HomeMy WebLinkAboutAgreement A-21-487 with the United States.pdfIrrigation and M&I
Contract No. 14-06-200-8292A-IR5-P
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
Central Valley Project, California
CONTRACT BETWEEN THE UNITED STATES
AND
THE COUNTY OF FRESNO
PROVIDING FOR PROJECT WATER SERVICE AND FACILITIES REPAYMENT
Table of Contents
Article No. Title Page No.
Preamble ..................................................................................................................1
Explanatory Recitals ............................................................................................... 2
1.Definitions............................................................................................................... 6
2.Term of Contract – Right to Use of Water ........................................................... 12
3.Water to be Made Available and Delivered for the Contractor ............................ 13
4.Time for Delivery of Water .................................................................................. 18
5.Point of Diversion and Responsibility for Distribution of Water ......................... 19
6.Measurement of Water Within the Contractor’s Service Area ............................. 22
7.Rates, Method of Payment for Water and Accelerated Repayment of Facilities . 23
8.Non-Interest Bearing O&M Deficits .................................................................... 33
9.Sales, Transfers, or Exchanges of Water .............................................................. 33
10.Application of Payments and Adjustments ........................................................... 35
11.Temporary Reductions – Return Flows ................................................................ 36
12.Constraints on the Availability of Water .............................................................. 37
13.Unavoidable Groundwater Percolation ................................................................. 38
14.Compliance with Federal Reclamation Laws ....................................................... 38
15.Protection of Water and Air Quality ..................................................................... 38
16.Water Acquired by the Contractor Other Than From the United States ............... 39
17.Opinions and Determinations ............................................................................... 41
18.Coordination and Cooperation .............................................................................. 42
19.Charges for Delinquent Payments ........................................................................ 43
20.Equal Employment Opportunity ........................................................................... 44
21.General Obligation – Benefits Conditioned Upon Payment ................................. 45
22.Compliance with Civil Rights Laws and Regulations .......................................... 46
23.Privacy Act Compliance ....................................................................................... 46
Agreement No. 21-487
Table of Contents – continued
Article No. Title Page No.
24.Contractor to Pay Certain Miscellaneous Costs.................................................... 47
25.Water Conservation .............................................................................................. 48
26.Existing or Acquired Water or Water Rights ........................................................ 49
27.Operation and Maintenance by the Operating Non-Federal Entity(ies) ............... 50
28.Contingent on Appropriation or Allotment of Funds ........................................... 51
29.Books, Records, and Reports ................................................................................ 51
30.Assignment Limited – Successors and Assigns Obligated ................................... 52
31.Severability ........................................................................................................... 52
32.Resolution of Disputes .......................................................................................... 53
33.Officials Not to Benefit ......................................................................................... 54
34.Changes in Contractor’s Organization and/or Service Area ................................. 54
35.Federal Laws ......................................................................................................... 54
36.Reclamation Reform Act of 1982 ......................................................................... 55
37.Certification of Nonsegregated Facilities ............................................................. 55
38.Notices .................................................................................................................. 56
39.Medium for Transmitting Payment ....................................................................... 56
40.Contract Drafting Considerations ......................................................................... 56
41.Confirmation of Contract ...................................................................................... 56
Signature Page. ..................................................................................................... 58
Exhibit A – Map of Contractor’s Service Area Exhibit B – Rates and Charges Exhibit C – Repayment Obligation
Irrigation and M&I
Contract No. 14-06-200-8292A-IR5-P
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
Central Valley Project, California
CONTRACT BETWEEN THE UNITED STATES
AND
THE COUNTY OF FRESNO
PROVIDING FOR PROJECT WATER SERVICE AND FACILITIES REPAYMENT
THIS CONTRACT, made this _____ day of ____________________, 2021, in pursuance 1
generally of the Act of June 17, 1902 (32 Stat. 388), and acts amendatory thereof or 2
supplementary thereto, including, but not limited to, the Acts of August 26, 1937 (50 Stat. 844), 3
as amended and supplemented, August 4, 1939 (53 Stat. 1187), as amended and supplemented, 4
July 2, 1956 (70 Stat. 483), June 21, 1963 (77 Stat. 68), October 12, 1982 (96 Stat. 1263), 5
October 27, 1986 (100 Stat. 3050), as amended, Title XXXIV of the Act of October 30, 1992 6
(106 Stat. 4706), as amended, and the Water Infrastructure Improvements for the Nation Act 7
(Public Law (Pub. L.) 114-322, 130 Stat. 1628), Section 4011 (a-d) and (f) (“WIIN Act”), all 8
collectively hereinafter referred to as Federal Reclamation law, between the UNITED STATES 9
OF AMERICA, hereinafter referred to as the United States, represented by the officer executing 10
this Contract, hereinafter referred to as the Contracting Officer, and THE COUNTY OF 11
FRESNO, hereinafter referred to as the Contractor, a public agency of the State of California, 12
duly organized, existing, and acting pursuant to the laws thereof with its principal place of 13
business in California;14
Agreement No. 21-487
16th November
Contract No. 14-06-200-8292A-IR5-P
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WITNESSETH, That: 15
EXPLANATORY RECITALS 16
[1st] WHEREAS, the United States has constructed and is operating the California 17
Central Valley Project (Project), for diversion, storage, carriage, distribution and beneficial use, 18
for flood control, irrigation, municipal, domestic, industrial, fish and wildlife mitigation, 19
protection and restoration, generation and distribution of electric energy, salinity control, 20
navigation and other beneficial uses, of waters of the Sacramento River, the American River, the 21
Trinity River, and the San Joaquin River and their tributaries; and 22
[2nd] WHEREAS, the United States constructed the Project facilities, which will be 23
used in part for the furnishing of water to the Contractor pursuant to the terms of this Contract; 24
and 25
[3rd] WHEREAS, as provided herein, Project Water may be made available for the 26
Contractor in the Sacramento-San Joaquin Delta and/or from the Friant Division and delivered to 27
the Contractor through appropriate federal, state, joint-use and/or local facilities; and 28
[4th] WHEREAS, the Department of Water Resources of the State of California 29
(DWR) is engaged in the operation of the State Water Project (SWP) pursuant to the laws of the 30
State of California involving the development, transportation, and delivery of water supplies to 31
public agencies throughout the State of California; and 32
[5th] WHEREAS, the Cross Valley Canal, connecting the California Aqueduct and the 33
Friant-Kern Canal in Kern County, has been constructed by the Contractor and others at no cost 34
to the United States; and 35
[6th] WHEREAS, the Contractor has the right to use the Cross Valley Canal for 36
conveyance of the Project Water furnished hereunder; and 37
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[7th] WHEREAS, the rights to Project Water were acquired by the United States 38
pursuant to California law for operation of the Project; and 39
[8th] WHEREAS, the Contractor and the United States entered into Contract No. 40
14-06-200-8292A, as amended, which established terms for the delivery to the Contractor of 41
Project Water via the Cross Valley Canal from November 10, 1975, through February 29, 1996; 42
and 43
[9th] WHEREAS, the Contractor and the United States have pursuant to subsection 44
3404(c)(1) of the Central Valley Project Improvement Act (CVPIA), subsequently entered into 45
interim renewal contract(s) identified as Contract No(s). 14-06-200-8292A-IR1 through IR18 the 46
current of which is hereinafter referred to as the Existing Contract, which provided for the 47
continued water service to the Contractor from March 1, 2020 through February 28, 2022; and 48
[10th] WHEREAS, on December 16, 2016, the 114th Congress of the United States of 49
America enacted the WIIN Act; and 50
[11th] WHEREAS, Section 4011(a)(1) provides that “upon request of the contractor, the 51
Secretary of the Interior shall convert any water service contract in effect on the date of 52
enactment of this subtitle and between the United States and a water users’ association 53
[Contractor] to allow for prepayment of the repayment contract pursuant to paragraph (2) under 54
mutually agreeable terms and conditions.”; and 55
[12th] WHEREAS, Section 4011(a)(1) further provides that “the manner of conversion 56
under this paragraph shall be as follows: (A) Water service contracts that were entered into 57
under section (e) of the Act of August 4, 1939 (53 Stat. 1196), to be converted under this section 58
shall be converted to repayment contracts under section 9(d) of that Act (53 Stat. 1195)”; and 59
“(B) Water service contracts that were entered under subsection (c)(2) of section 9 of the Act of 60
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August 4, 1939 (53 Stat. 1194), to be converted under this section shall be converted to a 61
contract under subsection (c)(1) of section 9 of that Act (53 Stat. 1195).”; and 62
[13th] WHEREAS, Section 4011(a)(4)(C) further provides all contracts entered into 63
pursuant to Section 4011(a)(1), (2), and (3) shall “not modify other water service, repayment, 64
exchange and transfer contractual rights between the water users’ association [Contractor], and 65
the Bureau of Reclamation, or any rights, obligations, or relationships of the water users’ 66
association [Contractor] and their landowners as provided under State law.”; and 67
[14th] WHEREAS, Section 4011(d)(3) and (4) of the WIIN Act provides that 68
“implementation of the provisions of this subtitle shall not alter…(3) the priority of a water 69
service or repayment contractor to receive water; or (4) except as expressly provided in this 70
section, any obligations under the Federal Reclamation law, including the continuation of 71
Restoration Fund charges pursuant to section 3407(d) (Pub. L. 102-575), of the water service and 72
repayment contractors making prepayments pursuant to this section.”; and 73
[15th] WHEREAS, upon the request of the Contractor, the WIIN Act directs the 74
Secretary to convert irrigation water service contracts and municipal and industrial (M&I) water 75
service contracts into repayment contracts, amend existing repayment contracts, and allow 76
contractors to prepay their construction cost obligations pursuant to applicable Federal 77
Reclamation law; and 78
[16th] WHEREAS, the United States has determined that the Contractor has fulfilled all 79
of its obligations under the Existing Contract; and 80
[17th] WHEREAS, the Contractor has demonstrated to the satisfaction of the 81
Contracting Officer that the Contractor has utilized the Project Water supplies available to it for 82
reasonable and beneficial use and/or has demonstrated projected future demand for water use 83
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such that the Contractor has the capability and expects to utilize fully for reasonable and 84
beneficial use the quantity of Project Water to be made available to it pursuant to this Contract; 85
and 86
[18th] WHEREAS, water obtained from the Project has been relied upon by urban and 87
agricultural areas within California for more than 50 years, and is considered by the Contractor 88
as an essential portion of its water supply; and 89
[19th] WHEREAS, the economies of regions within the Project, including the 90
Contractor’s, depend upon the continued availability of water, including water service from the 91
Project; and 92
[20th] WHEREAS, the Secretary intends through coordination, cooperation, and 93
partnerships to pursue measures to improve water supply, water quality, and reliability of the 94
Project for all Project purposes; and 95
[21st] WHEREAS, the mutual goals of the United States and the Contractor include: to 96
provide for reliable Project Water supplies; to control costs of those supplies; to achieve 97
repayment of the Project as required by law; to guard reasonably against Project Water 98
shortages; to achieve a reasonable balance among competing demands for use of Project Water; 99
and to comply with all applicable environmental statutes, all consistent with the legal obligations 100
of the United States relative to the Project; and 101
[22nd] WHEREAS, the parties intend by this Contract to develop a more cooperative 102
relationship in order to achieve their mutual goals; and 103
[23rd] WHEREAS, the Contractor has utilized or may utilize transfers, exchanges, 104
contract assignments, rescheduling and conveyance of Project Water and non-Project water 105
under this Contract as tools to minimize the impacts of a Condition of Shortage and to maximize 106
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the beneficial use of water (Contractors included); and 107
[24th] WHEREAS, the United States and the Contractor are willing to enter into a 108
separate contract with DWR for conveyance of Project Water through the facilities of the SWP 109
wherein the United States is willing to furnish the necessary power for pumping such water 110
through Harvey O. Banks Pumping Plant and Dos Amigos Pumping Plant pursuant to the then-111
existing CVP Project use power policy and the terms and conditions specified in such separate 112
contract; and 113
[25th] WHEREAS, the United States and the Contractor understand that DWR is willing 114
to convey such water through State Facilities; and 115
[26th] WHEREAS, the Contracting Officer and the Contractor agree that this Contract 116
complies with Section 4011 of the WIIN Act; and 117
[27th] WHEREAS, the Contracting Officer and the Contractor agree to amend and 118
convert the Existing Contract pursuant to Section 4011 of the WIIN Act and other Federal 119
Reclamation law on the terms and conditions set forth below; 120
NOW, THEREFORE, in consideration of the mutual and dependent covenants herein 121
contained, it is hereby mutually agreed by the parties hereto as follows: 122
DEFINITIONS 123
1. When used herein unless otherwise distinctly expressed, or manifestly 124
incompatible with the intent of the parties as expressed in this Contract, the term: 125
(a) “Additional Capital Obligation” shall mean construction costs or other 126
capitalized costs incurred after the Effective Date or not reflected in the Existing Capital 127
Obligation as defined herein and in accordance with Section 4011, subsection (a)(2)(B) and 128
(a)(3)(B) of the Water Infrastructure Improvements for the Nation Act (Pub. L. 114-322, 130 129
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Stat. 1628) (“WIIN Act”); 130
(b) “Calendar Year” shall mean the period from January 1 through December 131
31, both dates inclusive; 132
(c) “Charges” shall mean the payments required by Federal Reclamation law 133
in addition to the Rates and Tiered Pricing Component specified in this Contract as determined 134
annually by the Contracting Officer pursuant to this Contract; 135
(d) “Condition of Shortage” shall mean a condition respecting the Project 136
during any Year such that the Contracting Officer is unable to deliver sufficient water to meet the 137
Contract Total; 138
(e) “Contracting Officer” shall mean the Secretary of the Interior’s duly 139
authorized representative acting pursuant to this Contract or applicable Federal Reclamation law 140
or regulation; 141
(f) “Contract Total” shall mean the maximum amount of water to which the 142
Contractor is entitled under subdivision (a) of Article 3 of this Contract; 143
(g) “Contractor's Service Area” shall mean the area to which the Contractor is 144
permitted to provide Project Water under this Contract as described in Exhibit “A” attached 145
hereto, which may be modified from time to time in accordance with Article 34 of this Contract 146
without amendment of this Contract; 147
(h) “Cross Valley Canal” shall mean the water conveyance and related works 148
in Kern County constructed by the Contractor and others, which canal is currently operated by 149
Kern County Water Agency, to deliver water from the California Aqueduct; 150
(i) “CVPIA” shall mean the Central Valley Project Improvement Act, Title 151
XXXIV of the Act of October 30, 1992 (106 Stat. 4706); 152
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(j) “Eligible Lands” shall mean all lands to which Irrigation Water may be 153
delivered in accordance with Section 204 of the Reclamation Reform Act of October 12, 1982 154
(96 Stat. 1263), as amended; 155
(k) “Excess Lands” shall mean all lands in excess of the limitations contained 156
in Section 204 of the Reclamation Reform Act of 1982, other than those lands exempt from 157
acreage limitation under Federal Reclamation law; 158
(l) “Existing Capital Obligation” shall mean the remaining amount of 159
construction costs or other capitalized costs allocable to the Contractor as described in Section 160
4011, subsections (a)(2)(A) and (a)(3)(A) of the WIIN Act, and as identified in the Central 161
Valley Project Irrigation Water Rates and/or Municipal and Industrial Water Rates, respectively, 162
the Final 2021 Ratebooks, as adjusted to reflect payments not reflected in such schedule. The 163
Contracting Officer has computed the Existing Capital Obligation and such amount is set forth in 164
Exhibit “C”, which is incorporated herein by reference; 165
(m) “Full Cost Rate” shall mean an annual rate as determined by the 166
Contracting Officer that shall amortize the expenditures for construction properly allocable to the 167
Project irrigation or M&I functions, as appropriate, of facilities in service including all O&M 168
deficits funded, less payments, over such periods as may be required under Federal Reclamation 169
law, or applicable contract provisions. Interest will accrue on both the construction expenditures 170
and funded O&M deficits from October 12, 1982, on costs outstanding at that date, or from the 171
date incurred in the case of costs arising subsequent to October 12, 1982, and shall be calculated 172
in accordance with subsections 202(3)(B) and (3)(C) of the Reclamation Reform Act of 1982. 173
The Full Cost Rate includes actual operation, maintenance, and replacement costs consistent with 174
Section 426.2 of the Rules and Regulations for the Reclamation Reform Act of 1982; 175
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(n) “Ineligible Lands” shall mean all lands to which Irrigation Water may not 176
be delivered in accordance with Section 204 of the Reclamation Reform Act of 1982; 177
(o) “Irrigation Full Cost Water Rate” shall mean the Full Cost Rate applicable 178
to the delivery of Irrigation Water; 179
(p) “Irrigation Water” shall mean the use of Project Water to irrigate lands 180
primarily for the production of commercial agricultural crops or livestock, and domestic and 181
other uses that are incidental thereto; 182
(q) “Landholder” shall mean a party that directly or indirectly owns or leases 183
nonexempt land, as provided in 43 CFR 426.2; 184
(r) “Municipal and Industrial (M&I) Water” shall mean the use of Project 185
Water for municipal, industrial, and miscellaneous other purposes not falling under the 186
definition of “Irrigation Water” or within another category of water use under an 187
applicable Federal authority 188
or water delivered to land holdings operated in units of less than five acres unless the Contractor 189
establishes to the satisfaction of the Contracting Officer that the use of water delivered to any 190
such landholding is a use described in subdivision (p) of this Article; 191
(s) “M&I Full Cost Water Rate” shall mean the Full Cost Rate applicable to 192
the delivery of M&I Water; 193
(t) “Operation and Maintenance” or “O&M” shall mean normal and 194
reasonable care, control, operation, repair, replacement (other than capital replacement), and 195
maintenance of Project facilities; 196
(u) “Operating Non-Federal Entity” shall mean either the San Luis & Delta 197
Mendota Water Authority or the Friant Water Authority, their successors or assigns, non-Federal 198
entities which have the obligation to operate and maintain all or a portion of the Project facilities 199
pursuant to written agreements with the United States, and which may have funding obligations 200
with respect thereto; 201
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(v) “Operations Manual” shall mean the manual developed by DWR and 202
Reclamation setting forth procedures, which shall be consistent with this Contract, for working 203
level communications including scheduling and accounting for power and water services.; 204
(w) “Project” shall mean the Central Valley Project owned by the United 205
States and managed by the Department of the Interior, Bureau of Reclamation; 206
(x) “Project Contractors” shall mean all parties who have contracts for water 207
service for Project Water from the Project with the United States pursuant to Federal 208
Reclamation law; 209
(y) “Project Water” shall mean all water that is developed, diverted, stored, or 210
delivered by the Secretary in accordance with the statutes authorizing the Project and in 211
accordance with the terms and conditions of water rights acquired pursuant to California law; 212
(z) “Rates” shall mean the payments determined annually by the Contracting 213
Officer in accordance with the then-current applicable water ratesetting policies for the Project, 214
as described in subdivision (a) of Article 7 of this Contract; 215
(aa) “Recent Historic Average” shall mean the most recent five-year average of 216
the final forecast of Water Made Available to the Contractor pursuant to this Contract or its 217
preceding contract(s); 218
(bb) “Repayment Obligation” for Water Delivered as Irrigation Water shall 219
mean the Existing Capital Obligation discounted by ½ of the Treasury rate, which shall be the 220
amount due and payable to the United States, pursuant to Section 4011(a)(2)(A) of the WIIN 221
Act; and for Water Delivered as M&I Water shall mean the amount due and payable to the 222
United States, pursuant to Section 4011(a)(3)(A) of the WIIN Act; 223
(cc) “Secretary” shall mean the Secretary of the Interior, a duly appointed 224
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successor, or an authorized representative acting pursuant to any authority of the Secretary and 225
through any agency of the Department of the Interior; 226
(dd) “State Facilities” shall mean that portion of the SWP (including DWR's 227
portion of the San Luis Unit joint-use facilities), necessary to convey Project Water from the 228
Sacramento-San Joaquin Delta (Delta) to points of delivery as scheduled pursuant to Article 5 of 229
this Contract; 230
(ee) “State Water Project” or “SWP” shall mean the California State Water 231
Project; 232
(ff) “Tiered Pricing Component” shall be the incremental amount to be paid 233
for each acre-foot of Water Delivered as described in Article 7 of this Contract and as provided 234
for in Exhibit “B ”; 235
(gg) “Water Delivered” or “Delivered Water” shall mean Project 236
Water diverted for use by the Contractor at the point(s) of delivery approved by the Contracting 237
Officer; 238
(hh) “Water Made Available” shall mean the estimated amount of Project 239
Water that can be delivered to the Contractor for the upcoming Year as declared by the 240
Contracting Officer, pursuant to subdivision (a) of Article 4 of this Contract; 241
(ii) “Water Scheduled” shall mean Project Water made available to the 242
Contractor for which times and quantities for delivery have been established by the Contractor 243
and Contracting Officer, pursuant to subdivision (b) of Article 4 of this Contract; and 244
(jj) “Year” shall mean the period from and including March 1 of each 245
Calendar Year through the last day of February of the following Calendar Year. 246
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TERM OF CONTRACT – RIGHT TO USE OF WATER 247
2. (a) This Contract shall be effective December 1, 2021 hereinafter known as 248
the “Effective Date”, and shall continue so long as the Contractor pays applicable Rates and 249
Charges under this Contract, consistent with Section 9(d) or 9(c)(1) of the Act of August 4, 1939 250
(53 Stat. 1195) as applicable, and applicable law; 251
(1) Provided, That the Contracting Officer shall not seek to terminate 252
this Contract for failure to fully or timely pay applicable Rates and Charges by the Contactor, 253
unless the Contracting Officer has first provided at least sixty (60) calendar days written notice 254
to the Contractor of such failure to pay and the Contractor has failed to cure such failure to pay, 255
or to diligently commence and maintain full curative payments satisfactory to the Contracting 256
Officer within the sixty (60) calendar days’ notice period; 257
(2) Provided, further, That the Contracting Officer shall not seek to 258
suspend making water available or declaring Water Made Available pursuant to this Contract for 259
non-compliance by the Contractor with the terms of this Contract or Federal law, unless the 260
Contracting Officer has first provided at least thirty (30) calendar days written notice to the 261
Contractor and the Contractor has failed to cure such non-compliance, or to diligently commence 262
curative actions satisfactory to the Contracting Officer for a non-compliance that cannot be fully 263
cured within the thirty (30) calendar days’ notice period. If the Contracting Officer has 264
suspended making water available pursuant to this paragraph, upon cure of such non-compliance 265
satisfactory to the to the Contracting Officer, the Contracting Officer shall resume making water 266
available and declaring Water Made Available pursuant to this Contract; 267
(3) Provided, further, That this Contract may be terminated at any 268
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time by mutual consent of the parties hereto. 269
(b) Upon complete payment of the Repayment Obligation by the Contractor, 270
and notwithstanding any Additional Capital Obligation that may later be established, the acreage 271
limitations, reporting, and Full Cost pricing provisions of the Reclamation Reform Act of 1982, 272
and subdivisions (j) Eligible Lands, (k) Excess Lands, and (n) Ineligible Lands, of Article 1 of 273
this Contract shall no longer be applicable. 274
(c) Notwithstanding any provision of this Contract, the Contractor reserves 275
and shall have all rights and benefits under the Act of July 2, 1956 (70 Stat. 483), to the extent 276
allowed by law. 277
(d) Notwithstanding any provision of this Contract, the Contractor reserves 278
and shall have all rights and benefits under the Act of June 21, 1963 (77 Stat. 68), to the extent 279
allowed by law. 280
WATER TO BE MADE AVAILABLE AND DELIVERED FOR THE CONTRACTOR 281
3. (a) During each Year, consistent with all applicable State water rights, 282
permits, and licenses, Federal law, and subject to the provisions set forth in Articles 11 and 12 of 283
this Contract, the Contracting Officer shall make available in the Delta for delivery for the 284
Contractor 3,000 acre-feet of Project Water for irrigation and M&I purposes. The quantity of 285
Water Delivered for the Contractor in accordance with this subdivision shall be scheduled, 286
conveyed, and paid for pursuant to the provisions of Articles 4 and 7 of this Contract. 287
(b) Because the capacity of the Project to deliver Project Water has been 288
constrained in recent years and may be constrained in the future due to many factors including 289
hydrologic conditions and implementation of Federal and State laws, the likelihood of the 290
Contractor actually receiving the full amount of Project Water set out in subdivision (a) of this 291
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Article in any given Year is uncertain. The Contracting Officer’s modeling referenced in the 292
programmatic environmental impact statement prepared pursuant to Section 3404(c) of 293
the CVPIA projected that of the Contract Total set forth in this Contract will not be available for 294
the Contractor in many years. During the most recent five years prior to execution of the 295
Existing Contract, the Recent Historic Average of Water Made Available for the Contractor was 296
450 acre-feet. Nothing in this subdivision (b) of this Article shall affect the rights and 297
obligations of the parties under any provision of this Contract. 298
(c) The Contractor shall utilize the Project Water in accordance with all 299
applicable legal requirements. 300
(d) The Contractor shall make reasonable and beneficial use of all water 301
furnished pursuant to this Contract. Groundwater recharge programs (direct, indirect or in lieu), 302
groundwater banking programs, surface water storage programs, and other similar programs 303
utilizing Project Water or other water furnished pursuant to this Contract conducted within the 304
Contractor’s Service Area which are consistent with applicable State law and result in use 305
consistent with Federal Reclamation law will be allowed; Provided, That any direct recharge 306
program(s) is (are) described in the Contractor’s water conservation plan submitted pursuant to 307
Article 25 of this Contract; Provided, further, That such water conservation plan demonstrates 308
sufficient lawful uses exist in the Contractor’s Service Area so that using a long-term average, 309
the quantity of Delivered Water is demonstrated to be reasonable for such uses and in 310
compliance with Federal Reclamation law. Groundwater recharge programs, groundwater 311
banking programs, surface water storage programs, and other similar programs utilizing Project 312
Water or other water furnished pursuant to this Contract conducted outside the Contractor’s 313
Service Area may be permitted upon written approval of the Contracting Officer, which approval 314
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will be based upon environmental documentation, Project Water rights, and Project operational 315
concerns. The Contracting Officer will address such concerns in regulations, policies, or 316
guidelines. 317
(e) The Contractor shall comply with requirements applicable to the 318
Contractor in biological opinion(s) prepared as a result of a consultation regarding the execution 319
of any water service contract between the Contracting Officer and the Contractor in effect 320
immediately prior to the Effective Date undertaken pursuant to Section 7 of the Endangered 321
Species Act of 1973 (ESA), as amended, that are within the Contractor’s legal authority to 322
implement. The Existing Contract, which evidences in excess of 44 years of diversions for 323
irrigation and/or M&I purposes of the quantities of Project Water provided in subdivision (a) of 324
Article 3 of this Contract, will be considered in developing an appropriate baseline for any 325
required biological assessment(s) prepared pursuant to the ESA, and any other needed 326
environmental review. Nothing herein shall be construed to prevent the Contractor from 327
challenging or seeking judicial relief in a court of competent jurisdiction with respect to any 328
biological opinion or other environmental documentation referred to in this Article. 329
(f) Following the declaration of Water Made Available under Article 4 of this 330
Contract, the Contracting Officer will make a determination whether Project Water, or other 331
water available to the Project, can be made available for the Contractor in addition to the 332
Contract Total under this Article 3 during the Year without adversely impacting other Project 333
Contractors. At the request of the Contractor, the Contracting Officer will consult with the 334
Contractor prior to making such a determination. If the Contracting Officer determines that 335
Project Water, or other water available to the Project, can be made available for the Contractor, 336
the Contracting Officer will announce the availability of such water and shall so notify the 337
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Contractor as soon as practical. The Contracting Officer will thereafter meet with the Contractor 338
and other Project Contractors capable of taking such water to determine the most equitable and 339
efficient allocation of such water. If the Contractor requests the delivery of any quantity of such 340
water, the Contracting Officer shall make such water available for the Contractor in accordance 341
with applicable statutes, regulations, guidelines, and policies. If the Contracting Officer 342
determines that there is an unusually large water supply not otherwise storable for Project 343
purposes or infrequent and otherwise unmanaged flood flows of short duration from the Friant 344
Division, then Friant Division Project Water may be made available for the Contractor as Section 345
215 Water under Section 215 of the Reclamation Reform Act of 1982 if the Contractor enters 346
into a temporary contract, not to exceed one (1) year, with the United States for the delivery of 347
such water or, as otherwise provided for in Federal Reclamation law and associated regulations: 348
Provided, That such water shall be first made available to the Friant Division long-term water 349
service and repayment contractors. 350
(g) The Contractor may request permission to reschedule for use during the 351
subsequent Year some or all of the Water Made Available for the Contractor during the current 352
Year referred to as “rescheduled water”. The Contractor may request permission to use during 353
the current Year a quantity of Project Water which may be made available by the United States 354
for the Contractor during the subsequent Year referred to as “preuse.” The Contracting Officer’s 355
written approval may permit such uses in accordance with applicable statutes, regulations, 356
guidelines, and policies. 357
(h) The Contractor’s right pursuant to Federal Reclamation law and applicable 358
State law to the reasonable and beneficial use of Water Delivered pursuant to this Contract shall 359
not be disturbed, and this Contract shall continue so long as the Contractor pays applicable Rates 360
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and Charges under this Contract consistent with Section 9(d) or 9(c)(1) of the Act of August 4, 361
1939 (53 Stat. 1195) as applicable, and applicable law. Nothing in the preceding sentence shall 362
affect the Contracting Officer’s ability to impose shortages under Article 11 or subdivision (b) of 363
Article 12 of this Contract. 364
(i) Project Water furnished for the Contractor pursuant to this Contract may 365
be delivered for purposes other than those described in subdivisions (p) and (r) of Article 1 of 366
this Contract upon written approval by the Contracting Officer in accordance with the terms and 367
conditions of such approval. 368
(j) The Contracting Officer shall make reasonable efforts to protect the water 369
rights necessary for the Project and to provide the water available under this Contract. The 370
Contracting Officer shall not object to participation by the Contractor, in the capacity and to the 371
extent permitted by law, in administrative proceedings related to the Project Water rights; 372
Provided, That the Contracting Officer retains the right to object to the substance of the 373
Contractor’s position in such a proceeding. Provided further; That in such proceedings the 374
Contracting Officer shall recognize the Contractor has a legal right under the terms of this 375
Contract to use Project Water. 376
(k) Conveyance and/or storage of Project Water for the Contractors may be 377
provided subject to terms and conditions of a separate conveyance contract among a Contractor, 378
the United States, and DWR. 379
(l) If in any Year after the Contracting Officer has approved a schedule or 380
any revision thereof submitted in accordance within subdivision (a) and (b) of Article 4 of this 381
Contract, and if the Contracting Officer is unable to make water available in the quantities and at 382
the times requested in the schedule and the Contractor does not elect to receive and does not 383
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receive such water at other times during such Year, then the Contractor shall be entitled to 384
adjustment(s) for overpayment as provided in subdivision (c) of Article 7 and Article 10 of this 385
Contract. 386
TIME FOR DELIVERY OF WATER 387
4. (a) On or about February 20 of each Calendar Year, the Contracting Officer 388
shall announce the Contracting Officer’s expected declaration of the Water Made Available. 389
Such declaration will be expressed in terms of both Water Made Available and the Recent 390
Historic Average and will be updated monthly, and more frequently if necessary, based on the 391
then-current operational and hydrologic conditions and a new declaration with changes, if any, to 392
the Water Made Available will be made. The Contracting Officer shall provide forecasts of 393
Project operations and the basis of the estimate, with relevant supporting information, upon the 394
written request of the Contractor. Concurrently with the declaration of the Water Made 395
Available, the Contracting Officer shall provide the Contractor with the updated Recent Historic 396
Average. The declaration of Project operations will be expressed in terms of both Water Made 397
Available and the Recent Historic Average. 398
(b) On or before each March 1 and at such other times as necessary, the 399
Contractor shall submit to the Contracting Officer and to DWR a written schedule, satisfactory to 400
the Contracting Officer. The written schedule shall show the monthly quantities of Project 401
Water to be delivered by the United States for the Contractor pursuant to this Contract for the 402
Year commencing on such March 1. The Contracting Officer shall use all reasonable means to 403
deliver Project Water according to the approved schedule for the Year commencing on such 404
March 1. 405
(c) The Contractor shall not schedule Project Water in excess of the quantity 406
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of Project Water the Contractor intends to put to reasonable and beneficial use within the 407
Contractor's Service Area, pursuant to Article 3 or to sell, transfer or exchange pursuant to 408
Article 5 and Article 9 of this Contract during any Year. 409
(d) Subject to the conditions set forth in subdivision (a) of Article 3 of this 410
Contract, the United States shall deliver Project Water for the Contractor in accordance with the 411
initial schedule submitted by the Contractor pursuant to subdivision (b) of this Article, or any 412
written revision(s) thereto satisfactory to the Contracting Officer, submitted within a reasonable 413
time prior to the date(s) on which the requested change(s) is/are to be implemented. 414
(e) Scheduling and delivery of Project Water for the Contractor shall be in 415
accordance with guidelines set forth in the Operations Manual as it may be amended from time 416
to time. The total amount of Project Water made available to DWR for the Contractor by the 417
Contracting Officer shall include water by the Contracting Officer to compensate DWR for water 418
conveyance losses incurred in conveyance of Project Water for the Contractor. 419
POINT OF DIVERSION AND RESPONSIBILITY FOR DISTRIBUTION OF WATER 420
5. (a) Project Water scheduled pursuant to subdivision (b) of Article 4 of this 421
Contract shall be delivered for the Contractor at a point or points of delivery either on Project 422
facilities or another location or locations mutually agreed to in writing by the Contracting Officer 423
and the Contractor. The parties acknowledge that Project Water to be furnished for the 424
Contractor pursuant to this Contract shall be delivered to the Contractor by direct delivery via the 425
Cross Valley Canal and/or by exchange arrangements involving Arvin-Edison Water Storage 426
District or others. The parties further acknowledge that such exchange arrangements are not 427
transfers subject to Section 3405(a) of CVPIA. Such exchange arrangements, other than the 428
previously approved exchange arrangements with Arvin-Edison Water Storage District approved 429
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by Assistant Regional Director, J. Robert Hammond, on December 4, 1974, shall be submitted to 430
the Contracting Officer for approval prior to the implementation of the proposed exchange. 431
(b) Omitted. 432
(1) To the extent that Friant Division Project Water exceeds Friant 433
Division Contract demand and other Project purposes, as determined by the Contracting Officer 434
and after consultation with the Contractor, if the Contractor so requests, the Contracting Officer, 435
subject to subdivision (d) of Article 3 of this Contract, shall make Project Water provided for in 436
subdivision (a) of Article 3 of this Contract available from such Friant Division supplies. 437
(2) As determined solely by the Contracting Officer, and after 438
consultation with the Contractor, Project Water may be provided to the Contractor, at the 439
Contractor's request and subject to the terms and conditions of this Contract, through Federal 440
Delta diversion and conveyance facilities and/or re-regulated in the Federal share of storage at 441
San Luis Reservoir for later delivery to the Contractor. 442
(c) The Contractor shall deliver Irrigation Water in accordance with any 443
applicable land classification provisions of Federal Reclamation law and the associated 444
regulations. The Contractor shall not deliver Project Water to land outside the Contractor's 445
Service Area unless approved in advance by the Contracting Officer. 446
(d) All Water Delivered to the Contractor pursuant to this Contract shall be 447
measured and recorded with equipment furnished, installed, operated, and maintained by the 448
Contracting Officer either directly or indirectly through its written agreements(s) with the 449
Operating Non-Federal Entity/Entities, unless undertaken by the Contractor with the 450
consent of the Contracting Officer at the point or points of delivery established pursuant to 451
subdivision (a) of this Article. Upon the request of either party to this Contract, the Contracting 452
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Officer shall investigate, or cause to be investigated by the appropriate Operating Non-Federal 453
Entity/Entities, the accuracy of such measurements and shall take any necessary steps to adjust 454
any errors appearing therein. For any period of time when accurate measurements have not been 455
made, the Contracting Officer shall consult with the Contractor and the appropriate Operating 456
Non-Federal Entity/Entities, if any, prior to making a final determination of the quantity 457
delivered for that period of time. 458
(e) Neither the Contracting Officer nor any Operating Non-Federal 459
Entity/Entities shall be responsible for the control, carriage, handling, use, disposal, or 460
distribution of Water Delivered to the Contractor pursuant to this Contract beyond the point or 461
points of delivery established pursuant to subdivision (a) of this Article. The Contractor shall 462
indemnify the United States, its officers, employees, agents, and assigns on account of damage or 463
claim of damage of any nature whatsoever for which there is legal responsibility, including 464
property damage, personal injury, or death arising out of or connected with the control, carriage, 465
handling, use, disposal, or distribution of such Water Delivered beyond such point or points of 466
delivery, except for any damage or claim arising out of: (i) acts or omissions of the Contracting 467
Officer or any of its officers, employees, agents, or assigns, including the Operating Non-Federal 468
Entity/Entities, with the intent of creating the situation resulting in any damage or claim; (ii) 469
willful misconduct of the Contracting Officer or any of its officers, employees, agents, or 470
assigns, including the Operating Non-Federal Entity/Entities; (iii) negligence of the Contracting 471
Officer or any of its officers, employees, agents, or assigns including the Operating Non-Federal 472
Entity/Entities; or (iv) damage or claims resulting from a malfunction of facilities owned and/or 473
operated by the United States or the Operating Non-Federal Entity/Entities; Provided, That the 474
Contractor is not the Operating Non-Federal Entity that owned or operated the malfunctioning 475
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facility(ies) from which the damage claim arose. 476
MEASUREMENT OF WATER WITHIN THE CONTRACTOR’S SERVICE AREA 477
6. (a) The Contractor has established a measuring program satisfactory to the 478
Contracting Officer. The Contractor shall ensure that all surface water delivered for irrigation 479
purposes within the Contractor’s Service Area is measured at each agricultural turnout and such 480
water delivered for M&I purposes is measured at each M&I service connection. The water 481
measuring devices or water measuring methods of comparable effectiveness must be acceptable 482
to the Contracting Officer. The Contractor shall be responsible for installing, operating, and 483
maintaining and repairing all such measuring devices and implementing all such water 484
measuring methods at no cost to the United States. The Contractor shall use the information 485
obtained from such water measuring devices or water measuring methods to ensure its proper 486
management of the water, to bill water users for water delivered by the Contractor; and, if 487
applicable, to record water delivered for M&I purposes by customer class as defined in the 488
Contractor’s water conservation plan provided for in Article 25 of this Contract. Nothing herein 489
contained, however, shall preclude the Contractor from establishing and collecting any charges, 490
assessments, or other revenues authorized by California law. The Contractor shall include a 491
summary of all its annual surface water deliveries in the annual report described in subdivision 492
(c) of Article 25 of this Contract. 493
(b) To the extent the information has not otherwise been provided, upon 494
execution of this Contract, the Contractor shall provide to the Contracting Officer a written 495
report describing the measurement devices or water measuring methods being used or to be used 496
to implement subdivision (a) of this Article and identifying the agricultural turnouts and the M&I 497
service connections or alternative measurement programs approved by the Contracting Officer, 498
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at which such measurement devices or water measuring methods are being used, and, if 499
applicable, identifying the locations at which such devices and/or methods are not yet being used 500
including a time schedule for implementation at such locations. The Contracting Officer shall 501
advise the Contractor in writing within sixty (60) days as to the adequacy of, and necessary 502
modifications, if any, of the measuring devices or water measuring methods identified in the 503
Contractor’s report and if the Contracting Officer does not respond in such time, they shall be 504
deemed adequate. If the Contracting Officer notifies the Contractor that the measuring devices 505
or methods are inadequate, the parties shall within sixty (60) days following the Contracting 506
Officer’s response, negotiate in good faith the earliest practicable date by which the Contractor 507
shall modify said measuring devices and/or measuring methods as required by the Contracting 508
Officer to ensure compliance with subdivision (a) of this Article. 509
(c) All new surface water delivery systems installed within the Contractor's 510
Service Area after the Effective Date shall also comply with the measurement provisions 511
described in subdivision (a) of this Article. 512
(d) The Contractor shall inform the Contracting Officer and the State of 513
California in writing by April 30 of each Year of the monthly volume of surface water delivered 514
within the Contractor’s Service Area during the previous Year. 515
(e) The Contractor shall inform the Contracting Officer and the Operating 516
Non-Federal Entity/Entities on or before the 20th calendar day of each month of the quantity of 517
Irrigation Water and M&I Water taken during the preceding month. 518
RATES, METHOD OF PAYMENT FOR WATER AND ACCELERATED REPAYMENT OF 519
FACILITIES 520
7. (a) Notwithstanding the Contractor’s full prepayment of the 521
Repayment Obligation pursuant to S ection 4011, subsection (a)(2)(A) and subsection 522
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(a)(3)(A) of the WIIN Act, as set forth in Exhibit “C”, and any payments required 523
pursuant to S ection 4011, subsection (b) of the WIIN Act, to reflect the adjustment for 524
the final cost allocation as described in this Article, subsection (b), the Contractor’s 525
Project construction and other obligations shall be determined in accordance with: (i) 526
the Secretary’s ratesetting policy for Irrigation Water adopted in 1988 and the Secretary's 527
then-existing ratesetting policy for M&I Water, consistent with the WIIN Act; and such 528
ratesetting policies shall be amended, modified, or superseded only through a public 529
notice and comment procedure; (ii) applicable Federal Reclamation law and associated 530
rules and regulations, or policies, and (iii) other applicable provisions of this Contract. 531
Payments shall be made by cash transaction, electronic funds transfers, or any other 532
mechanism as may be agreed to in writing by the Contractor and the Contracting Officer. 533
The Rates, Charges, and Tiered Pricing Component applicable to the Contractor upon 534
execution of this Contract are set forth in Exhibit “B”, as may be revised annually. 535
(1) The Contractor shall pay the United States as provided for in this 536
Article of this Contract for all Delivered Water at Rates, Charges, and Tiered Pricing 537
Component in accordance with policies for Irrigation Water and M&I Water. The Contractor’s 538
Rates shall be established to recover its estimated reimbursable costs included in the operation 539
and maintenance component of the Rate and amounts established to recover deficits and other 540
charges, if any, including construction costs as identified in the following subdivisions. 541
(2) In accordance with the WIIN Act, the Contractor’s allocable share 542
of Project construction costs will be repaid pursuant to the provisions of this Contract. 543
(A) The amount due and payable to the United States, pursuant 544
to the WIIN Act, shall be the Repayment Obligation. The Repayment Obligation has been 545
Contract No. 14-06-200-8292A-IR5-P
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computed by the Contracting Officer in a manner consistent with the WIIN Act and is set forth 546
as a lump sum payment (M&I and Irrigation) and as four (4) approximately equal annual 547
installments (Irrigation Only) to be repaid no later than three (3) years after the Effective Date as 548
set forth in Exhibit “C”. The Repayment Obligation is due in lump sum by January 31, 2022 as 549
provided by the WIIN Act. The Contractor must provide appropriate notice to the Contracting 550
Officer in writing no later than thirty (30) days prior to the Effective Date, if electing to repay the 551
amount due using the lump sum alternative. If such notice is not provided by such date, the 552
Contractor shall be deemed to have elected the installment payment alternative, in which case, 553
the first such payment shall be made no later than January 31, 2022. The second payment shall 554
be made no later than the first anniversary of the first payment date. The third payment shall be 555
made no later than the second anniversary of the first payment date. The final payment shall be 556
made no later than December 1, 2024. If the installment payment option is elected by the 557
Contractor, the Contractor may pre-pay the remaining portion of the Repayment Obligation by 558
giving the Contracting Officer sixty (60) days written notice, in which case, the Contracting 559
Officer shall re-compute the remaining amount due to reflect the pre-payment using the same 560
methodology as was used to compute the initial annual installment payment amount, which is 561
illustrated in Exhibit “C”. Notwithstanding any Additional Capital Obligation that may later be 562
established, receipt of the Contractor’s payment of the Repayment Obligation to the United 563
States shall fully and permanently satisfy the Existing Capital Obligation. 564
(B) Additional Capital Obligations that are not reflected in, the 565
schedules referenced in Exhibit “C” and properly assignable to the Contractor, shall be repaid as 566
prescribed by the WIIN Act without interest except as required by law. Consistent with Federal 567
Reclamation law, interest shall continue to accrue on the M&I portion of the Additional Capital 568
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Obligation assigned to the Contractor until such costs are paid. Increases or decreases in the 569
Additional Capital Obligation assigned to the Contractor caused solely by annual adjustment of 570
the Additional Capital Obligation assigned to each Project contractor by the Secretary shall not 571
be considered in determining the amounts to be paid pursuant to this subdivision (a)(2)(B), 572
however, will be considered under subdivision (b) of this Article. A separate agreement shall be 573
established by the Contractor and the Contracting Officer to accomplish repayment of the 574
Additional Capital Obligation assigned to the Contractor within the timeframe prescribed by the 575
WIIN Act, subject to the following: 576
(1) If the collective Additional Capital Obligation 577
properly assignable to the contractors exercising conversion under Section 4011 of the WIIN Act 578
is less than five million dollars ($5,000,000), then the portion of such costs properly assignable 579
to the Contractor shall be repaid not more than five (5)-years after the Contracting Officer 580
notifies the Contractor of the Additional Capital Obligation; Provided, That the reference to the 581
amount of five million dollars ($5,000,000) shall not be a precedent in any other context. 582
(2) If the collective Additional Capital Obligation 583
properly assignable to the contractors exercising conversion under Section 4011 of the WIIN Act 584
is equal to or greater than five million dollars ($5,000,000), then the portion of such costs 585
properly assignable to the Contractor shall be repaid as provided by applicable Federal 586
Reclamation law and Project ratesetting policy; Provided, That the reference to the amount of 587
five million dollars ($5,000,000) shall not be a precedent in any other context. 588
(b) In the event that the final cost allocation referenced in Section 4011(b) of 589
the WIIN Act determines that the costs properly assignable to the Contractor are greater than 590
what has been paid by the Contractor, the Contractor shall be obligated to pay the remaining 591
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allocated costs. The term of such additional repayment contract shall be not less than one (1) 592
year and not more than ten (10) years, however, mutually agreeable provisions regarding the rate 593
of repayment of such amount may be developed by the Contractor and Contracting Officer. In 594
the event that the final cost allocation indicates that the costs properly assignable to the 595
Contractor are less than what the Contractor has paid, the Contracting Officer shall credit such 596
overpayment as an offset against any outstanding or future obligations of the Contractor, with the 597
exception of Restoration Fund charges pursuant to Section 3407(d) of Pub. L. 102-575. 598
(c) The Contracting Officer shall notify the Contractor of the Rates, Charges, 599
and Tiered Pricing Component as follows: 600
(1) Prior to July 1 of each Calendar Year, the Contracting Officer shall 601
provide the Contractor an estimate of the Charges for Project Water that will be applied to the 602
period October 1, of the current Calendar Year, through September 30, of the following Calendar 603
Year, and the basis for such estimate. The Contractor shall be allowed not less than two months 604
to review and comment on such estimates. On or before September 15 of each Calendar Year, 605
the Contracting Officer shall notify the Contractor in writing of the Charges to be in effect during 606
the period October 1 of the current Calendar Year, through September 30, of the following 607
Calendar Year, and such notification shall revise Exhibit “B”. 608
(2) Prior to October 1 of each Calendar Year, the Contracting Officer 609
shall make available to the Contractor an estimate of the Rates and Tiered Pricing Component 610
for Project Water for the following Year and the computations and cost allocations upon which 611
those Rates are based. The Contractor shall be allowed not less than two months to review and 612
comment on such computations and cost allocations. By December 31 of each Calendar Year, 613
the Contracting Officer shall provide the Contractor with the final Rates and Tiered Pricing 614
Contract No. 14-06-200-8292A-IR5-P
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Component to be in effect for the upcoming Year, and such notification shall revise Exhibit “B”. 615
(d) At the time the Contractor submits the Contractor’s initial schedule for the 616
delivery of Project Water for each Year pursuant to subdivision (b) of Article 4 of this Contract, 617
the Contractor shall make an advance payment to the United States equal to the total amount 618
payable pursuant to the applicable Rate(s) set under subdivision (a) of this Article, for the Project 619
Water scheduled to be delivered pursuant to this Contract during the first two calendar months of 620
the Year. Before the end of the first month and before the end of each calendar month thereafter, 621
the Contractor shall make an advance payment to the United States, at the Rate(s) set under 622
subdivision (a) of this Article, for the Water Scheduled to be delivered pursuant to this Contract 623
during the second month immediately following. Adjustments between advance payments for 624
Water Scheduled and payments at Rates due for Water Delivered shall be made before the end of 625
the following month; Provided, That any revised schedule submitted by the Contractor pursuant 626
to Article 4 of this Contract which increases the amount of Water Delivered pursuant to this 627
Contract during any month shall be accompanied with appropriate advance payment, at the Rates 628
then in effect, to assure that Project Water is not delivered for the Contractor in advance of such 629
payment. In any month in which the quantity of Water Delivered for the Contractor pursuant to 630
this Contract equals the quantity of Water Scheduled and paid for by the Contractor, no 631
additional Project Water shall be delivered for the Contractor unless and until an advance 632
payment at the Rates then in effect for such additional Project Water is made. Final adjustment 633
between the advance payments for the Water Scheduled and payments for the quantities of Water 634
Delivered during each Year pursuant to this Contract shall be made as soon as practicable but no 635
later than April 30th of the following Year, or sixty (60) days after the delivery of Project Water 636
carried over under subdivision (g) of Article 3 of this Contract if such water is not delivered by 637
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the last day of February. 638
(e) The Contractor shall also make a payment in addition to the Rate(s) in 639
subdivision (d) of this Article to the United States for Water Delivered, at the Charges and the 640
appropriate Tiered Pricing Component then in effect, before the end of the month following the 641
month of delivery; Provided, That the Contractor may be granted an exception from the Tiered 642
Pricing Component pursuant to subdivision (k)(2) of this Article. The payments shall be 643
consistent with the quantities of Irrigation Water and M&I Water Delivered as shown in the 644
water delivery report for the subject month prepared by the Operating Non-Federal 645
Entity/Entities or, if there is no Operating Non-Federal Entity, by the Contracting Officer. The 646
water delivery report shall be deemed a bill for the payment of Charges and the applicable Tiered 647
Pricing Component for Water Delivered. Adjustment for overpayment or underpayment of 648
Charges shall be made through the adjustment of payments due to the United States for Charges 649
for the next month. Any amount to be paid for past due payment of Charges and the Tiered 650
Pricing Component shall be computed pursuant to Article 19 of this Contract. 651
(f) The Contractor shall pay for any Water Delivered under subdivision (a), 652
(f), or (g) of Article 3 of this Contract as determined by the Contracting Officer pursuant to 653
applicable statutes, associated regulations, any applicable provisions of guidelines or ratesetting 654
policies; Provided, That the Rate for Water Delivered under subdivision (f) of Article 3 of this 655
Contract shall be no more than the otherwise applicable Rate for Irrigation Water or M&I Water 656
under subdivision (a) of this Article. 657
(g) Payments to be made by the Contractor to the United States under this 658
Contract may be paid from any revenues available to the Contractor. 659
(h) All revenues received by the United States from the Contractor relating to 660
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the delivery of Project Water or the delivery of non-Project water through Project facilities shall 661
be allocated and applied in accordance with Federal Reclamation law and the associated rules or 662
regulations, and the then-current Project ratesetting policies for M&I Water or Irrigation Water. 663
(i) The Contracting Officer shall keep its accounts pertaining to the 664
administration of the financial terms and conditions of its long-term contracts, in accordance 665
with applicable Federal standards, so as to reflect the application of Project costs and revenues. 666
The Contracting Officer shall, each Year upon request of the Contractor, provide to the 667
Contractor a detailed accounting of all Project and Contractor expense allocations, the 668
disposition of all Project and Contractor revenues, and a summary of all water delivery 669
information. The Contracting Officer and the Contractor shall enter into good faith negotiations 670
to resolve any discrepancies or disputes relating to accountings, reports, or information. 671
(j) The parties acknowledge and agree that the efficient administration of this 672
Contract is their mutual goal. Recognizing that experience has demonstrated that mechanisms, 673
policies, and procedures used for establishing Rates, Charges, and Tiered Pricing Component, 674
and/or for making and allocating payments, other than those set forth in this Article may be in 675
the mutual best interest of the parties, it is expressly agreed that the parties may enter into 676
agreements to modify the mechanisms, policies, and procedures for any of those purposes while 677
this Contract is in effect without amending this Contract. 678
(k) (1) Beginning at such time as deliveries of Project Water in a Year 679
exceed 80 percent of the Contract Total, then before the end of the month following the month of 680
delivery the Contractor shall make an additional payment to the United States equal to the 681
applicable Tiered Pricing Component. The Tiered Pricing Component for the amount of Water 682
Delivered in excess of eighty (80) percent of the Contract Total, but less than or equal to ninety 683
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(90) percent of the Contract Total, shall equal the one-half of the difference between the Rate 684
established under subdivision (a) of this Article and the Irrigation Full Cost Water Rate or M&I 685
Full Cost Water Rate, whichever is applicable. The Tiered Pricing Component for the amount of 686
Water Delivered which exceeds ninety (90) percent of the Contract Total shall equal the 687
difference between (i) the Rate established under subdivision (a) of this Article and (ii) the 688
Irrigation Full Cost Water Rate or M&I Full Cost Water Rate, whichever is applicable. For all 689
Water Delivered pursuant to subdivision (a) of Article 3 of this Contract which is in excess of 690
eighty (80) percent of the Contract Total, this increment shall be deemed to be divided between 691
Irrigation Water and M&I Water in the same proportion as actual deliveries of each bear to the 692
cumulative total Water Delivered. 693
(2) Subject to the Contracting Officer’s written approval, the 694
Contractor may request and receive an exemption from such Tiered Pricing Component for 695
Project Water delivered to produce a crop which the Contracting Officer determines will provide 696
significant and quantifiable habitat values for waterfowl in fields where the water is used and the 697
crops are produced; Provided, That the exemption from the Tiered Pricing Component for 698
Irrigation Water shall apply only if such habitat values can be assured consistent with the 699
purposes of the CVPIA through binding agreements executed with or approved by the 700
Contracting Officer prior to use of such water. 701
(3) For purposes of determining the applicability of the Tiered Pricing 702
Component pursuant to this Article, Water Delivered shall include Project Water that the 703
Contractor transfers to others, but shall not include Project Water transferred to the Contractor, 704
nor shall it include the additional water provided to the Contractor under the provisions of 705
subdivision (f) of Article 3 of this Contract. 706
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(l) For the term of this Contract, Rates applied under the respective 707
ratesetting policies will be established to recover only reimbursable O&M (including any 708
deficits) and capital costs of the Project, as those terms are used in the then-current Project 709
ratesetting policies, and interest, where appropriate, except in instances where a minimum Rate is 710
applicable in accordance with the relevant Project ratesetting policy. Changes of significance in 711
practices which implement the Contracting Officer’s ratesetting policies will not be implemented 712
until the Contracting Officer has provided the Contractor an opportunity to discuss the nature, 713
need, and impact of the proposed change. 714
(m) Except as provided in subsections 3405(a)(1)(B) and 3405(f) of the 715
CVPIA, the Rates for Project Water transferred by the Contractor shall be the Contractor’s 716
Rates, in accordance with the applicable Project ratesetting policy, adjusted upward or 717
downward to reflect the changed costs if any incurred by the Contracting Officer in the delivery 718
of the transferred Project Water to the transferee’s point of delivery in accordance with the then-719
current Project ratesetting policy. In addition, if the Contractor is receiving lower Rates and 720
Charges because of inability to pay and is transferring Project Water to another entity whose 721
Rates and Charges are not adjusted due to inability to pay, the Rates and Charges for transferred 722
Project Water shall be the Contractor’s Rates and Charges and will not be adjusted to reflect the 723
Contractor’s inability to pay. 724
(n) Pursuant to the Act of October 27, 1986 (100 Stat. 3050), the Contracting 725
Officer is authorized to adjust determinations of ability to pay every five years. 726
(o) With respect to the Rates for M&I Water the Contractor asserts that it is 727
not legally obligated to pay any Project deficits claimed by the United States to have accrued as 728
of the date of this Contract or deficit-related interest charges thereon. By entering into this 729
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33
Contract, the Contractor does not waive any legal rights or remedies that it may have with 730
respect to such disputed issues. Notwithstanding the execution of this Contract and payments 731
made hereunder, the Contractor may challenge in the appropriate administrative or judicial 732
forums: (1) the existence, computation, or imposition of any deficit charges accruing during the 733
term of the Existing Contract and any preceding interim renewal contracts, if applicable; (2) 734
interest accruing on any such deficits; (3) the inclusion of any such deficit charges or interest in 735
the Rates; (4) the application by the United States of payments made by the Contractor under its 736
Existing Contract and any preceding interim renewal contracts, if applicable; and (5) the 737
application of such payments in the Rates. The Contracting Officer agrees that the Contractor 738
shall be entitled to the benefit of any administrative or judicial ruling in favor of any Project 739
M&I contractor on any of these issues, and credits for payments heretofore made, Provided, That 740
the basis for such ruling is applicable to the Contractor. 741
NON-INTEREST BEARING O&M DEFICITS 742
8. The Contractor and the Contracting Officer concur that, as of the Effective Date, 743
the Contractor has no non-interest-bearing O&M deficits and shall have no further liability 744
therefore. 745
SALES, TRANSFERS, OR EXCHANGES OF WATER 746
9. (a) The right to receive Project Water provided for in this Contract may be 747
sold, transferred, or exchanged to others for reasonable and beneficial uses within the State of 748
California if such sale, transfer, or exchange is authorized by applicable Federal and State laws, 749
and applicable guidelines or regulations then in effect. No sale, transfer, or exchange of Project 750
Water under this Contract may take place without the prior written approval of the Contracting 751
Officer, except as provided for in subdivision (b) of this Article, and no such sales, transfers, or 752
Contract No. 14-06-200-8292A-IR5-P
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exchanges shall be approved absent all appropriate environmental documentation including but 753
not limited to documents prepared pursuant to NEPA and ESA. Such environmental 754
documentation should include, as appropriate, an analysis of groundwater impacts and economic 755
and social effects, including environmental justice, of the proposed water transfers on both the 756
transferor and transferee. 757
(b) In order to facilitate efficient water management by means of water 758
transfers of the type historically carried out among Project Contractors located within the same 759
geographical area and to allow the Contractor to participate in an accelerated water transfer 760
program during the term of this Contract, the Contracting Officer shall prepare, as appropriate, 761
all necessary environmental documentation including, but not limited to, documents prepared 762
pursuant to NEPA and ESA analyzing annual transfers within such geographical areas and the 763
Contracting Officer shall determine whether such transfers comply with applicable law. 764
Following the completion of the environmental documentation, such transfers addressed in such 765
documentation shall be conducted with advance notice to the Contracting Officer, but shall not 766
require prior written approval by the Contracting Officer. Such environmental documentation 767
and the Contracting Officer’s compliance determination shall be reviewed every five years and 768
updated, as necessary, prior to the expiration of the then-existing five (5)- year period. All 769
subsequent environmental documentation shall include an alternative to evaluate not less than the 770
quantity of Project Water historically transferred within the same geographical area. 771
(c) For a water transfer to qualify under subdivision (b) of this Article, such 772
water transfer must: (i) be for irrigation purposes for lands irrigated within the previous three 773
years, for M&I use, groundwater recharge, groundwater banking, similar groundwater activities, 774
surface water storage, or fish and wildlife resources; not lead to land conversion; and be 775
Contract No. 14-06-200-8292A-IR5-P
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delivered to established cropland, wildlife refuges, groundwater basins or M&I use; (ii) occur 776
within a single Year; (iii) occur between a willing seller and a willing buyer; (iv) convey water 777
through existing facilities with no new construction or modifications to facilities and be between 778
existing Project Contractors and/or the Contractor and the United States, Department of the 779
Interior; and (v) comply with all applicable Federal, State, and local or tribal laws and 780
requirements imposed for protection of the environment and Indian Trust Assets, as defined 781
under Federal law. 782
APPLICATION OF PAYMENTS AND ADJUSTMENTS 783
10. (a) The amount of any overpayment by the Contractor of the Contractor’s 784
O&M, capital, and deficit (if any) obligations for the Year shall be applied first to any current 785
liabilities of the Contractor arising out of this Contract then due and payable. Overpayments of 786
more than $1,000 shall be refunded at the Contractor’s request. In lieu of a refund, any amount 787
of such overpayment, at the option of the Contractor, may be credited against amounts to become 788
due to the United States by the Contractor. With respect to overpayment, such refund or 789
adjustment shall constitute the sole remedy of the Contractor or anyone having or claiming to 790
have the right to the use of any of the Project Water supply provided for by this Contract. All 791
credits and refunds of overpayments shall be made within thirty (30) days of the Contracting 792
Officer obtaining direction as to how to credit or refund such overpayment in response to the 793
notice to the Contractor that it has finalized the accounts for the Year in which the overpayment 794
was made. 795
(b) All advances for miscellaneous costs incurred for work requested by the 796
Contractor pursuant to Article 24 of this Contract shall be adjusted to reflect the actual costs 797
when the work has been completed. If the advances exceed the actual costs incurred, the 798
Contract No. 14-06-200-8292A-IR5-P
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difference will be refunded to the Contractor. If the actual costs exceed the Contractor's 799
advances, the Contractor will be billed for the additional costs pursuant to Article 24 of this 800
Contract. 801
TEMPORARY REDUCTIONS – RETURN FLOWS 802
11. (a) Subject to: (i) the authorized purposes and priorities of the Project and the 803
requirements of Federal law; and (ii) the obligations of the United States under existing 804
contracts, or renewals thereof, providing for water deliveries from the Project; and (iii) the terms 805
and conditions of this Contract; the Contracting Officer shall make all reasonable efforts to 806
optimize Project Water deliveries for the Contractor as provided in this Contract. 807
(b) The Contracting Officer or Operating Non-Federal Entity/Entities may 808
temporarily discontinue or reduce the quantity of Water Delivered for the Contractor as herein 809
provided for the purposes of investigation, inspection, maintenance, repair, or replacement of any 810
of the Project facilities or any part thereof necessary for the delivery of Project Water for the 811
Contractor, but so far as feasible the Contracting Officer, or Operating Non-Federal 812
Entity/Entities will give the Contractor due notice in advance of such temporary discontinuance 813
or reduction, except in case of emergency, in which case no notice need be given; Provided, That 814
the United States shall use its best efforts to avoid any discontinuance or reduction in such 815
service. Upon resumption of service after such reduction or discontinuance, and if requested by 816
the Contractor, the United States will, if possible, deliver the quantity of Project Water which 817
would have been delivered hereunder in the absence of such discontinuance or reduction. 818
(c) The United States reserves the right to all seepage and return flow water 819
derived from Water Delivered to the Contractor hereunder which escapes or is discharged 820
beyond the Contractor's Service Area; Provided, That this shall not be construed as claiming for 821
Contract No. 14-06-200-8292A-IR5-P
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the United States any right to seepage or return flow being put to reasonable and beneficial use 822
pursuant to this Contract within the Contractor’s Service Area by the Contractor or those 823
claiming by, through, or under the Contractor. 824
CONSTRAINTS ON THE AVAILABILITY OF WATER 825
12. (a) In its operation of the Project, the Contracting Officer will use all 826
reasonable means to guard against a Condition of Shortage in the quantity of Project Water to be 827
made available to the Contractor pursuant to this Contract. In the event the Contracting Officer 828
determines that a Condition of Shortage appears probable, the Contracting Officer will notify the 829
Contractor of said determination as soon as practicable. 830
(b) If there is a Condition of Shortage because of inaccurate runoff forecasting 831
or other similar operational errors affecting the Project; drought, and other physical or natural 832
causes beyond the control of the Contracting Officer; or actions taken by the Contracting Officer 833
to meet current and future legal obligations, then, except as provided in subdivision (a) of Article 834
17 of this Contract, no liability shall accrue against the United States or any of its officers, 835
agents, or employees for any damage, direct or indirect, arising therefrom. 836
(c) In any Year in which there may occur a Condition of Shortage for any of 837
the reasons specified in subdivision (b) of this Article, the Contracting Officer shall apportion the 838
available Project Water supply among the Contractors and others entitled, under existing 839
contracts and future contracts (to the extent such future contracts are permitted under subsections 840
(a) and (b) of Section 3404 of the CVPIA) and renewals thereof, to receive Project Water 841
consistent with the contractual obligations of the United States. 842
(d) To the extent applicable, Project Water furnished under this Contract will 843
be allocated in accordance with the then-existing Project M&I Water Shortage Policy. Such 844
policy shall be amended, modified, or superseded only through a public notice and comment 845
procedure. 846
(e) By entering into this Contract, the Contractor does not waive any legal 847
rights or remedies it may have to file or participate in any administrative or judicial proceeding 848
contesting: (i) the sufficiency of the then-current Project M&I Water Shortage Policy; (ii) the 849
Contract No. 14-06-200-8292A-IR5-P
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substance of such a policy; or (iii) the applicability of such a policy. By agreeing to the 850
foregoing, the Contracting Officer does not waive any legal defenses or remedies that it may then 851
have to assert in such a proceeding. 852
UNAVOIDABLE GROUNDWATER PERCOLATION 853
13. (a) To the extent applicable, the Contractor shall not be deemed to have 854
delivered Irrigation Water to Excess Lands or Ineligible Lands within the meaning of this 855
Contract if such lands are irrigated with groundwater that reaches the underground strata as an 856
unavoidable result of the delivery of Irrigation Water by the Contractor to Eligible Lands. 857
(b) Upon complete payment of the Repayment Obligation by the Contractor, 858
this Article 13 shall no longer be applicable. 859
COMPLIANCE WITH FEDERAL RECLAMATION LAWS 860
14. The parties agree that the delivery of Irrigation Water or use of Federal facilities 861
pursuant to this Contract is subject to Federal Reclamation law, including but not limited to, the 862
Reclamation Reform Act of 1982 (43 U.S.C. 390aa, et seq.), as amended and supplemented, and 863
the rules and regulations promulgated by the Secretary of the Interior under Federal Reclamation 864
law. 865
PROTECTION OF WATER AND AIR QUALITY 866
15. (a) Omitted. 867
(b) The United States will care for, operate and maintain reserved works in a 868
manner that preserves the quality of the water at the highest level possible as determined by the 869
Contracting Officer. The United States does not warrant the quality of the water delivered to the 870
Contractor and is under no obligation to furnish or construct water treatment facilities to 871
maintain or improve the quality of water delivered to the Contractor. 872
(c) The Contractor will comply with all applicable water and air pollution 873
laws and regulations of the United States and the State of California; and shall obtain all required 874
permits or licenses from the appropriate Federal, State, or local authorities necessary for the 875
delivery of water by the Contractor; and shall be responsible for compliance with all Federal, 876
State, and local water quality standards applicable to surface and subsurface drainage and/or 877
discharges generated through the use of Federal or Contractor facilities or Project Water 878
provided by the Contractor within the its Service Area. 879
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(d) This Article shall not affect or alter any legal obligations of the Secretary 880
to provide drainage or other discharge services. 881
WATER ACQUIRED BY THE CONTRACTOR OTHER THAN FROM THE UNITED 882
STATES 883
16. (a) Water or water rights now owned or hereafter acquired by the Contractor 884
other than from the United States and Irrigation Water furnished pursuant to the terms of this 885
Contract may be simultaneously transported through the same distribution facilities of the 886
Contractor subject to the following: (i) if the facilities utilized for commingling Irrigation Water 887
and non-project water were constructed without funds made available pursuant to Federal 888
Reclamation law, the provisions of Federal Reclamation law will be applicable only to the 889
Landholders of lands which receive Irrigation Water; (ii) the eligibility of land to receive 890
Irrigation Water must be established through the certification requirements as specified in the 891
Acreage Limitation Rules and Regulations (43 CFR Part 426); and (iii) the water requirements of 892
Eligible Lands within the Contractor's Service Area can be established and the quantity of 893
Irrigation Water to be utilized is less than or equal to the quantity necessary to irrigate such 894
Eligible Lands. The Contractor and the Contracting Officer concur that the Contractor’s 895
distribution system was constructed without funds made available pursuant to Federal 896
Reclamation law. The use of this distribution system is not subject to the provisions of this 897
subdivision of this Article. 898
(b) Water or water rights now owned or hereafter acquired by the Contractor, 899
other than from the United States or adverse to the Project or its contractors (i.e. non-project 900
water), may be stored, conveyed, and/or diverted through Project facilities, subject to the 901
completion of appropriate environmental documentation, with the approval of the Contracting 902
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Officer and the execution of any contract determined by the Contracting Officer to be necessary, 903
consistent with the following provisions: 904
(1) The Contractor may introduce non-Project water into Project 905
facilities and deliver said water to lands within the Contractor’s Service Area, including 906
Ineligible Lands, subject to payment to the United States and/or to any applicable Operating 907
Non-Federal Entity of an appropriate rate as determined by the applicable Project ratesetting 908
policy, the Reclamation Reform Act of 1982, and the Project use power policy, if such 909
Project use power policy is applicable, each as amended, modified, or superseded from time to 910
time. 911
(2) Delivery of such non-Project water in and through Project facilities 912
shall only be allowed to the extent such deliveries do not: (i) interfere with other Project 913
purposes as determined by the Contracting Officer; (ii) reduce the quantity or quality of water 914
available to other Project Contractors; (iii) interfere with the delivery of contractual water 915
entitlements to any other Project Contractors; or (iv) interfere with the physical maintenance of 916
the Project facilities. 917
(3) Neither the United States nor the Operating Non-Federal 918
Entity(ies) shall be responsible for control, care, or distribution of the non-Project water before it 919
is introduced into or after it is delivered from the Project facilities. The Contractor hereby 920
releases and agrees to defend and indemnify the United States and the Operating Non-Federal 921
Entity(ies), and their respective officers, agents, and employees, from any claim for damage to 922
persons or property, direct or indirect, resulting from the act(s) of the Contractor its officers, 923
employees, agents or assigns, in (i) extracting or diverting non-Project water from any source, or 924
(ii) diverting such non-Project water into Project facilities. 925
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(4) Diversion of such non-Project water into Project facilities shall be 926
consistent with all applicable laws, and if involving groundwater, consistent with any applicable 927
groundwater management plan for the area from which it was extracted. 928
(5) After Project purposes are met, as determined by the Contracting 929
Officer, the United States and the Contractor shall share priority to utilize the remaining capacity 930
of the facilities declared to be available by the Contracting Officer for conveyance and 931
transportation of non-Project water prior to any such remaining capacity being made available to 932
non-Project contractors. 933
(c) Upon complete payment of the Repayment Obligation by the Contractor, 934
subdivision (a) of this Article 16 shall no longer be applicable. 935
OPINIONS AND DETERMINATIONS 936
17. (a) Where the terms of this Contract provide for actions to be based upon the 937
opinion or determination of either party to this Contract, said terms shall not be construed as 938
permitting such action to be predicated upon arbitrary, capricious, or unreasonable opinions or 939
determinations. The parties, notwithstanding any other provisions of this Contract, expressly 940
reserve the right to seek relief from and appropriate adjustment for any such arbitrary, capricious, 941
or unreasonable opinion or determination. Each opinion or determination by either party shall be 942
provided in a timely manner. Nothing in subdivision (a) of this Article 17 is intended to or shall 943
affect or alter the standard of judicial review applicable under Federal law to any opinion or 944
determination implementing a specific provision of Federal law embodied in statute or 945
regulation. 946
(b) The Contracting Officer shall have the right to make determinations 947
necessary to administer this Contract that are consistent with the provisions of this Contract, the 948
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42
laws of the United States and of the State of California, and the rules and regulations 949
promulgated by the Secretary of the Interior. Such determinations shall be made in consultation 950
with the Contractor to the extent reasonably practicable. 951
COORDINATION AND COOPERATION 952
18. (a) In order to further their mutual goals and objectives, the Contracting 953
Officer and the Contractor shall communicate, coordinate, and cooperate with each other, and 954
with other affected Project Contractors, in order to improve the O&M of the Project. The 955
communication, coordination, and cooperation regarding O&M shall include, but not be limited 956
to, any action which will or may materially affect the quantity or quality of Project Water supply, 957
the allocation of Project Water supply, and Project financial matters including, but not limited to, 958
budget issues. The communication, coordination, and cooperation provided for hereunder shall 959
extend to all provisions of this Contract. All parties shall retain exclusive decision making 960
authority for all actions, opinions, and determinations to be made by the respective party. 961
(b) Within one-hundred twenty (120) days following the Effective Date, the 962
Contractor, other affected Project Contractors, and the Contracting Officer shall arrange to meet 963
with interested Project Contractors to develop a mutually agreeable, written Project-wide 964
process, which may be amended as necessary separate and apart from this Contract. The goal of 965
this process shall be to provide, to the extent practicable, the means of mutual communication 966
and interaction regarding significant decisions concerning Project O&M on a real-time basis. 967
(c) In light of the factors referred to in subdivision (b) of Article 3 of this 968
Contract, it is the intent of the Secretary to improve water supply reliability. To carry out this 969
intent: 970
(1) The Contracting Officer will, at the request of the Contractor, 971
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assist in the development of integrated resource management plans for the Contractor. Further, 972
the Contracting Officer will, as appropriate, seek authorizations for implementation of 973
partnerships to improve water supply, water quality, and reliability. 974
(2) The Secretary will, as appropriate, pursue program and project 975
implementation and authorization in coordination with Project Contractors to improve the water 976
supply, water quality, and reliability of the Project for all Project purposes. 977
(3) The Secretary will coordinate with Project Contractors and the 978
State of California to seek improved water resource management. 979
(4) The Secretary will coordinate actions of agencies within the 980
Department of the Interior that may impact the availability of water for Project purposes. 981
(5) The Contracting Officer shall periodically, but not less than 982
annually, hold division level meetings to discuss Project operations, division level water 983
management activities, and other issues as appropriate. 984
(d) Without limiting the contractual obligations of the Contracting Officer 985
under the other Articles of this Contract, nothing in this Article shall be construed to limit or 986
constrain the Contracting Officer’s ability to communicate, coordinate, and cooperate with the 987
Contractor or other interested stakeholders or to make decisions in a timely fashion as needed to 988
protect health, safety, or the physical integrity of structures or facilities. 989
CHARGES FOR DELINQUENT PAYMENTS 990
19. (a) The Contractor shall be subject to interest, administrative, and penalty 991
charges on delinquent payments. If a payment is not received by the due date, the Contractor 992
shall pay an interest charge on the delinquent payment for each day the payment is delinquent 993
beyond the due date. If a payment becomes 60 days delinquent, the Contractor shall pay, in 994
addition to the interest charge, an administrative charge to cover additional costs of billing and 995
processing the delinquent payment. If a payment is delinquent 90 days or more, the Contractor 996
shall pay, in addition to the interest and administrative charges, a penalty charge for each day the 997
payment is delinquent beyond the due date, based on the remaining balance of the payment due 998
Contract No. 14-06-200-8292A-IR5-P
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at the rate of 6 percent per year. The Contractor shall also pay any fees incurred for debt 999
collection services associated with a delinquent payment. 1000
(b) The interest rate charged shall be the greater of either the rate prescribed 1001
quarterly in the Federal Register by the Department of the Treasury for application to overdue 1002
payments, or the interest rate of 0.5 percent per month. The interest rate charged will be 1003
determined as of the due date and remain fixed for the duration of the delinquent period. 1004
(c) When a partial payment on a delinquent account is received, the amount 1005
received shall be applied first to the penalty charges, second to the administrative charges, third 1006
to the accrued interest, and finally to the overdue payment. 1007
EQUAL EMPLOYMENT OPPORTUNITY 1008
20. During the performance of this Contract, the Contractor agrees as follows: 1009
(a) The Contractor will not discriminate against any employee or applicant for 1010
employment because of race, color, religion, sex, sexual orientation, gender identity, or national 1011
origin. The Contractor will take affirmative action to ensure that applicants are employed, and 1012
that employees are treated during employment, without regard to their race, color, religion, sex, 1013
sexual orientation, gender identity, or national origin. Such action shall include, but not be 1014
limited to the following: employment, upgrading, demotion, or transfer; recruitment or 1015
recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and 1016
selection for training, including apprenticeship. The Contractor agrees to post in conspicuous 1017
places, available to employees and applicants for employment, notices to be provided by the 1018
Contracting Officer setting forth the provisions of this nondiscrimination clause. 1019
(b) The Contractor will, in all solicitations or advertisements for employees 1020
placed by or on behalf of the Contractor, state that all qualified applicants will receive 1021
consideration for employment without regard to race, color, religion, sex, sexual orientation, 1022
gender identity, or national origin. 1023
(c) The Contractor will not discharge or in any other manner discriminate 1024
against any employee or applicant for employment because such employee or applicant has 1025
inquired about, discussed, or disclosed the compensation of the employee or applicant or 1026
another employee or applicant. This provision shall not apply to instances in which an 1027
employee who has access to the compensation information of other employees or applicants as 1028
part of such employee’s essential job functions discloses the compensation of such other 1029
employees or applicants to individuals who do not otherwise have access to such information, 1030
unless such disclosure is in response to a formal complaint or charge, in furtherance of an 1031
investigation, proceeding, hearing, or action, including an investigation conducted by the 1032
employer, or is consistent with the Contractor’s legal duty to furnish information. 1033
(d) The Contractor will send to each labor union or representative of workers 1034
with which it has a collective bargaining agreement or other contract or understanding, a notice, 1035
to be provided by the Contracting Officer, advising the labor union or workers’ representative of 1036
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45
the Contractor’s commitments under Section 202 of Executive Order 11246 of September 24, 1037
1965, and shall post copies of the notice in conspicuous places available to employees and 1038
applicants for employment. 1039
(e) The Contractor will comply with all provisions of Executive Order No. 1040
11246 of Sept. 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of 1041
Labor. 1042
(f) The Contractor will furnish all information and reports required by 1043
Executive Order No. 11246 of Sept. 24, 1965, and by the rules, regulations, and orders of the 1044
Secretary of Labor, or pursuant thereto, and will permit access to its books, records, and accounts 1045
by the Contracting Agency and the Secretary of Labor for purposes of investigation to ascertain 1046
compliance with such rules, regulations, and orders. 1047
(g) In the event of the Contractor’s noncompliance with the nondiscrimination 1048
clauses of this Contract or with any of such rules, regulations, or orders, this Contract may be 1049
canceled, terminated or suspended in whole or in part and the Contractor may be declared 1050
ineligible for further Government contracts in accordance with procedures authorized in 1051
Executive Order No. 11246 of Sept. 24, 1965, and such other sanctions may be imposed and 1052
remedies invoked as provided in Executive Order No. 11246 of Sept. 24, 1965 or by rule, 1053
regulation, or order of the Secretary of Labor, or as otherwise provided by law. 1054
(h) The Contractor will include the provisions of paragraphs (a) through (g) in 1055
every subcontract or purchase order unless exempted by the rules, regulations, or orders of the 1056
Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of Sept. 24, 1057
1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor 1058
will take such action with respect to any subcontract or purchase order as may be directed by the 1059
Secretary of Labor as a means of enforcing such provisions, including sanctions for 1060
noncompliance: Provided, however, That in the event the Contractor becomes involved in, or is 1061
threatened with, litigation with a subcontractor or vendor as a result of such direction, the 1062
Contractor may request the United States to enter into such litigation to protect the interests of 1063
the United States. 1064
GENERAL OBLIGATION – BENEFITS CONDITIONED UPON PAYMENT 1065
21. (a) The obligation of the Contractor to pay the United States as provided in 1066
this Contract is a general obligation of the Contractor notwithstanding the manner in which the 1067
obligation may be distributed among the Contractor's water users and notwithstanding the default 1068
of individual water users in their obligation to the Contractor. 1069
(b) The payment of charges becoming due pursuant to this Contract is a 1070
condition precedent to receiving benefits under this Contract. The United States shall not make 1071
water available to the Contractor through Project facilities during any period in which the 1072
Contractor is in arrears in the advance payment of water rates due the United States. The 1073
Contractor shall not deliver water under the terms and conditions of this Contract for lands or 1074
parties that are in arrears in the advance payment of water rates as levied or established by the 1075
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46
Contractor. 1076
(c) With respect to subdivision (b) of this Article, the Contractor shall have no 1077
obligation to require advance payment for water rates which it levies. 1078
COMPLIANCE WITH CIVIL RIGHTS LAWS AND REGULATIONS 1079
22. (a) The Contractor shall comply with Title VI of the Civil Rights Act of 1964 1080
(Pub. L. 88-352; 42 U.S.C. § 2000d), the Rehabilitation Act of 1973 (Pub. L. 93-112, Title V, as 1081
amended; 29 U.S.C. § 791, et seq.), the Age Discrimination Act of 1975 (Pub. L. 94-135, Title 1082
III; 42 U.S.C. § 6101, et seq.), Title II of the Americans with Disabilities Act of 1990 (Pub. L. 1083
101-336; 42 U.S.C. § 12131, et seq.), and any other applicable civil rights laws, and with the 1084
applicable implementing regulations and any guidelines imposed by the U.S. Department of the 1085
Interior and/or Bureau of Reclamation. 1086
(b) These statutes prohibit any person in the United States from being 1087
excluded from participation in, being denied the benefits of, or being otherwise subjected to 1088
discrimination under any program or activity receiving financial assistance from the Bureau of 1089
Reclamation on the grounds of race, color, national origin, disability, or age. By executing this 1090
Contract, the Contractor agrees to immediately take any measures necessary to implement this 1091
obligation, including permitting officials of the United States to inspect premises, programs, and 1092
documents. 1093
(c) The Contractor makes this Contract in consideration of and for the 1094
purpose of obtaining any and all Federal grants, loans, contracts, property discounts, or other 1095
Federal financial assistance extended after the date hereof to the Contractor by the Bureau of 1096
Reclamation, including installment payments after such date on account of arrangements for 1097
Federal financial assistance which were approved before such date. The Contractor recognizes 1098
and agrees that such Federal assistance will be extended in reliance on the representations and 1099
agreements made in this Article and that the United States reserves the right to seek judicial 1100
enforcement thereof. 1101
(d) Complaints of discrimination against the Contractor shall be investigated 1102
by the Contracting Officer’s Office of Civil Rights. 1103
PRIVACY ACT COMPLIANCE 1104
23. (a) The Contractor shall comply with the Privacy Act of 1974 (Privacy Act) 1105
(5 U.S.C. § 552a) and the Department of the Interior rules and regulations under the Privacy Act 1106
(43 C.F.R. § 2.45, et seq.) in maintaining Landholder certification and reporting records required 1107
to be submitted to the Contractor for compliance with Sections 206, 224(c), and 228 of the 1108
Reclamation Reform Act of 1982 (43 U.S.C. §§ 390ff, 390ww, and 390zz), and pursuant to 43 1109
C.F.R. § 426.18. 1110
(b) With respect to the application and administration of the criminal penalty 1111
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provisions of the Privacy Act (5 U.S.C. § 552a(i)), the Contractor and the Contractor’s 1112
employees who are responsible for maintaining the certification and reporting records referenced 1113
in paragraph (a) above are considered to be employees of the Department of the Interior. See 5 1114
U.S.C. § 552a(m). 1115
(c) The Contracting Officer or a designated representative shall provide the 1116
Contractor with current copies of the Department of the Interior Privacy Act regulations and the 1117
Bureau of Reclamation Federal Register Privacy Act System of Records Notice (Interior/WBR-1118
31, Acreage Limitation) which govern the maintenance, safeguarding, and disclosure of 1119
information contained in the Landholders’ certification and reporting records. 1120
(d) The Contracting Officer shall designate a full-time employee of the 1121
Bureau of Reclamation to be the System Manager responsible for making decisions on denials 1122
pursuant to 43 C.F.R. §§ 2.61 and 2.64 and amendment requests pursuant to 43 C.F.R. § 2.72. 1123
The Contractor is authorized to grant requests by individuals for access to their own records. 1124
(e) The Contractor shall forward promptly to the System Manager each 1125
proposed denial of access under 43 C.F.R. § 2.64 and each request for amendment of records 1126
filed under 43 C.F.R. § 2.71; notify the requester accordingly of such referral; and provide the 1127
System Manager with information and records necessary to prepare an appropriate response to 1128
the requester. These requirements do not apply to individuals seeking access to their own 1129
certification and reporting forms filed with the Contractor pursuant to 43 C.F.R. § 426.18 unless 1130
the requester elects to cite the Privacy Act as authority for the request. 1131
(f) Upon complete payment of the Repayment Obligation by the 1132
Contractor, this Article 23 will no longer be applicable. 1133
CONTRACTOR TO PAY CERTAIN MISCELLANEOUS COSTS 1134
24. In addition to all other payments to be made by the Contractor pursuant to this 1135
Contract, the Contractor shall pay to the United States, within sixty (60) days after receipt of a 1136
bill and detailed statement submitted by the Contracting Officer to the Contractor for such 1137
specific items of direct cost incurred by the United States for work requested by the Contractor 1138
associated with this Contract plus indirect costs in accordance with applicable Bureau of 1139
Reclamation policies and procedures. All such amounts referred to in this Article shall not 1140
exceed the amount agreed to in writing in advance by the Contractor. This Article shall not 1141
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apply to costs for routine contract administration. 1142
WATER CONSERVATION 1143
25. (a) Prior to the delivery of water provided from or conveyed through 1144
Federally constructed or Federally financed facilities pursuant to this Contract, the 1145
Contractor shall develop a water conservation plan, as required by subsection 210(b) of the 1146
Reclamation Reform Act of 1982 and 43 C.F.R. 427.1 (Water Conservation Rules and 1147
Regulations). 1148
Additionally, an effective water conservation and efficiency program shall be based on the 1149
Contractor's water conservation plan that has been determined by the Contracting Officer to 1150
meet the conservation and efficiency criteria for evaluating water conservation plans 1151
established under Federal law. The water conservation and efficiency program shall contain 1152
definite water conservation objectives, appropriate economically feasible water conservation 1153
measures, and time schedules for meeting those objectives. Continued Project Water delivery 1154
pursuant to this Contract shall be contingent upon the Contractor’s continued implementation of 1155
such water conservation program. In the event the Contractor's water conservation plan or any 1156
revised water conservation plan completed pursuant to subdivision (d) of this Article 25 have not 1157
yet been determined by the Contracting Officer to meet such criteria, due to circumstances which 1158
the Contracting Officer determines are beyond the control of the Contractor, water deliveries 1159
shall be made under this Contract so long as the Contractor diligently works with the Contracting 1160
Officer to obtain such determination at the earliest practicable date, and thereafter the Contractor 1161
immediately begins implementing its water conservation and efficiency program in accordance 1162
with the time schedules therein. 1163
(b) Should the amount of M&I Water delivered pursuant to subdivision (a) of 1164
Article 3 of this Contract equal or exceed two thousand (2,000) acre-feet per Year, the 1165
Contractor shall implement the Best Management Practices identified by the time frames issued 1166
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by the Mid-Pacific Region’s then-existing conservation and efficiency criteria for such 1167
M&I Water unless any such practice is determined by the Contracting Officer to be inappropriate 1168
for the Contractor. 1169
(c) The Contractor shall submit to the Contracting Officer a report on the 1170
status of its implementation of the water conservation plan on the reporting dates specified in the 1171
then existing conservation and efficiency criteria established under Federal law. 1172
(d) At five (5)-year intervals, the Contractor shall revise its water 1173
conservation plan to reflect the then-existing conservation and efficiency criteria for evaluating 1174
water conservation plans established under Federal law and submit such revised water 1175
management plan to the Contracting Officer for review and evaluation. The Contracting Officer 1176
will then determine if the water conservation plan meets Reclamation’s then-existing 1177
conservation and efficiency criteria for evaluating water conservation plans established under 1178
Federal law. 1179
(e) If the Contractor is engaged in direct groundwater recharge, such activity 1180
shall be described in the Contractor’s water conservation plan. 1181
EXISTING OR ACQUIRED WATER OR WATER RIGHTS 1182
26. Except as specifically provided in Article 16 of this Contract, the provisions of 1183
this Contract shall not be applicable to or affect non-project water or water rights now owned or 1184
hereafter acquired by the Contractor or any user of such water within the Contractor's Service 1185
Area. Any such water shall not be considered Project Water under this Contract. In addition, 1186
this Contract shall not be construed as limiting or curtailing any rights which the Contractor or 1187
any water user within the Contractor's Service Area acquires or has available under any other 1188
contract pursuant to Federal Reclamation law. 1189
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OPERATION AND MAINTENANCE BY THE OPERATING NON-FEDERAL ENTITY(IES) 1190
27. (a) The O&M of a portion of the Project facilities which serve the Contractor, 1191
and responsibility for funding a portion of the costs of such O&M, have been transferred to two 1192
Operating Non-Federal Entities by separate agreement between the United States and the 1193
Operating Non-Federal Entities. Those separate agreements shall not interfere with or affect the 1194
rights or obligations of the Contractor or the United States hereunder. Specifically, portions of 1195
the Delta-Mendota Canal, the San Luis Canal and other related facilities are operated by the San 1196
Luis & Delta Mendota Water Authority and the Friant-Kern Canal and related facilities are 1197
operated by the Friant Water Authority. 1198
(b) The Contracting Officer has previously notified the Contractor in writing 1199
that the O&M of a portion of the Project facilities which serve the Contractor has been 1200
transferred to the Operating Non-Federal Entity, and therefore, the Contractor shall pay directly 1201
to the applicable Operating Non-Federal Entity(ies), or to any successor(s) approved by the 1202
Contracting Officer under the terms and conditions of the separate agreement(s) between the 1203
United States and the Operating Non-Federal Entity(ies) described in subdivision (a) of this 1204
Article, all rates, charges, or assessments of any kind, including any assessment for reserve 1205
funds, which the Operating Non-Federal Entity(ies) or such successor(s) determines, sets, or 1206
establishes for the O&M of the portion of the Project facilities operated and maintained by the 1207
Operating Non-Federal Entity or such successor. Such direct payments to the Operating Non-1208
Federal Entity or such successor shall not relieve the Contractor of its obligation to pay directly 1209
to the United States the Contractor’s share of the Project Rates, Charges, and Tiered Pricing 1210
Component(s) except to the extent the Operating Non-Federal Entity collects payments on behalf 1211
of the United States in accordance with the separate agreement identified in subdivision (a) of 1212
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this Article. 1213
(c) For so long as the O&M of any portion of the Project facilities serving the 1214
Contractor is performed by the Operating Non-Federal Entity(ies), or any successor(s) thereto, 1215
the Contracting Officer shall adjust those components of the Rates for Water Delivered under 1216
this Contract representing the cost associated with the activity being performed by the Operating 1217
Non-Federal Entity(ies) or its (their) successor(s). 1218
(d) In the event the O&M of the Project facilities operated and maintained by 1219
the Operating Non-Federal Entity(ies) is re-assumed by the United States during the term of this 1220
Contract, the Contracting Officer shall so notify the Contractor, in writing, and present to the 1221
Contractor a revised Exhibit “B” which shall include the portion of the Rates to be paid by the 1222
Contractor for Project Water under this Contract representing the O&M costs of the portion of 1223
such Project facilities which have been re-assumed. The Contractor shall, thereafter, in the 1224
absence of written notification from the Contracting Officer to the contrary, pay the Rates, 1225
Charges, and Tiered Pricing Component(s) specified in the revised Exhibit “B” directly to the 1226
United States in compliance with Article 7 of this Contract. 1227
CONTINGENT ON APPROPRIATION OR ALLOTMENT OF FUNDS 1228
28. The expenditure or advance of any money or the performance of any obligation of 1229
the United States under this Contract shall be contingent upon appropriation or allotment of 1230
funds. Absence of appropriation or allotment of funds shall not relieve the Contractor from any 1231
obligations under this Contract. No liability shall accrue to the United States in case funds are 1232
not appropriated or allotted. 1233
BOOKS, RECORDS, AND REPORTS 1234
29. (a) The Contractor shall establish and maintain accounts and other books and 1235
records pertaining to administration of the terms and conditions of this Contract, including the 1236
Contractor's financial transactions; water supply data; project operations, maintenance, and 1237
replacement logs; project land and rights-of-way use agreements; the water users’ land-use (crop 1238
census), land-ownership, land-leasing, and water-use data; and other matters that the Contracting 1239
Officer may require Reports shall be furnished to the Contracting Officer in such form and on 1240
Contract No. 14-06-200-8292A-IR5-P
52
such date or dates as the Contracting Officer may require. Subject to applicable Federal laws 1241
and regulations, each party to this Contract shall have the right during office hours to examine 1242
and make copies of the other party’s books and records relating to matters covered by this 1243
Contract. 1244
(b) Notwithstanding the provisions of subdivision (a) of this Article, no 1245
books, records, or other information shall be requested from the Contractor by the Contracting 1246
Officer unless such books, records, or information are reasonably related to the administration or 1247
performance of this Contract. Any such request shall allow the Contractor a reasonable period of 1248
time within which to provide the requested books, records, or information. 1249
(c) At such time as the Contractor provides information to the Contracting Officer 1250
pursuant to subdivision (a) of this Article, a copy of such information shall be provided to the 1251
Operating Non-Federal Entity(ies). 1252
ASSIGNMENT LIMITED – SUCCESSORS AND ASSIGNS OBLIGATED 1253
30. (a) The provisions of this Contract shall apply to and bind the successors and 1254
assigns of the parties hereto, but no assignment or transfer of this Contract or any right or interest 1255
therein by either party shall be valid until approved in writing by the other party. 1256
(b) The assignment of any right or interest in this Contract by either party 1257
shall not interfere with the rights or obligations of the other party to this Contract absent the 1258
written concurrence of said other party. 1259
(c) The Contracting Officer shall not unreasonably condition or withhold 1260
approval of any proposed assignment. 1261
SEVERABILITY 1262
31. In the event that a person or entity who is neither (i) a party to a Project contract, 1263
nor (ii) a person or entity that receives Project Water from a party to a Project contract, nor 1264
(iii) an association or other form of organization whose primary function is to represent parties to 1265
Project contracts, brings an action in a court of competent jurisdiction challenging the legality or 1266
Contract No. 14-06-200-8292A-IR5-P
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enforceability of a provision included in this Contract and said person, entity, association, or 1267
organization obtains a final court decision holding that such provision is legally invalid or 1268
unenforceable and the Contractor has not intervened in that lawsuit in support of the plaintiff(s), 1269
the parties to this Contract shall use their best efforts to (i) within thirty (30) days of the date of 1270
such final court decision identify by mutual agreement the provisions in this Contract which 1271
must be revised and (ii) within three months thereafter promptly agree on the appropriate 1272
revision(s). The time periods specified above may be extended by mutual agreement of the 1273
parties. Pending the completion of the actions designated above, to the extent it can do so 1274
without violating any applicable provisions of law, the United States shall continue to make the 1275
quantities of Project Water specified in this Contract available to the Contractor pursuant to the 1276
provisions of this Contract which were not found to be legally invalid or unenforceable in the 1277
final court decision. 1278
RESOLUTION OF DISPUTES 1279
32. Should any dispute arise concerning any provisions of this Contract, or the 1280
parties’ rights and obligations thereunder, the parties shall meet and confer in an attempt to 1281
resolve the dispute. Prior to the Contractor commencing any legal action, or the Contracting 1282
Officer referring any matter to the Department of Justice, the party shall provide to the other 1283
party thirty (30) days written notice of the intent to take such action; Provided, That such notice 1284
shall not be required where a delay in commencing an action would prejudice the interests of the 1285
party that intends to file suit. During the thirty (30) day notice period, the Contractor and the 1286
Contracting Officer shall meet and confer in an attempt to resolve the dispute. Except as 1287
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specifically provided, nothing herein is intended to waive or abridge any right or remedy that the 1288
Contractor or the United States may have. 1289
OFFICIALS NOT TO BENEFIT 1290
33. No Member of or Delegate to the Congress, Resident Commissioner, or official of 1291
the Contractor shall benefit from this Contract other than as a water user or landowner in the 1292
same manner as other water users or landowners. 1293
CHANGES IN CONTRACTOR’S ORGANIZATION AND/OR SERVICE AREA 1294
34. (a) While this Contract is in effect, no change may be made in the 1295
Contractor’s Service Area or organization, by inclusion or exclusion of lands or by any other 1296
changes which may affect the respective rights, obligations, privileges, and duties of either the 1297
United States or the Contractor under this Contract including, but not limited to, dissolution, 1298
consolidation, or merger, except upon the Contracting Officer’s written consent. 1299
(b) Within thirty (30) days of receipt of a request for such a change, the 1300
Contracting Officer will notify the Contractor of any additional information required by the 1301
Contracting Officer for processing said request, and both parties will meet to establish a mutually 1302
agreeable schedule for timely completion of the process. Such process will analyze whether the 1303
proposed change is likely to: (i) result in the use of Project Water contrary to the terms of this 1304
Contract; (ii) impair the ability of the Contractor to pay for Project Water furnished under this 1305
Contract or to pay for any Federally-constructed facilities for which the Contractor is 1306
responsible; and (iii) have an impact on any Project Water rights applications, permits, or 1307
licenses. In addition, the Contracting Officer shall comply with NEPA and ESA. The 1308
Contractor will be responsible for all costs incurred by the Contracting Officer in this process, 1309
and such costs will be paid in accordance with Article 24 of this Contract. 1310
FEDERAL LAWS 1311
35. By entering into this Contract, the Contractor does not waive its rights to contest 1312
the validity or application in connection with the performance of the terms and conditions of this 1313
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55
Contract of any Federal law or regulation; Provided, That the Contractor agrees to comply with 1314
the terms and conditions of this Contract unless and until relief from application of such Federal 1315
law or regulation to the implementing provision of the Contract is granted by a court of 1316
competent jurisdiction. 1317
RECLAMATION REFORM ACT OF 1982 1318
36. (a) Upon a Contractor’s compliance with and discharge of the Repayment 1319
Obligation pursuant to this Contract, subsections (a) and (b) of Section 213 of the Reclamation 1320
Reform Act of 1982 (96 Stat. 1269) shall apply to affected lands. 1321
(b) The obligation of a Contractor to pay the Additional Capital Obligation 1322
shall not affect the Contractor’s status as having repaid all of the construction costs assignable to 1323
the Contractor or the applicability of subsections (a) and (b) of Section 213 of the Reclamation 1324
Reform Act of 1982 (96 Stat. 1269) once the Repayment Obligation is paid. 1325
CERTIFICATION OF NONSEGREGATED FACILITIES 1326
37. The Contractor hereby certifies that it does not maintain or provide for its 1327
employees any segregated facilities at any of its establishments and that it does not permit its 1328
employees to perform their services at any location under its control where segregated facilities 1329
are maintained. It certifies further that it will not maintain or provide for its employees any 1330
segregated facilities at any of its establishments and that it will not permit its employees to 1331
perform their services at any location under its control where segregated facilities are 1332
maintained. The Contractor agrees that a breach of this certification is a violation of the Equal 1333
Employment Opportunity clause in this Contract. As used in this certification, the term 1334
“segregated facilities” means any waiting rooms, work areas, rest rooms and wash rooms, 1335
restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, 1336
parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing 1337
facilities provided for employees which are segregated by explicit directive or are in fact 1338
segregated on the basis of race, creed, color, or national origin, because of habit, local custom, 1339
disability, or otherwise. The Contractor further agrees that (except where it has obtained 1340
identical certifications from proposed subcontractors for specific time periods) it will obtain 1341
identical certifications from proposed subcontractors prior to the award of subcontracts 1342
exceeding $10,000 which are not exempt from the provisions of the Equal Employment 1343
Opportunity clause; that it will retain such certifications in its files; and that it will forward the 1344
following notice to such proposed subcontractors (except where the proposed subcontractors 1345
Contract No. 14-06-200-8292A-IR5-P
56
have submitted identical certifications for specific time periods): 1346
NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT FOR 1347
CERTIFICATIONS OF NONSEGREGATED FACILITIES 1348
A Certification of Nonsegregated Facilities must be submitted prior to the award of a subcontract 1349
exceeding $10,000 which is not exempt from the provisions of the Equal Employment 1350
Opportunity clause. The certification may be submitted either for each subcontract or for all 1351
subcontracts during a period (i.e., quarterly, semiannually, or annually). Note: The penalty for 1352
making false statements in offers is prescribed in 18 U.S.C. § 1001. 1353
NOTICES 1354
38. Any notice, demand, or request authorized or required by this Contract shall be 1355
deemed to have been given, on behalf of the Contractor, when mailed, postage prepaid, or 1356
delivered to the Area Manager, South-Central California Area Office, 1243 N Street, Fresno, 1357
California 93721 and on behalf of the United States, when mailed, postage prepaid, or delivered 1358
to the Director of Public Works and Planning of the County of Fresno, 2220 Tulare Street 6th 1359
Floor, Fresno, CA 93721. The designation of the addressee or the address may be changed by 1360
notice given in the same manner as provided in this article for other notices. 1361
MEDIUM FOR TRANSMITTING PAYMENT 1362
39. (a) All payments from the Contractor to the United States under this Contract 1363
shall be by the medium requested by the United States on or before the date payment is due. The 1364
required method of payment may include checks, wire transfers, or other types of payment 1365
specified by the United States. 1366
(b) Upon execution of the Contract, the Contractor shall furnish the 1367
Contracting Officer with the Contractor’s taxpayer’s identification number (TIN). The purpose 1368
for requiring the Contractor’s TIN is for collecting and reporting any delinquent amounts arising 1369
out of the Contractor’s relationship with the United States. 1370
CONTRACT DRAFTING CONSIDERATIONS 1371
40. This amended Contract has been negotiated and reviewed by the parties hereto, 1372
each of whom is sophisticated in the matters to which this amended Contract pertains. The 1373
double-spaced Articles of this amended Contract have been drafted, negotiated, and reviewed by 1374
the parties, and no one party shall be considered to have drafted the stated Articles. Single-1375
spaced Articles are standard Articles pursuant to Bureau of Reclamation policy. 1376
CONFIRMATION OF CONTRACT 1377
41. Promptly after the execution of this amended Contract, the Contractor shall 1378
provide to the Contracting Officer a certified copy of a final decree of a court of competent 1379
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57
jurisdiction in the State of California, confirming the proceedings on the part of the Contractor 1380
for the authorization of the execution of this amended Contract. This amended Contract shall not 1381
be binding on the United States until the Contractor secures a final decree. 1382
Contract No. 14-06-200-8292A-IR5-P
1383 IN WITNESS WHEREOF , the parties hereto have executed this amended Contract as of
1384 the day and year first above written.
1385 THE UNITED STA TES OF AMERICA
1386
1387
1388
1389
1390 (SEAL)
1391
1392
1393
1394 Attest:
By: ___________ _
Regional Director
Interior Region I 0 : California-Great Basin
Bureau of Reclamation
COUNTY OF FRESNO
By:
58
~oard of Supervisors ,
County of Fresno , State of California
EXHIBIT A