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HomeMy WebLinkAbout08/18/99 WATER BOARD Mark C. Saivaggio, Chair David Couch, Vice Chair Irma Carson CITY OF BAKERSFIELD WATER BOARD MEETING WEDNESDAY, AUGUST 18, 1999 - 4:30pm Water Resources Building Conference Room 1000 Buena Vista Road, Bakersfield, CA AGENDA 1). CALL MEETING TO ORDER 2). ROLL CALL 3). APPROVAL OF JUNE 21, 1999 SPECIAL MEETING MINUTES 4). PUBLIC STATEMENTS Ms. Robyn Cady - Kern River freeway project 5). KERN RIVER OPERATIONS REPORT 6). OLD BUSINESS A. KERN RIVER PARKWAY WATER SUPPLY MANAGEMENT AGREEMENT - Status report 7). NEW BUSINESS A. PARTICIPATION IN ENERGY OPTIONS INVESTIGATION FOR 2800 ACRES AND INTERFACE PROJECT - For Board approval B. DOMESTIC WATER MAIN REFUND AGREEMENT RE-ASSIGNMENT - For Board information C. SOILS SURVEY MAP FOR METRO AREA - For Board information D. REQUEST FROM COLEMAN PROPERTY MANAGEMENT FOR EXTENSION OF CARRIER CANAL DEVELOPMENT AGREEMENT - For Board approval 8). WATER BOARD MEMBER COMMENTS 9): CLOSED SESSION CONFERENCE WITH LEGAL COUNSEL -- EXISTING LITIGATION. CLOSED SESSION PURSUANT TO SUBDIVISION (A) OF GOVERNMENT CODE SECTION 54956.9. CITY OF BAKERSFIELD, ETC. V. KERN DELTA, ETAL.; KERN COUNTY SUPERIOR COURT CASE NO. 239088 10). CLOSED SESSION ACTION I i) ADJOURNMENT Gene Bo~~nager POSTED: August 13, 1999 S:WBAGAUI8 1000 BUENA VISTA ROAD · BAKERSFIELD, CALIFORNIA 93311 ° (661) 326~3715 MINUTES OF THE SPECIAL MEETING .... OFTHE WATER BOARD - CITY OF BAKERSFIELD Held Monday, June 21, 1999, Water Resources Conference Room, I000 Buena Vista Road, Bakersfield, CA 93311. 1. The meeting was called to order by Boardchair Salvaggio at 4:32 p.m. 2. Present Mark Salvaggio, Chair David Couch, Vice-Chair Irma Carson (seated at 4:38 p.m.) 3. Boardmember Couch made a motion to approve the minutes of the Regular Water Board meeting held April 21, 1999. Motion carried. 4. No public statements. 5. An update on the current Kern River operations was given by Hydrographic Supervisor Steve Lafond. The 1999 April-July runoff is 268,000 acre-feet or 59% of normal. Lake Isabella storage is currently at 334,000, well below the Willow Flycatcher temporary injunction level of 347,580 acre feet. City contracts will be able to deliver full ag water contracts for 1999. The Kern River Parkway flow program was successful for Memorial Day and the inaugural Beach Park Regatta held on June 19th. Water is scheduled for the July 4th and Labor Day holidays. There was discussion regarding the Delta Smelt situation and the State Water shortage it may cause locally. Boardmember Couch asked for a report summarizing the best case/worst case scenario. For Board information, no action required. 6. Old Business. 6A. A status report was given by Mr. Bogart on the Kern River Parkway Water Supply Management Agreement. The water management progr .am has worked very well, with City and ID4 staff coordinating deliveries to keep a steady flow of water in the river on weekends at the most visible areas. A new difficulty for the program is the Delta Smelt issue and how it effects the water flow from the north. The Kern County Water Agency is hesitant to finalize the agreement with the commitments for water flows as they feel that it's difficult to factor into the agreement this type of emergency situation. This item was discussed at length. Staff will have this as an ongoing update item on the Water Board agenda. For Board information, no action required. 7. New Business. 7A. The consolidation of the Kern River Levee District with the City was brought before the ~ Board by Mr. Core. A number of years ago the City attempted a consolidation to streamline the operation of the maintenance of the Kern River Levee system through Bakersfield, but at the time, it was rejected by the Kern River Levee District Board. Due to a transition in the ~ Kern River Levee District Board, they now wish to pursue this consolidation with the City. The leve~ is an important structure to the City of Bakersfield for protection from flooding in areas within the City. The existing District generates approximately $16,000 a year in tax income plus the City would receive inventory on hand, so this would not involve additional costs to the residents of the City. A motion was made by Boardmember Couch for recommendation to City Council for approval of this consolidation. Motion carried. 7B. Mr. Hauptman presented a Resolution concerning an Operations and Maintenance Plan for the South Levee Upgrade of the Kern River properties to the Board. The City entered into an agreement with Carosella and Coleman Homes, Inc. Wherein in exchange for riparian Kern River property, the City would construct, operate, and maintain an earthen levee. The levee was required by FEMA in order for Coleman Homes, Inc. to build homes for residential and commercial development. Also, FEMA requires the City adopt an operation and maintenance plan for the levee and a Resolution is necessary for documentation of this Operations and Maintenance Plan. A motion was made by Boardmember Couch to recommend approval of this Resolution to City Council. Motion carried. 7C. The Right of First Refusal for sale of California State Water Entitlement was presented before the Board by Mr. Core. The City received from the Kern County Water Agency a Right of First Refusal regarding proposed permanent sale of 4,000 acre-feet of Belridge Water Storage District State Water Project entitlement to Palmdale Water District and a Right of First Refusal regarding proposed permanent sale of up to 15,000 acre-feet of Lost Hills Water District State Water Project entitlement to Alameda County Flood Control and Conservation District, Zone 7. The price for the entitlement is $1,000 per acre-foot. Boardmember Couch made a motion that Water Resources Manager sign the Right of First ~ Refusal to decline purchase of such water for both proposals. ~ 8. Water Boardmember comments. Boardmember Couch asked Mr. Lafond to summarize the Delta Smelt report he requested and submit it to the full Council for general information. 9. Closed session. Adjourned to Closed Session at 5:19 p.m. 2 9A. Conference with legal counsel - existing litigation, closed session pursuant to Govemment Code Section 54956.9(a) Kern Delta Water District vs North Kern Water Storage District, et al., Tulare County Superior Court Case No. 96-172919. 9B. Initiation of litigation pursuant to subdivision (C) of Section 54956.9 of the Government Code - one case. The meeting reconvened at 6:23 p.m. 10. No action taken, received advice from Counsel. 11. The Boardmembers and staff left at 6:24 p.m. for tour of the New Kern River Levee and Spreading Area. 12. The meeting adjoumed at 6:52 p.m. Mark Salvaggio, Chair City of Bakersfield Water Board Sharon Robison, Secretary City of Bakersfield Water Board S:\WBMINUTE 1999\WBMIN6-21 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: August 12, 1999 ISABELLA RESERVOIR 1 2571.78 Lake Elevation (ft.) 246549 Storage (AcFt) -2102 Change (AcFt) 185 Inflowto Isabella (cfs) 2 568075 Storage Capacity 43% % of Capacity 243030 Normal Storage 101% % of Normal Storage For this Date 3 7508 Average LakeArea (Acres) 5952 Inflow(Month) 27404 Outflow(Month) 4 185 North Fork Mean 208 North Fork @ 0600 Hours 452732 Accumulative Inflow(98-99 WY) 5 1147 Mean Outflow 568 Borel Canal 579 Main Dam Outlet 535588 Accum. Outflow(WY) 6 1115 Outflow @ 0600 570 Borel Canal @ 0600 Hours 545 Main Dam Outlet @ 0600 Hours Hours 7 98 Lake Evap. (cfs) 0.38 Inches Evap. for 24 Hours 2313 Lake Evap. (Month to Date) 8 0 Spillway Discharge for 24 Hours PRECIPITATION AND TEMPERATURE 9 0.00 Inches of Precipitation at Isabella for 24 Hours 0.00 Inches of Precipitation at Isabella for Month 10 9.36 Seasonal Precip. Isabella 9.86 Normal for 95% Isabella Precip. (Season: Oct 1 through Sep 30) this Date % of Normal 11 0.00 Inches of Precipitation at Pascoe for 24 Hours 0.00 Inches of Precipitation at Pascoe for Month 12 28.10 Seasonal Precip. Pascoe 35.00 Normal for 80% Pascoe Precip. this Date % of Normal 13 0.0 Upper Tyndall Creek 0.0 Pascoe 0.0 Wet Meadow 14 81 Isabella Maximum Temperature 15 60 Isabella Minimum Temperature 111 24 Hour Wind Movement (Miles) NATURAL RIVER FLOW 16 226 Natural Flow (cfs) 6124 Natural Flow (Month to Date) 251463 1999 April-July Runoff 17 575 Mean Flow 39% Natural Flow 377 Median Flow 60% Natural Flow For this Date in % of Mean For this Date in % of Median 18 2756 Max. on Record 93 Min. on Record 473721 Accum. Natural Flow (Water Year) For this Date For this Date 19 1150 First Point Flow 27576 First Point (Month to Date) 555159 Accum. First Point (Water Year) KERN RIVER FACTS & FIGURES: ~ · Dudng the pedod of August17-19, 1983, an unusuallystrongAuguststormsystemmovedthrough S A K E ~ S F [ ~ ~D the Kern River South Fork basin, causing the flow at Onyx station to rise from 168 cfs to a peak instantaneous discharge of 2, 533 cfs. At Lake Isabella,. 90" of precipitation was recorded during the Produced by City of Bakersfield storm period, contributing to the third highest August rainfall total on record. Kem River natural flow Water Resources soared to 3, 795 cfs on August 19, 1983, the highest flow rate ever registered for the month of August. (661) 326-3715 ITEM 6).A. KERN RIVER PARKWAY WATER SUPPLY MANAGEMENT AGREEMENT - Status Report KERNWATERBANKAUTHORITY August 10, 1999 Martin Milobar Florn Core Buena Vista Water Storage District City of Bakersfield Water Resources Dept. Post Office Box 756 1000 Buena Vista Road Buttonwillow, California 93206 Bakersfield, California 93311 Jon Parhell Rick Iger Cross Valley Canal Manger Kern County Water Agency Post Office Box 58 Post Office Box 58 Bakersfield, California 93302-0058 Bakersfield, California 93302-0058 Jerry Pearson Harry O. Starky West Kern Water Storage District Berrenda Mesa Water District Post Office Box MM 2100 "F" Street, Suite 100 Taft, California 93268-0024 Bakersfield, California 93301 Re: Energy Options Investigation - Letter of Intent to Commit Dear Sirs: The Kern Water Bank Authority (KWBA) invites your participation in an investigation aimed at reducing energy costs, as discussed in previous correspondences and meetings (see attached project description). The purpose of this letter is to: 1) establish a mechanism to contract and fund the project, and 2) establish your commitment to the project. The Kern Water Bank Authority will establish contracts with the consultants selected by the participant committee. The KWBA will pay consultant invoices and other appropriate costs (e.g. travel for out-of-town meetings) monthly. In tum, the KWBA will invoice each participant for their share of the project costs as shown in the following table. Connected Load Project Cost Allocation (mW) I Berrenda Mesa 2.6 6.4%1 Buena Vista 0.6 1.5% City of Bakersfield 2.4 5.9% Cross Valley Canal 13.4 32.8% Kern Water Bank 15.9 38.9% 'Pioneer 5.4 13.2% West Kern -0.6 1.5% Total 40.9 100.0% Post Office Box 80607 [ Bakersfield, California 93380-0607 I Phone 805°3994735 I Fax 805-399-9751 August 10, 1999 Page 2 of 2 Please note that the cost allocation will change if one or more of the projects does not participate. Each participant agrees to commit to the investigation for their share of a not-to-exceed total of $100,000, unless a lesser amount is later determined to be sufficient by all of the participants. The KWBA believes that this project can yield significant benefits and we look forward to working with all of you. If the foregoing is acceptable, please execute both originals of this letter in the space provided below and return both to the KWBA. A fully executed original will be returned to you for your files. Sincerely, Jonathan D. Parker Project Manager Project Participant: By: Title: Date: ROSEDALE HWYI · ~RIMF ALL / Connected koad {mW) ~ 8errenda Mesa WSD (2.6) ~ ] Buena ~sta WSD (0.0) ~ City of Bakersfield (1.9) ~KernWalerBank(,5.9)Kern Rive Fan Projects ~ M~lister Ranch r 0 1 2 Miles ~ pioneer Project ~ West Kern WD (0.6) Kern Water Bank ~ Cross Valley Canal (12.8) A uthori~ MAINLINE EXTENSION REFUND ASSIGNMENT CITY OF BAKERSFIELD WATER RESOURCES DEPARTMENT - DOMESTIC WATER DIVISION The undersigned hereby assigns to The Bierly Family 1993 Trust, Ivan R. Bierly and Leon R. Bierly, Trustees 22445 Cupertino Road, # 58, Cupertino, CA 95014 all its right, title and interest in and to the following described Water Extension Agreement: With: City of Bakersfield Dated: 08/12/87 Completion date: For: Water facilities - WB #87-09, TR #-4901, Units C & D Amount of deposit: $94,861.59 Balance of deposit: $68,774.65 Number of services: Number of hydrants: Refund basis: The exclusive right to receive from the City of Bakersfield, on an annual basis, 2 ~ percent of the deposit to inStall facilities in compliance with Section C (2) of the Main Extension Rule, which is within the General Provisions and definitions of said rules. The undersigned warrants that it is the owners of said agreement free and clear of all claims, liens or encumbrances, and agrees to defend and hold the assignee harmless of and from all costs or claims arising out of any violation of this provision. Accepted: .'- City of Bakersfield Ivan R. Bierly & Margaret D. Bierly DiTector of Wa't'b'~Re~urces Ivan R. BJerly Margaret D. Bierly Dated: 'q~"'~¢--/ ~ General Soils Data N 2010 General Plan Boundary Soil Types Sandy Loams ~Fine Sandy Loams Sands and Gravels Fine Sands/Silts Loamy Sands ~Kem River Wash ~ Silty/Sandy Loams I Clay/Sandy Loams Silty Loam, Hard Sub-Strata .' 5251 Office Park Drive, Suite 200 · Bakersfield, CA 93309 · Telephone: (661) 326-1141 Facsimile: (661) 326-1139 July 29, 1999 Mr. Gene Bogan gUS 0~1999 Manager Water Resources Depa~ment CiTY OF BAKERSFIELD 1000 Buena Vista Road WATER RESOURCES Bakersfield, CA 93311 Re: Extension Request Carrier Canal Development Agreement No. 88-188 Dear Mr,: B0gart: our discussion, please accept this letter as our request to extend the Carrier! Agreement No. 88-188 between the City of Bakersfield and Inc. for a period of five years. our lease with Occidental Petroleum will expire in the next 12 do not anticipate at this time a renewal of that lease. We are therefore requesting}¢i~:,~xtension so that we can address any parking concerns that may develop as a result.;:6f 6fi~ marketing efforts. In your review of this request I would be happy to meet with you or your staff to answer any questions you might have. Additionally, as you have requested, I have attached a copy of the original approved agreement. Should you have any questions, please feel free to give me a call. Thank you for your assistance regarding this matter. sincerely,/~_._~ Gary Grt~mbles Vice PreSident CC/mw AGREEMENT NO. 88-188 CARRIER CANAL DEVELOPMENT AGREEMENT · THIS CARRIER CANAL DEVELOPMENT AGREEMENT, is made and entered into this 10th day of Auqust , 1988, by and between ? the CITY OF BAKERSFIELD, a municipal corporation (CITY), and COLEMAN CONSTRUCTION, INC., a California corporation (DEVELOPER). RECITALS 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 be delineated on the map attached to and made a part of this agreement as Exhibit "A"; and, WHEREAS, DEVELOPER will pay fair market value for the Carrier Canal at the improved price (not including surface 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, -i- WHEREAS, 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 follow~: 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- cations approved by the CITY. The work to be done under this agreement is shown on the attached drawings entitled Exhibit "A", and will be further described in plans and specifications which will be prepared for this project and such plans and specifications are incorporated by reference as though fully set forth herein, and shall be binding on the parties to this agreement. All work shall be done as set forth in this contract, the attached exhibits, and the plans and specifications. 2. APPROVAL OF PLANS: DEVELOPER shall provide CITY with a complete set, or sets, of construction plans and specifica- tions and a complete set of "as built" plans for the covering of a portion of the Carrier Canal delineated in Exhibit "A." CITY's written approval of all plans and specifications shall be neces- sary prior to any construction on the Carrier Canal. All plans and specifications provided by DEVELOPER for the parking structure shall be at DEVELOPER's sole expense and shall not be included in the cost for the total project. Plans and specifications for the improvements appurtenant to the 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- or required to complete the project, shall be provided and securely installed and placed by DEVELOPER. Provision and installation of materials and equipment shall include everything required for satisfactory performance, regardless of omission of specific reference on plans or specifications. Standard building practice will be followed to achieve this result. Materials and equipment in the project shall be new. Workmanship shall be first class. ~4. WARRANTIES: DEVELOPER guarantees and warrants all work performed under this agreement for a period of one (i) 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 Dypass 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 BE 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 DAMAGES OTHERWISE PROVIDED BY LAW. THE DEVELOPER AND THE CITY SPECI~(:AL~ ~Y ~ ~EDGE Deve] :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 $1,286,0'00.00 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- 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 on~l : 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 20r000.00 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 and undertakings and which maintains in said State at least one office for the conduct of its business. Said surety (or sureties) shall furnish reports as to its financial condition from time to time as requested by the CITY. The premiums for said bonds shall be paid by the Contractor. c) If any surety becomes unacceptable to the CITY or fails to furnish reports as to is financial condition as requested by the CITY, the Contractor shall promptly furnish such additional security as may be required from time to time to protect the interests of the CITY and of persons supplying labor or materials in the prosecution of the work contemplated by this agreement. -5- d) In the event of any conflict between the terms of this agreement and the terms of said bonds, the terms of this. agreement shall control and said bonds shall be deemed to be amended thereby. Without limiting the foregoing, the CITY shall be entitled to exercise all rights granted to it by this Agreement in the event of default, without control thereof by the surety, provided that the CITY gives the surety notice of such default at the time or before the exercise of any such right by the CITY, and regardless of the terms of said bonds, the exercise of any such right by the CITY shall in no manner affect the liability of the surety under said bonds. 10. QUIT CLAIM DEEDS: Upon completion and acceptance by the City of all work performed by DEVELOPER under this agreement, the CITY shall grant to DEVELOPER by quit claim deed all right and title to the portion of the Carrier Canal covered by this pro- ject (as shown in Exhibit A), and DEVELOPER shall grant back to CITY 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. -6- 14. FORUM: Any lawsuit pertaining to any matter arising under or growing out of this contract shall be instituted in Kern County, California. 15. TIME: Time is of the essence in this Agreement. 16. ~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 shall not be assigned by any party, or any party substituted, without prior written consent of all the parties. 19. BINDING EFFECT: The rights and obligations of.this Agreement shall inure to the benefit of, and be binding upon, the parties to the contract and their heirs, administrators, executors, personal representatives, successors and assigns. 20. ATTORNEY'S FEES: In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its attorney's fees and court costs and other 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. -7- 22. CORPORATE AUTHORITY: Each individual executing this Agreement represents and warrants 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 discriminate 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 of execution, unless sooner terminated by the com- pletion 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. -8- 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 volunteers. 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. -9- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed, the day and year first-above written. w CITY OF BAKERSFIELD Mayor APPROVED AS TO FORM: ARTHUR J. SAALFIELD COUNTERSIGN ~ .'~ ./ ~ ON R N, INC. COL Rober~ R'. '~r nI vice P esident ~ance ADD:lg 07/26/88 7 A.CANALi-10 -I0- ITEM 9). CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION. CLOSED SESSION PURSUANT TO SUBDIVISION (A) OF GOVERNMENT CODE SECTION 54956.9. CITY OF BAKERSFIELD, ETC. V. KERN DELTA, ET AL; KERN COUNTY SUPERIOR COURT CASE NO. 239088.