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HomeMy WebLinkAbout11/14/89 C A L I F O R N I A ~-~'~--~---~--~'-~'---~-~-.~_~--~~ ~~ ~ COMMUNI~ SERVICES DEPARTMENT 0~~ PAUL DOW, Mana~r -- ' ' ~ GENE B~ART, Dir~tor of W~ler Re~urces FLORN ~R~, A~i~ant Dir~or of Water Resour~s FRANK FABBRI, P~r~ Su~rintendent, 3~3117 JIM LEDOUX, R~re~tion Su~rJntendent, 32~3701 MIKE SIDE~, S~nitation Su~rinten~ent, 32~3114 MEETING NOTICE A Special Meeting of the City of Bakersfield Water Board will be held on Tuesday, November 14, 1989, at 5:00p.m., in the WATER RESOURCES CONFERENCE ROOM, 4101 Truxtun Avenue, Bakersfield. Call meeting to order. Roll Call - Board Members: Saivaggio, Chairman; Peterson, Ratty The following items will be discussed: i. Approve minutes of August 3, 1989. 2. Agreement with California Water Service Company to provide operations and maintenance services on City's domestic water system. FOR BOARD ACTION. 3. Request by Gregory Bynum, Bynum and Associates, to comvert two portions (approximately 2,300 lineal feet) of the Carrier Canal located west of Oak Street to concrete box culvert. FOR BOARD ACTION. 4. Mainline extension refund assignments. (FOR BOARD INFORMATION). 5. Adjournment. 'Gene ' ~ir~cto~ of Water Resources Posted: November 13, 1989 -7. 4101 TRUXTUN AVENUE o BAKERSFIELD, CALIFORNIA 93309 · (805) 326-3715 WATER BOARD - CITY OF BAKERSFIELD THURSDAY, AUGUST 3, 1989 5:00 P.M. WATER RESOURCES CONFERENCE ROOM 4101 TRUXTUN AVENUE The meeting was called to order by Councilman Salvaggio in the Water Resources Conference Room. The roll was called as follows: Present: Salvaggio (Chairman); Ratty Absent: Peterson Councilman Ratty made a motion for approval of the minutes of August 3, 1988 and June 1, 1989. Motion passed. Proposed annexations to the City's Domestic Water Service Area were brought before the Board by Mr. Core. Landowner and developer requests for water service have necessitated the need to expand the City's Domestic Water System boundaries to encompass lands that will be developed in the near future. The lands to be included in the service area were described by Mr. Core and depicted on a map that was included in the Board packet. After discussion, Councilman Ratty made a motion that the Water Board recommend City Council to adopt a Resolution to amend the boundaries of the City Domestic Water Service System. Motion passed. Mr. Bogart presented before the Board, for discussion, the draft agreement between the City of Bakersfield; State of California (De- partment of Water Resources) and the Kern County Water Agency to spread and bank water in the City's 2800 Acre recharge facility. The staff and Mr. Tom Stetson (Consulting Engineer) explained the text of the agreement and discussed with the Board what the City expects and hopes to achieve with the other parties. The request by Michael J. Hong to convert approximately 220 lineal feet of the Carrier Canal located east of Mohawk Street to a concrete box culvert was brought before the Board by Mr. Bogart. After a brief discussion, a motion for approval was made by Councilman Ratty. Motion passed. Staff presented proposals submitted by Leonard J. Schroeder, A.I.A.; Renfro-Russell & Associates, Inc.; Robert F. Stuhr, Inc.; and B.F.G.C. Architects Planners Inc. to provide architectural plans and specifications for the new water operations office to be located on Buena Vista Road. Following review and discussion of the proposals, a motion was made by Councilman Ratty to contract with Leonard J. Schroeder, A.I.A. to provide these architectural services. Motion passed. Florn Core gave a brief backround of the contract the City has with California Water Service Company which provides the maintenance and operation, and billing for the Domestic Water Division system. Mr. Core brought before the Board a revised draft agreement that would be presented to California Water Service Company for negotiation and finalization. When .......... this is accomplished the agreement-will be brought before the Board again for approval and recommendation to Council. For Board information Mr. Core presented Mainline Extension Agreements the City has with Carlo J. Pedron or Evelyn Gl Pedron, they have reassigned these Agreements to their living trust account. meeting adjourned at 5:58p.m. %he ~ ' Mark'Salvaggio,-Chai~a~ City of Bakersfield Water Board Sharon Robison, Secretary City of Bakersfield Water Board CITY AGREEMENT NO. DOMESTIC WATER OPERATIONS AGREEMENT TH~S AGREEMENT, dated , , by and between CITY OF BAKERSFIELD, a California municipal corporation I"Ci%y"), and CALIFORNIA WATER SERVICE COMPANY, a California public utility water corporation ("Company"), W I TNESSETH: WHEREAS, Company furnishes public utility water service throughout the State of California, including service to customers in the City of Bakersfield and surroundin9 unincorporated areas; and WHEREAS, City owns a domestic water enterprise whose facilities furnish service to approximately 14,000 customers in an area in the City of Bakersfield, and some areas in the unincorporated Country of Kern and which are contiguous to the west of Company's Bakersfield district as more par- ticularly shown on the service area map attached hereto as Exhibit A; and WHEREAS, City and Company have entered into prior agreements dated June 4, 1980 and March 22, 1982 under which Company has agreed to operate City owned domestic water facilities; and WHEREAS, Conditions and growth of the City system warrant certain changes in the operational criteria and the calculated method of payment to company for the operation of City system; and WHEREAS, City desires that Company, on City's behalf and as agent for City, continue to operate the facilities now so operated by Company within the Bakersfield Municipal Water System, including but not limited to the Ashe, Fairhaven, and Laborde Divisions (said facilities being hereinafter referred to as the "System":) and Company is willin§ to con- tinue such operation not as a public utility service but as agent for City and under the supervision of City, all in accordance with the provisions of this Agreement hereinafter set forth: (1) NOW, THEREFORE, the pardi-es hereto hereby agree as follows: 1. Term. The initial term of this Agreement shall be for three years commencing January 1, 1990, provided, however, that such term shall be renewed for successive three year periods each unless either party hereto shall notify the other on or before July 1, 1992, or on the July 1 thereafter preceding the end of any successive three year Agreement Period of its election to terminate this Agreement on the next succeeding December 31. In the event of such notice, this Agreement shall terminate on such next succeeding December 31 which coincides with the end of a three year Agreement term. 2. Operation of System. la) During the term hereof Company agrees, on City's behalf and as agent for and under the supervision of City, to operate the System and to do all acts reasonably necessary to furnish domestic water service to customers within the City system. Without limiting the generality of the foregoing and subject to the provisions of this Agreement, Company agrees to continue the daily operation of the System, to perform main- tenance and repairs thereon as needed from time to time, to render monthly bills on behalf of City to all customers receivin§ water from the System, to use reasonable efforts to collect all such bills on behalf of City, to pay all operation and maintenance expenses ("0 & M Expenses"), hereinafter defined, to compute the amounts of refunds on behalf of City where City is obligated to make refund under extension agreements heretofore or hereafter entered into by City relatin~ to the System, and in general to do such acts and perform such services as would City if it were operating the System. ~n this connection, Company agrees to operate and maintain the System in a manner similar to that in which i't operates its Bakersfield district, sub- ject, however, to the provisions of the Bakersfield Municipal Code, Title (2) 14, Chapters 14.04, 14.06, and 14.08 concerning domestic water matters, and in all respects to the provisions of this Agreement. (b) Company shall operate City System within the boundaries and service areas shown on the map attached as Exhibit A, whose boundaries and service areas may change from time to time by resolution of the City Council. Company shall be notified, in writing, of any changes in boun- dary or service areas within 30 days of such City Council action. 3. Transmitting Revenues. Company shall transmit on each busi- ness day to such depository as City may designate all monies collected by or otherwise paid to Company for service rendered and water delivered under and during the term of this Agreement. City shall promptly inform Company of the amounts and sources of all monies collected by or paid to City on account of service rendered to customers of the System during the term of this Agreement. 4. Payment of Expenses. (a) The City shall pay directly all bills for (i) real pro- perty taxes and assessments levied or assessed against the System or any part thereof, (ii) franchise and business taxes imposed upon or measured by revenues from the System, (iii) electric or gas power charges incurred .in operating the System, (iv) pump taxes levied upon extraction of water from wells serving the System, (v) water purchased for delivery to the System and (vi) water mainline extension agreement refunds. Company shall promptly upon receipt forward to City any invoices or documentation related to items listed in this sub-paragraph 4 (a). (b) Company shall pay all other 0 & M expenses incurred and related to operating and maintaining the System, other than those set forth in preceding sub-paragraph 4 (a). (c) Notwithstanding the foregoing provisions of this (3) paragraP~ 4, if Company shall determine that the estimated cost of any required work of repair or maintenance will be $2,000 or more in the case of main leaks or $1,000 or more in the case of any other such work I"Extraordinary Maintenance"), it shall notify City thereof in writing. Company shall not accomplish such Extraordinary Maintenance unless it shall be directed to do so by City in writing or other appropriate written instrument. Upon receipt of City's written approval, Company will cause such work to be accomplished and upon completion, will bill City for the actual total installed cost of such work. Nothing herein contained shall, however, be deemed to limit city's right to cause such Extraordinary Maintenance to be accomplished by a person other than Company, in which event Company shall bill City for Company's direct charges (including any engineering, supervision and inspection) and construction overhead charges at the rate of 8% of the amount billed to City by said person other than Company as the total cost of such Extraordinary Maintenance item. City agrees to pay Company any amount so billed to City pursuant to the provi- sions of this paragraph 4 (c) within 30 days after receipt of such bill. Upon completion of such work, and at the request of City the Company shall have the sole responsibility in a timely manner for making any required connection to the System. The provisions of this paragraph 4 (c) shall in no way be deemed to limit Company's right to accomplish any Extraordinary Maintenance of any emergency nature in accordance with the provisions of paragraph 7If) hereof. 5. Consideration. (a) Beginning January 1, 1990, in consideration of the opera- tions and maintenance services furnished by Company hereunder as City's agent in operating the System, City shall pay Company a monthly fee of $5.50 for each active service to each customer served the preceding month. (4) (b) Company shall review its costs hereunder to determine whether 'an adjustment of said monthly fee is required during the next suc- ceeding calendar year by reason of any increase or decrease in the aggre- gate amount of expenses incurred by company in performing its obligations hereunder. Company shall notify Ci.ty of the amount of adjustment thereof not later than 30 days prior to the end of each year of the term hereof, and any change in the monthly fee applicable to any year of the term of this Agreement shall not be in excess of the percentage wage and benefit change of the Company's employee agreement with the Utility Workers Union of America A.F.L.-C.I.0. for the next succeeding calendar year. If any increase or decrease in the monthly fee is determined by company to exceed five percent (5%) then any amount in excess of five percent (5%) shall be negotiated by the parties acting in good faith. (c) In the event Company shall notify City of any fee adjustment, City's obligation for each month of the entire succeeding calendar year hereof shall be at the adjusted amount. (d) Company shall not be entitled to additional reimbur- sement from City, nor shall City be entitled to reimbursement from Company for current year monthly fee based on said review of costs incurred by Company. 6. Rates. During the term hereof city shall establish and main- tain water rate schedules applicable to the areas shown on Exhibit A. Rates may be changed from time to time as the City, in its sole discre- tion, sees fit. City and Company agree all service connections, except for public and private fire protection services, shall be metered and be sub- ject to applicable rates. 7. Additions and Improvements. la) During the term hereof Company will make available to City the services of its engineering staff I"Engineer'') for consultation on /5) water fac'ility additions, improvements and system operation and main- tenance. lb) Upon request by City, Company will prepare an estimate for acceptance by City covering each System addition or improvement esti- mated to cost less than $10,000. Following written approval from the City, Company will proceed with the work of installation, including the prepara- tion of plans and specifications as required. Upon completion of installa- tion, Company shall bill City for the actual total installed cost of such work, including Company's added construction overhead charges of 8% of actual cost, and City agrees to pay Company the amount so billed within 30 days after receipt of invoice. (c) All additions and improvements whose estimated total installed cost exceeds $10,000 shall be designated "Major Items". Construction shall be completed by contractors selected by City pursuant to City's applicable competitive bidding procedures. Company shall bill City for Company's cost or preparation of plans and s~ecifications and inspec- tion and supervision of the construction work computed at the rate of 8% of the total estimated cost of said addition or improvement after receipt of City's approval of the project. Additionally, Company shall invoice City for any direct costs incurred by Company for the installation of the faci- lities and City agrees to pay Company the amounts so billed within 30 days after receipt of invoice. (d) For certain Major Items City may at City's option, retain the services of an independent consulting engineer to prepare plans and specifications to meet City's bid procedure requirements for such Major Items. Company, shall bill City 4% of the estimated total installed cost of each such Major Item for the work of supervising preparation of such plans and specifications and inspecting the construction work. City agrees to pay Company the amount so billed within 30 days thereafter. Expenses of outside consulting engineers so retained by City or Company and City shall be paid directly by City without other addition. (e) Company shall furnish qualified inspectors at the site of all construction work on Major Items. Such inspectors may be Company employees, consulting engineer employees or such other qualified inspectors as may be required. (f) Notwithstanding the foregoing provisions of paragraph 4 (c) hereof or of this paragraph 7, in the event of an emergency involving any part of the System which in Company's judgment threatens the public health or safety, and if in the Company's judgment immediate action is required, Company shall have the right to perform, or cause to be per- formed, any work on the System (whether repairs, maintenance or capital additions) regardless of the estimated cost thereof, free from any provi- sion of said paragraph 4 (c) or from any requirement that the contract therefor be let by competitive bid. Company shall notify City as soon as possible as to the work done and proposed to be done as a result of such emergency threatening the public health and safety and of Company's esti- mate of the cost thereof. Upon notification by Company of emergency work, City shall have the right to order cessation of such work, if other appropriate means are available to nullify public health and safety emergency. Company shall bill City for the actual total installed cost of such work, including Company's construction overhead charges computed at the rate of 8% of the total cost of such work. City agrees to pay Company he amount so billed within 30 days after billing. (g) City shall have access to Company's books and records applicable to the System during normal business hours at the offices of Company headquarters or appropriate local Bakersfield Office, throughout the term of this Agreement and, in this connection, may require the produc- (7) tion fro~ Company's records of such statements, invoices and other docu- ments as may be reasonably necessary to support any charge or bill submitted by Company pursuant to the provisions of this Agreement, records of system customer billing transactions and System collections remitted to City. 8. Extension Contracts. (a) All extensions of the System to furnish service to indi- viduals or subdivisions shall be made pursuant to contract between City and the individual customer or developer, as the case may be. The form of such contract shall be determined by City. City shall provide in each such con- tract for the payment to Company of Company's direct charges and overhead charges in consideration for the work to be performed by Company in connec- tion with such contract. Company shall not be obligated to install any such extension, but shall prepare and furnish to the individual customer or developer, as the case may be, and to City the plans and specifications therefor, the estimated total installed cost thereof, and provide inspec- tion of the construction work. In consideration therefor City agrees to pay Company at the time of delivery by Company of such plans and specifi- cations to such individual customer or developer, an amount for Company's overhead charges computed at the rate of 8% of such estimated total installed cost of such extension. (b) In the event Company and City shall agree in writing to permit a developer to prepare plans for a main extension in accordance with City's specifications and to prepare cost estimates of such extension, Engineer shall (i) at City discretion review and supervise the preparation of such plans and the application thereto of 'City's specifications, and, when appropriate, approve such plans, /ii) review, and, when appropriate, approve the estimate of the cost of such main extension prepared by such developer in order to determine the fairness of said estimate in evaluating (8) the maximum refund liability of City for such main extension, and (iii) supervise and inspect the installation thereof. In consideration therefor City agrees to pay Company, when construction commences, an amount for com- pany's overhead charges at the rate of.4% of the cost estimate for such extension. (c) At the request of City, Company shall be responsible for connecting the facilities installed hereunder to the System. In con- sideration therefor City agrees to pay Company within 30 days after billing by Company therefor all of Company's actual or direct costs in connection therewi th. (d) City shall furnish Company with a copy of each extension contract executed by City relating to the System, for those contracts which City desires Company to compute refunds. Company shall compute the refunds ' due under terms of the extension contract and notify City thereof. City shall be responsible for payment of such refunds to the persons entitled thereto. 9. Hold Harmless. Company shall save, hold harmless and indem- nify City, its officers, agents, employees and volunteers from all claims, demands, damages, judgments, costs or expenses in law or equity that may at any time arise from or related to any work performed by the Company, its agents, employees or subcontractors under the terms of this agreement. 10. Insurance. Company shall be responsible only for its own negli- gence, intentional acts, and or ommissions. Company shall procure and main- tain for the duration of this agreement the following minimum types and limits of insurance: Automobile liability insurance, providing coverage on an occurrence basis for bodily injury, including death, of one or more per- sons, property damage and personal injury., with limits of not less than one million ($1,000,000) per occurrence. C6mmercial general liability insurance, providing coverage on an occurrence basis for bodily injury, including death, of one or more per- sons, property damage and personal injury, with limits of not less than one million ($1,000,000) per occurrence. Said policy may provide for self- insured retention by Company of $250,000.00 per occurrence. Company will maintain a State of California approved self- insurance program for Workers' Compensation. Program will comply with State required statutory limits for Workers Compensation. All policies required of the Company hereunder shall be primary insurance with regard to items for which Company is responsible as respects the City, its mayor, council, officers, agents, employees and volunteers and any insurance or self-insurance maintained by the City, its mayor, council, officers, agents, employees and volunteers shall be excess of the Company's insurance and shall not contribute with it. The automobile liability policies shall provide coverage for owned, non-owned and hired autos. The liability policies shall provide contractual liability coverage for the terms of this agreement. The liability policies shall contain an additional insured endorsement in favor of the City, its mayor, council, officers, agents, employees and volunteers. All policies shall contain an endorsement providing the City with ten (10) days written notice of cancellation or material change in policy language or terms. If any part of the work under this agreement is sublet similar insurance shall be prov. ided by or on behalf of the subcontractors to cover their operations. The contractor shall furnish the City Risk Manager and the Community Services Department wi th a certificate of insurance evidencing (10) the insurance required under this agreement. · 11. Disputed Bills. If City shall dispute or question any por- tion of any bill or statement submitted to it by company or any amount pur- portedly owing by it to Company hereunder, it shall promptly notify company of the amount thereof so disputed or questioned, which amount City shall not be obligated to pay until such dispute or question shall be finally resolved. However, City agrees in each such instance to pay Company, when due, the portion of such bill, statement or amount not so disputed or questioned. 12. Payment of Bills.. City agrees to take all necessary steps procedurally so that payments due from it to Company pursuant to the provi- sions of this Agreement will be made on or before the applicable ay spe- cified herein. 13. Agreement Conforms to Charter. City represents and warrants to Company that this Agreement and the provisions hereof conform to City's Charter as currently in effect. If any subsequent amendment to or revision of said Charter shall in any way affect this Agreement or the validity of any provision hereof, City agrees to give prompt notice thereof to Company. In such event the parties hereto agree to make such amendments to or revi- sions of this Agreement as they may deem necessary or appropriate under the circumstances. 14. Title. Company shall have no title to, or ownership interest in, the System or any part thereof. 15. Notices. Any notice which it is herein provided may or Shall be given by either party to the other shall be deemed to have been duly given when deposited in the United States mail, registered or certified, postage prepaid, and addressed to the party to whom such notice is given at the following respective address: ~ (11) To City: CITY OF BAKERSFIELD City Hall 1501Truxt~n Avenue Bakersfield, CA 93301 To Company: CALIFORNIA WATER SERVICE COMPANY P.O. Box 1150 San Jose, CA 95108 16. Paragraph Headings. Paragraph headings in this Agreement are for convenience only and are not a part of this A§reement and do not in any~ way limit or amplify the terms and provisions of this Agreement. 17. Nature of Service. It is specifically recognized and intended by the parties hereto that in performin§ its obligations under this A§reement Company shall not offer or perform any public utility ser- vice but shall act solely as a§ent for City. Company specifically does not dedicate itself to render a public utility water service to customers within the area shown on Exhibit A hereto, but rather agrees to furnish a non-utility service therein in accordance with the provisions of this Agreement. 18. Company Authority. Each individual executing this Agreement represents and warrants that they are duly authorized to execute and deliver this Agreement on behalf of the Company, named herein and that this Agreement is binding upon said Company in accordance with its terms. 19. Compliance with all Laws. Company shall, at Company's sole cost, comply with all of the requirements of Municipal, State and Federal authorities now in force, or which may hereafter be in force, pertaining to this A~reement, and shall faithfully observe in all activities relating to or growing out of this Agreement all Municipal ordinances and State and Federal statutes, rules or regulations now in force or which may hereafter be in force. (12) 20. Waiver of Default. The failure of any party to enforce against another a provision of this Agreement shall not constitute a waiver of that party's right to enforce such a provision at a later time, and shall not serve to vary the terms of this Agreement. 21. Forum. Any lawsuit pertaining to any matter arising under or growing out of this contract shall be instituted in Kern County, California. 22. Time. Time is of the essence in this Agreement. 23. Assignment. This contract shall not be assigned by. any party, or any party substituted, without prior written consent of all the parties. 24. Binding Effect. The rights and obligations of this Agreement shall inure to the 'benefit of, and be binding upon, the parties to the contract and their heirs, administrators, executors, personal repre- sentatives, successors and assigns.' 25. Attorney's Fees. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its attorney's fees and court costs and other nonreimbursable litigation expen- ses, such as expert witness fees and investigation expenses. 26. Merger and Modification. This contract sets forth the entire agreement between the parties, and supersedes all other oral or writ- ten provisions. This contract may be modified or terminated only in a writing approved by City Council and signed by. all the parties. 27. Tax Numbers. Company's Federal Tax I.D. No. 94-0362795 Company is a corporation? Yes X No (Please check one.) (13) IN WITNESS WHEREOF, the parties thereto have executed this Agreement in duplicate the day and year first-above written. "CITY" CITY OF BAKERSFIELD By 'CLARENCE E. MEDDERS MAYOR APPROVED AS TO FORM: ARTHUR J. SAALFIELD CITY ATTORNEY COUNTERSIGNED: GREGORY KLIMKO FINANCE DIRECTOR "COMPANY" CALIFORNIA WATER SERVICE COMPANY BY TITLE BY TITLE (14) Gr,.e'gory~D. Bynum & Associates, Inc. Real Estate Development June 7, 1989 Gene Bogart City of Bakersfield - Water Resources 4101 Truxtun Avenue Bakersfield, California 93309 · ' RE: Coverage of canal areas behind the Maratho~ Oil Building and the Kern High School Farm Dear Gene, · Enclosed are two canal development agr, eements that we have prepared for covering the above referenced canal areas. They are based on the standard agreement that the cily has been using for similar projects. Please review them at your convenience and let me know if there is anything else we can do to help get this agreement finalized. "' Sincerely, . , . i: ':' AnthonyAns here · .. .' - ' . ' :' '. ...... Gregory D. Bynum and Associates CITY OF BAKERSIclELD Community Services Dep,~rtmsnt · 5601 truxtun avenue, suite 190 . bakersfield, california 93309 · [805] 395-0541 · facsimile [805] 395-0484 AGREEMENT NO. CARRIER CANAL DEVELOPMENT AGREEMENT BETWEEN GREGORY D. BYNUM & ASSOCIATES, INC. AND THE CITY OF BAKERSFIELD THIS CARRIER CANAL DEVELOPMENT AGREEMENT, is made and entered into this day of , 1989, by and between the CITY OF BAKERSFIELD, a municipal corporation (CITY), and GREGORY D. BYNUM & ASSOCIATES, INC., a California corporation (DEVELOPER). RECITALS WHEREAS, CITY is the owner in fee and operator of certain portions of the Carrier Canal in the City of Bakersfield, County of Kern, State of California, which ownership is delineated on the map attached to and made a part of this agreement as Exhibit "A"; and, WHEREAS, DEVELOPER desires to construct parking for developments to take place near the Carrier Canal and is willing to purchase the fee ownership from CITY and return easements to the CITY for canal purposes for access, maintenance, and inspection, Which easements are delineated on the map attached to and made a part of this agreement as Exhibit "A"; and, WHEREAS, DEVELOPER will build a parking facility which covers the Carrier Canal at locations to be delineated on the map attached to and made a part of this agreement as Exhibit "A"; and, WHEREAS, DEVELOPER will pay fair market value for the carrier Canal at the improved price (not including surface improve- ments such as asphalt, curbs, gutters, et al. for parking) minus the cost of installing the canal structure improvements plus a ten percent (10%) incentive to be given to the DEVELOPER if said development costs falls below the appraised fair market value thereby returning funds to City; and, WHEREAS, CITY will agree to'the covering of the Carrier Canal as delineated in Exhibit "A", and is willing to sell the fee title to DEVELOPER and take back easements for access, main- tenance, and inspection and will accept fair market value at the improved price minus the cost of installing said improvements plus a ten percent (10%) incentive to the DEVELOPER as set forth herein; and, WHEREAS, a current appraisal ("appraisal" herein) by Bruce Beaudoin is acceptable to CITY and DEVELOPER to set the fair market value for a period of one year from the date set forth in the appraisal; NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows: AGREEMENT 1. DESCRIPTION OF WORK. DEVELOPER shall provide all materials and labor for, and shall be responsible for carrying out to completion the following construction project: The covering of certain portions of the carrier canal as set forth in Exhibit "A" for the purposes of constructing canal improvements as delineated in Exhibit "A," which is attached to and made a part of this agreement, and according to plans and specifi- cations approved by the CITY. The Work to be done under this agreement is shown on the attached drawings entitled Exhibit "A", and will be further described in plans and specifications which will be prepared for this project'and such plans and specifications are incorporated by reference as though fully set forth herein, and shall be binding on the parties to this agreement. All work shall be done as set forth in this contract, the attached exhibits, and the plans and specifications. 2. APPROVAL OF PLANS. DEVELOPER shall provide CITY with a complete set, or sets, of construction plans and specifica- tions and a complete set of "as built" plans for the covering of a portion of the Carrier Canal delineated in Exhibit "A." CITY's written approval of all plans and specifications shall be neces- sary prior to any construction on the Carrier Canal. All plans and specifications provided by DEVELOPER for the parking structure shall be at DEVELOPER's sole expense and shall not be included in the cost for the total project. Plans and specifications for the improvements appurtenant to the bcx culvert shall be included in the total project costs. 3. MATERIALS AND EQUIPMENT. All materials and equip- ment shown or specified on the plans or in the specifications, -2- or required to complete the project, shall be provided and securely installed and placed by DEVELOPER. Provision and installation of materials and equipment shall include everything required for satisfactory performance, regardless of omission of specific reference on plans or specifications. Standard building practice will be followed to achieve this result. Materials and equipment in the project shall be new. Workmanship shall be first class. 4. WARRANTIES. DEVELOPER guarantees and warrants all work performed under this agreement for a period of one (1) year after the completion of the construction and acceptance by the CITY, and shall pay all costs of any and all repairs or maintenance required, and shall pay for any replacement of any parts required to maintain these structures described in the plans and specifications in good operating condition. Acceptance shall be complete upon filing a notice of completion and the expiration of thirty-five (35) days after the recording of such notice. DEVELOPER further guarantees and warrants that any improvements constructed over the portion of the Carrier Canal covered by the project set forth in this agreement shall in no way endanger or cause actual harm to the integrity of the improvements installed under this agreement. Should the improvements set forth herein be endangered or harmed by future overlying improvements, DEVELOPER shall, at the request of CITY, take steps which ade- quately remedy the condition or conditions which endanger or have caused harm to the improvements set forth herein. 5. CONSTRUCTION SCHEDULE. Upon CITY approval of the plans and specifications for the construction of the project described herein, between October 15 and February 1, DEVELOPER shall be entitled to commence construction for a forty-five (45) day period at the "Marathon" Property with a 75 CFS minimum flow bypass or sand plug and a sixty (60) day construction period at the "school farm" property with a 200 CFS minimum flow bypass at this location. DEVELOPER shall give notice to the CITY sixty (60) days prior to the commencement of construction. One week prior to start of construction and one week after the construction period has expired, the CITY shall cease operation of the Carrier Canal so that developer may construct necessary bypass facilities. DEVELOPER shall notify CITY prior to starting such work and immediately upon completion of construction as set forth in this agreement. These construction times are set in order to prevent interference.with the flow or distribution of water moving down the Carrier Canal. DEVELOPER fully understands that emergency conditions may require the CITY to refuse DEVELOPER's request for construction under this paragraph; however, the DEVELOPER shall be notified immediately upon such emergency arising. -3- 6. LIQUIDATED DAMAGES. IN THE EVENT DEVELOPER DOES NOT COMPLETE THE PROJECT DESCRIBED HEREIN WITHIN THE TIME PERIODS SET FORTH THEREBY CAUSING THE CARRIER CANAL TO BE SHUT-DOWN BEYOND THE SPECIFIED PERIODS GRANTED FOR CONSTRUCTION, THEN THE DEVELOPER SHALL BE LIABLE FOR DAMAGES OF $1,000.00 PER DAY FOR EACH DAY THAT CONSTRUCTION CONTINUES PAST THE SPECIFIED PERIODS. SHOULD DEVELOPER FAIL TO COMPLETE THE PROJECT IN A TIMELY FASHION, THE DAMAGES SUFFERED BY CITY BY REASON THEREOF WOULD BE UNCERTAIN OR VERY DIFFICULT TO ASCERTAIN. DAMAGES WOULD INVOLVE SUCH VARIABLE FACTORS AS THE AMOUNT OF WATER AVAILABLE AND THE PRICE THEREOF, THE CONSIDERATION THAT DOWNSTREAM USERS OF THE CARRIER CANAL WOULD PAY TO TRANSPORT SUCH WATER, THE PRICE OF OBTAINING ALTERNATIVE METHODS OF TRANSPORTING SUCH WATER, THE LOSSES OF WATER WHICH WOULD BE SUSTAINED BY USING ALTERNATIVE MEANS OF TRANSPORTING SAID WATER, AND THE DAMAGES THAT MAY BE AWARDED AGAINST THE CITY IN LEGAL ACTIONS WHICH MAY BE FILED BY DOWNSTREAM USERS; ALL OF WHICH WOULD RESULT IN ADDITIONAL AND IMMEASURABLE DAMAGES AND LOSS TO THE CITY AND THE COMMUNITY. IT IS IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE AMOUNT OF SUCH DAMAGES TO THE CITY, BUT THE PARTIES ARE OF THE OPINION, UPON THE BASIS OF ALL INFORMATION AVAILABLE TO THEM, THAT SUCH DAMAGES WOULD APPROXIMATELY EQUAL $1,000.00 PER DAY. SAID AMOUNT OF $1,000 PER DAY SHALL BE PAID TO THE CITY UPON THE EXTENSION OF CONSTRUCTION PAST THE SPECIFIED SHUT-DOWN PERIODS AS THE TOTAL OF ALL LIQUIDATED DAMAGES FOR ANY AND ALL SUCH DEFAULTS AND NOT AS A PENALTY. IN THE EVENT THIS PARAGRAPH SHOULD'BE HELD TO BE VOID FOR ANY REASON, THE CITY SHALL BE ENTITLED TO THE FULL EXTENT OF DAMAGES OTHERWISE PROVIDED BY LAW. THE DEVELOPER AND THE CITY SPECIF~A~LLY ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY THEIR/,~I~ATURES~: City 7. RIGHT OF INSPECTION. City shall have the right to enter upon the project site .at all reasonable times to inspect the project and DEVELOPER's operations thereon° 8. COMPENSATION AND EXCHANGE OF TITLE. DEVELOPER will pay to CITY the appraised value of the finished land, with improve- ments, as set forth in the September 26, 1988 appraisal by Bruce Ao Beaudoin unless said appraisal shall lapse by becoming more than one year old and then the DEVELOPER shall pay the finished land value as set forth in a new appraisal, said new appraisal to be paid for by DEVELOPER. The cost of constructing said improve- -4- merits shall be subtracted from the appraised finished land value. In addition, the DEVELOPER will be allowed to retain ten percent (10%) of the difference between the actual construction cost and the appraised finished land value as a reasonable incentive. The remainder of the funds, if any, after subtracting reconstruction cost and incentive (if any) from the finished land value shall be paid over to City. In no.event shall the CITY owe DEVELOPER any money because of or in any way related to the construction of the project set forth in this agreement. By way of example ont¥ : If the finished land value were $1,200,000 and if the DEVELOPER constructs the project for $1,000,000 then the CITY would be paid $200,000 minus $20,000 to the DEVELOPER as incentive as shown below: Finished land value: $1,200,000 Construction costs: 1,000,000 EXAMPLE To CITY (subtotal) $ 200,000 10% to DEVELOPER 20,000 Final to CITY $ 180,000 9. PERFORMANCE BOND. a) DEVELOPER shall furnish within 30 days prior to the start of construction a surety bond conditioned upon the full .and faithful performance of all obliga- tions required to be performed under or arising from this agree- ment and.full performance an~ verity of all warranties and guarantees contained herein. Said bond shall be in the amount of not less than the finished land value as established by the appraisal. b) Said bonds shall be of a form satisfactory to the CITY and shall be obtained from a responsible corporate surety (or sureties), acceptable to the CITY, licensed by the State of California to act as surety upon bonds and undertakings and which maintains in said State at least one office for the conduct of its business. Said surety (or sureties) shall furnish reports as to its financial condition from time to time as requested by the CITY. The premiums for said bonds shall be paid by the Contractor, c) If any surety becomes unacceptable to the CITY or fails to furnish reports as to is financial condition as requested by the CITY, the Contractor shall promptly furnish such additional security as may be required from time to time to protect the interests of the CITY and of persons supplying labor or materials in the prosecution of the work contemplated by this agreement. -5- d) In the event of any conflict between the terms of this agreement and the terms of said bonds, the terms of this agreement shall control and said bonds shall be deemed to be amended thereby. Without limiting the foregoing, the CITY shall be entitled to exercise all rights granted to it by this Agreement in. the event of default, without control thereof by the surety, provided that the CITY gives the surety notice of such default at the time or before the exercise of any such right by the CITY, and regardless of the terms of said bonds, the exercise of any such right by the CITY shall in.no manner affect the liability of the surety under said bonds. 10. QUIT CLAIM DEEDS. Upon completion and acceptance by the City of all work performed by DEVELOPER under this agreement, the CITY shall grant to DEVELOPER by quit claim deed all right and title to the portion of the Carrier Canal covered by this pro- ject (as shown in Exhibit A), and DEVELOPER shall grant back to CITY easements for canal purposes,, access, maintenance, and . inspection; said easements are set forth on maps attached to and made a part of this agreement as Exhibit "A". Said easements and quit claims shall be recorded. CITY shall continue to own all water conveyance facilities constructed under this agreement. 11. TIME OF PAYMENT. DEVELOPER shall reimburse CITY the difference between the appraised value of the finished land minus the cost of constructing the improvements, and minus ten percent (10%) of the difference between the appraised value and the actual cost of improvements, within ninety (90) days from the completion and acceptance of the project by the City. 12. REZONING AND ENVIRONMENTAL. DEVELOPER shall be solely responsible for obtaining any rezoning necessary to go forward with the project, and DEVELOPER shall be solely responsi- ble for any and all reports, mitigation measures, or other governmental requirements concerning the California Environmental Quality Act or other environmental concerns including, but not limited to hazardous materials; and DEVELOPER shall apply for and obtain all necessary permits and approvals required by CITY, STATE, or FEDERAL authorities and agencies in order to construct the project and shall in the actual construction of said project comply with all such governmental requirements pertaining thereto. CITY makes no'representations concerning the suitability of the property for the proposed project. CITY transfers the property to DEVELOPER AS IS. 13. WAIVER OF DEFAULT. The failure of .any party to enforce against another a provision of this Agreement shall not constitute a waiver of that party's right to enforce such a provi- sion at a later time, and shall not serve to vary the terms of this Agreement. -6- 14. FORUM. Any lawsuit pertaining to any matter arising under, or growing out of, this contract shall be instituted in Kern County, California. 15. TIME. Time is of the essence in this Agreement. 16. HEADINGS. All paragraph or section captions are for reference only, and shall not be considered in construing this Agreement. 17. NOTICES.. All notices relative to this Agreement shall be given in writing and shall be sent by certified or regis- tered mail and be effective upon depositing in the United States mail. The parties shall be addressed as follows, or at any other address designated by notice: CITY OF BAKERSFIELD Water Department City Hall 1501 Truxtun Avenue Bakersfield, California 93301 GREGORY D. BYNUM & ASSOCIATES, INC. 5601 Truxtun Avenue Bakersfield, California 93301 (805) 395-0541 18. ASSIGNMENT. This contract shall not be assigned by any party, or any party substituted, without prior written consent of all the parties. 19. BINDING EFFECT. The rights and obligations of this Agreement shall inure to the benefit of, and be binding upon, the parties to the contract and their heirs, administrators, executors, personal representatives, successors~and assigns. 20. ATTORNEY'S FEES. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its attorney's fees and court costs and other nonreimbursable litigation expenses, such as expert witness fees and investigation expenses. 21. MERGER AND MODIFICATION. This contract sets forth the entire agreement between the parties, and supersedes all other oral or written representations. This contract may be modified only in a writing approved by the City Council and signed by all the parties. -7- 22. CORPORATE AUTHORITY. Each individual executing this ~greement represents and warrants that they are duly authorized to execute and deliver this Agreement on behalf of the corporation or organization, if any, named herein and that this Agreement is binding upon said corporation or organization in accordance with its terms. 23. COMPLIANCE WITH ALL LAWS. DEVELOPER shall, at DEVELOPER's sole cost, comply with all of the requirements of Municipal, State, and Federal authorities now in force, or which may hereafter be in force, pertaining to this Agreement, and shall faithfully observe in all activities relating to or growing out of this Agreement all Municipal ordinances and State and Federal statutes, rules or regulations now in force or which may hereafter be in force. 24. INDEPENDENT CONTRACTOR. This Agreement calls for the performance of the services of DEVELOPER as an independent contractor, and DEVELOPER will not be considered an employee of the City for any purpose and is not entitled to any of the bene- fits provided by City to its employees. This Agreement shall not be construed as forming a partnership or any other association with DEVELOPER other than that of an independent contractor. 25. EQUAL EMPLOYMENT PROVISIONS. During the term of this Agreement, DEVELOPER shall not discriminate against any employee or applicant for employment because of race, creed, color, sex, or national origin. DEVELOPER will take affirma- tive action to ensure that applicants are employed, and that ~employees are treated during employment, without regard to their race, creed, color, sex, or national origin. 26. TERM. This agreement shall terminate five (5) years from the date of execution, unless sooner terminated by the completion of the project as set forth herein, or otherwise termi- nated by the terms of this agreement. 27. CERTIFICATE OF INSURANCE. The DEVELOPER shall furnish the City Risk Manager with a certificate of insurance evidencing the insurance required under this agreement. The policy shall contain an additional endorsement in favor of the City, its mayor, council, officers, agents, employees, and volunteers. 28. INSURANCE. In addition to any other form of insurance or bond required under the terms of this agreement, the DEVELOPER shall procure and maintain for the duration of this agreement the following types and limits of insurance: -8- a. Automobile liability insurance, providing coverage on an occurrence basis for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million ($1,000,000) per occurrence; and b. Broad form comprehensive general liability insurance, providing coverage on an'occurrence basis for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than one million ($1,000,O00) per occurrence. c. Workers' compensation with statutory limits and employer's liability insurance with limits of not less than one million ($1,000,000) per accident. All policies required of the DEVELOPER hereunder shall be primary insurance as respects the CITY, its mayor, council, officers, agents, employees and volunteers and any insurance or self- insurance maintained by the CITY, its mayor, council, officers, agents, employees and volunteers shall be excess of the DEVELOPER's insurance and shall not contribute with it. The automobile liability policies shall provide coverage for owned, non-owned and hired autos. The liability policies shall provide contractual liability coverage for the terms of this agreement. The liability policies shall contain an additional insured endorsement in favor of the CITY, its mayor, council, officers, agents, employees and volunteers. The workers' compensation policy shall contain a waiver of subrogation endorsement in favor of the CITY, its mayor, council, officers, agents, employees and volunteers. All policies shall contain the following endorsement: An endorsement providing the CITY with ten (10) days written notice of cancellation or material change in policy language or terms. If any part of the work under this agreement is sublet similar insurance shall be provided by or on behalf of the subcontractors to cover their operations. The insurance required under this agreement shall be maintained until all work required to be performed under the terms of this agreement is satisfactorily com- pleted as evidenced by formal acceptance by the CITY. -9- The DEVELOPER shall furnish the City Risk Manager and Water Department with a certificate of insurance evidencing the insur- ance required under this agreement. 29. TAX NUMBERS. DEVELOPER's Federal Tax ID. Number -~.,i.~,, · DEVELOPE. R is a corporation? Yes ~/~ No . (Please check one.) o0o -10- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed, the day and year first-above written. "CITY" CITY OF BAKERSFIELD By Mayor APPROVED AS TO FORM: ARTHUR J. SAALFIELD City Attorney · By COUNTERSIGNED: By Finance Director Title ADD:lg Attachment: Exhibit "A" 10/05/89 A AGMT 4 BYNUMi-ll -11- EXHIBIT A DOMESTIC WATER ENTERPRISES MAINLINE EXTENSION REFUND REASSIGNMENTS Special Meeting, Water Board - City of Bakersfield November 14, 1989 Tract/ Water Board Parcel Remaining Reassigned to No. Map Balance Charline Bourne 2½% 84-16 W.B. TR #4639 $ 62,337.44 1207 Brookridge Drive 2½% 84-25 W.B. PM #6790 134,336.48 Columbus, Ohio 43220 2½% 86-02 W.B. PM #7625 97,672.69 TOTAL .................. $294,346.61