CAP subcontract 21-XX-30-W0699
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NIA Subcontract No. 21-XX-30-W0699
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
SUBCONTRACT AMONG THE UNITED STATES,
THE CENTRAL ARIZONA WATER CONSERVATION DISTRICT,
AND THE CITY OF EL MIRAGE
PROVIDING FOR WATER SERVICE
CENTRAL ARIZONA PROJECT
1.
PREAMBLE:
THIS SUBCONTRACT, made this day of , 20_ ,
in pursuance generally of the Act of June 17, 1902 (32 Stat. 388), and acts amendatory
thereof or supplementary thereto, including but not limited to the Boulder Canyon Project
Act of December 21, 1928 (45 Stat. 1057), as amended, the Reclamation Project Act of
August 4, 1939 (53 Stat. 1187), as amended, the Reclamation Reform Act of October 12,
1982 (96 Stat. 1263), and particularly the Colorado River Basin Project Act of September
30, 1968 (82 Stat. 885), as amended, and the Arizona Water Settlements Act (118 Stat.
3478) (“AWSA”), all collectively hereinafter referred to as the "Federal Reclamation Laws,"
among the UNITED STATES OF AMERICA, hereinafter referred to as the "United States"
or “Contracting Officer” acting through the Secretary of the Interior, the CENTRAL
ARIZONA WATER CONSERVATION DISTRICT,
hereinafter referred to as the
"Contractor," a water conservation district organized under the laws of Arizona, with its
principal place of business in Phoenix, Arizona, and the CITY OF EL MIRAGE hereinafter
referred to as the "Subcontractor," with its principal place of business in El Mirage, Arizona;
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WITNESSETH, THAT:
2.
EXPLANATORY RECITALS:
WHEREAS, the Colorado River Basin Project Act provides, among other
things, that for the purposes of furnishing irrigation and municipal and industrial water
supplies to water deficient areas of Arizona and western New Mexico through direct
diversion or exchange of water, control of floods, conservation and development of fish
and wildlife resources, enhancement of recreation opportunities, and for other purposes,
the Secretary of the Interior shall construct, operate, and maintain the Central Arizona
Project; and
WHEREAS, pursuant to the provisions of Arizona Revised Statutes §§ 48-
3701, et seq., the Contractor has been organized with the power to enter into a contract
or contracts with the Secretary of the Interior to accomplish the purposes of Arizona
Revised Statutes, §§ 48-3701, et seq.; and
WHEREAS, pursuant to Section 304(b)(1) of the Colorado River Basin
Project Act, the Secretary of the Interior has determined that it is necessary to effect
repayment of the cost of constructing the Central Arizona Project pursuant to a master
contract and that the United States, together with the Contractor, shall be a party to
contracts that are in conformity with and subsidiary to the master contract; and
WHEREAS, the United States and the Contractor entered into Contract No.
14-06-W-245, Amendment No. 1, dated December 1, 1988, hereinafter referred to as the
"Repayment Contract," and by this reference made a part hereof, whereby the Contractor
agrees to repay to the United States the reimbursable costs of the Central Arizona Project
allocated to the Contractor;
WHEREAS, as of the date of execution of this Subcontract, and pursuant
to the provisions of the Contract between the United States of America and the Central
Arizona Water Conservation District for the Transfer of Operation and Maintenance of
Facilities dated August 5, 1987, Contract No. 7-07-30-W0167, as amended (“O&M
Transfer Agreement”), CAWCD is the Operating Agency.
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WHEREAS, the United States and CAWCD have entered into the Stipulated
Judgment and the Stipulation for Judgment (including any exhibits to those documents)
entered on November 21, 2007, in the United States District Court for the District of Arizona
in the consolidated civil action styled Central Arizona Water Conservation District v. United
States, et al., and numbered CIV 95-625-TUC-WDB (EHC) and CIV 95-1720-PHX-EHC
(“Stipulation”), which modifies the Repayment Contract in certain respects;
WHEREAS, section 104(a)(2) of the AWSA authorizes the reallocation of up
to 96,295 acre-feet of CAP NIA Priority Water to the Arizona Department of Water
Resources (“ADWR”) for further allocation;
WHEREAS, on January 16, 2014, the ADWR recommended to the
Secretary of the Interior the reallocation of 46,629 acre-feet of CAP NIA Priority Water for
municipal and industrial uses.
WHEREAS, On January 15, 2021, the Department of the Interior issued
notice in the Federal Register of its final decision to reallocate 46,629 acre-feet of CAP
NIA Priority Water consistent with ADWR’s recommendation. 86 Fed. Reg. 4119 (Jan.
15, 2021).
WHEREAS, the Subcontractor is in need of a water supply and desires to
subcontract with the United States and the Contractor for water service from CAP NIA
Priority Water supplies available under the Central Arizona Project; and
WHEREAS, in accordance with the terms of this Subcontract, water shall
be available for delivery to the Subcontractor;
NOW THEREFORE, in consideration of the mutual and dependent
covenants herein contained, it is agreed as follows:
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3.
DEFINITIONS:
Definitions included in the Repayment Contract and the Stipulation are
applicable to this subcontract. The first letters of terms so defined are capitalized herein.
In addition, the following definitions shall apply to this subcontract
(a)
“Available CAP Supply” shall mean for any given Year all Fourth
Priority Water available for delivery through the Central Arizona Project, water available
from CAP dams and reservoirs other than Modified Roosevelt Dam, and return flows
captured by the Secretary for CAP use.
(b)
"CAP Indian Priority Water" shall mean that water within the Available
CAP Supply having an Indian delivery priority.
(c)
"CAP M&I Priority Water" shall mean that water within the Available
CAP Supply having a municipal and industrial delivery priority.
(d)
"CAP NIA Priority Water" shall mean that water within the available
CAP Supply having a non-Indian agricultural delivery priority.
(e)
“Operating Agreement” shall mean the Operating Agreement
between the United States of America and the Central Arizona Water Conservation District
for Operation and Maintenance of the Central Arizona Project, dated June 15, 2000.
(f)
“System Use Agreement” shall mean the Central Arizona Project
System Use Agreement between the United States and the Central Arizona Water
Conservation District, Agreement No. 17-XX-30-W0622, dated February 2, 2017,
including any amendments thereto.
4.
DELIVERY OF WATER:
4.1
Obligations of the United States. Subject to the terms, conditions,
and provisions set forth herein and in the Repayment Contract, during such periods as it
operates and maintains the Project Works, the United States shall deliver Project Water
for M&I use by the Subcontractor. The United States shall use all reasonable diligence to
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make available to the Subcontractor the quantity of Project Water specified in the schedule
submitted by the Subcontractor in accordance with Article 4.4. After transfer of OM&R to
the Operating Agency, the United States shall make deliveries of Project Water to the
Operating Agency which shall make subsequent delivery to the Subcontractor as provided
herein.
4.2
Term of Subcontract. This subcontract shall become effective upon
the later of: (i) the date on which it is confirmed as provided for in Article 6.12; and (ii) the
date on which the Subcontractor has paid or provided for payment of past CAP NIA Priority
water service capital charges and 9(d) debt charges as required by the Contractor. This
subcontract shall be for permanent service as that term is used in Section 5 of the Boulder
Canyon Project Act of 1928, 43 U.S.C. §617d. Project Water shall be delivered under the
terms of this subcontract for a period of 100 years beginning January 1 of the Year
following that in which the subcontract becomes effective; provided, that this subcontract
may be renewed upon written request by the Subcontractor upon terms and conditions of
renewal to be agreed upon not later than 1 year prior to the expiration of this subcontract;
and provided, further, that such terms and conditions shall be consistent with Article 9.9
of the Repayment Contract.
4.3
Conditions Relating to Delivery and Use. Delivery and use of water
under this subcontract is conditioned on the following, and the Subcontractor hereby
agrees that:
(a)
All uses of Project Water and Return Flow shall be consistent
with Arizona water law unless such law is inconsistent with the Congressional directives
applicable to the Central Arizona Project.
(b)
The system or systems through which water for Agricultural,
M&I (including underground storage), and Miscellaneous purposes is conveyed after
delivery to the Subcontractor shall consist of pipelines, canals, distribution systems, or
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other conduits provided and maintained with linings adequate in the Contracting Officer's
judgment to prevent excessive conveyance losses.
(c)
The Subcontractor shall not pump, or within its legal authority,
permit others to pump ground water from within the exterior boundaries of the
Subcontractor's service area, which has been delineated on a map filed with the Con-
tractor and approved by the Contractor and the Contracting Officer, for use outside of said
service area unless such pumping is permitted under Title 45, Chapter 2, Arizona Revised
Statutes, as it may be amended from time to time, and the Contracting Officer, the
Contractor, and the Subcontractor shall agree, or shall have previously agreed, that a
surplus of ground water exists and drainage is or was required; provided, however, that
such pumping may be approved by the Contracting Officer and the Contractor, and
approval shall not be unreasonably withheld, if such pumping is in accord with the Basin
Project Act and upon submittal by the Subcontractor of a written certification from the
Arizona Department of Water Resources or its successor agency that the pumping and
transportation of ground water is in accord with Title 45, Chapter 2, Arizona Revised
Statutes, as it may be amended from time to time.
(d)
The Subcontractor shall not sell, lease, exchange, forbear or
otherwise transfer Project Water; provided, however, that this does not prohibit exchanges
of Project Water within the State of Arizona covered by separate agreements approved by
the Contracting Officer and Contractor; and provided, further, that this does not prohibit
effluent exchanges with Indian tribes pursuant to Article 6.2; and provided, further, that
this does not prohibit the resale or exchange of Project Water within the State of Arizona
pursuant to Subarticle 4.3(e).
(e) (i)
Project Water scheduled for delivery in any Year under
this subcontract may be used by the Subcontractor or resold, or exchanged by the
Subcontractor pursuant to appropriate agreements approved by the Contracting Officer
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and the Contractor. If said water is resold or exchanged by the Subcontractor for an
amount in excess of that which the Subcontractor is obligated to pay under this
subcontract, the excess amount shall be paid forthwith by the Subcontractor to the
Contractor for application against the Contractor's Repayment Obligation to the United
States; provided, however, that the Subcontractor shall be entitled to recover actual costs
of transportation, treatment, and distribution, including but not limited to capital costs and
OM&R costs.
(ii)
Project Water scheduled for delivery in any Year under
this subcontract that cannot be used, resold, or exchanged by the Subcontractor may be
made available by the Contracting Officer and Contractor to other users. If such Project
Water is sold to or exchanged with other users, the Subcontractor shall be relieved of its
payments hereunder only to the extent of the amount paid to the Contractor by such other
users, but not to exceed the amount the Subcontractor is obligated to pay under this
subcontract for said water.
(iii)
In the event the Subcontractor or the Contracting Officer
and the Contractor are unable to sell any portion of the Subcontractor's Project Water
scheduled for delivery and not required by the Subcontractor, the Subcontractor shall be
relieved of the pumping energy portion of the OM&R charges associated with the
undelivered water as determined by the Contractor.
(f)
Notwithstanding any other provision of this subcontract,
Project Water shall not be delivered to the Subcontractor unless and until the
Subcontractor has obtained final environmental clearance from the United States for the
system or systems through which Project Water is to be conveyed after delivery to the
Subcontractor at project turnout(s). Such system(s) shall include all pipelines, canals,
distribution systems, treatment, storage, and other facilities through or in which Project
Water is conveyed, stored, or treated after delivery to the Subcontractor at the
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Subcontractor's Project turnout(s). In each instance, final environmental clearance will be
based upon a review by the United States of the Subcontractor's plans for taking and using
Project Water and will be given or withheld by the United States in accordance with the
Final Environmental
Assessment
- Arizona
Department of Water Resources
Recommendation for the Reallocation of Non-Indian Agricultural Priority Central Arizona
Project Water in Accordance with the Arizona Water Settlements Act of 2004 (November
8, 2019) and the National Environmental Policy Act of 1969 (83 Stat. 852). Any additional
action(s) required on behalf of the Subcontractor in order to obtain final environmental
clearance from the United States will be identified to the Subcontractor by the United
States, and no Project Water shall be delivered to the Subcontractor unless and until the
Subcontractor has completed all such action(s) to the satisfaction of the United States.
4.4
Procedure for Ordering Water.
(a)
The amounts, times, and rates of delivery of Project Water to
the Subcontractor shall be in accordance with a water delivery schedule for that Year.
Such schedule shall be determined in the following manner:
(i)
On or before October 1 of each Year, the Subcontractor
shall submit in writing to the Contractor a water delivery schedule indicating the amounts
of Project Water desired by the Subcontractor during each month of the following Year
along with a preliminary estimate of Project Water desired for the succeeding 2 years.
(ii)
Upon receipt of the schedule, the Contractor shall
review it and, after consultation with the Subcontractor, and except as provided in
Subarticle 4.4(a)(iii), shall make only such modifications to the schedule as are necessary
to ensure that the amounts, times, and rates of delivery to the Subcontractor are consistent
with the delivery capability of the Project, considering, among other things, the availability
of water, the delivery schedules of all subcontractors and Section 11 of the System Use
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Agreement; provided, that this provision shall not be construed to reduce annual deliveries
to the Subcontractor.
(iii)
If the Contracting Officer determines, in consultation
with the Operating Agency, that the amount of Project Water that will be available for
delivery as CAP NIA Priority Water is insufficient to meet all the requests for delivery of
CAP NIA Priority Water for the following Year as set forth in Article 4.7, the Contractor
shall notify the Subcontractor of the quantity of CAP NIA Priority Water available to the
Subcontractor for that following Year. Within five (5) business days of such notice, the
Subcontractor shall submit an amended water delivery schedule to the Contractor
reflecting the amount of CAP NIA Priority Water requested by the Subcontractor for the
following Year up to the reduced quantity available. Upon receipt of the amended
schedule, the Contractor shall review it and, after consultation with the Subcontractor,
shall make only such modifications to the schedule as are necessary to ensure that the
amounts, times, and rates of delivery to the Subcontractor are consistent with the delivery
capability of the Project, considering, among other things, the availability of water, the
delivery schedules of all subcontractors and Section 11 of the System Use Agreement;
provided, that this provision shall not be construed to reduce annual deliveries to the
Subcontractor, except as required by Article 4.7.
(iv)
On or before November 15 of each Year, the Contractor
shall determine and furnish to the Subcontractor the water delivery schedule for the
following Year which shall show the amount of water to be delivered to the Subcontractor
during each month of that Year, contingent upon the Subcontractor remaining eligible to
receive water under all terms contained herein.
(b)
The monthly water delivery schedules may be amended upon
the Subcontractor's written request to the Contractor. Proposed amendments shall be
submitted by the Subcontractor to the Contractor no later than 15 days before the desired
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change is to become effective, and shall be subject to review and modification in like
manner as the schedule. The Contractor shall notify the Subcontractor of its action on the
Subcontractor's requested schedule modification within 10 days of the Contractor's receipt
of such request.
(c)
The Contractor and the Subcontractor shall hold the United
States, its officers, agents, and employees, harmless on account of damage or claim of
damage of any nature whatsoever arising out of or connected with the actions of the
Contractor regarding water delivery schedules furnished to the Subcontractor.
(d)
In no event shall the Contracting Officer or the Contractor be
required to deliver to the Subcontractor from the Water Supply System in any one month
a total amount of Project Water greater than eleven percent (11%) of the Subcontractor's
maximum entitlement; provided, however, that the Contractor may deliver a greater
percentage in any month if such increased delivery is compatible with the overall delivery
of Project Water as determined by the Contracting Officer and the Contractor and if the
Subcontractor agrees to accept such increased deliveries.
4.5
Points of Delivery--Measurement and Responsibility for Distribution
of Water.
(a)
The water to be furnished to the Subcontractor pursuant to this
subcontract shall be delivered at existing turnouts, or new turnouts at such points on the
Water Supply System as may be agreed upon in writing by the Contracting Officer and the
Contractor pursuant to Article 6(d) of the O&M Transfer Contract and Section 12.1 of the
Operating Agreement.
(b)
Unless the United States and the Subcontractor agree by
contract to the contrary, the Subcontractor shall construct and install, at its sole cost and
expense, connection facilities required to take and convey the water from the turnouts to
the Subcontractor's service area. The Subcontractor shall furnish, for approval of the
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Contracting Officer, drawings showing the construction to be performed by the
Subcontractor within the Water Supply System right-of-way 6 months before starting said
construction. The facilities may be installed, operated, and maintained on the Water
Supply System right-of-way subject to such reasonable restrictions and regulations as to
type, location, method of installation, operation, and maintenance as may be prescribed
by the Contracting Officer in consultation with the Contractor.
(c)
All water delivered from the Water Supply System shall be
measured with equipment furnished, installed, operated and maintained by the United
States or the Operating Agency. Upon the request of the Subcontractor or the Contractor,
the accuracy of such measurements shall be investigated by the Contracting Officer or the
Operating Agency, Contractor, and Subcontractor, and any errors which may be mutually
determined to have occurred therein shall be adjusted; provided, that in the event the
parties cannot agree on the required adjustment, the Contracting Officer's determination
shall be conclusive.
(d)
Neither the United States, the Contractor, nor the Operating
Agency shall be responsible for the control, carriage, handling, use, disposal, or
distribution of Project Water beyond the turnouts agreed to pursuant to Subarticle 4.5(a).
The Subcontractor shall hold the United States, the Contractor, and the Operating Agency
harmless on account of damage or claim of damage of any nature whatsoever for which
there is legal responsibility, including property damage, personal injury, or death arising
out of or connected with the Subcontractor's control, carriage, handling, use, disposal, or
distribution of such water beyond said delivery point(s).
4.6
Temporary Reductions. In addition to the right of the United States
under Subarticle 8.3(a)(iv) of the Repayment Contract temporarily to discontinue or reduce
the amount of water to be delivered, the United States or the Operating Agency may, after
consultation with the Contractor and Contracting Officer, temporarily discontinue or reduce
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the quantity of water to be furnished to the Subcontractor as herein provided for the
purposes of investigation, inspection, maintenance, repair, or replacement of any of the
Project facilities or any part thereof necessary for the furnishing of water to the
Subcontractor, but so far as feasible the United States or the Operating Agency shall
coordinate any such discontinuance or reduction with the Subcontractor and shall give the
Subcontractor due notice in advance of such temporary discontinuance or reduction,
except in case of emergency, in which case no notice need be given. Neither the United
States, its officers, agents, and employees, nor the Operating Agency, its officers, agents,
and employees, shall be liable for damages when, for any reason whatsoever, any such
temporary discontinuance or reduction in delivery of water occurs. If any such
discontinuance or temporary reduction results in deliveries to the Subcontractor of less
water than what has been paid for in advance, the Contractor shall reconcile any such
advance payments as provided in Subarticle 5.1(c).
4.7
Priority in Case of Shortage. As soon as is practicable after
October 1, the Contracting Officer shall determine, in consultation with the Operating
Agency, the availability of CAP NIA Priority Water consistent with the Available CAP
Supply and delivery schedules submitted by CAP contractors and subcontractors. The
determination of such supply shall be consistent with the AWSA and Paragraph 4 of
Amendment 2 to the Repayment Contract dated November 30, 2007, as set forth in
Exhibit A.
(a)
Any Available CAP Supply remaining after all requests for
delivery of CAP Indian Priority Water and CAP M&I Priority Water have been satisfied
shall become available for delivery as CAP NIA Priority Water.
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(b)
If the Available CAP Supply is insufficient to meet the requests
for delivery of CAP NIA Priority Water by CAP NIA Priority Contractors and CAP NIA
Priority Subcontractors, then the Secretary and the Operating Agency shall pro-rate the
CAP NIA Priority Water to the CAP Contractors and CAP Subcontractors holding such
entitlements on the basis of the quantity of CAP NIA Priority Water used by each such
CAP NIA Priority Contractor or CAP NIA Priority Subcontractor in the last Year in which
the Available CAP Supply was sufficient to fill all orders for CAP NIA Priority Water,
consistent with the settlements authorized, ratified and confirmed in the AWSA.
(c)
Any CAP NIA Priority Water remaining after the pro-rata
distribution set forth in Subarticle 4.7(b) will be made available to CAP NIA Priority Water
Contractors and Subcontractors pro-rata on the basis of the difference between the
volume of water requested for delivery and the volume of water distributed under
Subarticle 4.7(b).
(d)
Nothing in this Article 4.7 shall be construed to allow or
authorize any CAP Contractor or CAP Subcontractor to receive, pursuant to such
contracts, CAP water in amounts greater than such contractor’s entitlement.
4.8
Secretarial Control of Return Flow.
(a)
The Secretary reserves the right to capture all Return Flow
flowing from the exterior boundaries of the Contractor's Service Area as a source of supply
and for distribution to and use of the Central Arizona Project to the fullest extent
practicable. The Secretary also reserves the right to capture for Project use Return Flow
which originates or results from water contracted for from the Central Arizona Project
within the boundaries of the Contractor's Service Area if, in his judgment, such Return
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Flow is not being put to a beneficial use. The Subcontractor may recapture and reuse or
sell its Return Flow; provided, however, that such Return Flow may not be sold for use
outside Maricopa, Pinal, and Pima Counties; and provided, further, that this does not
prohibit effluent exchanges with Indian tribes pursuant to Article 6.2. The Subcontractor
shall, at least 60 days in advance of any proposed sale of such water, furnish the following
information in writing to the Contracting Officer and the Contractor:
(i)
The name and address of the prospective buyer.
(ii)
The location and proposed use of the Return Flow.
(iii)
The price to be charged for the Return Flow.
(b)
The price charged for the Return Flow may cover the cost
incurred by the Subcontractor for Project Water plus the cost required to make the Return
Flow usable. If the price received for the Return Flow is greater than the costs incurred
by the Subcontractor, as described above, the excess amount shall be forthwith returned
by the Subcontractor to the Contractor for application against the Contractor's Repayment
Obligation to the United States. Costs required to make Return Flow usable shall include
but not be limited to capital costs and OM&R costs including transportation, treatment, and
distribution, and the portion thereof that may be retained by the Subcontractor shall be
subject to the advance approval of the Contractor and the Contracting Officer.
(c)
Any Return Flow captured by the United States and
determined by the Contracting Officer and the Contractor to be suitable and available for
use by the Subcontractor may be delivered by the United States or Operating Agency to
the Subcontractor as a part of the water supply for which the Subcontractor subcontracts
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hereunder and such water shall be accounted and paid for pursuant to the provisions
hereof.
(d)
All capture, recapture, use, reuse, and sale of Return Flow
under this article shall be in accord with Arizona water law unless such law is inconsistent
with the Congressional directives applicable to the Central Arizona Project.
4.9
Water and Air Pollution Control. The Subcontractor, in carrying out
this subcontract, 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.
4.10 Quality of Water. The operation and maintenance of Project facilities
shall be performed in such manner as is practicable to maintain the quality of water made
available through such facilities at the highest level reasonably attainable as determined
by the Contracting Officer. Neither the United States, the Contractor, nor the Operating
Agency warrants the quality of water and is under no obligation to construct or furnish
water treatment facilities to maintain or better the quality of water. The Subcontractor
waives its right to make a claim against the United States, the Operating Agency, and the
Contractor, because of changes in water quality caused by the commingling of Project
Water with other water.
4.11 Exchange Water.
(a)
Where the Contracting Officer determines the Subcontractor is
physically able to receive Colorado River mainstream water through the Project Works in
exchange for or in replacement of existing supplies of water from surface sources other
than the Colorado River, the Contracting Officer may require that the Subcontractor accept
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said mainstream water in exchange for or in replacement of said existing supplies pursuant
to the provisions of Section 304(d) of the Basin Project Act; provided, however, that a
subcontractor on the Project aqueduct shall not be required to enter into exchanges in
which existing supplies of water from surface sources are diverted for use by other
subcontractors downstream on the Project aqueduct.
(b)
If, in the event of reductions to the Available CAP Supply, the
Subcontractor has yielded water from other surface water sources in exchange for
Colorado River mainstream water supplied by the Contractor or the Operating Agency,
the Subcontractor shall have first priority against other users supplied with Project Water
that have not yielded water from other surface water sources but only in quantities
adequate to replace the water so yielded.
4.12 Entitlement to CAP NIA Priority Water.
(a)
The Subcontractor is entitled to delivery of an annual
maximum of 1,318 acre-feet of CAP NIA Priority Water for M&I uses including but not
limited to underground storage.
(b)
The Subcontractor's entitlement to CAP NIA Priority Water
under this subcontract shall be separate from any other entitlement to Project Water
available to the Subcontractor. This Subcontract neither modifies nor supersedes the
Subcontractor’s existing entitlements or subcontracts, if any.
4.13 Retention of Priority. In accordance with section 104(a)(3) of the
AWSA, all Project Water delivered for M&I use under this Subcontract shall remain CAP
NIA Priority Water.
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5.
PAYMENTS:
5.1
Water Service Charges for Payment of Operation, Maintenance, and
Replacement Costs.
(a) Prior to October 1 of each Year, the Contractor shall notify the
Subcontractor of the published OM&R rate per acre foot of water based on the estimated
OM&R costs and water deliveries for the following Year. All estimates of OM&R costs
shall be accompanied by data and computations relied on by the Contractor in determining
the amounts of the estimated OM&R costs and shall be subject to joint review by the
Subcontractor and the Contractor. Provided, however, if during the Year, in the opinion of
the Contractor the amount of any annual OM&R estimated costs is likely to be insufficient
to cover the above-mentioned costs during such period, the Contractor may, at the
Contractor’s discretion, increase the annual estimate of the Subcontractor's OM&R costs
by written notice thereof to the Subcontractor, and the revised OM&R rate shall apply to
all remaining monthly invoices.
(b) Subject to the provisions of Article 5.4 hereof, the Subcontractor
shall pay in advance for its share of Project OM&R costs estimated to be incurred by the
United States or the Operating Agency. The Contractor will submit monthly invoices for
the monthly volumes of water scheduled by the Subcontractor, due in the month prior to
delivery. All invoices have net 30-day terms. The Contractor may, at the Contractor’s
discretion, offer equalized or alternative payment schedules.
(c) By March 1 of each Year, the Contractor shall reconcile amounts
paid in the prior Year by the Subcontractor to the volume of water delivered and any
applicable provisions of Subarticle 4.3(e).
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(d) By May 1 of each Year, the Contractor shall determine the actual
OM&R rate for the prior Year based on actual OM&R costs and water volumes and shall
calculate the difference between the actual OM&R rate and the published OM&R rate.
Based on the Subcontractor’s actual deliveries and any applicable provisions of Subarticle
4.3(e), the Contractor shall issue an invoice or credit to the Subcontractor for any
difference.
5.2
M&I Water Service Charges.
(a)
Subject to the provisions of Article 5.4 hereof and in addition
to the OM&R payments required in Article 5.l hereof, the Subcontractor shall, in advance
of the delivery of CAP NIA Priority Water by the United States or the Operating Agency,
make payment to the Contractor in equal semiannual installments of an M&I Water service
capital charge based on a maximum entitlement of 1,318 acre-feet per year multiplied by
the rate established by the Contractor for that year.
(b)
The M&I Water service capital charge may be adjusted
periodically by the Contractor as a result of repayment determinations provided for in the
Repayment Contract and Stipulation and to reflect all sources of revenue, but said charge
per acre-foot shall not be greater than the amount required to amortize Project capital
costs allocated to the M&I function and determined by the Contracting Officer to be a part
of the Contractor's Repayment Obligation. Such amortization shall include interest at
3.342 percent per annum. If any adjustment is made in the M&I Water service capital
charge, notice thereof shall be given by the Contractor to the United States and to the
Subcontractor on or before June 30 of the Year preceding the Year the adjusted charge
becomes effective. The M&I Water service capital charge payment for the initial Year shall
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be advanced to the Contractor in equal semiannual installments on or before December 1
preceding the initial Year and June 1 of said initial Year. Thereafter, for each subsequent
Year, payments by the Subcontractor in accordance with the foregoing provisions shall be
made in equal semiannual installments on or before the December 1 preceding said
subsequent Year and the June 1 of said subsequent Year as may be specified by the
Contractor in written notices to the Subcontractor.
(c)
Payment of all M&I Water service capital and corresponding
OM&R charges becoming due hereunder prior to or on the dates stipulated in Articles 5.1
and 5.2 is a condition precedent to receiving Project Water under this subcontract.
(d)
All payments to be made to the Contractor or the United States
under Articles 5.1 and 5.2 hereof shall be made by the Subcontractor as such payments
fall due from revenues legally available to the Subcontractor for such payment from the
sale of water to its water users and from any and all other sources which might be legally
available; Provided, That no portion of the general taxing authority of the Subcontractor,
nor its general funds, nor funds from ad valorem taxes are obligated by the provisions of
this subcontract, nor shall such sources be liable for the payments, contributions, and
other costs pursuant to this subcontract, or to satisfy any obligation hereunder unless duly
and lawfully allocated and budgeted for such purpose by the Subcontractor for the
applicable budget year; and Provided, further, That no portion of this agreement shall ever
be construed to create an obligation superior in lien to or on a parity with the
Subcontractor's revenue bonds now or hereafter issued. The Subcontractor shall levy and
impose such necessary water service charges and rates and use all the authority and
resources available to it to collect all such necessary water service charges and rates in
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order that the Subcontractor may meet its obligations hereunder and make in full all
payments required under this subcontract on or before the date such payments become
due.
5.3
Loss of Entitlement. The Subcontractor shall have no right to delivery
of water from Project facilities during any period in which the Subcontractor may be in
arrears in the payment of any charges due the Contractor. The Contractor may sell to
another entity any water determined to be available under the Subcontractor's entitlement
for which payment is in arrears; provided, however, that the Subcontractor may regain the
right to use any unsold portion of the water determined to be available under the original
entitlement upon payment of all delinquent charges plus any difference between the
subcontractual obligation and the price received in the sale of the water by the Contractor
and payment of charges for the current period.
5.4
Refusal to Accept Delivery. In the event the Subcontractor fails or
refuses in any Year to accept delivery of the quantity of water available for delivery to and
scheduled for delivery by the Subcontractor pursuant to this subcontract, said failure or
refusal shall not relieve the Subcontractor of its obligation to make the payments required
in this subcontract under Article 5.1, except as provided in Article 4.3(e). The
Subcontractor’s obligation to make the payments required under Article 5.2(a) shall apply
regardless of the quantity of water scheduled or available for delivery in any Year.
5.5
Charge for Late Payments. The Subcontractor shall pay a late
payment charge on installments or charges that are received after the due date. The late
payment charge percentage rate calculated by the Department of the Treasury and
published quarterly in the Federal Register shall be used; provided, that the late payment
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charge percentage rate shall not be less than 0.5 percent per month. The late payment
charge percentage rate applied on an overdue payment shall remain in effect until
payment is received. The late payment rate for a 30-day period shall be determined on
the day immediately following the due date and shall be applied to the overdue payment
for any portion of the 30-day period of delinquency. In the case of partial late payments,
the amount received shall first be applied to the late charge on the overdue payment and
then to the overdue payment.
6.
GENERAL PROVISIONS:
6.1
Repayment Contract and the Stipulation Controlling. Pursuant to the
Repayment Contract, the United States has agreed to construct and, in the absence of an
approved Operating Agency, to operate and maintain the works of the Central Arizona
Project and to deliver Project Water to the various subcontractors within the Project
Service Area; and the Contractor has obligated itself for the payment of various costs,
expenses, and other amounts allocated to the Contractor pursuant to Article 9 of the
Repayment Contract and the Stipulation. The Subcontractor expressly approves and
agrees to all the terms presently set out in the Repayment Contract including Subarticle
8.8(b)(viii) thereof and the Stipulation, or as such terms may be hereafter amended, and
agrees to be bound by the actions to be taken and the determinations to be made under
that Repayment Contract and the Stipulation, except as otherwise provided herein.
6.2
Effluent Exchanges. The Subcontractor may enter into direct effluent
exchanges with Indian entities that have received an allocation of Project Water and
receive all benefits from the exchange.
6.3
Notices. Any notice, demand or request authorized or required by
this subcontract shall be deemed to have been given when mailed, postage prepaid, or
delivered to the Regional Director, Lower Colorado Basin Region, Bureau of Reclamation,
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P.O. Box 61470, Boulder City, Nevada 89006-1470, on behalf of the Contractor or
Subcontractor; to the Central Arizona Water Conservation District, P. O. Box 43020,
Phoenix, Arizona 85080, on behalf of the United States or Subcontractor; and to the City
of El Mirage, Mayor Alexis Hermosillo, 10000 North El Mirage Road, El Mirage, Arizona
85335, on behalf of the United States or Contractor. The designation of the addressee or
the address may be changed by notice given in the same manner as provided in this Article
for other notices.
6.4
Change in Operating Agency. If at any time during the term of this
Subcontract the Contractor and the Operating Agency are not the same entity, the
Contractor agrees to coordinate and cooperate with the Operating Agency on any
obligations of the Contractor under this Subcontract that pertain to the operation of the
Central Arizona Project and delivery of Project Water hereunder.
6.5
Rules, Regulations, and Determinations.
(a)
The Contracting Officer shall have the right to make, after an
opportunity has been offered to the Contractor and Subcontractor for consultation, rules
and regulations consistent with the provisions of this subcontract, the laws of the United
States and the State of Arizona, to add to or to modify them as may be deemed proper
and necessary to carry out this subcontract, and to supply necessary details of its
administration which are not covered by express provisions of this subcontract. The
Contractor and Subcontractor shall observe such rules and regulations.
(b)
Where the terms of this subcontract provide for action to be
based upon the opinion or determination of any party to this subcontract, whether or not
stated to be conclusive, said terms shall not be construed as permitting such action to be
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predicated upon arbitrary, capricious, or unreasonable opinions or determinations. In the
event that the Contractor or Subcontractor 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 or Subcontractor and shall be conclusive upon the
parties.
6.6
Officials Not to Benefit.
(a)
No Member of or Delegate to Congress or Resident
Commissioner shall be admitted to any share or part of this subcontract or to any benefit
that may arise herefrom. This restriction shall not be construed to extend to this
subcontract if made with a corporation or company for its general benefit.
(b)
No official of the Subcontractor shall receive any benefit that
may arise by reason of this subcontract other than as a water user within the Project and
in the same manner as other water users within the Project.
6.7
Assignment Limited--Successors and Assigns Obligated. The
provisions of this subcontract shall apply to and bind the successors and assigns of the
parties hereto, but no assignment or transfer of this subcontract or any part or interest
therein shall be valid until approved by the Contracting Officer.
6.8
Judicial Remedies Not Foreclosed. Nothing herein shall be construed
(a) as depriving any 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 any party of any
defense thereto which would otherwise be available.
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6.9
Books, Records, and Reports. The Subcontractor shall establish and
maintain accounts and other books and records pertaining to its financial transactions,
land use and crop census, water supply, water use, changes of Project works, and to other
matters as the Contracting Officer may require. Reports thereon shall be furnished to the
Contracting Officer in such form and on such date or dates as he may require. Subject to
applicable Federal laws and regulations, each party shall have the right during office hours
to examine and make copies of each other's books and records relating to matters covered
by this subcontract.
6.10 Equal Employment Opportunity.
During the performance of this subcontract, the Subcontractor agrees as
follows:
(a) The Subcontractor will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, sexual orientation, gender
identity, or national origin. The Subcontractor 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, sexual orientation, gender identity, or national
origin. Such action shall include, but not be limited to the following: employment,
upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship. The Subcontractor 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 nondiscrimination clause.
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(b) The Subcontractor will, in all solicitations or advancements for
employees placed by or on behalf of the Subcontractor, state that all qualified applicants
will receive consideration for employment without regard to race, color, religion, sex,
sexual orientation, gender identity, or national origin.
(c) The Subcontractor will not discharge or in any other manner
discriminate against any employee or applicant for employment because such employee
or applicant has inquired about, discussed, or disclosed the compensation of the
employee or applicant or another employee or applicant. This provision shall not apply to
instances in which an employee who has access to the compensation information of other
employees or applicants as a part of such employee’s essential job functions discloses
the compensation of such other employees or applicants to individuals who do not
otherwise have access to such information, unless such disclosure is in response to a
formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or
action, including an investigation conducted by the employer, or is consistent with the
contractor’s legal duty to furnish information.
(d) The Subcontractor will send to each labor union or representative
of workers with which he has a collective bargaining agreement or other contract or
understanding, a notice, to be provided by the agency Contracting Officer, advising the
labor union or workers’ representative of the Subcontractor’s commitments under section
202 of Executive Order No. 11246 of September 24, 1965, and shall post copies of the
notice in conspicuous places available to employees and applicants for employment.
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(e) The Subcontractor will comply with all provisions of Executive
Order No. 11246 of Sept. 24, 1965, and of the rules, regulations, and relevant orders of
the Secretary of Labor.
(f) The Subcontractor will furnish all information and reports required
by Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and
orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books,
records, and accounts by the Contracting Agency and the Secretary of Labor for purposes
of investigation to ascertain compliance with such rules, regulations, and orders.
(g) In the event of the Subcontractor’s noncompliance with the
nondiscrimination clauses of this contract or with any of such rules, regulations, or orders,
this subcontract may be canceled, terminated or suspended in whole or in part and the
Subcontractor may be declared ineligible for further Government contracts in accordance
with procedures authorized in Executive Order No. 11246 of Sept. 24, 1965, and such
other sanctions may be imposed and remedies invoked as provided in Executive Order
No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor,
or as otherwise provided by law.
(h) The Subcontractor will include the provisions of paragraphs (a)
through (h) in every subcontract or purchase order unless exempted by the rules,
regulations, or orders of the Secretary of Labor issued pursuant to section 204 of
Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding
upon each subcontractor or vendor. The Subcontractor will take such action with respect
to any subcontract or purchase order as may be directed by the Secretary of Labor as a
means of enforcing such provisions, including sanctions for noncompliance: Provided,
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however, that in the event the Subcontractor becomes involved in, or is threatened with,
litigation with a subcontractor or vendor as a result of such direction, the Subcontractor
may request the United States to enter into such litigation to protect the interests of the
United States.
6.11 Compliance With Civil Rights Laws and Regulations
(a) The Subcontractor shall comply with Title VI of the Civil Rights
Act of 1964 (Pub. L. 88-352; 42 U.S.C. § 2000d), the Rehabilitation Act of 1973 (Pub. L.
93-112, Title V, as amended; 29 U.S.C. § 791, et seq.), the Age Discrimination Act of 1975
(Pub. L. 94-135, Title III; 42 U.S.C. § 6101, et seq.), Title II of the Americans with
Disabilities Act of 1990 (Pub. L. 101-336; 42 U.S.C. § 12131, et seq.), and any other
applicable civil rights laws, and with the applicable implementing regulations and any
guidelines imposed by the U.S. Department of the Interior and/or Bureau of Reclamation.
(b) These statutes prohibit any person in the United States from being
excluded from participation in, being denied the benefits of, or being otherwise subjected
to discrimination under any program or activity receiving financial assistance from the
Bureau of Reclamation on the grounds of race, color, national origin, disability, or age. By
executing this subcontract, the Subcontractor agrees to immediately take any measures
necessary to implement this obligation, including permitting officials of the United States
to inspect premises, programs, and documents.
(c) The Subcontractor makes this agreement in consideration of and
for the purpose of obtaining any and all Federal grants, loans, contracts, property
discounts, or other Federal financial assistance extended after the date hereof to the
Subcontractor by the Bureau of Reclamation, including installment payments after such
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date on account of arrangements for Federal financial assistance which were approved
before such date. The Subcontractor 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.
(d) Complaints of discrimination against the Subcontractor shall be
investigated by the Contracting Officer’s Office of Civil Rights.
6.12 Confirmation of Subcontract. The Subcontractor shall promptly seek
a final decree of the proper court of the State of Arizona approving and confirming the
subcontract and decreeing and adjudging it to be lawful, valid, and binding on the
Subcontractor. The Subcontractor shall furnish to the United States a certified copy of
such decree and of all pertinent supporting records. This subcontract shall not be binding
on the United States, the Contractor, or the Subcontractor until such final decree has been
entered.
6.13 Contingent on Appropriation or Allotment of Funds. The expenditure
or advance of any money or the performance of any work by the United States hereunder
which may require appropriation of money by the Congress or the allotment of funds shall
be contingent upon such appropriation or allotment being made. The failure of the
Congress to appropriate funds or the absence of any allotment of funds shall not relieve
the Subcontractor from any obligation under this subcontract. No liability shall accrue to
the United States in case such funds are not appropriated or allotted.
IN WITNESS WHEREOF, the parties hereto have executed this subcontract
No. 21-XX-30-W0699 the day and year first above-written.
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THE UNITED STATES OF AMERICA
By:_____________________________
Regional Director
Lower Colorado Basin Region
Bureau of Reclamation
CENTRAL ARIZONA WATER
CONSERVATION DISTRICT
Attest:
By: _____________________________
Alexandra M. Arboleda
Terry Goddard
Secretary
President
CITY OF EL MIRAGE
Attest:
By:
Title:
Title: