Free Response to Cross Motion [Dispositive] - District Court of Federal Claims - federal

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EXHIBIT E

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SUMMARY OF SHORTAGE PROVISIONS IN CERTAIN CVP CONTRACTS

"(a) There may occur at times a shortage during any year in the quantity of water available for furnishing to the District by the United States pursuant to this contract through and by means of the Project, but in no event shall any liability accrue against the United States or any of its officers, agents, or employees for any damage, direct or indirect, therefrom." Contracts with this provision: Contracting Contract Entity Number Mercy Springs 14-06-200Water District 3365A

Contract Date 6/21/1967

Amount of Water Up to 13,300 acre-feet/year

Use Type (Ag v. M&I) Ag

"(a) There may occur at times during any year a shortage in the quantity of water available for furnishing to the Contractor by the United States through and by means of the Project, but in no event shall any liability accrue against the United States or any of its officers, agents, or employees for any damage, direct or indirect, therefrom." Contracts with this provision: Contracting Contract Entity Number Kanawha 14-06-200-466Water District A

Contract Date 4/15/1977

Amount of Water 11,250 ­ 45,000 acre-feet/year

Use Type (Ag v. M&I) Ag and M&I

"(a) There may occur at times during any year a shortage in the quantity of water available for furnishing to the Contractor by the United States through and by the means of the Project, but in no event shall any liability accrue against the United States or any of its officers, agents, or employees for any damage, direct or indirect, therefrom." Contracts with this provision: Contracting Contract Entity Number Gravely Ford 1-07-20-W0242 Water District

Contract Date 6/28/1981

Amount of Water 3,000-14,000 acre-feet/year

Use Type (Ag v. M&I) Ag

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"(a) There may occur at times during any year a shortage in the quantity of water available for furnishing to the District through and by means of the Project, but in no event shall any liability accrue against the United States or any of its officers, agents, or employees for any damage, direct or indirect, therefrom." Contracts with this provision: Contracting Contract Entity Number Reclamation 14-06-200District 1606 3802A

Contract Date 11/28/1967

Amount of Water 342 acrefeet/year

Use Type (Ag v. M&I) Ag only

"There may occur at times a shortage during any year in the quantity of water available to the Agency pursuant to this contract through and by the means of the Project, but in no event shall any liability accrue against the United States or any of its officers, agents or employees for any damage, direct or indirect therefrom, either to the Agency, its contractors, or others." Contracts with this provision: Contracting Contract Entity Number Centerville 14-06-200Community 3367A Service District Shasta County 14-06-200Water Agency 3367A

Contract Date 6/30/1967

Amount of Water Up to 5,000 acre-feet/year

Use Type (Ag v. M&I) M&I

6/30/1967

Up to 5,000 acre-feet/year

M&I only

"There may occur at times a shortage during any year in the quantity of firm water available for furnishing to the City by the United States pursuant to this contract on account of drought, errors in operation, or other causes but in no event shall any liability accrue against the United States or any of its officers, agents, or employees from any damage, direct or indirect, arising therefrom." Contracts with this provision: Contracting Contract Entity Number City of 14-06-200Coalinga 4173A

Contract Date 10/28/1968

Amount of Water Up to 10,000 acre-feet/year

Use Type (Ag v. M&I) M&I only

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"There may occur at times a shortage during any year in the quantity of water available for furnishing to the District by the United States pursuant to this contract on account of drought, errors in operation, or other causes but in no event shall any liability accrue against the United States or any of its officers, agents, or employees from any damage, direct or indirect, arising therefrom." Contracts with this provision: Contracting Contract Entity Number Avenal 14-06-200Community 4619A Services District Contra Costa I75r-3401 County Water District

Contract Date 11/20/1969

Amount of Water Up to 3,500 acre-feet/year

11/9/1970

Up to 195,000 acre-feet/year

Use Type (Ag v. M&I) M&I unless obtain written authorization first Ag

"(a) There may occur at times during any year a shortage during any year in the quantity of diversion and Project water available to the Agency pursuant to this contract on account of drought, errors in operation, or other causes but in no event shall any liability accrue against the United States or any of its officers, agents, or employees for any damage, direct or indirect, arising therefrom." Contracts with this provision: Contracting Contract Entity Number Placer County 14-06-200Water Agency 5082A

Contract Date 9/18/1970

Amount of Water Up to 120,000 acre-feet/year

Use Type (Ag v. M&I) Ag and M&I

"There may occur at times during any year a shortage in the quantity of water available for furnishing to the District through and by means of the Project , but in no event 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." Contracts with this provision: Contracting Contract Entity Number Westlands 14-06-200Water District 495A Tranquility 14-06-200Irrigation 701A District

Contract Date 6/5/1963 12/23/1963

Amount of Water 1,008,000 acrefeet/year 20,200 to 15,700 acre-feet/year + 13,800 acrefeet/year suppl.

Use Type (Ag v. M&I) Ag only Ag; but suppl. water may be used for M&I

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"There may occur at times a shortage during any year in the quantity of water available for furnishing to the District by the United States pursuant to this contract through and by means of the Project and in no event 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 operations, drought, or other causes." Contracts with this provision: Contracting Contract Entity Number Keswick 14-06-200Community 1307A Services District

Contract Date 9/16/1964

Amount of Water Up to 500 acrefeet/year

Use Type (Ag v. M&I) M&I only

"(a) On account of drought, errors in operation, or other causes there may occur at times a shortage during any year in the quantity of water available for furnishing to the District by the United States pursuant to this contract through and by means of the Project, and in no event shall any liability accrue against the United States or any of its officers, agents, or employees for any damage, direct or indirect arising therefrom.." Contracts with this provision: Contracting Contract Entity Number Feather Water 14-06-200District 171-A

Contract Date 6/26/1962

Amount of Water Up to 20,000 acre-feet/year

Use Type (Ag v. M&I) Ag

"There may occur at times during any year a shortage in the quantity of water available for furnishing to the District by the United States pursuant to this contract through and by means of the Project and, except for the adjustment provided for in subdivision (b) of this article, in no event 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 other causes." Contracts with this provision: Contracting Contract Entity Number International 14-06-200Water District 585A

Contract Date 8/23/1963

Amount of Water Up to 1,200 acre-feet/year

Use Type (Ag v. M&I) Ag

"(a) There may occur at times a shortage during any year in the quantity of water available for furnishing to the District through and by means of the Project, but in

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no event 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 other causes. Contracts with this provision: Contracting Contract Entity Number James 14-06-200-700Irrigation A District

Contract Date 12/23/1963

Amount of Water 7,600-9,700 acre-feet/year plus 35,300 acre-feet/year of suppl. water

Use Type (Ag v. M&I) Ag and M&I

"(a) Notwithstanding any other provisions in this contract, the United States shall be obligated to deliver water hereunder only at times and in quantities for which facilities and water are available, as conclusively determined by the Contracting Officer. (b) There may, occur at times during any year, a shortage in the quantity of Project water to be made available for delivery to the Contractor pursuant to this contract. In no event shall any liability accrue against the United States, the State, or any of their officers, agents, or employees for any damage, direct or indirect, arising from such a shortage on account of errors in operation, drought, or any other cause." Contracts with this provision Contracting Contract Entity Number Tri-Valley 14-06-200Water District 8565A

Contract Date 8/5/1976

Amount of Use Type (Ag Water v. M&I) Up to 982 acre- Ag and M&I feet/year

"(a) The United States shall use all reasonable means in its operation and management of the Project to make full supplies of Project Water specified in this contract available to the Contractor during the Year. If, nevertheless, the United States is unable to make such full supplies available to the Contractor during the Year on account of drought, errors in operation, or other causes, the Contractor shall hold the United States, its officers, agents and employees harmless from any and all liability and/or damages arising therefrom Contracts with this provision: Contracting Contract Entity Number City of Shasta 4-07-20Lake W1134

Contract Date 3/1/1994

Amount of Water Up to 2,750 acre-feet/year

Use Type (Ag v. M&I) M&I

"(a) There may occur at times a shortage during any year in the quantity of water available for furnishing to the District by the United States pursuant to this contract through and by means of the Project and in no event shall any liability accrue against the United States or any of its officers, agents or employees for any

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damage, direct or indirect, arising from a shortage on account of errors in operation, drought, or unavoidable causes." Contracts with this provision: Contracting Contract Entity Number San Juan 14-06-200Suburban 152A Water District West Stanislaus Irrigation District 14-06-2001072

Contract Date 6/19/1962

Amount of Water Up to 40,000 acre-feet/year

7/14/1953

Up to 20,000 acre-feet/year

Use Type (Ag v. M&I) Ag at $2.25 per acre-feet/year; M&I at $9 per acre-feet/year Ag

"(a) There may occur at times a shortage during any year in the quantity of water available for furnishing to the District by the United States pursuant to this contract through and by means of the Project, but in no event 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 unavoidable causes." Contracts with this provision: Contracting Contract Entity Number Colusa County 14-06-200-304Water District A

Contract Date 11/14/1962

Amount of Water Up to 45,400 acre-feet/year

Use Type (Ag v. M&I) Ag only

"(a) There may occur at times a shortage during any year in the quantity of water available for furnishing to the District by the United States pursuant to this contract through and by means of the Project and, except for the adjustment provided for in subdivision (b) of this article, in no event 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 unavoidable causes." Contracts with this provision: Contracting Contract Entity Number Garfield Water 14-06-200District 3421

Contract Date 7/24/1961

Amount of Use Type (Ag Water v. M&I) Up to 3,500 acre- Ag feet/year

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"(a) There may occur at times a shortage during any year in the quantity of water available for furnishing to the District by the United States pursuant to this contract through and by means of the Project, but in no event 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 operations, drought, or other unavoidable causes." Contracts with this provision: Contracting Contract Entity Number Dunnigan 14-06-200-399Water District A Westside 14-06-200Water District 8222-A

Contract Date 2/5/1963 9/16/1964

Amount of Water Up to 19,000 acre-feet/year Up to 25,000 acre-feet/year

Use Type (Ag v. M&I) Ag only Ag

"(a) There may occur at times a shortage during any year in the quantity of water available for furnishing to the District by the United States pursuant to this contract through and by means of the Project and in no event 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 operations, drought, or other unavoidable causes." Contracts with this provision: Contracting Contract Entity Number Del Puerto 14-06-200-922 Water District

Contract Date 6/10/1953

Amount of Water Up to 10,000 acre-feet/year

Use Type (Ag v. M&I) Ag only

"Investigations by the United States of the streamflow of the Sacramento River, the Trinity River, the American River, and the San Joaquin River and their tributaries indicate that there will be available for furnishing to the District hereunder the quantities of water herein specified in Article 3 to be furnished by the United States and accepted and paid for by the District. There may, however, occur at times a shortage during any year in the quantity of water available for furnishing to the District by the United States pursuant to this contract through and by means of the Project, and in no event shall any liability accrue against the United States or any of it officers, agents or employees for any damage, direct or indirect, arising from a shortage on account of errors in operation, drought, or unavoidable causes. Contracts with this provision Contracting Contract Entity Number Corning Water 14-06-200-6575 District Westside 14-06-220-8222 Water District

Contract Date 8/1/1957 3/16/1960

Amount of Water Up to 25,300 acre-feet/year Up to 22,100 acre-feet/year

Use Type (Ag v. M&I) Ag only Ag only

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"In its operation of the Project, the United States will use all reasonable means to guard against a condition of shortage in the quantity of water available to the Contractor pursuant to this contract. Nevertheless, if a shortage does occur during any year because of drought, or other causes which, in the opinion of the Contracting Officer, are beyond the control of the United States, no liability shall accure against United States or any of its officers, agents, or employees for any damage, direct or indirect, arising therefrom." Contracts with this provision: Contracting Contract Entity Number Stockton East 4-07-20-W0329 Water District Central San 4-07-20-W0330 Joaquin Water Conservation District Glide Water 7-07-20-W0040 District

Contract Date 12/19/1983 12/19/1983

Amount of Water 75,000 acrefeet per year 80,000 acrefeet per year

Use Type (Ag v. M&I) Ag and M&I Ag

6/20/1977

2,600-10,500 acre-feet/year

Ag and M&I

"(a) In its operations of the Project, the Contracting Officer will use all reasonable means to guard against a condition of shortage in the quantity of Project Water available to the Contractor pursuant to this contract. Nevertheless, if a shortage does occur during the term of this contract because of drought, or other causes which,

in the opinion of the Contracting Officer, are beyond the control of the United States or any of its officers, agents, or employees for any damage, direct, indirect, arising therefrom,"
Contracts with this provision: Contracting Contract Entity Number City of Shasta 2-07-20Lake W1024 Contract Date 5/27/1993 Amount of Water Up to 2,750 acre-feet/year Use Type (Ag v. M&I) M&I

"(a) The United States shall use all reasonable means in its operation and management of the Project to make full supplies of Project Water specified in this contract available to the Contractor during each year. If, nevertheless, the United States is unable to make such full supplies available to the Contractor in any Year on account of drought, errors in operation, or other causes which the Contracting

Officer have determined are beyond the control of the United States, the Contractor shall hold the United States, its officers, agents, or employees harmless from any and all liability and/or damages arising therefrom,"
Contracts with this provision: Contracting Contract Entity Number City of Shasta 04-07-20Lake W1134-IR2 Contract Date 3/10/1995 Amount of Water Up to 2,750 acre-feet/year Use Type (Ag v. M&I) M&I

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City of Shasta Lake

4-07-20W1134-IR3

10/7/1997

Up to 2,750 acre-feet/year

M&I

"(a) The United States shall use all reasonable means in its operation and management of the CVP to make full supplies of CVP water specified in this contract available to the District each Year. If, nevertheless, the United States is unable to make such full supplies available to the District in any Year on account of drought, errors in operation, or other causes which the Contracting Officer has determined are beyond the control of the United States, the District shall hold the United States its officers, agents and employees harmless from any and all liability and/or damages arising therefrom. Contracts with this provision: Contracting Contract Entity Number Contra Costa I75r-3401 Water District

Contract Date 5/26/1994

Amount of Water Up to 195,000 acre-feet/year

Use Type (Ag v. M&I) Primarily M&I

"In its operations of the Project the United States will use all reasonable means to guard against a condition of shortage in the quantity of water available to the District pursuant to this contract. If, nevertheless, a shortage does occur during any year on account of drought, errors in operation, or other causes which, in the opinion of the Contracting Officer are beyond his control, in no event shall any liability accrue against the United States or any of its officers, agents or employees for any damage, direct or indirect, arising therefrom. . . . Provided, That the foregoing shall not affect the obligations of the United States under contracts entered into for water service in other areas prior to the execution of this contract or under water rights settlements." Contracts with this provision Contracting Contract Entity Number East Bay 14-06-200Municipal 5183A Utility District

Contract Date 12/22/1970

Amount of Water Up to 150,000 acre-feet/year

Use Type (Ag v. M&I) Ag and M&I

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"(a) In its operations of the Project the United States will use all reasonable means to guard against a condition of shortage in the quantity of water available to the Contractor pursuant to this contract. If, nevertheless, a shortage does occur during any year on account of drought, errors in operation, or other causes which, in the opinion of the Contracting Officer, are beyond the control of the United States, in no event shall any liability accrue against the United States or any of its officers, agents or employees for any damage, direct or indirect, arising therefrom: Provided, That nothing contained herein shall be construed as an assumption of liability by the Contractor with respect to such matters. . . . Provided, That the foregoing shall not affect the obligations of the United States under contracts entered into for water service in other areas prior to the execution of this contract or under water rights settlements." Contracts with this provision Contracting Contract Entity Number San Luis 14-06-200Water District 7773A Panoche Water 14-06-200District 7864A

Contract Date 6/18/1974 8/30/1974

Amount of Water 80,000-128,000 acre-feet/year 80,000-94,000 acre-feet/year

Use Type (Ag v. M&I) Ag; M&I subject to add'l terms Ag, but can use for M&I subject to add'l terms

"(a) In its operations of the Project the United States will use all reasonable means to guard against a condition of shortage in the quantity of water available to the Contractor pursuant to this contract. If, nevertheless, a shortage does occur during any year on account of drought, errors in operation, or other causes which, in the opinion of the Contracting Officer, are beyond the control of the United States, in no event shall any liability accrue against the United States or any of its officers, agents or employees for any damage, direct or indirect, arising therefrom: Provided, That nothing contained herein shall be construed as an assumption of liability by the Contractor with respect to such matters: Provided further, That the foregoing shall not affect the obligations of the United States under contracts entered into for water service in other areas prior to the execution of this contract or under water rights settlements." Contracts with this provision Contracting Contract Entity Number City of Tracy 14-06-2007858A

Contract Date 7/22/1974

Amount of Water 1,000-10,000 acre-feet/year

Use Type (Ag v. M&I) M&I

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"In its operations of the Project the United States will use all reasonable means to guard against a condition of shortage in the quantity of water available to the District pursuant to this contract. If, nevertheless, a shortage does occur during any year on account of drought, errors in operation, or other causes which, in the opinion of the Contracting Officer, are beyond his control, in no event shall any liability accrue against the United States or any of its officers, agents or employees for any damage, direct or indirect, arising therefrom."

Contracts with this provision: Contracting Contract Entity Number SMUD 14-06-2005198A

Contract Date 11/20/1970

Amount of Water Up to 75,000 acre-feet/year

Use Type (Ag v. M&I) M&I

"(a) In its operation of the Project, the Contracting Officer will use all reasonable means to guard against a condition of shortage in the quantity of Project Water to be made available to the Contractor pursuant to this Contract. Insofar as determined by the Contracting Officer to be practicable, the Contracting Officer will, in the event a shortage appears probable, notify the Contractor of such determinations as soon as possible.

(b) If there is a reduction in the total water supply available to the Contractor during any Year because of errors in physical operations of the Project, drought, or other physical causes beyond the control of the Contracting Officer or actions taken by the Contracting Officer to meet legal obligations, no liability shall accrue against the United States or any of its officers, agents, or employees for any damage, direct or indirect, arising therefrom, so long as actions based upon the opinions or determinations of the Contracting Officer are consistent with the standards of Article 18."
Contracts with this provision: Contracting Contract Entity Number San Juan 6-07-20-W1373 Water District Contract Date 4/8/1999 Amount of Water Up to 13,000 acre-feet/year Use Type (Ag v. M&I) M&I

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"(a) In its operation of the Project, the Contracting Officer will use all reasonable means to guard against a condition of shortage in the quantity of Project Water to be made available to the Contractor pursuant to this Contract. Insofar as determined by the Contracting Officer to be practicable, the Contracting Officer will, in the event a shortage appears probable, notify the Contractor of such determinations as soon as possible.

(b) If there is a reduction in the project water supply available to the Contractor during any Year because of errors in physical operations of the Project, drought, or other physical causes beyond the control of the Contracting Officer or actions taken by the Contracting Officer to meet the legal obligations, no liability shall accrue against the United States or any of its officers, agents, or employees for any damage, direct or indirect, arising therefrom, so long as actions based upon the opinions or determinations of the Contracting Officer are consistent with the standards of Article 18."
Contracts with this provision: Contracting Contract Entity Number Sacramento 6-07-20-W1372 County Water Agency Contract Date 6/8/1999 Amount of Water Up to 22,000 acre-feet/year Use Type (Ag v. M&I) M&I

"(a) In its operation of the Project, the Contracting Officer will use all reasonable means to guard against a Condition of Shortage in the quantity of water to be made available to the Contractor pursuant to this Contract. In the event the Contracting Officer determines that a Condition of Shortage appears probable, the Contracting Officer will notify the Contractor of said determination as soon as practicable. (b) If there is a Condition of Shortage because of errors in physical operations of the Project, drought, other physical causes beyond the control of the Contracting Officer or actions taken by the Contracting Officer to meet legal obligations then, except as provided in subdivision (a) of Article 18 of this Contract, no liability shall accrue against the United States or any of its officers, agents, or employees for any damage, direct or indirect, arising therefrom."
Contracts with this provision: Contracting Contract Entity Number Placer County 14-06-200Water Agency 5082A Reclamation 14-06-200District 1606 3802A-LTR1 International 14-06-200Water District 585A-LTR1 County of 14-06-200Madera 2406A-LTR1 Contract Date 2/26/2002 2/25/2005 1/20/2001 2/12/2001 Amount of Water Up to 35,000 acre-feet/year Up to 228 acrefeet/year Up to 1,200 acre-feet/year Up to 200 acrefeet/year Use Type (Ag v. M&I) Irrigation and/or M&I Irrigation and M&I Irrigation and M&I M&I

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Centerville Community Services District Garfield Water District Gravelly Ford Water District Dunnigan Water District

14-06-2003367X-LTR1 14-06-2009421-LTR1 1-07-20W0242-LTR1 14-06-200399-A-LTR1

5/10/2005

Up to 2,900 acre-feet/year Up to 3,500 acre-feet/year Up to14,000 acre-feet/year Up to 19,000 acre-feet/year

M&I

1/20/2001 1/20/2001 2/25/2005

Irrigation Irrigation Irrigation and M&I

"(a) In its operation of the Project, the Contracting Officer will use all reasonable means to guard against a Condition of Shortage in the quantity of water to be made available to the Agency pursuant to the Contract. In the event the Contracting Officer determines that a Condition of Shortage appears probable, the Contracting Officer will notify the Agency of said determination as soon as practicable. (b) If there is a Condition of Shortage because of errors in physical operation of the Project, drought, other physical causes beyond the control of the Contracting Officer or actions taken by the Contracting Officer to meet legal obligations then, except as provided in subdivision (a) of Article 18 of this Contract, no liability shall accrue against the United States or any of its officers, agents, or employees for any damage, direct or indirect, arising therefrom."
Contracts with this provision: Contracting Contract Entity Number Shasta County 14-06-200Water Agency 3367A-LTR1 Contract Date 5/27/2005 Amount of Water Up to 1,022 acre-feet/year Use Type (Ag v. M&I) M&I

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"(a) In its operations of the Project, the Contracting Officer will use all reasonable means to guard against a condition of shortage in the quantity of water to be made available to the Contractor pursuant to this Amendatory Contract. In the event the Contracting Officer determines that a Condition of Shortage appears probable, the Contracting Officer will notify the Contractor of such determinations as soon as possible.

(b) If there is a Condition of Shortage because of errors in physical operations of the Project, drought, other physical causes beyond the control of the Contracting Officer or actions taken by the Contracting Officer to meet legal obligations then, except as provided in subdivision (a) of Article 18 of this Contract, no liability shall accrue against the United States or any of its officers, agents, or employees for any damage, direct or indirect, arising therefrom."
Contracts that have this provision: Contracting Contract Contract Entity Number Date East Bay 14-06-200- 7/20/2001 Municipal 5183A-1 Utility District Amount of Water Up to 133,000 acre-feet/year at Freeport/Sac. River; up to 150,000 acre-feet/year at Site 5/Amer. River; up to 150,000 acre-feet/year at Station 666+50 on Folsom So. Canal Use Type (Ag v. M&I) M&I

"(a) In its operations of the Project, the Contracting Officer will use all reasonable means to guard against a condition of shortage in the quantity of Project Water available to the Contractor pursuant to this contract. Nevertheless, if a shortage does occur during the term of this contract because of drought, or other causes which,

in the opinion of the Contracting Officer, are beyond the control of the United States or any of its officers, agents, or employees for any damage, direct, indirect, arising therefrom,"
Contracts with this provision: Contracting Contract Entity Number City of Shasta 2-07-20Lake W1024 Contract Date 5/27/1993 Amount of Water Up to 2,750 acre-feet/year Use Type (Ag v. M&I) M&I

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