinion of
the Contracting Officer the amounts advanced by the Contractor for any year
are likely to be insufficient to pay the above-mentioned OM&R costs during
such year, additional and sufficient sums of money shall be paid forthwith
by the Contractor to the United States upon notice thereof and demand
therefor by the Contracting Officer; Provided, further, That the
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United States will give Contractor reasonable notice in advance of any such
defi ci ency.
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(c) The Contractor's obl igation to pay said OM&R costs
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1 of completed construction stages will be reduced to the extent that project
2 water is made available for use in New Mexico following completion of
3
Hook.er Dam or suitable alternative.
Sa i d reduct i on will be in the
4 proportion which the quantity of project water projected to be delivered to
5 water users in Arizona, in exchange for Gila River system waters delivered
6 to water users in New Mexico from or by means of project work.s, bears to the
7 total quantity of Colorado River water projected to be delivered to the
8 project that year.
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(d) In the event that responsibil ity for OM&R of project
facilities is transferred to and assumed by the Contractor, the Contractor
shall be relieved of the obligation to make OM&R payments associated with
such facilities under Subartic1e 9.6(a) of this contract. In that event,
the United States shall payor provide for payment of OM&R costs associated
with del "Ivery of water to entities other than the Contractor and the
subcontractors.
Such costs sha 11 be computed in accordance wi th
Subarticle 9.6(a) of this contract.
If the Contractor does not receive
payment in advance for such costs, the Contractor shall have no obligation
to deliver such water.
(e) Duri ng the Hoover Dam cost-repayment period, the
Contractor sha 11 pay to the Un i ted States the sum of $0.25 for each acre-
foot of water pumped from lake Havasu for miscellaneous and M&I water
purposes as determined by the Contracting Officer. The quantity of water
pumped for such purposes wi 11 be determi ned by the Contracting Officer at
the end of each calendar year and the Contractor notified of the amount due
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by March 1 of each subsequent year. Payment shall be due on May 1 following
notification. Said payment shall be credited to the Colorado River Dam Fund
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1 established by Section 2 of the Boulder Canyon Project Act.
2
Repayment of Costs of Excess Capacity in Granite Reef
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3 Aqueduct. The costs of providing any capacity in the Granite Reef Aqueduc~
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and pumping plants in excess of 2,500 cubic feet per second shall be repaid
by Contractor from funds available to Arizona pursuant to the provisions of
Section 403(f) of the Basin Project Act, or by funds from sources other than
the Development Fund.
9.8 Ad Valorem Taxes. Assessments. Toll s. and Other CharQes.
Within the legal limits available to it, the Contractor shall levy
ad valorem taxes upon the taxable property within the service area of the
Contractor at rates determined necessary by the Contractor to raise funds
which, together with the revenues from the sale of water and such financial
assistance from the Development Fund as the Secretary determines is
available therefor, are sufficient to meet the obligations of the Contractor
to make in full all payments to the United States on or before the date such
payments become due and to meet its other obligations under this contract.
9.9 Continuation of Payments After Project Payout.
Fo 11 owi ng
payment to the United States of the Contractor's final payment for the last
construction stage, the Contractor shall continue" to make annual payments to
the United States to be credited to the Development Fund in amounts ~qual to
the average annual principal payment for the project during the overall
repayment period.
In the event that no augmentation project, as
i
contemplated in the Basin Project Act, has been authorized or is under
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active consideration by the Congress at the time project construction costs
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have been repaid in full, payments under this formula will be not required;
Provided, however, That payments wi 11 commence after repayment of the
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project costs pursuant to the formula, or any adjustment thereof agreed to
by the parties, at such time as an augmentation project is authorized by
Congress and the costs thereof allocated to the Contractor are determined by
the Secretary.
9.10 Defaults.
(a) The Contractor shall pay a penalty on payments,
installments or charges which become delinquent, computed at the rate of
1 percent per month on the amount of such delinquent payments, installments,
or charges from and after the date when the same become due until paid.
(b) No water shall be furnished to the Contractor during
any period in which the Contractor may be in arrears more than 12 months in
the payments to the United States required by Article 9.4 hereof.
(c) All rights of action for breach of this contract are
reserved to the United States as provided by Federal law.
10. GENERAL PROVISIONS
10.1 Other Contracts.
The Secretary reserves the right to
contract-Q..f.rectly with other water using entities concerning water supply
through project facil ities.
In the event this occurs, the provi sions of
Article 8.17 hereof shall be applicable.
10.2 Title to Project Works. Title to all water supply system
works and all project facilities constructed pursuant to the Basin Project
Act and this contract shall be and remain in the United States until
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otherwise provided by Congress.
10.3 Reserve Funds.
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(a) (i) Commencing with notice of transfer of OM&R for the
Gran ite Reef Aqueduct, i ncl udi ng the Havasu Pumpi ng Pl ant, the Contractor
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sha 11 accumul ate and ma i nta in an emergency OM&R reserve fund, which the
Contractor shall k.eep available to meet costs incurred during periods of
interruption of water service.
(i i) The Contractor shall accumul ate the reserve fund
with annual deposits, including interest and dividends accruing to fund
balances or holdings, of not less than $400,000 in any year in which the
fund balance is less than $4.000,000.
The fund sha 11 be invested in a
Federally insured interest- or dividend-bearing account. or in securities
guaranteed by the Federal Government; Provided. That money in the reserve
fund shall be available within a reasonable time to meet expenses for such
purposes as those identified in Subarticle 10.3(a)(iv) hereof. Such annual
deposits and the accumulation of interest and dividends to the reserve fund
shall continue until $4,000,000 is accumulated.
Interest and dividends
accruing to fu~ balances shall be added to the fund in any year when the
fund balance is greater than $4,000,000; Provided, That in no event shall
the fund be increased to an amount greater than the actual amount of fixed
OM&R costs for the preceding year as mutually determined by the Contractor
and the Contracting Offi cer. Any balance in the fund in excess of the
amount of fixed OM&R costs for the previous year shall be considered to be
the general funds of the Contractor and available for use as such.
(i i i) Upon mutual agreement between the Contractor and
the Contracting Officer, the amount to be accumulated and maintained in the
reserve fund provided for in this Subarticle may be adjusted in
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consideration of the risk and uncertainty stemming from the size and
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complexity of the project, the size of the annual' OM&R budget, additions
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to, deletions from, or changes in project work.s, or OM&R costs not
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1 contemplated when this contract was executed.
2
(i v) The Contractor may make expendi tures from such
3 reserve fund only for meeting unforeseen and extraordinary operation and
4 maintenance costs, unusual or extraordinary repair or replacement costs, and
5 betterment costs (in situations where recurrence of severe operation and
6 maintenance problems can be avoided or eliminated). Proposed expenditures
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from the fund shall be !ubmitted to the Contracting Officer in writing for
review and written approval prior to disbursement.
(v) During any period in which any of the project works
are operated and maintained by the United States, the reserve fund shall be
available for like use by the United States.
(vi) On or before February 1 of each year, the
Contractor shall provide to the' Contracting Officer an annual statement
indicating the principal and accumulated interest in the emergency OM&R
reserve fund as of December 31 of the preceding year.
(b) (i) No later than 1 year following the Contractor's
last construction advance und~ the Plan 6 Funding Agreement, the Contractor
shall accumulate and maintain a repayment reserve fund to help assure
payments to the United States under this contract.
(if) The Contractor shall accumulate such reserve fund
with .nnual deposits, including interest and dividends accruing to fund
balances or holdings, of not less than $4,000,000 in any year in which the
fund ba 1 ance is 1 es s than $40,000,000. The fund sha 11 be invested in a
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Federally insured interest- or dividend-bearing account, or in securities
guaranteed by the Federal Government; Provided, That money in the reserve
fund shall be available within a reasonable time to meet expenses for the
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purpose for which it was establ i shed.
Such annual depos i ts and the
accumulation of interest to the reserve fund shall continue until
$40,000,000 is accumul ated.
Any balance in the fund in excess of
$40,000,000 shall be considered to be the general funds of the Contractor
and available for use as such.
(i i i) Upon mutual agreement between the Contractor and
7 the Contracting Officer, the amount to be accumulated and maintained in the
8 reserve fund provided for in this Subarticle may be adjusted.
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(iv) Proposed expendi tures from the fund shall be
submitted to the Contracting Officer in writing for review and written
approval prior to disbursement.
(v) On or before February 1 of each year, the
Contractor shall provide to the Contracting Officer an annual statement of
the principal and accumulated interest in the repayment reserve fund as of
December 31 of the preceding year.
10.4 Recreational Use of Water Facilities.
(a) The enhancement of recreational opportunities in
connect i on with the project works authori zed pursuant to Ti t 1 e III of the
Basin Project Act shall be in accordance with the provisions of the .Federal
Water Project Recreation Act, 79 Stat. 213, dated July 9, 1965, except as
provided in Subarticle 10.4tb) hereof.
(b) Recreational development at Orme Dam and Reservoir
shall be governed by the provisions of Section 302(d) of the Basin Project
Act.
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10.5 Confirmation of Contract.
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(a) The Contractor, a fter the execution of thi s contract,
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1 shall promptly seek to secure a decree of a court of competent jurisdiction
2 of the State of Arizona confirming the execution of this contract. The
3 Contractor shall furnish the United States a certified copy of the final
4 decree, the validation proceedings, and all pertinent supporting records of
5 the court approving and confirming this contract, and decreeing and
6 adjudging it to be lawful, valid, and binding on the Contractor. This
contract shall not be binding on the United States or the Contractor until
such final decree has been entered.
(b) This contract shall be indivisible for purposes of
validation and shall not be binding on the United States or the Contractor
unless validated pursuant to the provisions of Subarticle 10.5(a) hereof in
each and all of its terms and conditions.
10.6 Rules. Regulations. and Determinations.
(a) The parties agree that the delivery of water or the use
of Federa'l facilities pursuant to this contract is subject to Reclamation
law, as amended and supplemented, and the rules and regulations promulgated
by the Secretary of the Interior under Reclamation law.
(b)
The Contracting Officer, after an opportunity has
been offered to the Contractor for consultation, shall have the right to
make rules, regulations, and determinations consistent with the provisions
of this contract. the laws of the United States and the State of Arizona,
including, without limitation, rules, regulations, and determinations
relative to maximizing project benefits from pumping from lake Havasu, the
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rate and schedule of pumping therefrom and the rate and schedule of pumping
at the Granite Reef pumping plan't"S, to add to or modify said rules,
i
regulations, and determinations as may be deemed proper and necessary to
52
1 carry out this contract, and to supply necessary details of its
2 administration which are not covered by express provisions of this contract.
3 The C~tractor and each subcontractor shall observe such rules, regulations,
4 and determinations and each subcontract shall so provide.
5
(c) Where the terms of this contract provide for action
6 to be based upon the opinion or determination of either party to this
7 contract, whether or not stated to be conclusive, said terms shall not be
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construed as permitting such action to be predicated upon arbitrary,
capricious, or unreasonable opinions or determinations. In the event that
the Contractor questions any factual determination made by the
Contracting Officer, the findings as to the facts shall be made by the
Secretary only after consultation with the Contractor and shall be
conclusive upon the parties.
10.7 Books. Records. and Reports. The Contractor shall establish
and maintain accounts and other books and records pertaining to
administration of the terms and conditions of this contract, including: the
Contractor's financial transactions, water supply data, project operation,
ma i ntenance and rep lacement logs, project land and right-of-way use
agreements, and other matters specifically relating to this contract that
the Contracting Officer may require. Reports thereon shall be furnished to
the Contracting Offi cer in such form and on such date or dates as the
Contract i ng Officer may requi re.
Subj ect to app 1 i cab 1 e Federa 1 1 aws and
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regulations, each party to this contract shall have the right during office
hours to examine and make copies of the other party's books and records
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relating to matters covered by this contract.
;3
10.8
Notices.
Any notice, demand, or request authorized or
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1 required by this contract shall be deemed to have been given, on behalf of
2 the Contractor, when mailed, postage prepaid, or delivered to the Regional
3 Director, Lower Colorado Region, Bureau of Reclamation, P.O. Box 61470,
4 Boulder City, Nevada 89006, and on behalf of the United States, when mailed,
5 postage prepaid, or del ivered to the General Manager of the Contractor,
6 23636 North 7th Street, Phoenix, Arizona 85024. The designation of the
7 addressee or the address may be changed by notice given in the same manner
8 as provided in this article for other notices.
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10.9 Continqent on Appropriation or Allotment of Funds.
The
expenditure or advance of any money or the performance of any obligation by
the United States under this contract shall be contingent upon
appropriation or allotment of funds. Absence of appropriation or allotment
of funds shall not relieve the Contractor from any obligations under this
contract. No liability shall accrue to the United States in case funds are
not appropriated or allotted.
10.10 Chanqes in Contractor's Orqanization. While this contract
is in effect, no change shall be made in the Contractor's organization,
by exclusion of lands, by dissolution, consolidation, merger or otherwise,
except upon the Contracting Officer's written consent; Provided, however,
That approval is hereby given to the inclusion of other counties as part of
Contractor's service area, except, however, that the United States shall not
be required, .under this contract, to construct project facl1ities to serve
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lands within said additional counties.
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10.11 Assi qnment Limited--Successors and Ass; qns Oblf qated.
The provisions of this contract shall apply to and bind the successors and
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assigns of the parties hereto, but no assignment or transfer of this
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1 contract or any part or interest therein shall be valid until approved in
2 writing by the Contracting Officer.
10.12 Judicial Remedies Not Foreclosed.
Nothing herein shall
be construed (a) as depriving either party from pursuing and prosecuting any
remedy in any appropriate court of the United States or the State of Arizona
which would otherwise be available to such parties even though provisions
herein may declare that determinations or deci sions of the Secretary or
other persons are conclusive or (b) as depriving either party of any defense
thereto which would otherwise be available.
10.13
Equa 1 Opportun ity.
Ouri ng the performance of thi s
contract, the Contractor agrees as follows:
(a) The Contractor wi 11 not di scrimi nate agai nst any
employee or applicant for employment because of race, color, religion, sex,
or national origin. The Contractor will take affirmative action to ensure
that applicants are employed, and that employees are treated during
employment, without regard to their race, color, religion, sex, or national
origin. Such action shall include, but not be limited to, the following:
Employment, upgrading, demotion, or transfer; recruitment or recruitment
advert; sing; 1 ayoff or termi nat; on; rates of payor other forms of
compensation; and selection for training, including apprenticeship.
The
Contractor agrees to post in conspicuous places, available to employees and
applicants for employment, notices to be provided by the Contracting Officer
setting forth the provisions of this Equal Opportunity clause.
(b) The Contractor will, in all sol icitations or
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advertisements for employees placed by or on behalf of the Contractor, state
that all qualified applicants will receive consideration for employment
..
.
55
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1 without regard to race, color, religion, sex, or national origin.
2
(c) The Contractor wi 11 send to each 1 abor uni on or
3 representative of workers with which it has a collective bargaining
4 agreement or other contract or understanding, a notice, to be provided by
5 the Contracting Officer, advising the labor union or workers' representative
6 of the Contractor1s commitments under this Equal Opportunity clause, and
7 shall post copies of the notice in conspicuous places available to employees
8 and applicants for employment.
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(d) The Contractor will comply with all provisions of
Executive Order No. 11246 of September 24, 1965, as amended, and of the
rules, regulations, and relevant orders of the Secretary of labor.
(e) The Contractor shall furnish all information and
reports required by said amended Executive Order and by the rules,
regulations, and orders of the Secretary of labor, or pursuant thereto, and
will permit access to its. books, records, and accounts by the
Contracting Officer and the Secretary of labor for purposes of investigation
to ascertain compliance with such rules, regulations, and orders.
(f) In the event of the Contractor1s noncompliance with the
Equal Opportunity clause of this contract or with any of the said rules,
regulations, or orders, this contract may be canceled, terminated, or
suspended, in whole or in part, and the Contractor may be declared
i
ineligible for further Government contracts in accordance with procedures
- ,
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authorized in said amended Executive Order, and such other sanctions may be
imposed and remedies invoked as provided in said amended Executive Order, or
by rule, re~1ation, or order of the Secretary of Labor, or as otherwise
5
provided by law.
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(g) The Contractor will include the provisions of paragraphs
(a) through (g) in every subcontract or purchase order unless exempted by
rules, regulations, or orders of the Secretary of Labor issued pursuant to
Section 204 of said amended Executive Order, so that such provisions will be
5 bi ndi ng upon each subcontractor or vendor. The Contractor wi 11 tak.e such
action with respect to any subcontract or purchase order as the
Contracting Officer may direct as a means of enforcing such provisions,
including sanctions for noncompliance; Provided, however, That in the event
the Contractor becomes involved in, or is threatened with, litigation with a
subcontractor or vendor as a result of such direction by the
Contracting Officer, the Contractor may request the United States to enter
into such litigation to protect the interests of the United States.
10.14 Compliance With Civil Rights Laws and Regulations.
(a) The Contractor shall comply with Title VI of the
Civil Rights Act of 1964 (42 U.S.C. 2000d), Section 504 of the
Rehabil itation Act of 1975 (Public Law 93-112, as amended), the
Age Discrimination Act of 1975 (42 U.S.C. 6101, et ~.) and any other
applicable civil rights laws, as well as with their respective.implementing
regulations and guidelines imposed by the U.S. Department of the Interior
and/or Bureau of Reclamation.
(b) These statutes require that no person in the United
i
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States shall, on the grounds of race, color, national origin, handicap, or
age, be excluded from participation in, be denied the benefits of, or be
otherwi se subjected to di scrimination under any program or activity
:3
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receiving financial assistance from the Bureau of Reclamation. By executing
this contract, the Contractor agrees to immediately take any measures
1
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1 necessary to implement this obligation, including permitting officials of
2 the United States to inspect premises, programs, and documents.
3 (c) The Contractor makes this agreement in consideration of
4 and for the purpose of obta in i ng any and all Federal grants, loan s,
5 contracts, property discounts or other Federal financial assistance extended
6 after the date hereof to the Contractor by the Bureau of Reclamation,
7 i ncl udi ng installment payments after such date on account of arrangements
8 for Federal financial assistance which were approved before such date. The
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Contractor recognizes and agrees that such Federal assistance will be
extended in reliance on the representations and agreements made in this
article, and that the United States reserves the right to seek judicial
enforcement thereof.
10.15 Officials Not to Benefit. No Member of or Delegate to
Congress, Resident Commissioner or official of the Contractor shall benefit
from thi s contract other than as a water user or 1 andowner in the same
manner as other water users or landowners.
11. STATUS OF DECEMBER 15. 1972 CONTRACT
Upon judicial confirmation of this contract, the December 15, 1972
contract ent it 1 ed "Contract Between the \;Inited States and the Central
Arizona Water Conservation District For Delivery of Water and Repayment of
Costs of the Central Arizona Projett" (Contract No. 14-06-W-245), shall be
superseded and replaced by this contract.
3
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EXHIBIT B
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VICINITY MAP
LEGEND
BOUNOART OF CORTARO WATER USERS ASSOCIATION,
C'>NAl..
____ PIPltl.JNE.
. OPltRATING Wltl.l.,
_ 80"':'04R'I' OF CORTARO-IIARAIOA IRRIGATlllH IlISTIIIC:.
PHOTO MOSAIC FROM F>Haros TA:KEN AUG. 31, 1978
~
WATER S UPP L Y FA.CILlTIES
OF
CORTARO WATER USERS ASSOCIATION
800"........ - EDMOMSTOM. !MGltla:W"...INc.. '
....on.s. ""%0."
OCTO" Je'7.
""
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1
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IN WITNESS WHEREOF, the parties hereto have caused this contract
to be executed the day and- year first above written.
ATTEST:
THE UNITED STATES OF AMERICA
CENTRAL ARIZONA WATER CONSERVATION DISTRICT
~~~6'-~ BY~~~
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