SRP FCS Accounting and Delivery Agreement
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Roosevelt Flood Control Space Agreement Page 1
AGREEMENT FOR ACCOUNTING AND DELIVERY OF WATER MADE AVAILABLE IN THE
MODIFIED ROOSEVELT DAM FLOOD CONTROL SPACE UNDER A TEMPORARY DEVIATION
TO THE WATER CONTROL PLAN
AMONG
VARIOUS PARTICIPATING ENTITIES,
SALT RIVER VALLEY WATER USERS' ASSOCIATION,
AND
SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT
1.
PARTIES:
This Agreement for Accounting and Delivery of Water Made Available in the Modified
Roosevelt Dam Flood Control Space Under a Temporary Deviation to the Water Control
Plan (“Agreement”), executed this ___ day of _________, 2023 is by and among the
following entities that execute this Agreement as provided in Subparagraph 5.16: 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; Roosevelt Irrigation District; the Salt River Pima-Maricopa Indian
Community, a sovereign tribe located in the Phoenix metropolitan area; Freeport
Minerals Corporation, a mining company with headquarters in Phoenix, Arizona
(“Participating Entities”, as defined in Subparagraph 5.16); the Salt River Valley Water
Users' Association, an Arizona corporation (“Association”); and the Salt River Project
Agricultural Improvement and Power District, a political subdivision of the State of
Arizona (“District”). The Association and District are referred to collectively as “SRP”. The
Participating Entities and SRP are referred to individually as “Party” and collectively as
“Parties.”
2.
RECITALS:
This Agreement is made regarding the following:
2.1.
Shareholders of the Association are owners of land within the Salt River Reservoir
District having valid appropriative rights to waters of the Salt and Verde Rivers.
The Association is responsible for the delivery to shareholder lands of waters
developed, controlled, or stored by it for the benefit of such lands. The
Association is the agent of the District in the operation of the water delivery
system of the Salt River Project, a federal reclamation project that includes
Theodore Roosevelt Dam, pursuant to an agreement dated March 22, 1937, as
Roosevelt Flood Control Space Agreement Page 2
amended by agreements dated February 28, 1944, and September 12, 1949, and
is also the agent of the United States of America in the operation of said federal
reclamation project pursuant to a contract dated September 6, 1917.
2.2.
Congress authorized the United States Bureau of Reclamation (“Reclamation” as
defined in Subparagraph 5.17 below) to construct the Central Arizona Project
(“CAP”) including construction of “Orme Dam or a suitable alternative” as part of
the CAP under the Colorado River Basin Act of 1968. The Central Arizona Water
Conservation Study (“CAWCS”) examined alternatives to Orme Dam. The
Reclamation Safety of Dams Act of 1978 widened the focus of CAWCS to include
the evaluation of the structural safety of Reclamation dams. The United States
Department of the Interior selected one of the CAWCS alternatives known as “Plan
6” as the proposed action for purposes of detailed planning, design, and
completion of the CAP. Plan 6 includes the planning and construction of modified
Roosevelt Dam (“Modified Roosevelt Dam” as defined in Subparagraph 5.12
below) on the Salt River to provide flood control, water conservation, and dam
safety, along with other project purposes and benefits consistent with the CAWCS.
2.3.
SRP, Reclamation, the Flood Control District of Maricopa County, and the Arizona
Cities of Chandler, Glendale, Mesa, Phoenix, Scottsdale, and Tempe entered into
the Operating Agreement for Additional Active Conservation Capacity at Modified
Roosevelt Dam on December 14, 1993 (“Modified Roosevelt Dam Operating
Agreement” as defined in Subparagraph 5.13 below) to establish principles
governing storage capacity made available at Modified Roosevelt Dam under Plan
6. Under the Modified Roosevelt Dam Operating Agreement, the parties to that
agreement recognized claims to flood and surplus waters of the Salt and Verde
Rivers by certain entities who were listed in Appendix 1 to that agreement.
Certain of those entities listed in Appendix 1 are Parties to this Agreement
(“Participating Entities” as defined in Subparagraph 5.16).
2.4.
Construction of additional storage at Modified Roosevelt Dam was completed in
1996 and raised the dam a total of seventy-seven (77) feet. As part of the
modifications to Roosevelt Dam, certain capacity was created between elevation
2,150.78 feet above mean sea level to 2,174.87 feet above mean sea level for flood
control purposes (“Flood Control Space” as defined in Subparagraph 5.9 below)
(these elevations are based on the most recent silt survey and are subject to
change based on results of subsequent silt surveys). Water entering the Flood
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Control Space is under the jurisdiction of the United States Army Corps of
Engineers (“Corps of Engineers” as defined in Subparagraph 5.4 below) under
Section 7 of the Flood Control Act of 1944. SRP, Reclamation, and Corps of
Engineers entered into a Water Control Agreement dated November 5, 1996
(“Water Control Agreement” as defined in Subparagraph 5.30 below) and agreed
to comply with the flood control operating criteria contained in the Corps of
Engineers’ Water Control Manual for Modified Roosevelt Dam updated in
September 1997 (“Water Control Manual” as defined in Subparagraph 5.31
below). Chapter 7 of the Water Control Manual contains the Water Control Plan
which describes how SRP was to operate Modified Roosevelt Dam (“Water Control
Plan” as defined in Subparagraph 5.32 below). Under the Water Control Plan, SRP
is required to evacuate water entering the Flood Control Space within twenty (20)
days after such water first enters the Flood Control Space.
2.5.
Section 7-14(c) of the Water Control Plan contemplates planned instances which
allow deviations from normal regulation. Under the provisions of Section 7-14(c)
of the Water Control Plan and Section 7 of the Water Control Agreement, SRP,
Reclamation, and the Corps of Engineers developed the parameters of a planned
deviation wherein SRP, among other things, is authorized to extend the
evacuation period for water entering the first five feet of the Flood Control Space
from twenty (20) days to one hundred and twenty (120) days, beginning in
calendar year 2023, for three out of five consecutive years (“Temporary Deviation
Plan” as defined in Subparagraph 5.27 below).
2.6.
The Parties executed an agreement entitled “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 the Salt River Project
Agricultural Improvement and Power District” dated October 12, 2021 (“Cost
Share Agreement” as defined in Subparagraph 5.5 below) to determine, among
other things, the amount of funding contributed by each Party to pay the costs
associated with development and approval of the Temporary Deviation Plan.
2.7.
The Corps of Engineers and Reclamation have issued or will issue a decision
document under the National Environmental Policy Act authorizing the
Temporary Deviation Plan at Modified Roosevelt Dam as contemplated under
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Section 7-14(c) of the 1997 Water Control Manual (“Temporary Deviation
Authorization”).
2.8.
The purpose of this Agreement is to describe (1) how SRP will operate the Flood
Control Space under the Temporary Deviation Plan, (2) how SRP will evacuate and
deliver 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.
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 following terms, when used with initial capitalization, whether in singular or plural,
shall have the meaning specified as follows:
5.1.
ADWR: Arizona Department of Water Resources.
5.2.
Authorized Representatives: Representatives of the Parties appointed to
administer the provisions of this Agreement.
5.3.
Calendar Year: The calendar years beginning January 1 and ending December 31
of each year during the term of this Agreement.
5.4.
Corps of Engineers: United States Army Corps 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.
Roosevelt Flood Control Space Agreement Page 5
5.5.
Cost Share Agreement: The agreement among SRP and the Participating Entities
entitled “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 the Salt River Project Agricultural Improvement and Power District”
dated October 12, 2021 wherein the parties agreed to share costs to develop the
Temporary Deviation as provided in the Cost Share Agreement. The Cost Share
Agreement is included as Exhibit 5.5.
5.6.
Effective Date: The date this Agreement becomes effective as described in
Subparagraph 7.1.
5.7.
Evacuation Deadline: The last day and time that water must be evacuated from
the Temporary Deviation Space under a Temporary Deviation Event. The
Evacuation Deadline shall be set as 11:59 p.m. on the day that is one hundred and
twenty days (120) from when water first enters the Temporary Deviation Space
under a Temporary Deviation Event. For instance, if water first enters the
Temporary Deviation Space at 9:21 a.m. on March 3rd of a Calendar Year, the
Evacuation Deadline shall be 11:59 p.m. on July 1 of the same Calendar Year.
5.8.
Execution Date: The date SRP and a Participating Entity executes this Agreement.
5.9.
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 the Water Control Agreement with the Corps of Engineers
and Reclamation.
5.10. Granite Reef: Granite Reef Diversion Dam.
5.11. Joint Use Agreement: Agreement among the District, Association, and the Cities
of Chandler, Glendale, Mesa, Phoenix, Scottsdale, and Tempe entitled
“Agreement Concerning Beneficial Use of Water in Temporary Active
Conservation Capacity at Modified Roosevelt Dam among the Salt River Project
Agricultural Improvement and Power District, the Salt River Valley Water Users’
Association and the Arizona Cities of Chandler, Glendale, Mesa, Phoenix,
Scottsdale, and Tempe” dated February 18, 1994.
Roosevelt Flood Control Space Agreement Page 6
5.12. Modified Roosevelt Dam: Theodore Roosevelt Dam as modified under Plan 6 to
increase the height approximately 77 feet.
5.13. 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.
5.14. Modified Roosevelt Reservoir: The reservoir behind Modified Roosevelt Dam.
5.15. Modified Roosevelt Reservoir Inflows: Inflows from Tonto Creek and the Salt River
that enter Modified Roosevelt Reservoir.
5.16. Participating Entities: The following entities that execute this Agreement: 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; the Salt River
Pima-Maricopa Indian Community; and Freeport Minerals Corporation.
5.17. Reclamation: United States Bureau of Reclamation.
5.18. Salt River Reservoir System: The system of four dams on the Salt River upstream
of the confluence with the Verde River and their associated reservoirs that are
operated by SRP.
5.19. Spill Conditions: The conditions described in Sections 4.32, 7.4, and 7.6 of the
Modified Roosevelt Dam Operating Agreement under which SRP delivers spill
water to the entities in Appendix 1 of that agreement (including to certain
Participating Entities) where such water does not count against their respective
contractual entitlements. These sections are shown on Exhibit 5.19.
Roosevelt Flood Control Space Agreement Page 7
5.20. SRP Deliveries: SRP water deliveries, including those from the Salt River Reservoir
System, to SRP shareholders and other entities under SRP’s governing documents
and contracts.
5.21. Temporary Deviation Account: An account for each Participating Entity to track
apportionment and delivery of Temporary Deviation Water during a Temporary
Deviation Event.
5.22. Temporary Deviation Account Administrative Fee: Fee paid by Participating
Entities to SRP as described in Subparagraph 14.2.
5.23. Temporary Deviation Account Creation Fee: Fee paid by Participating Entities to
SRP as described in Subparagraph 14.1.
5.24. Temporary Deviation Authorization: The decision document issued by the Corps
of Engineers under the National Environmental Policy Act and as contemplated by
Section 7-14(c) of the Water Control Plan and Section 7 of the Water Control
Agreement authorizing the Temporary Deviation Plan. The Temporary Deviation
Authorization is included as Exhibit 5.24.
5.25. Temporary Deviation Event: An event to regulate water in the Flood Control Space
at Modified Roosevelt Dam under which SRP must evacuate water entering the
Temporary Deviation Space within one hundred and twenty days (120) of such
water first entering such space.
5.26. Temporary Deviation Period: Five (5) consecutive year period under which SRP
may declare a Temporary Deviation Event in three (3) of those five (5) years.
5.27. Temporary Deviation Plan: A planned deviation in flood control operations as
approved by the Corps of Engineers 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.
5.28. Temporary Deviation Space: Reservoir space behind Modified Roosevelt Dam
constituting the first five (5) feet of the Flood Control Space as generally illustrated
in Exhibit 5.28.
Roosevelt Flood Control Space Agreement Page 8
5.29. Temporary Deviation Water: Water that SRP evacuates from the Temporary
Deviation Space during a Temporary Deviation Event.
5.30. Water Control Agreement: The agreement among Reclamation, the Salt River
Project Agricultural Improvement and Power District and the Corps 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.
5.31. 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.
5.32. Water Control Plan: Chapter 7 of the Water Control Manual which describes how
SRP shall operate Modified Roosevelt Dam for flood control and other purposes.
6.
SCOPE:
This Agreement will describe (1) how SRP will operate the Flood Control Space under the
Temporary Deviation Plan, (2) how SRP will evacuate and deliver 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.
7.
EFFECTIVE DATE AND TERM OF AGREEMENT:
7.1.
This Agreement shall become effective among the Parties (SRP and the
Participating Entities) on the later of the following two dates: (1) the Execution
Date, and (2) the date the Corp of Engineers approves the Temporary Deviation
Plan by issuing the Temporary Deviation Authorization.
7.2.
This Agreement shall terminate on the earlier of the following:
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7.2.1. Date the third Temporary Deviation Event concludes, including, final
delivery of Temporary Deviation Water or at the expiration of the 120 days,
whichever occurs first, and upon receipt of monies owed under Paragraph
14; and
7.2.2. Date the Temporary Deviation Period concludes, including, final delivery
of Temporary Deviation Water or at the expiration of the 120 days,
whichever occurs first, and upon receipt of monies owed under Paragraph
14 for the last Temporary Deviation Event.
8.
AUTHORIZED REPRESENTATIVES:
Within thirty (30) days after execution of this Agreement, each Party shall designate in
writing 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 thirty (30) 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. Notwithstanding the
provisions of Paragraph 21, electronic mail with read receipt requested will be an
accepted form of written notice under this Paragraph for designation of Authorized
Representatives, alternates, and changes to those designations.
9.
EXISTING RIGHTS:
9.1.
Nothing in this Agreement shall create, confirm, or adversely affect any Party’s
rights to the storage, delivery, or use of water from the Gila River System to the
extent such rights existed prior to this Agreement.
9.2.
The Parties agree that the Temporary Deviation Plan only authorizes SRP to extend
the period under which SRP is required to evacuate water from the Flood Control
Space and such extension of the evacuation period does not constitute storage of
water under Arizona law.
9.3.
This Agreement shall not be construed to create, confirm, transfer, forfeit,
abandon or otherwise affect water rights under Arizona law.
9.4.
Certain Parties to this Agreement are parties to the Joint Use Agreement and
those Parties agree that (1) nothing in this Agreement is inconsistent with the
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provisions of the Joint Use Agreement, (2) they reserve any rights provided to
them under the Joint Use Agreement, and (3) nothing in this Agreement shall
modify the Joint Use Agreement.
9.5.
This Agreement does not modify or amend any rights, privileges, or obligations
described in the Modified Roosevelt Dam Operating Agreement.
10.
SRP OPERATION OF THE FLOOD CONTROL SPACE UNDER THIS AGREEMENT:
10.1. SRP shall operate the Flood Control Space consistent with the Temporary
Deviation Plan and this Paragraph 10. Under the Water Control Plan, prior to
authorization of the Temporary Deviation, SRP was required to evacuate water
entering the Flood Control Space within twenty (20) days after such water entered
the Flood Control Space. Under the Temporary Deviation Plan, SRP shall operate
the Flood Control Space as follows:
10.1.1. SRP shall continue to evacuate water from the portion of the Flood Control
Space above the Temporary Deviation Space within twenty (20) days after
such water enters such space.
10.1.2. SRP may declare a Temporary Deviation Event once a year in a maximum
of three (3) years during the five (5) year Temporary Deviation Period.
10.1.3. During a Temporary Deviation Event, SRP shall evacuate water entering
the Temporary Deviation Space no later than one hundred and twenty
(120) days after such water enters the Temporary Deviation Space.
10.2. When SRP anticipates that Modified Roosevelt Reservoir water levels and
Modified Roosevelt Reservoir Inflows are such that water will begin entering the
Flood Control Space, SRP at its sole discretion shall have the authority to declare
a Temporary Deviation Event. In the event that SRP declares a Temporary
Deviation Event under this Subparagraph 10.2, SRP shall operate such Flood
Control Space as provided in Subparagraphs 10.3 through 10.9.
10.3. Within five (5) days after declaring a Temporary Deviation Event under
Subparagraph 10.2, SRP shall provide notice to the Participating Entities under
Paragraph 21 that SRP has declared such Temporary Deviation Event. Included in
Roosevelt Flood Control Space Agreement Page 11
its notice under this Subparagraph 10.3, SRP shall provide the date that water first
entered the Flood Control Space and the Evacuation Deadline.
10.4. Once water first enters the Flood Control Space under a Temporary Deviation
Event, SRP shall operate Modified Roosevelt Dam under Spill Conditions as
follows:
10.4.1. SRP shall operate Modified Roosevelt Dam under Spill Conditions starting
at the time that water first enters the Flood Control Space during a
Temporary Deviation Event and shall continue to operate Modified
Roosevelt Dam under Spill Conditions while the elevation of water in
Modified Roosevelt Dam is rising; and
10.4.2. SRP shall operate Modified Roosevelt Dam under Spill Conditions while the
water occupies areas in the Modified Roosevelt Dam above the Temporary
Deviation Space. Once SRP evacuates water occupying the portion of the
Flood Control Space above the Temporary Deviation Space as provided in
the Water Control Plan (i.e. within twenty (20) days after water first enters
such space) Modified Roosevelt Reservoir will no longer be operated under
Spill Conditions.
10.4.3. SRP shall account for water deliveries during Spill Conditions as provided
in this Subparagraph 10.4 under the Modified Roosevelt Dam Operating
Agreement.
10.5. SRP shall calculate the volume of and apportion Temporary Deviation Water to
Participating Entities as follows:
10.5.1. 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 under Subparagraph 11.1.
10.5.2. 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
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Entities using the percentages described in Subparagraph 11.1 and under
the conditions described in Subparagraph 10.4.
10.6. SRP shall deliver the Temporary Deviation Water to the Participating Entities as
provided in Paragraph 12.
10.7. SRP shall evacuate all unused Temporary Deviation Water from the Temporary
Deviation Space prior to the Evacuation Deadline as provided in Subparagraph
11.2.
10.8. The Temporary Deviation Event shall end upon the Evacuation Deadline.
10.9. During a Calendar Year when SRP has not declared a Temporary Deviation Event
under Subparagraph 10.2, SRP shall operate Modified Roosevelt Dam under the
Water Control Plan before the Temporary Deviation Plan was authorized under
the Temporary Deviation Authorization.
11.
TEMPORARY DEVIATION WATER APPORTIONMENT:
11.1. SRP shall calculate the total volume of Temporary Deviation Water entering the
Temporary Deviation Space during the Temporary Deviation Event as provided in
Subparagraph 10.5 and shall apportion such volume to the Parties according to
the percentages provided in the following table:
Potential
Participating Entities
& SRP
Percentage of
Temporary Deviation
Water
Avondale
7.83%
Chandler
5.06%
Gilbert
3.68%
Glendale
5.06%
Mesa
4.42%
Peoria
2.30%
Phoenix
18.41%
RID
10.13%
Scottsdale
2.49%
Roosevelt Flood Control Space Agreement Page 13
Tempe
2.49%
RWCD
10.51%
BWCDD
4.60%
SRPMIC
5.52%
Freeport
2.76%
SRP
14.73%
The Parties acknowledge and agree that this Agreement is temporary in nature
and the percentages identified in the table above may be revisited in the event
subsequent agreements are executed for the delivery of water entering the Flood
Control Space after the end of the Temporary Deviation Period.
11.2. 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.
12.
PARTICIPATING ENTITIES ORDERING AND SRP DELIVERY OF TEMPORARY DEVIATION
WATER:
12.1. Participating Entities shall order the Temporary Deviation Water by requesting
SRP deliver such water per the schedule determined under Subparagraph 12.2.
Such request shall be made under the notice provisions in Subparagraph 21.
12.2. SRP and each Participating Entity shall mutually agree on a schedule for SRP to
deliver the Temporary Deviation Water to each Participating Entity prior to the
Evacuation Deadline. 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.
12.3. Except as provided in this Subparagraph 12.3, 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. SRP agrees to waive any applicable
transportation fees under applicable agreements during the term of this
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Agreement. The Parties acknowledge that this Agreement is temporary in nature
and such waiver of transportation fees by SRP may be revisited in the event
subsequent agreements are executed for the delivery of water entering the Flood
Control Space.
12.4. River losses shall be deducted from the Temporary Deviation Water delivered 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. River losses within SRP’s water
delivery system below Granite Reef Dam shall be revisited if a long-term program
is developed for water entering the Flood Control Space.
12.5. SRP maintains the right and obligation to operate the Salt River Reservoir System
in accordance with the objectives identified in Paragraph 7 of the Modified
Roosevelt Dam Operating Agreement. SRP may make deliveries of Temporary
Deviation Water to the Participating Entities from any water source in accordance
with those objectives notwithstanding the definition of Temporary Deviation
Water under this Agreement.
13.
WATER ACCOUNTING AND REPORTING:
13.1. SRP shall provide water accounting for the total volume of Temporary Deviation
Water entering the Temporary Deviation Space as described in Subparagraph
10.5, apportioned to Participating Entities under Subparagraph 11.1, and
delivered to Participating Entities under Paragraph 12.
13.2. During a Temporary Deviation Event, SRP shall send a preliminary estimate to the
Participating Entities within ten (10) days, or as otherwise agreed upon by the
Parties, after the initial volume of Temporary Deviation Water is determined
under Subparagraph 10.5 including the initial amount of Temporary Deviation
Water apportioned to each Participating Entity under Subparagraph 11.1 and shall
send updated reports at the end of each month during a Temporary Deviation
Event. Reports related to Temporary Deviation Water will be incorporated into
existing SRP reporting practices.
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13.3. SRP shall send updated reports at the end of each month during the Temporary
Deviation Period to the Participating Entities which will include (1) the information
described in Subparagraph 13.2, (2) the total volume of Temporary Deviation
Water entering the Temporary Deviation Space as described in Subparagraph
10.5, (3) the amount of Temporary Deviation Water ordered and delivered by SRP
to the Participating Entities during the reporting period, and (4) the Evacuation
Date.
14.
ADMINISTRATIVE FEES:
14.1. Each Participating Entity shall pay to SRP a one-time initial Temporary Deviation
Account Creation 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 this Agreement.
14.2. 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), 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. Beginning January 1, 2022, and at each January 1 thereafter, the
fee identified in this Subparagraph 14.2 shall be adjusted by the percent change
(calculated to the nearest one-hundredth percent) in the Department of
Commerce's Price Index for the Gross Domestic Product ("Index") measured from
third quarter to third quarter. For purposes of the initial annual adjustment, the
Index shall be calculated using the third quarter of 2021 as the base.
14.3. The Parties acknowledge that the Temporary Deviation Plan is temporary in
nature and in the event such plan is developed into a longer-term program, the
Parties shall revisit the fees described in this Paragraph 14.
15.
BILLING AND PAYMENT:
15.1. SRP shall bill the Participating Entities for the Administrative Fees owed to SRP
under Paragraph 14 on or before the thirtieth day after such fees are accrued (or
if such a day is not a business day, on the next succeeding business day).
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15.2. Each Participating Entity shall pay such bill within thirty (30) days following SRP
issuing such bill, or if such a day is not a business day, on the next succeeding
business day.
15.3. 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 2% (Wall Street Journal
Prime Rate plus 2%) per annum from the date when the bill was due until the bill
is paid (including any accrued interest) in full. In the event the Wall Street Journal
no longer publishes the Wall Street Journal Prime Rate, the Authorized
Representatives shall select an appropriate substitute.
15.4. 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 15.3, prorated by days from the date payment
was credited to the Participating Entity to the date the refund check is mailed.
15.5. In the event any delinquent amount is not paid by the Participating Entity within
thirty (30) 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.
16.
USE OF TEMPORARY DEVIATION WATER:
16.1
Parties may directly use, share among other Parties to this Agreement, exchange,
or store underground Temporary Deviation Water pursuant to Arizona law and
any applicable water delivery and use agreements.
16.2. Parties may share Temporary Deviation Water among other Parties to this
Agreement during the Temporary Deviation Event for use within their respective
service territories.
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16.3. If Parties seek to store their portion of the Temporary Deviation Water
underground to create long-term storage credits pursuant to Arizona law, the
Parties may trade, assign, or transfer such credits pursuant to Arizona law;
provided, however, that for purposes of this Agreement, the Parties agree that
they may only trade, assign, or transfer such long-term storage credits among
other Parties to this Agreement. SRP intends that it will use such long-term
storage credits for the benefit of its shareholders.
16.4. If the Parties expect that any Temporary Deviation Water will be unused at the
end of a Temporary Deviation Period due to a potential Participating Entity not
executing this Agreement, the Parties agree to meet and confer to determine an
acceptable allocation of such unused Temporary Deviation Water and associated
costs.
17.
WATER QUALITY AND INDEMNITY:
17.1. SRP makes no representation or warranty as to the quality of Temporary Deviation
Water delivered under Paragraph 12 of this Agreement and the Participating
Entities assume the responsibility for purifying or otherwise treating the
Temporary Deviation Water delivered under this Agreement to meet present or
future water quality standards established by federal, state, or local laws or
regulations.
17.2. Each Party shall assume liability for its own negligence arising out of its action or
inaction, whether negligent or intentional, and each Party shall indemnify the
other Parties against any damages the non-responsible Parties incur as a result of
the responsible Party’s action or inaction.
18.
DISPUTE RESOLUTION; CHOICE OF LAW:
18.1. 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 chief operation officers of the Parties involved in the dispute. If the matter
cannot be resolved by the SRP General Manager, 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, its successor court. In the event SRPMIC is
Roosevelt Flood Control Space Agreement Page 18
a party to any suit on the matter under this Subparagraph 18.1, then the parties
agree that such suit shall be in a state or federal court of competent jurisdiction.
18.2. This Agreement shall be governed and construed in accordance with the laws of
the State of Arizona and any applicable federal law.
18.3. 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.
18.4. 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 18.4 during the
pendency of such dispute shall be subject to refund and adjustment upon a final
resolution of any dispute involving an amount due.
18.5. Nothing contained in this Agreement shall be construed to constitute a waiver of
any aspect or portion of sovereign immunity of the SRPMIC, and/or its affiliates,
departments, programs, enterprises, or subdivisions. If the SRPMIC or the
United States on behalf of SRPMIC successfully asserts its sovereign immunity
from suit in any action to enforce the terms of this Agreement, SRP shall be
under no obligations related to delivery of any Temporary Deviation Water to
SRPMIC under Subparagraph 10.6 and Paragraph 12.
19.
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 any Party to settle any strike or labor dispute in which it is
involved. Any party rendered unable to fulfill any obligation hereunder by reason of an
uncontrollable force shall exercise due diligence to remove such inability.
20.
RECLAMATION REFORM ACT:
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In no event shall actions taken under this Agreement subject the Association or its
shareholders to provisions of the Reclamation Reform Act of 1982 (“Reclamation Reform
Act”), 43 U.S.C. 390, as amended, and regulations attendant thereto, to which Association
would not otherwise have been subjected. In the event a federal agency or other
administrative or judicial entity subjects or purports to subject Association to the
Reclamation Reform Act as a result of actions taken under this Agreement, Association
shall be relieved of any further obligations hereunder, and this Agreement shall terminate
at Association's discretion.
21.
NOTICE; CHANGE OF NAME OR ADDRESS:
21.1. 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 (5th) business day following mailing, by registered or
certified mail, postage prepaid, return receipt requested, whichever is earlier,
addressed as set forth below:
21.1.1.
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
Roosevelt Flood Control Space Agreement Page 20
21.1.2.
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:
Avondale City Attorney
11465 West Civic Center Drive
Avondale, AZ 85323
21.1.3.
If to the City of Chandler:
City of Chandler
c/o Water Resources 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
Roosevelt Flood Control Space Agreement Page 21
21.1.4.
If to the City of Glendale:
City of Glendale
Ron Serio, Director of Water Services
7070 W Northern Avenue
Glendale, AZ 85303
with a copy to:
Michael D. Bailey, City Attorney
5850 West Glendale Avenue, Ste. 450
Glendale, AZ 85301
21.1.5.
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:
____________________________
____________________________
____________________________
Roosevelt Flood Control Space Agreement Page 22
21.1.6.
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:
City Attorney
City of Peoria
P.O. Box 4038
Peoria, AZ 85380-4038
21.1.7.
If to the City of Phoenix:
Water Resources Management Advisor
City Manager’s Office
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
Roosevelt Flood Control Space Agreement Page 23
21.1.8. 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:
____________________________
____________________________
____________________________
21.1.9. 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:
Tempe City Attorney’s Office
21 E. Sixth Street, Suite 201
Tempe, AZ 85281
Roosevelt Flood Control Space Agreement Page 24
21.1.10.
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:
Water Resource Manager
50 E. Civic Center Drive
Gilbert, AZ 85296
21.1.11.
If to Roosevelt Water Conservation District:
Shane Leonard, General Manager
Roosevelt Water Conservation District
PO Box 100
Higley, AZ 85212
with a copy to:
____________________________
____________________________
____________________________
Roosevelt Flood Control Space Agreement Page 25
21.1.12.
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:
____________________________
____________________________
____________________________
21.1.13.
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
with a copy to:
____________________________
____________________________
____________________________
Roosevelt Flood Control Space Agreement Page 26
21.1.14.
If to the Roosevelt Irrigation District:
Roosevelt Irrigation District
103 W. Baseline Road
Buckeye, AZ 85326
with a copy to:
____________________________
____________________________
____________________________
21.1.15.
If to Freeport Minerals Corporation:
Freeport Minerals Corporation
c/o Vice President
333 N. Central Avenue
Phoenix, AZ 85004
with a copy to:
____________________________
____________________________
____________________________
21.2. Any Party may change the addressee or address to which communications or
copies are to be sent by giving notice of such change of addressee.
22.
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 a 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 remainder
Roosevelt Flood Control Space Agreement Page 27
of this Agreement, absent the excised portion, can be reasonably interpreted to give
effect to the intentions of the Parties.
23.
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.
24.
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 none of the
Parties 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.
25.
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 in any third party. No third party may enforce the terms and
conditions of this Agreement.
26.
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.
27.
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.
Roosevelt Flood Control Space Agreement Page 28
28.
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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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: Principal Managing Attorney, Water,
Land & Environment
SALT RIVER VALLEY WATER USERS’
ASSOCIATION
By:
Name: David C. Roberts
Title: Associate General Manager
Water Resources
APPROVED AS TO FORM
By:
Name: Patrick B. Sigl
Title: Principal Managing Attorney, Water, Land
& Environment
Roosevelt Flood Control Space Agreement Page 30
CITY OF AVONDALE
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
Roosevelt Flood Control Space Agreement Page 31
CITY OF CHANDLER
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
Roosevelt Flood Control Space Agreement Page 32
CITY OF GLENDALE
By:
Name: Kevin R. Phelps
Title: City Manager
ATTEST
By:
Name: Julie K. Bower
Title: City Clerk
APPROVED AS TO FORM
By:
Name: Michael D. Bailey
Title: City Attorney
Roosevelt Flood Control Space Agreement Page 33
CITY OF MESA
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
Roosevelt Flood Control Space Agreement Page 34
CITY OF PEORIA
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
Roosevelt Flood Control Space Agreement Page 35
CITY OF PHOENIX
ATTEST:
JEFFREY BARTON, City Manager
_______________________________
By:_____________________________
City Clerk, City of Phoenix
Troy Hayes
Director, Water Services Department
APPROVED AS TO FORM:
CRIS MEYER, City Attorney
By: ______________________________
Name: ____________________________
Title: _____________________________
Roosevelt Flood Control Space Agreement Page 36
CITY OF SCOTTSDALE
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
Roosevelt Flood Control Space Agreement Page 37
CITY OF TEMPE
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
Roosevelt Flood Control Space Agreement Page 38
TOWN OF GILBERT
By:
Name:
Title:
APPROVED AS TO FORM
Attest
By:
Name: Chaveli Herrera
Title: Town Clerk
By:
Name:
Title:
Roosevelt Flood Control Space Agreement Page 39
ROOSEVELT WATER CONSERVATION DISTRICT
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
Roosevelt Flood Control Space Agreement Page 40
BUCKEYE WATER CONSERVATION AND DRAINAGE DISTRICT
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
Roosevelt Flood Control Space Agreement Page 41
SALT RIVER PIMA-MARICOPA INDIAN
COMMUNITY
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
Roosevelt Flood Control Space Agreement Page 42
ROOSEVELT IRRIGATION DISTRICT
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
Roosevelt Flood Control Space Agreement Page 43
FREEPORT MINERALS CORPORATION
By:
Name:
Title:
APPROVED AS TO FORM
By:
Name:
Title:
Roosevelt Flood Control Space Agreement Page 44
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AGREEMENT FOR ACCOUNTING AND DELIVERY OF WATER MADE AVAILABLE IN THE FLOOD
CONTROL SPACE IN
MODIFIED ROOSEVELT DAM UNDER A TEMPORARY DEVIATION
TO THE WATER CONTROL PLAN
AMONG
VARIOUS PARTICIPATING ENTITIES,
SALT RIVER VALLEY WATER USERS' ASSOCIATION,
AND
SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT
Exhibit 5.5
Cost Share Agreement
Roosevelt Flood Control Space Agreement Page 46
AGREEMENT CONCERNING BENEFICIAL USE OF WATER IN TEMPORARY ACTIVE
CONSERVATION CAPACITY AT MODIFIED ROOSEVELT DAM
AMONG
THE SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT,
THE SALT RIVER VALLEY WATER USERS’ ASSOCIATION
AND THE ARIZONA CITIES OF CHANDLER, GLENDALE, MESA, PHOENIX, SCOTTSDALE, AND
TEMPE
Exhibit 5.11
Joint Use Agreement
Roosevelt Flood Control Space Agreement Page 47
AGREEMENT FOR ACCOUNTING AND DELIVERY OF WATER MADE AVAILABLE IN THE FLOOD
CONTROL SPACE IN
MODIFIED ROOSEVELT DAM UNDER A TEMPORARY DEVIATION
TO THE WATER CONTROL PLAN
AMONG
VARIOUS PARTICIPATING ENTITIES,
SALT RIVER VALLEY WATER USERS' ASSOCIATION,
AND
SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT
Exhibit 5.24
Temporary Deviation Authorization
Roosevelt Flood Control Space Agreement Page 48
AGREEMENT ACCOUNTING AND DELIVERY OF WATER MADE AVAILABLE IN OF THE FLOOD
CONTROL SPACE IN
MODIFIED ROOSEVELT DAM UNDER A TEMPORARY DEVIATION
TO THE WATER CONTROL PLAN
AMONG
VARIOUS PARTICIPATING ENTITIES,
SALT RIVER VALLEY WATER USERS' ASSOCIATION,
AND
SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT
Exhibit 5.28
Temporary Deviation Space