Roosevelt Dam Agreement
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Participating Entities‐SRP FCS Cost Share Agreement
AGREEMENT TO SHARE COSTS ASSOCIATED WITH SEEKING TO OBTAIN APPROVAL
FOR THE OPERATION OF THE FLOOD CONTROL SPACE
IN MODIFIED ROOSEVELT DAM UNDER A TEMPORARY DEVIATION
TO THE WATER CONTROL PLAN
AMONG VARIOUS PARTICIPATING ENTITIES,
AND
SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT
1.
PARTIES:
This Agreement to Share Costs Associated with Seeking to Obtain Approval for Operation
of the Flood Control Space in Modified Roosevelt Dam Under a Temporary Deviation to
the
Water
Control
Plan
(“Agreement”),
entered
into
this
____
day
of
__________________, 2021 is by and among the Arizona cities of Avondale, Chandler,
Glendale, Mesa, Peoria, Phoenix, Scottsdale, and Tempe, Town of Gilbert, Roosevelt
Water Conservation District, Buckeye Water Conservation and Drainage District, Salt River
Pima‐Maricopa Indian Community, Roosevelt Irrigation District, and Freeport Minerals
Corporation (“Participating Entities”); and the Salt River Project Agricultural Improvement
and Power District (“SRP”). SRP and the Participating Entities are referred to collectively
as “Parties”.
2.
RECITALS:
This Agreement is made with regard to the following:
2.1
SRP will propose and seek to obtain approval from the United States Army Corps
of Engineers (“Corps of Engineers”) and United States Department of the Interior’s
Bureau of Reclamation (“Reclamation”) to authorize SRP to operate the flood
control space in Modified Roosevelt Dam (“Flood Control Space”) under a planned
deviation (“Temporary Deviation Plan”).
2.2
The Temporary Deviation Plan is expected to allow SRP to extend the required
evacuation period for water within the first five (5) feet of the Flood Control Space
(“Temporary Deviation Space”) from twenty (20) days to one hundred and twenty
(120) days after such water first occupies such space. It is expected that the
Temporary Deviation Plan will allow SRP to extend the required evacuation period
once a year in a maximum of three (3) years over a five (5) year period.
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Participating Entities‐SRP FCS Cost Share Agreement
2.3
The purpose of this Agreement is to set terms and conditions among the Parties
for (1) the estimated costs SRP is expected to incur to seek and obtain approval
for the Temporary Deviation Plan, (2) how the costs will be shared among the
Parties, and (3) the process for the Participating Entities to pay their cost share.
2.4
SRP executed a reimbursement agreement with Reclamation on May 21, 2020
(“Reclamation‐SRP Reimbursement Agreement”) to complete risk assessments
and environmental compliance activities necessary to facilitate a federal decision
on the Temporary Deviation Plan. The goal at the time of execution of the
Reclamation‐SRP Reimbursement Agreement was to obtain formal federal
approval of the Temporary Deviation Plan by no later than February 2023.
2.5
The Parties have executed a nonbinding term sheet dated May 7, 2021 that,
among other things, summarizes the principle terms for agreements (1) to share
costs among SRP and the Participating Entities to seek and obtain approval from
the Corps of Engineers and Reclamation for the Temporary Deviation Plan, and (2)
for SRP to operate the Flood Control Space under the Temporary Deviation Plan
(“Participating Entities‐SRP Term Sheet” attached hereto as Exhibit A). This
Agreement fulfills the intent of the cost share agreement identified in Paragraph
3 of the SRP‐Participating Entities Term Sheet.
3.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants herein set forth and for good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Parties agree as follows:
4.
INCORPORATION OF RECITALS:
The recitals listed above are hereby incorporated into and expressly made part of this
Agreement.
5.
DEFINITIONS:
The listed terms, when used with initial capitalization, whether in singular or plural, shall
have the meaning specified in Exhibit B.
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Participating Entities‐SRP FCS Cost Share Agreement
6.
SCOPE:
This Agreement is intended to set terms and conditions for (1) the estimated costs SRP is
expected to incur to seek and obtain approval for the Temporary Deviation Plan, (2) how
the costs will be shared among the Parties, and (3) the process for the Participating
Entities to pay their cost share.
7.
EFFECTIVE DATE AND TERM OF AGREEMENT:
7.1.
This Agreement shall become effective upon the execution by the Parties and shall
remain effective until terminated as provided in Subparagraphs 7.2 or 7.3.
7.2.
This Agreement will terminate when the both of the following have occurred: (1)
the Temporary Deviation Plan is approved by the Corps of Engineers and
Reclamation, and (2) when the last funds are transferred from the Participating
Entities to SRP as provided in Paragraph 10.
7.3.
This Agreement may terminate as provided in this Subparagraph 7.3 in the event
the Corps of Engineers and Reclamation make a final determination that they will
not approve the Temporary Deviation Plan. In such an event, (1) SRP will meet
and confer with the Participating Entities on such determination and whether SRP
and the Participating Entities have exhausted their reasonable options to seek
approval of the Temporary Deviation Plan, and (2) after such meeting, SRP may
terminate this Agreement. In such an event, SRP will provide written notice to the
Participating Entities of the termination of this Agreement. The Agreement will
terminate on the date SRP sends the written notice of termination under this
Subparagraph 7.3.
8.
AUTHORIZED REPRESENTATIVES:
Within sixty (60) days after execution of this Agreement, each Party shall designate in
writing to the other Parties or by electronic mail with read receipt to the other Parties, an
Authorized Representative and an alternate to administer this Agreement on behalf of
the designating Party. Written notice of a change of an Authorized Representative or
alternate shall be provided within (60) days of such change. The alternate shall act only in
the absence of the Authorized Representative. Neither the Authorized Representatives
nor the alternates shall have authority to amend, modify, or supplement this Agreement.
Agreements of the Authorized Representatives pursuant to this Agreement shall be in
writing and signed by them.
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Participating Entities‐SRP FCS Cost Share Agreement
9.
ESTIMATED COSTS:
9.1
SRP estimates it will cost about $1,211,549 for SRP to complete the work
necessary to seek and obtain approval and authorization for the Temporary
Deviation Plan. These costs include those for environmental and cultural
resources compliance, among others. An itemized list of estimated costs is
included as Exhibit C.
9.2
In the event the actual costs referenced in Exhibit C increase above a total of
$1,500,000, SRP and the Participating Entities shall meet and confer to discuss
whether to incur such increased costs.
9.3
In the event the actual costs referenced in Exhibit C are below the total estimated
cost of $1,211,549, cost savings will be shared among SRP and the Participating
Entities in the same proportion as the estimated costs.
10.
PAYMENT:
10.1. Each Participating Entity shall pay a share of costs for SRP to complete the work
necessary to seek and obtain approval and authorization for the Temporary
Deviation Plan. The share of costs for each Participating Entity is based on the
percentage of the Temporary Deviation Water that will be apportioned to that
Participating Entity. Exhibit D shows the percentage of costs and Temporary
Deviation Water allocated to each Participating Entity under the Temporary
Deviation Plan that will be incorporated into the temporary operating agreement
described in Paragraph 4 of the Participating Entities‐SRP Term Sheet.
10.2. SRP will notify the Participating Entities of unforeseen costs within a reasonable
time. Parties will share unforeseen costs based on the apportionment described
in Subparagraph 10.1, within the limitations described in Subparagraph 9.2.
10.3. SRP shall send an invoice to each Participating entity for their cost share within
five (5) days after execution of this Agreement, or within five (5) days after SRP
notifies the Participating Entities of unforeseen costs as provided in Subparagraph
10.2, and the Participating Entities shall pay such invoices within sixty (60) days
after SRP sends such invoices.
10.4. Any bills not paid when due shall be delinquent and shall bear interest at the Wall
Street Journal Prime Rate, on the date the bill was due plus 5% (Wall Street Journal
Prime Rate plus 5%) per annum from the date when the bill was due until the bill
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Participating Entities‐SRP FCS Cost Share Agreement
is paid in full (including any accrued interest). In the event the Wall Street Journal
no longer publishes the Wall Street Journal Prime Rate, the Authorized
Representatives shall select an appropriate substitute.
10.5. In the event any portion of any bill is disputed, the disputed amount shall be paid
under protest when due and shall be accompanied by a written statement
indicating the basis for the protest. If the protest is found to be valid, the
Participating Entity shall be refunded any overpayment plus interest, accrued at
the rate set forth in Subparagraph 10.4, prorated by days from the date payment
was credited to the Participating Entity to the date the refund check is mailed.
10.6. In the event any delinquent amount is not paid by the Participating Entity within
sixty (60) days after receipt by the Participating Entity of written notice by SRP to
the Participating Entity of the delinquency and the remedies available to SRP
under this Agreement if the delinquent amount is not paid, SRP shall have the
right, without liability of any kind, to suspend the delivery of Temporary Deviation
Water so long as the said amount remains unpaid. Nothing herein shall limit the
rights of SRP to use any other available legal remedy to effect collection of said
amounts.
11.
DISPUTE RESOLUTION; RECORDS INSPECTION; CHOICE OF LAW:
11.1. Any dispute under this Agreement shall first be submitted to the Authorized
Representatives for resolution. If the matter cannot be resolved by the Authorized
Representatives, any Party may submit the matter to the SRP General Manager
and the Party’s chief operating officer. If the matter cannot be resolved by the SRP
General Manager and the Party’s chief operating officer, any Party may bring suit
upon the matter, provided however, that it is expressly agreed that the venue shall
only be in Maricopa County Superior Court or its successor court. In the event a
dispute arises wherein the Salt River Pima Maricopa Indian Community is a party
then the Parties agree the venue shall be in a court of competent jurisdiction.
11.2
Upon reasonable request by a Participating Entity, SRP will allow such Participating
Entity to inspect the records documenting the costs of seeking the Temporary
Deviation Plan.
11.3. This Agreement shall be governed and construed in accordance with the laws of
the State of Arizona and any applicable federal law.
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Participating Entities‐SRP FCS Cost Share Agreement
11.4. In the event of any future dispute or action arising under this Agreement, the
prevailing Party shall be entitled to recover its reasonable attorneys’ fees and
costs incurred therein, including expert witness fees.
11.5. Pending the resolution of a dispute, the Parties shall proceed, to the extent legally
permissible, in a manner consistent with this Agreement, and shall make
payments required in accordance with the applicable provisions of this
Agreement. Amounts paid by a Party under this Subparagraph 11.4 during the
pendency of such dispute shall be subject to refund and adjustment upon a final
resolution of any dispute involving an amount due.
12.
UNCONTROLLABLE FORCES:
No party shall be considered to be in default in the performance of any of its obligations
hereunder if failure of performance is due to an uncontrollable force. The term
"uncontrollable force” shall mean any cause beyond the control of the party affected,
including but not limited to failure of facilities, flood, earthquake, tornado, storm, fire,
lightning, epidemic, war, riot, civil disturbance or disobedience, labor dispute, and action
or nonaction by or failure to obtain the necessary authorizations or approvals from any
governmental agency or authority or the electorate, labor or material shortage, sabotage
and restraint by Court order or public authority, which by exercise of due diligence and
foresight such party could not reasonably have been expected to avoid and which by
exercise of due diligence it shall be unable to overcome. Nothing herein shall be
construed so as to require either Party to settle any strike or labor dispute in which it is
involved. Either party rendered able to fulfill any obligation hereunder by reason of an
uncontrollable force shall exercise due diligence to remove such inability.
13.
NOTICE; CHANGE OF NAME OR ADDRESS:
13.1. All notices, requests, demands, and other communications under this Agreement
shall be in writing and shall be deemed to have been received either when
delivered or on the fifth business day following mailing, by registered or certified
mail, postage prepaid, return receipt requested, whichever is earlier, addressed
as set forth below:
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Participating Entities‐SRP FCS Cost Share Agreement
13.1.1.
If to SRP:
Salt River Project Agricultural Improvement and Power District
c/o Corporate Secretary
P.O. Box 52025
Phoenix, AZ 85072‐2205
with a copy to:
General Manager and CEO
Salt River Project Agricultural Improvement and Power District
P.O. Box 52025
Phoenix, AZ 85072‐2205
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Participating Entities‐SRP FCS Cost Share Agreement
13.1.2.
If to the City of Avondale:
City of Avondale
c/o City Manager
11465 W. Civic Center Drive
Avondale, AZ 85323
with a copy to:
____________________________
____________________________
____________________________
13.1.3.
If to the City of Chandler:
City of Chandler
c/o Utility Resource Manager
PO Box 4008, M.S. 905
Chandler, AZ 85244‐4008
with a copy to:
Chandler City Attorney
P O Box 4008, MS 602
Chandler, AZ 85225
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Participating Entities‐SRP FCS Cost Share Agreement
13.1.4.
If to the City of Glendale:
City of Glendale
c/o Water Resource Manager
5850 West Glendale Avenue, Ste. 431
Glendale, AZ 85301
with a copy to:
____________________________
____________________________
____________________________
13.1.5.
If to the City of Mesa:
City of Mesa
c/o Water Resources Department Director
PO Box 1466
Mesa, AZ 85211
with a copy to:
____________________________
____________________________
____________________________
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Participating Entities‐SRP FCS Cost Share Agreement
13.1.6.
If to the City of Peoria:
City of Peoria
c/o Water Services Director
8401 W. Monroe Street
Peoria, AZ 85345
with a copy to:
____________________________
____________________________
____________________________
13.1.7.
If to the City of Phoenix:
Water Resources Management Advisor
Water Services Department
City of Phoenix
200 West Washington Street, 12th Floor
Phoenix, Arizona 85003‐1611
With a copy to:
City Attorney
City of Phoenix
200 West Washington Street, 13th Floor
Phoenix, Arizona 85003‐1611
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Participating Entities‐SRP FCS Cost Share Agreement
13.1.8. If to the City of Scottsdale:
City of Scottsdale – Scottsdale Water
c/o Executive Director
9312 N. 94th Street
Scottsdale, AZ 85258
with a copy to:
____________________________
____________________________
____________________________
13.1.9.
If to the City of Tempe:
City of Tempe
c/o Municipal Utilities Director
31 E. 5th Street
Tempe, AZ 85281
with a copy to:
____________________________
____________________________
____________________________
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Participating Entities‐SRP FCS Cost Share Agreement
13.1.10.
If to the Town of the Gilbert:
Town of Gilbert
c/o Town Manager
50 E. Civic Center Drive
Gilbert, AZ 85296
with a copy to:
____________________________
____________________________
____________________________
13.1.11.
If to Roosevelt Water Conservation District:
Roosevelt Water Conservation District
PO Box 100
Higley, AZ 85212
with a copy to:
____________________________
____________________________
____________________________
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Participating Entities‐SRP FCS Cost Share Agreement
13.1.12.
If to the Buckeye Water Conservation and Drainage District:
Buckeye Water Conservation and Drainage District
c/o General Manager
205 Roosevelt
Buckeye, AZ 85326
with a copy to:
____________________________
____________________________
____________________________
13.1.13.
If to the Salt River Pima‐Maricopa Indian Community:
Salt River Pima‐Maricopa Indian Community:
c/o Public Works Director
1005 E. Osborn Road
Scottsdale, AZ 85256
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Participating Entities‐SRP FCS Cost Share Agreement
13.1.14 .
If to the Roosevelt Irrigation District:
Roosevelt Irrigation District
103 W. Baseline Road
Buckeye, AZ 85326
with a copy to:
____________________________
____________________________
____________________________
13.1.15 .
If to Freeport Minerals Corporation:
Freeport Minerals Corporation
c/o _____________________
333 N. Central Avenue
Phoenix, AZ 85004
with a copy to:
____________________________
____________________________
____________________________
13.2
Any Party may change the addressee or address to which communications or
copies are to be sent by giving notice of such change under Subparagraph 13.1.
14.
SEVERABILITY:
Should any part of this Agreement be declared, in a final decision by a court or tribunal of
competent jurisdiction, to be unconstitutional, invalid, or beyond the authority of either
Party to enter into or carry out, such decision shall not affect the validity of the remainder
of this Agreement, which shall continue in full force and effect, provided that the
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Participating Entities‐SRP FCS Cost Share Agreement
remainder of this Agreement, absent the excised portion, can be reasonably interpreted
to give effect to the intentions of the Parties.
15.
WAIVER:
The failure of any Party to insist on any one or more instances upon strict performance of
any of the obligations of the other pursuant to this Agreement or to take advantage of
any of its rights hereunder shall not be construed as a waiver of the performance of any
such obligation or the relinquishment of any such rights for the future, but the same shall
continue and remain in full force and effect.
16.
BINDING AGREEMENT:
All of the provisions of this Agreement shall be binding upon, and inure to the benefit of,
the Parties and their heirs, successors and assigns; provided, however, that no Party shall
assign its rights and obligations under this Agreement to another entity without the
written consent of the other Parties. Such consent to assignment shall not, however, be
unreasonably withheld, conditioned, or delayed.
17.
NO THIRD‐PARTY BENEFICIARIES:
This Agreement is solely for the benefit of the Parties and does not create nor shall it be
construed to create rights to any third party. No third party may enforce the terms and
conditions of this Agreement.
18.
NO PARTNERSHIP AND NO JOINT VENTURE:
Nothing contained in this Agreement shall be construed as creating a partnership or joint
venture between the Parties hereto. The covenants, obligations, and liabilities contained
in this Agreement are intended to be several and not joint or collective, and nothing
contained herein shall be construed to create an association, joint venture, agency, trust,
or partnership, or to impose a trust or partnership covenant, obligation, fiduciary duty, or
liability between the Parties. Each Party shall be individually responsible for its own
covenants, obligations, and liabilities as provided herein.
19.
AUTHORITY:
The undersigned representative of each Party certifies that he or she is fully authorized
by the Party whom he or she represents to enter into the terms and conditions of this
Agreement and to legally bind the Party to it.
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Participating Entities‐SRP FCS Cost Share Agreement
20.
CONFLICT OF INTEREST:
Pursuant to A.R.S. § 38‐511, a Party who is a political subdivision of the State may cancel
this Agreement, without penalty or further obligation, if any person significantly involved
in initiating, negotiating, securing, drafting or creating this Agreement on behalf of a Party
is, at any time while this Agreement is in effect, an employee of another Party in any
capacity, or a consultant to another Party with respect to the subject matter of this
Agreement. The cancellation shall be effective when written notice is received unless the
notice specifies a later time.
21.
ENTIRE AGREEMENT; MODIFICATION; COUNTERPARTS:
The terms, covenants and conditions of this Agreement constitute the entire Agreement
between the Parties, and no understandings or obligations not herein expressly set forth
shall be binding upon them. This Agreement may not be modified or amended in any
manner unless in writing and signed by the Parties. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[signatures on the following pages]
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Participating Entities‐SRP FCS Cost Share Agreement
IN WITNESS WHEREOF, this Agreement was executed by the Parties on the date first
hereinabove written.
SALT RIVER PROJECT AGRICULTURAL
IMPROVEMENT AND POWER DISTRICT
By:
Name: David C. Roberts
Title: Associate General Manager
Water Resources
APPROVED AS TO FORM
By:
Name: Patrick B. Sigl
Title: Supervising Attorney, Environment, Land
& Water Rights
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Participating Entities‐SRP FCS Cost Share Agreement
CITY OF AVONDALE
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
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Participating Entities‐SRP FCS Cost Share Agreement
CITY OF CHANDLER
By:
Name: Gregg Capps
Title: Utility Resource Manager
APPROVED AS TO FORM
By:
Name: Jenny J. Winkler
Title: Assistant City Attorney
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Participating Entities‐SRP FCS Cost Share Agreement
CITY OF GLENDALE
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
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Participating Entities‐SRP FCS Cost Share Agreement
CITY OF MESA
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
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Participating Entities‐SRP FCS Cost Share Agreement
CITY OF PEORIA
By:
Name:
Title:
ATTEST
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
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Participating Entities‐SRP FCS Cost Share Agreement
CITY OF PHOENIX
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
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Participating Entities‐SRP FCS Cost Share Agreement
CITY OF SCOTTSDALE
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
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Participating Entities‐SRP FCS Cost Share Agreement
CITY OF TEMPE
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
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Participating Entities‐SRP FCS Cost Share Agreement
TOWN OF GILBERT
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
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Participating Entities‐SRP FCS Cost Share Agreement
ROOSEVELT WATER CONSERVATION DISTRICT
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
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Participating Entities‐SRP FCS Cost Share Agreement
BUCKEYE WATER CONSERVATION AND
DRAINAGE DISTRICT
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
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Participating Entities‐SRP FCS Cost Share Agreement
SALT RIVER PIMA‐MARICOPA INDIAN
COMMUNITY
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
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Participating Entities‐SRP FCS Cost Share Agreement
ROOSEVELT IRRIGATION DISTRICT
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
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Participating Entities‐SRP FCS Cost Share Agreement
FREEPORT MINERALS CORPORATION
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
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Participating Entities‐SRP FCS Cost Share Agreement
Exhibit A
Nonbinding Participating Entities‐SRP Term Sheet
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FCS Temporary Deviation Term Sheet
SUMMARY OF TERMS
Summary of Principle Terms for Agreements Among SRP and the Participating Entities to
Obtain and Implement a Temporary Deviation to the Water Control Plan For
Modified Roosevelt Dam
This term sheet (“Term Sheet”) summarizes the principle terms for SRP and the Participating
Entities (defined below) to (1) share costs for SRP to seek and obtain approval from the U.S. Army
Corps of Engineers (“Corps of Engineers”) and the Bureau of Reclamation (“Reclamation”) for a
temporary deviation to the Water Control Plan (“Cost Share Agreement”) and (2) describe the
principle terms for an agreement on how SRP will operate the Flood Control Space under the
Temporary Deviation Plan (“Temporary Operating Agreement”). This term sheet is nonbinding,
subject to legal review, and negotiation of final written agreements to implement the terms
described herein as well as approval of such agreements by the appropriate governing boards,
councils, or executive management. By executing this Term Sheet, the undersigned agrees to
seek approval of the agreements from their appropriate and respective governing boards,
councils, or executive management so long as the agreements are prepared consistent with the
principle terms provided herein. The capitalized terms in this Term Sheet are defined in
Attachment A.
1.
PARTIES TO THE AGREEMENTS:
Cities of Avondale, Chandler, Glendale, Mesa, Peoria, Phoenix, Scottsdale, and Tempe;
Town of Gilbert; Roosevelt Water Conservation District, Buckeye Water Conservation and
Drainage District, Roosevelt Irrigation District, Salt River Pima-Maricopa Indian
Community, and Freeport McMoRan Inc. (“Participating Entities”); Salt River Valley Water
Users' Association and the Salt River Project Agricultural Improvement and Power District
(collectively “SRP”). SRP and the Participating Entities are referred to collectively as
“Parties”.
2.
DESCRIPTION OF PROPOSED TEMPORARY DEVIATION PLAN:
SRP will propose and seek approval from the Corps of Engineers and Reclamation to
authorize SRP to operate the flood control space in Modified Roosevelt Dam (“Flood
Control Space”) under the Temporary Deviation Plan. Under the Temporary Deviation
Plan, SRP may declare a Temporary Deviation Event once a year in a maximum of three
(3) years during a five (5) year period (“Temporary Deviation Period”). The Temporary
Deviation Period is expected to begin in calendar year 2023. During a Temporary
Deviation Event, SRP must evacuate water from the first five (5) feet of the Flood Control
Space (“Temporary Deviation Space,” as generally illustrated in Attachment B) within one
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FCS Temporary Deviation Term Sheet
hundred and twenty (120) days after such water first occupies such space. SRP shall
measure the volume of water it will be evacuating from the Temporary Deviation Space
during a Temporary Deviation Event, notify and deliver such water (“Temporary Deviation
Water”) to the Parties according to the share of Temporary Deviation Water allocated to
each Party.
3.
COST SHARE AGREEMENT:
The Cost Share Agreement will describe (1) the estimated costs SRP is expected to incur
to seek and obtain approval for the Temporary Deviation Plan, (2) how the costs will be
shared among the Parties, and (3) the process for the Participating Entities to pay their
cost share.
a.
The Cost Share Agreement is expected to be executed by the Parties in June 2021
and will become effective when executed. The Cost Share Agreement will
terminate when the Temporary Deviation Plan is approved by the Corps of
Engineers and Reclamation. In the event the Corps of Engineers and Reclamation
do not approve the Temporary Deviation Plan, the Parties may terminate the Cost
Share Agreement by mutual written agreement.
b.
SRP estimates it will cost $1,211,549 for SRP to complete the work necessary to
seek and obtain approval and authorization for the Temporary Deviation Plan.
These costs include those for environmental and cultural resources compliance,
among others. An itemized list of estimated costs is included as Attachment C. In
the event the costs referenced in Attachment C increase above a total of
$1,500,000, SRP and the Participating Entities shall meet and confer to discuss
whether to incur such increased costs. SRP will notify the Participating Entities of
unforeseen costs within a reasonable time. The Parties will share unforeseen costs
under terms set forth in the Cost Share Agreement.
c.
Each Participating Entity shall pay its share of costs based on the percentage of
the Temporary Deviation Water that will be allocated to that Participating Entity.
Attachment D shows the share and estimated costs allocated to the Participating
Entity. SRP shall send in invoice to each Participating entity for their cost share
within five (5) days after execution of the Cost Share Agreement and the
Participating Entities shall pay such invoice within thirty (30) days after SRP sends
such invoice.
4.
TEMPORARY OPERATING AGREEMENT:
The Temporary Operating Agreement will describe (1) how SRP will operate the Flood
Control Space under the Temporary Deviation Plan, (2) how it will evacuate and deliver
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FCS Temporary Deviation Term Sheet
Temporary Deviation Water from the Temporary Deviation Space to the Parties, and (3)
the fees each Participating entity shall pay during the Temporary Deviation Period.
a.
Term. The Temporary Operating Agreement will become effective upon
execution by the Parties and approval of the Temporary Deviation Plan by the
Corps of Engineers and Reclamation. It will terminate following the conclusion of
(1) the third Temporary Deviation Event, final delivery of Temporary Deviation
Water, and payment of monies owed, or (2) the Temporary Deviation Period,
whichever is sooner.
b.
Spill Conditions. SRP shall operate the Flood Control Space in Modified Roosevelt
Dam under Spill Conditions while the (1) inflows into the Salt River Reservoir
System exceed SRP Deliveries (i.e. water level in the Temporary Deviation Space
is increasing), and (2) water level in Modified Roosevelt Dam is above the
Temporary Deviation Space.
c.
Temporary Deviation Water. SRP shall (1) measure the highest elevation that
water levels reach in the Temporary Deviation Space at the point where SRP
Deliveries exceed inflows into the Salt River Reservoir System and (2) calculate
such volume and apportion such water to the Participating Entities as Temporary
Deviation Water. Attachment D includes the percentage of Temporary Deviation
Water that will be apportioned to the Participating Entity. If additional
precipitation events occur during a Temporary Deviation Event and additional
water enters the Temporary Deviation Space, such water volume will be
calculated and apportioned to the Participating Entities using the same
percentages.
d.
Ordering and Delivery of Temporary Deviation Water. Participating Entities may
order Temporary Deviation Water during a Temporary Deviation Event by
requesting delivery prior to five (5) days before the end of the Temporary
Deviation Event. SRP shall deliver and transport Temporary Deviation Water to
Participating Entities on a mutually agreed upon schedule and under the
applicable delivery agreement. SRP water delivery obligations to shareholders and
contractors of the Salt River Valley Water Users' Association shall take priority
over delivery of Temporary Deviation Water if any delivery capacity limitations
arise. Any unused Temporary Deviation Water remaining at the end of a
Temporary Deviation Event will be evacuated on the last day of such event and
used to meet SRP Deliveries.
4
FCS Temporary Deviation Term Sheet
e.
Water Accounting and Reporting. SRP shall provide water accounting for the total
volume of Temporary Deviation Water evacuated, apportioned, and delivered
under the Temporary Operating Agreement. SRP shall send an initial report to
Participating Entities within five (5) days after the time that the amount of
Temporary Deviation Water is determined and send updated reports at the end
of each month during a Temporary Deviation Event.
f.
Use of Temporary Deviation Water. Participating Entities and SRP may directly use,
share between participants, exchange, or store underground Temporary
Deviation Water pursuant to Arizona law.
g.
Fees. Participating Entities shall pay a one-time fee not to exceed three thousand
two hundred fifty dollars ($3,250.00) for creation of accounts to track volumes
and delivery of Temporary Deviation Water billed at execution of the Temporary
Operating Agreement. In a year that SRP declares a Temporary Deviation Event,
Participating Entities shall pay an administrative fee of four thousand four
hundred and two dollars ($4,402.00), adjusted annually to account for inflation or
other cost changes, for that year to administer the water accounting and reporting
for the Temporary Deviation Event. Fees shall be revisited if a long-term program
is developed for the Flood Control Space.
h.
Water Transportation Fees. Participating Entities will not be charged any
applicable fees for transportation of Temporary Deviation Water during the
Temporary Deviation Period. Fees shall be revisited if a long-term program is
developed for the Flood Control Space.
i.
Transmission Losses. Transmission Losses shall be deducted from the Temporary
Deviation Water apportioned to each Participating Entity at an amount of 6.3
percent at the time of scheduled delivery, which is deemed for the purposes of
the Agreement to be the amount of water lost through transmission from
Modified Roosevelt Dam to Granite Reef Dam. Participating entities shall not be
charged for transmission losses between Granite Reef Dam and the point of
delivery. Transmission losses within SRP’s water delivery system below Granite
Reef Dam shall be revisited if a long-term program is developed for the Flood
Control Space.
[signatures on the following pages]
5
FCS Temporary Deviation Term Sheet
SALT RIVER PROJECT
By:
Name: David C. Roberts
Title: Associate General Manager
Water Resources
Date: May 7, 2021
6
FCS Temporary Deviation Term Sheet
6
FCS Temporary Deviation Term Sheet
CITY OF MESA
By:
Name:
Title:
Date:
Jake West
Water Resources Department Director
March 7, 2021
6
FCS Temporary Deviation Term Sheet
CITY OF PEORIA
By:
Name:
Title:
Date:
David Burks
Deputy Water Services Director
04/08/2021
6
FCS Temporary Deviation Term Sheet
CITY OF TEMPE
By:
Name:
Title:
Date:
Terrance Piekarz
Municipal Utilities Director
April 9, 2021
6
FCS Temporary Deviation Term Sheet
TOWN OF GILBERT
By:
Name:
Title:
Date:
Patrick S. Banger
Town Manager
April 8, 2021
6
FCS Temporary Deviation Term Sheet
BUCKEYE WATER CONSERVATION &
DRAINAGE DISTRICT
By:
Name:
Title:
Date:
Noel Carter
General Manager
4/6/2021
7
FCS Temporary Deviation Term Sheet
Attachment A
Definitions
Flood Control Space: Reservoir space behind Modified Roosevelt Dam corresponding to the
approximately 24 feet of elevation from 2150.78 feet above mean sea level to 2174.87 feet above
mean sea level. The Flood Control Space is operated by SRP under a water control agreement
with the U.S. Army Corp of Engineers (“Corps of Engineers”) and the U.S. Bureau of Reclamation
(“Reclamation”).
Spill Conditions: The conditions described in Sections 4.32, 7.4, and 7.6 of the 1993 Operating
Agreement for Additional Active Conservation Capacity at Modified Roosevelt Dam under which
SRP delivers spill water to the entities in Appendix 1 of that agreement (also certain Participating
Entities) where such water does not count against their respective contractual entitlements.
SRP Deliveries: SRP water deliveries, including those from the Salt River Reservoir System, to SRP
shareholders and contractors.
Temporary Deviation Event: An event to regulate water in the Flood Control Space at Modified
Roosevelt Dam under which SRP must evacuate water occupying the Temporary Deviation Space
within one-hundred and twenty days (120) of such water first occupying such space.
Temporary Deviation Period: Five (5) year period under which SRP may declare a Temporary
Deviation Event in three (3) of those five (5) years.
Temporary Deviation Plan: A planned deviation in flood control operations as approved by the
Corps of Engineers and Reclamation that authorizes SRP to declare one (1) Temporary Deviation
Event per year, in three (3) out of five (5) years during the Temporary Deviation Period.
Temporary Deviation Space: Reservoir space behind Modified Roosevelt Dam constituting the
first five (5) feet of the Flood Control Space.
Temporary Deviation Water: Water that SRP evacuates from the Temporary Deviation Space
during a Temporary Deviation Event.
Water Control Plan: Chapter 7 of the document entitled “Water Control Manual, Modified
Roosevelt Dam (Theodore Roosevelt Dam), Salt and Gila Rivers, Arizona” dated September 1997
and prepared by the Corps of Engineers.
8
FCS Temporary Deviation Term Sheet
Attachment B
9
FCS Temporary Deviation Term Sheet
Attachment C
Itemized Estimated Costs of Seeking Authorization of Temporary Deviation Plan
*Cost estimates for environmental and cultural resource compliance will be further refined by
Reclamation and the Army Corps prior to invitation of environmental and cultural resource compliance
activities.
Planning Costs (Reclamation)
$78,000
Planning Costs (USACE)
$50,000
Technical Evaluation Cost
$233,549
Env & Cultural Costs to-date
$163,000
Legal Analysis-Phase 1
$25,000
Env & Cultural Compliance Cost*
$637,000
Legal Analysis-Phase 2
$25,000
Total
FY21:
Investigation=
$549k +/- $109k
FY22:
Implementation=
$662k +/- $132k
$1,211,549 +/- $242k (20%)
Cost of Temporary Deviation
10
FCS Temporary Deviation Term Sheet
Attachment D
Participating Entity
City of Avondale
Percentage of Temporary
Deviation Water
8%
Participant Acre-Feet of
Temporary Deviation Space
8,500 acre-feet
Expected Participant Costs
$94,809
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FCS Temporary Deviation Term Sheet
Attachment D
Participating Entity
City of Glendale
Percentage of Temporary Deviation Water
5%
Participant Acre-Feet of Temporary
Deviation Space
5,500 acre-feet
Expected Participant Costs
$61,347
10
FCS Temporary Deviation Term Sheet
Attachment D
Participating Entity
City of Mesa
Percentage of Temporary
Deviation Water
4%
Participant Acre-Feet of
Temporary Deviation Space
4,800 acre feet
Expected Participant Costs
$53,539
10
FCS Temporary Deviation Term Sheet
Attachment D
Participating Entity
City of Peoria
Percentage of Temporary
Deviation Water
2%
Participant Acre-Feet of
Temporary Deviation Space
2,500 acre feet
Expected Participant Costs
$27,885
10
FCS Temporary Deviation Term Sheet
Attachment D
Participating Entity
City of Phoenix
Percentage of Temporary
Deviation Water
18%
Participant Acre‐Feet of
Temporary Deviation Space
20,000 acre feet
Expected Participant Costs
$223,080
10
FCS Temporary Deviation Term Sheet
Attachment D
Participating Entity
City of Tempe
Percentage of Temporary
Deviation Water
2%
Participant Acre-Feet of
Temporary Deviation Space
2,700 acre feet
Expected Participant Costs
$30,116
10
FCS Temporary Deviation Term Sheet
Attachment D
Participating Entity
Town of Gilbert
Percentage of Temporary
Deviation Water
4%
Participant Acre-Feet of
Temporary Deviation Space
4,000 acre feet
Expected Participant Costs
$44,616
10
FCS Temporary Deviation Term Sheet
Attachment D
Participating Entity
Buckeye Water Conservation &
Drainage District
Percentage of Temporary
Deviation Water
5%
Participant Acre-Feet of
Temporary Deviation Space
5,000 acre feet
Expected Participant Costs
$55,770
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FCS Temporary Deviation Term Sheet
Attachment D
Participating Entity
Roosevelt Irrigation District
Percentage of Temporary
Deviation Water
10%
Participant Acre-Feet of
Temporary Deviation Space
11,000 acre-feet
Expected Participant Costs
$122,694
10
FCS Temporary Deviation Term Sheet
Attachment D
Participating Entity
Salt River Pima-Maricopa Indian
Community
Percentage of Temporary
Deviation Water
6%
Participant Acre-Feet of
Temporary Deviation Space
6,000 acre feet
Expected Participant Costs
$66,924
33
Participating Entities‐SRP FCS Cost Share Agreement
Exhibit B
Definitions
Authorized Representatives: Representatives of the Parties appointed to administer the
provisions of this Agreement.
Corp of Engineers: United States Army Corp of Engineers which is authorized under Section 7 of
the Flood Control Act of 1944 to prescribe regulations for the use of the Flood Control Space in
Modified Roosevelt Dam allocated for flood control purposes.
Flood Control Space: Water control space in Modified Roosevelt Dam under the jurisdiction of
the Corps of Engineers under Section 7 of the Flood Control Act of 1944. Such Flood Control
Space corresponds to an elevation from 2150.78 feet above mean sea level to 2174.87 feet above
mean sea level.
Modified Roosevelt Dam: Theodore Roosevelt Dam as modified under Plan 6 to increase the
height approximately 77 feet.
Modified Roosevelt Dam Operating Agreement: Agreement entitled “Operating Agreement for
Additional Active Conservation Capacity at Modified Theodore Roosevelt Dam among The Salt
River Project Agricultural Improvement and Power District, Salt River Valley Water Users’
Association, United States Bureau of Reclamation, Flood Control District of Maricopa County, and
the Arizona Cities of Chandler, Glendale, Mesa, Phoenix, Scottsdale, and Tempe” dated
December 14, 1993 that authorized and provided for SRP’s operations of Modified Roosevelt
Dam as described in such agreement.
Modified Roosevelt Reservoir: The reservoir backed up by Modified Roosevelt Dam.
Participating Entities: Arizona cities of Avondale, Chandler, Glendale, Mesa, Peoria, Phoenix,
Scottsdale, and Tempe, Town of Gilbert, Roosevelt Water Conservation District, Buckeye Water
Conservation and Drainage District, Salt River Pima‐Maricopa Indian Community, Roosevelt
Irrigation District, and Freeport Minerals Corporation.
Reclamation: United States Department of the Interior’s Bureau of Reclamation.
34
Participating Entities‐SRP FCS Cost Share Agreement
Temporary Deviation Plan: A planned deviation in flood control operations as authorized by the
Corps of Engineers and Reclamation to extend the required evacuation period for water
occupying the Temporary Deviation Space from twenty (20) days to one hundred and twenty
(120) days of such water first occupying the Temporary Deviation Space.
Temporary Deviation Space: The reservoir space at Modified Roosevelt Dam constituting the first
five (5) feet of the Flood Control Space which corresponds to an elevation greater than 2150.78
feet and less than 2155.78 feet.
Temporary Deviation Water: Water that occupies the Temporary Deviation Space and is subject
to the one hundred and twenty (120) day evacuation period as provided in the Water Control
Plan.
Water Control Agreement: The agreement among Reclamation, the Salt River Project Agricultural
Improvement and Power District and the Corp of engineers entitled “Water Control Agreement
(WCA) among the Bureau of Reclamation (USBR), the Salt River Project Agricultural Improvement
and Power District (SRP), and the Corps of Engineers (COE)” dated November 5, 1996 which
authorized SRP’s operations of Modified Roosevelt Dam for flood control and other purposes
under the Water Control Plan.
Water Control Manual: The Water Control Manual entitled “Water Control Manual, Modified
Roosevelt Dam (Theodore Roosevelt Dam), Salt and Gila Rivers, Arizona” dated September 1997
and prepared by the Corps of Engineers which contains the Water Control Plan in Chapter 7 which
describes how SRP shall operate Modified Roosevelt Dam for flood control and other purposes.
Water Control Plan: Chapter 7 of the Water Control Manual which describes how SRP shall
operate Modified Roosevelt Dam, including the Flood Control Space, for flood control and other
purposes.
35
Participating Entities‐SRP FCS Cost Share Agreement
Exhibit C
Itemized Estimated Costs of Seeking Authorization of Temporary Deviation Plan
*Cost estimates continue to be refined through planning with Reclamation and Corps of Engineers. A +/‐
20% contingency is identified as appropriate to include to identify that changes in anticipated costs may
occur.
36
Participating Entities‐SRP FCS Cost Share Agreement
Exhibit D
Party
Acre‐Feet of Temporary
Deviation Space
Percentage of
Temporary Deviation
Water
Expected Cost
Avondale
8,500
7.83% $ 94,809
BWCDD
5,000
4.60% $ 55,770
Chandler
5,500
5.06% $ 61,347
Freeport Minerals
3,000
2.76% $ 33,462
Gilbert
4,000
3.68% $ 44,616
Glendale
5,500
5.06% $ 61,347
Mesa
4,800
4.42% $ 53,539
Peoria
2,500
2.30% $ 27,885
Phoenix
20,000
18.41% $ 223,080
RID
11,000
10.13% $ 122,694
RWCD
11,420
10.51% $ 127,379
Scottsdale
2,700
2.49% $ 30,116
SRP Shareholders
16,000
14.73% $ 178,464
SRPMIC
6,000
5.52% $ 66,924
Tempe
2,700
2.49% $ 30,116
Total
108,620
100% $ 1,211,549
Cost Contingency
(20%)
+/‐$242,000