HomeMy WebLinkAbout10/18/00m C IT Y O F ~j~....~..; -; .': ;' ~..~
I
WATER BOA '
~ Mark C. Salvaggio, Chair
David Couch, Vice Chair
Irma Carson
I CITY OF BA~RSFIELD
SPECIAL WATER BOARD MEETING
WEDNESDAY, OCTOBER 18, 2000 - 4:30pm
Water Resources Building Conference Room
1000 Buena Vista Road, Bakersfield, CA
AGENDA
1). CALL MEETING TO ORDER
I 2). ROLL CALL
I 3). APPROVAL OF JULY 12, 2000 MEETING MINUTES
4). PUBLIC STATEMENTS
I 5). KERN RIVER OPERATIONS REPORT AND 1998-1999 "2800 ACRE RECHARGE FACILITY"
HYDROGRAPHIC REPORT
i 6). OLD BUSINESS
A. KERN RIVER PARKWAY PROPOSITION'S 12 & 13 AND CALFED GRANTS - For Board
Review and Recommendation
I B. ASSIGNMENT OF CARRIER CANAL DEVELOPMENT AGREEMENT NO. 88-188 - For
Board Approval
I7). NEW BUSINESS
A. SAND REMOVAL AGREEMENT WITH KERN BROS. TRUCKING - For Board Approval
I B. KERN RIVER INTERESTS WEATHER MODIFICATION PROGRAM FOR 2000-2001 -
For Board Approval
..1m C. DOMESTIC WATER SERVICE AGREEMENT FOR HENRY LANE - For Board Approval
' 8). SCHEDULE NEXT WATER BOARD MEETING
I 9). WATER BOARD STATEMENTS
~ Ge ces Manager
I POSTED: October 13, 2000
S :k2000WBMII~WBAGOC 188
· 1000 BUENA VISTA ROAD · BAKERSFIELD, CALIFORNIA '93311 ° (661) 326-3715
m
MINUTES OF THE REGULAR MEETING
OF THE
WATER BOARD - CITY OF BAKERSFIELD
Held Wednesday, July 12, 2000, Water Resources Conference Room, 1000 Buena Vista Road,
Bakersfield, CA 93311.
1. The meeting was called to order by Board Chair Salvaggio at 4:35 p.m.
2. Present: Mark Salvaggio, Chair
David Couch, Vice-Chair
Irma Carson (seated at 4:52 p.m.)
3. Boardmember Couch made a motion to approve the minutes of the Regular Water Board
meeting held May 17, 2000. Motion carried.
4. No public statements.
5. An update on the Kern River operations was given by Hydrographic Supervisor Steve
Lafond. The peak inflow to Lake Isabella occurred around May 25th at 3,000 cfs, and storage
peaked at 293,000 acre feet the second week of June. The Kern River Parkway flows have
been well coordinate between the City and Kern County Water Agency ID#4, for the
recreational season that started with the Memorial Day weekend and should continue through
Labor Day. City of Bakersfield contracts (now in their 24th year) are approaching 1,700,000
acre feet of delivery. Eleven years are remaining to fill the 35 year period of the long-term
contract.
6. Old Business.
6A. An update on the Kern River Levee District merger was given by Mr. Core. The Certificate
of Completion was completed by LAFCO for the transfer of the Levee District to the City of
Bakersfield. The equipment, records and files of the Levee District have been relocated to
the City of Bakersfield, Water Resources Department. The final action will be the adoption
of the City Ordinance to create the Levee District under the City of Bakersfield Municipal
Code. For Board information, no action required.
6B. A status report on the CALFED pilot project grant was given by Mr. Core. The state's staff
is unable to maintain their schedule, the CALFED representative still needs to complete the
!
I review and approve the recommendations, so this process could take three to four more
weeks. For Board information, no action required.
6C. Mr. Core brought the Kern County Dental Society Fluoridation Grant funds before the Board.
Assembly Bill 733 passed in 1995 mandated fluoridation of drinking water for systems over
10,000 service connections with the proviso that the costs are covered without using bond
I money rate payers money, or any kind of money derived form customer fees. The Kem
County Dental Society filed for a grant under Proposition 10 tobacco initiative funds and
received $650,000 to fluoridate approximately 13 wells in the southeast area that are within
I Company Mr. Core introduced Dr. Robert Reed
the
California
Water
Service
boundaries.
of the Kern County Dental Society who stated that several items had to be achieved within
the next 12 months before grant funding can be allotted for the fluoridation of the 13 wells.
I Mr. Core recommended that Board authorize staff to assist with the allotment and
implementation of this funding and report back to the Board. A motion to this affect was
i made by Boardmember Carson. Motion carried.
7. New Business.
I 7A. At the last meeting, Boardmember Couch asked staff to look into locating potential recharge
grounds, identify the type of zoning of the land, and the feasibility of the land to be utilized
I by the City for recharge purposes as an update to the 2010 General Plan. Mr. Core gave an
overview of the locations for quality soil and the sites where groundwater can be stored for
later recovery. A goal of the City and other water agencies is to conserve and capitalize on
I . the best soils to be used for percolation and for recharge to water basins within the County
area. The item was discussed at length. A motion was made by Boardmember Couch to
pursue the identification of thoSe soils and locations that are conducive to recharge, that
I overlay existing waterway systems and to direct staff to work with City Planning
canal
and
staff to produce maps and provide information to update the General Plan as expeditiously
i as possible. Motion carried.
7B. Propositions 12 & 13 project status update by Mr. Bogart. Govemor Davis has included $23
million in the state's May budget revise to implement the Kem River Program, a partnership
program between the City, Kern County Water Agency and other local water districts.
Proposition 13 is the source of these funds, half should become available within the next 90
days, the remaining half would be on a reimbursement basis. Projects targeted for these funds
are acquisition of property, acquisition of privately owned water rights on the Kern River,
water recovery facilities and construction of facilities for connections between related
I systems. Anticipated time for these projects to be completed is 18 months. Also, in addition
to the $23 million there is $5 million included in Propositionsl 2 and 13 for improvements
along the Kern River Parkway. After much discussion, Boardmember Salvaggio
I recommended that a letter be sent from the Water Board to the Kern County Water Agency
reiterating that the Kern River water rights stay within Kern County. A motion to this affect
was made by Boardmember Couch. Motion carried.
!
2
I
7C. The 2000 Water Balance Report was handed out to the Board by Mr. Core. As a brief
I review, the state legislature passed Bill AB3030 in 1992 which required water
districts,
cities
~ and counties put together a groundwater management plan. Staff researched City records
' ~-' and inquired of other districts to see if City was in accord with AB3030. It took staff three
I
to four years to complete the report and submit that City was in compliance with AB3030 and
are very pleased with the results of the completed study. For Board information, no action
I required.
'7D. Mr. Core presented the Arsenic regulations for drinking water to the Board. The federal
I government is proposing a change in the Arsenic regulation with limits far below existing
standards. Fifty (50) parts per billion has been the rule for at least a decade, with pressure
now to lower that number. The Environmental Protection Agency (EPA) is going through
a public hearing process and asking water utility industries to submit statements, documents
and comments for three part per billion, ten part per billion and 20 part per billion levels by
September 20th. Mr. Core is asking Board to authorize staff to submit comments in a letter
I Board the EPA with comments on the proposed levels with the cost
on
behalf of the
Water
to
impacts on the Cityof Bakersfield water system. A motion was made by Boardmember
Couch to authorize staffto send a letter from the Water Board submitting comments on the
I proposed Arsenic levels to the EPA. Motion carried.
I 7E. The Ordinance updating Municipal Code Chapter 14.04 was brought before the Board by
Water Superintendent Pat Hauptman. An update on Municipal Code Chapter 14.04 is
necessary to modify some of the language and clarify some of the clauses that have become
I outdated. The Ordinance will be taken to City Council for approval. A motion to approve
" was made by Boardmember Salvaggio. Motion carried.
I 8. Water Board statements.
Boardmember Carson questioned staff regarding the open canals and maintenance of same
in the southeast area of the City of Bakersfield. Mr. Bogart responded that there are a
number of water districts and agencies responsible for the canals as well as the City. The City
has a fencing ordinance requiring all canals within the City, deeper than 18", are to be fenced.
I If the canal belongs to a state agency City
the
cannot
enforce
the
fencing
ordinance,
but
a
person has the right to file a claim against the districts as they are agencies of the state.
I Boardmember Couch had a question regarding the City's recha/ge areas
and
the
lack
of
exposure this water supply has to the citizenry of Bakersfield as an asset to our community.
i Boardmember Couch suggested that the Water Board take a position in opposition to the
freeway/expressway paving over the recharge areas to protect this resource. Alan Daniel,
Deputy City Attorney, commented that the City Council had already voted to take a different
I position on this planning issue and that the Water Board could agendize and discuss this issue,
but did not have the authority to change that decision. Staff will research and update the
Board at a later date.
!
I
9. Closed Session. Adjourned to Closed Session at 6:25 p.m.
Conference with legal counsel - existing litigation. Closed session pursuant to Government
Code Section 54956.9(a) North Kern Water Storage District vs Kern Delta Water District,
et al., Tulare County Superior Court Base No. 96-172919.
The meeting reconvened at 6:31 p.m.
10. No action taken, update by legal counsel.
11. A motion to adjourn was made by Boardmember Couch at 6:32 p.m.. Motion' carried.
Mark Salvaggio, Chair
City of Bakersfield Water Board
Sharon Robison, Secretary
City of Bakersfield Water Board
WBMINUTES2000\WBMinutesT- 12-00
I
ISABELLA RESERVOIR DALLY OPERATIONS REPORT
(All readings are for date of report (THURSDAY)
as of 0001, except as noted.., cfs in italics) Date of Report: October 12, 2000
ISABELLA RESERVOIR
I 1 2555.00 Lake Elevation (ft.) 139534 Storage (AcFt) -526 Change(AcFt) 155 Inflowto Isabella (cfs)
2 568075 Storage Capacity 25% % of Capacity 172337 Normal Storage 81% % of Normal Storage
For this Date
I 3 5270 Average Lake Area (Acres) 3917 Inflow(Month) 8729 Outflow (Month)
i 4 229 North Fork Mean 220 North Fork @ 0600 Hours 3917 Accumulative Inflow (00-01 WY)
5 416 Mean Outflow 400 Borel Canal 16 Main Dam Outlet 8729 Accum. Outflow(WY)
I 6 414 Outflow@ 0600 397 Borel Canal @ 0600 Hours 17 Main Dam Outlet @ 0600 Hours
Hours
7 4 Lake Evap. (cfs) 0.02 Inches Evap. for 24 Hours 1218 Lake Evap. (Month to Date)
I 8 0 Spillway Discharge for 24 Hours
I PRECIPITATION AND TEMPERATURE
9 0.02 Inches of Precipitation at Isabella for 24 Hours 0.38 Inches of Precipitation at Isabella for Month
I 0.38 Seasonal Isabella 0.11 Normal for 345% Isabella Precip.
10
Precip.
(Season: Oct 1 through Sep 30) this Date % of Normal
i 11 0.20 Inches of Precipitation at Pascoe for 24 Hours 1.80 Inches of Precipitation at Pascoe for Month
12 1.80 Seasonal Precip. Pascoe 0.51 Normal for 353% Pascoe Precip.
this Date % of Normal
I 13 0.8 Upper Tyndall Creek 1.4 Pascoe 0.2 Wet Meadow
14 57 Isabella Maximum Temperature
I 15 45 Isabella Minimum Temperature 73 24 HourWind Movement (Miles)
iNATURAL RIVER FLOW
16 234 Natural Flow (cfs) 4203 Natural Flow (Month to Date) 306496 2000 April-July Runoff
I 17 286 Mean Flow 82% Natural Flow 232 Median Flow 101% Natural Flow
For this Date in % of Mean For this Date in % of Median
I 18 1107 Max. on Record 99 Min. on Record 4203 Accum. Natural Flow (Water Year)
For this Date For this Date
19 419 First Point Flow 9015 First Point (Month to Date) 9015 Accum. First Point (Water Year)
I KERN RIVER FACTS & FIGURES: ~ .
Long-term rainfall statistics for the month of October reveal that 18 out of the last 50 years 6 A K E R S F ~ E ~D
I have above normal October precipitation (>.33"). The Kern River April-July
produced
snowmelt runoff immediately following the "wet" Octobers has been wet on 9 occasions, Produced by City of Bakersfield
normal 4 times, and dry 5 times. The April-July mean runoff is 657,451 acre-feet (139%) Water Resources
Ifollowing wet Octobers, but only 386, 956 acre-feet (82%) for all other years of record. (661) 326-3715
.......- High Priority
'-' ................. - PROPOSITION 12 & 13
High- Priority KERN RIVER PARKWAY PROJECTS
1) Kern River Bike Path Improvements Widen, improve and re-surface existing bike path and rest areas $600,000
between Stockdale Highway and California Living Museum (CALM).
2) Kern River Bike Path Extension (West) Construct and extend bike path along the Kern River between Stockdale $1,200,000
Highway and Enos Lane ( 8 miles ).
3) Kern River Bike Path Extension (East) Construct and extend bike path between California Living Museum and $450,000
Lake Ming Loop ( 3 miles ).
4) Expand Greenbelts, Signage and Kiosks Establish major tree-planting p~ojects and complete signage, $500,000
web site, educational and directional kiosks throughout the Parkway.
5) Complete Equestrian Trail Alignment Complete equestrian trail (including canal x-ings) along north shoreline $300,000
of Kern River channel between Alfred Harrell Highway and Stockdale
Highway bridge.
6) Acquisition of Privately-Owned Properties Acquire properties along Truxtun Ave. Extension, Stockdale Highway $750,000
and easterly of Manor St. to provide for expansion of Kern River Parkway.
7) Expand & Improve Trailhead Parking Areas Expansion of bike path and equestrian trailhead parking areas; $500,000
and Develop Additional Facilities develop additional educational/recreational facilities (ie.; volleyball,
walking trails, picnic grounds, etc.) throughout Kern River Parkway.
8) Kern River Recreation & Recharge Areas Construct new river equestrian access corridor and recreation area $300,000
with recharge basins near Stockdale Highway & the Kern River.
9) Improve Bellevue River Weir and Public Reconstruct weir with safety improvements, including river access, $1,000,000
Access to River bike path and pedestrian crossings of the Kern River incorporated into
the total project.
10) River Shoreline Improvements Improve public access, restore and landscape the Kern River $600,000
shoreline at Beach Park between 24th Street and 99 Highway as
a major entry corridor into downtown Bakersfield. (Note: project
requires minimum match of $ 600,000 with private contributions)
10/ll/00 CURRENT TOTAL = $6,200,000
CALFED
BAY-DELTA
P ROGRAM 1416 Ninth Street. Suite l 155 {910} 057-2&60
Sacramento, California 95814 FAX (916} 654-9780
http://calfed.ca.gov
September 25, 2000
Flom Core
Water Resources Director
City of Bakersfield Water Resources Department
1000 Buena Vista Road
Bakersfield CA 93311
Dear applicant:
Thank you for submitting an application for the CALFED Bay-Delta Program
January 2000 Conjunctive Use Grant Program. We received 26 proposals requesting over
four times the amount of money budgeted for this program.
We to inform that proposal for Riverlakes Water Storage
regret
you
your
Reservoir, 12" Water Main Tie-in from Olcese Water Well No. 1 to Interface Pipeline,
Stine/Farmers Canal Recharge Facility has not been recommended for funding. However,
we do appreciate the effort you put into your application your
and
interest
in
the
CALFED
Program, Enclosed is the summary score sheet from the Technical Review Panel that
evaluated your application. Additional information on the Conjunctive Use Grant Program
results is available on the CALFED website at http://calfed.ca.gov/current/conjunctive.html or you
may request a copy of this information by calling (916) 657-2666.
We are currently developing priorities for future funding cycles, and will mail future
grant announcements to all previous applicants.
We are sending these results to you as the main point of contact for this proposal.
Please contact the other members of your application team and inform them of the results. If
you have any questions, please contact me at (916) 653-2986.
Sincerely,
Mark W. Cowin ~'?I" ~{ ~ ~000
Assistant Director,
CALFED Bay-Delta Program CiTY OF BA~E~ST-IELD
CALFED Agencies It~tb,'tV.-..~-~. P7-~'~t. r~,'~
California Yhe Resources Agency Federal Environmental Protection Agency Deparunent of Agriculture
Department of Fish and Game Department of the Interior Natural Resources Conservation Service
Deparnnent of Water Resources Fish and Wildlife Service LI.S. Forest Service
The Reclamation Board Bureau of Reclamation Department of Commerce
California Environrncntal Protection Agency U.S. Geological Survey Nadonal Marine Fisheries Service
State \X/ater Resources Control Board Bureau of I~lnd Managemen~ k~qestern Area Power Administration
Department of Food and Agriculture U.5 Army Corps nf Engineers
Delta Protection Comnfission
~ 5251 Office Park Drive, Suite 200
· Bakerstield, CA 93309
~ Telephone: (661) 326-1141
· Facsimile: (661) 326-1139
I September 11, 2000
I Mr. Gene Bogart
DEPARTMENT OF WATER & SANITATION
I WATER RESOURCES
1000 Buena Vista Road
Bakersfield, CA 93311
I Re: Assignment of Carrier Canal Development Agreement Number 88-188
..::::i:' ..:iiiiiiii!iii!i!ii!!i!'::::
.... i~i~i~i!!~i:i ...... :. :: i :::::~ii :: :: :: ~ ~ii~Mr. Bogart:
..::!~i~!ii~i? .:.:.:.: ======================
::::::::::::::::::::::::::::::::::::::4::::::: .:: ::::~::~iii~i:~i!~~::::~ur conversation today, enclosed is a copy of the Assignment we discussed regarding the
I iiiiiiiiiiiiiiiiii: .:~i~iiiii::: ::iiiiiiiiiiiiiiiiii~ii!~!~gced development agreement. At your request I have enclosed a copy of the
iiiii!ii!~i~ii~iii~iiiil}i}i~i:~::::~::~:: <~i~?~i::::;}}~}~}~!~!~ agreement, as well as a copy of the August 30, 1999 letter extending the agreement
:::::::::::::::::::::::::::::::::::::::::: :~iiii?iiiii!ii~d you need~j[ional information to process this assignmen?lease feel free to give mca call.
i Coleman Property Management Corp.
I
I
Assignment of Carrier Canal Development Agreement Number 88-188
THIS ASSIGNMENT OF CARRIER CANAL DEVELOPMENT AGREEMENT
NUMBER 88-188 ("Assignment") is made and entered into effective as of
, by and between Coleman Construction, Inc.
("Assignor") and Discovery Partners, a California limited partnership ("Assignee"), with
reference to the following facts:
A. Assignor and the City of Bakersfield, a municipal corporation, have
previously entered into the Carrier Canal Development Agreement, Agreement Number 88-188,
dated August 10, 1988 (the "Development Agreement").
B. Assignor desires to a~ssign, sell, transfer and convey its entire right, title
and interest in and to the Development Agreement to Assignee. Assignee desires to accept such
assignment and assume the obligations of Assignor pursuant to the Development Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by both parties, the parties hereto agree as follows:
1. Assignor hereby assigns, sells, transfers and conveys its entire right, title
and interest in and to the Development Agreement to Assignee. Assignee hereby accepts such
assignment and assumes all of the obligations of Assignor pursuant to the Development
Agreement.
2. This Assignment may be executed in counterparts.
IN WITNESS WHEREOF, the parties have executed this Assignment effective as
of the date first written above.
Assignor: ~an Construction, Inc., a California corporation
Its:
-
I Assignee: Discovery Partners, a California limited partnership
Colem~aI!,,Partners No. 3, a California limited
By: pa~h~.)General Partner
I
I Thomas M. Coleman, General Partner
!
24738/787917vl - 1 -
I
The City of Bakersfield hereby Consents to and approves the terms of the
foregoing Assignment.
City of Bakersfield
By:
Its:
24738/787917vl - 2 -
CITY OF .....
WATER
~SOURCES
DEPART~NT
GENE BOGART, Manager
~ORN CORE. Water Resources Director
PATRICK E. HAU~MAN. Superintendent
STEVE LAFOND, Forecasting and Records
MAHRICE RANDALL, Business Manager
KERR RIVER DISPATCHER 326-3716
August 30, 1999
Mr. Gary Grumble, Vice President
Coleman Property Management
5251 Office Park Drive, Suite 200
Bakersfield, CA 93309
RE: Carrier Canal Development Agreement 88-188
Dear Mr. Grumbles:
At its regularly scheduled meeting on Wednesday, August 18th the Bakersfield Water Board
authorized a 5-year extension to Carrier Canal Agreement No. 88-188. This puts the new term
expiration date to August l0th, 2004, unless terminated sooner by completion of the project.
As outline in the agreement, prior to actual construction, Coleman Property Management
will furnish the City with a new appraisal and performance bond in the amount of the new
appraisal. Except as amended by the appraisal, all other requirements of the agreement will
remain in effect.
If you have any questions or need any further information at this time, please call me.
Sincerely, ~
Water' Resources Manager
GB:sr
S:\ 1999LETTERS\ColemanAgmt88-188
I
1000 BUENA VISTA ROAD · BAKERSFIELD, CALIFORNIA 93311 · (661) 326-3715
!
AGREEMENT NO. 88-188
CARRIER CANAL DEVELOPMENT AGREEMENT
THIS CARRIER CANAL DEVELOPMENT AGREEMENT, is made and
entered into this ]~h day of Au~ , 1988, by and between
the CITY OF BAKERSFIELD, a munici-~A%-corporation (CITY), and
COLEMAN CONSTRUCTION, INC., a California corporation (DEVELOPER)-
WHEREAS, CITY is the owner in fee and operator of the
Carrier Canal between Discovery and office Park Drives in the City
of Bakersfield, County of Kern, State of California, which owner-
ship is delineated on the map attached to and made a part of this
agreement as Exhibit A; and,
WHEREAS, COLEMAN desires to construct parking for develop-
ments to take place near the Carrier Canal between Discovery and
office Park Drives, and is willing to purchase the fee ownership
from CITY and return an easement to the CITY for canal purposes for
access, maintenance, an~ inspection, %~hich easements are deline-
ated on the map attached to and made a part of this agreement as
Exhibit "A"; and,
WHEREAS, DEVELOPER will build a parking structure which
covers the Carrier Canal at locations' to ~e delineated on the map
attached to and made a part of this agreement as Exhibit "A"; and,
WEEREAS, DEVELOPER will pay .fair market value for the
Carrier Canal at the improved price (not including surface impro-
vements 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 an easement 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,
W~EREAS, a current appraisal 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 between Discovery Drive and Office Park
Drive 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-
c. 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 specificatio~ 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 to~at project. Plans and specifications for the
improvements appurtenant to the box 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--
o
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
wor~ 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, DEVELOPER shall be entitled to commence
construction for a sixty (60) day period between October 15, and
February 1, only. .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 sixty (60)
day period has expired, the CITY shall cease operation.of the
Carrier Canal so that developer may construct necessary bypass
facilities. Such bypass facilities shall be capable of diverting
a minimum flow of 200 CFS around the project site. 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
~he 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 B~ SHUT-DOWN
BEYOND THE SIXTY (60) DAY PERIOD 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 SIXTY DAY PERIOD.
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 SIXTY DAY SHUT-DOWN PERIOD 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
THIS LIQUIDATED D MAGES PROVISION BY THE SI AT RES/ ERE:
Devejl~per '
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 improv-
ments, of $1,286,000.00 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'
-4- I
constructing said improvements 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 %he 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 onl~ : if the DEVELOPER Constructs the
project for $1,086,000.00 then the CITY would be paid $200,000.00
minus $20,000.00 to the DEVELOPER as incentive as shown below:
Finished land value: $1,286,000.00
Construction costs: 1,086,000.00
To CITY (subtotal) $ 200,000.00
10% to DEVELOPER 20f000.00
Final to CITY $ 180,000.00
9. PERFORMANCE BOND: a) Contractor 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 and verity of all warranties and
guarantees contained herein. Said bond shall be in the amount of
not less than $1,286,000.00 dollars.
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 an~ 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) I'f 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
a~reement.
-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 an easement 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.
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; 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 per-
raining thereto.
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
provision at a later time, and shall not serve to vary the terms
of this Agreement.
14. FORUm: Any lawsuit pertaining to any matter arising
under or growing out of this contract shall be instituted in Kern
County, California.
15. TIM~: Time is of the essence in this Agreement.
16. ~EADINGS: Ail 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 Resources Division
4101 Truxtun Avenue
Bakersfield, California 93309
COLEMAN CONSTRUCTION, INC.
P.O. Box 9336
Bakersfield, CA 93389
18. ASSIGNMENT: This contract sha~l 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,
~ersonal 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 nonreimbur-
sable 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 provisions. This contract may be modified only in
a writing signed by all the parties.
22. CORPORATE AUTHORITY: Each individual executing this
Agreement represents and warranty that~they are duly authorized to
execute and deliver this Agreement on behalf of the Corporation,
if any, named herein and that this Agreement is binding upon said
Corporation 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 purposes 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 disc£iminate against any
employee or applicant for employment because of race, creed,
color, sex, or national origin. DEVELOPER shall 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 ~f execution, unless sooner terminated by the com-
pleuion of the project as set forth herein, or otherwise terminated
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: The DEVELOPER shall save, hold harmless
and indemnify the City, its officers, agents, employees and volun-
teers from all claims, demands, damages, judgments, costs or
expenses in law or equity that may at any time arise from or be
related to any work performed by the DEVELOPER, his agents,
employees, or subcontractors under the terms 'of this agreement.
In addition, the DEVELOPER shall procure and maintain for the
construction and warranty period the following types and limits of
insurance:
Commercial general liability insurance, including the broad form
CGL endorsement, 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 (1,000,000.00) per occurrence.
Workers' Compensation with statutory limits and employers
liability insurance with limits of not less than one million
($1,000,000).
All policies required of the DEVELOPER 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 liability policies shall provide contractual liability
coverage for the terms of this agreement.
The Workers' Compensation Policy shall contain a waiver of
subrogation endorsement in favor of'the City, its mayor,
council, officers, agents, employees and volup.teers.
If any part of this agreement is assigned or subcontracted,
similar insurance shall be provided by or on behalf of the
subcontractors to cover their operations.
· ', ! · ~TE,Y~T TITLE CO. '' -0 '
City Engineer ,.
· 1501 Truxtun Avenue ~/~S ~,~0
--
'---"~A! ¢5~C?~0N 6~99.35, GOVERNHENT CODE) ,.
'-~PARCEL MAP ~A~VER
{Being a subdivision of Parcel 2 of Parcel Map 7007, recorded in ~ook
29 of Parcel Maps, Page 189 in the office of the Kern County Recorder.)
{Assessor's Parcel No. 's 331-022-35-00-5c)
The undersigned City Engineer of the City of Ba~-~sfield,
designated by ordinances of said City as Advisory Agency with
respect to Parcel Map Waivers and Lot Line Adjustments and
acting herein on behalf of the City of Bakersfield, hereby '
certifies that the Parcel Map Waiver for the hereinafter'-
described psrcels o~ -land complies with the provisions of the
Subdivision Map Act of the State of California and Chapter 16
of the City of Bakersfield Municipal Code regulating .'
divisions of land. .""
Said parcels of land, being situated in the Cit'y of .'.
Bakersfield, County of Kern, State of California, are mor~
particularly described as follows on Exhibit A and shown on"
Exhibit B.'~". '
DISCO~R~' PD~TNSRS i5 {~e owne~ of the described parcels of land.
Dated this.14th day of October, 1988. '
City Engineer
City of Bakersfield
" I
I"iL' ".ii.' i:'/'.':' BOC~'. 6175 r~,ct 1698
I
EXHIBIT "A"
m PARCEL A:
THAT PORTION OF PARCEL 2 OF PARCEL- MAP NO. 7007, RECORDED IN
BOOK 29 OF PARCEL MAPS AT PAGE 189, IN THE KERN COUNTY
RECORDER'S OFFICE, BEING A PORTION OF THE NORTHEAST QUARTER OF
SECTION 34, TOWNSHIP 29 SOUTH, RANGE 27 EAST, MDM, CITY OF
i BAKERSFIELD, COUNTRY OF KERN, STATE OF CALIFORNIA, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
' ~' 'COMMENCING AT THE CENTERLINE INTERSECTION OF MARELLA WAY AND
· 'DISCOVERY DRIVE;
THENCE SOUTH 560 35' 37" WEST, 273.99 FEET ALONG THE CENTERLINE
I OF DISCOVERY DRIVE BEING 60.00 FEET WIDE;
THENCE AT RIGHT ANGLES DEPARTING SAID CENTERLINE NORTH 33o 24'
23" WEST, 71.85 FEET; ....
THENCE NORTH 780 24' 23" WEST, 44.7'7 FEET TO THE TRUE POINT OF
I BEGINNING;
THENCE SOUTH 560 35' 37" WEST, 241.12 FEET;
THENCE NORTH 780 24' 23" WEST, 71.62 FEET;
THENCE AT RIGHT ANGLES NORTH 11o 35' 37" EAST, 204.85 FEET;
I THENCE NORTH 560 35' 37" EAST, 45.64 FEET;
THENCE SOUTH 78o 24' 23" EAST, 209.85 FEET;
· THENCE AT RIGHT ANGLES SOUTH 11o 35' 37" WEST, 66'.62 FEET TO
.... THE TRUE POINT OF BEGINNING.
I ." :.:: CONTAINS1 53,548.872 SQUARE FEET
1 229 ACRES
I""'.".":
· ~ '~/~c~. %% LAND
I
· .: ..:.. ~ .. ~oo~ 6175"~c~ 1699
~'~".'..~
PARCEL ~:
THAT PORTION OF PARCEL 2 OF PARCEL MAP NO. 7007, RECORDED IN
BOOK 29 OF PARCEL MAPS AT PAGE 189, IN THE KE~N COUNTY I
RECORDER'S OFFICE, BEING A PORTION OF THE NORTHEAST QUARTER OF
SECTION 34, TOWNSHIP 29 SOUTH, RANGE 27 EAST, MDM, CITY OF
BAKERSFIELD, COUNTRY OF KERN, STATE OF CALIFORNIA, 'BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS: I
COMMENCING AT THE CENTERLINE INTERSECTION OF WEST COMMERCENTER
AND DISCOVERY DRIVE;
' THENCE NORTH 410 22' 08" EAST ALONG THE CENTERLINE OF DISCOVERY
~.. DRIVE BEING 60.00 WIDE, 133.72 FEET; I
AT RIGHY ANGLES.NORTH 480 37' 52" WEST, 30.00 FEET TO A
... THENCE ON THE NORTH WESTERLY RIGHT-OF-WAY LINE OF DISCOVERY
pOINT THE END OF A 780 FOOT RADIUS CURVE AND THE TRUE POINT OF
DRIVE,
BEGINNING; I
THENCE SOUTH 410 22' ~E WEST, 73.72 FEET ALONG SAID NORTH
WESTERLY RIGHT-OF-WAY TO THE BEGINNING OF A TANGENT CURVE
CONCAVE TO THE NORTH HAVING A RADIUS OF 20.00 FEET;
. FEET ALONG SAID CURVE THROUGH A
~RNCE NORTHWESTERLY 31 42_. .... ~TNT ON THE NORTHEASTERLY I
T .... _. 900 00' OO Tu ~ ~ -~- Qn no FEET WIDE;
CENTRAL ANGLE ur
THENCE NORTH 480 37' 52" WEST ALONG SAID NORTHEASTERLY
RIGHT-OF-WAY LINE OF WEST COMMERCENTER BEIN~
RIGHT-OF-WAY LINE 239.60 FEET TO THE BEGINNING OF TANGENT
.- CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 25.00 FEET; I
· THENCE~ NORTHERLY 9.78 FEET ALONG SAID NORTHEASTERLY
RIGHT-?F-W~Y LINE AND SAID CURVE THROUGH A CENTRAL ANGLE OF
22° 25 35 TO THE BEGINNING OF A REVERSE TANGENT CURVE CONCAVE
TO THE SOUTh% BAVING A RADIUS OF 94.00 FEET; I
THENCE NORTHWESTERLY 45.30 FEET ALONG SAID NORTHEASTERLY CURVE
THROUGH A CENTRAL ANGLE OF 27° 36' 36", AT WHICH POINT THE
CENTER OF SAID CURVE BEARS SOUTH 36o 11' 07" SOUTH;
THENCE DEPARTING SAID NORTHEASTERLY RIGHT-OF-WAY NORTH 11° 35' I
37" EAST, 220.10 FEET;
. THENCE AT RIGHT ANGLES SOUTH 78o 24' 23" EAST, 196.00 FEET;
: THENCE AT RIGHT ANGLES SOUTH 11O 35' 37" WEST, 181.00 FEET;
THENCE AT RIGHT ANGLES SOUTH 780 24' 23" EAST, 105.52 FEET;
· THENCE SCUTH ~O 27' 59" WF3T- ~] 4~ F~:~T TO ~' ~9. T~T O~ T~ I
' NORTHWESTERLY RiGHT-OF-WAY'LINE OF DISCOVERY DRI¥~'ANO THE TRU___.~E
' ~ ii~ POINT OF BEGINNING.
. ~...: CONTA~HS: 75,606.318 SQUARE FEET
'~ :"i~' 1.736.ACRES
': L.S. 370/
· .'.' 61'25 1'700
i . · . j ,.
· ...: p~ARCEL~CC: RECORDED IN
.. . . THAT- PORTION OF PARCEL 2 OF PARCEL MAP NO. 7007,
BOOK 29 OF PARCEL MAPS AT PAGE 189, IN THE KERN COUNTY
I RECOKDER'S OFFICE, BEING A PORTION OF THE NORTHEAST QUARTER OF
· '" SECTION 34, TOWNSHIP 29 . SOUTH, RANGE 27 EAST, MDM, CITY OF
BAKERSFIELD, COUNTRY OF KERN, STATE OF CALIFORNIA, BEING MORE
. PARTICULARLY DESCRIBED AS FOLLOWS:
I :. COMMENCING AT THE CENTERLINE iNTERSECTION OF MARELLA WAY AND
· DISCOVERY DRIVE
THENCE SOUTH 56° 35'. 37" WEST, 9_73.99 FEET ALONG THE..CENTERLINE
OF DISCOVERY DRIVE BEING 60.00 FEET WIDE;
I THENCE AT RIGHT ANGLES NORTH 33° 24' 23" WEST, 30.00 FEET TO A
POINT ON THE NORTHWESTZRLY 'RiG%{T-OF-WAY LINE OF DISCOVERY DRIVE '-'
AND THE TRUE POINT OF BEGlt~N1NG; RIGHT-OF-WAY AT RIGHT
THENCE DEPARTING SAID NORTHWESTERL~
I ANGLES NORTH 33° 24' 9_3" WEST, 41.85 ~EET;
THENCE NORTH 78° 24' 9_3" WEST, 44.77 FEET';
THENCE AT RIGI{T A~GLES NORTh{ 11° 35' 37" EAST, 66.69_'FEET;
"' THENCE AT RIGHT ANO~ES NORTH 780 9_4' 9_3" WEST, 80.37 FEET;
I . THENCE AT RIGHT ANGLES NORTH 11° 35' 37" EAST, 154.9_1 FEET;
THENC~. NORTH 70° 57' 27" EAST, 9_1.17 FEET;
THENCE SOUTH 78° 24' 23" EAST, 23'9.69 FEET;
THENCE SOUTH 11° 09' 23" EAST, 111.14 FEET TO A ?OINT ON THE
· . NORTHWESTERLY RiGHT-OF-WAY LINE OF DISCOVERY DRIVE, SAID POINT
I ALSO BEING Ot~ A NON-TANGENT CURVE CONCAVE TO THE SOUTHEAST,
HAVING A RADIUS OF 94.00 FEET, THE CENTER OF SAID CURVE BEARS
SOUTH 360 9_0' 27" EAST; __ SAID RiGHT-Of-WAY LINE
I TUESCE SOUT"W 'SSERLY 31.9S ALONG ....
..... : - -., , _..~;,..;.'$..,'L' ~J,' ~.-' ' "" " '
... ;',,~." SAID CUR%'~
.. · .... BEGINNING OF A REVERSE TANGENT CURVE CONCAVE TO THE NORTHWEST,
HAVING A RADIUS OF 9_5.00 FEET;
THENCE SOUTI{WESTEKLY 9.78 FEET ALONG SAID RIGHT-OF-WAY LINE AND
I . .'- SAID CURVE THROUGH A CENTRAL ANGLE OF 22o 25' 35";
' .. THENCE CONTINUING ALONG SAID RIGHT-OF-WAY LINE SOUTH 560 35'
' 37" WEST, 175.00 FE~T TO THE TRUE P_OIN___T_.OF BEGINNING-
I .398 SQUARE FEET
i' CONTAINS: 55,954AC~
1.285
"' .... . PARCEL Ds ·
· THAT ~ORTION .OF PARCEL 2 OF PARCEL MAP NO. 7007, RECORDED IN
. BOOK 29 OF PARCEL MAPS AT PAGE 189, IN THE KERN COUNTY
RECORDER'S OFFICE, BEING A PORTION OF THE NORTHEAST QUARTER OF .
SECTION 34, TOWNSHIP 29 SOUTH, RANGE 27 EAST, MDM, CITY OF ·
BAKERSFIELD, COUNTRY OF KERN, STATE OF CALIFORNIA, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID PARCEL 2; ·
THENCE SOUTH 11° 09' 23" EA~, 212.68 FEET TO A POINT ON THE
NORTHWESTERLY RIGHT-OF-WAY LINE OF DISCOVERY DRIVE AND
· BEGINNING OF A. NON-TANGENT CURVE CONCAVE TO THE SOUTHEAST
HAVING A RADIUS OF 94.00 FEET, THE CENTER OF SAID CURVE BEARS ·
SOUTH 11O 09' 23" EAST;
THENCE SOUTHWESTERLY 41.32 FEET ALONG SAID RIGHT-OF-WAY LINE
AND SAID CURVE THROUGH A CENTRAL ANGLE OF 20° 11' 04";
· .. THENCE DEPARTING SAID RIGHT-OF-WAY LINE NORTH 11° 09' 23" WEST, '-' ·
THENCE NORTH 78° 24' 23" WEST, 239.69 FEET;
THENCE SOUTH 70° 57' 27" WEST, 21.17 FEET;
THENCE SOUTH 11° 35' 37" WEST, 154.21 FEET;
THENCE AT RIGHT ANGLES NORTH 78° 24' 23" WEST, 129.48 FEET; ·
THENCE SOUTH 56° 35.! 37" -WEST, 45.64 FEET;
THENCE SOUTH 11O 35' 37" WEST, 204.85 FEET;
THENCE AT RIGHT ANGLES SOUTH 78° 24' 23" EAST, 71.62 FEET;
THENCE NORTH 56° 35' 37" EAST, 241.12 FEET; ·
THENCE SOUTH 78° 24' 23" EAST, 44.77 FEET;
THENCE SOUTH 33° 24' 23" EAST, 41.85 FEET TO A POINT ON THE
NORTHWESTERLY RIGHT-OF-WAY LINE OF DISCOVERY DRIVE;
THENCE ALONG SAID RIGHT-OF-WAY LINE SOUTH 56° 35' 37" WEST, .. ·
152.21 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE
SOUTHEAST, HAVING A RADIUS OF 780.00 FEET;
THENCE SOUTHWESTERLY 207.26 FEET ALONG SAID RIGHT-OF-WAY LINE
SAID CURVE THROUGH A CENTRAL ANGLE OF 15° 13' 29";
THENCE DEPARTING SAID RIGHT-OF-WAY LINE NORTH 6° 27' 59" EAST, ·
THENCE NORTH 78° 24' 23" WEST, 105.52 FEET;
THENCE AT RIGHT ANGLES NORTH 11° 35' 37" EAST, 181.00 ~ET!
.-. THENCE AT RIGHT ANGLES NORTH 78° 24' 23" WEST, 196.00 FEET; ·
THENCE AT RIGHT ANGLES SOUTH 110 35' 37" WEST, 220.10 FEET TO
THE NORTHEASTERLY RIGHT-OF-WAY LINE OF WEST COMMERCENTER AND A
POINT ON A NON-TANGENT CURVE CONCAVE TO THE SOUTHWEST HAVING A
RADIUS OF 94.00 FEET, THE CENTER OF SAID CURVE BEARS SOUTH 36° ·
· 11' 07" WEST;
THENCE NORTHWESTERLY 116.11 FEET ALONG SAID RIGHT-OF-WAY LINE
AND SAID CURVE THROUGH A CENTRAL ANGLE OF 70° 46' 24";
. THENCE DEPARTING SAID RIGHT-OF-WAY LINE ALONG THE WEST LINE OF
" SAID PARCEL 2 NORTH 34.0 35' i1" WEST, 199.~ ~ET;
THENCE NORTH 78° 13' 14" EAST, 316.00 FEET;
THENCE NORTH 70° 57~ 27" EAST, 473.46 FEET;
.. THENCE NORTH 78° 36' 44" EAST, 215.47 FEET TO THE TRUE POINT OF
' :~:' CONTAINS: 124,693.699 SQUAR~ FEET
PARCEL MAP WA~VEt? i-.:...'HIBIT "B "
AS PROPOSED '~ '
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
AGREEMENT NO. W.B.
SAND REMOVAL AGREEMENT
AND PREMISES LEASE
THIS AGREEMENT and LEASE is made and entered into this day of
,2000, by and between the CITY OF BAKERSFIELD, a municipal
corporation ("LESSOR" or"CITY" herein) and KERN BROTHERS TRUCKING, a California
corporation ("LESSEE" herein).
RECITALS
WHEREAS, the Sand Removal Agreement No. 90-09 W.B. between CITY and
LESSEE will terminate December 31, 2000; and
WHEREAS, LESSOR owns certain property, designated as Premises herein and
LESSEE desires to rent the Premises from .LESSOR for the purposes of sand and
overburden removal operations and adjunct p~ce~§ing::.ahd loading facilities; and
WHEREAS, LESSEE represents it is e~'~'tienced and well qualified in sand and
overburden removal along the Kern River ichannel and LESSEE's experience in sand
removal operations on the Kern River is, animPortant factor in CITY leasing Premises to
LESSEE; and :'~:~: i:...: ::~?
WHEREAS, LESSEE shaii::;~loS~iy supervise the sand.and overburden removal
operations on Premises andanderSt:ands additional permits are necessary, beyond this
Lease, for sand removal on {~e. Kern River; and
WHEREAS, LESSEE understands the Kern River has unpredictable flows which
may impact sand removal operations; and
WHEREAS, LESSEE is familiar with the adopted Kern River Channel Maintenance
Plan and LESSEE has made a physical inspection of the property prior to executing this
Lease; and
WHEREAS, LESSOR and LESSEE are willing to enter into this Lease for the
designated Premises under the terms and conditions set forth below.
NOW, THEREFORE, incorporating the foregoing recitals herein, LESSOR and
LESSEE mutually agree as follows:
1. THE PREMISES. LESSOR hereby leases to LESSEE, and LESSEE hereby
leases from LESSOR, on an AS IS basis, the surface of the following described property
in the of Kern, State of California (the "Premises"): The Premises are described
County
more particularly in Exhibit "A," attached hereto and incorporated herein by reference as
though fully set forth. A general description of the Premises follows: Equipment setup and
processing site is in Section 24, T.30S./R.25E. encompassing approximately acres
3
and
Sand Removal Agreement
C:\WIN DOWS\DESKTOP\KemBros.wpd
- September 21, 2000 -- Page 1 of 15 Pages --
the sand and overburden removal will be from the Kern River channel and defined
spreading basins of the City's "2800 Acre" groundwater recharge facility with portions of
the facility located in Sections 13 & 24, T.30S./R.25E. and in portions of Sections $,
8,9,10,16,17,18 & 19 of T.30S./R26E. LESSEE is fully informed that a bike path is planned
for a portion of the Premises and LESSEE agrees to fully cooperate on the placement of
the bike path and shall not interfere with its use. LESSEE agrees CITY has the right to
position and construct the bike path anywhere on the Premises without compensation to
LESSEE. LESSEE agrees to properly grade and develop ingress and egress roads.
this Lease is ten (10) full calendar years, beginning
2.
TERM,
The
term
of
January 1,2001 and ending at midnight, December 31,2011 unless sooner terminated as
provided for in this Lease.
$. RENT. Rental for the term of this Lease shall be the payment of the CITY's
set rate for sand and overburden removal; however, in no event shall the rental for the
Premises be less than two Thousand Dollars ($2,000) per acre per year as a minimum
annual rental to be paid by LESSEE on the anniverSary date of this Lease each year.
LESSEE shall submit to CITY Water ResourceSDe~:~ment its development cost incurred
in site preparation. LESSOR shall consider LESSEE':~:~asonable site preparation costs
and allow LESSEE to offset ~ts sand rem,oval:~:¢Ost by the amount of reasonable site
preparation costs. LESSOR alone shall:'~ter~ine what site preparation costs are
reasonable. The normal.fee for sand~.and~°~:~burden removal shall resume once the
reasonable costs of site preparation ha~/e:~beeh recovered by LESSEE. The cost granted
for sand removal and overburd~'h;!:s~'ail:.,beFifty Cents ($.50) per yard for cost recovery.
4. USE OF PREMIX'Es" :::~;~:[ESSEE shall use the Premises for the purpose of
sand removal operations only. LESSEE shall not, for any purpose, cause or allow the
installation of any permanent~:~q~ipment or structures of any kind within the designated
floodway. All equipment stationed for operation shall be fully portable and must have the
ability to be removed within twenty-four (24) hours. LESSEE shall remove said equipment
immediately in the event of emergencies, including without limitation, fires and floods.
LESSEE is solely responsible for determining the location of the designated floodway.
LESSEE
agrees to develop the Premises in an esthetically pleasing manner, and agrees
to submit all development plans to CITY Water Resources Department for prior approval.
LESSEE shall be sensitive to operating in open space areas for plant and habitat
preservation and river flow conditions.
5. WATER. LESSOR hereby represents and warrants that as of January
1,2001 there is one (1) water well furnishing water to the Premises with a flow rate of 1000
(one thousand) gallons per minute.
$.1 LESSEE shall have the non-exclusive right to use the water well and
distribution facilities on the Premises for the uses permitted under this Lease. LESSOR
shall have access to water wells on Premises for public uses including, without limitation,
bike rest stops, equestrian rest stops and other park and bike path uses.
5.2 LESSEE shall, at its sole cost and expense, maintain and repair any
Sand Removal Agreement
C:\WINDOWS~DESKTOP\KernBros.wpd
- September 21, 2000 -- Page 2 of 15 Pages --
water wells, including the electric motors, gear heads, diesel engines and fuel tanks where
applicable, and distribution facilities, and shall be responsible for all other operational
expenses in connection therewith. LESSEE shall not be responsible for drilling or
constructing any additional wells. Water from such facility shall be used only on the
Premises and in the performance of LESSEE's obligations hereunder, and such water shall
not be exported to other lands without the prior written consent of LESSOR. Neither party
shall be liable to the other for or reimbursement of kind because of a water
damages
any
well failure.
,5.3 Water Quality. LESSOR does not guarantee quality or quantity
the
of water, and, furthermore, LESSOR assumes no responsibility for any loss or damage due
to the quality or quantity of water.
,5.4 Groundwater Charges. LESSEE shall pay all groundwater charges,
all taxes, including but not limited to pump taxes, fees or penalties levied with respect to
the groundwater producing facility operated on the P. remises during the term of this Lease
or in any renewal or extension thereof :.:~
'
6. OPERATIONS ON THE PREMIsESi~:~:~:; ;~ii operations conducted on the
Premises' by LESSEE shall be conducted ~y'the::=LESSEE in accordance with the best
methods of sand removal practices and in~:~mpli~nce with all governmental laws, rules
and regulations. ..- :: ~i:;':'~
6.1 As used hbrein,::{~e te~ "Hazardous Material" means any hazardous
or toxic substance, material, or?:~ast~:' which is or becomes regulated by any local
governmental authority, the State of California, or the United States government. Except
as set forth herein, LESSOR?iS tranSferring property to LESSEE AS IS. LESSEE has the
right of entry to examine the P~'ises to determine the existence of Hazardous Materials.
Once LESSEE has entered into this Lease, the LESSEE takes the Premises AS IS and
assumes all responsibility and liability for every
the
Hazardous
Materials
of
kind
and
description found on the Premises including, but not limited to, clean up costs.
6.2 LESSEE agrees it will undertake no activity which would limit or hinder
in any way the LESSOR's ability, upon the termination of this Lease, to use the Premises
for any lawful use which might be undertaken by LESSOR.
6.3 LESSOR shall have the right to enter and inspect the Premises at any
time to ascertain that the terms of this Lease are being followed.
6.4 LESSEE shall apply for and maintain all required permits including,
without limitation, a new Sand Removal Agreement from CITY and a permit from the
California Department of Water Resources Reclamation Board. The Sand Removal
Agreement shall be attached hereto as Exhibit "A," and shall be incorporated herein as
though fully set forth. The permit from the Reclamation Board shall be attached hereto as
Exhibit "B," and incorporated herein as though fully set forth.
6.,5 LESSOR makes no covenants or warranties respecting the condition
Sand Removal Agreement
C:\WlNDOWS\DESKTOP\KernBros.wpd
-September21, 2000 -- Page 3 of 15 Pages --
of the soil or sub-soil or any other condition of the Premises.
6.6 LESSEE shall, without limitation, comply with all rules and regulations
governing the control of mosquitoes in the operation of the leased I:)remises. LESSEE
shall bear any and all costs of mosquito abatement chargeable to the Premises as a result
of the farming operations.
6.7 LESSEE shall not accept or allow any placement of septage, waste,
or trash of any type upon the Premises. Any unauthorized placement shall be immediately
reported to the CITY.
6.8 LESSEE shall not use LESSOR's sumps or reservoirs for any purpose
other than temporarily (less than ten (10) days) holding water, without the express written
consent of LESSOR. LESSOR may withhold consent for other uses for any reason or no
reason at all. LESSOR's written consent must be obtained at least thirty (30) days prior
to any other use of the reservoirs or sumps by LESSEE.
6.9 LESSOR will assist LESSEE?ii~:i~obtaining necesSary governmental
approvals.
6.10 LESSOR will, to the e~nt:',i:::~:i'lowed by law and by good channel
maintenance practices, allow LESSEE.exclasi~b rights to sand and overburden removal
in specified areas of the Kern River FlObdWaY °n CITY owned property as set forth on the
map marked as Exhibit "C," ~:'~di~0rpOrated herein by reference as though fully set
forth. LESSOR reserves the ~ri~'~!::ito ~:i'~locate, adjust the boundaries of or otherwise
manage the area specified aslit~he eX~iUsive rights area. LESSEE shall not gain any rights
in
the
exclusive
area beyondi~hose,~§et forth in this paragraph. No permanent rights of any
kind or nature are granted b'~:'~:i:s exclusive rights paragraph.
7. WASTE OR NUISANCE. LESSEE shall not commit or permit the
commission by others of any waste on the Premises; LESSEE shall not maintain, commit,
or permit the maintenance or commission of any nuisance as defined in Section 3479 of
the California Civil Code on the Premises; and the LESSEE shall not use or permit the use
of the Premises for any unlawful purpose.
8. INSURANCE HAZARDS. LESSEE shall not commit or permit the
commission of any hazardous acts on the Premises, nor use or permit the use of the
Premises in any manner that will increase the existing rates for, or cause the cancellation
of any insurance policy applicable to the Premises, or to LESSEE's operations hereunder
or LESSOR's future use of the Premises.
9. INSURANCE. In addition to any other insurance or bond required under this
Lease, the LESSEE shall procure and maintain for the duration of this Lease the following
types and limits of insurance ("basic insurance requirements" herein):
9.1 Automobile liability insurance, providing coverage on an occurrence
basis for bodily injury, including death, of one or more persons, property damage and
Sand Removal Agreement
C:\WIN DOWS\DESKTOP\KernBros.wpd
- S,,pt~mb, r ~. ~ooo -- Page 4 of 15 Pages --
personal injury, with limits of not less than One Million Dollars ($1,000,000) per occurrence;
and the policy shall:
9.1.1 Provide for non-owned and hired
coverage
owned,
autos.
9.1.2 Contain an additional insured endorsement in favor of
the LESSOR, its mayor, council, officers, agents and
employees.
9.2 Broad form commercial general liability insurance, ISO form CG00
01 11 85 or 88 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 Dollars ($1,000,000) per occurrence; and the policy shall:
9.2.1 Provide contractual liability coverage for the terms of
this Lease. ~ ~i.~~
9.2.2 Contain an:i!ad~iti°~i~":insured endorsement in favor of
the LESSO?R~i~?~!:ritS mayor, council, officers, agents,
employe~Si!and::::~esignated volunteers.
9.3 Workers' .comp~'nsati°n insurance with statutory limits and
employer's liability insurance with~:!i!imits: Qf not less than One MilliOn Dollars ($1,000,000)
per occurrence; and the policy sh~'il ~onl~in a waiver of subrogation endorsement in favor
LESSOR, its mayor, coubcil, 0~ers, agents, employees and designated
of the
volunteers.
9.4 All ,ired of the LESSEE shall be primary insurance as to
the LESSOR, its mayor, council, officers, agents, employees, or designated volunteers and
any insurance or self-insurance maintained by the LESSOR, its mayor, council, officers,
agents, employees, and designated volunteers shall be excess of the LESSEE's insurance
and shall not contribute with it. Additional insured endorsement shall use ISO form CG20
10 11 85 (in no event with an edition date later than 1990).
9.$ Insurance is to be placed with insurers with a Bests' rating of no less
than A:VII. Any deductibles, self-insured retentions or insurance in lesser amounts, or lack
of certain types of insurance otherwise required by this Lease, or insurance rated below
Bests' A:VII, must be declared prior to execution of this Lease and approved by the
LESSOR in writing.
9.6 All policies shall contain an endorsement providing the LESSOR with
thirty (30) days written notice of cancellation or material change in policy language or
terms. All policies shall provide that there shall be continuing liability thereon,
notwithstanding any recovery on any policy. Copies of policies shall be delivered to CITY
on demand.
9,7 The insurance required hereunder shall be maintained during the
Sand Removal Agreement
C:\WlN DOWS\DESKTOP\KernBros.wpd
-September21,2000 -- Page 5 of 15 Pages --
entire period, including any extension thereof, of the term of this Lease.
9.8 The LESSEE shall furnish the City Risk Manager with a certificate of
insurance and required endorsements evidencing the insurance required. The LESSOR
may withdraw its offer of contract or cancel this Lease if certificates of insurance, and
endorsements required have not been provided prior to the execution of this Lease.
Failure to maintain all insurance required hereunder shall be a material breach of this
Lease.
solely responsible for the payment of all insurance
9.9
LESSEE
is
premiums, and no additional allowance by LESSOR will be made for additional premiums
which may be required by extensions of the policies of insurance.
9.10 It is further understood and agreed by the LESSEE that its liability to
the LESSOR shall not in any way be limited to or affected by the amount of insurance
obtained and carried by the LESSEE in connection with this Lease.
9.11 Unless otherwise approved'bYi~LESSEE, if any part ofthe Premises
under this Lease is sublet, the "basic insurance requirements" set forth above shall be
provided by, or on behalf of, all sublessee,, the LESSOR has approved lesser
insurance requirements for LESSEE. ?,~:~: :~.
10. TAXES; PERSONAL PROPERTY. LESSOR shall pay all real property taxes
and assessments excepting poSsess0'~y interest taxes, covering the Premises and related
facilities on the Premises. LESSEE:~hali Pay all personal property taxes and assessments
covering its personal property?On th'~iPremises. All structures, installations and facilities
placed on the Premises by LESSEE shall be and remain the property of LESSEE so long
as this Lease is in effect. "EESSEE's interest hereunder may be subject to property
taxation and LESSEE, as a party in whom a possessing interest is vested, may be subject
to the payment of property taxes levied on such interest, and shall pay all such possessory
interest taxes.
DELETERIOUS TO REVERSION. LESSEE agrees
1
1.
ABATEMENT
OF
USES
that no permanent equipment or structures are allowed in the Kern River Floodway. With
respect to any use or improvement, including, but not limited to, sand removal operations,
water wells, delivery of water, other types of wells, temporary buildings, and underground
structures that would or with reasonable probability might reduce the value of the reversion,
LESSEE shall, on notice of demand by LESSOR, cause all such uses to cease at or before
the end of the term or sooner termination of this Lease or within a reasonable time
thereafter as specified in the notice, and shall cause all such structures and conditions to
be razed, abated, and removed, and the Premises to be rendered safe and free from
debris and hazards.
12. MAINTENANCE. Throughout the term, LESSEE:shall, at LESSEE's sole
cost and expense, maintain the Premises and all improvements in first-class condition and
repair, including, without limitation, all roads, fences, and equipment (unless otherwise
specifically agreed to herein). LESSEE shall take all reasonable steps to control dust and
Sand Removal Agreement
C:\WIN DOWS\DESKTOP\KemBros,wpd
- September21. 2000 -- Page 6 of 15 Pages --
other side effects that impact upon neighboring properties. In addition, LESSEE shall
maintain the Premises in accordance with all applicable laws, rules, ordinances, orders and
regulations of:
12.1 Federal, state, county, municipal, and other governmental agencies
and bodies having or claiming jurisdiction and all their respective departments, bureaus,
and officials;
12.2 The insurance underwriting board or insurance inspection bureau
having or claiming jurisdiction; and
12.3 All insurance companies insuring all or any part of the Premises or
improvements both.
or
12.4 LESSEE shall promptly and diligently repair, restore and replace as
required to maintain or comply as above, or to remedy all damage or destruction of all or
any part of the improvements. Reasonable wear and :tear on the Premises are excepted.
The completed work of maintenance, complianbe,'~air,.:restoration or replacement shall
be equal in value, quality and use to the conditi~n oft~: improvements before the event
giving rise to the work. LESSOR shall not be.!~:~Qired to furnish any services or facilities
or to make repairs or alterations of any kind::'ii~ or:~n the Premises.
13. LIENS. LESSEE shallk~epthe Premises free and clear from any and all
liens, claims ~ -demands f~:,~rk:::p~rformed, materials furnished, or operations
conducted thereon at the instanc~::::br.:re~uest of LESSEE.
14. · LEASE SUBJECT.TO EXISTING RIGHTS OF OTHERS. In addition to
being subject to all other exi~ti~ rights of others, this Lease is subject (a) to all existing
easements, servitudes, licenses and rights-of-way for canals, ditches, levees, roads,
highways, telegraph, telephone and electric power lines, railroads, pipelines and other
utility purposes; whether recorded or not, and (b) to the rights of the LESSOR under any
existing obligation affecting the Premises or any portion thereof, whether recorded or not.
15. ACTS CONSTITUTING DEFAULT. Any or all of the following actions shall
constitute a default of this Lease:
15.1 Use of the Premises for any purpose other than as authorized in this
Lease; or
15.2 Default in the payment of rent when due; or
15.3 Abandonment or vacation Of. LESSEE from the Premises; or
15.4 With the exception of rent forwhich no notice is required, a default in
the performance of any of the terms, covenants, or conditions hereof if not cured within
twenty (20) days after prior written notice by LESSOR to LESSEE.
Sand Removal Agreement
C:\WINDOWS~DESKTOP~KemBros,wpd
-Saptamb~ ~, ~000 -- Page 7 of 1 5 Pages --
exception of rent forwhich no notice shall
1
6.
LESSOR'S
REMEDIES.
With
the
be required, any default by LESSEE which shall continue, uncured, following twenty (20)
days notice of default shall be deemed a breach of this Lease. LESSOR has the following
remedies in addition to any and all rights and remedies provided by law or equity, to which
LESSOR maY resort cumulatively or in the alternative.
16.1 Termination. LESSOR may, at LESSOR's election, terminate this
Lease by giving LESSEE notice of termination. On a giving of said notice, all LESSEE's
rights to the Premises and in all improvements shall terminate. Promptly after notice of
termination, LESSEE shall surrender and vacate the Premises and leave all improvements
in a "broom clean" condition, and LESSOR may reenter and take possession of the
Premises and all the remaining improvements and eject all parties in possession, at
LESSOR's option. Termination shall not relieve LESSEE from the payment of any sum
then due and owing to LESSOR or from any claim for damages previously accrued or then
accruing against LESSEE, including, but not limited to, future rentals.
16.2 Lessor May ReenterWithout:Termination, LESSOR, at LESSOR's
election, reenter the Premises and, without te'rmin~ting th:e Lease, at any time and from
time to time relet the Premises and improvements 6:f:.i'~:ny part or parts of them for the
account and in the name of LESSEE or othe~i~se. LESSEE shall nevertheless pay to
LESSOR on the due date specified in this E~ase~:~the equivalent of all sums required of
LESSEE under this Leas~, plus LESSORiS e~nses, less the avails of any reletting or
attornment. No act by or on behalf of LESSOR under this provision shall constitute a
termination of this Lease unleS§:~'EES:SOR"~gives LESSEE notice of termination.
16.3 LESSOR:"mayi~:'"at LESSOR's election, use LESSEE's personal
property and trade fixtures, 0~: any:'of them, without compensation and without liability for
use or damage, or store the~?fci:~ the account and at the cost of LESSEE. The election of
oneitem remedy or for the fOrsame any oneitemitem at a shalllater not time. foreclose an election of any other remedy or another
16.4 LESSOR shall be entitled at LESSOR's election to each installment
of rent orto any combination of installments for any period before termination, plus interest.
Avails of reletting or attorned subrents shall be applied, when received, as follows:
16.4.'1 To LESSOR to the extent that the avails for the period
covered do not exceed the amount due from and charged to LESSEE for the same period
plus LEssOR's expenses;
16.4.2 The balance to the LESSEE.
16.5 LESSOR shall be entitled at LESSOR's election to damages in the
following sums:
16.5.1 All amounts that would have fallen due as rent between
the time of termination of this Lease and the time of the claim, judgment, or other award,
less the avails of all reletting and attornments plus interest and cost of reletting;
Sand Removal Agreement I
C:\WINDOWS\DESKTOP\KernBros.wpd
-September21, 2000 -- Page 8 of 15 Pages --
16.$.2 The "worth" at the time of the claim, judgment, or other
award of the amount by which the unpaid rent for the balance of the term exceeds the then
fair rental value of the Premises at the higher of the fair rental value as then encumbered
by the Lease and improvements and the fair rental value unencumbered by the Lease and
improvements. "Worth" as used in this provision is computed by discounting the total at
the discount rate of the Federal Reserve Bank of San Francisco at the time of the claim,
judgment, or award, plus one percent (1%).
16.6 LESSEE assigns to LESSOR all subrents and other sums falling due
from subtenants, licensees, and concessionaires d.uring any period in which LESSOR has
the right under this Lease to reenter the Premises for LESSEE's default and LESSEE shall
not have any right to such sums during such periods. LESSOR shall receive and collect
all subrents and avails from reletting, applying them: (1) to the payment of reasonable
expense (including attorney's fees or broker's commissions or both) paid or incurred by or
on behalf of LESSOR in recovering possession, placing the Premises and improvements
in good condition and preparing or altering the premises or improvements for reletting; (2)
to the reasonable expense of securing new Lessees;:(3)~:to the fulfillment of LESSEE's
covenants to the end of the term; (4) to LESSOR's use~ and purposes. LESSEE shall
nevertheless pay the LESSOR the due date spb~ifi~d the equivalent of all sums required
of LESSEE under this Lease, plus LESSOR's eXpenses, less the avails of the sums
assigned and actually collected under this ProViSion.
17. NON-MERGER oFi!~FE~'AN~ ~LEAsEHOLD ESTATES. If both LESSOR's
and LESSEE's estate in the Premi§es.°r the improvements or both become vested in the
same owner, this Lease shallneverth~less not be destroyed by application of the doctrine
of merger except with the ex~ress::~lection of LESSOR.
18. INSOLVENCY OF LESSEE. The insolvency of LESSEE as evidenced by
a receiver being appointed to take possession of all, or substantially all, of the property of
the LESSEE, the making of a general assignment for the benefit of creditors by LESSEE,
or the adjudication of LESSEE as bankrupt under the Federal Bankruptcy Act, shall
terminate this Lease and entitle LESSOR to re-enter and regain possession of the
Premises.
19. OWNERSHIP OF IMPROVEMENTS.
19.1 Exclusion of Existing Improvements. Title to improvements on the
Premises at the commencement date of this Lease are retained by LESSOR unless
otherwise provided in the paragraph describing the Premises, and this Lease is subject to
any rights of ownership in the improvements. The parties covenant for themselves and all
persons claiming under them that the improvements are real property.
19.2 Ownership of New Improvements During Term. Except as
otherwise stated, all improvements constructed on the Premises by LESSEE as permitted
by this Lease shall be owned by LESSEE until expiration of the term or sooner termination
of this Lease. LESSEE shall not, however, remove improvements from the Premises
any
I Sand Removal Agreement
C:~WIN DOWS\DESKTOP\KemBros.wpd
-September21, 2000 -- Page 9 of 15 Pages --
nor waste, destroy, or modify any improvements on the Premises, except as permitted by
this Lease. The parties covenant for themselves and all persons claiming under them that
the improvements are real property.
19.3 Ownership at Termination.
19.3.1 Reversion to Lessor. All improvements on the
Premises at the expiration of the term or sooner termination of this Lease shall, without
compensation to LESSEE, then become LESSOR's property free and clear of all claims
to or against them by LESSEE or any third person, and LESSEE shall defend and
indemnify LESSOR against all liability and loss arising from such claims or from LESSOR's
exercise of the rights conferred by this paragraph.
19.3.2 Lessee's Duty to Remove. At the expiration or sooner
termination of the term, at LESSOR's election, LESSOR may demand the removal from
the Premises of all fixtures and improvements or of certain fixtures or improvements of
both, as specified in the notice provided for below.:,,::!A~demand to take effect at the normal
expiration of the term shall be effected by notice gi~nat.~any time within three (3) months
before the expiration date. ^ demand to take '~ffect o~!i:.~:~y other termination of the Lease
shall be effected by notice given in or concurre~{l~ith notice of such termination or within
thirty (30) days after such termination. LESS'EEi~:~hall comply with the notice before the
expiration date, for norm&'l termination andwit~ih thirty (30) days after the notice for other
terminations.
20. NOTICE OF LESSOR~S'DEFAULT; LESSEE'S WAIVER. Except for the
payment of rent for which no notice..i{:mquired, LESSOR shall not be considered to be in
default
under
this
Lease
unleSs
(,1:) 'LESSEE has given notice specifying the default and
(2) LESSOR has failed for tw&~ i20) days to cure the default, if it is curable, or to institute
and diligently pursue reasonable corrective or ameliorative acts for noncurable defaults.
LESSEE shall have the right of termination for LESSOR's default only after notice to and
consent by all lienholders under recorded liens then existing under provisions of this Lease
relating to purchase or construction of improvements. LESSEE waives the protections of
Civil Code Section 1932 and 1933.
21. LESSEE'S DUTY TO SURRENDER.
21.1 At the expiration or earlier termination of the term, LESSEE shall
surrender to LESSOR the possession of the Premises. Surrender or removal of
improvements, fixtures, trade fixtures, and improvements shall be as directed in provisions
of this Lease on ownership of improvements at termination. LESSEE shall leave the
surrendered Premises and any other property in good and broom-clean condition except
as provided to the contrary in provisions of this Lease on maintenance and repair of
improvements. All property that LESSEE is required to surrender shall become LESSOR's
property at termination of the Lease. All property that LESSEE is not required to surrender
but that LESSEE does abandon shall, at LESSOR's election, become LESSOR's property
at termination.
Sand Removal Agreement
C:\WINDOWS\DESKTOP\KemBros,wpd
- September21. 2000 -- Page 10 of 15 Pages --
2'1.2 If LESSEE fails to surrender the Premises at the expiration or sooner
termination of this Lease, LESSEE shall defend and indemnify LESSOR from all liability
and expense resulting from the delay or failure to surrender, including, without limitation,
claims made tenant founded from LESSEE's failure to
by
any
succeeding
on
or
resulting
surrender.
22. LESSOR'S GENERAL PROTECTIVE PROVISION. In the event LESSEE
shall fail to pay and discharge or cause to be paid and discharged, when due and payable,
any tax, assessment, or other charge upon or in connection with the Premises, or any lien
or claim for damages arising out of the construction, repair, restoration, replacement,
maintenance, and use of the Premises, any improvements, or any judgments, or any
contested lien or claim, or any insurance premium or expense caused by LESSEE's failure
to perform any obligation under this Lease, or in connection with the Premises, any
improvements, or any other claim, charge, or demand which LESSEE has agreed to pay
or cause to be paid under the covenants and conditions of this Lease, and if LESSEE, after
twenty (20) days written notice from LESSOR to do so shall fail to pay or begin responding
to repair, maintain or cure the same, then LESSORmaY, at its option, pay, repair, maintain
or cure any such tax, assessment, insurance, eXPense; lien, claim, charge, expense
obligation (e.g., maintenance and repair of anY impr0~ments on the Premises including,
but not limited to, existing fences) or demand;"0~i::~.~nttle or discharge any action therefore
or judgment thereon, and all costs, expen~esand other sums incurred are paid by
LESSOR in connection of the foregoi:ng :shall:be paid by LESSEE to LESSOR upon
demand. Failure to so pay upoB. suqb~.:;demand shall constitute a material breach of this
Lease by LESSEE enabling LESSO~:! at it§~ option, to determine LESSEE to be in default
and proceed with any remedy av~ilable'::i~t law or equity available to LESSOR.
23. HOLDING ovER. ,This Lease shall terminate without further notice at
expiration of the term. Any hbld:i'ng over by LESSEE after expiration shall not constitute
a renewal or extension or give LESSEE any rights in or to the Premises except as
otherwise in this Lease.
expressly
provided
24. ACCEPTANCE OF WORK OR SERVICES. The acceptance of work or
services, or payment for work or services, by LESSOR shall not constitute a waiver of any
provisions of this Lease.
25. ACCOUNTING RECORDS. LESSEE shall maintain accurate accounting
records and otherwritten documentation pertaining to the performance of this Lease. Such
records and documentation shall be kept at LESSEE's office during the term of this Lease,
and for a period of three (3) years from the date of termination hereunder, and said records
shall be made available to LESSOR representatives upon request at any time during
regular business hours.
26. ASSIGNMENT AND SUBLETTING. Neither this Lease, nor any interest in
it, may be assigned, sublet or transferred by LESSEE without the prior written consent of
LESSOR. Any such assignment, subletting or transfer will be subject to such terms and
conditions as LESSOR may choose to impose. Any sublessee or assignee must agree,
in writing, to abide by all the terms and conditions of this Lease prior to the transfer of any
Sand Removal Agreement
C:~WlNDOWS\DESKTOP\KemBros.wpd
- September 21, 2000 -- Page 11 of 15 Pages --
interest herein. Any sublessee or assignee must demonstrate, at a minimum, adequate
financial capability and relevant experience and expertise to LESSOR prior to LESSOR's
approving any sublease or assignment. All documentation relating to showing financial
capacity, experiehce and expertise shall be delivered to LESSOR upon demand.
27. BINDING EFFECT. The rights and obligations of this Lease shall inure to the
benefit of, and be binding upon, the parties to the Lease and their heirs, administrators,
executors, personal representatives, successors and assigns.
28. COMPLIANCE WITH ALL LAWS. LESSEE shall, at LESSEE'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 Lease, and shall faithfully
observe in all activities relating to or growing out of this Lease all Municipal ordinances and
State and Federal statutes, rules or regulations, and permitting requirements now in force
or which may hereafter be in force including, without limitation, obtaining a City of
Bakersfield business tax certificate (Bakersfield Muoicipal Code Chapter 5.02) where
29. CORPORATE AUTHORITY. E~c~"'in~i~i'~:~al signing this Lease on behalf
of entities represents and warrants that he/she'i~!;~;mspectively, duly authorized to sign on
behalf of the entities and to bind the entitiesf~ily td'i~ach and all of the obligations set forth
30. EXECUTION. T6i§!iLe:aSe..is :effective upon execution. It is the product of
negotiation and all parties are eqaally, responsible for authorship of this Lease. Section
1654 of the California Civil COae sh~l :not apply to the interpretation of this Lease.
3'1. EXHIBITS. ini!;!~:~' event of a conflict between the terms, conditions or
specifications set forth in this Lease and those in exhibits attached hereto, the terms,
conditions, or specifications set forth in this Lease shall prevail. All exhibits to which
reference is made in this Lease are deemed incorporated in this Lease, whether or not
actually attached.
32. GOVERNING LAW. The laws of the State of California will govern the
validity of this Agreement, its interpretation and performance. Any litigation arising in any
way from this Agreement shall be brought in Kern County, California.
33. FURTHER ASSURANCES. Each party shall execute and deliver such
papers, documents, and instruments, and perform such acts as are necessary or
appropriate, to implement the terms of this Lease and the intent of the parties to this
Lease.
34. INDEMNITY. LESSEE shall indemnify, defend, and hold harmless LESSOR,
its officers, agents and employees against any and all liability, claims, actions, causes of
action or demands whatsoever against them, or any of them, before administrative or
judicial tribunals of any kind whatsoever, arising out of, connected with, or caused by
LESSEE, LESSEE's employees, agents or independent contractors or companies in the
Sand Removal Agreement
C;\WINDOWS\DESKTOP\KemBros.wpd
-Septem. ber 21, 2000 -- Page 12 of 15 Pages --
performance of, or in any way arising from, the terms and provisions of this Lease whether
or not caused in part by a party indemnified hereunder, except for CITY's sole active
negligence or willful misconduct.
35. MERGER AND MODIFICATION. All prior agreements between the parties
are incorporated in this Lease which constitutes the entire agreement. Its terms are
intended the as a final expression of their agreement with respect to such terms
by
parties
as are included herein and may not be contradicted by evidence of any prior agreement
or contemporaneous oral agreement. The parties further intend this Lease constitutes the
complete and exclusive statement of its terms and no may
extrinsic
evidence
whatsoever
be introduced in any judicial or arbitration proceeding involving this Lease. This Lease may
be modified only in a writing approved by the City Council and signed by all the parties.
36. NEGATION OF PARTNERSHIP. LESSOR shall not become or be deemed
a partner or joint venturer with LESSEE or associate in any such relationship with LESSEE
by reason of the provisions of this Lease. LESSEE shall not for any purpose be
considered an agent, officer or employee of LESSOR..
37. NON-INTEREST. No officero~empl°~:°fthe LESSOR (CITY) shall hold
any interest in this Lease (California Government Code section 1090).
38. NOTICES. All notices relative to this Lease shall be given in writing and shall
be personally served or sent by certified or registered mail and be effective upon actual
personal service or depositing i~ithe:~:'United States mail. The parties shall be addressed
as follows, or at any other addre~!:ae~ig'nated by notice:
LESSOR: CITY OF BAKERSFIELD
WATER RESOURCES DEPARTMENT
Attention: Gene Bogart
Buena Vista Road
1
000
Bakersfield, California, 93311
Telephone: (661) 326-3715
LESSEE: KERN BROTHERS TRUCKING
Attention:
3920 Mercury Avenue
Bakersfield, California 93308
Telephone: (661) 323-1261
39, TAX NUMBERS.
"LESSEE's" Federal Tax Identification No.
"LESSEE" is a corporation? Yes No
(Please check one.)
40. NO WAIVER OF DEFAULT. The failure of any party to enforce against
another party any provision of this Lease shall not constitute a waiver of that party's right
Sand Removal Agreement
C:~WlN DOWS\DESKTOP\KemBros.wpd
-September21,2000 -- Page 13 of 15 Pages--
tOLease.enforce such a provision at a later time, and shall not serve to vary the terms of this
4'1. SINGULAR AND PLURAL, The singular number includes the plural
whenever the context so requires.
42. PRE-JUDGMENT INTEREST. In the event of a default by any party to this
Lease, the non-defaulting party shall be allowed to recover interest on all damages at the
legal rate from the date of the breach.
43. MINERAL INTERESTS. LESSOR reserves the exclusive right to all minerals,
including but not limited to, oil, gas and hydrocarbon substances, within or underlying said
land, or that may be produced therefrom, and to prospect on said land for water and said
minerals and to mine, drill for and remove the same. This Lease is made subject to
restrictions and conditions of record, to any and all easements and rights-of-way to any and
all outstanding interest in, and rights to, minerals and mineral ores, including but not limited
to, oil, natural gases, hydrocarbon substances, geo!hermal steam, brines and minerals in
solution and sand, gravel and aggregates, in ~nd..~n~erlying the leased Premises.
IN WITNESS WHEREOF, the parti~??~ere~?have caused this Lease to be
executed, the day and year first-above written.
CITY OF "LES SO R"/"C ITY" BAKERSFIELDi :: ili:!ii!: KERN "LESSEE" BROTHERS TRUCKING
By: By:
BOB PRICE, Mayor
Title:
CITY OF BAKERSFIELD WATER BOARD
By:
MARK C. SALVAGGIO, Chair
APPROVED AS TO CONTENT:
WATER RESOURCES DEPARTMENT
By:
GENE BOGART
Water Resources Manager
(MORE SIGNATURES ON FOLLOWING PAGE)
Sand Removal Agreement
C:\WIN DOWS\DESKTOP\KernBros.wpd
-Septem~r 24. 2000 -- Page 14 of 1 5 Pages --
APPROVED AS TO FORM:
BART J. THILTGEN
City Attorney
By:
ALAN D. DANIEL
Deputy City Attorney
Insurance:
COUNTERSIGNED:
By:.
GREGORY J. KLIMKO
Finance Director
,.
Attachments: Exhibits "A," "B"
Sand Removal Agreement
CAWINDOWS\DESKTOP~KemBros.wpd
- Soptamber 2~, 2000 -- Page 1 5 of 15 Pages --
NORTH KERN WATER STORAGE DISTRICT
P.O. Box 81435 33300 Cawelo Avenue
Bakersfield, CA 93380-1435 Bakersfield. CA 93308-9575
Administration Water Orders and Operations
Telephone (661) 393-2696 Telephone (661) 393-3361
Facsimile (661) 393-6884' Telephone (661) 746-3364
September 1 I, 2000
MARTIN Buena Vista Water District
MILOBAR,
Storage
GENE BOGART, City of Bakersfield
MARK MULKAY, Kern Delta Water District
DANA S. 1WONN, North Kern Water Storage District
RE: 2000-2001 Weather Modification Program
Gentlemen:
I recently had a meeting with Tom Henderson and requested information on the subject
program. His reply is attached:
Simply put, he will honor the 1999-2000 Contract amount of"$84,400 - plus" and then,
to extend the program to include November-as it once was-, the amount would be "$98,4000 -
plus."
I also inquired as to a year-round program so as to capture early or late season storms
plus summer monsoons during July-September such as we saw this year. That would be at
"$133,100 - plus."
I urge consideration of the year-round program as we can then say we are doing
everything we can to maximize local water and thereby prevent or delay others from stepping in
and arguing over amounts generated. Occasionally there are those around and above Isabella
who raise such thoughts including the Feds.
We will get together and discuss this further before the end of the month.
Very truly yours,
C. H. Williams
Staff Assistant
Attachment
I
I
I
COST ESTIMATES
I FOR KERN RIVER CLOUD SEEDING PROGRAM
OPTIONS
!
!
Option 1. Operational period 1 November 2000 through 31 May 2001 (7-months)
I with option to delete May whenever desired.
Payment Schedule [ Amount
I 1 November 2000 $14,000
I 1 December 2000 14,000 + November consumables
1 January 2001 14,000 + December consumables
I 1 February 2001 14,000 + January consumables
1 March 2001 14,000 + February cOr~sumables
I 1 April 2001 11,000 + March consumables
1 May 2001 10,500 + April consumables
I 1 June 2001 6,900 + May consumables
TOTAL $98,400 + consumables
I
Average annual consumables would not be expeL'ted to exceed $.14.;000.' At tile present · · ..
I time, consequential loss insurance at $2,000,000 (special liability) is available for an
additional $3,200 per year.
I May could be deleted for a reduced contract amount of $6,900. Notification of this
", deletion should be no later than 1 April 2001.
I
'1
I 5652 EAST DAYTON / FRESNO, CALIFORNIA 93727 / TELEPHONE t.~55))29t-5576 / FAX t~9) 291-5579
E-UA, IL: WXMOO~ATMOS-INC.COM I WEB SITE: HTTP:IIWWW. ATMOSolNC.COM
I
Option 2. Operational period 1 October 2000 through 30 September 2001 (12-months).
I
Payment Schedule I Amount
I 1 October 2000 $14,000
I 1 November 2000 14,000 + October consumables
1 December 2000 14,000 + November consumables
I 1 January 2001 14,000 + December consumables
1 February 2001 14,000 + January consumables
I 1 March 2001 14,000 + February consumables
1 April 2001 11,000 + March consumables
I 1 May 2001 10,500 + April consumables
1 June 2001 6,900 + May consumables
I 1 July 2001 6,900 + June consumables
1 August 2001 6,900 + July consumables
I 1 September 2001 6,900 + August consumables
~ TOTAL $133,100 + consumables
I
Consumables would not be expected to. exceed $ l 9,000
IOptions to terminate the program for a portion or all of the summer months of May
through September are acceptable. A 30-day notice ora monthly deletion is required.
INo charges would be assessed for those deleted monthly periods.
I
I
I 6652 EAST DAYTON I FRESNO, CALIFORNIA 93727 I TELEPHONE !~65g)291-6576 I FAX ;~) 291-6679
E-MAIL: WXMODOATIdOS-INC.COM / WEB 81TE: HTTP://WWW. ATMOS-INC.COM
!
WATER BOARD AGREEMENT NO.
AGREEMENT NO.
DOMESTIC WATER SERVICE AGREEMENT
THIS AGREEMENT is made and entered into on , by and
between the CITY OF BAKERSFIELD, a Charter city and municipal corporation, ("CITY"
herein) and W. A. and Shirlyn Davenport (dba Jack Davenport Sweeping), Joel B. Mundorf
(dba The Silk Garden) and Ralph and Dorothy Palla, collectively known as HENRY LANE
("Partners" herein).
PARTNERS
RECITALS
WHEREAS, PARTNERS are owners or agents of owners for real property
("Property"), and desire to be provided domestic and fire protection water to real property,
more fully described in Exhibit "A" attached hereto and incorporated by reference, located
on Henry Lane and near Rosedale Highway; and
WHEREAS, City owns and operates a domestic water distribution system known
as the City of Bakersfield Domestic Water System, which can provide domestic and fire
protection service to Property with water pipes and mains located along the south right-of-
way of Rosedale Highway near Henry Lane; and
WHEREAS, PARTNERS' Property is presently within the water service area of
California Water Service Company (Cai-Water) and the nearest Cai-Water distribution
water mains are not within an economically feasible extension distance to provide water
service to Properties at this time; and
WHEREAS, City is willing to share the cost of and coordinate the construction of an
extension of its water distribution mains from City system to the north side of Rosedale
Highway in order to provide water service to PARTNERS' Property that is located within
Cai-Water service area; and
WHEREAS, PARTNERS are willing to share the cost of extension of City water
main across Rosedale Highway to the northeast corner of the intersection of Rosedale
Highway and Henry Lane; and
WHEREAS, City will provide potable water through City mains to Cai-Water at
Highway and Henry Lane and shall make arrangements
Rosedale
PARTNERS
with
Cai-
Water for retail water service to Property; and
WHEREAS, PARTNERS will annex its Properties into the boundaries of the City of
Bakersfield at such time that Properties are contiguous to the City;
-Page 1 of 5-
~,~ · NOW, THEREFORE, incorporating the foregoing recitals herein, City and
PARTNERS mutually agree as follows:
I 1. WATER SERVICE. Upon completion of water pipeline extension across
Rosedale Highway at Henry Lane, City will provide potable water to Cai-Water through a
I metered connection. PARTNERS to make with Cai-Water for
are
arrangements
any
distribution mains or individual services to be installed for retail water services to
PARTNERS' Properties.
I
2. WATER MAIN EXTENSION COSTS. PARTNERS agree to pay.to City two
thousand five hundred dollars ($2,500.00) each, for a total of seventy-five hundred dollars
I ($7,500.00) prior to the initiation of construction of water main extension across Rosedale
Highway. PARTNERS agree to pay before December 1, 2000. City agrees to construct
i or have constructed the main crossing installation under Rosedale Highway on a timely
basis, with City providing the remaining costs for the installation. The total estimated cost
is $20,000.00. The water main extension is an 8" diameter pipe to be bored under SR 58
i (Rosedale Highway). A map of pipeline location is attached as Exhibit "B".
3. ANNEXATION. Should the property owned by PARTNERS become
I contiguous to the City, the PARTNERS will voluntarily annex such property to the City
immediately upon such contiguity occurring and prior to said annexation, will conform to
the standards, regulations and restrictions set forth in all City Codes and Ordinances,
I including the right of City to inspect and enforce said codes and ordinances. Partners shall
immediately sign a covenant to annex to the City of Bakersfield, which shall run with the
land. Partners agree that their successors in interest and assigns shall be bound by said
I covenant.
4. INDEMNITY. PARTNERS shall indemnify, defend, and hold harmless
I CITY, its officers, agents and employees against any and all liability, claims, actions,
causes of action or demands whatsoever against them, or any of them, before
administrative or judicial tribunals of any kind whatsoever, arising out of, connected with,
I or caused by PARTNERS, PARTNERS' employees, agents, independent contractors,
companies, or subcontractors in the performance of, or in any way arising from, the terms
and provisions of this Agreement whether or not caused in part by a party indemnified
I hereunder, except as limited by California Civil Code section 2782 or CITY's sole active
negligence or willful misconduct.
I 5. TITLE. PARTNERS shall have title interest the
no
to,
or
ownership
in,
City
Domestic Water System or any part thereof whatsoever.
. I 6. NOTICES. All notices relative to this Agreement shall be given in writing and
shall be personally served or sent by certified or registered mail and be effective upon
i actual personal service or depositing in the United States mail. The parties shall be
addressed as follows, or at any other address designated by notice:
i CITY: CITY OF BAKERSFIELD
City Hall
1501 Truxtun Avenue
I Bakersfield, California, 93301
I -Page 2 of 5-
HENRY LANE PARTNERS: Jack Service
1)
Davenport
Sweeping
Davenport, W. A. and Shirlyn D
2601 Henry Lane
Bakersfield, CA 93308
2) Silk Garden
Joel B. Mundorf
7530 Rosedale Hwy.
Bakersfield CA 93308-5694
3) Ralph & Dorothy Palla
2610 Henry Lane
Bakersfield, CA 93308-5702
7. NATURE OF SERVICE. It is specifically recognized and intended by the
parties hereto that in performing its obligations under this Agreement, PARTNERS shall
not offer or perform any service on behalf of the City unless specifically agreed to herein.
8. CORPORATE AUTHORITY. Each individual signing this Agreement on
behalf of entities represent and warrant that they are, respectively, duly authorized to sign
on behalf of the entities and to bind the entities fully to each and all of the obligations set
forth in this Agreement.
9. COMPLIANCE WITH ALL LAWS. PARTNERS shall, at PARTNERS' sole
cost, comply with all of the requirements of Municipal, State, ahd 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, and permitting
in forcewhich hereafter be in force without
requirements
now
or
may
including,
limitation,
obtaining a City of Bakersfield business tax certificate (Bakersfield Municipal Code Chapter
5.02) when Property is annexed to City.
10. GOVERNING LAW. The laws of the State of California will govern the
validity of this Agreement, its interpretation and performance. Any litigation arising in any
way from this Agreement shall be brought in Kern County, California
11. WAIVER OF DEFAULT. The failure of any party to enforce against another
provisions of this Agreement shall not constitute a waiver of that party's right to enforce any
provision at a later time, and shall not serve to vary the terms of this Agreement.
12. ASSIGNMENT. Neither this Agreement, nor any interest in it, may be
assigned or transferred by any party without the prior written consent of all the parties. Any
such assignment will be subject to such terms and conditions as CITY may choose to
impose.
-Page 3 of 5-
13. BINDING EFFECT. The rights and obligations of this Agreement shall inure
to the benefit of, and be binding upon, the parties to the Agreement and their heirs,
administrators, executors, personal representatives, successors and assigns.
14. MERGER AND MODIFICATION. All between the parties
prior
agreements
are incorporated in this Agreement which constitutes the entire agreement. Its terms are
intended by the parties as a final expression of their agreement with respect to such terms
as are may not by any prior agreement
included
herein
and
be
contradicted
evidence
of
or contemporaneous oral agreement. The parties further intend this Agreement constitutes
the complete and exclusive statement of its terms and no extrinsic evidence whatsoever
may be introduced in any judicial or arbitration proceeding involving this Agreement. This
Agreement may be modified only in a writing approved by the City Council and signed by
all the parties.
15. EXECUTION. This Agreement is effective upon execution. It is the product
of negotiation and all parties are equally responsible for authorship of this Agreement.
Section 1654 of the California Civil Code shall not apply to the interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, the day and year first-above written.
"CITY" "PARTNERS"
CITY OF BAKERSFIELD HENRY LANE PARTNERS
JACK DAVENPORT SWEEPING
By:, By:
BOB PRICE Mayor Shirlyn D. Davenport
Title:
APPROVED AS TO CONTENT:
WATER RESOURCES DEPARTMENT SILK GARDEN
By: By:
GENE BOGART Joel B. Mundorf
Water Resources Manager
Title:
(MORE SIGNATURES ON FOLLOWING PAGE)
-Page 4 of 5-
APPROVED AS TO FORM: HENRY LANE PARTNERS
BART J. THILTGEN
City Attorney RALPH and DOROTHY PALLA
By: By:
ALAN D. DANIEL Ralph Palla
Deputy City Attorney
Title:
COUNTERSIGNED: ACKNOWLEDGED:
CALIFORNIA WATER SERVICE CO.
By: By:
GREGORY J. KLIMKO
Finance Director
Title:
!
Attachments: Exhibit "A" ~,
i Exhibit "B"
I FC:sr
S:~2000CONTRACTS\DavenportWaterService
I
-Page 5 of 5-
452-06 PTN. $WI/4 SEC. 21 T.29S. R.27E. sc.oo~
K.C. LAND CO. SUBD.
.. ,,~.~m~Z , ,,.~ ~ · .~ . .-
~ ]-.... ,,l~
~.~, ~ .~': ~SS[SSORS MAP NO.~.~a.=9.~..
.... " ~ ;;I;;'.
H~NKY LAN~ PAR~RS PROPERTY
m m m mm mm m m mm mm m mm m mm m ,,~ m m mm
/ I_~ 30' .~ t
~ ROSEDALE HIGHWAY ~ cS
m~, NO TES:
...... -) -- ~o ... ~ I) UTILITIES SHOWN ARE FROM RECORD INFORMATION, CONTRACTOR
2) ALL FACILITIES DAMAGED OR REMOVED DURING CONSTRUCTION SHALL
BE REPLACED IN KIND.
3) CONTRACTOR SHALL BE RESPONSIBLE FOR OBTAINING ALL NECESSARY
PERMITS TO COMPLETE CONSTRUCTION.
4) THE CONTRACTOR IS RESPONSIBLE FOR VERIFICATION OF THE LOCATION
AND DEPTH OF ALL EXIS TING UTILITIES PRIOR TO BEGINNING OF ANY WORK.
CALL U.S,A. UNDERGROUND ALERT (800) 227.2600 PRIOR TO ANY
CONSTRUCTION OR EXCAVATION.
-- ACCORDING TO AVAILABLE RECORDS. THEENGINEERISNOTRESPONSIBLE
....... FOR POSSIBLE ERRORS OR OMISSIONS AND IT SHALL BE THE
CONTRACTORS RESPONSIBILI T~ TO VERIFY LOCATION OF ALL UTILITIES
PRIOR TO CONSTRUCTION.
EXISTING R-O..W J 6,) CONTRACTOR AGREES THAT HE SHALL ASSUME SOLE AND COMPLETE
RESPONSIBILITY FOR JOB SITE CONDITIONS DURING THE COURSE OF
~ C~NSTRUCTION OF THIS PROJECT; INCLUDING SAFET~ OF ALL ~ERSONS~ -
~ ~ ~ CONTRACTOR SHALL DEFEND. INDEMNIFY AND HOLD THE OWNER AND THE
ROSEDALE HIGHWAY AND HENRY LANE
CITY OF BAKERSFIELD
REVISED OCT. 2, 2000 I CITY OF BAKERSFIELD WATER RESOURCES
I