HomeMy WebLinkAboutresolution.council.075-13 i
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RESOLUTION NO.�L5
Series of 2013
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING U.S. BUREAU OF RECLAMATION RUEDI RESERVOIR ROUND II
WATER REPAYMENT CONTRACT NO. 139D6C0098, AND AUTHORIZING THE
MAYOR TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, the U.S. Bureau of Reclamation issued a draft long-term Ruedi
Reservoir Round II Water Repayment Contract No. 139D6C0098 ("Water Repayment
Contract") for consideration by the City of Aspen for annual releases from Ruedi
Reservoir of up to 400 acre-feet of water to be used by the City of Aspen f or
augmentation and exchange for municipal and industrial uses as more fully described in
the Water Repayment Contract; and ` .,
WHEREAS, on November 26, 2012, the City of Aspen passed Resolution
series of 2012, which contemplated the Water Repayment Contract with the Bureau of
Reclamation to finalize the City's purchase of rights for annual releases of up to 400 acre
feet of water from Ruedi Reservoir; and
WHEREAS,the City of Aspen accepts the obligations to be established upon
execution and issuance of the final form Water Repayment Contract by the Bureau of
Reclamation, so lailg as'tlie .final- form contains substantially the same terms and
conditions as the draft; and
WHEREAS,the City of Aspen wishes to enter into a final Water Repayment
Contract with the United States on terms and conditions substantially the same as those
contained in the draft Water Repayment Contract, a true and accurate copy of which is
attached hereto as Exhibit"A"and incorporated by this reference;
DQ-7/29%1013-34304-G:1DQIwaterVuediVeso Final contraetBurReeRuedi Reservoir.dOCXX
f
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
I 1. The Water Repayment Contract with the U.S. Bureau of Reclamation for up to
400 acre-feet of water to be released from Ruedi Reservoir is hereby approved, provided
it is on substantially the same terms and conditions as the draft attached as Exhibit A,and
the City of Aspen is hereby authorized to execute and acknowledge the final Water
Repayment Contract after approval of the final form thereof by the City Attorney.
2. The City of Aspen hereby commits to abide by the obligations to be created
by the Water Repayment Contract.
INTRODUCED,READ AND ADOPTED by the City Council of the City of
Aspen on the day of ,2013.
r
1
Steven Ska on,Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City Council of the
City of Aspen, Colorado,at a meeting held on the day hereeinabove stated.
/173 f
Kathryn S. Ko ity lerk
DQ-7/29/2013-34304-0:\DQ\water\ruedi\reso final contractBurRecRuedi Reservoir.docxx
� LICATE ORIGINAL
CONTRACT NO. 139D6C0098
UNITED STATES OF AMERICA
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
RUEDI RESERVOIR
FRYINGPAN-ARKANSAS PROJECT, COLORADO
Ruedi Reservoir Round II Water Sales
REPAYMENT CONTRACT BETWEEN THE UNITED STATES
AND THE CITY OF ASPEN
THIS CONTRACT, Made this 5 KID day of 'XPM 9E*- ?o13pursuant to
the Act of June 17, 1902 (32 Stat. 388), and acts amendatory thereof and supplementary
thereto,particularly Section 9(c)(1) of the Reclamation Project Act of 1939 (53 Stat.
1187), Title III of the Act of July 3, 1958 (72 Stat. 320), and the Act of August 16, 1962
(76 Stat. 389), as amended, collectively referred to as the Federal Reclamation Laws, is
between the UNITED STATES OF AMERICA, hereinafter referred to as the "United
States, represented by the Contracting Officer executing this Contract, and the CITY OF
ASPEN, hereinafter referred to as the "Contractor." The United States and the Contractor
are sometimes referred to individually as the "Party" and collectively as the "Parties".
WITNESSETH THAT
EXPLANATORY RECITALS:
a. WHEREAS,the United States has constructed Ruedi Reservoir and related
facilities as a feature of the Fryingpan-Arkansas Project as authorized by the Act of
August 16, 1962 (76 Stat. 389), as amended by the Act of October 27, 1974 (88 Stat.
1486), the Act of November 3, 1978 (92 Stat. 2493) and the Act of March 30, 2009 (123
Stat. 1321), in substantial conformance with House Document No. 187, 83`d Congress, 1St
Session, as modified by House Document No. 353, 86th Congress, 2nd Session, subject to
the Operating Principles for the Fryingpan-Arkansas Project as set forth in House
Document No. 130, 87th Congress, 1St Session.
b. WHEREAS, Ruedi Reservoir was authorized to provide storage capacity for
replacement water for senior downstream diversion rights in western Colorado at times of
Fryingpan-Arkansas Project diversions to the Arkansas River Basin in eastern Colorado,
and to furnish regulatory storage capacity and water to users in western Colorado for any
purpose recognized by the laws of the United States.
c. WHEREAS, paragraph 6(b) of House Document 130 (87th Congress, 1St
Session, adopted March 15, 1961)provides that"the sale of water for use outside the
Contract No. 139136C0098
natural basin of the Colorado River can only be made with the consent of the Colorado
River Water Conservation District."
d. WHEREAS, on August 3, 1959, in Civil Action No. 4613 (Garfield County
District Court, State of Colorado),the Court awarded the water storage right for Ruedi
Reservoir and decreed that"the sale of water for use outside the natural basin of the
Colorado River can only be made with the consent of the Colorado River Water
Conservation District."
e. WHEREAS,the capital costs for the construction of Ruedi Reservoir are
allocated among the authorized purposes, including $9,312,000 allocated to the
regulatory purpose consisting of the initial construction cost plus interest during
construction. Pursuant to Section 2 of the Act of August 16, 1962, as amended,this
amount is reimbursable with interest in not more than 50 years from September 30, 1969,
when Ruedi Reservoir was placed in service. Under the provisions of the Water Supply
Act of 1958 (72 Stat. 297), interest charges on the $9,312,000 did not accrue for the 10-
year period ending September 30, 1979. The $9,312,000 of costs allocated to the
regulatory purpose are further allocated to Ruedi Reservoir Round I and Ruedi Reservoir
Round II water sales and are $1,419,402 and $7,892,598 respectively. As of September
30, 2012,the uncontracted capital costs, including accrued interest, operation,
maintenance, and replacement costs for Ruedi Reservoir allocated to Ruedi Reservoir
Round II water sales,hereinafter referred to as Round II were $34,271,993.
f. WHEREAS, the Contractor desires to enter into a contract,pursuant to the
Federal Reclamation Laws and the laws of the State of Colorado, for a quantity of water
from the regulatory capacity of Ruedi Reservoir and to repay the reimbursable costs
associated therewith as more specifically provided herein.
g. WHEREAS,the United States desires to provide the quantity of water
requested by the Contractor pursuant to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants herein contained,
the Parties hereto agree as follows:
DEFINITIONS
1. Where used herein, unless specifically expressed otherwise or obviously
inconsistent with the intent hereof,the term:
a. "United States" shall mean the United States of America, acting through the
Secretary of the Interior hereinafter the "Secretary" or a duly authorized representative.
b. "Contracting Officer" shall mean the Secretary of the Interior or a duly
authorized representative.
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Contract No. 139136C0098
c. "Project" shall mean the Fryingpan-Arkansas Project, Colorado.
d. "Year" shall mean the period beginning January 1 and ending on the
following December 31.
e. "Ruedi Reservoir" shall mean the dam, reservoir, and related facilities as
presently constructed on the Fryingpan River above the Town of Basalt, Colorado, as a
feature of the Fryingpan-Arkansas Project.
f. "Replacement capacity" shall mean that portion of the total capacity of Ruedi
Reservoir required to permit Project diversions at times when such diversions could not
otherwise have been made because of simultaneous demands of senior diversions in
western Colorado that existed on April 30, 1959, and as further defined in Section 6(a) of
the Operating Principles, Fryingpan-Arkansas Project.
g. 'Regulatory capacity" shall mean that portion of the total capacity of Ruedi
Reservoir not needed for replacement purposes as further defined in Section 6(b) of the
Operating Principles, Fryingpan-Arkansas Project.
h. "Municipal and industrial uses shall mean use of water by municipalities,
industrial users, commercial recreation entities, piscatorial users including delivery of
water to supplement streamflow, and other water user entities not engaged in commercial
agricultural production.
i. "Commercial agricultural uses" shall mean water used primarily for the
commercial production of crops and livestock, which are the principle sources of income
for the user of such water.
j. "Capital costs" shall mean the capitalized investment for Ruedi Reservoir
including construction costs, interest during construction, accrued interest, and accrued
unpaid annual operation, maintenance, and replacement costs, and interest thereon, and
other appropriate costs allocable to the Regulatory capacity.
k. "Operation, maintenance, and replacement(OM&R) costs" shall mean those
costs incurred to operate and maintain Ruedi Reservoir, including any administrative,
overhead, or general expenses incurred by the United States,either directly or indirectly,
in the operation and maintenance of Ruedi Reservoir and in the administration of this
Contract and those costs incurred to remedy conditions brought about by the ordinary use
of Ruedi Reservoir or to restore or replace components of the existing reservoir. For the
purposes of this Contract, replacement costs shall be those costs allocable to the
Regulatory capacity,but shall not include costs to increase the capacity of Ruedi
Reservoir or to expand the purposes for which it was originally authorized and
constructed.
1. "Marketable yield" shall mean the 46,500 acre-feet of water estimated to be
available from the Regulatory capacity of Ruedi Reservoir, including the 7,850 acre-feet
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Contract No. 139136C0098
previously sold under Round I, and the remaining 3 8,65 0 acre-feet designated for the
Round II water sales:
TERM OF THE CONTRACT
2. This Contract shall become effective on the date of execution and shall remain in
effect unless terminated in accordance with the provisions of Article 9 hereof.
CONTRACTED WATER SUPPLY
3. a.- The Contractor hereby contracts for-40a acre-feet-of water-annually from the -
Marketable yield of Ruedi Reservoir for Municipal and industrial use subject to the terms
and conditions of this Contract.
b. The United States shall not enter into any contract that will result in the total
amount of water marketed from the reservoir exceeding the Marketable yield,Provided,
That the United States reserves the right to make short-term (5 years or less) sales or
leases of water from the Regulatory capacity of Ruedi Reservoir for purposes recognized
under the laws of the United States and the State of Colorado, as long as such sales or
leases do not impinge upon the Contractor's entitlement to take delivery of water
contracted for herein or adversely affect the determination of the Marketable yield.
c. The Contractor shall have no right to carryover storage of undelivered water
from Year to Year under this Contract.
CONTRACTOR'S REPAYMENT OBLIGATION AND OTHER COSTS
4. a. For the water supply contracted for herein,the Contractor shall repay a
proportionate share of the Capital costs allocable to Round II. As of September 30, 2012,
the unpaid uncontracted Capital costs allocable to Round II were $34,271,993. The
Contractor's Capital cost repayment obligation of$515,960.00 represents the Contractor's
proportionate (400/[38,650 less previously marketed Round II water]) share of the unpaid
Capital costs allocable to Round II. In 2012,the Parties executed a financial agreement
which established the cost of the water at$1,289.90 per acre-foot. In 2012,the
Contractor paid$71.90 per acre-foot toward repayment of the obligation, leaving a
remaining outstanding balance of$1,218.00 per acre-foot. The financial agreement also
established that the per acre-foot costs would be indexed annually at 1.79%until this
Contract was executed. Therefore,the $1,218.00 per acre-foot is then indexed to 2013
dollars by an annual increase of 1.79% [($1,218.00 X 1.79%)+ $1,218.00], which
establishes the Contractor's outstanding obligation of$1,239.80 per acre-foot for a total
remaining outstanding obligation of$495,920.00.
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Contract No. 139D6C0098
b. The Contractor's outstanding Capital cost repayment obligation of
$495,920.00 shall be due and payable upon execution of this Contract.
c. If, subsequent to the execution of this Contract, additional Capital costs are
incurred for the Regulatory capacity of Ruedi Reservoir,the Contractor shall pay a
proportionate share of such additional costs allocable to Round II, as determined by the
Contracting Officer, which share shall be in direct proportion to the contracted water
supply specified in Article 3.a. above. Payment of such additional costs shall be upon
such terms and conditions as determined by the Parties hereto,based on Reclamation
policies and laws in effect at the time. Prior to incurring such costs,the Contracting
Officer shall notify the Contractor in writing of any necessary additional Capital costs,
including the basis for such costs and the Contractor's estimated proportionate share
thereof.
d. The Contractor's Capital cost obligation is a fixed obligation of the Contractor
and is payable as provided for herein whether or not the quantity of water contracted for
in Article 3.a. above is available for delivery to the Contractor.
e. In addition to the Capital cost repayment obligation,the Contractor shall also
pay a proportionate share of the actual annual reimbursable OM&R costs allocable to the
Marketable yield. The Contractor's share of the actual annual reimbursable OM&R costs
shall be in direct proportion to the contracted water supply specified in Article 3.a. above
to the 46,500 acre-foot Marketable yield.
f. The annual OM&R charges shall be based on the Federal fiscal year(October
1 through the following September 30) accounting. Payment for the current fiscal year,
as adjusted for actual OM&R charges for the previous fiscal year, shall become due and
payable on or before January 1 of each Year.
g. The annual OM&R charge will be due and payable upon execution of this
Contract and thereafter shall be due and payable on or before January 1 of each
subsequent Year of the term of this Contract. The first fiscal year's charges, if less than a
full fiscal year, shall be prorated on a monthly basis beginning with the first calendar
month following execution of this Contract. The annual OM&R charge will be based on
estimates prepared by the Contracting Officer. In the event the estimated OM&R costs
fall short of the actual OM&R costs, or whenever it is determined by the Contracting
Officer that a deficit will occur after January 1 of the fiscal year, supplemental notices
may be issued by the Contracting Officer requesting additional funds to cover such
shortfall or deficiency. Funds not expended during the fiscal year will be carried over
and applied as a credit against the Contractor's charges for the following fiscal year.
h. No water will be delivered at any time the Contractor is in default of any
payment required pursuant to this Contract. The Contractor shall make all payments
required pursuant to this Contract whether or not the quantity of water specified in
Article 3.a. above is available for delivery and whether or not the Contractor is capable of
using the water delivered or scheduled for delivery.
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Contract No. 139D6C0098
i. Payments shall be made to a certain bank by a medium specified by the
Contracting Officer,by check to a certain lock box, or by wire transfer to the
United States Treasury, or to such other locations and by such other methods as the
Contracting Officer may specify and as are readily available to the Contractor for its use.
DELIVERY OF WATER
5. a. Before June 1 of each Year,the Contractor shall submit to the.Contracting
Officer a written schedule of its anticipated monthly demand for the delivery of water for
the following 12 months. The Contractor shall revise said schedule as necessary to
reflect its expected demand schedule based on current hydrologic conditions.
Notwithstanding the above,the Contractor shall be entitled to take delivery of water
under this Contract at any time upon 24 hours notice to the Contracting Officer or a
designated representative. All notices requesting delivery of water or a change in the
delivery schedule shall be in writing. Orders which cannot be transmitted in writing due
to urgency or emergency situations may be telephoned to the Contracting Officer's
designated representative,Provided, That such orders shall be confirmed in writing by
the Contractor.
b. The Contracting Officer will notify the Contractor and the Division No. 5
Engineer, Colorado Division of Water Resources, of the date,time, and amount of all
water released from Ruedi Reservoir and delivered pursuant to this Contract.
c. The delivery of water pursuant to this Contract will be made into the
Fryingpan River at the outlet works of Ruedi Reservoir. All delivery of water shall be
limited by the outlet capacity of Ruedi Reservoir. All water delivered to the Contractor
from Ruedi Reservoir will be measured at the outlet works of Ruedi Reservoir by the
Contracting Officer with equipment owned, operated, and maintained by the United
States. The United States will not be responsible for control, carriage, use, handling, or
distribution of water delivered to the Contractor beyond the delivery point, and the
Contractor shall hold the United States harmless from and against all claims, demands,
and causes of action on account of property damage, personal injury, or death resulting
from the control, carriage, use,handling, or distribution of water delivered to the
Contractor.
d. The Contractor will not be responsible for the storage of water in or OM&R
of Ruedi Reservoir and the United States shall protect, indemnify, and hold the
Contractor harmless from and against all claims, demands, and causes of action of any
nature whatsoever resulting from or in any manner connected with the storage of water in
or the OM&R of Ruedi Reservoir within the limits of the Federal Tort Claims Act(28
U.S.C. 2671-2680).
e. The United States reserves the right to release the water contracted for herein
from an alternate reservoir or reservoirs,Provided, That such releases from an alternate
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Contract No. 139136C0098
reservoir or reservoirs shall neither diminish the water supply contracted for herein nor
affect the Contractor's ability to use the water for the purposes, at the location and at the
time(s) as contemplated herein.
CONTRACTOR'S USE OF WATER
6. a. Water delivered to the Contractor under this Contract will be used through
augmentation and exchange for Municipal and industrial uses. Place of use will occur
within the Contractor's existing service area and potential service area, which generally
lie within portions of the Roaring Fork River Basin within Pitkin County in the State of
Colorado. (See map, attached as Exhibit C, which is hereby made a part of this Contract
by this reference.) Water may also be used to augment flows for Green Mountain
Reservoir operations. Green Mountain Reservoir is located in Summit County, Colorado.
b. Lease, sale, donation, or other such disposal of any of the water contracted for
herein shall require prior written approval of the Contracting Officer,Provided, That a
municipal contractor may distribute the water contracted for herein to its customers and
charge its customers such rates as permitted under Colorado law.
WATER SHORTAGE AND APPORTIONMENT
7. a. The Contracting Officer shall operate the Project in accordance with the
Operating Principles for the Fryingpan-Arkansas Project as set forth in House Document
No. 130, 87th Congress, 1 st Session.
b. Water delivered pursuant to this Contract is provided from the Regulatory
capacity of Ruedi Reservoir. Should shortages occur to the Regulatory capacity, as
determined by the Contracting Officer,based on schedules furnished pursuant to Article
5.a. above, such shortages will be apportioned among the Ruedi Reservoir contractors in
the following manner: first, deliveries to all temporary and short-term contractors will be
proportionately reduced up to 100 percent of their respective contracted amounts; second,
deliveries to all Round II contractors will be proportionately reduced up to 100 percent of
their respective contracted amounts; third, deliveries to all Round I municipal contractors
will be proportionately reduced up to 30 percent of their respective contracted amounts;
and finally, deliveries to all Round I contractors will be reduced up to 100 percent of their
respective contracted amounts based on contract execution dates with the earliest date
having highest priority; Provided,That the deliveries to all contracts with the same
execution dates shall be proportionately reduced up to 100 percent of their respective
remaining contracted amounts.
c. In administering shortage conditions,the Contracting Officer may require the
Contractor to submit revised schedules pursuant to Article 5.a. above. The Contracting
Officer reserves the right to limit the amount of water available for delivery under this
Contract to the amount specified in such revised schedules. Should any revised schedule
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Contract No. 139D6C0098
require less than the total amount of water under contract by an individual contractor to
meet the Contractor's expected demands,the Contracting Officer reserves the right to use
all or any portion of the water not so scheduled by the Contractor for redistribution to
other contractors to mitigate the effects of the shortage. In no event shall any liability
accrue against the United States or any of its officers, agents, or employees for any
damage, either direct or indirect, arising out of such shortage.
d. No adjustment will be made in the payments required pursuant to this
Contract as a result of the Contracting Officer's inability to deliver water requested for
delivery by the Contractor due to shortage conditions.
TERMINATION OF WATER DELIVERIES
8. Delivery of the water contracted for herein shall cease at the option of the
United States upon failure of the Contractor to make payments as required by this
Contract or upon failure of the Contractor to abide by any lawful notice, order, or final
administrative or judicial determination that the Contractor has violated a rule or
regulation of the United States or the State of Colorado directly relating to and affecting
the furnishing of water hereunder;Provided, That water deliveries hereunder shall not
cease unless such failure or violation continues 60 days after the United States gives the
Contractor written notice to remedy the failure or violation.
TERMINATION OF THE CONTRACT
9. a. This Contract may be terminated and the delivery of water contracted for
herein shall cease at the option of the United States upon failure of the Contractor to
make payments as required by this Contract or upon failure of the Contractor to abide by
any lawful notice, order, or final administrative or judicial determination that the
Contractor has violated a rule or regulation of the United States or the State of Colorado
directly relating to and affecting the furnishing of water hereunder; Except, That this
Contract may not be terminated unless such failure or violation continues 60 days after
the United States gives the Contractor written notice of such failure or violation.
b. The Contractor may terminate this Contract at the end of any Year by
providing written notice of such termination to the United States pursuant to Article 11
below not less than 90 days prior to the effective date of termination,Provided, That such
termination must be necessitated by the Contractor's inability to meet the payments
required hereunder due to the applicability of the Colorado Taxpayer's Bill of Rights Act
(TABOR). Upon any such termination,the United States may make the water supply
contracted for herein available to other contractors, or reallocate the contracted water
supply to other purposes, and the Contractor has no prior claim or right to enter into a
contract for such water supply or any portion thereof in the future.
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Contract No. 139D6C0098
ENVIRONMENTAL COMPLIANCE
10. a. Compliance with the provisions of the National Environmental Policy Act
(NEPA), as amended, and the Endangered Species Act(ESA), as amended, are a
prerequisite to execution of this Contract. The general environmental impacts associated
with the Ruedi Reservoir Round II water marketing program under the preferred
alternative with conservation measures are described in the Final Supplemental
Environmental Statement(FSES) dated August 1, 1989. Site specific compliance in the
form of Environmental Assessment No. EC-1300-13-003 was completed for this
Contract. NEPA compliance for this Contract has resulted in a requirement to implement
certain measures to avoid,minimize, or mitigate the environmental impacts associated
with the Contractor's use of the water pursuant to this Contract. These requirements are
described in Exhibit B, attached hereto and by this reference made a part of this Contract,
and the Contractor agrees to abide by and comply with the terms and conditions stated
herein. In the event of changed circumstances additional compliance may also be
required on a site-specific basis and shall be the responsibility of the United States using
data and information and a site-specific mitigation plan, if required,provided to the
Contracting Officer for approval. The data, information, and mitigation cover those
environmental impacts associated with the Contractor's diversions and on-site use of
Ruedi Reservoir water. All costs associated with the preparation, approval, and
implementation of NEPA and ESA compliance and mitigation plans, including costs
incurred by the United States, shall be the responsibility of the Contractor.
b. The Contractor shall give notice to the United States concerning any changes
in location of diversions, return flows,places or type of use, or diversion rates. The
Contractor shall be responsible for any additional NEPA and ESA compliance or
mitigation measures which may be required by the United States as the result of such
changes and all associated costs, including costs incurred by the United States, shall be
the responsibility of the Contractor.
c. The Contractor shall make advance payment for costs to be incurred by the
United States, which are the Contractor's responsibility under this Article 10.
NOTICES
11. Any notice, demand, or request authorized or required by this Contract shall be
deemed to have been given, on behalf of the Contractor,when mailed postage prepaid, or
delivered to the Regional Director, Great Plains Region, Bureau of Reclamation, P.O.
Box 36900, Billings, Montana 59107-6900, and on behalf of the United States, when
mailed postage prepaid or delivered to the Contractor, City of Aspen,Director of Utilities
and Environmental Initiative, Dave Hornbacher, 130 South Galena Street, Aspen, CO
81611. The designation of the addressee or the address may be changed by notice given
in the same manner as provided in this Article for other notices.
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Contract No. 139D6C0098
ASSIGNMENT OF CONTRACT
12. a. No assignment or transfer of this Contract or any rights or interests herein
shall be valid until approved in writing by the Contracting Officer.
b. The United States reserves the right to enter into agreements with third party
agents for the administration of this Contract,Provided, That such agreements shall not
adversely affect the rights of the Contractor to receive the water contracted for under this
Contract.
STANDARD CONTRACT ARTICLES
13. The standard contract articles applicable to this Contract are listed below. The
full text of these standard articles is attached as Exhibit A and is hereby made a part of
this Contract by this reference.
A. Charges for Delinquent Payments
B. General Obligation--Benefits Conditioned Upon Payment
C. Contingent on Appropriation or Allotment of Funds
D. Officials Not to Benefit
E. Books,Records, and Reports
F. Rules,Regulations, and Determinations
G. Quality of Water
H. Water and Air Pollution Control
I. Water Conservation
J. Equal Opportunity
K. Compliance with Civil Rights Laws and Regulations
L. Uncontrollable Forces
M. Medium for Transferring Payments
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Contract No. 139D6C0098
IN WITNESS WHEREOF, the Parties hereto have executed this Contract as of the day
and Year first above written.
THE UNITED STATES OF AMERICA
By
Michael J. Ryan
Regional Director
Great Plains Regional Office
Bureau of Reclamation
CITY OF ASPEN
1
By �-
Steven Skadron
Mayor
ATTEST:
zz
A
Title
11
EXHIBIT A
CONTRACT NO. 139D6C0098
STANDARD ARTICLES
A. CHARGES FOR DELINQUENT PAYMENTS
1. The Contractor shall be subject to interest, administrative and penalty
charges on delinquent installments or payments. When a payment is not received by the
due date,the Contractor shall pay an interest charge for each day the payment is
delinquent beyond the due date. When a payment becomes 60 days delinquent, the
Contractor shall pay an administrative charge to cover additional costs of billing and
processing the delinquent payment. When a payment is delinquent 90 days or more,the
Contractor shall pay an additional penalty charge of 6 percent per year for each day the
payment is delinquent beyond the due date. Further,the Contractor shall pay any fees
incurred for debt collection services associated with a delinquent payment.
2. The interest charge rate shall be the greater of the rate prescribed quarterly in
the Federal Register by the Department of the Treasury for application to overdue
payments, or the interest rate of 0.5 percent per month prescribed by section 6 of the
Reclamation Project Act of 1939 (Public Law 76-260). The interest charge rate shall be
determined as of the due date and remain fixed for the duration of the delinquent period.
3. When a partial payment on a delinquent account is received,the amount
received shall be applied, first to the penalty, second to the administrative charges,third
to the accrued interest, and finally to the overdue payment.
B. GENERAL OBLIGATION--BENEFITS CONDITIONED UPON PAYMENT
1. The obligation of the Contractor to pay the United States as provided in this
Contract is a general obligation of the Contractor notwithstanding the manner in which
the obligation may be distributed among the Contractor's water users and notwithstanding
the default of the individual water users in their obligations to the Contractor.
2. The payment of charges becoming due hereunder is a condition precedent to
receiving benefits under this Contract. No water will be made available to the Contractor
from Project facilities during any period in which the Contractor may be in arrears in the
advance payment of any OM&R charges due the United States or in arrears for more than
12 months in the payment of any construction charges due the United States. The
Contractor shall not furnish water made available pursuant to this Contract for lands or
parties which are in arrears in the advance payment of OM&R or toll charges or in arrears
more than 12 months in the payment of construction charges as levied or established by
the Contractor.
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Contract No. 139D6C0098
C. CONTINGENT ON APPROPRIATION OR ALLOTMENT OF FUNDS
The expenditure or advance of any money or the performance of any obligation of the
United States under this Contract shall be contingent upon appropriation or allotment of
funds. Absence of appropriation or allotment of funds shall not relieve the Contractor
from any obligations under this Contract. No liability shall accrue to the United States in
case funds are not appropriated or allotted.
D. OFFICIALS NOT TO BENEFIT
No Member of or Delegate to Congress, Resident Commissioner, or official of the
Contractor shall benefit from this Contract other than as a water user or landowner in
same manner as other water users or landowners.
E. BOOKS RECORDS, AND REPORTS
The Contractor shall establish and maintain accounts and other books and records
pertaining to administration of the terms and conditions of this Contract, including: the
Contractor's financial transactions, water supply data,water-use data; and other matters
that the Contracting Officer may require. Reports thereon shall be furnished to the
Contracting Officer in such form and on such date or dates as the Contracting Officer
may require. Subject to applicable Federal laws and regulations, each Parry to this
Contract shall have the right during office hours to examine and make copies of each
other Party's books and records relating to matters covered by the Contract.
F. RULES REGULATIONS AND DETERMINATIONS
1. The Parties agree that the delivery of water or the use of Federal facilities
pursuant to this Contract is subject to Reclamation law, as amended and supplemented,
and the rules and regulations promulgated by the Secretary of the Interior under
Reclamation law.
2. The Contracting Officer shall have the right to make determinations
necessary to administer this Contract that are consistent with the expressed and implied
provisions of this Contract,the laws of the United States and the State, and the rules and
regulations promulgated by the Secretary of the Interior. Such determinations shall be
made in consultation with the Contractor.
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Contract No. 139D6C0098
G. QUALITY OF WATER
The OM&R of Project facilities shall be performed in such manner as is practicable to
maintain the quality of raw water made available through such facilities at the highest
level reasonably attainable, as determined by the Contracting Officer. The United States
does not warrant the quality of water and is under no obligation to construct or furnish
water treatment facilities to maintain or better the quality of water.
H. WATER AND AIR POLLUTION CONTROL
The Contractor, in carrying out this Contract, shall comply with all applicable water and
air pollution laws and regulations of the United States and the State, and shall obtain all
required permits or licenses from the appropriate Federal, State, or local authorities.
I. WATER CONSERVATION
1. The Contractor shall develop and implement an effective water conservation
program based on the Contractor's water conservation plan that has been reviewed by the
Contracting Officer and determined to meet the conservation and efficiency criteria
established under Federal law. The water conservation program shall contain definite
water conservation objectives, appropriate economically feasible water conservation
measures, and time schedules for meeting those objectives.
2. The Contractor shall submit to the Contracting Officer by December 31, of
each calendar year a report on the status of the Contractor's implementation of its water
conservation program.
3. At 5-year intervals, subsequent to the Contracting Officer's determination
that the Contractor's water conservation program meets the conservation and efficiency
criteria established under Federal law,the Contractor shall submit to the Contracting
Officer for review and evaluation updated water conservation programs. The Contracting
Officer shall review and evaluate the updated water conservation program and determine
if they meet the conservation and efficiency criteria established under Federal law.
J. EQUAL OPPORTUNITY
During the performance of this Contract, the Contractor agrees as follows:
1. The Contractor will not discriminate against any employee or applicant for
employment because of race, color,religion, sex,or national origin. The Contractor will
take affirmative action to ensure that applicants are employed, and that employees are
treated during employment,without regard to their race, color, religion, sex, or national
origin. Such action shall include,but not be limited to,the following: Employment,
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Contract No. 139D6C0098
upgrading, demotion, or transfer;recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship. The Contractor agrees to post in conspicuous places, available
to employees and applicants for employment, notices to be provided by the Contracting
Officer setting forth the provisions of this nondiscrimination clause.
2. The Contractor will, in all solicitations or advertisements for employees
placed by or on behalf of the Contractor, state that all qualified applicants will receive
consideration for employment without discrimination because of race, color, religion,
sex, or national origin.
3. The Contractor will send to each labor union or representative of workers
with which it has a collective bargaining agreement or other contract or understanding, a
notice, to be provided by the Contracting Officer, advising the said labor union or
workers' representative of the Contractor's commitments under Section 202 of Executive
Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous
places available to employees and applicants for employment.
4. The Contractor will comply with all provisions of Executive Order
No. 11246 of September 24, 1965, as amended, and of the rules, regulations, and relevant
orders of the Secretary of Labor.
5. The Contractor will furnish all information and reports required by said
amended Executive Order and by the rules, regulations, and orders of the Secretary of
Labor, or pursuant thereto, and will permit access to its books,records, and accounts by
the Contracting Officer and the Secretary of Labor for purposes of investigation to
ascertain compliance with such rules, regulations, and orders.
6. In the event of the Contractor's noncompliance with the nondiscrimination
clauses of this Contract or with any of the such rules, regulations, or orders, this Contract
may be canceled, terminated, or suspended, in whole or in part, and the Contractor may
be declared ineligible for further Government contracts in accordance with procedures
authorized in said amended Executive Order, and such other sanctions may be imposed
and remedies invoked as provided in said Executive Order, or by rule, regulation, or
order of the Secretary of Labor, or as otherwise provided by law.
7. The Contractor will include the provisions of paragraphs 1. through 7. in
every subcontract or purchase order unless exempted by the rules, regulations, or orders
of the Secretary of Labor issued pursuant to Section 204 of said amended Executive
Order, so that such provisions will be binding upon each subcontractor or vendor. The
Contractor will take such action with respect to any subcontract or purchase order as may
be directed by the Secretary of Labor as a means of enforcing such provisions, including
sanctions for noncompliance: Provided, However, That in the event the Contractor
becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a
result of such direction,the Contractor may request the United States to enter into such
litigation to protect the interests of the United States.
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K. COMPLIANCE WITH CIVIL RIGHTS LAWS AND REGULATIONS
1. The Contractor shall comply with Title VI of the Civil Rights Act of 1964
(42 U.S.C. 2000d), Section 504 of the Rehabilitation Act of 1975 (Public Law 93-112, as
amended),the Age Discrimination Act of 1975 (42 U.S.C. 6101, et seq.), and any other
applicable civil rights laws, as well as with their respective implementing regulations and
guidelines imposed by the United States Department of the Interior and/or the Bureau of
Reclamation.
2. These statutes require that no person in the United States shall, on the
grounds of race, color, national origin, handicap, or age,be excluded from participation
in, be denied the benefits of, or be otherwise subjected to discrimination under any
program or activity receiving financial assistance from the Bureau of Reclamation. By
executing this Contract, the Contractor agrees to immediately take any measures
necessary to implement this obligation, including permitting officials of the United States
to inspect premises,programs, and documents.
3. The Contractor makes this agreement in consideration of and for the purpose
of obtaining any and all Federal grants, loans, contracts,property discounts, or other
Federal financial assistance extended after the date hereof to the Contractor by the United
States, including installment payments after such date on account of arrangements for
Federal financial assistance which were approved before such date. The Contractor
recognizes and agrees that such Federal assistance will be extended in reliance on the
representations and agreements made in this Article, and that the United States reserves
the right to seek judicial enforcement thereof.
L. UNCONTROLLABLE FORCES
Neither Party shall be considered to be in default in respect to any obligation hereunder,
if prevented from fulfilling such obligation by reason of uncontrollable forces,the term
"uncontrollable forces" being deemed, for the purpose of this Contract, to mean any cause
beyond the control of the Party affected, including, but not limited to, drought, failure of
facilities, flood, earthquake, storm, lightning, fire, epidemic,war, riot, civil disturbance,
labor disturbance, sabotage, and restraint by court or public authority, which by exercise
of due diligence and foresight, such Party could not reasonably have been expected to
avoid. Either Party rendered unable to fulfill any obligation by reason of uncontrollable
forces shall exercise due diligence to remove such inability with all reasonable dispatch.
M. MEDIUM FOR TRANSFERRING PAYMENTS
All payments from the Contractor to the United States under this Contract shall be made
by the medium requested by the United States on or before the date payment is due. The
required method of payment may include checks and/or wire transfers.
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EXHIBIT B
CONTRACT NO. 139D6C0098
ENVIRONMENTAL COMPLIANCE
The site specific National Environmental Policy Act(NEPA) compliance for this
Contract was evaluated and documented by Environmental Assessment and Finding of
No Significant Impacts (FONSI) numbered EC-1300-13-003 dated July 25, 2013. The
Contractor agrees to comply with the following Environmental Commitment(s)that were
set forth in the FONSI:
The Contractor agrees to abide by the following stipulation as well as include it in any
contracts with third parties:
"Section 404 of the Clean Water Act(33 U.S.C. 1344)regulates the discharge of dredged
or fill material into waters of the United States. Contractors shall consult with the Army
Corps of Engineers if construction of facilities necessary to use the contracted water
requires Section 404 compliance, which may include obtaining a permit. Further
consultation and approval by the United States Fish and Wildlife Service may be required
to ensure compliance with the Endangered Species Act(16 U.S.C. §1531, et seq.) if
Contractors propose physical alterations to designated critical habitat of the Colorado
River endangered fish species. As of June 2013, designated critical habitat exists from the
Colorado State Highway 13 Road Bridge Crossing of the Colorado River in Rifle
downstream to the Colorado state line."
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Contract No. 139D6C0098
EXHIBIT C
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