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EXHIBIT 10.21
APO Draft 5-82
APO Revised 9-82
RO Revised 10-82
RO Revised 11-82
RO Revised 02-83
RO Revised 03-83
Contract No. 5-07-30-W0068
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
CONTRACT BETWEEN THE UNITED STATES AND THE
CHAPARRAL CITY WATER COMPANY
PROVIDING FOR CONSTRUCTION OF A WATER
DISTRIBUTION SYSTEM
CENTRAL ARIZONA PROJECT
Article Title Page
- ------- ----- ----
1 Preamble........................................................ 1
2 Explanatory Recitals............................................ 1
3 Definitions..................................................... 3
4 Construction of Distribution System and Limit of
Expenditures Therefor......................................... 5
5 Mitigation...................................................... 8
6 Termination..................................................... 9
7 Construction Management Support Services Provided by
Contractor.................................................... 10
8 Declaration of Completion....................................... 10
9 Repayment by Contractor......................................... 11
10 Operation and Maintenance of Transferred Works--Payment
of Miscellaneous Costs........................................ 13
11 Examination and Inspection of Project Works for Determining
Adequacy of Operation and Maintenance Program................. 15
12 Reserve Fund.................................................... 16
13 General Obligation--Benefits Conditioned Upon Payment........... 17
14 Quality of Water................................................ 18
15 Water and Air Pollution Control................................. 18
16 Books, Records, and Reports..................................... 18
17 Rules, Regulations, and Determinations.......................... 18
18 Notices......................................................... 19
19 Equal Opportunity............................................... 19
20 Title VI, Civil Rights Act of 1964.............................. 20
21 Charge for Late Payments........................................ 21
22 Contingent on Appropriation or Allotment of Funds............... 21
23 Assignment Limited--Successors and Assigns Obligated............ 21
24 Officials Not to Benefit........................................ 21
25 Changes in Contractor's Organization............................ 22
26 Administration of Project Lands................................. 22
27 Confirmation of Contract........................................ 22
Signatory Page.................................................. 23
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Repayment Contract EXHIBIT 10.21
APO Draft 5-82
APO Revised 9-82
RO Revised 10-82
RO Revised 11-82
RO Revised 02-83
RO Revised 03-83
Contract No. 5-07-30-W0068
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
CONTRACT BETWEEN THE UNITED STATES AND THE
CHAPARRAL CITY WATER COMPANY
PROVIDING FOR CONSTRUCTION OF A WATER
DISTRIBUTION SYSTEM
CENTRAL ARIZONA PROJECT
Preamble
1. THIS CONTRACT, made this 6th day of December, 1984, in pursuance
generally of the Reclamation Act of June 17, 1902 (32 Stat. 388), and acts
amendatory thereof or supplementary thereto, including but not limited to the
Reclamation Project Act of August 4, 1939 (53 Stat. 1187), as amended, and the
Colorado River Basin Project Act of August 4, 1939 (53 Stat. 1187), as amended,
and the Colorado River Basin Project Act of September 30, 1968 (82 Stat. 885),
as amended on December 20, 1982, hereinafter referred to as the "Basin Project
Act," all collectively hereinafter referred to as the "Federal Reclamation
Laws," between the UNITED STATES OF AMERICA, hereinafter referred to as the
"United States," acting through the Secretary of the Interior, and the
CHAPARRAL CITY WATER COMPANY, hereinafter referred to as the "Contractor,"
organized under the laws of Arizona, with its principal place of business in
Fountain Hills, Arizona;
WITNESSETH, THAT:
Explanatory Recitals
2. WHEREAS, the Basin Project Act provides, among other things, that for
the purposes of furnishing irrigation and municipal and industrial water
supplies to water deficient areas of Arizona and western New Mexico
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through direct diversion or exchange of water, for control of floods,
conservation and development of fish and wildlife resources, enhancement of
recreation opportunities, and for other purposes, the Secretary of the Interior
shall construct, operate, and maintain the Central Arizona Project; and
WHEREAS, on December 6, 1984, the United States, the Contractor, and the
Central Arizona Water Conservation District entered into a water service
subcontract, which provides for the delivery of Central Arizona Project water to
the Contractor; and
WHEREAS, in order to utilize the water supply made available under the
aforesaid subcontract to irrigate eligible lands and/or for municipal,
industrial, and domestic purposes, the Contractor desires that the United
States construct a distribution system; and
WHEREAS, Section 309(b) of the Basin Project Act authorizes the
appropriation of Federal funds for construction of distribution and drainage
facilities for non-Indian lands and directs the Secretary to enter into
agreements with the non-Federal interests which require the non-Federal
interests to provide not less than 20 percent of the total cost of such
facilities during the construction of such facilities; and
WHEREAS, the Contractor has submitted to the Secretary of the Interior a
report in acceptable form, entitled "Engineering Report for Construction of a
Water Distribution System," dated April 1984, herein styled "proposal," setting
forth a distribution system plan and estimated cost in detail comparable to
those included in preauthorization reports required for a Federal Reclamation
Project; and
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WHEREAS, on February 22, 1984, the Contractor entered into a
Memorandum of Understanding with the United States, hereinafter styled "MOU,"
providing for repayment of certain costs incurred by the United States in
connection with the development of plans and designs and specifications for the
distribution system prior to execution and validation of a repayment contract;
and
WHEREAS, the United States is willing to undertake the construction of
the distribution system as described in the proposal under the conditions
hereinafter set forth;
NOW THEREFORE, in consideration of the covenants herein contained, it
is agreed as follows:
DEFINITIONS
3. When used herein, unless otherwise distinctly expressed or manifestly
incompatible with the intent thereof, the term:
(a) "Secretary" or "Contracting Officer" shall mean the Secretary of
the Interior of the United States or his duly authorized representative;
(b) "Central Arizona Water Conservation District" shall mean the
water conservation district, organized under the laws of Arizona, which is
responsible for repayment of reimbursable Central Arizona Project costs
allocable thereto, pursuant to Contract No. 14-06-W-245, dated December 15,
1972, between the United States and the district;
(c) "Central Arizona Project" shall mean the project works
authorized by Section 301(a) of the Basin Project Act and constructed by the
United States pursuant to the provisions of said Act;
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(d) "Distribution system" or "project" shall mean and include the
undertaking for construction set forth in the proposal, and shown on a map
designated Exhibit "A" which is attached hereto and expressly made a part of
this contract, including any modifications therein pursuant to the provisions
of Subarticle 4(f);
(e) "Project works" shall mean and include all works and facilities
constructed in accordance with the plan set forth in the proposal and including
any modifications therein pursuant to the provisions of Subarticle 4(f),
together with land, interests in land, and rights-of-way for such works and
facilities;
(f) "Year" shall mean the calendar year;
(g) "Agricultural water" shall mean water used on irrigable lands
primarily in the commercial production of agricultural crops or livestock,
including domestic use incidental thereto, on tracts of land operated in units
of more than 5 acres;
(h) "Municipal, industrial, and domestic water," herein referred to as
"M&I water," shall mean water delivered by means of the project works and not
used as agricultural water;
(i) "Repayment obligation" shall mean the total amount of money repayable
to the United States by the Contractor under the terms of this contract;
(j) "Contractor's service area" shall mean the area of land within the
exterior boundaries of the Contractor as shown on Exhibit "A".
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Construction of Distribution System and Limit of
Expenditures Therefor
4. (a) Subject to the terms and conditions of this contract, the United
States will undertake the construction of the project as described in the
proposal, or as modified pursuant to Subarticle 4(f), including but not limited
to preparation of final planning and environmental documentation, issuance of
specifications, awarding of construction contracts, and acquiring and
withdrawing lands as necessary for project purposes. The total cost of the
project, including allowances for price escalation, is $4,115,000, plus interest
during construction, based on estimated construction expenditures of $3,292,000
by the United States and estimated contributions by the Contractor of $823,000.
Subject to the provisions of Article 22, the United States will expend toward
construction of the project, exclusive of interest during construction, funds
not to exceed $3,292,000.
(b) The Contractor shall contribute no less than 20 percent of the total
cost of the project during the construction period. Contributions by the
Contractor, in the form of cash and/or goods and services, will be provided as
scheduled in the proposal and as deemed necessary by the Contracting Officer to
supplement Federal funding. If the project cannot be completed with the
aforesaid Federal funds and contributions, the Contractor will provide to the
United States the additional contributions necessary to complete the project as
provided herein. The additional contributions may be in the form of cash and/or
goods and services. All contributions of goods and services shall be subject to
prior approval of the Contracting Officer.
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(c) The obligations of the United States under this contract shall
be contingent upon the Contractor establishing a line of credit of not less than
$200,000 for the purpose of financing any cost overruns. If the Contracting
Officer determines that the project cannot be completed within the total project
cost specified in Subarticle 4(a), the Contracting Officer shall so advise the
Contractor by written notice. The notice shall specify the estimated amount of
the cost overrun, show when the additional funds will be required, and direct
the Contractor to proceed with the procurement of funds to meet the schedule,
and the Contractor shall forthwith secure the required amount of funds. In the
event the $200,000 line of credit authorization will not, as determined by the
Contracting Officer, be required to fund cost overruns, with the prior approval
of the Contracting Officer, the Contractor may use said line of credit for other
authorized purposes.
(d) The Federal cost of the project shall include all expenditures
by the United States of whatsoever kind in connection with, arising out of, or
resulting from the construction and operation and maintenance during
construction of the project and the performance of said work, including but not
limited to: interest during construction on costs allocated to the M&I water
supply function as provided in Subarticle 4(e); the costs incurred by the United
States pursuant to the aforesaid MOU; the costs of labor, material, equipment,
engineering and legal work; the cost of superintendence, administration and
overhead, rights-of-way, property, and damage of any kind; all sums expended in
surveys and investigations in connection with the project, both prior to and
after the execution of this
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contract; and the cost of all soil investigations and other preliminary work.
The determination of what costs are properly chargeable and the amount thereof
shall be made by the Contracting Officer after such consultation with the
Contractor as the Contracting Officer determines to be appropriate.
(e) Interest during construction shall be computed as follows: Compound
interest at the rate of 3.342 percent per annum will be computed and accrued
from the date of expenditure of Federal funds for construction to the date of
notice of completion on that portion of the Federal expenditures which is
allocable to M&I water supply purposes based upon the ratio of the estimated
quantity of water to be delivered for M&I water purposes through the project
works during the entire repayment period to the total estimated quantity of
water to be delivered for all purposes through the project works during said
period, said ratio expressed as a decimal being 1.00. The interest so computed
shall be included as part of the repayment obligation to be repaid pursuant to
the schedule included in Subarticle 9(c). The amount of M&I water furnished
during the repayment period from project works shall be metered, or measured by
such other means as may be established by the Contracting Officer. During
project construction, the United States shall install metering devices in
consultation with the Contractor to determine the quantity of M&I water
deliveries by and the through the project works. The cost of such metering
devices shall be a part of the repayment obligation to be repaid to the United
States in accordance with Article 9. During periods when the Contractor is
operating and maintaining the project works, the installation
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and cost of metering devices shall be the responsibility of the Contractor. The
Contractor shall care for, operate, and maintain all such metering devices in
accordance with the provisions of Article 10. The Contracting Officer and his
representatives shall be allowed access at all times to all metering devices.
(f) If the Contracting Officer determines changes in location, size,
or capacity of any of the project works to be expedient, economical, necessary,
or advisable, during the progress of the work, the Contracting Officer may,
after consultation with the Contractor, make such changes to the extent that
such changes do not substantially change the basic character or service
capability of the project.
Mitigation
5. (a) If the Contractor is contributing proposed designs, plans, and
specifications as part of its contributions toward the project pursuant to
Subarticles 4(a) and 4(b), the Contractor shall incorporate in such designs,
plans, and specifications, the environmental measures specified in the
environmental clearance documents associated with this contract (the
Environmental Impact Statement on Water Allocations and Water Service
Contracting, Central Arizona Project, dated March 19, 1982, and the supporting
National Environmental Policy Act Compliance Checklist dated September 19,
1984). Except as provided in Subarticle 5(b), all construction costs properly
allocable to mitigation shall be included in the Contractor's repayment
obligation and be repaid in accordance with the provisions of Article 9.
(b) The Contracting Officer, with the cooperation of the Contractor,
shall conduct cultural resource surveys and perform mitigation
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measures on sites that would be disturbed by construction of the project works.
The cost of such cultural surveys and cultural resource site mitigation
measures shall be nonreimbursable in accordance with the Historical and
Archeological Data Act of June 27, 1960 (74 Stat. 220), as amended; Provided,
however, That the nonreimbursable costs for such surveys and mitigation
measures shall not exceed 1 percent of the total amount authorized to be
appropriated for construction of the project works.
Termination
6. (a) The United States reserves the right to terminate this contract no
later than 60 days after the first major construction contract bid opening, as
determined by the Contracting Officer, by written notice thereof to Contractor
if:
(1) The least cost construction contract bid that is acceptable to
the Contracting Officer exceeds the estimate of construction cost contained in
the approved proposal to such an extent that, as determined solely by the
Contracting Officer after consultation with the Contractor, it appears unlikely
that the project can be completed within the total project cost specified in
Subarticle 4(a) and the amount of the line of credit authorized for cost
overruns pursuant to Subarticle 4(c); or
(2) The Contractor has not made arrangements to secure non-Federal
funding to finance its contributions as specified in Subarticles 4(a) and 4(b)
on a schedule compatible with Federal funding or anticipated Federal funding.
(b) If the contract is terminated for either of the above reasons, the
costs incurred by the United States pursuant to this contract shall be repaid
to the United States by the Contractor pursuant to a bill
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for collection or a repayment schedule furnished by the Contracting Officer to
the Contractor after consultation with the Contractor. The termination of this
contract shall not relieve the Contractor of the responsibility to repay any
such costs to the United States. The provisions of Article 21 shall apply in
the case of any late payments.
Construction Management Support Services Provided By Contractor
7. In the event that the Contractor's contributions toward the project
pursuant to Subarticles 4(a) and 4(b) include construction management support
services, the following shall apply:
(a) Construction management support services provided by the
Contractor shall be performed in accordance with Federal procurement
regulations.
(b) The Contractor shall prepare and furnish to the Contracting
Officer, at such intervals as the Contracting Officer may designate, but at
least once each month, written reports fully describing the progress and cost
of work scheduled and performed. Said reports shall be prepared in such form
and in such manner as the Contracting Officer may from time to time prescribe.
(c) The Contractor may utilize in connection with construction
management support services such independent, expert, consulting, or
supervisory services as the Contractor may deem necessary, and the reasonable
cost of such services shall be considered a contribution of the Contractor
towards the project.
Declaration of Completion
8. Upon substantial completion of the project or such part thereof as
the Federal funds and Contractor's contributions will allow, or at such
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time as the benefits from the project are substantially available to Contractor,
whichever first occurs, all as determined by the Contracting Officer, the United
States shall give the Contractor written notice of completion of the project,
including a statement of the total estimated or actual repayment obligation.
Repayment by Contractor
9. (a) The Contractor is obligated for and shall repay to the United
States, on account of construction and operation and maintenance during
construction by the United States, all costs of the project works funded by the
United States (which are determined by the Contracting Officer to be allocable
to the Contractor) in accordance with the provisions of this contract. The
Contractor shall be obligated to repay the United States the actual cost of
construction and operation and maintenance during construction incurred by the
United States, but not exceeding $3,292,000 as specified in Subarticle 4(a),
plus interest during construction.
(b) The Contractor shall repay to the United States the amount of
the repayment obligation in not to exceed 40 successive semiannual principal
installments, plus interest at the rate of 3.342 percent per annum on 100
percent of the repayment obligation outstanding on the payment date. The first
payment shall become due and payable on February 1 of the year following that in
which the United States gives the Contractor notice of completion, and shall
include all interest accruing during the period from date of issuance of the
notice of completion through the January 31 immediately preceding the initial
payment date. Subsequent semiannual
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payments shall become due and payable on August 1 of that year and on
February 1 and August 1 of each succeeding year until such time as the repayment
obligation has been fully repaid and shall include all interest for the 6-month
period ending January 31 or July 31 immediately preceding the payment dates. The
interest payments shall be in addition to the principal payments to be made
pursuant to the repayment schedule contained in subarticle (c) hereof. With each
semiannual payment due and payable on February 1, the Contractor shall submit a
written report to the Contracting Officer showing the actual deliveries of M&I
water through the project works during the preceding year.
(c) Unless and until modified as hereinafter provided, the Contractor's
repayment schedule shall be based upon an estimated obligation of $3,347,000
(including estimated interest during construction). The repayment schedule is
as follows:
Semiannual Semiannual
Payment Payment Payment Payment
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1 $ 0 21 $ 83,500
2 0 22 83,500
3 8,500 23 93,000
4 8,500 24 93,000
5 17,000 25 103,000
6 17,000 26 103,000
7 25,000 27 113,000
8 25,000 28 113,000
9 32,500 29 123,500
10 32,500 30 123,500
11 40,500 31 134,500
12 40,500 32 134,500
13 48,500 33 145,500
14 48,500 34 145,500
15 57,000 35 157,500
16 57,000 36 169,000
17 65,000 37 169,000
18 65,000 38 182,000
19 74,500 39 182,500
20 74,500 40 182,500
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(d) The estimated repayment obligation shall be considered as the
amount of the repayment obligation until such time as revision is determined
necessary by the Contracting Officer after consultation with the Contractor or
such time as the actual repayment obligation is established, and payments shall
be made to the United States on the basis of such estimate. If the revised or
actual repayment obligation is less than the estimated repayment obligation, the
amount of each payment shall be in the amount and order as provided therein
until the obligation is repaid in full. The effect of this procedure shall be to
reduce the length of the repayment period.
(e) The Contractor shall take all actions necessary to ensure that
required rate increases will be implemented which, together with revenues from
the sale of water and such other revenues as may be available to the Contractor,
shall provide sufficient revenues to meet its obligations under this contract
and to make in full all payments to the United States on or before the dates
such payments become due. The Contracting Officer shall have the right to seek
to compel by mandamus, and/or any other appropriate action in a court of law,
the performance by the Contractor and by any and all other State, county, and
Contractor officials of the foregoing obligation.
Operation and Maintenance of Transferred
Works -- Payment of Miscellaneous Costs
10. (a) Upon substantial completion of the project works, or as
otherwise determined by the Contracting Officer, and following written
notification, the care, operation, and maintenance of any or all of the project
works shall be transferred to the Contractor. Title of such transferred works
will remain in the name of the United States.
(b) The Contractor, without expense to the United States, shall
care for, operate, and maintain such transferred works in full compliance with
the terms of this contract, and in such manner that said transferred works will
remain in good and efficient condition.
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(c) Necessary repairs of the transferred works shall be made promptly by
the Contractor. In case of unusual conditions or serious deficiencies in the
care, operation, and maintenance of the transferred works threatening or
causing interruption of service, as determined by the Contracting Officer, the
Contracting Officer may issue to the Contractor a special written notice of the
necessary repairs. Within 60 days of receipt of such notice, the Contractor
shall either make the repairs or submit an acceptable plan for accomplishing
the work. If the Contractor fails to meet the conditions stated above, the
Contracting Officer may cause the repairs to be made and the cost thereof shall
be paid by the Contractor as directed by the Contracting Officer.
(d) No substantial change shall be made or encroachment allowed by the
Contractor to any of the transferred works or on rights-of-way for such works,
without first obtaining the consent of the Contracting Officer.
(e) The Contractor shall hold the United States, its officers, agents,
and employees harmless as to any and all damages which may, in any manner,
result from the care, operation; and maintenance of any of the project works
transferred to the Contractor.
(f) In the event the Contracting Officer determines that the Contractor
is operating the transferred works or any part thereof in violation of this
contract, the United States may take over from the Contractor the care,
operation and maintenance of the transferred works by giving written notice to
the Contractor of such election and the effective date thereof. Thereafter,
during the period of operation by the United States, upon written notification
from the Contracting Officer, the
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Contractor shall pay to the United States, annually in advance, the cost of
operation and maintenance of such works as determined by the Contracting
Officer. If the Contractor holds title to ground-water wells which are being
used by the Contractor to supply water to lands in the Contractor's service area
at the time of such takeover of care, operation, and maintenance by the United
States, the Contractor shall continue to operate and maintain such wells to as
to help satisfy, to the greatest extent possible, the reasonable water
requirements of its water users. Following written notification from the
Contracting Officer, the care, operation, and maintenance of the works may be
retransferred to the Contractor.
(g) In addition to all other payments to be made by the Contractor
under this contract, the Contractor shall, during the period of time any or all
of the project works are being operated, pay the United States, following the
receipt of a detailed statement, miscellaneous costs incurred by the United
States for unusual work involved in the administration and supervision of this
contract.
Examination and Inspection of Project Works for Determining
Adequacy of Operation and Maintenance Program
11. (a) The Contracting Officer may, from time to time, make
examinations and evaluations of project works being operated by the Contractor
with a view to assisting the Contractor in determining the condition of the
works and the adequacy of the operation and maintenance program. The
examinations and evaluations may include any or all of the project works which
were constructed by the United States and transferred to the Contractor or
project works which were constructed by the Contractor with funds advanced or
reimbursed by the United States. Reports of the examinations and evaluations,
including recommendations, will be prepared and copies will be furnished to the
Contractor. The examinations and evaluations will be without cost to the
Contractor, except for such costs incurred by the Contractor and/or its agents
to provide access, to operate any mechanical or electrical equipment, or to
answer questions.
(b) If deemed necessary by the Contracting Officer or requested by
the Contractor, special inspections of any project works being operated by the
Contractor, and of the Contractor's books and records may be made to ascertain
the extent of any operation and maintenance deficiencies, to
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determine the remedial measures required for their correction, and to assist
the Contractor in solving specific problems. Any special inspection or audit,
except in a cost of emergency, shall be made after written notice to the
Contractor and the actual cost incurred by the United States shall be
reimbursed by the Contractor to the United States.
(c) The State of Arizona shall be provided an opportunity to observe
and participate, at its own expense, in the examinations and inspections. The
Contractor and the State of Arizona will be provided copies of reports and
recommendations relating to such examinations and inspections.
Reserve Fund
12. (a) Commencing with execution of this contract, the Contractor shall
accumulate and maintain a reserve fund that will be available to cover
unforeseen extraordinary costs as provided in Subarticle 12(d). Such reserve
fund shall be accumulated by the Contractor with annual deposits or investments
of not less than $3,660 to a Federally insured interest- or dividend-bearing
account, or in securities guaranteed by the Federal Government; Provided, That
a reasonable amount of time shall be allowed to make the money in the reserve
fund available to meet the expenses for the purpose for which it was
accumulated. Such annual deposits and accumulation of interest to the reserve
fund shall continue until the basic amount of $53,000 is accumulated.
Thereafter, the annual deposits may be discontinued and the interest earnings
shall continue to accumulate and be retained as part of an expanding reserve
fund.
(b) Upon mutual agreement between the Contractor and the Contracting
Officer, the reserve fund and the annual installments may be adjusted to
reflect adequacy or inadequacy of the accumulated fund with respect to risk and
uncertainty stemming from the size and complexity of the project, size of the
annual operation and maintenance budget, addition, deletion or changes in
project works and operation and maintenance costs not contemplated when this
contract was executed. If the total fund requirement and annual installments
are adjusted downward, the excess increment of the fund, and the difference
between the annual deposit required by this article and the newly adjusted
deposit requirement shall
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be applied toward accelerated repayment of the Contractor's repayment
obligation to the United States.
(c) Whenever the reserve fund exceeds the basic amount specified
above, the excess annual reserve fund deposit not required shall be applied each
year toward accelerated repayment of the Contractor's obligation under this
contract.
(d) Expenditures shall be made from such reserve fund only for
meeting unforeseen extraordinary costs of operation and maintenance, repair or
replacement, betterment in situations where recurrence of severe problems can be
eliminated, and unusual operation and maintenance costs during periods of
special stress such as may be caused by drought, hurricane, storms, or other
like emergencies. Proposed expenditures from the said fund shall have the prior
review and approval of the Contracting Officer. Whenever said reserve fund is
reduced below the current balance by expenditures therefrom, the current balance
shall be restored by the accumulation of annual deposits, as specified above,
commencing with the next year following that in which the fund is reduced.
(e) During any period in which any of the project works are operated
and maintained by the United States, the reserve fund shall be available for
like use by the United States.
(f) On or before February 1 of each year, the Contractor shall
provide an annual statement of the balance and composition (principal and
accumulated interest) of the reserve fund account to the Contracting Officer.
General Obligation -- Benefits
Conditioned Upon Payment
13. (a) 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 individual water
users in their obligations to the Contractor.
(b) 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 through project facilities during any period in
which the Contractor may be in arrears in the advance payment of any operation
and maintenance 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 operation and
maintenance 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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Quality of Water
14. The operation and maintenance 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.
Water and Air Pollution Control
15. 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 of Arizona and shall obtain all required permits or licenses from
the appropriate Federal, State or local authorities.
Books, Records, and Reports
16. The Contractor shall establish and maintain accounts and other books
and records pertaining to its financial transactions, land use and crop census,
water supply, water use, changes of project works, and to other matters as the
Contracting Officer may require. Reports thereon shall be furnished to the
Contracting Officer in such form and on such date or dates as he may require.
Subject to applicable Federal laws and regulations, each party shall have the
right during office hours to examine and make copies of each other's books and
records relating to matters covered by this contract.
Rules, Regulations, and Determinations
17. (a) The Contracting Officer shall have the right to make, after an
opportunity has been offered to the Contractor for consultation, rules and
regulations consistent with the provisions of this contract, the laws of the
United States and the State of Arizona, to add to or to modify them as may be
deemed proper and necessary to carry out this contract, and to supply necessary
details of its administration which are not covered by express provisions of
this contract. The Contractor shall observe such rules and regulations.
(b) Where the terms of this contract provide for action to be based
upon the opinion or determination of either party to this contract, whether or
not stated to be conclusive, said terms shall not be construed as permitting
such action to be predicated upon arbitrary, capricious, or unreasonable
opinions or determinations. In the event that the Contractor questions any
factual determinations made by the Contracting Officer, the findings as to
the facts shall be made by the Secretary only after consultation with the
Contractor and shall be conclusive upon the parties.
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Notices
18. 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, Lower Colorado
Region, Bureau of Reclamation, P.O. Box 427, Boulder City, Nevada 89005, and on
behalf of the United States, when mailed, postage prepaid, or delivered to the
President, Chaparral City Water Company, P.O. Box 17030, Fountain Hills,
Arizona 85268. 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.
Equal Opportunity
19. During the performance of this contract, the Contractor agrees as
follows:
(a) 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, 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.
(b) 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.
(c) 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
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.
(d) 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.
(e) 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
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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.
(f) In the event of the Contractor's noncompliance with the
nondiscrimination clauses of this contract or with any of 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.
(g) The Contractor will include the provisions of paragraph (a)
through (g) in every subcontract or purchase order unless exempted by 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 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.
Title VI, Civil Rights Act of 1964
20. (a) The Contractor agrees that it will comply with Title VI of the
Civil Rights Act of July 2, 1964 (78 Stat. 241), and all requirements imposed by
or pursuant to the Department of the Interior Regulation (43 CFR 17) issued
pursuant to that title, to the end that, in accordance with Title VI of that Act
and the Regulation, no person in the United States shall, on the grounds of
race, color, or national origin be excluded from participation in, be denied the
benefits of, or be otherwise subjected to discrimination under any program or
activity for which the Contractor receives financial assistance from the United
States and hereby gives assurance that it will immediately take any measures to
effectuate this agreement.
(b) If any real property or structure thereon is provided or
improved with the aid of Federal financial assistance extended to the
Contractor by the United States, this assurance obligates the Contractor, or in
the case of any transfer of such property, any transferee for the period during
which the real property or structure is used for a purpose involving the
provision of similar services or benefits. If any personal property is so
provided, this assurance obligates the contractor for the period during which
it retains ownership or possession of the property. In all other cases, this
assurance obligates the Contractor for the period during which the Federal
financial assistance is extended to it by the United States.
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(c) This assurance is given 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
financial assistance will be extended in reliance on the representations and
agreements made in this assurance, and that the United States shall reserve the
right to seek judicial enforcement of this assurance. This assurance is binding
on the Contractor, its successors, transferees, and assignees.
Charge for Late Payments
21. The Contractor shall pay a late payment charge on installments or
charges which are received after the due date. the late payment charge
percentage rate calculated by the Department of the Treasury and published
quarterly in the Federal Register shall be used; Provided, That the late payment
charge percentage rate will not be less than 0.5 percent per month. The late
payment charge percentage rate applied on an overdue payment will remain in
effect until payment is received. The late payment rate for a 30-day period will
be determined on the day immediately following the due date and will be applied
to the overdue payment for any portion of the 30-day period of delinquency. In
the case of partial late payments, the amount received will first be applied to
the late charge on the overdue payment and then to the overdue payment.
Contingent on Appropriation or Allotment of Funds
22. The expenditure or advance of any money or the performance of any
work by the United States hereunder which may require appropriation of money by
the Congress or the allotment of funds shall be contingent upon such
appropriation or allotment being made. The failure of the Congress to
appropriate funds or the absence of any allotment of funds shall not relieve
the Contractor from any obligations under this contract. No liability shall
accrue to the United States in case such funds are not appropriated or allotted.
Assignment Limited--Successors and Assigns Obligated
23. The provisions of this contract shall apply to and bind the
successors and assigns of the parties hereto, but no assignment or transfer of
this contract or any part or interest therein shall be valid until approved by
the Contracting Officer.
Officials Not to Benefit
24. (a) No member of or Delegate to Congress or Resident Commissioner
shall be admitted to any share or part of this contract or to any benefit that
may rise herefrom. This restriction shall not be construed to extend to this
contract if made with a corporation or company for its general benefit.
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(b) No official of the Contractor shall receive any benefit that may
arise by reason of this contract other than as a water user within the project
and in the same manner as other water users within the project.
Changes in Contractor's Organization
25. While this contract is in effect, no change shall be made in the
Contractor's organization, by inclusion or exclusion of lands, by dissolution,
consolidation, merger or otherwise, except upon the Contracting Officer's
written consent.
Administration of Project Lands
26. The land and rights-of-way acquired and needed by the United States
for the purposes of care, operation, and maintenance of project works may be
used by the Contractor for such purposes. The Contractor shall not issue
rights-of-way across project land, issue land rights to project lands, or issue
leases, licenses, permits, or special use agreements involving project land,
rights-of-way, or transferred works. All such land use instruments may be
issued only by the Contracting Officer. Lands and rights-of-way withdrawn or
acquired primarily for, or later determined to be used or, recreation, fish and
wildlife enhancement or mitigation, or other special purposes, shall be
reserved primarily for those purposes; any other land or rights-of-way use
shall be secondary in nature and compatible with said recreation, fish and
wildlife, or special purpose uses.
Confirmation of Contract
27. Upon the execution of this contract, the Contractor shall promptly
seek a final decree of a court of competent jurisdiction of the State of
Arizona approving and confirming the contract and decreeing and adjudging it to
be lawful, valid, and binding on the Contractor. The Contractor shall furnish
to the United States a certified copy of such
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decree and of all pertinent supporting records. This contract shall not be
binding on the United States or the Contractor until such final decree has been
entered.
IN WITNESS WHEREOF, the parties hereto have executed this Contract No.
5-07-30-W0068 the day and year first above written.
Legal Review and Approval THE UNITED STATES OF AMERICA
By: /s/ [SIGNATURE ILLEGIBLE] By: /s/ [SIGNATURE ILLEGIBLE]
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Field Solicitor, Phoenix, Arizona Regional Director
Lower Colorado Region
Bureau of Reclamation
CHAPARRAL CITY WATER COMPANY
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ATTEST:
/s/ HOWARD J. BRESSLER By: /s/ [SIGNATURE ILLEGIBLE]
- ------------------------------------- ----------------------------------
Secretary
Title President
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