HomeMy WebLinkAboutReso 1952-1291RESOLUTION 1291
RESOLUTION NO. ]291
RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CHULA VI STA DECLARING TERJVIS OF AGREEMENT
BETWEEN UNITED STATES OF AMERICA AND SAN
DIEGO COUNTY VIA TER AUTHORITY ACCEPTABLE TO
THE CITY OF CHULA VISTA
THE CITY COUNCIL OF THE CITY OF CHULA VISTA, DOES HERE-
BY RESOLVE AS FOLLOWS:
That the City Council of the City of Chula Vista,
acting for and on behalf of the City of Chula Vista,
determines that the terms and conditions of that certain
agreement, entitled Collateral Agreement to Supplemental
Agreement No. I. between United States of America and San
Diego County Water Authority, are acceptable to the City
Council of the City of Chula Vista, and the said City
Council does further resolve that it will duly execute
said agreement when required to do so.
• ,_
•
ADOPTED AND APPROVED by the CITY COUNCIL of the CITY OF
CHULA ,VISTA, CALIFORNIA, this gth day of January 3]-952,
by the following vote, toh-wit;
AYES: COUNCILMEN j� he1, . sl 1, 41,0gana, PeWWolfe..
NAYS: COUNCILMEN None
p , +
ABSENT: COUNCILMEIN Kidder
..`� l
$ l4l� or o e a y of C alas a
•ATS` , ‘At,. . . G .
.r,L�ft
61* eT
Deputy
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO } ss.
CITY OF CHULA VISTA )
I, , City Clerk of the
City of Chula Vista, California, DO HEREBY CERTIFY that the above
and foregoing is a full.,, true and correct copy of Resolution
No. , and that the sane has not been mended or
repealed.
DATED:
City Cler1i u .
by
Deputy
~ F~ ~ ~V
r~ ~~_~i yt/n-
::;:~ ~~
Contract NOy-13300
Collateral Agreement to
Supplemental Agreement
No. 4 between
United States of America
and San Diego County
Water Authority
This Collateral Agreement to Supplemental Agreement No. 4 to Contract
NOy-13300, entered into as of the day of 1952, between
the UNITED STATES OF AMERICA (hereinafter called the "Government") repre-
sented by the Chief of the Bureau of Yards and Docks, Navy Department, and
THE CITY OF SAN DIEGO, THE CITY OF CHULll. VISn, THE FALLBROOK PUBLIC UTILITY
DISTRICT, THE LAKESIDE IR:UGATION DISTRICT, TI-E Lll. MESA, LE,,jON GROVE AND
SPRING VALLEY IRIUGATION DISTRICT, TI-E CITY OF NATIONAL CITY, TI-E CITY OF
OCEANSIDE, THE CITY OF ESCONDIDO, THE SAN DIEGUITO IRRIGATION DISTRICT, AND
TI-E SANTA FE IRRIGATION DISTRICT, public corporations organized and existing
under and by virtue of the State of California and the member agencies of
the San Diego County Water Authority (each of whom is hereinafter called the
"Contractor") ;
WITNESSETH:
In consideration of the execution by the Government and _ the Authority
of Supplemental Agreement NO.4 to Contract NOy-13300, providing for the con-
struction and leasing of a Second Barrel paralleling the existing Aqueduct;
the construction by the Government of such Secmld Barrel; and the benefits to
be derived therefrom by each of the Contractors; the parties hereto do mu-
tually agree as follows:
/
1. (a) Each Contractor agrees for itself individually and its successors
and assigns as distributors of the water, on and after the effective date of
Supplemental Agreement NO.4, to furnish to the Government on a preferential
basis and at a rate no higher th~~ that charged to the users of comparable
quanti ttes of watf;r ~or like service, a quantity 01 water sulf lCJ..ent ~o.I~~'Hl~
the requireme-rits --of 'Government activities located anam8l.oc~--m-the--
corporate area served b~ each such Contractor;-p-roviued, however, that no
COlrtractor shalToe obligated hereunder to furnish any water lle-cm;~ to
meet the requirements of Government activities located outside the area
served by such Contractor; ~~d provided further, that such Contractor shall
in no event be obligated far any qu,mtity of water in excess of the quantity
to which such Contractor shall be entitled (in the absence of default on the
part of such Contractor in its obligations to the Authority or the District)
or permitted to reccive through the Aqueduct and/or Second B"rrel from the
Authority, or its successor, whether by firm right or by shares in surplus
'Natcr.
(b) It is agreed that the current water requirements of such Govern-
ment activities are 15,967 ac. ft. per year in the City of San Diego; 216 ac.
ft. per year in the City of Chula Vista; 29 ac. ft. per year in the Fallbrook
(o))-oo\"
District;
Public Utility District; .30 ac. ft. per year in the Lakeside Irrigation /
o ac. ft. per year in the La Mesa, Lemon Grove and Spring Valley Irrigation
District; 289 ac. ft. per year in the City of National City; 192 ac. ft. per
year in the City of Oceanside; .50 ac. ft. per year in the City of Escondido;
o ac. ft. per year in the San Dieguito Irrigation District; and 0 ac. ft. per
year in the Santa Fe Irrigation District. Future TIater requirements of
Government activities shall be determined in accord'\l1ce with the mutual agree-
ment of the parties; provided, however, that D1 the event of disagreement,
the determination of such water requirements shall be deemed a question of
fact within the meaning of Clause 11 hereof.
(c) "On a preferential basis," as used herein, shall be deemed to give
the Government a first right to receive water hereunder in preference to any
other customer of any Contractor, whether for industrial, con111ercial, r8tail,
domestic, irrigatien or any other purpese, and subordinate enly to the use by
the Contractor of water for its ovm municip,Q requirements.
2. Each Contractor for itself, its successers and assigns, censents to the
performance by the Authority ef its obligations to the Government under Sup-
plemental Agreement No. 4 to Contract NOy-13300, and waives any cla-Dns or
rights inconsistent therewith. Without Umiting the generality of the fore-
going, each Contractor specifically agrees that in the event of its inability,
failure or failures to comply with the provisions of this Agreement, the
Authority, as long and as often as may be necessary, shall make available to
the Government a sufficien~ quantity of water to remedy and supply the de-
fault or deficiency of such Contractor in complying with such Agreement, aDd,
for this purpose, each Contractor agrees thut the water to be supplied the
Government by the Authority in ordor to remedy and supply such default or de-
ficiency shall be chargeable to and deductible from the proportionate share
of such defaulting Contractor in the vrater available from the Aqueduct and
the Second Barrel.
3. It is further agreed that Supplemental Agreement No. 4 to Contract NOy-
13300 shall be deemed a modification or act affecting Contract NOy-13300
within the meaning and subject to the provisions of Clause 5 of Supplemental
Agreement No.1 to Contract NOy-13300; provided that in operating said Aque-
duct and/or said Second Barrel the City shall be bound by the terms and con-
ditions hereof and retake subject to the then existli1g rights of local
cOlmm.h'1ities to be served with wator trerefrom.
4. Failure of the Government in anyone or more inst~Dces to insist upon
strict performance of any of t11e terr1S 0-':' this Collateral Lgreement or to
exercise any provided right or option har8li1 conferred, shall not be con-
strued as a waiver or l'(]linquishmont for the future of uny such teras, options
or rights. Nothing contained in this Collateral Agreement shall be construed
as in any manner abridging, limiting, or depriving the United States of any
means of enforcing any remedy oither nt law or in equity for the breach of
any of the provisions hereof which it would othorvnse have.
5. The use of all water diverted through the Aqueduct and the Second Barrel
from the Colorado River shall be subject to and controlled by the Colorado
River Compact, the Boulder Canyon Project ~ct, the California Self-Limitation
2.
Statute and the Mexican Water Treaty and shall be included within and shall
in no way increase the total quantity of water to the use of which the State
of California is entitled and lliuited by the said compact, treaty and sta-
tutes.
6. No member of or delegate to Congress, or resident co,.1-nissioner, shall
be a&Ditted to any share or part of this contract, or to an~l' benefit that
may arise therefrow; but this provision shall not be construed to extend to
this contract if ,nade with a corporation for its general benefit.
7. Each Contractor warrants that no person or selling agency has been em-
ployed or retained to solicit or secure this contract upon any agreement or
underst2nding for a COilITllission, percentago, brokerage, or contingent fee,
excepting bona fide established cOlmnercial or selling agencies waintained by
each Contractor for the purpose of securing busll1ess. For breach or viola-
tion of this Warra!1ty the Government shall have the right to annul this con-
tract without liability or in it s discretion to deduct from the con tract
price or considDr<ltion the full ;UHOU11t of such comr:1ission, percentage, bro-
kerage, or contingent fee.
8. No claim under this contract shall be assigned without the written con-
sent of the Contracting Officer.
9. In connection with the performance of work under this contract, each
Contractor agrees not to employ any person undergoing sentence of i~prison-
i;lent at hard labor.
10. In connection with the perforwance of work under this contract, each
Contractor agrees not to discriminate against any employee or applicant for
employment because of race, creed, color, or national origin; and further
agrees to insert the foregoing provision in all subcontracts hereunder ex-
cept subcontracts for standard cOirir.wrcial supplies or for raw materials.
11. Except as othenvise provided in this contract, any dispute concerning a
question of fact arising under this contract which is not disposed of by
agree;,Jent shall be decided by the Contracting Officer, who shall reduce his
decision to writing and ~ail or othe~!Tise furnish a copy thereof to each
Contractor concerned. Within]O days froD the date ef receipt of such copy,
each Contractor concerned nClY appoal by maili11g or otherwise furnishing to
the Contracting Officer a nTittcn appeal addressed to the Secretary, and the
decision of the Secretary, or his duly authorized representative for the
hearing of such appeals, shall be final and conolusive; provided that, if no
such appeal is taken, the decision of the Contracting Officer shall be final
and conclusive. In connection with any appeal proceeding under this clause,
each Contractor concerned shall be afforded an opportunity to be heard and to
offer evidence in support of its appeal. Pending final decision of a dispute
hereunder, each Contractor shall proceed diligently with the performance of
the contract and in accordance ~~th the Contracting Officer's decision.
12. As used throughout this contract, the following terms shall have the
Qeaning set forth below:
3.
(a) The term "Secretary" means the Secretary, the Under Secretary, or
any Assistant Secretary of the Navy Department; and the term "his duly au-
thoriZed representative" means any person or persons or board (other than
the Contracting Officer) authorized to a~t for the Secretary.
(b) The term "Contracting Officer" means the person exs;cuting this
contract on behalf of the Govermoent, and any other officer or civilian
employee who is a properly design~tcd Contracting Officer; and the term
includes, except as othervrise provided in this contract, the authorized
representative of a Contracting Officer acting within the limits of his
authority.
(c) Except as otherwise provided in this contract, the terr3 "sub-
contracts" includes purchase orders under thi,p contract.
13. (a) Each Contractor agrees that the Contracting Officer at any tiil~
during the life of this agreement, and the C~mptroller General of the United
States or any of his duly authorized representatives, until the expiration
of three years after final payment under this contract, shall have access to
and the right to ex~nine any di~ectly pertinent books, docuruents, papers, ~~d
records of each Contractor involving transactions related to this contract.
(b) Each Contractor further agrees to include the follovnng provision,
with appropriate insertions, in all his subcontracts hereunder: "(Name of
subcontractor) agrees that the Comptroller General of the United States or
any of his duly authorized representatives shall, until the expiration of
three years after final pa~nent under prime contract (contract symbol and
number) between the United States of America and (name of contractor) have
access to and the right to eXar.Jine any directly pertinent books, docwnents,
papers, and records of (name.of subcontractor) involving transactions re-
lated to this contract".
14. (a) The Government may, by vrritten notice to any Contractor, tenrrinate
the right of such Contractor to proceed under this contract if it is found,
after notice and hearing, by the Secret~y or his duly authorized represen-
tative, that gratuities (in the form of entertairunent, gifts, or otherwise)
were offered or given by. such Contractor, to any officer or employee of the
Government ,nth a view toward securing a contract or secttring favorable
treatment with respect to the awarding or amending, or the making of any
determinations vdth respect to the performance, of such contract; provided,
that the existence of the facts upon which the Secretary or his duly author-
ized representative makes such findings sh"U be in issue and may be revief!-
ed in any competent court,
(b) In the event this contract is terminated as provided in paragraph
(a) hereof, the Government shall be entitled (i) to pursue the same remedies
against any Centractor as it could pursue ip the event of a breach of the
contract by such Contractor, and (ii) as a penalty in addition to any other
damages to t~hich it may be entitled by law, to exemplary damages in an amount
(as determined by the Secretary or his duly authorized representative) which
shall be not less than three l')or more than ten times the costs incurred by
such Contractor in providing any such gratuities to any such officer or em-
ployee.
~.
(c) The rights and remedies of the Government provided in this clause
shall not be exclusive and are in addition to any other rights and remedies
provided by law or under this contract.
15. This Agreement shall be of no force and effect until and unless the
Goverruaent and the Authority have entered into Supplemental Agreement No. 4
to Contract NOy-13300, nor shall it have any force or effect in the event
the Authority withdraws from Supplemental Agree.oent No.4, pursue,nt to the
provisions of Article 12 thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Collateral
Agreement as of the day and year first above written.
THE UNITED ST;,TES OF JJ,iERICA
By
(CONTlhCTOR)
By
Title
5.
Contract NOy-13300
Supplemental Agreement No. 4
between United States of
America and San Diego County
\Vater Authority
THIS SUPPLEr.1ENT.;:'IL AGREErviENT NO. 4 to Contract NO?-13300, entered i :1tO as
of tLe day of 1952, between the UnITED STI-I.TES OF liMERIC!',
(he:ceinafte:r called the lrGovern;llent 11)) represented by the Chief of the Bureau
of Yards anil. Docks, Navy Departinent, and SAN DIEGO COUNTY HATER AUTHORITY, 8.
public corporation, organized and. existing under and by virtue of the 1a1."8 of
the State of California (hereinafter called the "Authority");
viI'l'NESSETH:
'dHEREAS, tlle Government ,',nti the City of San Diego on October 17, 191+5
entered into Contract NOy-13300 ,.J1c.erein t'-e Gover!1ment unrlertool: to construct,
and "tre City undertool:: to lease, operate: and maintain, an Aqueduct (hereinafter
callcrl ttE "Aqueduct II) fror:\ a cO!lnection ,.,it}! the Colorad.o River Aqueduct of the
Metropolitan Tdate~c District of Southern California, near the West Portal of the
San Jacinto Tunnel in Biverside County, to Son Vicente Reservoir in San Diego
Count:\:~ and
HHEREJ:".S, by virtue of compliance with the terms and cond:i, tions of Supple-
mC!1tal Agrec",cnt 110. 1 to Contract NOy-13300, entered into as of Septe:nber 23,
1946, tJ-.e Authority is the assignee in part of the City's rights and obligations
under Contract NOy-13300; and
\11lERE1\S, unrler Supplement81 Agreement No. 2 to Contract 110::-13300, entered
into October 29, 191-t-6, Contract NOy-13300 llaS modified to reserve title to cer-
tain transition and diversion stTuctures in tLe MctroDolitan Water District of
Southern California (hereinafter called tbe i1District ~I); and
WI-iERE./\S, under Suppler::ental Agreement No. 3 to Contract NOy-13300, entered
into as of December 11, 1947, the Authority has been in possession and use of
tbe Aqueduct on an interim basis from January 1, 19l~e to December 31, 1951, and,
in considerntion thereof, has paid $1,000,000 to the Govcrnmont; and
\1HB:REAS, pursuant to ContrLlct NOy-13300, the Government delivered and the
Authority roceived possession of t"h.C:.' Aqueduct on January 1, 1952; and
WHERE!\S ,> under PUI'1ic La\{ 171 of the e2nd Congress, the Secretary of the
Navy was autho!'izcd, upon amendment of Contract NOy-13300 3S therein set forth,
to provide for the construction of n new aaueduct (hereinafter ctilled the 113(:..
cond Barrel") paralleling tlle existing Aqu~duct; e.nd
IfHEREAS, subject to the continued availability of authority and appropria-
tio112" the Government is prepared (without guaranty, warranty or any other lia-
bility on its part in connection tllc:reui th) to ll!1clertake tr.e construction at its
own expense of the Second Barrel in accorrlance with such plans, d.ravlings and
specificutions as the Contracting Officer (after such consultation with the
Authority as he qhall clec;m 8J;lpropriate) shall in his sole and exclusive discretion
approve for the pu~pose of ~ro~iding an estimated rated capacity of not less
than npproxir::mtely 80 cubic feet per seconrl, at an estimated cost not exceeding
$l.S, 000,000. (All of the foregoing being matter of description and not of guar-
anty, 1-rarranty or representation on the part of' the Governn'.ent);
NOH THEREFORE, it is i'1utually aGreed ti,at Contract rWy-13300, as heretoforo
supplC'":1ented anl1 [',odi=~ied b~c Sup})ler'lental Agreements 1, 2 and 3, be and it here.-
by is further supplemented and amended as follo~.;s:
1.. TIle Gov(:rnrr~ent, its contractors, a~d their successors, ass:i~gns.. offi-
cers, agcl!ts anrl enployees, sl:.all Love the l""ig!:t, f'rc.;e of i.'ental or sin1iltJ.r
charge a:-:.(l \,rithout being cO':lsidercd i'.1 default or violation o:i:' an~T of the provi-
sions of Contract NOy..l:L300, to enter upon the Aqueduct for t:b.c purpose of con--
structing and :1Llintaining t~.!C Second Barrel: 3.~d the Authority shall at all
tii1les cooperate vith t'ne Govcrnrnent, its contractors and thei:- successors) as-
signs, ol'ficErs, agents a:ld. employees as ;'1FlY be r28.sonably necessary and ,:1pp:~O".
printc for t~~.e construction of the Seco~d barrel. The Autliori ty shall 31so
procure, dud be rcspOiH.:iiJlc: for, such cooperation of' the Metropolitan fdatcr Dis-
trict uf Southc:'n CalifornL::, 8.3 :l;.J.Y be rCBsonably necessary and nppropriat...:; for
the c'JTlstrllcti on, rrlaL1teaance and opera.tiall of thE: Sl:co~d Barrel.
2. Upon comple:ticm of tt.c Second Bt~rrc:l, 2.:: detcr~;:incd by the Contracting
Officer, tLc Goveruncnt s;~jQ11 deli "IIcr tll..:.; possession thereof to the Authority
for USI:: in its i-later systern and upon the fc)11ovTi:..1g lease: basis:
(,,) The provisions of Article 1, subdivision (b), paragraphs (i),
(ii) m1d (vt), and of l~rticle 3, of Contrsct NOy-13300 (is heretofore
3up}lc;:1'.cnted, cXc, witt'. tllL' substi tutiOl1 of 11Soconil Barrell! for
1I :\quc;c1uct 11 and lI:\uthoritylT for "ei tyll hereby incorporuted herein Dnd
il:ade npplicable to the Seco:-J.w, Be;.rrel; provided ho'..r8ver, that the to-
ti~11 cost to t~le Govc:rm~1Cnt c! the: Second Barrel shall il1clude i-jll
co::cts incidental to tJ1e developmc'tlt ot' t:Jc 'plo.Ds) dr3i.Jings and speci<-
{iCi-:ttions tll.crefor, excc}?t such costs ~J.S have -oecn or may b.::; 3ctvQnccd
l)y t),c Authority pursuad to Contracts Symbol Nos. 1761'--500 [met 176r-
701, rc;specti vcly, entered into i\}?ril 2:5, 1949 2.nd November 9, 19:51,
i:iC.t'dCCll the Autr;.ori ty i1nd the Gove;:,n~.cnt.
(i,) At tbe end of the first qunrter ~J.ft2r completion and. deliv..::ry
of po.'3scssion of the Seco~'ld Barrel to the Authority and qU3rtcrly thero--
e.fter, tIle Autb.ori ty 8h311 pay to tIle Govc:t'l1r:1cmt as rental under this
lease: Oiic-one l;'L~!ldrcrl and .3i::-:tieth (lll,60th) part of the full amount
of tllC true cost o~ the Second Burrel (as berein defi~led). In the
C'lcnt tlJat the truE:: cost shall not lx~ dcte:cmj_~ccl 'at the ti::1,C of the
cOP.:)letio!1 [~nd de'livery of possession of tb.s Second B3rrel he:reund2r,
the parties hereto s;lO.ll pi:'ocC'cd upon the basis of true cost 8.8 csti-
li:ntcd by tl:c Contra,:::ting Officer, 8ur,.ject to ndjustrne~~t of the Ggr'2ed
i~lst:J.l(ncnt payrncnts hCrel.P1clc:r i.,Then true cost shall 1)(; finally o.eter-
~-d'lerl. In adclition, tb,e Authority Sh811 })ay uith encL quartorly
2.
instalment of rent a sur:~ representing interest on the balance of
such true cost re~aining after deducting therefrom the amount of
all rental instalments theretofore paid hereunder, such interest
to be coolputed at a rate of per cent per annum. The
rental and interest providcd hereunder for tl1e Second Barrel shall
be in addition to the annual rental of $500,000.00 provided for tl1e
Aqueduct under Article I, subdivision (b), of Contract NOy-13300,
vllich rental shall continue to be paid in accordance therewith
until the remaining balance of the true cost of the Aqueduct is
paid in full.
(c) Paragraph (iv) and (v) of Article I,subdivision (b) of
Contract NOy-13300 as heretofore supplemented are hereby canceled
and in lieu thereof it is agreed. that the lease of the Second Bar-
rel and the lease of the Aqueduct sl,all continue until sue!; time
as the ,~utl:ori ty has paid to the Government in rentals tl1e full
aliJOunt of the true cost to the Government (as defined for tl1e
Aquedust in Contract NOy-13300 as heretofore supplemented and as
defined berein for the Second Barrel) of the Aqueduct and the
Second Barrel. Tte Authority at its option shall have the right
at any time to pay in advance any portion of the true cost then
unpaid, with accrued interest to date of payrtent, and in the event
of such advance paysent the instalDents remaining, if any, shall
-I)e reduced to provide for equal instalnents tbrougbout the remaining
lease period. Upon completion 0; pa~ncnt of rentals oy the Au-
thority to the Gover~Dent in 8~ounts equal to the sum of the true
cost of the Aqueduct and the true cost of the Second Barrel, and
of all interest due in connection vith the Second Barrel, the lease
of tl1e Aqueduct and the lease of the Second Barrel shall terninate
and. t~le Goverur:1.cnt shall convey to the Authority, or its assigns,
all of its rights, title and interest in and to the Aqueduct and
tbc Second Barrel and tl:eir appurtenances.
3. This agreement shall be of no force and effect until and unless The
City of San Diego, The City of Chula Vista, the Fallbrook Public Utility Dis-
trict, the Lakeside Irrigation District, the La 't1CSOl, 1..0:--'0:1- Gro-v-e~ 1j.nd Spring
Valley IrriGation District, the City of National City, ti.le City of Oceanside,
the Cit~,. of Escondida, the San Dieguito Irrigation District, and the Santa Fe
Irrit';ation District, com"Drisir..C; all of the mCl":lber agencies of the Authority,
shall f.:ntcr into t11c annexed. collateral agreel'1ent obligating each such PlemLer
agency for itself individually) and its successors and assigns, as distribu-
tors of the vater, on and after the effective date of this Suppleclental Agree-
Clent, tG furnish to the Governnent on a preferential basis and at a rate no
higher than tllat charged to the users of coelparable quantities ot' water, a
quantity of water sufficic!1t to meet the requirenents of Government activi..
ties located and to be locatecl in the corporate area served by each such member
agency.: provided however, that each such m.erlber agency shall in no event be
obligated for any quantity of Hater in excess of the quantity to Hhich such
3.
member agency shall be entitled (in the absence of default on the part of such
member agency in its obligations to the Authority or the District) or permitted
to receive from the Authority or its successor, whether by firm right or by
sl'.ares in surplus ,{uter. In the event of any inability, failure or failures on
the part of any such member agency to comply with the collateral agreement,
the Authority immediately upon notice of such inability or failure, and as
long and as often as may be necessary, shall make available to the Government
at the Tate cLarged such defaulting member agency, a sufficient quantity of
water to remedy and supply the default or deficiency of such member agency in
complying with its agreement; provided hm-rever, that the Authority shall in no
event be obligated hereunder for any quantity of -water in excess of the quan-
tity which such defaulting mer"ber agency shall be entitled (in the absence of
default on the part of such ",ember agency in its obligations to the Authority
or the District) or permitted to receive from the Authority or its successor,
whether by firm right or by shares in surplus water; and provided further that
the Authority shall not be obligated to deliver water hereunder to al1Y point
teyond the Aqueduct or Second Barrel but the Government shall have the right
to estalllish and maintain at its own expense any connection and other facilities
required for the receipt and distribution of such water beyond the Aqueduct and
Second Barrel. The Authority shall require any ne't! L:1eniber agency bereafter ad-
mitted, as a condition of adnission to membership in the Authority, to subscribe
and el,ter into the annexed collateral agreement.
If. Nei ther this Supplei:wntal Agreement No. 4 or any interests therein
nor any claim arising thereunder sball be traDs:ferred by the Authority to any
party or parties without the written approval thereto of the Governnent; pro-
vided hovr8ver, ttat the Govern:,"lent will consent to the assignncnt of the
Authority's rie;hts and interests herein to the Metropolitan Water District of
Southern California upon such terms and conditions as I:1ay then be deer:.ed. reason-
able by the contracting officer for the purpose of preserving ttee i'1tent of
this agreer.1cnt 8!ld the protection of the Government 1 s interests therein; pro-
vided furtl'.er that in the event that that portion of the Second Bm'rel lying
nart:'eTly of Station 1702/80, Y and D Drmring No. 386014, shall be transferred
or assigned to t:he District, t:he District, upon its acceptm::..ce of sw;:h transfer
or assign7":lent, shall be obligated wi thin its statutory authority to furnish to
t~~e Gover:T~;1..e1.1t any Hater avs.ilable tlLTouGr~ such portion of the Second. Barrel,
requireu for use of Government activities; provided, however) that the District
shall not ;:.e obligated to furnish any water hereunder at a rate in excess of
the C8.pacity of such portion of the Second Barrel over and above 80 cubic feet
per seconcl and in no event at a rate in excess of 25 cubic feet per second;
and ~rovidc:rl further th8.t such water shall be furnished pursua!lt to contract
betvleen the District and the Govern!:iCnt provid_ing for reasonable r[1.tes and
other terms pursuant to statutory authority of the District.
5. The use of all water diverted throus;h the Aqueduct and the Second
Barrel 1'rOE\ tlee Colorado River sh:oll be subject to and controlled by the Colo-
rado River Co'"pact, the Bou1cleT Canyon PToject Act, the California Self -Limi ta-
tion Statute and the Mexican Water Treaty and shall be included within and shall
4.
in no Hay increase the total. quantity of water to tbe use of which the State
of C"lifornia is entitled and lioli ted by the sai,1 compact, treaty and sta-
tutes.
6. All of the provisions of Articles I., 5, 6, 7, 8, 9, 10 anrl 11 of
Contract NOy--13300 as heretofore supplemented are , with the substitution of
IISccoD(l Barrel II for IIAqueduct 11 and lI1\uthori t~/I for !lei tyll, hereby incorpora-
terl herein and made a:9plicable to tbe Second Barrel; provicled hO'Never, th_ot
upon t1l<o exercise by the Government of any right of reentry or termination
under the lease of the AquerIuct or the lease of' the Second Barrel, the Aque-
c.uet and the Second Barrel, together ;ri th all replacements and improvements,
shall be promptly re-delivered by the Authority to the Governaent free of
encum.brance and in as good condition as wben delivered to the Authority,
reasonable wear and tear excepted; provided further, that notwithstanding
the exercise by the Government of any rir;bt of reentr:y. or termination under
the lease of tl1e Aqueduct or the lease of the Second Barrel, the Authority
shaU continue to be liable for all remaining instalments of' rental and in--
tel"Cst due under Contract NOy-13300 as heretofore suppler,lented for the Aque--
duct and hereunder for the Second Barrel; provided further, that after any
reentr~r or repossession of the Aqueduct or Second Barrel by the Government,
the Authority shall from time to tin:e, on demand, reimburse the Government
for all costs (tog2tl:e,: with overhead and interest as provided in Article 1
(b) (i) of Contract NOy-13300) of f'laintenance, rel,air, replacement, recon-
struction and operatio!l of the Aqueduct and Second Barr(.l during any period
or periods of such Goverm~lent r8entry and repossession. At such time as the
defualt or failure of p2rfornance froEl wLich such reentry or repossession
results is fully corrected or perforl;wd by the Authority to the satisfaction
of the Contracting Officer, and the costs, overhead and interest resulting
from such reentry or repossession as l:crein provided have been fully reim-
bursed, )oBsession of the Aqueduct anrl the Second Barrel pursuant to the
provisions of this contract shall be returned to tllc Authority to the same
extent and with the same force and effect as though such reentry or repos-
sessio!1 bad not existed.
7. (a) The Govern''lent ,"ny, by written notice to tlle Authority,
terminate the right of the Authority to pyocce:d under
this contract if it is found, after notice and hearing,
by the S€Cretal~Y or his duly authorized representative,
that gratuitics (in the form of cntertainrllcnt, gifts,
or other1{ise) Here offered or given by the Authority,
or any agent OX' rcprcsentati VI:; of the Authority, to
any officer or eoployee of the Govcrru~cnt with a view
t01,arrl securing a coatract Gr securing favorable treat-
ment "Ji th respect to the awardinG or arlending, or the
!""'laking of e.ny deter:":iinations with respect to the perfoTo-
ing, of such contract; prc:vided, that the existence of
trl<: facts upon which the S\3cretary or his duly author-
ized representative i::akcs such findings shall be in is-
sue and :',16.;/ be reviewed in any COl7;.petent court.
5.
(b) In the event this contract is terminated as pro-
viderr in paragraph (1) hereof, the Government
shall be entitled (i) to pursue the same remedies
against the Authority as it could pursue in the
event of a breach of the contract by the Authority,
and (ii) as a penalty in addition to any other'
damages to which it may be entitled by law, to
exempl&ry damages in an amount (as deteTD1ined by
the Secretary or his duly authorized representative)
which shall not be less than three nor more than ten
times the costs incurrerr by the Authority in provid-
ing any such gratuities to any such officer or em-
ployee.
(c) The rights and remedies of the Government provided
in this clause shall not 1e exclusive anC'J.. are in
addition to any other rights and remedies pTovidecl
by law or uDc:.er this contract.
8. (a) The Authority agrees that the Contracting Officer, at
any time during the life of this contr3ct, and the
Comptroller General of the United States or any of
his duly aut:lOrizerl rcpresentatives, until the expira-
tion of three years after final payment under this
contract, shall have access to and the right to
examine any directly pertinent books, documents,
papers, and records of the Authority involving tran-
sactions related to this contract.
(b) The Authority further agrees to include the follow-
ing provision, with appropriate insertions, in all
his subcontracts hereuncler: (rTam2 of' subcontractor)
agrees that tLe Comptroller Gel1eeral of the United
States or any of his duly authorizeed ree"reesentatives
shall, until the expiration of three years after
final pa~"ent under prime contract (NOy-13300) bee-
tween the United States of America and the San Diego
County Water Authority have access to and the right
to examine any directly pertinent boolts, docurclents,
papers and records of (Name of subcontractor) in-
volvinG transactions related to this Contract.
(c) Subject to applicable Federal 1m,s and regulations,
the proper officers or agents of the Authority shall
have full ancl free access at all reasO!1able times to
the books and records of the Contracting Officer, or
the Bureau of Hc:clamation, as far as tb_ey relate to
matters covered by this contract, -Hi th tbe right at
any time during offic€ hours to make copies of or
fro:;1 the same.
6.
.'
9. (a) The term "Secretary" means the Secretary, the Under
Secretary, or any Assistant Secretary of the Depart-
ment and the head or any assistant head of the exe-
cutive agency; and the term "his duly authorized
representative" means any person or persons or board
(other than the Contracting Officer) authorized to
act for the Secretary.
(b) The term "Contracting Officer" means the person exe-
cuting this contract on behalf of the Government,
and any other officer or civilian employee who is a
properly designated Contracting Officer; and the
term includes except as otherwise provided in this
contract, the authorized representative of a Con-
tracting Officer acting within the limits of his au-
thori to'.
10. It is further agreed that this Supplemental Agreement No. 4 shall
be deemed a modification or act affecting Contract NOy-13300 within the
meaning and sub,ject to the provisions of Clause 5 of Supplemental Agree-
ment No.1 to Cont'cact NOy-13300.
11. Inasmuch as the Secretary of the Navy, under the direction of the
Secretary of Defense, has been authorized by Congress to construct the
Second Barrel, the Authority shall pay the ar.lOunt of Fe(Ieral funds expended
for the investigation of the Second Barrel into the special fund in the
Treasury of the United States designated as "the reclamation fund", as pro-
vided in Article 8 of the contract between the Authority and the United
States dated April 25, 1949 (S~bol and No. I76r-500).
12. At any time prior to the letting by the Goverrunent of any contract
for construction of the Second Barrel (including the procurement of supplies
and equipment required therefor) or the incurring by the Government of any
obligation pertaining directly to the construction of the Second Barrel, the
Authority shall have the right to withdraw from the provisions of this con-
tract by filing written notice of such withdrawal with the Chief of the
Bureau of Yards and Docks, signed by its General Manager and Chief Engineer
pursuant to authorization of its Board of Directors, copy of which shall be
fOrlf8rrled '.Ii th the foregoing notice; provided however, that all costs in-
curred by the Government in connection with the design and construction of
the Second Barrel prior to fifteen days after receipt of such notice of with-
drmml shall bc paid by the Authority. In the event of the filing of such
notice of withdrawal the Authority shall not be liable for any costs incur-
red in connection with the Second Barrel subsequent to fifteen days after
the date of the receipt of such notice by the Chief of the Bureau of Yards
and Docks. The Government agrees to use its best efforts to avoid or reduce
costs after receipt of such notice, but in any event the obligation of the
Authority to pay costs as provid,ed hereunder shall not be reduced or other-
wise affected by reason of fault or default in this respect on the part of
the Government.
7.
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