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1 Contract No.__________________ 

2 Draft

3

4 

5 UNITED STATES

6 DEPARTMENT OF THE INTERIOR

7 BUREAU OF RECLAMATION

8

9 ANIMAS-LA PLATA PROJECT

10 COLORADO RIVER STORAGE PROJECT

11

12 REPAYMENT CONTRACT BETWEEN THE UNITED STATES AND 

13 THE SOUTHERN UTE INDIAN TRIBE

14

15

16

17

18 INDEX

19 .

20 Article No. Article Page.

21 

22 1. GENERAL DEFINITIONS..................................................................................................... 5

23 2. PROJECT WORKS................................................................................................................. 8

24 3. WATER DELIVERY PROVISIONS ..................................................................................... 8

25 4. ALLOCATION AND USE OF PROJECT WATER.............................................................. 9

26 5. LIMITED RESPONSIBILITY FOR DISTRIBUTION........................................................ 10

27 6. WATER RIGHT PROVISIONS ........................................................................................... 11

28 7. PROCEDURE TO INITIATE PROJECT WATER DELIVERY......................................... 11

29 8. THIRD-PARTY CONTRACTS............................................................................................ 12

30 9. CONSTRUCTION CHARGE OBLIGATION ..................................................................... 12

31 10. COST PROVISIONS ............................................................................................................ 13

32 11. WATER SUPPLY SHORTAGE........................................................................................... 15

33 12. COVENANT AGAINST CONTINGENT FEES.................................................................. 15

34 13. TITLE TO PROJECT............................................................................................................ 16

35 14. SEVERABILITY................................................................................................................... 16

36
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1 STANDARD ARTICLES........................................................................................................... 17

2 15. CHARGES FOR DELINQUENT PAYMENTS................................................................... 17

3 16. GENERAL OBLIGATION – BENEFITS CONDITIONED UPON PAYMENT ............... 17

4 17. NOTICES .............................................................................................................................. 17

5 18. CONTINGENT ON APPROPRIATION OR ALLOTMENT OF FUNDS.......................... 18

6 19. OFFICIALS NOT TO BENEFIT.......................................................................................... 18

7 20. ASSIGNMENT LIMITED – SUCCESSORS AND ASSIGNS OBLIGATED.................... 18

8 21. BOOKS, RECORDS, AND REPORTS................................................................................ 18

9 22. RULES, REGULATIONS, AND DETERMINATIONS...................................................... 18

10 23. PROTECTION OF WATER AND AIR QUALITY............................................................. 19

11 24. WATER CONSERVATION................................................................................................. 19

12 25. INDIAN EMPLOYMENT – EQUAL EMPLOYMENT OPPORTUNITY......................... 19

13 27. MEDIUM FOR TRANSMITTING PAYMENTS ................................................................ 21

14 28. CONTRACT DRAFTING CONSIDERATIONS................................................................. 21

15 29. CONSTRAINTS ON THE AVAILIBILITY OF WATER................................................... 21

16

17
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1 Contract No. __________________

2

3

4 UNITED STATES

5 DEPARTMENT OF THE INTERIOR

6 BUREAU OF RECLAMATION

7

8 ANIMAS-LA PLATA PROJECT

9 COLORADO RIVER STORAGE PROJECT

10

11 REPAYMENT CONTRACT BETWEEN THE UNITED STATES AND 

12 THE SOUTHERN UTE INDIAN TRIBE

13

14

15 THIS REPAYMENT CONTRACT (Contract), entered into this day of 

16 ___________________, 2015, pursuant to the Act of Congress approved June 17, 1902 (32 Stat. 

17 388), and acts amendatory thereof or supplementary thereto, all of which acts are commonly 

18 known and referred to as the Federal Reclamation Laws, between the UNITED STATES OF 

19 AMERICA, hereinafter referred to as the United States, represented by the officer executing this 

20 Contract, and THE SOUTHERN UTE INDIAN TRIBE, hereinafter referred to as the Tribe,

21 (individually as “Party” and collectively as “the Parties” to this Contract) acting through their 

22 representatives.

23 WITNESSETH, That: 

24 WHEREAS, the following statements are made in explanation: 

25 (a) The Act of Congress approved April 11, 1956 (70 Stat. 105), authorized the planning 

26 and investigation of the Animas-La Plata Project (Project), as a participating project of the 

27 Colorado River Storage Project; subsequently, the construction, operation, and maintenance of 

28 the Animas-La Plata Project was authorized by Title V of the Colorado River Basin Project Act 

29 of September 30, 1968 (82 Stat. 896), and the United States has investigated, planned, and 

30 constructed the said Project for the diversion, storage, salvage, and delivery of the waters of the 

31 Animas River, which the Project has among its authorized purposes the furnishing of water for 

32 municipal, industrial, domestic, and other beneficial purposes. The water rights settlement 

33 purposes of the Project were authorized by the Colorado Ute Indian Water Rights Settlement Act 

34 of 1988, Public Law 100-585 (102 Stat. 2973), as amended by the Colorado Ute Settlement Act 
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1 Amendments of 2000, Public Law 106-554 (114 Stat. 2763) (hereinafter referred to as the 

2 Settlement Act).

3 (b) The Settlement Act authorized the Secretary to settle the outstanding claims of the Tribe 

4 on the Animas and La Plata Rivers, acting through the Bureau of Reclamation (Reclamation) to

5 complete construction of, and operate and maintain Project Works with sufficient capacity to 

6 divert and store, and use water from the Animas River to provide for an average annual depletion

7 of 57,100 acre-feet of water to be used for a municipal and industrial (M&I) water supply.

8 (c) Pursuant to the Settlement Act, the United States agrees to deliver through the use of 

9 Project Works, or make available for delivery to the Tribe, an M&I water allocation with an 

10 average annual depletion not to exceed 16,525 acre-feet for its present and future needs.

11 (d) The Secretary has determined in accordance with Section 6(a)(2) of the Settlement Act,

12 the Tribe’s construction costs allocable to the Project Works that are required to deliver the 

13 Tribe’s Statutory Water Allocation shall be nonreimbursable to the United States.

14 (e) Reclamation has completed the Animas-La Plata Final Supplemental Environmental 

15 Impact Statement (FSEIS) dated July 2000, and subsequent Record of Decision (ROD) dated 

16 September 25, 2000, for compliance with the National Environmental Policy Act. The Tribe 

17 acknowledges that as a result of this regulatory compliance, and the terms of this Contract, it is 

18 limited in this Contract to an M&I water allocation with an average annual depletion not to 

19 exceed 16,525 acre-feet of water. 

20 (f) Water rights for the Project have been obtained in Colorado and New Mexico.

21 (g) The Tribe has interest in contracting for the water supply allocated to the Southern Ute 

22 Indian Tribe pursuant to the Settlement Act.

23 (h) The Tribe has demonstrated its legal and financial capability to make the contributions 

24 and payments required by this Contract.

25 (i) The Project will be used to provide dependable long-term M&I water storage for the 

26 Tribe as described in the FSEIS and the ROD. 

27 (j) It is the intent of both Parties that any rights granted by this Contract are not limited to a 

28 specific term, but would instead continue in full force and effect pursuant to Section 9(c)(1) of 

29 the Reclamation Project Act of 1939, 43 U.S.C.§ 485h. This Contract will remain in full force 

30 and effect for the useful Project life, or until mutually agreed upon by the Parties.
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1 (k) The Southern Ute Indian Tribe, by letter dated May, 14, 2012, concurs to the method of 

2 payment in which the Secretary shall pay, directly to the Project Operator, the Tribe’s pro-rata 

3 portion of the unused Fixed annual operation, maintenance, and replacement costs, pursuant to 

4 Section 6 (a)(4)(A) of the Settlement Act. 

5 (l) The construction of the Project Works, the allocation of the water supply from those 

6 facilities to the Colorado Ute Tribes, the provision of funds to the Colorado Ute Tribes, and the 

7 issuance of an amended final consent decree by the State of Colorado, as contemplated in the 

8 Settlement Act, shall constitute final settlement of the Colorado Ute Tribe claims to water rights 

9 on the Animas and La Plata Rivers in the State of Colorado.

10 (m) The Parties hereto desire to enter into this Contract in order to secure this M&I water 

11 supply pursuant to the terms and conditions of the Settlement Act for the use of such water in 

12 and for the benefit of the Tribe as hereinafter provided.

13

14 NOW, THEREFORE, in consideration of the mutual and dependent covenants and 

15 conditions contained herein, the Parties hereto agree as to the following:

16

17 1. GENERAL DEFINITIONS

18 For the purposes of this Contract only, unless otherwise distinctly expressed or manifestly 

19 incompatible with the intent hereof, the term: 

20 (a) “Appurtenant Facilities” includes, but is not limited to, transmission lines, roads, 

21 buildings, and other facilities related to the Project Works constructed as a part of the Project.

22 (b) “Association" means the Animas-La Plata Operations, Maintenance, and Replacement 

23 Association, established by the Project sponsors who are signatories to the Intergovernmental 

24 Agreement (IGA) dated March 4, 2009, pursuant to the Colorado Uniform Unincorporated 

25 Nonprofit Association Act, 7-30-101 et seq., CRS (2006), to carry out the operation, 

26 maintenance and replacement (OM&R) activities and responsibilities of the Project.

27 (b)(c) “Average Annual Depletion” means the depletion of Project Water accounted for 

28 over an interval of time as a whole or by an individual Project participant, pursuant to the 

29 Settlement Act, to be determined by the United States in cooperation with Project participants.

30 (c)(d) “Colorado Ute Tribes” means the Southern Ute Indian Tribe, and the Ute 

Comment [RKC1]: In order to address the 

Tribe’s concern regarding consultation of the method 

of calculating Average Annual Depletions, the term 

is defined using the language from the IGA.
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1 Mountain Ute Tribe, both being federally recognized Indian tribes.

2 (d)(e) “Consultation” means the United States shall notify and confer with the Tribe 

3 regarding significant decisions pertaining to this Contract. In the event that consensus cannot be 

4 reached and the United States makes a decision, appeals are available to the extent allowed under 

5 applicable laws.

6 (f) "Contracting Officer" or “Secretary” or “United States" means the Secretary of the 

7 United States, Department of the Interior or his/her duly authorized representative to administer 

8 this Contract.

9 (e)(g) “First Use “” means the date in which water is first used by the Tribe or used 

10 pursuant to a Third-Party Contract with the Tribe. First Use of water shall be deemed to occur in 

11 any water year in which a Tribe actually uses water or during the term of any Third-Party 

12 Contract. A Third-Party Contract pursuant to which the only income to the Tribe is in the nature 

13 of a standby charge is deemed not to be a first use of water.

14 (f)(h) “Fixed OM&R Costs” includes, but is not limited to costs of labor, materials and 

15 equipment required to maintain Project Works; Project administration and overhead; energy 

16 consumption and power demand costs attributable to the pumping of water to Lake Nighthorse to 

17 account for testing; evaporation and seepage losses; and annual payments to reserve fund(s). 

18 (g)(i) “IGA” means the intergovernmental agreement, effective March 4, 2009, which 

19 has been executed by and among the Colorado Water Resource and Power Development 

20 Authority; the San Juan Water Commission, a political subdivision of the state of New Mexico;

21 the La Plata Conservancy District, a political subdivision of the state of New Mexico; the 

22 Southern Ute Indian Tribe, a federally recognized Indian tribe; the Navajo Nation, a federally 

23 recognized Indian tribe; and the Ute Mountain Ute Tribe, a federally recognized Indian tribe; and 

24 their authorized assignees, that have been identified by the Settlement Act to receive a water 

25 allocation that established the Association to carry out OM&R activities and responsibilities of

26 the Project.

27 (h)(j) “Operation and Maintenance Facilities” means those facilities necessary to 

28 support OM&R obligations, including a permanent operating facility with associated office 

29 space, shop(s) for repair and housing of the maintenance support equipment, storage place for 

30 supplies, and equipment yard.

Comment [RKC2]: This definition is consistent 

with the other Repayment Contracts. Tribe would 

like to consider the language from the Navajo 

Settlement Contract. From the Navajo Settlement 

Contract:

“Consultation” or “consult” refers to an ongoing 

obligation of both parties to implement the 

provisions of this Contract with a full exchange of 

information so as to assure that each party is 

provided full participation in the decision making 

process. Consultation shall be required of each party 

with respect to each section of the Contract 

regardless of whether the section itself sets forth a 

Consultation requirement. The Consultation 

required shall be reasonable under the circumstances, 

and except in exigent circumstances, Consultation 

shall be undertaken in advance of decision making. 

In the event that agreement cannot be reached and 

the United States makes a decision, appeals are 

available to the extent allowed under applicable 

laws.

Comment [RKC3]: All situations that will not 

trigger first use to be further discussed. The Tribe 

would like to add “The Tribe’s First Use shall not be 

triggered when a portion of its Statutory Water 

Allocation is used for emergency purposes, 

including, but not limited to, fire, contamination of 

the water in the Animas River or in Lake Nighthorse, 

drought response, compact compliance or as 

otherwise provided in federal legislation.”
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1 (i)(k) “Point of Delivery” means the point where the water is released at the outlet 

2 works of Ridges Basin Dam or bypassed at the Durango Pumping Plant, or other location where 

3 water is diverted directly from Lake Nighthorse and/or in the Animas River below the Durango 

4 Pumping Plant.

5 (j)(l) "Project Operator" means the Association, pursuant to OM&R Contract No. 10-WC-40-

6 370, or the United States.

7 (k)(m) “Project Storage Water” means Project Water provided from storage in Lake 

8 Nighthorse, the storage component of the Project.

9 (l)(n) “Project Water” means all water released from storage through the Animas-La 

10 Plata Project, or bypassed and measured from the natural flow of the Animas River, at the 

11 Durango Pumping Plant, as part of the Project participant’s statutory water allocation. 

12 (m)(o) "Project Works" means all works or facilities as described in the Settlement Act,

13 including a reservoir, a pumping plant, a reservoir inlet conduit, and Appurtenant Facilities, not 

14 including recreation facilities, with sufficient capacity to divert and store water from the Animas 

15 River for an average annual depletion of 57,100 acre-feet of water to be used for an M&I water 

16 supply, together with lands and rights-of-way for such works, as described in Article 2.

17 (n)(p) “Settlement Act” means the Colorado Ute Indian Water Rights Settlement Act of 

18 1988, Public Law 100-585 (102 Stat. 2973), as amended by the Colorado Ute Settlement Act 

19 Amendments of 2000, Public Law 106-554 (114 Stat. 2763).

20 (o)(q) “Third-Party Contract” means any contract entered into between the Tribe and a 

21 third party for the beneficial use of the Tribe’s Statutory Water Allocation.

22 (p)(r) “Tribe” or “Tribal” means the Southern Ute Indian Tribe of the Southern Ute 

23 Indian Reservation, headquartered in Ignacio, Colorado, a body politic and federally recognized 

24 Indian tribe as provided in Section 104 of the Act of November 2, 1994 (Pub. L. 103-454; 108 

25 Stat. 4791, 4792).

26 (q)(s) “Tribe’s Statutory Water Allocation” means the M&I water allocation with an 

27 average annual depletion not to exceed 16,525 acre-feet of water, pursuant to Section 

28 6(a)(1)(A)(ii)(I) of the Settlement Act.

29 (r)(t) “Variable OM&R Costs” are the costs of power including energy consumption and that 

30 share of power demand costs for the pumping of water not designated as Fixed OM&R costs.
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1

2 2. PROJECT WORKS

3 Subject to the terms and conditions of this and other applicable contracts related specifically to 

4 this Project, the United States has constructed the Project Works and Appurtenant Facilities, 

5 acquired lands, and provided certain moveable property and equipment to the Project Operator 

6 needed to carry out OM&R activities and responsibilities as necessary for Project purposes.

7 (a) The Project Works are presently identified as the following:

8 (1) Ridges Basin Dam, and Lake Nighthorse, are located on Basin Creek approximately 3 

9 miles southwest of Durango, Colorado. The reservoir has a total storage capacity of 

10 123,541 acre-feet.

11 (2) Durango Pumping Plant is located adjacent to the Animas River which pumps water 

12 from the Animas River for storage in Lake Nighthorse.

13 (3) Ridges Basin Inlet Conduit extends from the Durango Pumping Plant to Lake 

14 Nighthorse.

15 (4) Operation and Maintenance Facilities have been constructed, as determined necessary 

16 by the United States, for the required OM&R of Project Works.

17 (b) The United States, after Consultation with the Tribe, shall have the right at any time to 

18 increase the capacity of the Project Works, or any unit or feature thereof, for other than currently 

19 authorized project purposes without additional capital or OM&R costs to the Tribe; provided, 

20 that the Tribe's use of the Tribe’s Statutory Water Allocation shall not be impaired thereby. The 

21 right of use of such increased capacity is reserved to the United States.

22 (c) Any additions, changes to, or operation of Project Works or changes in use of the Tribe’s 

23 Statutory Water Allocation from that stated in the FSEIS, and subsequent ROD, will, if required 

24 by law, be subject to further compliance with applicable environmental statutes, which shall 

25 include an analysis of potential impacts on other Project participants.

26

27

28 3. WATER DELIVERY PROVISIONS

29 (a) Pursuant to the Settlement Act, the United States agrees to deliver or make available for 

30 delivery to the Tribe an M&I water allocation with an average annual depletion not to exceed 
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1 16,525 acre-feet from the Project. The water released or bypassed for the Tribe pursuant to this 

2 Contract, or a third party pursuant to a Third-Party Contract, as provided by Article 8 shall be 

3 measured at the outlet works of Ridges Basin Dam, and/or in the Animas River below the 

4 Durango Pumping Plant, with measuring facilities installed by the United States as a part of the 

5 Project. The Tribe may take its water from additional points of diversion directly from Lake 

6 Nighthorse after Consultation and approval of the United States. Water delivered at these 

7 additional points of diversion on Lake Nighthorse shall be measured at those points of diversion 

8 by facilities provided by the Tribe or its third party contractors. Water will be available at the 

9 outlet works of Ridges Basin Dam, additional points of diversion on Lake Nighthorse and/or the 

10 Animas River in such quantities as the Tribe determines, subject to capacity limitations of the 

11 relevant facilities, to ensure that the Tribe receives the Tribe’s Statutory Water Allocation. 

12 (b) Once water is released from the outlet works of Ridges Basin Dam, bypassed at the 

13 Durango Pumping Plant, or diverted from Lake Nighthorse, the United States will not be 

14 responsible for the control, carriage, handling, use, disposal, or distribution of the Tribe’s

15 Statutory Water Allocation, or for any damage of any nature whatsoever arising out of or 

16 connected to the control, carriage, handling, transportation loss, treatment, use, disposal of the 

17 Tribe’s Statutory Water Allocation, except when caused by the direct action of the United States.

18 (c) All facilities required for taking the water furnished under this Contract from the points 

19 of delivery, and putting it to use by the Tribe and its users or Third-Party Contractors will be 

20 acquired, constructed or installed, and operated and maintained by the Tribe, its users, or Third 

21 Party Contractors at their sole expense, unless otherwise agreed to by the United States.

22

23 4. ALLOCATION AND USE OF PROJECT WATER

24 (a) The Tribe's Statutory Water Allocation consists of a combination of direct diversion 

25 from the natural flows from the Animas River, and/or water released from storage to Basin Creek 

26 and subsequently diverted from the Animas River, and/or water released to non-project facilities.

27 (b) The United States shall have full use of the Tribe’s Statutory Water Allocation, or an 

28 unused portion of the Statutory Water Allocation, until the Tribe’s Ffirst water Uuse of that 

29 portion of the Project Water supply. Such use by the United States would not constitute First 
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1 Use of the Tribe’s Statutory Water Allocation, and the Tribe would not be responsible for any 

2 costs associated with such use.

3

4 (c) The Tribe shall have the right of up to 38,108.5 acre-feet of storage capacity in Lake 

5 Nighthorse to supplement the amount of direct flow diversion as necessary to fulfill the Tribe's 

6 Statutory Water Allocation. Unless the IGA is in effect, any portion of the 38,108.5 acre-feet of 

7 the unused storage shall be retained in Lake Nighthorse, and shall be available for the Tribe's use 

8 in succeeding years. Until full use of the Tribe’s Statutory Water Allocation, the Tribe shall then 

9 have the opportunity to purchase excess Project Water from other Project participants.

10 (d) If required to ensure that the Tribe’s Statutory Water Allocation with an average annual 

11 depletion not to exceed 16,525 acre-feet of water is met, the water may be used and reused to the 

12 extent permitted by the Project decrees and Federal authorizations. In addition, the water may be 

13 used at any location in the State of Colorado, in accordance with all applicable laws, or may be 

14 used by exchange or augmentation. Also, the water may be used for compact compliance 

15 purposes. Any use of water contemplated in this Article shall be subject to the conditions in 

16 Article 2(c).

17 (e) The United States, after compliance with applicable environmental compliance statutes

18 and consistent with appropriate land use regulations, shall cooperate with the Tribe, its 

19 subcontractors or assignees, to provide appropriate means for access to land needed for delivery 

20 of Project Water through non-project facilities.

21

22 5. LIMITED RESPONSIBILITY FOR DISTRIBUTION 

23 Upon delivery, as specified under Article 3 herein, the Tribe shall hold the United States, 

24 its officers, agents, employees, and successors or assigns, harmless from every claim for 

25 damages to persons or property, direct or indirect, and of whatever nature, arising out of or in 

26 any manner connected with the control, carriage, handling, distribution or use of such water 

27 beyond the Point of Delivery, except when caused by the negligence of the United States. 

28 Nothing herein shall be deemed to increase the liability of the United States beyond the 

29 provisions of the Federal Tort Claims Act, Act of June 25, 1948, 62 Stat. 982 (28 U.S.C. 

Comment [RKC4]: Suggested addition to clarify 

the Tribe’s concern that such use could be 

considered First Use. The Tribe would like to see 

Article 4(b) deleted.

Comment [RKC5]: Tribe may want to discuss 

further

Comment [BG6]: 060514 – CB to further review
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1 §1346(b), 2671 et seq.) or other applicable law. 

2 6. WATER RIGHT PROVISIONS

3 (a) The Tribe, or its assignee, shall protect its interest in the Project water rights, and in 

4 case a dispute arises as to the character, extent, priority or validity of the rights of the United 

5 States, or the Tribe to use or permit use of Project Water, the Tribe shall promptly bring and 

6 diligently prosecute and/or defend judicial proceedings for the determination of such dispute, and 

7 shall take all other measures necessary toward the defense and protection of the Project water 

8 supply. The United States, upon request of the Tribe, will enter into the proceedings to defend 

9 such rights.

10 

11 7. PROCEDURE TO INITIATE PROJECT WATER DELIVERY

12 (a) Effective upon the date of execution of this Contract, the Tribe’s Statutory Water 

13 Allocation shall be available for beneficial use by the Tribe upon their request for Project Water 

14 delivery, as provided herein. The initial request by the Tribe for any new delivery of a specified 

15 quantity of Project Water (rounded to the nearest acre-foot) shall be conducted in the following 

16 two ways: 

17 (1) Delivery of the Tribe’s Statutory Water Allocation to the Tribe, for use by the Tribe, 

18 shall be accomplished through written notice to Reclamation, pursuant to Article 17, and 

19 the Project Operator. The written notice shall include the quantity of water, includingand

20 the equivalent depletion amount consistent with the Average Annual Depletion, of the 

21 Tribe’s Statutory Water Allocation under the request (rounded to the nearest acre-foot), a 

22 description of the use of the requested amount, and the location of the diversion point(s)

23 for the requested amount. The date the water is taken at a Point of Delivery will establish 

24 the date of First Use by the Tribe of that portion of the Tribe’s Statutory Water Allocation 

25 as stipulated under Section 6(a)(4)(A) of the Settlement Act.

26 (2) Delivery of the Tribe’s Statutory Water Allocation under Third-Party Contracts shall 

27 be accomplished as provided under Article 8. The date upon which a third party pays the 

28 Tribe under the terms of the Third-Party Contract or accepts delivery of water, will 

29 establish the date of First Use by the Tribe of that portion of the Tribe’s Statutory Water 

Comment [RKC7]: The Tribe would like this 

article removed, as it is not in the Navajo Settlement 

Contract.
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1 Allocation as stipulated under Section 6(a)(4)(A) of the Settlement Act.

2 (b) The Tribe’s Statutory Water Allocation associated with all the Project Water deliveries 

3 shall be measured and delivered pursuant to Articles 3 and 4. 

4

5 8. THIRD-PARTY CONTRACTS

6 (a) Any contract entered into between the Tribe and any third-party for the beneficial use of 

7 the Tribe’s Statutory Water Allocation under this Contract shall be subject to written approval by 

8 the United States. United States’ approval will be based on a determination that the Third-Party 

9 Contract will not negatively affect Project operations, benefits, or authorized purposes, and is 

10 consistent with applicable federal law and commitments. Nothing in these Third-Party 

11 Contracts shall interfere with other contractual, legal, or regulatory obligations of the United 

12 States. The Third-Party Contract will require the third-party to be bound to the provisions of this 

13 Contract including, but not be limited to, terms of measurement, operations, environmental 

14 compliance, and the impact of defaults on Project Works. The Third-Party Contract will also 

15 state the amount of water and the equivalent depletion amount, consistent with the Average 

16 Annual Depletion, under the Third-Party Contract.

17 (b) Approval by the United States shall not be unreasonably withheld. The United States 

18 shall have 60 days after receipt of the proposed Third-Party Contract to inform the Tribe of its 

19 approval or denial of the Third-Party Contract. If additional environmental compliance is 

20 required, the Tribe and the United States will develop a schedule for approval. Water made 

21 available under Third-Party Contracts shall be delivered from the Tribe’s Statutory Water 

22 Allocation. The Tribe will be the responsible party to pay the applicable share of the OM&R 

23 costs of the contracted water to the Project Operator. 

24

25 9. CONSTRUCTION CHARGE OBLIGATION 

26 Pursuant to Sections 6(a)(2) of the Settlement Act, all construction and all interest costs 

27 allocated to the Tribe’s Statutory Water Allocation are declared non-reimbursable and hereby 

28 waived.

29

30
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1 10. COST PROVISIONS

2 (a) The United States recognizes the desirability of implementing the IGA while in effect. 

3 In the unlikely event that the IGA is voided or otherwise terminated, the applicable provisions in 

4 this article will determine payment due to the Project Operator.

5 (b) Pursuant to Section 6(a)(4)(A) of the Settlement Act, and with respect to the Tribe’s 

6 Statutory Water Allocation, until that water is put to First Use the Secretary shall pay the annual 

7 Fixed OM&R Costs allocable to that M&I water allocation of the Tribe. The Secretary shall pay 

8 the Tribe’s Fixed OM&R costs consistent with the procedures established by the Association, 

9 and in accordance with the Settlement Act. Once First Use has been established for a quantity of 

10 the Tribe’s Statutory Water Allocation as provided under Article 7, the Tribe shall then be solely 

11 responsible for both the Fixed OM&R Costs and Variable OM&R Costs allocable to that 

12 quantity from that time forward pursuant to Section 6(a)(5)(b) of the Settlement Act. 

13 (c) During the period in which the Secretary is paying any portion of the Tribe’s OM&R 

14 costs, Reclamation, in conjunction with the three-year and one-year OM&R work plans required 

15 under its OM&R Contract with the Association, will confer with the Tribe. Reclamation will 

16 continue to confer with the Tribe on the Association’s annual OM&R budget until the Tribe has 

17 assumed the responsibility to pay 100 percent of its OM&R costs. 

18 (c)(d) Pursuant to Section 6(a)(5)(b) of the Settlement Act, upon the Tribe’s First Use of 

19 an increment of the Tribe’s Statutory Water Allocation, or the Tribe’s First Use of such water 

20 pursuant to the terms of a Third-Party Contract, the Tribe shall bear all Variable OM&R costs 

21 associated with all increments of water established under First Use, and the pro rata share of all 

22 annual Fixed OM&R costs of such increments from that point in time on, throughout the life of 

23 the Project. The pro rata share of the Tribe’s total annual Fixed OM&R Costs to be borne by the 

24 Tribe will be based upon the formula: 

25

26

27 Pro Rata Share of Total = Accumulated Increments Established Under First Use

28 Tribal Fixed OM&R Obligation Statutory Water Allocation

29

30 (d)(e) In the unlikely event that the IGA is voided or otherwise terminated, the OM&R 

31 costs allocated to the Tribe will be comprised of:

Comment [RKC8]: The Tribe would like some 

sort of recognition that the IGA will govern the cost 

provisions while it is in effect. This could possibly 

be recognized in the recital section, alternatively.
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1 (1) The Tribe’s share of Fixed OM&R Costs of the multipurpose facilities as further 

2 defined in the IGA. The Tribe’s share, as identified in the IGA is 35.5% of the 

3 total Fixed OM&R Costs. If the IGA is voided or otherwise terminated, the 

4 Tribe’s share of Fixed OM&R Costs will be defined by the final cost allocation; 

5 (2) The Tribe’s share of Variable OM&R Costs include actual costs of replacing 

6 Project Storage Water released or diverted from Lake Nighthorse by request of 

7 the Tribe, or any Third Party Contractor.

8 (e)(f) Upon First Use of the Tribe’s Statutory Water Allocation, the Tribe agrees to pay

9 the Project Operator, within a reasonable amount of time, in advance, its share of the OM&R 

10 costs associated with said Project Works.

11 (1) While the IGA is in effect, the Tribe shall follow the terms and conditions set 

12 forth in the IGA.

13 (2) In the unlikely event that the IGA is voided or is otherwise terminated:

14 i. The Tribe agrees to pay the Project Operator, in advance, its share of 

15 OM&R costs associated with said Project Works. An OM&R charge 

16 notice shall be furnished annually by the Project Operator, which will be 

17 paid by the Tribe in advance annually.

18 ii. The Tribe under this Contract shall have 38,108.5 acre-feet of storage 

19 capacity allocated for its exclusive use in Lake Nighthorse to support use 

20 of the Project Water supply as described in Article 3(a). The United 

21 States, or the Project Operator, shall fill and refill the Tribe’s storage 

22 capacity space as often as direct flow is legally available from the 

23 Animas River to fill said space under the Project diversion right issued in 

24 the State of Colorado, or as free river conditions allow. The Project 

25 participants recognize, however, that at times it may be preferable to 

26 delay pumping water to replace the Project water supply in the Reservoir 

27 until power costs are less expensive and thus that the Reservoir may not 

28 be full at all times. The Tribe shall have 38,108.5 acre-feet of storage 

29 capacity in Lake Nighthorse from year to year to the extent that water 

30 stored in the Tribe’s storage capacity space may be held for exclusive 
- 15 -

1 delivery to the Tribe in future years as necessary to meet the delivery 

2 demands of the Tribe in accordance with Article 3(a). 

3 iii. The Tribe’s OM&R allocation will be comprised of:

4 A. The Tribe’s pro-rata share of OM&R costs actually incurred by 

5 the Project Operator in connection with Project facilities and/or 

6 operations that benefit all users of the Project, based on the 

7 amount of water storage actually allocated to the Tribe.

8 B. The actual cost of replacing Project Storage Water released by 

9 request of the Tribe or any Third Party Contractor.

10 (g) It is the intent of both parties that the Tribe will pay its obligations under this Contract 

11 and the Tribe agrees to take all reasonable actions to ensure adequate funds are available to pay 

12 the amounts as required under this Article. In the event that the Tribe demonstrates to the 

13 Secretary that it is unable to pay in whole or in part of its Project OM&R obligations from the 

14 gross revenues which could be generated from a Third-Party Contract for the use of its water, 

15 pursuant to Section 6(d) of the Settlement Act, then the Secretary will pay those deferred

16 obligations to the Project Operator on behalf of the Tribe, subject to Congressional 

17 appropriations.

18

19 11. WATER SUPPLY SHORTAGE

20 (a) With respect to water made available from the Project under the terms of this Contract, 

21 the Tribe shall share proportionally in any water shortages to the Project, consistent with Article

22 1 of the Animas-La Plata Project Compact (82 Stat.898).

23 (b) Unless the IGA is in effect, in any year in which there may occur a shortage from any 

24 cause, the United States reserves the right to apportion the available water allocation pursuant to 

25 the Settlement Act, as amended, and applicable laws, including the Animas-La Plata Project 

26 Compact, among the Tribe and others entitled to receive water from the Project in accordance 

27 with conclusive determinations of the Contracting Officer.

28 

29 12. COVENANT AGAINST CONTINGENT FEES

30 The Tribe warrants that it has not employed or retained any person or selling agency to 

Comment [RKC9]: Language inserted from 

Section 6(d) of the Settlement Act. May need to 

include some timing language.

Comment [RKC10]: Tribe would like this 

article removed.
- 16 -

1 solicit or secure this Contract upon an agreement or understanding for a commission, percentage, 

2 brokerage or contingent fee, excepting bona fide employees or bona fide established commercial 

3 or selling agencies maintained by the Tribe for the purpose of securing business. For breach or 

4 violation of this warranty, the United States shall have the right to annul this Contract without 

5 liability, or at its discretion, to add to payment obligation or consideration the full amount of 

6 such commission, percentage, brokerage, or contingent fee.

7

8 13. TITLE TO PROJECT

9 Title to the Project Works shall be held by the United States, unless specifically provided 

10 otherwise by Congress, notwithstanding transfer of the OM&R of any said works to the Project 

11 Operator.

12

13 14. SEVERABILITY

14 If any provisions of this Contract shall, for any reason be determined to be illegal or 

15 unenforceable, the Parties, nevertheless, intend that the remainder of this Contract shall remain in 

16 full force and effect. Furthermore, any adjustments or variations to this Contract necessitated by 

17 future negotiations with other Project beneficiaries can be accomplished by amending this 

18 Contract. In the event that unforeseen issues arise, the Tribe and the United States will work 

19 together to attempt to resolve the issue by either amending this Contract, entering into a 

20 memorandum of understanding or other appropriate means.

21

22

23

Comment [RKC11]: Article included in SJWC 

and State of Colorado Repayment Contracts. Tribe 

would like this article removed.
- 17 -

1 STANDARD ARTICLES

2

3 15. CHARGES FOR DELINQUENT PAYMENTS

4

5 (a) The Tribe shall be subject to interest, administrative, and penalty charges on delinquent 

6 payments. If a payment is not received by the due date, the Tribe shall pay an interest charge on 

7 the delinquent payment for each day the payment is delinquent beyond the due date. If a 

8 payment becomes 60 days delinquent, the Tribe shall pay, in addition to the interest charge, an 

9 administrative charge to cover additional costs of billing and processing the delinquent payment. 

10 If a payment is delinquent 90 days or more, the Tribe shall pay, in addition to the interest and 

11 administrative charges, a penalty charge for each day the payment is delinquent beyond the due 

12 date, based on the remaining balance of the payment due at the rate of 6 percent per year. The 

13 Tribe shall also pay any fees incurred for debt collection services associated with a delinquent 

14 payment.

15 (b) The interest rate charged shall be the greater of either the rate prescribed quarterly in the 

16 Federal Register by the Department of the Treasury for application to overdue payments, or the 

17 interest rate of 0.5 percent per month. The interest rate charged will be determined as of the due 

18 date and remain fixed for the duration of the delinquent period.

19 (c) When a partial payment on a delinquent account is received, the amount received shall 

20 be applied first to the penalty charges, second to the administrative charges, third to the accrued 

21 interest, and finally to the overdue payment.

22

23 16. GENERAL OBLIGATION – BENEFITS CONDITIONED UPON PAYMENT

24

25 (a) The obligation of the Tribe to pay the Project Operator as provided in this contract is a 

26 general obligation of the Tribe notwithstanding the manner in which the obligation may be 

27 distributed among the Tribe's water users and notwithstanding the default of individual water 

28 users in their obligations to the Tribe.

29 (b) The payment of charges becoming due pursuant to this contract is a condition precedent 

30 to receiving benefits under this contract. The Project Operator shall not make water available to 

31 the Tribe through Animas-La Plata project facilities during any period in which the Tribe is in 

32 arrears in the advance payment of any operation and maintenance charges due the Project 

33 Operator. The Tribe shall not deliver water under the terms and conditions of this contract for 

34 lands or parties that are in arrears in the advance payment of operation and maintenance charges 

35 as levied or established by the Tribe.

36

37 17. NOTICES

38

39 Any notice, demand, or request authorized or required by this contract shall be deemed to 

40 have been given, on behalf of the Tribe, when mailed, certified postage prepaid, or delivered to 

41 the Regional Director, Upper Colorado Region, Bureau of Reclamation, 125 South State Street, 

42 Room 6107, Salt Lake City, UT 84138-1102; and on behalf of the United States, when mailed, 

43 certified postage prepaid, or delivered to the Tribal Chairman, Southern Ute Indian Tribe, PO 

44 Box 737, Ignacio, CO 81137, with a copy to the Director, Department of Natural Resources, 
- 18 -

1 Southern Ute Indian Tribe, PO Box 737, Ignacio, CO 81137. The designation of the addressee 

2 or the address may be changed by notice given in the same manner as provided in this article for 

3 other notices.

4

5 18. CONTINGENT ON APPROPRIATION OR ALLOTMENT OF FUNDS

6

7 The expenditure or advance of any money or the performance of any obligation of the 

8 United States under this contract shall be contingent upon appropriation or allotment of funds. 

9 Absence of appropriation or allotment of funds shall not relieve the Tribe from any obligations 

10 under this contract. No liability shall accrue to the United States in case funds are not 

11 appropriated or allotted.

12

13 19. OFFICIALS NOT TO BENEFIT

14

15 No Member of or Delegate to the Congress, Resident Commissioner, or official of the 

16 Tribe shall benefit from this contract other than as a water user or landowner in the same manner 

17 as other water users or landowners.

18

19

20 20. ASSIGNMENT LIMITED – SUCCESSORS AND ASSIGNS OBLIGATED

21

22 The provisions of this contract shall apply to and bind the successors and assigns of the 

23 parties hereto, but no assignment or transfer of this contract or any right or interest therein by 

24 either party shall be valid until approved in writing by the other party.

25

26 21. BOOKS, RECORDS, AND REPORTS

27

28 The Secretary and the Tribe shall jointly establish and maintain accounts and other books 

29 and records pertaining to administration of the terms and conditions of this contract as are 

30 necessary to operate the subject facilities, including the Tribe's financial transactions; water 

31 supply data; project operation, maintenance, and replacement logs; and other matters that the 

32 Contracting Officer may require as it pertains to the obligations under this contract. Reports 

33 shall be furnished to the Contracting Officer in such form and on such date or dates as the 

34 Contracting Officer may require. Subject to applicable Federal laws and regulations, each party 

35 to this contract shall have the right during office hours to examine and make copies of the other 

36 party’s books and records relating to matters covered by this contract.

37

38 22. RULES, REGULATIONS, AND DETERMINATIONS

39

40 (a) The parties agree that the delivery of water or the use of Federal facilities pursuant to 

41 this contract is subject to Federal reclamation law, as amended and supplemented, and the rules 

42 and regulations promulgated by the Secretary of the Interior under Federal reclamation law.

43 (b) The Contracting Officer shall have the right to make determinations necessary to 

44 administer this contract that are consistent with its provisions, the laws of the United States and 
- 19 -

1 the state of Colorado, and the rules and regulations promulgated by the Secretary of the Interior. 

2 Such determinations shall be made in Consultation with the Tribe.

3

4 23. PROTECTION OF WATER AND AIR QUALITY

5

6 (a) Project facilities used to make available and deliver water to the Tribe shall be operated 

7 and maintained in the most practical manner to maintain the quality of the water at the highest 

8 level possible as determined by the Contracting Officer: Provided, That the United States does 

9 not warrant the quality of the water delivered to the Tribe and is under no obligation to furnish or 

10 construct water treatment facilities to maintain or improve the quality of water delivered to the 

11 Tribe.

12 (b) The Tribe shall comply with all applicable water and air pollution laws and regulations 

13 of the United States and the state of Colorado; and shall obtain all required permits or licenses 

14 from the appropriate federal [, state, or local] authorities necessary for the delivery of water by 

15 the Tribe; and shall be responsible for compliance with all federal[, state, and local] water quality 

16 standards applicable to surface and subsurface drainage and/or discharges generated through the 

17 use of Federal or Tribe facilities or project water provided by the Tribe within the Tribe’s Project 

18 Water Service Area.

19 (c) This article shall not affect or alter any legal obligations of the Secretary to provide 

20 drainage or other discharge services.

21

22 24. WATER CONSERVATION

23

24 Prior to the delivery of water provided from or conveyed through federally constructed or 

25 federally financed facilities pursuant to this contract, the Tribe shall develop a water 

26 conservation plan, as required by subsection 210(b) of the Reclamation Reform Act of 1982 and 

27 43 C.F.R. 427.1 (Water Conservation Rules and Regulations).

28

29 25. INDIAN EMPLOYMENT – EQUAL EMPLOYMENT OPPORTUNITY

30

31 (a) In accordance with 42 U.S.C. § 2000e-2(i), the Tribe shall give preference in 

32 employment to Indian residents of the Southern Ute Indian Reservation. The Bureau of Indian 

33 Affairs Office of Employment Assistance shall be notified of employment opportunities 48 hours 

34 before any positions are advertised to the general public.

35 (b) Except as provided above, during the performance of this contract the Tribe agrees as 

36 follows:

37 (1) The Tribe will not discriminate against any employee or applicant for employment 

38 because of race, color, religion, sex, disability, or national origin. The Tribe will take 

39 affirmative action to ensure that applicants are employed, and that employees are treated 

40 during employment, without regard to their race, color, religion, sex, disability, or 

41 national origin. Such action shall include, but not be limited to the following: 

42 employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; 

43 layoff or termination; rates of pay or other forms of compensation; and selection for 

44 training, including apprenticeship. The Tribe agrees to post in conspicuous places, 

Comment [RKC12]: Required to remain

Comment [RKC13]: Statute must remain

Comment [RKC14]: Tribe would like to include 

preference for all Indians, not just residents of the 

SUIT Reservation.
- 20 -

1 available to employees and applicants for employment, notices to be provided by the 

2 Contracting Officer setting forth the provisions of this nondiscrimination clause.

3 (2) The Tribe will, in all solicitations or advertisements for employees placed by or on 

4 behalf of the Tribe; state that all qualified applicants will receive consideration for 

5 employment without regard to race, color, religion, sex, disability, or national origin.

6 (3) The Tribe will send to each labor union or representative of workers with which it 

7 has a collective bargaining agreement or other contract or understanding, a notice, to be 

8 provided by the Contracting Officer, advising the labor union or workers’ representative 

9 of the Tribe’s commitments under section 202 of Executive Order 11246 of September 

10 24, 1965 (EO 11246), and shall post copies of the notice in conspicuous places available 

11 to employees and applicants for employment.

12 (4) The Tribe will comply with all provisions of EO 11246, and of the rules, 

13 regulations, and relevant orders of the Secretary of Labor.

14 (5) The Tribe will furnish all information and reports required by EO 11246, and by the 

15 rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will 

16 permit access to his books, records, and accounts by the Contracting Agency and the 

17 Secretary of Labor for purposes of investigation to ascertain compliance with such rules, 

18 regulations, and orders.

19 (6) In the event of the Tribe’s noncompliance with the nondiscrimination clauses of this 

20 contract or with any of such rules, regulations, or orders, this contract may be canceled, 

21 terminated or suspended in whole or in part and the Tribe may be declared ineligible for 

22 further Government contracts in accordance with procedures authorized in EO 11246, 

23 and such other sanctions may be imposed and remedies invoked as provided in EO 11246 

24 or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.

25 (7) The Tribe will include the provisions of paragraphs (1) through (7) in every 

26 subcontract or purchase order unless exempted by the rules, regulations, or orders of the 

27 Secretary of Labor issued pursuant to section 204 of EO 11246, so that such provisions 

28 will be binding upon each subcontractor or vendor. The Tribe will take such action with 

29 respect to any subcontract or purchase order as may be directed by the Secretary of Labor 

30 as a means of enforcing such provisions, including sanctions for noncompliance: 

31 Provided, however, that in the event the Tribe becomes involved in, or is threatened with, 

32 litigation with a subcontractor or vendor as a result of such direction, the Tribe may 

33 request that the United States enter into such litigation to protect the interests of the 

34 United States.

35

36 26. COMPLIANCE WITH CIVIL RIGHTS LAWS AND REGULATIONS

37

38 (a) The Tribe shall comply to the extent applicable with Title VI of the Civil Rights Act of 

39 1964 (Pub. L. 88-352; 42 U.S.C. § 2000d), the Rehabilitation Act of 1973 (Pub. L. 93-112, 

40 Title V, as amended; 29 U.S.C. § 791, et seq.), the Age Discrimination Act of 1975 (Pub. L. 94-

41 135, Title III; 42 U.S.C. § 6101, et seq.), [Title II of the Americans with Disabilities Act of 

42 1990 (Pub. L. 101-336; 42 U.S.C. § 12131, et seq.),] [Title III of the Americans with Disabilities 

43 Act of 1990 (Pub. L. 101-336; 42 U.S.C. § 12181, et seq.),] and any other applicable civil rights 

44 laws, and with the applicable implementing regulations and any guidelines imposed by the 

45 U.S. Department of the Interior and/or Bureau of Reclamation.

46 (b) These statutes prohibit any person in the United States from being excluded from 
- 21 -

1 participation in, being denied the benefits of, or being otherwise subjected to discrimination 

2 under any program or activity receiving financial assistance from the Bureau of Reclamation on 

3 the grounds of race, color, national origin, disability, or age. By executing this contract, the 

4 Tribe agrees to immediately take any measures necessary to implement this obligation, including 

5 permitting officials of the United States to inspect premises, programs, and documents.

6 (c) The Tribe makes this agreement in consideration of and for the purpose of obtaining 

7 any and all Federal grants, loans, contracts, property discounts, or other Federal financial 

8 assistance extended after the date hereof to the Tribe by the Bureau of Reclamation, including 

9 installment payments after such date on account of arrangements for Federal financial assistance 

10 which were approved before such date. The Tribe recognizes and agrees that such Federal 

11 assistance will be extended in reliance on the representations and agreements made in this article 

12 and that the United States reserves the right to seek judicial enforcement thereof.

13 (d) Complaints of discrimination against the Tribe shall be investigated by the Contracting 

14 Officer’s Office of Civil Rights.

15

16 27. MEDIUM FOR TRANSMITTING PAYMENTS

17

18 (a) All payments from the Tribe to the Project Operator under this contract shall be by the 

19 medium requested by the Project Operator on or before the date payment is due. The required 

20 method of payment may include checks, wire transfers, or other types of payment specified by 

21 the Project Operator.

22 (b) Upon execution of the contract, the Tribe shall furnish the Contracting Officer with the 

23 Tribe’s taxpayer’s identification number (TIN). The purpose for requiring the Tribe’s TIN is for 

24 collecting and reporting any delinquent amounts arising out of the Tribe’s relationship with the 

25 United States.

26

27 28. CONTRACT DRAFTING CONSIDERATIONS

28

29 This Contract has been, negotiated and reviewed by the parties hereto, each of whom is 

30 sophisticated in the matters to which this Contract pertains. Articles 1 through 13 of this 

31 Contract have been drafted, negotiated, and reviewed by the parties, and no one party shall be 

32 considered to have drafted the stated articles.

33

34

35 29. CONSTRAINTS ON THE AVAILIBILITY OF WATER

36 (a) In its operation of the Project, the Contracting Officer will use all reasonable means to 

37 guard against a condition of shortage in the quantity of water to be made available to the Tribe 

38 pursuant to this Contract. In the event the Contracting Officer determines that a condition of 

39 shortage appears probable, the Project Operator will notify the Tribe of said determination as 

40 soon as practicable.

41 (b) If there is a condition of shortage because of errors in physical operations of the Project, 

42 drought, other physical causes beyond the control of the Contracting Officer or actions taken by 

43 the Contracting Officer to meet current and future legal obligations, then no liability shall accrue 

44 against the United States or any of its officers, agents, or employees for any damage, direct or 

45 indirect, arising therefrom.

46
- 22 -

1 IN WITNESS WHEREOF, the Parties hereto have signed their names this day and year 

2 first written above.

3

4

5 UNITED STATES OF AMERICA

6 As to legal sufficiency: DEPARTMENT OF THE INTERIOR

7

8

9 By: ____________________________________

10 Office of the Solicitor Regional Director

11 Upper Colorado Region

12 Bureau of Reclamation

13

14 Attest:

15

16

17 By: _______________________ By: ___________________________________

18 Chairman, Southern Ute Indian Tribe

19

20

21 List of Attachments: 

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44