HomeMy WebLinkAbout08/01/2022 06.H. Resolution authorizing a contract with the United States of America Bureau of Reclamation for repayment of Safety of Dams costs 1
s F` ,1„11„4\
4..
igikiiiiii),,-
\L):.... )
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 6.H.
For Meeting of:August 1, 2022
ITEM TITLE: Resolution authorizing a contract with the United States of America
Bureau of Reclamation for repayment of Safety of Dams costs
SUBMITTED BY: Scott Schafer, Director of Public Works
David Brown,Assistant Director of Public Works, 509.575.6204
SUMMARY EXPLANATION:
The City of Yakima (City) has a contract with the Bureau of Reclamation (BOR)for 6,011.5 acre-
feet of water as part of our domestic and irrigation water supply(one of the several water rights
the City owns). Although the City does not physically receive water from the Kachess Reservoir,
BOR operates five reservoirs supplying the Yakima Valley as one large reservoir. As a result, the
City is obligated to pay its share of repairs of the Kachess Dam. Over the past several years,
BOR has corresponded with the City regarding construction work at Kachess Dam required to
correct the safety deficiencies identified by BOR's Safety of Dams (SOD) Program as
authorized by the Reclamation Safety of Dams Act of 1978, as amended.
The costs of construction of the Kachess Dam SOD modification are subject to Federal funding
procedures and repayment requirements. Pursuant to the SOD Act and Reclamation policy, the
reimbursable project purposes are required to repay 15 percent of the total SOD modification
cost, with the remaining 85 percent being nonreimbursable and borne by the United States
Treasury. Each Yakima Project Storage Division contractor is then responsible for repaying its
respective share of the 15 percent reimbursable portion of the total SOD modification cost. The
total cost of the SOD modification work at Kachess Dam is currently estimated at$37 million, with
the 15 percent reimbursable portion estimated to be $5.55 million.
The reimbursable project purposes are Irrigation and Municipal and Industrial (M&I)water supply
and, based on the proportional net present benefits evaluated in the Kachess Dam Safety of
Dams Economic Benefits Analysis Report, the $5.55 million reimbursable construction costs are
allocated 93 percent to Irrigation water supply($5,161,500 = $5,550,000 x 0.93) and 7 percent to
M&I water supply($388,500 = $5,550,000 x 0.07).
Based on the amount of contracted Yakima Project Storage Division water provided, the City's
share is 44.18758 percent of the $388,500 allocated to M&I water supply. Thus, the City's
estimated repayment obligation is approximately$171,669 (44.18758% of$388,500), subject to
actual final SOD modification costs.
2
Attached is a repayment contract for the repayment of the City's proportionate share of the costs
for the Safety of Dams modification work at Kachess Dam. The City's estimated repayment
obligation is $171,669 over a five-year period; 60% allocated to domestic water and 40%
allocated to irrigation supply. The amount to be paid is $56,651 in 2023, $92,701 in 2024,
$11,330 in 2025, $6,009 in 2026 and a final payment estimated at$4,978 in 2027.
ITEM BUDGETED: Yes
STRATEGIC PRIORITY: Public Trust and Accountability
APPROVED FOR SUBMITTAL BY THE CITY MANAGER
RECOMMENDATION:
Adopt Resolution
ATTACHMENTS:
Description Upload Date Type
resolution 7/27/2022 Cotter Memo
❑ Memo 6/30/2022 Cotter Memo
D Contract 6/30/2022 Contract
3
RESOLUTION NO. R-2022-
A RESOLUTION authorizing a contract with the United States of America Bureau of
Reclamation for repayment of Safety of Dams costs.
WHEREAS, the City of Yakima is a direct beneficiary of the Kachess Dam and the
Yakima Project, which was originally constructed in 1912 and provides irrigation water to the
City of Yakima and throughout the Yakima Valley; and
WHEREAS, as a beneficiary of the Project and under the Reclamation Safety of Dams
Act of 1978, the City is required to pay its proportionate share of construction and other costs
associated with maintaining the dams in safe condition; and
WHEREAS, the Bureau of Reclamation, after an investigation of the Kachess Dam,
determined that risk reduction work must be done to ensure the safety of the dam and continue
providing Project benefits; and
WHEREAS, the City of Yakima is required to pay its proportionate share, as outlined in
the Safety of Dams Act and the Contract; and
WHEREAS, the City Council finds that it is in the best interest of the City of Yakima and
its residents to enter into the contract with the United States of America to pay its proportionate
share, as required by law, for safety projects deemed necessary at the Kachess Dam; now,
therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Council of the City of Yakima hereby approves the Contract Between the
United States of America and the City of Yakima for Repayment of Safety of Dams Costs. The
Contract is attached hereto and fully incorporated herein.
ADOPTED BY THE CITY COUNCIL this 1 n day of August, 2022.
Janice Deccio, Mayor
ATTEST:
Sonya Clear Tee, City Clerk
^-4
?� �41T OF T F ( '
A�-r==r 4 United States Department of the Interior
i_ 1 BUREAU OF RECLAMATION
1150 North Curtis Road d�qRa Boise, ID 83706-1234
III REPLY REFEP,.IYI:
CPN-6322
2.2.4.23
CERTIFIED—RETURN RECEIPT REQUESTED
City Manager
City of Yakima
129 North Second Street
Yakima, WA 98901
Subject: Contract for Repayment of Kachess Dam Safety of Darns Modification Costs, Yakima
Project, Washington
Dear Contractor:
Enclosed is a proposed repayment contract for the repayment of the City of Yakima's (City)
proportionate share of the costs for the Safety of Darns modification work at Kachess Dam. The
City's estimated repayment obligation is $171,669.
Background of the Safety of Dams Work
Over the past several years,the Bureau of Reclamation(Reclamation)has corresponded with the
City regarding construction work at Kachess Dam required to correct the safety deficiencies
identified by Reclamation's Safety of Dams (SOD) Program as authorized by the Reclamation
Safety of Dams Act of 1978, as amended(SOD Act).1 The costs of construction of the Kachess
Dam SOD modification are subject to Federal funding procedures and repayment requirements.
Pursuant to the SOD Act and Reclamation policy, the reimbursable project purposes are required
to repay 15 percent of the total SOD modification cost,with the remaining 85 percent being
nonreimbursable and borne by the United States Treasury. Each Yakima Project Storage
Division contractor is responsible for repaying its respective share of the 15 percent reimbursable
portion of the total SOD modification cost.
How the Estimated Repayment Obligation was Determined
The total cost of the SOD modification work at Kachess Dam is currently estimated at $37
million,with the 15 percent reimbursable portion estimated to be $5.55 million. The
reimbursable project purposes are Irrigation and Municipal and Industrial (M&I)water supply
and, based on the proportional net present benefits evaluated in the Kachess Darn Safety ofDams
Economic Benefits Analysis Report,the $5.55 million reimbursable construction costs are
I Past written communications include letters dated April 14,2022,June 30,2021,August 20,2020,and October 8,
2019. Copies of these letters are available to be resent upon request.
INTERIOR REGION 9 •COLUMBIA-PACIFIC NORTHWEST
IDAHO,MONTANA*,OREGON*,WASHINGTON
'P RHA
5
2
allocated 93 percent to Irrigation water supply ($5,161,500 = $5,550,000 x 0.93) and 7 percent to
M&I water supply ($388,500 = $5,550,000 x 0.07).
Under existing contract(s)with Reclamation, the City receives a water supply from facilities of
the Yakima Project Storage Division, which includes Kachess Dam, for M&I use. Based on the
amount of contracted Yakima Project Storage Division water provided, the City's share is
44.18758 percent of the amount allocated to M&I water supply. Thus,the City's estimated
repayment obligation is $171,669 (44.18758% of$388,500), subject to actual final SOD
modification costs. The actual amount of the repayment obligation could be more or less than
the above estimate.
Repayment Terms of the Proposed Contract
The proposed repayment contract provides for annual payments to be made during each year of
the construction period which is anticipated to be calendar years 2023-2027. It is intended that
payments will be made in the year the construction costs are incurred,thereby avoiding the
potential accrual and application of interest. However, some contractors expressed a desire for
more flexibility in making annual payments during the construction period. Therefore, the
repayment contract also provides for postponement of annual payment(s) subject to certain terms
and conditions providing for the application of Interest During Construction.
The general feedback from the contractors was a preference to pay off their repayment
obligations during the construction period, thereby avoiding accrual and application of interest
on the M&I portion during the repayment period after substantial completion of SOD work.
Therefore, the proposed contract does not provide for traditional repayment occurring after
substantial completion. However, this option is still available to the City. If the City desires to
request the preparation of a traditional repayment contract, please submit your request in writing
to the point of contact identified below by July 8, 2022. Reclamation's costs of developing such
a contract would be added to the City's repayment obligation.
Next Steps
We anticipate award of procurement contract(s), in the fall of this year, for pre-modification
construction activities to begin in 2023 on Kachess Dam. It is imperative that repayment
contracts are in place prior to the awarding of construction contracts for the SOD work.
Therefore, the signed contracts need to be returned to this office no later than August 12, 2022.
During review of the enclosed contract, please note that there are blank spaces in Explanatory
Recital 2(i)pertaining to documentation of environmental compliance required for the execution
of the contract, which is in the process of being completed. Reclamation will fill in these blank
spaces with handwritten documentation details at the time the contract is executed on behalf of
the United States.
If the enclosed contract is acceptable to the City, please have the appropriate representative(s)
sign and date both copies and have the signatures notarized in the spaces provided. Then please
return both copies of the contract to this office in the stamped, self-addressed envelope. Once
6
3
received and upon completion of environmental compliance,the contracts will be signed on
behalf of the United States. A fully executed original will be returned for the City's records.
If you have any questions about the enclosed contract, please contact Mr. Michael Cobell,
Economist, Reclamation Law Administration, at(208) 378-5223 or via email at
mcobell@usbr.gov. For the hearing impaired please call the Federal Relay System at
(800) 877-8339 (TTY).
Sincerely,
JENNIFER JDENNIIFEby
RCARRINGTON
CARRINGTON 06'002022.06.1613:54:01
Jennifer J. Carrington
Regional Director
Enclosure: In duplicate
7
For Internal Use
Reference Date:
Contract No.: 22SD102178
Type: Pay-Go
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
Yakima Project, Storage Division
CONTRACT BETWEEN THE UNITED STATES OF AMERICA
AND THE CITY OF YAKIMA FOR
REPAYMENT OF SAFETY OF DAMS COSTS
Table of Contents
Article Page
No. Title No.
1 Preamble 2
2 Explanatory Recitals 2-4
3 Definitions 4-5
4 Contract Term and Scope 6
5 Safety of Dams Modifications Work to be Performed 6-7
6 Cost of Modifications and Contractor's Repayment Obligation 7-8
7 Omitted 8
8 Municipal and Industrial Water Supply Allocation—Repayment of Contractor's
Obligation 8-10
9 Statement of Costs 10
10 Title 10
11 Standard Provisions 11
Signatures 12
Acknowledgements 13
Exhibit A—Standard Provisions
Exhibit B—Schedule of Estimated Payments of Contractor's
Safety of Dams Repayment Obligation
8
Contract No.: 22SD102178
Type: Pay-Go
UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
YAKIMA PROJECT, STORAGE DIVISION
CONTRACT BETWEEN THE UNITED STATES OF AMERICA
AND THE CITY OF YAKIMA FOR
REPAYMENT OF SAFETY OF DAMS COSTS
1. THIS REPAYMENT CONTRACT, hereinafter referred to as the "Contract," is made
pursuant to the Reclamation Act of June 17, 1902 (32 Stat. 388) and acts amendatory thereof or
supplementary thereto, including the Reclamation Safety of Dams Act of 1978 (Public Law 95-
578; 43 U.S.C. § 506, et seq.), as amended; all of which are commonly referred to as the Federal
Reclamation Laws, between the UNITED STATES OF AMERICA, hereinafter referred to as
the "United States," acting through the Department of the Interior, Bureau of Reclamation,
hereinafter referred to as "Reclamation," and the CITY OF YAKIMA, hereinafter referred to as
the "Contractor," a municipal corporation existing under and by virtue of the laws of the State of
Washington.
WITNESSETH THAT:
2. EXPLANATORY RECITALS
The following statements are made in explanation:
(a) WHEREAS,the United States completed construction of Kachess Dam in 1912 as a
feature of the Storage Division, Yakima Project(Project); and
Contract No. 22SD102178 2
9
(b) WHEREAS,the Reclamation Safety of Dams Act of 1978 (Public Law 95-578; 43
U.S.C. § 506, et seq.), as amended, authorizes the Secretary of the Interior, through Reclamation,
to perform Safety of Dams modifications; and
(c) WHEREAS, investigations and studies completed under Reclamation's Safety of Dams
Program have confirmed that dam safety issues exist at Kachess Dam that contribute to the risk
of failure, and Reclamation has concluded that the possibility of the failure modes and the
associated potential loss of life, property damages, and loss of benefits requires that risk
reduction actions be implemented at Kachess Dam; and
(d) WHEREAS,the Commissioner of Reclamation has approved certain work to make the
dam safe while providing project benefits and protecting downstream property and lives; and
(e) WHEREAS,the need for Safety of Dams modifications at Kachess Dam results from
new hydrologic or seismic data or changes in state-of-the-art criteria deemed necessary for safety
purposes, and thus the Reclamation Safety of Dams Act of 1978 (Public Law 95-578; 43 U.S.C.
§506, et seq.), as amended, and Reclamation policy provide that 15 percent of the costs incurred
for the Safety of Dams modifications shall be allocated to authorized reimbursable purposes of
the structure, and thus are reimbursable by the Irrigation and Municipal and Industrial water
supply purposes users; and
(f) WHEREAS,the Contractor is a Project water user that benefits from the Project and is
responsible for repayment of its proportionate share of the reimbursable cost of the corrective
Safety of Dams Modifications; and
(g) WHEREAS, pursuant to the contract of December 22, 1952 (Contract No. I23r-629) and
the May 2, 2011 Successor in Interest to a portion of the contract of July 21, 1926 (Contract Ilr-
37), as such contracts may have been supplemented and amended, the Contractor receives a
Contract No. 22SD102178 3
10
supply of water from Project Storage Division facilities, which includes Kachess Dam, for
Municipal and Industrial use. Based on the amount of contracted Project water provided
pursuant to the above-referenced contracts, the Contractor's proportionate share of the Total
Reimbursable Cost allocable to Municipal and Industrial water supply is determined to be
44.18758 percent; and
(h) WHEREAS,the Contractor desires and is willing to repay its proportionate share of the
reimbursable cost for the modification of Kachess Dam as the construction work proceeds, and
Reclamation is agreeable to such arrangements as provided hereinafter; and
(i) WHEREAS, Reclamation has met all environmental compliance requirements for the
execution of this Contract through preparation and issuance of
approved on
NOW, THEREFORE, in consideration of the mutual covenants and stipulations herein
contained, it is mutually agreed by and between the parties hereto as follows:
3. DEFINITIONS
The following terms, whenever used in this Contract, shall have the following respective
meanings:
(a) "Contracting Officer"means the Regional Director of the Columbia-Pacific Northwest
Interior Region 9 of the United States Bureau of Reclamation, as the Federal official authorized
to execute and administer this Contract on behalf of the United States in accordance with
applicable Federal Reclamation Law, regulation, and policy.
(b) "Contractor's Repayment Obligation"means the Contractor's share of the Total
Reimbursable Cost to correct the deficiencies at Kachess Dam.
Contract No. 22SD102178 4
11
(c) "Interest During Construction" or"IDC"means the amount of annual interest that
accrues on Federal expenditures during the period of construction of the Safety of Dams
Modifications.
(d) "Irrigation Use"means the use of water to irrigate land primarily for the production of
commercial agricultural crops or livestock, and domestic and other uses that are incidental
thereto.
(e) "Municipal and Industrial Use"means the use of water for municipal, industrial, and
miscellaneous other purposes not falling under the definition of Irrigation use or within another
category of water use under an applicable Federal authority.
(f) "Safety of Dams Act"means the Reclamation Safety of Dams Act of 1978 (Public Law
95-578; 43 U.S.C. § 506, et seq.), as amended by the Reclamation Safety of Dams Act
Amendments of August 28, 1984 (Public Law 98-404), October 27, 2000 and several subsequent
Acts, including(Public Law 106-377), December 3, 2004 (Public Law 107-117, Public Law 108-
439), and December 18, 2015 (Public Law 114-113).
(g) "Safety of Dams Modifications"means any work or modifications identified by
Reclamation as necessary to correct safety deficiencies at Kachess Dam.
(h) "Substantial Completion"means the point that Reclamation determines, in its sole
discretion, that the Safety of Dams Modifications work is far enough along that the dam safety
risk has been reduced to an acceptable level.
(i) "Total Reimbursable Cost"means 15 percent of the actual total Safety of Dams
Modifications cost to correct the deficiencies at Kachess Dam, as provided in the Safety of Dams
Act and Reclamation policy.
Contract No. 22SD102178 5
12
4. CONTRACT TERM AND SCOPE
(a) This Contract shall become effective upon the date of signature of the last signatory party
herein, and its provisions shall remain in effect until the Contractor has paid all amounts owed to
the United States under this Contract.
(b) This Contract does not affect other contracts between the United States and the
Contractor unless the terms of those other contracts are contrary to the terms of this Contract, in
which case the terms of this Contract shall prevail. This Contract shall not be deemed a new or
amended contract for the purposes of Section 203(a) of the Reclamation Reform Act of 1982 (96
Stat. 1263 to 1274).
5. SAFETY OF DAMS MODIFICATIONS WORK TO BE PERFORMED
(a) The United States will finance and perform all construction of the Safety of Dams
Modifications work. The Safety of Dams Modifications work is anticipated to begin in calendar
year 2023 and is estimated to be Substantially Complete in calendar year 2027. The Safety of
Dams Modifications are projected to include the following work, described below, as may be
further defined by the Contracting Officer:
(1) Clearing and grubbing of trees in the construction project area.
(2) Development of access roads and construction contractor use areas.
(3) Upgrade electrical service to dam site.
(4) Fabrication and delivery of pipes.
(5) Excavation of foundation for outlet works conduit extension.
(6) Construction of conduit extension.
(7) Placement of a four-sided diaphragm filter around conduit extension.
(8) Installation of concrete around the pipe downstream of the conduits.
Contract No. 22SD102178 6
13
(9) Construction of a stability berm above the filter zone.
(10) Installation of a drainage system and inspection well.
Should it appear necessary or desirable to the Contracting Officer either before or during
construction, Safety of Dams Modifications work may be modified in design or location, work
may be eliminated, or other work may be added thereto, in keeping with the objectives of this
Contract. The Contracting Officer will notify the Contractor, in advance, of any substantial
change in modification requirements or work.
(b) The Contracting Officer shall determine and notify the Contractor in writing when the
work as described in this article is Substantially Complete.
6. COST OF MODIFICATIONS AND CONTRACTOR'S REPAYMENT
OBLIGATION
(a) The total estimated cost for Safety of Dams Modifications is thirty-seven million
($37,000,000) dollars, of which fifteen percent(15%), or an estimated five million five hundred
and fifty thousand dollars ($5,550,000 = $37,000,000 x 0.15) is the Total Reimbursable Cost.
(b) Based on economic benefit calculations performed by Reclamation ninety-three percent
(93%) of the Total Reimbursable Cost is to be allocated to Irrigation water supply and is
estimated to be five million one hundred sixty-one thousand and five hundred dollars
($5,161,500 = $5,550,000 x 0.93), hereinafter referred to as the "Allocated Reimbursable Cost to
Irrigation Water Supply." Seven percent(7%) of the Total Reimbursable Cost is to be allocated
to Municipal and Industrial water supply and is estimated to be three hundred eighty-eight
thousand and five hundred dollars ($388,500 = $5,550,000 x 0.07), hereinafter referred to as the
"Allocated Reimbursable Cost to Municipal and Industrial Water Supply."
Contract No. 22SD102178 7
14
(c) The Contractor's Repayment Obligation is the Contractor's proportionate share of the
Allocated Reimbursable Cost to Municipal and Industrial Water Supply and shall be
44.18758 percent of the Allocated Reimbursable Cost to Municipal and Industrial Water Supply.
Accordingly, the Contractor's Repayment Obligation is estimated to be one hundred seventy-one
thousand six hundred sixty-nine dollars ($171,669 = $388,500 x 0.4418758). This obligation
may be adjusted under the provisions of Article 8 and Article 9 of this Contract.
(d) The Contractor understands that the figures in sub-articles 6(a)-(c) above are estimates
only and that the Contractor is responsible for its proportionate share of the actual cost of Safety
of Dams Modifications. It is understood that the total costs of Safety of Dams Modifications
may exceed the estimated costs due to circumstances encountered during the performance of the
Safety of Dams Modifications. If this occurs,the Contractor is responsible for its proportionate
share of the additional costs. Likewise, if the actual costs are less than the estimated costs, it is
understood that the Contractor is only responsible for its proportionate share of the actual costs.
(e) The Contracting Officer, at his/her discretion, will make reasonable efforts to complete
the Safety of Dams Modifications within the cost estimate in sub-article 6(a) above. If it
becomes evident during the course of the Safety of Dams Modifications that the costs will
exceed the estimate,the Contracting Officer will inform the Contractor of this conclusion in
writing with documentation of the reason for the additional costs and an itemized summary of
the costs incurred.
7. Omitted.
8. MUNICIPAL AND INDUSTRIAL WATER SUPPLY ALLOCATION -
REPAYMENT OF CONTRACTOR'S OBLIGATION
(a) Annual Payments During the Construction Period:
Contract No. 22SD102178 8
15
(1) The Contractor agrees to make annual payments for the repayment of the
Contractor's Repayment Obligation, without interest, in the same proportion to Reclamation's
expenditure of Safety of Dams Program funds, beginning in the year that the Safety of Dams
Modifications work is initiated through the year in which the Contracting Officer provides the
Contractor with written notice of the Substantial Completion of the Safety of Dams
Modifications work. On or before September 1 of each year during the construction period of
the Safety of Dams Modifications work the Contractor shall pay to the United States its annual
amount identified as due and payable on the schedule shown in Exhibit B, which may be
updated, as provided herein, from time to time without amendment of this Contract.
(2) After the execution of this Contract, the Contractor may request that any portion
of a required annual payment(s), including the full amount(s), be postponed and added to the
amount scheduled to become due in a subsequent or later year during the construction period:
Provided, that such a request be made in writing to the Contracting Officer at least one-hundred
eighty (180) days prior to the required annual payment becoming due: Provided,ilzwr, that
unless and until the Contracting Officer grants written approval to the Contractor, as provided in
sub-article 8(b), the Contractor shall make its annual payments as scheduled in Exhibit B.
(b) Postponement of Annual Payments —Interest Charges Applicable:
(1) The total amount of the Contractor's required annual payment(s) requested to be
postposed shall be subject to Interest During Construction charges and accrual during the
postponement period until the amounts are repaid.
(2) The interest rate used for determining the Interest During Construction charges
applicable to the amount of postponed annual payment(s) shall be the rate determined by the
Contract No. 22SD102178 9
16
Secretary of the United States Treasury which is in effect for the fiscal year in which federal
funds are expended for the Safety of Dams Modifications work.
(3) Within sixty (60) days of receipt of the Contractor's request made pursuant to
sub-article 8(a)(2), the Contracting Officer will provide written notice of approval of
Contractor's request. A revised and updated Exhibit B will be issued by the Contracting Officer
at such time.
(c) Prepayments Authorized:
Notwithstanding the schedule of payments provided in Exhibit B, the Contractor may prepay all
or any portion of the outstanding balance of the Contractor's Repayment Obligation prior to the
payment becoming due.
9. STATEMENT OF COSTS
The costs which make up the various obligations to be paid by the Contractor to the United
States under this Contract shall embrace all expenditures of whatsoever nature or kind in
discharge of the obligations undertaken pursuant to Article 5(a), including, but without limitation
by reason of this enumeration, cost of surveys and investigations, labor, property, material and
equipment, engineering, legal work, superintendence, administration, overhead, general
inspection services, and claims of all kinds, whether or not involving the negligence of officers,
agents, or employees of the United States. The Contracting Officer's determinations as to what
costs are properly chargeable under this Contract, and as to the classification of those charges for
repayment purposes, shall be conclusive.
10. TITLE
Title to the works and facilities constructed, repaired, or replaced pursuant to this Contract shall
be and remain in the United States.
Contract No. 22SD102178 10
17
11. STANDARD PROVISIONS
The Standard Provisions applicable to this Contract are listed below. The full text of these
articles is attached as Exhibit A and is hereby made a part of the Contract.
a. Charges for Delinquent Payments
b. General Obligation - Benefits Conditioned Upon Payment
c. Confirmation of Contract
d. Notices
e. Contingent on Appropriation or Allotment of Funds
f. Officials Not to Benefit
g. Changes in Contractor's Organization
h. Books, Records, and Reports
i. Equal Employment Opportunity
j. Compliance with Civil Rights Laws and Regulations
k. Certification of Nonsegregated Facilities
1. Medium for Transmitting Payments
m. Contract Drafting Considerations
Contract No. 22SD102178 11
18
IN WITNESS WHEREOF,the parties hereto have signed their names as of the day and
year first above written.
CITY OF YAKIMA
By:
Title:
Date:
(SEAL)
ATTEST:
By:
Title:
THE UNITED STATES OF AMERICA
By:
Regional Director
U.S. Bureau of Reclamation
Columbia-Pacific Northwest Interior
Region 9
Date:
Contract No. 22SD102178 12
19
STATE OF WASHINGTON)
:ss
County of )
On this day of , 20 , personally appeared before me
and , known to me to be the
official(s) of the CITY OF YAKIMA that executed the within and foregoing instrument and
acknowledged said instrument to be the free and voluntary act and deed of said CITY OF
YAKIMA and on oath stated they are authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal as of the day and year first above written.
Notary Public in and for the
State of
(SEAL) Residing at:
My commission expires:
+ + + + + + + + + +
STATE OF IDAHO )
: ss
County of Ada )
On this day of , 20 , personally appeared before me
, known to me to be the official of the UNITED
STATES OF AMERICA that executed the within and foregoing instrument and acknowledged
said instrument to be the free and voluntary act and deed of said UNITED STATES OF
AMERICA, for the uses and purposes therein mentioned, and on oath stated that they are
authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal as of the day and year first above written.
Notary Public in and for the
State of IDAHO
(SEAL) Residing at:
My commission expires:
Contract No. 22SD102178 13
20
21
EXHIBIT A
STANDARD PROVISIONS
CHARGES FOR DELINQUENT PAYMENTS
a. (1) The Contractor shall be subject to interest, administrative, and penalty
charges on delinquent payments. If a payment is not received by the due date,the Contractor
shall pay an interest charge on the delinquent payment for each day the payment is delinquent
beyond the due date. If a payment becomes 60 days delinquent, the Contractor shall pay, in
addition to the interest charge, an administrative charge to cover additional costs of billing and
processing the delinquent payment. If a payment is delinquent 90 days or more, the Contractor
shall pay, in addition to the interest and administrative charges, a penalty charge for each day the
payment is delinquent beyond the due date, based on the remaining balance of the payment due
at the rate of 6 percent per year. The Contractor shall also pay any fees incurred for debt
collection services associated with a delinquent payment.
(2) The interest rate charged shall be the greater of either 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. The interest rate charged will be
determined as of the due date and remain fixed for the duration of the delinquent period.
(3) When a partial payment on a delinquent account is received, the amount
received shall be applied first to the penalty charges, second to the administrative charges,third
to the accrued interest, and finally to the overdue payment.
GENERAL OBLIGATION--BENEFITS CONDITIONED UPON PAYMENT
b. (1) The obligation of the Contractor to pay the United States as provided in this
Contract is a general obligation of the Contractor notwithstanding the manner in which the
obligation may be distributed among the Contractor's water users and notwithstanding the default
of individual water users in their obligations to the Contractor.
(2) The payment of charges becoming due pursuant to this Contract is a condition
precedent to receiving benefits under this Contract. The United States shall not make water
available to the Contractor through Yakima Project, Storage Division facilities during any period
in which the Contractor is in arrears in the advance payment of the any operation and
maintenance charges due the United States or in arrears for more than 12 months in the payment
of any construction charges due the United States. The Contractor shall not deliver water under
the terms and conditions of this Contract for lands or parties that 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 Contractor.
Contract No. 22SD102178 A- 1
22
CONFIRMATION OF CONTRACT
c. Promptly after the execution of this Contract,the Contractor will provide
evidence to the Contracting Officer that, pursuant to the laws of the State of Washington, the
Contractor is a legally constituted entity and the contract is lawful, valid, and binding on the
Contractor. This Contract will not be binding on the United States until the Contractor provides
evidence to the Contracting Officer's satisfaction. In addition to other forms of evidence to meet
the requirements of this article, the Contractor may provide or the Contracting Officer may
require a certified copy of a final decree of a court of competent jurisdiction in the State of
Washington, confirming the proceedings on the part of the Contractor for the authorization of the
execution of this Contract.
NOTICES
d. Any notice, demand, or request authorized or required by this Contract shall be
deemed to have been given, on behalf of the Contractor, when mailed, postage prepaid, or
delivered to the Regional Director, Columbia-Pacific Northwest Interior Region 9, Bureau of
Reclamation, 1150 North Curtis Road, Suite 100, Boise, Idaho 83706-1234, and on behalf of the
United States, when mailed, postage prepaid, or delivered to City Manager, City of Yakima, 129
North Second Street, Yakima, Washington 98901. 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 APPROPRIATION OR ALLOTMENT OF FUNDS
e. The expenditure or advance of any money or the performance of any obligation of
the United States under this Contract shall be contingent upon appropriation or allotment of
funds. Absence of appropriation or allotment of funds shall not relieve the Contractor from any
obligations under this Contract. No liability shall accrue to the United States in case funds are
not appropriated or allotted.
OFFICIALS NOT TO BENEFIT
f. No Member of or Delegate to the Congress, Resident Commissioner or official of
the Contractor shall benefit from this Contract other than as a water user or landowner in the
same manner as other water users or landowners.
CHANGES IN CONTRACTOR'S ORGANIZATION
g. While this Contract is in effect, no change may be made in the Contractor's
organization, by inclusion or exclusion of lands or by any other changes which may affect the
respective rights, obligations, privileges, and duties of either the United States or the Contractor
under this Contract including, but not limited to, dissolution, consolidation, or merger, except
upon the Contracting Officer's written consent.
Contract No. 22SD102178 A-2
23
BOOKS, RECORDS, AND REPORTS
h. The Contractor shall establish and maintain accounts and other books and records
pertaining to administration of the terms and conditions of this Contract, including the
Contractor's water supply data; water-use data; and other matters that the Contracting Officer
may require. Reports shall be furnished to the Contracting Officer in such form and on such date
or dates as the Contracting Officer may require. Subject to applicable Federal laws and
regulations, each 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.
EQUAL EMPLOYMENT OPPORTUNITY
i. During the performance of this Contract, the Contractor agrees as follows:
(1) The Contractor will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, sexual orientation, gender identity, or national
origin. The Contractor will take affirmative action to ensure that applicants are employed, and
that employees are treated during employment, without regard to their race, color, religion, sex,
sexual orientation, gender identity, or national origin. Such action shall include, but not be
limited to the following: employment, upgrading, demotion, or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship. The Contractor agrees to post in conspicuous
places, available to employees and applicants for employment, notices to be provided by the
Contracting Officer setting forth the provisions of this nondiscrimination clause.
(2) The Contractor will, in all solicitations or advancements for employees
placed by or on behalf of the Contractor, state that all qualified applicants will receive
consideration for employment without regard to race, color, religion, sex, sexual orientation,
gender identity, or national origin.
(3) The Contractor will not discharge or in any other manner discriminate
against any employee or applicant for employment because such employee or applicant has
inquired about, discussed, or disclosed the compensation of the employee or applicant or another
employee or applicant. This provision shall not apply to instances in which an employee who
has access to the compensation information of other employees or applicants as a part of such
employee's essential job functions discloses the compensation of such other employees or
applicants to individuals who do not otherwise have access to such information, unless such
disclosure is in response to a formal complaint or charge, in furtherance of an investigation,
proceeding, hearing, or action, including an investigation conducted by the employer, or is
consistent with the contractor's legal duty to furnish information.
(4) The Contractor will send to each labor union or representative of workers
with which he has a collective bargaining agreement or other contract or understanding, a notice,
to be provided by the agency Contracting Officer, advising the labor union or workers'
representative of the Contractor's commitments under section 202 of Executive Order No. 11246
Contract No. 22SD102178 A-3
24
of September 24, 1965, and shall post copies of the notice in conspicuous places available to
employees and applicants for employment.
(5) The Contractor will comply with all provisions of Executive Order No.
11246 of Sept. 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of
Labor.
(6) The Contractor will furnish all information and reports required by
Executive Order No. 11246 of September 24, 1965, and by the rules, regulations, and orders of
the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and
accounts by the Contracting Agency and the Secretary of Labor for purposes of investigation to
ascertain compliance with such rules, regulations, and orders.
(7) In the event of the Contractor's noncompliance with the nondiscrimination
clauses of this Contract or with any of such rules, regulations, or orders,this Contract may be
canceled, terminated or suspended in whole or in part and the Contractor may be declared
ineligible for further Government contracts in accordance with procedures authorized in
Executive Order No. 11246 of Sept. 24, 1965, and such other sanctions may be imposed and
remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule,
regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(8) The Contractor will include the provisions of paragraphs (1)through (8) 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 Executive Order No. 11246 of September
24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The
Contractor will take such action with respect to any subcontract or purchase order as may be
directed by the Secretary of Labor as a means of enforcing such provisions, including sanctions
for noncompliance:Provided, however, that in the event the Contractor becomes involved in, or
is threatened with, litigation with a subcontractor or vendor as a result of such direction, the
Contractor may request the United States to enter into such litigation to protect the interests of
the United States.
COMPLIANCE WITH CIVIL RIGHTS LAWS AND REGULATIONS
j. (1) The Contractor shall comply with Title VI of the Civil Rights Act of 1964
(Pub. L. 88-352; 42 U.S.C. § 2000d), the Rehabilitation Act of 1973 (Pub. L. 93-112, Title V, as
amended; 29 U.S.C. § 791, et seq.), the Age Discrimination Act of 1975 (Pub. L. 94-135, Title
III; 42 U.S.C. § 6101, et seq.), Title II of the Americans with Disabilities Act of 1990 (Pub. L.
101-336; 42 U.S.C. § 12131, et seq.), and any other applicable civil rights laws, and with the
applicable implementing regulations and any guidelines imposed by the U.S. Department of the
Interior and/or Bureau of Reclamation.
(2) These statutes prohibit any person in the United States from being excluded
from participation in, being denied the benefits of, or being otherwise subjected to discrimination
under any program or activity receiving financial assistance from the Bureau of Reclamation on
Contract No. 22SD102178 A-4
25
the grounds of race, color, national origin, disability, or age. By executing this Contract,the
Contractor agrees to immediately take any measures necessary to implement this obligation,
including permitting officials of the United States to inspect premises, programs, and documents.
(3) The Contractor makes this agreement in consideration of and for the purpose
of obtaining any and all Federal grants, loans, contracts, property discounts, or other Federal
financial assistance extended after the date hereof to the Contractor by the Bureau of
Reclamation, including installment payments after such date on account of arrangements for
Federal financial assistance which were approved before such date. The Contractor recognizes
and agrees that such Federal assistance will be extended in reliance on the representations and
agreements made in this article and that the United States reserves the right to seek judicial
enforcement thereof.
(4) Complaints of discrimination against the Contractor shall be investigated by
the Contracting Officer's Office of Civil Rights.
CERTIFICATION OF NONSEGREGATED FACILITIES
k. The Contractor hereby certifies that it does not maintain or provide for its
employees any segregated facilities at any of its establishments and that it does not permit its
employees to perform their services at any location under its control where segregated facilities
are maintained. It certifies further that it will not maintain or provide for its employees any
segregated facilities at any of its establishments and that it will not permit its employees to
perform their services at any location under its control where segregated facilities are
maintained. The Contractor agrees that a breach of this certification is a violation of the Equal
Employment Opportunity clause in this Contract. As used in this certification, the term
"segregated facilities" means any waiting rooms, work areas, rest rooms and wash rooms,
restaurants and other eating areas,time clocks, locker rooms and other storage or dressing areas,
parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing
facilities provided for employees which are segregated by explicit directive or are in fact
segregated on the basis of race, creed, color, or national origin, because of habit, local custom,
disability, or otherwise. The Contractor further agrees that(except where it has obtained
identical certifications from proposed subcontractors for specific time periods) it will obtain
identical certifications from proposed subcontractors prior to the award of subcontracts
exceeding $10,000 which are not exempt from the provisions of the Equal Employment
Opportunity clause; that it will retain such certifications in its files; and that it will forward the
following notice to such proposed subcontractors (except where the proposed subcontractors
have submitted identical certifications for specific time periods):
NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT FOR
CERTIFICATIONS OF NONSEGREGATED FACILITIES
A Certification of Nonsegregated Facilities must be submitted prior to the award of a
subcontract exceeding $10,000 which is not exempt from the provisions of the Equal
Employment Opportunity clause. The certification may be submitted either for each subcontract
Contract No. 22SD102178 A- 5
26
or for all subcontracts during a period (i.e., quarterly, semiannually, or annually). Note: The
penalty for making false statements in offers is prescribed in 18 U.S.C. § 1001.
MEDIUM FOR TRANSMITTING PAYMENTS
1. (1) All payments from the Contractor to the United States under this Contract
shall be by the medium requested by the United States on or before the date payment is due. The
required method of payment may include checks, wire transfers, or other types of payment
specified by the United States.
(2) Upon execution of the Contract, the Contractor shall furnish the
Contracting Officer with the Contractor's taxpayer's identification number(TIN). The purpose
for requiring the Contractor's TIN is for collecting and reporting any delinquent amounts arising
out of the Contractor's relationship with the United States.
CONTRACT DRAFTING CONSIDERATIONS
m. This Contract has been negotiated and reviewed by the parties hereto, each of
whom is sophisticated in the matters to which this Contract pertains.
Contract No. 22SD102178 A-6
27
EXHIBIT B
SCHEDULE OF ESTIMATED PAYMENTS OF
CONTRACTOR'S SAFETY OF DAMS REPAYMENT OBLIGATION
The total estimated cost for the Safety of Dams Modifications is thirty-seven million
($37,000,000) dollars. The Total Reimbursable Cost is estimated at five million five hundred
and fifty thousand dollars ($5,550,000 = $37,000,000 x 0.15). Based on economic benefit
calculations performed by Reclamation ninety-three percent(93%) of the Total Reimbursable
Cost is to be allocated to the Irrigation water supply and is estimated to be five million one
hundred sixty-one thousand and five hundred dollars ($5,161,500 = $5,550,000 x 0.93). Seven
percent(7%) of the Total Reimbursable Cost is to be allocated to Municipal and Industrial water
supply and is estimated to be three hundred eighty-eight thousand and five hundred dollars
($388,500 = $5,550,000 x 0.07).
As provided in Article 6 of the Contract, the Contractor's Repayment Obligation is the
Contractor's proportionate share of the Allocated Reimbursable Cost to Municipal and Industrial
Water Supply, which is 44.18758 percent of$388,500 and estimated to be $171.669.
Based on the currently anticipated construction schedule and budget for the Safety of Dams
Modifications work the Contractor's annual payments during the period of construction are:
Payment Date Due Payment Amount
September 1, 2023 $56,651
September 1, 2024 $92,701
September 1, 2025 $11,330
September 1, 2026 $6,009
September 1, 2027 $4,978
The Contractor's Repayment Obligation and the estimated payment amounts displayed above do
not reflect any adjustment for the assessment and accumulation of Interest During Construction,
which may become due in accordance with the terms of Article 8, in which case the Contractor
will be provided a revised Exhibit B by the Contracting Officer.
Contract No. 22SD102178 B - 1