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HomeMy WebLinkAbout2010-111 Contract - DOI-BOR - TID Article No. I 2-6 7 8 9 10 11 12 13 14 PN Draft 6/29/10 Contract No. UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF RECLAMATION Rogue River Basin Project, Oregon TEMPORARY WATER SERVICE CONTRACT BETWEEN TIffi UNITED STATES OF AMERICA. THE TALENT IRRIGA nON DISTRICT. AND THE CITY OF ASHLAND. OREGON Contents Title Preamble. ....................... ............. ........................... ....... ............ .......... .............. Explanatory Recitals ................... ....................... ............ .................... ............... Water to be Available to the City ..................................................................... Consideration for Water Delivery..................................................................... Payment ofOpcration and Maintenance Charges............................................. Term and Tennination of Contract ................................................................... United States and District Not Liable for Water Shortages--Adjustments ....... Disclaimer................ ............ ............................................................................. Notices ........ .......... ....... .......................... ......................... ......................... ..... ..... General Provisions............................................................................ ,............... Signatures......................................................................................................... . Acknowledgments. .......................... ....... .............. ...... .......................... ... ..... ...... Exhibit A Page No. I 1-2 2-3 3-4 4 4-5' 5 5 5-6 6 7 8-9 , PN Draft 6/2911 0 Contract No. UNITED STATES ' DEPARTMENT OF THE INTERIOR BUREAU OF RECLAMATION Rogue River Basin Project, Oregon Talent Division TEMPORARY WATER SERVICE CONTRACT BETWEEN THE UNITED STATES OF AMERICA. THE TALENT IRRIGATION DISTRICT, AND THE CITY OF ASHLAND. OREGON THIS CONTRACT, made this day of , 20] 0, pursuant generally to the'Act of June] 7, 1902 (32 Stat. 388), and acts amendatory thereof or supplementary thereto, particularly, but not limited to, Section 9(c)(2) of the Act of August 4, 1939 (53 Stat. ]] 87), and the Act of August 20, ] 954 (68 Stat. 752), all collectively known as the Federal Reclamation laws, between the UNITED STATES OF AMERICA, hereinafter referred to as the "United St~tes," acting through the Bureau of Rec]amation, hereinafter referred to as "Reclamation," represented by the Regional Director, Pacific Northwest Region, hereinafter refen'ed to as the "Contracting Officer," the TALENT IRRIGA nON DISTRICT, hereinafter referred to as the "District," and the CITY OF ASHLAND, OREGON, hereinafter referred to as the "City." WITNESSETH, THAT: The following statements are made in explanation: EXPLANATORY REClT ALS , 2. WHEREAS, the Secretary of the Interior, pursuant to the Act of August 20, ]954, was authorized to construct, operate, and maintain the Ta]ent Division of the Rogue River Basin Project, hereinafter referrcd to as the "Project," for the purposes of furnishing water for irrigation, controlling floods, providing hydroelectric power, and for other beneficial purposes; and 3. WHEREAS, the United States and District entered into a repayment contract dated August 27,1956, Contract No. 14-06-100-1045, as may have been amended and supplemented, providing among other things, for a water supply for the irrigation oflands wiihin the District and a transfer of responsibility to the District for the care, operation, and maintenance of certain water collection, storage, and distribution works; and 4. WHEREAS, the City desires to obtain 600 acre-feet of water in water year 2010 for municipal purposes from Project facilities; and 5. WHEREAS, the providing of municipal water to the City will not interfere with other purposes served by the Project, and the United States and District are agreeable to furnishing such water to the City pursuant to the terms of this contract; and 6. WHEREAS, the District and City recognize that other agreements between them also exist for the use of non-Project water by the City, those agreements being dated March 2 I, 1924; December 7,1926; May 15, 1935; and November 2,1937. NOW, THEREFORE, in consideration of the mutual and dependent covenants herein contained, it is hereby mutually agreed as follows: WATER TO BE AVAILABLE TO THE CITY 7. (a) The United States, acting through the District, agrees to make available to the City up to 600 acre-feet of Project water during the 2010 irrigation season up to December I, 2010. The City shall not use or permit the use of water delivered to it for any purpose other than irrigation, domestic, municipal Or industrial purposes. Water may be made available for municipal purposes in accordance with a 1978 water right held by the United States for the District in Howard Prairie Reservoir. It is expressly understood however that the delivery of this water will only be 2 made during the District's irrigation season as set by its Board of Directors and is limited by the supply and capacity of District and Project facilities. (b) The total water flow, not to exceed 3.5 cubic feet per second, shall be delivered to the City at a point approximately 850 feet south ofthe southwest comer of Donation Land Claim No. 45 situated in section 15, township 39 south, range I east of the WiIlamette . Meridian in Jackson County, Oregon. The City shall receive said water at the delivery point and shall be wholly responsible for taking said water at that point and diverting, conveying and utilizing it. (c) The United States and District makc no warranties as to the quality of the water to be delivered to the City and it is understood that the water is not fit for human consumption and must be processed by the City before the same attains domestic quality. CONSIDERATION FOR WATER DELIVERY 8. A water service charge of $30,000 shall be paid by the City to the United States at the time of executing this contract. The $30,000 payment equals a rate of$50 per acre-foot of Project water delivered to the City, determined in accordance with applicable Reclamation law and policy, and is exclusive of additional charges by the District. The payment will entitle the City to receive up to 600 acre-feet of water as described in Article 7 of this contract. In the event the amount of water delivered to the City is less than 600 acre-feet, as reported by the City and confirmed by the District to the Contracting Officer, the City may request that monies be refunded to it at a rate of$50 per acre-foot for the amount delivered that is less than 600 acre-feet provided that, a minimum water service eharge of$I,OOO shall apply regardless oflhe amount of water delivered to the City under this contract; provided further, that any such refund request shall be made in writing to the Contracting Officer only after the City's water use under this contract has 3 ceased for the year and must be received by the Contracting Officer prior to January 1,2011. Any refund to the City will be without interest. The water service charge is in addition to administrative fees paid by the City to the United StateS for the preparation of this contract. All payments from the Contractor to the United States under this contract shall be made by check. Payments to the United States shall be made to the Bureau of Reclamation at the location described in Article 13 of this contract. PAYMENT OF OPERATION AND MAINTENANCE CHARGES 9. An operation and maintenance charge shall be paid by the City to the District within 30 days of the execution of this contract. The operation and maintenance charge as computed by the District shall be the sum of money equal to the District's annual operation and maintenance charge, and will be equal to the irrigation charges of a single parcel containing 226.42 acres of assessed land within the District TERM AND TERMINA nON OF CONTRACT 10. (a) This contract shall become effective as of the date first above written and will continue in effect until December I, 2010, unless sooner terminated as herein provided. (b) This contract shall be tenninated and service hm'eunder shall cease at the option of the United States at any time upon failure ofthe Dishict or the City to abide by any notice, order, rule, or regulation of the United States or the State of Oregon, related to delivery of Project water to the City, now or hereafter established. The United States may terminate this contract and service bereunder may cease if a decision is reached by a Court of competent jurisdiction requiring termination of water delivery under this contract. The United Slates may also tenninate this contract and service hereunder may cease, in whole or in part, if the contract water 4 source becomes unavailable as required by, or due to the application of, federal law, including, but not limited to, the Endangered Species Act. UNITED STATES AND DISTRICT NOT LIABLE FOR WATER SHORTAGES - ADJUSTMENTS II. On account of drought, errors in operation, or other causes, there may occur at times a shortage in the quantity of water available to the City by the United States or the District pursuant f to this contract, and in no event shall any liability OCCur against the United States and the Disbict or any of their officers, agents, or employees for any damage or expense on account of any fluctuation, for whatever reason, improvements, new construction, changes in operation, drought, hostile diversion, supplying water for irrigation, prior or superior claims, or for any reason whatsoever. DISCLAIMER 12. No provision of this contract, nor of any renewal hereof, nor the furnishing of water hereunder will be construed to bind the United States or District after the expiration of this contract as the basis of a permanent water right. The United States will not be held responsible for any acts or omissions of the District's or City's agents or of persons to whom water is furnished. Further, it is the responsibility Of the District and City to comply with all applicable laws and regulations of the United States and the State of Oregon regarding any activities involved or associated with the use of water delivered hcreunder, and to obtain all rcquired permits or licenses from the appropriate Fcderal, State, or local authorities. NOTICES 13. Any noticc, demand, or request required or authorized by this contrdct shall be deemed properly givcn, except where otherwise herein specifically provided, if mailed, postage prepaid, to the Regional Director, PN Region, Bureau of Reclamation, 1150 N. Curtis Road, Suite 100, Boise, Idaho 83706-1234, on behalfofthe United States, or delivered to Talent Inigation District, Attention: Secretary/Manager, P.O. Box 467, Talent, Oregon 97540, on 5 behalf of the District; or to the City when mailed, postage prepaid, or delivered to the City of Ashland, Attention: City Administrator, 20 East Main Street, AShland, Oregon 97520. The designation of the person to be notified or the address of such person may be changed at any time by similar notice. GENERAL PROVISIONS 14. The General Provisions applicable to this contract are listed below. The full text of these articles is attached as Exhibit A and is hereby made a part of this contract. a. CONTINGENT UPON APPROPRIATION OR ALLOTMENT OF FUNDS b. OFFICIALS NOT TO BENEFIT c. ASSIGNMENT LIMITED - SUCCESSORS AND ASSIGNS OBLIGATED d. BOOKS, RECORDS, AND REPORTS e. RULES, REGULATIONS, AND DETERMINATIONS f. ADMINISTRATION OF FEDERAL PROJECT LANDS g. PROTECfION OF WATER AND AIR QUALITY h. CONT AMINA TION OR POLLUTION OF FEDERAL PROPERTY i. EQUAL EMPLOYMENT OPPORTUNITY , J. COMPLIANCE WITH CIVIL RJGHTS LAWS AND REGULATIONS k. PEST MANAGEMENT I. CONTRACT DRAFTING CONSIDERATIONS 6 IN WITNESS WHEREOF, the parties hereto have signed their names as of the day and year first above writien. L(SEA A ,ST: , (N7f.0 ko/e.y- (Title) CITY OF ASHLAND BY~ ~.~ (me) / ~~ AA,"in~V' (Title) TALENT IRRIGATION DISTRICT' By:[3oB YY7~(Zl2.I7' Chairman, Board of Dircctors UNITED STATES OF AMERICA By Rcgional Director PN Region Bureau of Reclamation 1150 N. Curtis Road, Suite 100 Boise, ill 83706-1234 7 STATE OF OREGON) County Of~ ss On this 1-1\1Y\ day of ( U\ 2~, personally aP-ltarcd before me, a Notal')' Public, known to me to be, rc pectively,lfle:Ji\ 1111 'lh1.Y\N '~r\-I1~ M\'Y\\~-ty~-\1l{ of the CITY OF ASHLAND, and the persons who executed the with. Illstrument and acknowledged to me that the CITY OF ASHLAND executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of the day and year first above written. _OFFICIAL SEAL ALEXANDRA BROOKS NOTARY PUBLIC-OREGON COMMISSION NO. 414765 MY COMMISSION EXPIRES FEB. 2B. 2011 _Ge p,~ OJMAn.. tbwiU) Notary Phblic in and for the State of Oregon ' Residing at: ~/l\\I~ ~~~ My commission expircs: . _ . 'Ull\ (SEAL) *****.***. STATE OF OREGON) : ss County of.Jn ( \<'<:.r\(\) nO On this dd. day of \ , 20ID personally appeared before me, a Notary PUbli~ knofl(n to me to be, respecl vely, the . . andlY\n r\n~prJ' ,M\-'prv\\@\t')l"\oftheTALENTIRRIGATION DISTRICT, and the persons who execute the within instrument and acknowledged to me that the TALENT IRRIGATION DISTRICT executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official scal as oflhe day and year first above written. . OFFICIAL SEAL WANDA M. DERRY NOTARY PUBLlC.OREGON COMMISSION NO. 432586 MY COMMISSION EXPIRES NOV. 9. 2012 (SEAL) Notary Public in and for the Statc of Oregon Residing at: ~j "'\'It R ( e~n~ My commission expires:' -q - f)\ri. 8 STATEOFIDAHO ) : ss County of Ada ) On this day of , 20_, personally appeared before me, , to me known to be the official ofthe United States of America that executed the within and foregoing instrwnent and acknowledged said instrument to be the free and voluntary act and deed of said United States, for the uses and purposes therein mentioned', and on oath stated that he was authorized to execute said instrwnent. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal as of the day and year first above written. ' (SEAL) Notary Public in and for the State of Idaho Residing at: My commission expires: 9 EXHIBIT A GENERAL PROVISIONS - ROGUE RIVER BASIN PROJECT The Contractor, as referred to in the following Standard Contract Articles, shall be the Talent Irrigation' District and the City of Ashland, Oregon. CONTINGENT UPON APPROPRIA nON OR ALLOTMENT OF FUNDS (a) The expenditure or advance of any money or the performance of any obligation oflhe United States under this contract shall be contingent upon appropriation or allotment of funds. Absence of appropriation or allotment of funds shan not relieve the Contractor from any obligations under this contract. No liability shall accrue to 1he United States in case funds are not appropriated or allotted. . OFFICIALS NOT TO BENEFIT (b) No Member of or Delegate to the Congress, Resident Commissioner. or Official afthe Contractor shall benefit from this contract other 'than as a water user or landowner in the same manner as other water tlsers or landowners. ASSIGNMENT LIMITED - SUCCESSORS AND ASSIGNS OBLIGATED (c) The provisiorul of this contract shall apply to and bind the successors and assigns of the parties hereto, but no assignment or transfer of1his contract or any right or interest therein by either party shall be valid until approved in writing by the other party. BOOKS. RECORDS. AND REPORTS (d) The Contractor shall e.o.1ablish and maintain accounts and other books and records pCI1aining to the administration oflhe termS and conditions of this contract, including the Contractor's financial transactions; water supply data: the water users' land-use (e.g. crop census), and water-use data; and other matters that the Contracting Officer may require. Reports shall be furnished to the Contracting Officer in such fonn and on such date or dates as the Contracting Officer may require. Subject to applicable Fcderallaws and regulations, each party to this contract shall have the right . during office hours to examine and make copies of the other party's books and records relating to matters covered by this contract. RULES. REGULA nONS. AND DETERMINATIONS (e) (1) The parties agree that the delivery of water or the use of Federal facilities pursuant to this contract is subject to Federal reclamation law, as amended and supplemented, and the rules and regulations promtdgated by the Secretary of the Interior under Federal reclamation law. (2) The Contracting Officer shall have the right to make determinations necessary to administer this contract that arc consistent with the eJlpresscd 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 determina1ions shall be made in consultation with the Contractor. ADMINISTRA nON OF FEDERAL PROJECT LANDS (f) (J) The lands and interests in lands acquired, withdrawn, or reserved and needed by the United States for the purposes of care, operation, and maintenance of Federal project works may be used by the Contmctor for such purposes. The Contractor shall ensure that no unauthorized encroachment occurs on Federal project lands and rights-of-way. TIle Contractor does not have the authority to issue any land-use agreement or grant that conveys an interest in Federal real propClty, nor to lease OT dispose of any interest of the United States. (2) The Contractor may, subject to the written approval of the Contmcting Officer, lssue pennits, licenses, or similar land use documents only to the extent they do not grant an in1erest in Federal real property. A-I PROTECTION OF WATER AND AIR OUALITY (g) (I) Project facilities used to make available and deliver water to the Contractor shall be operated and maintained in the most practical manner to maintain the quality of the water at the highest level possible as detennined . by the Contracting Officer: Provided 17'01 the United States does not warrant the quality of the water delivered to the Contractor and is under no obligation to furnish or construct water treatment facilities to maintain or improve the quality of water delivered to the Contractor. (2) The Contractor shall comply with all applicable water and air pollution laws and regulations of the United States and the State ofIdaho; and shall obtain all requjred permits or Licenses from the appropriate Federal, State, or local authorities necessary for the delivery of water by the Contractor; and shall be responsible for compliance with all Federal, State, and local water quality standards applicable to surface and subsurface drainage and/or discharges generated through the use ofFederaJ or Contractor facilities or project water provided by the Contractor within the Contractor's Project Water Service Area. (3) This Article shall not affect or alter any legal obligations of the Secretary to provide drainage or other discharge services. CONTAMINATION OR POLLUTION OF FEDERAL PROPERlY (h) (1) The Contractor shall not allow contamination or pollution of Federal project lands. project waters, or project works ofthe United States or administered by the United States and for which the Contractor has the responsibility for care, operation, and maintenance by its employees or agents. The Contractor shall also take reasonable precautions to prevent such contamination or pollution by third parties. (2) The Contractor shall comply with all applicable Federal, State, and local laws and regulations and . Reclamation policies and instructions existing, or hereafter enacted or promulgated, concerning any hazardous material that will be used, produced, transported, stored, or disposed of on or in Federal project lands, project waters; or project works. (3) "Hazardous material" meal1.S any substance. pollutant, or contaminant listed as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. as amended, 42 V.S.C. ~ 9601. et seg., and the regulations promulgated pursuant to that Act. In addition, hazardous material shall include thermal pollution. refuse. garbage, sewage effluent, industrial waste. petroleum products. mine tailings. mineral salts, misused pesticides, pesticide containers, or any other pollutants. . (4) Upon discovery of any event which mayor does result in contamination or pollution of Federal project lands. water, or project works, the Contractor shall initiate emergency measures to protect health and safety and the environment if necessary and shall report such discovery with full details of the actions taken to the Contracting Officer. Reporting shall be within a reasonable time period but shaH not exceed 24 hours from the time of discovery if it is an emergency and the first working day if it is a nonemergency. (5) If violation of the provisions of this Article occurs and the Contractor does not take immediate corrective action as determined by the Contracting Omcer. the Contractor may be subject to remedies imposed by the Contracting Officer, which may include termination of this contract. (6) The Contractor shall be liable for the cost of.full and complete remediation and/or restoration of any Federal project lands. project waters, or project works that are ad....ersely affected as a result of such violation, and/or termination of this contract, unless otherwise agreed to by the Contracting Officer. (7) Reclamation agrees to provide information necessary for the Contractor, using reasonable diligence. to comply with the provisions of this Article. EOUAL EMPLOYMENT OPPoRTUNrrv (i) During the performance of this contract, the Contractor agrees as follows: (I) The Contractor will not discrim.i~atc against any employee or applicant for employment because of race. coJor, religion, sex. disability, 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, disability, or national origin. Such action shall include, but not be limited to the following: employment, upgrading. A-2 demotion. or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other fonns 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 a1l solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion. sex, disability. 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 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 Execulive Order No. 11246 ofSeplember 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (5) The Contractor will furnish all infonnatiol1 and reports required by Executive Order 11246 of September 24, 1965, and by the rules. regulations, and orders of the Secretary of Laborl or (JUrsuBDt thereto, and will pecmit access to his books, records., and accounts by the Contracting Agency 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 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 Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24,1965, or by rule, regulatiDn, or order of the Secretary of Labor. OT 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 or the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965. 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 Sllch litigation to protect the interests of the United States. COMPLIANCE WITH CIVIL RIGHTS LAWS AND REGULA liONS OJ (I) The Contractor shall comply wilh Title VI of the Civil Right, Act of 1964 (42 V.S.c. 2000d), Seclion 504 of the RchabiLilation Act of 1973 (P.L. 93-112, as amended), the Age Discrimination Act of 1975 (42 V.S.C. 6101, et seq.), Title 11 of the Americans with Disabilities Act of 1990 if the entity is a State or local government entity [Title III if the entity is a non-government entity]. and noy other applicable civil rights laws. as well as with their respective implementing regulations and guidelines imposed by the U.S. Department of the Interior and/or Bureau of Reclamation, (2) These statutes require that no person in the United States shall be excluded from participation in. be denied the benefits of, or be otherwise subjccted to discrimination under any program or activity receiving financial assistance from the Bureau of Reclamation on the grounds of race, color, national origin. disability, or age. 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 aU Federal grants, loans, contracts, property discounts. or other Federal financial assistance extended after the date hereof to the Contractor by the Bureau of Reclamation, 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. A - 3 (4) Complaints of discrimination against the.Contractor shall be investigated by the Contracting Officer's Qffie<: of Civil Rights, PEST MANAGEMENT (k) .The Contractor shaH effectively control undesirable plants and animals, as defined by the Contracting Officer. on Federal project lands, project waters. and project works for which the Contractor has operation and maintenance responsibility. This control shall include Contractor equipment and vehicle decontamination of reproductive and vegetative parts that may cause the spread of weeds and other pests upon completion of the work. Decontamination should be performed on the work area boundary prior to moving equipment and vehicles out of the area where work is perfonned, Programs for the control of these undesirable plants and animals on Federal project lands, project waters, and project works for which the Contractor has operation and maintenance responsibility will incorporate Integrated Pest Management (IPM) concepts and practices. IPM refers to a systematic and environmentally compatible program to maintain pest populations within economically and environmentally tolerable levels. In implementing an !PM program, the Contractor will adhere to applicable Federal and State laws and regulations and Department of the Interior and Bureau of Reclamation policies, directives. guidelines, and manuals. CONTRACf DRAFTING CONSIDERATIONS (I) Articles I1hrough 14 of this contract have been drafted. negotiated, Bnd reviewed by the parties hereto. each of whom is sophisticated in the matters to which (his contract pertains, and no one party shaH be considered to have drafted the stated articles. A-4