Contract No. 02 -W' C -"/0 -80.90

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

ANIMAS-LA PLAT A PROJECT

COLORADO RIVER STORAGE PROJECT

AMENDATORY FUNDING AGREEMENT AND REP A Yt...1ENT CONTRACT BETWEEN

THE UNITED STATES AND THE SAN WAN WATER COMMISSION, NEW MEXICO

INDEX

Article

Number Article Page

Explanatory Recitals 1

1 General Definitions 3

2 Project Works 5

3 Conditions Precedent to Construction 6

4 Project Coordination Committees 7

5 Measurement and Responsibility for Distribution of Statutory Water Allocation 7

6 Allotment and Use of Statutory Water Allocation 8

7 Water Right Provisions 9

8 Method of Payment for Project Construction Costs 10

9 Alternative Dispute Resolution 13

10 Method for Establishing Blocks for Project Delivery and Repayment 14

11 Payment of Operation, Maintenance, and Replacement Costs 15

12 Use and Disposal of Water During Construction 15

13 Water Shortages 16

14 Levy of Assessments, Tolls, and Charges 16

15 Covenant Against Contingent Fees 16

16 Assignment Limited -Successors and Assigns Obligated 16
INDEX

Article

Number Article Page

17 Dissolution of Commission 17

18 Third Party Contracts 17

19 Title to Project Works 18

20 Severability 18

ST ANDARD ARTICLES

21 Charges for Delinquent Payments 18

22 General Obligation -Benefits Conditioned Upon Payment 19

23 Notices 19

24 Contingent on Appropriation or Allotment of Funds 19

25 Officials Not to Benefit 19

26 Changes in Commission's Organization 19

27 Books, Records, and Reports 19

28 Rules, Regulations, and Detenninations 20

29 Quality of Water 20

30 Water and Air Pollution Control 20

31 Water Conservation 20

32 Equal Opportunity 20

33 Compliance with Civil Rights Laws and Regulations 21

Signature Blocks 22
Contract No. 02. Wc. -"fa -8ogo

UNITED STATES

( DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

ANIMAS-LA PLATA PROJECT

COLORADO RIVER STORAGE PROJECT

AMENDATORY FUNDING AGREEMENT AND REPAYMENT CONTRACT BETWEEN

THE UNITED STATES AND THE SAN mAN WATER COMrvnSSION, NEW MEXICO

THIS AMENDATORY CONTRACT, is made this~day of /\'\orc.b ,2002,

pursuant to the Act of Congress approved June 17, 1902 (32 Stat. 388), and acts amendatory

thereof or supplementary thereto, all of which acts are commonly known and referred to as the

Federal Reclamation Laws, between the UNITED STATES OF AMERICA, hereinafter referred

to as the United States, represented by the officer executing this contract, and the SAN mAN

WATER COM:M:lSSION, hereinafter called the Commission, located in San Juan County, New

Mexico, a commission duly organized and existing pursuant to the Joint Powers Agreement,

dated March 5, 1986 ("JPA"), by the Cities of Aztec, Bloomfield, and Fannington, the San Juan

County Rural Water Users Association, and San Juan County, and the laws of San Juan County

and the State of New Mexico, acting through their representatives.

WITNESSETH, That:

WHEREAS, the following statements are made in explanation:

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

planning and investigation of the Animas-La Plata Project as a participating project of the

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

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

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

proposes to construct said Animas-La Plata Project for the storage, diversion, salvage, and

distribution of the waters of the Animas River, which Project has among its authorized purposes

the furnishing of water for municipal, industrial, domestic, and other beneficial purposes. The

water rights settlement purposes of the Project were authorized by the Colorado Ute Indian

Water Rights Settlement Act of 1988 (Public Law 100-585) as amended by the Colorado Ute
Settlement Act Amendments of2000, Public Law 106-554 (hereafter referred to as the Settlement

Act, as amended).

(b) The Settlement Act, as amended, authorizes the construction of a reservoir, pumping

( plant, inlet conduit, and appurtenant facilities with sufficient capacity to divert and store water

from the Animas River for an average annual depletion of 57,100 acre feet of water to be used for

a municipal and industrial water supply;

(c) Reclamation has completed the Animas-La Plata Project Final Supplemental

Environmental Impact Statement (FSEIS) dated July 2000 and subsequent Record of Decision

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

Commission acknowledges that as a result of this regulatory compliance, it is limited in this

contract to an annual average depletion of 10,400 acre-feet of water for this Project.

(d) As provided by Public Law 100-585, the design and construction functions of the

Bureau of Reclamation with respect to the Animas-La Plata Project shall be subject to the

provisions of the Indian Self-Detennination and Education Assistance Act (Public Law 93-638) to

the same extent as if such functions were performed by the Bureau of Indian Affairs.

(e) The Commission has demonstrated its legal and financial capability to make the

contributions and payments required by this document, by demonstrating that it is a legal entity

under state law; and that it has taxing authority either on its own or in conjunction with others.

(f) Adequate water rights for the Project have been obtained in Colorado and New

Mexico, and the United States is satisfied that any conflicts between private water rights and

Project water rights have been resolved.

(g) Contract No. 0-07-40-RI080, dated January 8, 1990, was judicially confirmed by a

district court of the State of New Mexico and by the New Mexico Supreme Court in San Juan

Water Commission v. TaxDayers, 116 N.M. 106,860 P.2d 748 (1993), and thus this amendment

does not require judicial confirmation.

(h) The Project will be used to provide dependable long-term water storage for the

Commission as described in the July 2000 FSEIS and the September 25, 2000, Record of

Decision.

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

facilities to the Colorado Ute Tribes, the provision offunds to the Colorado Ute Tribes and the

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issuance ofan amended final consent decree by the State of Colorado as contemplated in the

Settlement Act, as amended, shall constitute final settlement of the tribal claims to water rights on

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

(j) The June 30, 1986 Cost Sharing Agreement will be amended by all parties to that

agreement in order to make that agreement consistent with the Settlement Act, as amended.

(k) The San Juan Water Commission desires to amend its Contract No. 0-07-40-RI080

dated January 8, 1990 with the United States for a municipal and industrial water supply pursuant

to the terms and conditions of the Joint Powers Agreement dated March 5, 1986, and the

Settlement Act, as amended, including a right to pay its capital obligation through an up-front

payment for its proportional share of those Project Works necessary to store, deliver, and use its

water from the Project and for the right to the storage and use of such water in New Mexico.

(1) Contract No. 0-07-40-RI080, dated January 8, 1990, did not contain an expiration

date. It was the intent of both the United States and the Commission as of the time of execution

of Contract No. 0-07-40-RI080, that any rights granted by that agreement would not be limited

to a specific term but would instead continue in full force and effect pursuant to section 9 of the

Reclamation Project Act of 1939,43 U.S.C. § 485h. The absence of any specific language in this

amendment to Contract No. 0-07-40-RI080 that was originally contained in Contract No. 0-07-

40-RI080 as to the issue of term shall not be construed as having any effect on the term of this

amended contract, which will remain in full force and effect as provided in subarticle 8(1) below.

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

contained, the parties hereto agree that this amendatory contract hereby amends, supercedes, and

modifies Contract No. 0-07-40-RI080 dated January 8, 1990 to read as follows:

GENERAL DEFINITIONS

1. Where used in this contract:

(a) "United States" or "Contracting Officer" or either of them means the Secretary

of the United States Department of the Interior or his/her duly authorized representative.

(b) "Commission" means the San Juan Water Commission, San Juan County, New

Mexico, created by the Joint Powers Agreement, San Juan Water Commission, dated March 5,

1986, and currently comprised of the Cities of Aztec, Bloomfield, and Farmington, the San Juan

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County Rural Water Users Association, and San Juan County.

(c) "Project" means the Animas-La Plata Project, a participating project of the

Colorado River Storage Project, authorized by Title V of the Colorado River Basin Project Act,

approved September 30, 1968, as modified by the Settlement Act, as amended.

(d) "Project Operator" means the entity operating the Project Works.

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

as amended, to be constructed under the Project, including a reservoir, a pumping plant, a

reservoir inlet conduit, and appurtenant facilities with sufficient capacity to divert and store water

from the Animas River for an average annual depletion of57,100 acre-feet of water to be used for

a municipal and industrial water supply, together with lands and rights-of-way for such works, as

described in Article 2 herein.

(f) "Statutory Water Allocation" means the municipal and industrial (M&I) water

allocation delivered to the Commission through the use of the project components, pursuant to

Sec. 6(a)(I)(A)(ii)(IV) of the Settlement Act, as amended.

(g) "Project Water" means all water provided through Ridges Basin Reservoir.

(h) "Cost Sharing Agreement" refers to the" Agreement in Principle Concerning the

Colorado Ute Indian Water Rights Settlement and Binding Agreement for Animas-La Plata

Project Cost Sharing" dated June 30, 1986, between the United States, the State of Colorado, the

New Mexico Interstate Stream Commission, certain political subdivisions of the States of

Colorado and New Mexico, the Ute Mountain Ute Tribe, and the Southern Ute Indian Tribe, as

amended.

(i) "Water Rights Settlement Agreement" refers to the "Colorado Ute Indian Water

Rights Final Settlement Agreement" dated December 10, 1986 among the United States, the State

of Colorado, the Ute Mountain Ute Tribe, the Southern Ute Indian Tribe, and the additional

governmental and private entities in Colorado signatory thereto, as implemented by,the Settlement

Act, as amended.

(j) "Consultation" means the United States shall notify and confer with the

Commission regarding significant decisions pertaining to this contract. In the event that

consensus cannot be reached and the United States makes a decision, appeals are available to the

extent allowed under applicable laws.

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(k) "San Juan River System" means the San Juan River and its tributaries.

(1) "Operation and Maintenance Facilities" means those facilities necessary to

support operations and maintenance work; for example, operation and maintenance headquarters,

office space, shop for repair of equipment, storage place for supplies, and equipment yard.

(m) "Repayment Obligation" means final reimbursable construction costs allocated

to the Commission's M&I uses associated with the construction of Project Works exceeding

$6,916,722 plus additional payments to escrow, if any.

PROJECT WORKS

2. Subject to the tenns and conditions of this and other applicable contracts related to

this Project, the United States will construct the following Project Works and appurtenant

facilities, acquire lands, and provide certain moveable property and equipment to the Project

Operator needed for Project operation and maintenance as, in the opinion of the United States in

consultation with the Project Operations Committee, are necessary for Project purposes, without

being limited by enumeration and within the limit offunds available by the Congress and the

contracting parties.

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

(1) Ridges Basin Dam and Reservoir and appurtenant facilities, the main

storage facility for the Project, will be located on Basin Creek in Ridges Basin approximately 3

miles southwest of Durango, Colorado. The reservoir will have a capacity of approximately

120,000 acre-feet.

(2) Durango Pumping Plant and appurtenant facilities will be located

adjacent to the Animas River and will pump water from the Animas River for storage in Ridges

Basin Reservoir.

(3) Ridges Basin Inlet Conduit and appurtenant facilities will extend from

the Durango Pumping Plant to Ridges Basin Reservoir.

(4) Operation and Maintenance Facilities will be constructed as determined

necessary by the United States, after consultation with the Project Construction Coordinating

Committee, for the required operation and maintenance of Project Works.

(b) The United States, after consultation with the Commission, shall have the right

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at any time to increase the capacity of the Project Works or any unit or feature thereof for other

than currently authorized Project purposes without additional capital or operation and

maintenance cost to the Commission; Provided, that the Commission's use of the Statutory Water

Allocation shall not be impaired thereby. The right of use of such increased capacity is reserved

c to the United States.

(c) Any additions, changes to, or operation of Project Works or changes in use of

the water allocations pursuant to Sec. 6(a)(I)(A)(ii) of the Settlement Act, as amended, from that

stated in the Animas-La Plata Project FSEIS dated July 2000 and subsequent Record of Decision

dated September 25,2000, will be subject to further compliance with applicable environmental

statutes, which shall include an analysis of potential impacts on other Project participants, and

must be approved by the Secretary of the Interior.

(d) Construction and operation of the Project will be in accordance with the

Environmental Commitments in Chapters 4 and 5 of the FSEIS, which are attached as Exhibit A

to this contract.

CONDITIONS PRECEDENT TO CONSTRUCTION

3. The United States shall be under no obligation to commence, or having commenced,

to continue construction of Project Works until:

(a) Any non-Tribal entity that desires to pay its capital obligations for its municipal

and industrial water prior to construction pursuant to the Settlement Act, as amended, has had an

opportunity to enter into such an agreement with the United States prior to the initiation of

construction.

(b) The United States, before initiation of construction of any Project Works, has

notified the Commission in writing of any other agreements or conditions precedent that must be

met prior to the construction of those Project Works; Provided, however, that no such conditions

precedent shall be imposed unless such conditions precedent are mandated or required by Federal

laws, State law, or policy promulgated pursuant thereto.

PROJECT COORDINATION COM:MITTEES

4. Coordination of Project construction, operations, and maintenance activities will be

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accomplished through the establishment of two committees: one to focus on those activities

associated with the construction of the Project Works, the other to oversee the operations and

maintenance activities.

(a) The Project Construction Coordination Committee will be made up of

representatives of those entities that have been identified by the Settlement Act, as amended, to

receive a water allocation and the Bureau of Reclamation. This committee will provide

coordination and consultation on the construction activities among all the Project beneficiaries,

seeking common understanding and consensus on decisions associated with such items as final

~ plans for Project Works, Project construction completion schedule, and Project construction

costs. Upon Project completion, this committee will be dissolved.

(b) The Project Operations Committee will initially consist of representatives from

those entities that have been identified by the Settlement Act, as amended, to receive a water

allocation and the Bureau of Reclamation. Initially, this committee will determine the appropriate

entity to contract with Reclamation for the operation and maintenance of the Project Works and

the development of a common understanding among the Project beneficiaries of the appropriate

level of annual operation, maintenance, and replacement (OM&R) activities to be performed on

the Project Works to assure the Project's long term operational integrity and public safety.

Ultimately, this committee will oversee the ongoing operations, maintenance, and replacement

activities of the Project Works, providing consultation and coordination among the committee

members on such items as annual OM&R funding, maintenance schedules, and public safety

Issues.

MEASUREMENT AND RESPONSIBILITY FOR

DISTRIBUTION OF STATUTORY WATER-ALLOCATION

5. (a) The water released or bypassed to meet the Statutory Water Allocation for the

Commission pursuant to this contract shall be measured at the outlet works of Ridges Basin Dam

and/or in the Animas River at the Durango Pumping Plant with measuring facilities installed by

the United States as a part of the Project. Water delivered to the Commission's Animas and San

Juan River users pursuant to this contract shall be measured by the users at their points of

diversion on the Animas and San Juan Rivers. The Statutory Water Allocation diverted from the

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San Juan River will be either replaced with Project Water released from Ridges Basin Reservoir

or natural river flows bypassed at the Durango Pumping Plant. Sufficient water will be delivered

from Project storage or bypassed to ensure that the Commission annually receives its Statutory

Water Allocation to be available for diversion at all approved points of diversion on the San Juan

River System.

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

at the Durango Pumping Plant, the United States will not be responsible for the control, carriage,

handling, use, disposal, or distribution of the Statutory Water Allocation furnished the

Commission, except when caused by direct action of the United States. The Commission will

hold the United States harn1less on account of damage or claim of damage of any nature

whatsoever arising out of or connected with the control, carriage, handling, treatment, use,

disposal, or distribution of the Statutory Water Allocation by the Commission below the Project

points of measurement.

(c) All facilities required for taking the Statutory Water Allocation furnished under

this contract from the points of delivery and putting it to use by the Commission and its members

will be acquired, constructed or installed, and operated and maintained by the Commission or its

members at their sole expense.

ALLOTMENT AND USE OF STATUTORY WATER ALLOCATION

6. (a) The Commission's Statutory Water Allocation consists ofa municipal and

industrial water allocation with an average annual depletion not to exceed 10,400 acre-feet,

except as otherwise provided under Subarticle 8(h) herein. This allocation may be met by a

combination of direct diversion of the natural flows from the San Juan River System and water

released from Project storage.

(b) The Commission's Statutory Water Allocation shall be diverted and put to

beneficial use under Permit Nos. 4487 through 4501 issued by the New Mexico State Engineer.

(c) Except as provided in Subarticle 8(h) herein, the Commission shall have the

right to 3,025 acre-feet of storage in Ridges Basin Reservoir to supplement the amount of direct

flow diversion as necessary to fulfill the Commission's Statutory Water Allocation of 10,400 acrefeet average annual depletion. Any of the 3,025 acre-feet of unused storage shall be retained in

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Ridges Basin Reservoir and shall be available for the Commission's use in succeeding years. The

Commission shall have the opportunity to purchase excess Project water from other Project

participants.

(d) Any use of the Statutory Water Allocation other than that contemplated in the

July 2000 FSEIS and subsequent Record of Decision dated September 25, 2000 for the

Animas-La Plata Project shall be subject to compliance with applicable environmental statutes.

WATER RIGHT PROVISIONS

7. (a) As provided by Section 15 of the Settlement Act, as amended, upon the request

of the State Engineer of the State of New Mexico, the Secretary shall, as soon as practicable, in a

manner consistent with applicable law, assign, without consideration, to the New Mexico AnimasLa Plata Project beneficiaries or to the New Mexico Interstate Stream Commission in accordance

with the request of the State Engineer, the Department of the Interior's interest in New Mexico

State Engineer Permit Number 2883, dated May 1, 1956, in order to fulfill the New Mexico nonNavajo purposes of the Project, so long as the permit assignment does not affect the application

of the Endangered Species Act of 1973 (16 U.S. C. 1531 et seq.) to the use of the water involved.

The parties agree that ''as soon as practicable" is intended to refer to the time necessary for the

Secretary to process the request and that the assignment will not depend on other factors or

progress of the Project.

(b) Upon assignment as described in (a) above, the Commission, through its

member entities, shall diligently work to put its water to beneficial use and file proofs of

beneficial use under New Mexico State law as may be necessary to develop the water in the

permit assigned. The Commission will protect its Project water rights and in case a dispute arises

as to the character, extent, priority or validity of the rights of the Commission to use or permit use

of its Statutory Water Allocation, the Commission shall promptly bring and diligently prosecute

and/or defend judicial proceedings for the determination of such dispute and shall take all other

measures necessary toward the defense and protection of the Commission's Project water rights.

(c) Ifrequested by the United States and the Commission agrees, the Commission

will assign all or part of such water rights secured under New Mexico Permit No. 2883 to the

United States if such assignment is necessary to protect the Statutory Water Allocation.

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METHOD OF PAYMENT FOR PROJECT CONSTRUCTION COSTS

8. (a) As provided by Section 6(a)(3)(A) of the Settlement Act, as amended, the

Commission's water capital obligation for the facilities described therein may be satisfied upon the

payment in full of the Commission's share of the non-Tribal water capital obligations prior to the

initiation of construction. Reclamation has developed a May 2001 Interim Cost Allocation based

on October 2001 price levels of the estimated Project construction costs. The May 2001 Interim

Cost Allocation allocates the reimbursable costs of the Project among the Project beneficiaries

based on the pro rata share of Project storage each respective entity receives in Ridges Basin

Reservoir. The Commission's water capital obligation allocable to its Project storage in the May

2001 Interim Cost Allocation is $6,916,722. As provided in Article 8(b) herein, the Commission

agrees to pay this amount of$6,916,722 to an acceptable escrow account, prior to November 9,

2001, to satisfy the up-&ont payment in full of its water capital obligation requirement of Section

6(a)(3)(A) of the Settlement Act, as amended, subject to acceptance by the Commission that the

amount is reasonable.

(b) The escrow account funds will be available to fund the estimated annual cost of

constructing the Commission's share of the Project Works as defined in Article 2(a) herein. As

provided in the attached Escrow Agreement, Exhibit B, payments will be made quarterly &om the

escrow account concurrent with the construction of Ridges Basin Dam, Durango Pumping Plant,

Ridges Basin Inlet Conduit and appurtenant facilities. The quarterly payments will be consistent

with the instructions provided in the Escrow Agreement. The payment amounts will be based on

the annual construction schedule prepared by the United States and provided to the Commission.

Any interest &om the escrow account shall be returned to the Commission. The administration of

the escrow account is further described in the Escrow Agreement. If the escrow account is closed

pursuant to paragraph 12 of Schedule A of that Agreement and there are funds &om the initial

payment of $6,916,722 remaining in the escrow account, the Commission will have the option to:

(1) pay the remaining amount in the account; or (2) seek an extension of the Escrow Agreement.

(c) The United States, in consultation with the Commission, may determine at any

time that the construction costs allocated to the Project storage to be made available under this

contract will exceed $6,916,722 and shall give the Commission written notice of an additional

water capital obligation. The Commission will be allowed to make additional contribution(s) to

10
the escrow account during the construction period to cover any additional water capital

obligations.

(d) At the end of the construction period, a final cost allocation will be performed

by the Secretary pursuant to Section 6(a)(3)(B) of the Settlement Act, as amended. The

Commission will pay only its allocable share of joint costs of the Project Works. Any additional

repayment shall only be warranted for reasonable and unforeseen costs associated with Project

construction as detennined by the Secretary in consultation with the Commission.

(e) The details of said costs and a draft final cost allocation will be furnished to the

Commission by the United States, and the Commission reserves the right to review the input to

the cost allocation, including the assignment of costs to the municipal and industrial water

purpose and the allocation thereof to the Commission's Repayment Obligation. Following

consultation and review by the Commission, the final allocation of reimbursable costs will be

prepared by the United States. These costs will be subject to alternative dispute resolution as

described in Article 9 if there remains a dispute in the allocation of costs.

(t) The United States shall give the Commission written notice of the Commission's

total water capital obligations as established by the final cost allocation. In the event the final cost

allocation establishes that the total water capital obligation of the Commission is more than the

up-front payment amount of$6,916,722 plus additional deposits, ifany, to the escrow account,

then the Commission will have the option to pay the additional amount, with appropriate Interest

During Construction charges, 180 days from the date of written notice as an alternative to

repaying this additional debt with amortization interest over a repayment period as described in

Subarticle 8(g) below. In the event the final cost allocation establishes that the total water capital

obligation of the Commission is less than the up-front payment amount of $6,916,722 plus

additional deposits, if any, to the escrow account, then the United States will refund the difference

to the Commission within 180 days of such detennination.

(g) After the 180-day final payment option established in Subarticle 8(t) has

expired, the construction costs that are in addition to the up-front payment amount of$6,916,722

plus additional deposits, if any, to the escrow account, and the associated Interest During

Construction, shall become a Repayment Obligation of the Commission. The United States will

assign this Repayment Obligation to a pro rata share of the Commission's Project interest

11
consistent with and subject to the procedures of Section 6(a)(3)(B) of the Settlement Act, as

amended, and will issue a repayment block notice, as described in Article 10 herein, to the

Commission prior to its receiving any of the pro rata Project interest assigned to the Repayment

Obligation. The Repayment Obligation will be paid in annual installments due on or before

January 10 of each year and in accordance with an annuity due payment schedule or schedules

issued by the United States. Pursuant to Section 9(c)(I) of the Reclamation Project Act of 1939,

the Repayment Obligation above shall be repaid within a 40-year period, and shall accrue

amortization interest on the unpaid portion at the rate to be established pursuant to the provision

of Section 5(f) of the Act of April 11, 1956 (70 Stat. 105) as amended by the Act of June 27,

1960 (74 Stat. 255).

(h) Upon final allocation, if the Commission elects not to pay the Repayment

Obligation described in Subarticle 8(g) to the United States, the Commission shall be subject to

the procedures of relinquishment as specified by Section 6(a)(3)(B) of the Settlement Act, as

amended.

(i) It is agreed that during construction every attempt will be made to keep noncontract costs at or below 30 percent of the final contract costs. Once construction begins, the

United States will annually report to the Commission the dollar amount of the non-contract costs

and all other construction costs.

G) The United States will consult annually with the Commission concerning the

allocation of construction costs and any interest during construction to be payable by the

Commission under this contract. The use-or-facilities procedure is the methodology used to

allocate costs for the Project, and it will not be changed for the administration of this contract.

(k) All payments required under this contract are due on the specified due date and

will be made by electronic fund transfers.

(1) Pursuant to section 9(c)(I) of the Reclamation Project Act of 1939,43 U.S.C. §

485h, following payment of the water capital obligation described herein, all other contract terms

will remain in full force and effect until mutually agreed upon by the Commission and the United

States.

(m) Upon payment of the Commission's total water capital obligation as defined in

the final cost allocation, the ComInission's Project interest shall not be subject to relinquishment

12
to the Secretary for any reason, subject to applicable law.

AL TERNATIVE DISPUTE RESOLUTION

9. (a) Ifa dispute should arise between the Commission and the United States out of

the final cost allocation prepared by the United States, each party shall communicate in good faith

and seek to resolve the dispute expeditiously and amicably. Prior to seeking judicial review of

the final cost allocation, the Commission may pursue Alternative Dispute Resolution ("ADR") of

any issue arising out of the final cost allocation which affects the Commission and remains

unresolved after direct communication between the parties.

(b) (1) Either party may demand ADR in writing, which demand shall include

the name ofa qualified individual suggested by the party demanding ADR, together with a

statement of the matter of controversy.

(2) Within twenty (20) days after such demand the other party shall either

agree to the named individual, or suggest another arbitrator. If the parties cannot agree on such

naming within 20 additional days, such individual shall be named by the American Arbitration

Association.

(3) The ADR costs and expenses of each party shall be borne by that party

and all the joint fees and other expenses pursuant to this Article shall be borne equally by both

parties.

(4) The hearing shall be held at such time and place as designated by the

judge on at least twenty (20) days written notice to the parties.

(5) All decisions determined by this ADR process shall be sent to all parties

to the proceedings.

(6) As to any procedures regarding the conduct of the ADR that are not

specified either in this contract or in any other written agreement signed in advance of the hearing,

the parties shall follow the Commercial Arbitration Rules of the American Arbitration

Association.

(c) Nothing in this Article shall be construed to restrain or prevent the United

States from performing any act required or authorized under federal law, or the Commission from

otherwise challenging any such act.

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(d) Nothing contained in this Article shall be deemed to give the arbitrator any

authority, power, or right to alter, change, amend, add to, or subtract from any of the provisions

of this contract. Nothing in this article shall be construed as a delegation of authority by the

United States.

( e) Nothing in this Article shall be construed as a waiver of sovereign immunity by

any party or a consent to suit by any party in any forum.

10. (a) When the Project Works defined in Article 2(a) are completed, tested, and the

the Project becomes available for use by the Commission, the United States shall, after

consultation, give the Commission written notice, referred to herein as the "block notice," at least

12 months prior to the date when the Project becomes available for use by the Commission. The

block notice shall contain:

(1) A description of the member entities included in the block.

(2) The quantity of Project Water available to the Commission for the

block.

(3) That portion of Statutory Water Allocation available to the Commission

as a firm full water supply.

(b) Ifa Repayment Obligation has been assigned pro rata to a quantity of the

Commission's Project interest pursuant to Article 8(g) herein, then the block notice establishing

the availability of that water supply will also contain:

(1) A designation of that part of the Commission's municipal and industrial

cost allocation apportioned to the block.

(2) A payment schedule for repayment of those costs, including a

breakdown of the amount and due date of each payment to be paid by the Commission.

(c) Each block notice and amendment thereto shall become a part of this contract.

PAYMENT OF OPERATION. MAINTENANCE. AND REPLACEMENT COSTS

11. (a) The operation, maintenance, and replacement (OM& R) costs allocated to the

Commission will be comprised of: (1) the Commission's pro-rata share ofOM&R costs actually

14
incurred by the Project Operator in connection with Project facilities and/or operations that

benefit all users of the Project, based on the amount of water storage actually purchased and paid

for by the Commission in accordance with Article 8 above; and (2) the actual cost of replacing

Project Water released by request of the Commission.

(b) The Commission agrees to pay the Project Operator, in advance, its

proportionate share of the OM&R costs allocated to said Project Works. OM&R costs shall be

allocated by the Project Operations Committee pursuant to Article 4. An OM&R charge notice

shall be furnished annually by the Project Operator, which amount will be paid by the Commission

in advance quarterly. If the funds advanced by the Commission under this article are less than the

actual cost of OM&R properly chargeable to the Commission for the period advanced, a

supplemental notice will be issued and the Commission shall advance such additional funds by the

date specified in the supplemental notice. If the actual costs are less than the funds advanced, an

appropriate adjustment will be made in the notice issued the next succeeding period.

USE AND DISPOSAL OF WATER DURING CONSTRUCTION

12. (a) Prior to the completion of the Project Works as defined in Article 2(a), the

Commission may continue to use that portion of the Statutory Water Allocation that is met by

direct diversion of flows from the San Juan River System, pursuant to Permit Nos. 4487 through

4501 issued by the New Mexico State Engineer. The United States has no objection to such use

of this water until such water is necessary for Project purposes.

(b) Upon completion and initial testing of the Project Works as defined in Article

2(a), and at any other subsequent time, Project Water which is not made available to the

Commission as provided in Articles 6 and 10, may be disposed of by the United States. The

charges shall only be sufficient to cover the operation, maintenance, and replacement costs

appropriate for such water delivery. The Commission shall, however, have the first opportunity

to utilize this Project Water paying only the applicable OM&R costs.

WATER SHORTAGES

13. There may occur at times during any year a shortage in the quantity of water

available for furnishing to the Commission through and by means of the Project, but in no event

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shall any liability accrue against the United States or any of its officers, agents, or employees for

any damage, direct or indirect, arising from a shortage, on account of errors in operation,

drought, or any other causes. In any year in which there may occur a shortage from any cause,

the United States reserves the right to apportion the available water allocation pursuant to the

Settlement Act, as amended, and applicable laws, including the Arumas-La Plata Project Compact,

among the Commission, Tribes, and others entitled to receive water from the Project in

accordance with conclusive determinations of the Contracting Officer.

LEVY OF ASSESSMENTS. TOLLS AND CHARGES

14. The Commission shall, to the extent allowed by law, cause to be levied and collected

all necessary assessments, tolls, and other charges and will use all of the authority and resources

of the Commission to meet the obligations of the Commission specified herein, to make in full all

payments to be made pursuant to this contract on or before the date such payments become due,

and to meet its other obligations under this contract.

COVENANT AGAINST CONTINGENT FEES

15. The Commission warrants that it has not employed or retained any person or selling

agency to solicit or secure this contract upon an agreement or understanding for a commission,

percentage, brokerage or contingent fee, excepting bona fide employees or bona fide established

commercial or selling agencies maintained by the Commission for the purpose of securing

business. For breach or violation of this warranty, the United States shall have the right to annul

this contract without liability, or at its discretion, to add to the repayment obligation or

consideration the full amount of such commission, percentage, brokerage, or contingent fee.

ASSIGNMENT LIMITED -SUCCESSORS AND ASSIGNS OBLIGATED

16. 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 shall be valid until approved in

writing by the United States. Approval pursuant to this section shall be for the sole purposes of

ensuring that any assignment or transfer complies with the terms of this contract, that the assignee

is capable of fulfilling the Commission's duties and obligations under this contract, and that the

16

I
end use of the Statutory Water Allocation falls within the uses contemplated in the environmental

compliances for the Project.

DISSOLUTION OF COMMISSION

17. In the event of the dissolution of the Commission, pursuant to Article VIII.F. of the

Joint Powers Agreement, this contract shall continue in the names of the cities and of San Juan

County as trustee for the rural water users association with the continued support of the mill levy

by the County. The cities and the County would become successors to the Commission and

assume all the Commission's duties, as appropriate, in this contract. Dissolution shall not be

deemed an assignment, requiring the consent of the United States pursuant to Article 16 of this

Agreement.

TffiRD PARTY CONTRACTS

18. (a) Any contract entered into between the Commission and any third-party for the

use of its Statutory Water Allocation under this contract shall be subject to written approval of

the United States in order to determine solely the effects on the operation of the Project facilities

in light of existing environmental statutes compliance. The subcontract requires the third party to

be bound to the provisions of this contract including, but not be limited to, terms of measurement,

operations, environmental compliance, and the impact of defaults on Project Works. Approval

shall not be unreasonably withheld. The United States shall have 60 days after receipt of the

proposed third-party contract to inform the Commission of its approval or denial of the contract.

If additional environmental compliance is required, the Commission and the United States will

develop a schedule for approval.

(b) The Commission shall not receive any valuable consideration for such

subcontract in excess of the cost of the water to the Commission (including administrative costs).

The Commission shall not extract any brokerage, profits, commission or fee, from any person on

the water to be delivered under this subcontract. In connection with any such subcontract, the

Chairman of the Commission shall certify to the United States that the conveyance with respect to

water delivery was without consideration except as provided above, and that no brokerage,

profits, commission, fee, or other charge of any kind was charged to the subcontractor or any

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person acting on behalf of the subcontractor. Any exceptions to this article will be covered under

a separate agreement.

TITLE TO PROJECT WORKS

19. Title to the Project Works shall be held by the United States, unless specifically

provided otherwise by Congress, notwithstanding transfer of the care, operation, and maintenance

of any said works to the Project Operator.

SEVERABILITY

20. (a) Ifany provisions of Articles 21 through 33 are in conflict with Articles 1

through 20, then the provisions of Articles 1 through 20 shall take precedence.

(b) If any provisions of the contract shall, for any reason, be determined to be illegal

or unenforceable, the parties, nevertheless, intend that the remainder of the contract shall remain

in full force and effect. Furthermore, any adjustments or variations to this contract necessitated

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

contract.

CHARGES FOR DELINOUENT PAYMENTS

21. (a) The Commission shall be subject to interest, administrative and penalty charges

on delinquent installments or payments. When a payment is not received by the due date, the

ComInission shall pay an interest charge for each day the payment is delinquent beyond the due

date. When a payment becomes 60 days delinquent, the ComInission shall pay an administrative

charge to cover additional costs of billing and processing the delinquent payment. When a

payment is delinquent 90 days or more, the ComInission shall pay an additional penalty charge of

6 percent per year for each day the payment is delinquent beyond the due date. Further, the

ComInission shall pay any fees incurred for debt collection services associated with a delinquent

payment.

(b) The interest charge rate shall be the greater of the rate prescribed quarterly in

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

the interest rate of 0.5 percent per month prescribed by section 6 of the Reclamation Project Act

of 1939 (Public Law 76-260). The interest charge rate shall be determined as of the due date and

reInain fixed for the duration of the delinquent period.

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

received shall be applied, first to the penalty, second to the administrative charges, third to the

accrued interest, and finally to the overdue payment.

GENERAL OBLIGATION--BENEFITS 18 CONDITIONED ~ ~-- UPON ---~ PAYMENT
22. (a) The obligation of the Commission to pay the United States as provided in this

contract is a general obligation of the Commission notwithstanding the manner in which the

obligation may be distributed among the Commission's water users and notwithstanding the

default of individual water users in their obligations to the Commission.

(b) The payment of charges becoming due hereunder is a condition precedent to

receiving benefits under this contract. The United States shall not make water available to the

Commission through project facilities during any period in which the Commission may be in

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

Operator or in arrears for more than 12 months in the payment of any construction charges due

the United States. The Commission shall not furnish water made available pursuant to this

contract for parties which are in arrears in the advance payment of operation and maintenance

charges or in arrears more than 12 months in the payment of construction charges as levied or

established by the Commission.

NOTICES

23. Any notice, demand, or request authorized or required by this contract shall be

deemed to have been given, on behalf of the Commission, when mailed, postage prepaid, or

delivered to the Regional Director, Upper Colorado Region, Bureau ofReclarnation, 125 South

State Street, Room 6107, Salt Lake City, Utah 84138-1102, and on behalf of the United States,

when mailed, postage prepaid, or delivered to the San Juan Water Commission, 800 Municipal

Drive, Farmington, New Mexico 87401. 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.

CONTINGENT ON APPROPRIA nON OR ALLOTMENT OF FUNDS

24. The expenditure or advance of any money or the performance of any obligation of

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

Absence of appropriation or allotment of funds shall not relieve the Commission from any

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

appropriated or allotted.

OFFICIALS NOT TO BENEFIT

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

Commission shall benefit from this contract other than as a water user in the same manner as

other water users.

26. While this CHANGES contract is IN in effect, COM!vIISSION'S no -~~-~~- change may ORGANIZATION --~ be made in the Commission's

organization, by dissolution, consolidation, merger or otherwise, except upon the Contracting

Officer's written consent, unless all obligations of the Commission under this contract have been

satisfied, or provision has been made for the satisfaction of all such obligations.

BOOKS. RECORDS AND REPORTS

27. The Commission shall establish and maintain accounts and other books and records

pertaining to administration of the terms and conditions of this contract, including: the

Commission's financial transactions, water supply data, water-use data; and other matters that the

Contracting Officer may reasonably require. Reports thereon shall be furnished to the

Contracting Officer in such form and on such date or dates as the Contracting Officer may

19
reasonably require. Subject to applicable Federal and State laws 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. REGULATIONS. AND DETERMINATIONS

28. (a) The parties agree that the delivery of water or the use of Federal facilities

pursuant to this contract is subject to Reclamation law, as amended and supplemented, and the

rules and regulations promulgated by the Secretary of the Interior under Reclamation law.

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

to administer this contract that are consistent with the expressed and implied provisions of this

contract, the laws of the United States and the State of New Mexico, and the rules and

regulations promulgated by the Secretary of the Interior. Such determinations shall be made in

consultation with the Commission.

QUALITY OF WATER

29. The operation and maintenance of project facilities shall be performed in such a

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

30. The Commission, 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 New Mexico, and shall

obtain all required permits or licenses from the appropriate Federal, State, or local authorities.

WATER CONSERVATION

31. Prior to the delivery of water provided from or conveyed through Federally

constructed or Federally financed facilities pursuant to this contract, the Commission shall

develop an effective water conservation program acceptable to the Contracting Officer. The

water conservation program shall contain definite water conservation objectives, appropriate

economically feasible water conservation measures, and time schedules for meeting those

objectives. At subsequent 5-year intervals, the Commission shall submit a report on the results of

the program to the Contracting Officer for review. Based upon the conclusions of the review, the

Contracting Officer and the Commission shall consult and agree to continue or to revise the

existing water conservation program.

EQUAL OPPORTUNITY

32. During the performance of this contract, the Commission agrees as follows:

(a) The Commission will not discriminate against any employee or applicant for

employment because of race, color, religion, sex, or national origin. The Commission 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 payor other fonDS of

compensation; and selection for training, including apprenticeship. The Commission 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.

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(b) The Commission will, in all solicitations or advertisements for employees placed

by or on behalf of the Commission, state that all qualified applicants will receive consideration for

employment without discrimination because of race, color, religion, sex, or national origin.

(c) The Commission will send to each labor union or representative of workers with

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

provided by the Contracting Officer, advising the said labor union or workers' representative of

the Commission'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 Commission 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 Commission will furnish all information and reports required by said

amended Executive Order and by the rules, regulations, and orders of the Secretary of Labor, or

pursuant thereto, and will permit access to its books, records, and accounts by the Contracting

Officer and the Secretary of Labor for purposes of investigation to ascertain compliance with such

rules, regulations, and orders.

(t) In the event of the Commission's noncompliance with the nondiscrimination

clauses of this contract or with any of the such rules, regulations, or orders, this contract may be

canceled, terminated, or suspended, in whole or in part, and the Commission 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 Commiss-ion will include the provisions of paragraphs (a) through (g) in

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

Secretary of Labor issued pursuant to Section 204 of said amended Executive Order, so that such

provisions will be binding upon each subcontractor or vendor. The Commission 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 Commission becomes involved in, or is threatened with, litigation

with a subcontractor or vendor as a result of such direction, the Commission may request the

United States to enter into such litigation to protect the interests of the United States.

COMPLIANCE WITH CIVIL RIGHTS LAWS AND REGULATIONS

33. (a) The Commission shall comply with Title VI of the Civil Rights Act of 1964 (42

U .S.C. 2000d), Section 504 of the Rehabilitation Act of 1975 (Public Law 93-112, as amended),

the Age Discrimination Act of 1975 (42 U.S.C. 6101, et seq.) and any other applicable civil rights

laws, as well as with their respective implementing regulations and guidelines imposed by the U.

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

(b) These statutes require that no person in the United States shall, on the grounds

of race, color, national origin, handicap, or age, be excluded from participation in, be denied the

benefits of, or be otherwise subjected to discrimination under any program or activity receiving

financial assistance from the Bureau of Reclamation. By executing this contract, the Commission

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

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

(c) The Commission makes this agreement in consideration of and for the purpose

of obtaining any and all Federal grants, loans, contracts, property discounts or other Federal

financial assistance extended after the date hereof to the Commission 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 Commission recognizes

and agrees that such Federal assistance will be extended in reliance on the representations and

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agreements made in this article, and that the United States reserves the right to seek judicial

enforcement thereof.

IN WITNESS WHEREOF, the parties hereto have

caused this contracto be duly executed as of the day and year first above written.

THE UNITED STATES OF AMERICA

By Q.~M~~. ~~~ .£"'f_I_~._-

~egio~l ~ire~to~. , 'v~~ ~

Upper Colorado Region

Bureau of Reclamation

S W MEXICO

Attest:

CIJ] It)£. ¥I;/) 1i, t 1J? /" B

Attest,:

_f£~~i:7lt-~iLJJ/ B y L VnIie ~~~ -L

Lynne er

Member, City of Bloomfield, New Mexico

Attest: \

1~~ /' 71/ '1ot ~ By (\ P- -

Cy ~oper \~

Member, City of Farmington, New Mexico

Attest:: 71 By

~MarkD can~J N":':exicoh 

5.~~~.::lfL_"~1-/ Member, an Juan County, New Mexico

~~~~~l1"_ltv By

Jim ap

Me r, San Juan Rural Water Users Association

List of Attachments: Exhibit A -Environmental Commitments

Exhibit B -Escrow Agreement with Instructions

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