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HomeMy WebLinkAboutAGRMT NO KRGSA 19-012KRGSA 19-012 Sustainable Groundwater Management Act Management Agreement with Kern River Groundwater Sustainability Agency This Agreement ("Agreement") is made and entered into this 61'x day of I�c'UMVaerr, 2019, by and between the Kern River Groundwater Sustainability Agency ("KRGSA"), and the landowner identified in Exhibit A ("Landowner"). KRGSA and Landowner are sometimes each individually referred to herein as a "Party" and collectively as the "Parties." RECITALS WHEREAS, Landowner is an individual, or authorized agent of an entity owning real property in Kern County, California ("Landowner Land") located outside of the KRGSA's boundaries, which boundaries are generally shown on Exhibit B, attached hereto and incorporated by reference. WHEREAS, KRGSA is an exclusive Groundwater Sustainability Agency formed pursuant to the Sustainable Groundwater Management Act ("SGMA") and created by its members, the City of Bakersfield, Improvement District No. 4 of the Kern County Water Agency, and Kern Delta Water District ("KRGSA Members") and which overlies a portion of the Kern County Sub -basin (Basin Number 5-022.14, DWR Bulletin 118). WHEREAS, the Landowner Land is overlying the Kern County Sub -basin (Basin Number 5-022.14, DWR Bulletin 118). The Department of Water Resources (DWR) has designated the Kern County Sub -basin a high-priority and critically overdrafted basin. WHEREAS, the Landowner desires that the Landowner Land be included within the KRGSA's GSP so as to provide a process for the Landowner Land to be subject to a GSP and KRGSA is willing to include Landowner Land in its GSP and manage Landowner Land pursuant to SGMA and in accordance with this Agreement. WHEREAS, KRGSA shall endeavor to modify the KRGSA boundary to include Landowner Land. . WHEREAS, the Landowner intends to waive certain provisions of SGMA that may limit KRGSA's SGMA jurisdiction over the Landowner Land, and expressly requests that Landowner Lands be managed pursuant to SGMA by the KRGSA. WHEREAS, the Parties understand that neither the inclusion of the Landowner Land within the KRGSA's GSA, GSP, nor this Agreement, in any way provides Landowner with a right to any portion of the water supplies owned by the KRGSA Members. NOW, THEREFORE, in consideration of the foregoing Recitals and the following terms and conditions, it is agreed by and between the Parties as follows: Page 1 of 9 I. PURPOSE OF AGREEMENT The Parties enter into this Agreement solely for the purpose of providing the Landowner a process to attempt to comply with SOMA through the inclusion of the Landowner Land within the KRGSA's GSP. Neither the KRGSA, the KRGSA Members, nor any landowners within the KRGSA's boundaries are committing anything to the Landowner or the Landowner Land except for the inclusion of the Landowner Land within the KRGSA's GSP, provided that Landowner complies with the terms of this Agreement, the KRGSA GSP, and any other rules, regulations, ordinances, and resolutions of the KRGSA adopted pursuant to Water Code Section 10725.2. H. TERMS AND CONDITIONS OF INCLUDING LANDOWNER LAND WITHIN THE KRGSA'S GSP 1. Commitment to Include Landowner Land in KRGSA's GSP. The KRGSA hereby agrees to include the Landowner Land within the KRGSA's GSP, and the Landowner hereby agrees for the Landowner. Land to be included within and managed pursuant to the KRGSA's GSP, and to otherwise be subject to regulation and management by the KRGSA, provided that the Parties have complied with all provisions of this Agreement. Landowner acknowledges that there might be additional reporting requirements, monetary charges, or compliance measures imposed upon Landowner in connection with SOMA by the California Department of Water Resources ("DWR"), the State Water Resources Control Board, the courts, or other agencies or bodies with the authority to enforce terms and conditions of SOMA separate and apart from the KRGSA and the KRGSA GSP. Landowner acknowledges and agrees that the KRGSA has no duty under this Agreement or ability otherwise to prevent such measures from being imposed on Landowner. 2. Landowner Cooperation. The Landowner agrees to and shall be independently responsible to provide information and funding at the request of the KRGSA to maintain and support the efforts to include the Landowner Land within the KRGSA's GSP so as to comply with SOMA and any future statutory laws and regulations that may be adopted to amend SOMA, supplement SOMA, replace SOMA or other laws or regulations adopted to engage in the sustainable management of groundwater in relation to the Landowner Land. Landowner agrees to and shall comply with the KRGSA's GSP, rules, regulations, and policies, as may be adopted and as may be amended from time to time. 3. Regulation Contingent on Funding. Landowner acknowledges and agrees that the KRGSA's inclusion of the Landowner Land within the KRGSA's GSP, and KRGSA's efforts to include the Landowner Land within the KRGSA's GSP pursuant to this Agreement, are contingent upon Landowner's regular and timely payment of KRGSA Fees and Charges, which include but may not be limited to the following components (1) the general administrative expenses of the KRGSA, (2) costs for consultants retained by the KRGSA for the purposes of developing or implementing the KRGSA's GSP, (3) Page 2 of 9 administrative or other costs the KRGSA incurs in implementing SGMA, and (4) any other costs attributable to managing Landowner Land pursuant to SGMA and/or the KRGSA GSP. Upon final execution of this Agreement, KRGSA shall bill and Landowner shall pay the KRGSA $8.00 per acre of Landowner Land as an initial payment to fund the KRGSA's efforts made pursuant to this Agreement. 4. Determination of Funding Obligation. The amount of any additional payments required for services rendered by the KRGSA or others for the purposes of fulfilling the obligations set forth herein, or the formula for the calculation of such payments, and the method of such payments, shall be determined by the KRGSA, and notwithstanding any provision of law, the Landowner agrees and consents to a fee, charge and/or assessment being levied on Landowner Land for such Charges. 5. Failure to Satis Funding Obligation & GSP Requirements. Landowner acknowledges and agrees that if, for any reason, Landowner refuses or otherwise fails to remit any payment required hereunder, in the amount and using the method determined and requested by the KRGSA, or fails to comply with the requirements of the GSP and its management and regulation ("Defaulted Landowner") the KRGSA: (a) shall be relieved of any and all obligation to proceed with including the Defaulted Landowner's Land within the KRGSA's GSP; (b) shall be relieved of any and all obligation to provide the services and obligations enumerated in this Agreement to a Defaulted Landowner; and (c) may, in its sole and absolute discretion, seek to remove the Defaulted Landowner's Land from the KRGSA's GSA and GSP and no longer manage such lands pursuant to SGMA, all at Defaulted Landowner's expense. In such event the Defaulted Landowner agrees to obtain regulation under SGMA by some other method separate and apart from the KRGSA pursuant to the terms for a withdrawing Landowner set forth in Paragraph 6 of this Agreement, or as otherwise agreed among the Parties. (d) may, in its sole and absolute discretion, place a lien upon the Landowner land for amounts due but not paid, and/or seek specific performance or obtain any other remedy or relief available at law or in equity; and (e) shall have no obligation to reimburse Landowner for any KRGSA Fees and Charges paid to such date. 6. No Protest in Case of Removal of Defaulted Landowner Land: Duty to Cooperate. Landowner agrees that if Landowner breaches the terms of this Agreement, including but not limited to the refusal or failure to follow the KRGSA GSP, or to remit any payment required herein, following notice of the alleged breach and reasonable opportunity to cure, the KRGSA may, in its sole and absolute discretion, seek to remove the Defaulted Landowner's Land from the KRGSA's GSA and GSP, and if the KRGSA Page 3 of 9 1 does so, the Landowner shall not lodge any protest, participate in any protest hearing, or act in any way to influence the outcome of the KRGSA's decision. Landowner further agrees to work in good faith with the KRGSA to provide the KRGSA any materials or information in Landowner's possession or control that may, in the KRGSA's sole determination, be necessary or appropriate to effectuate the KRGSA's decision to remove the Defaulted Landowner Land from the KRGSA's GSP, including, but not limited to, providing timely responses to requests for information and meeting with KRGSA representatives to establish terms of removal. 7. Disclaim Water Rights. (a) Landowner expressly disclaims any right to any KRGSA Member's water rights, water supplies, or facility usage other than through a negotiated purchase, transfer, or exchange that Landowner has obtained or may obtain wholly outside of this Agreement and not related to this Agreement. Landowner understands and agrees that as a result of the foregoing disclaimer, among other things, inclusion of the Landowner Land within the KRGSA's GSA or GSP will not entitle Landowner to receive any portion of a KRGSA Member's water supply or facility usage. Landowner further understands and agrees the sole purpose of this Agreement is to provide the Landowner a process to obtain SGMA coverage for Landowner Land through the KRGSA's GSP. Landowner further understands and agrees that any other benefits accruing to the Landowner Land and/or to Landowner as a result of this Agreement are purely incidental and shall not give rise to any expectation, entitlement, or right to any KRGSA Member's water supplies of any kind, including, but not limited to, Kern River water, State Water Project water, Central Valley Project water, supplies from any lake, river, stream, manmade conveyance, or aquifer that the KRGSA Member purchases, acquires, transfers, exchanges, takes receipt of or otherwise controls, including groundwater supplies or any return flows that may enter the underground aquifer as a result of delivery by the KRGSA Member of any of the foregoing water supplies, or any other designation or classification of KRGSA Member's water whatsoever, whether in existence at the time this Agreement is executed or created at some future time. (b) As a material provision of this Agreement, Landowner expressly agrees, acknowledges, and understands that the KRGSA was formed to better serve the lands located within the KRGSA Members' boundaries and to provide for the sustainable management of groundwater underlying such lands, and that to the extent any additional water supplies may be needed for sustainability purposes now or in the future, such water supplies would be obtained independently by the City of Bakersfield, Improvement District No. 4 of the Kern County Water Agency, and/or Kern Delta Water District for the benefit of lands underlying the boundaries of such KRGSA Members. Landowner expressly disclaims and waives any claim or right that the KRGSA must or should obtain any water supplies, and understands that to the extent water supplies are needed, such supplies will be obtained independently by City of Bakersfield, Improvement District No. 4 of the Kern County Water Agency, and/or Kern Delta Water District for the benefit of lands underlying such KRGSA Members and will not be obtained by the KRGSA, and hence would not be available to lands outside of the boundaries of the KRGSA Members, including Landowner Land. Page 4 of 9 (c) Landowner recognizes that absent an imported supplemental surface water supply or supplemental groundwater supply, either presently available to Landowner Land or later provided directly to Landowner Land by other sources, the Landowner's ability to pump groundwater may be curtailed pursuant to the GSP. 8. No Voluntary Consent. Once the Landowner Land is included within the KRGSA's GSP and the GSP is approved by DWR, Landowner hereby agrees not to consent to the inclusion of the Landowner Land within another GSP developed by any entity other than the KRGSA without the KRGSA's express prior written consent. 9. Notice of Aereement. Landowner agrees to provide a copy of this Agreement to each and every person and entity who owns or receives any interest in any portion of the Landowner Land. 10. Runs with the Land. The benefits and burdens of this Agreement are intended to attach to and run with the land described in Exhibit A to this Agreement, are related to the direct benefit, use, maintenance, and improvement of the Landowner Land, and shall be binding on and inure to the benefit of the Parties and their respective legal representatives, successors, heirs and assigns. It is the intent of the Landowner, from the date of this Agreement, that the equitable servitudes, covenants, conditions, restrictions, assessments and other duties and obligations contained herein, or contained in the KRGSA's GSP as may be adopted and amended from time to time (so long as such lands have not been withdrawn from management under the KRGSA GSP pursuant to this Agreement), run with the land and shall be binding on any and all successors or assigns. All persons or entities claiming under the Parties, or who accept deeds, leases, easements or other grants of conveyances to any portion of the Landowner Land agree that they shall be personally bound by all of the provisions of this Agreement, and shall conform to and observe the provisions of this Agreement and the KRGSA's GSP. The Parties agree that a covenant evidencing this Agreement and its nature as attaching to and running with the land shall be executed by the Landowner and recorded with the Clerk/Recorder of the County of Kern as a condition to the inclusion of the Landowner Land within the KRGSA's GSP. Upon withdrawal of Landowner Land, a notice to such effect shall also be executed and recorded. 11. Entire Agreement: Amendments or Modifications. The Parties agree that this Agreement contains the entire Agreement and understanding concerning the subject matter among the Parties and supersedes and replaces all prior negotiations of proposed agreements, written or oral, if any. This Agreement shall not be amended or modified except in writing, executed and agreed to by all of the Parties to this Agreement. 12. Effective Ille ag lity. If any paragraph, sentence, clause, or phrase becomes illegal, null, or void for any reason or is held by any court of competent jurisdiction to be illegal, null, void, or against public policy, the remaining paragraphs, sentences, clauses, or phrases are not affected, and the Parties shall negotiate an equitable adjustment of the affected provision with a view toward effecting the purpose of this Agreement. Page 5 of 9 13. No Third -Party Rights. Nothing in this Agreement, whether expressed or implied, is intended, or is to be construed, or otherwise interpreted as, conferring any rights or remedies on any third parties. Also, nothing in this Agreement gives any third parties any rights of subrogation against any Party. 14. Goveming_Law and Venue. This Agreement is entered into and performed in the State of California and is to be interpreted pursuant to the internal substantive law, and not the law of conflicts, of the State of California. Venue in any action brought under this Agreement shall be in the Superior Court of the County of Kern, State of California. 15. Indemnification. Landowner ("Indemnifying Party") shall protect, defend, indemnify and hold harmless the KRGSA, the KRGSA Members, and their respective directors, officials, officers, managers, employees, contractors, consultants, and agents ("Indemnified Party") from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, attorneys' fees and expenses) imposed upon, incurred by, or asserted against an Indemnified Party arising out of, resulting from, or in connection with (a) any indemnification obligation undertaken by the KRGSA or a KRGSA Member with respect to the Landowner or the Landowner Land now or in the future, and (b) any action taken or omitted to be taken by the Indemnifying Party under or related to this Agreement or the KRGSA GSP, including but not limited to the following: (i) the actions or omissions by Landowner or Landowner's affiliates, members, managers; employees, contractors and agents related to this Agreement and/or the KRGSA or its GSP; (ii) Landowner or Landowner's affiliates, members, managers, employees, contractors and agents' violation of any applicable laws or regulations; (iii) the failure on the part of Landowner or Landowner's affiliates to perform or comply with any of the terms of this Agreement and/or the KRGSA GSP; or (iv) the inclusion of Landowner Land in the KRGSA GSP, provided, however, that such indemnity shall not extend to any such suit, claim, or damage to the extent caused solely by the negligent or wrongful acts or omissions of any Indemnified Party. The indemnification provisions in this section shall survive expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by the KRGSA, or the KRGSA Members, or their respective directors, officials, officers, managers, employees, contractors and agents. 16. SGMA Jurisdictional Waiver. Landowner knowingly and voluntarily waives any provision of SGMA, the regulations implementing SGMA, or other provision of law that limits or restricts KRGSA's jurisdiction over Landowner Lands, including the provision of Water Code section 10726.8 (b) which states, among other matters "Nothing in this part shall be construed as authorizing a local agency to ... impose fees or regulatory requirements on activities outside the boundaries of the local agency." Landowner expressly waives such provision(s) and expressly requests and authorizes the KRGSA to impose SGMA related fees and regulatory requirements on activities related to Landowner Lands, as set forth in this Agreement. .17. Effective Date and Term of Agreement. The effective date of this Agreement shall be the date as referenced above. This Agreement shall remain in effect Page 6 of 9 with respect to the Landowner unless and until either (1) termination by mutual agreemeftt of the Parties. (2) such Landowner fails to perform according to the terms of this Aureement. or (3) such Landowner withdraws irom the :Agreement pursuant to Section�6 hereof'. IN WITNESS WHEREOF. the parties hereto have caused this Agreement to executed. the day and year first -above written. KRGSA KERN RIVER GROUNDWATER SUSTAINABILITY AGEN By: RODNEY PALLA Chairman APPROVED AS TO FORM: KRGSA ATTORNEYS VlkbINIA GENNARO ROBERT HARTSOCK AMELIA T. MINABERRIGARAI LANDOWNER I30S FAMILY TRUST 1r By, Ll COUNTERSIGNED: KRGSA MANAGERS DAVID BEARD ART CHIANELLO L. MARK MULKAY Page 7 EXffiBIT A [List of Landowner & Property Descriptions] NAME APN ACRES BOS FAMILY TRUST; AND 184-120-30 80 Page 8 of 9 EXHIBIT B -- FOR OFFICIAL USE ONLY --- Kern River Groundwater Sustainability Agency (GSA) AJ Bos \ Ll A R w+E 0 S 3.25 6.5 Miles LJT g: Bakers -field. m Kern River GSA Boundary AJ Bos (Add to KRGSA) I —1;. FOR THE BENEFIT OF AND RECORDING REQUESTED BY AND MAIL TO: KERN RIVER GROUNDWATER SUSTAINABILITY AGENCY c% City of Bakersfield 1600 Truxtun Avenue Bakersfield, CA 93301 Jon Lifquist, Assessor -Recorder JL Kern County Official Records 1/10/2020 02:43 PM Recorded Electronically by: 017 City of Bakersfield Ci ooc#: 220004127 111111111111111111111 220004127 NOTICE USE Clerk Stat Types: 1 Pages: 2 FEES .00 TAXES .00 OTHER .00 PAID .00 Please take notice that each parcel of land referenced below is subject to the jurisdiction of the Kern River Groundwater Sustainability Agency and other matters pursuant to agreement number KRGSA 19-012 entitled "Sustainable Groundwater Management Act Management Agreement with Kern River Groundwater Sustainability Agency," dated December 5, 2019, a copy of which may be obtained from the Kern River Groundwater Sustainability Agency. PARCEL NO.: 184-120-30 Dated: 1 - 7 - -zo A..0 BOS FAMILY TRUST By irffed Name: ,,�}�cr ✓�Li�n �'ayS FOR THE BENEFIT OF AND RECORDING REQUESTED BY AND MAIL TO: KERN RIVER GROUNDWATER SUSTAINABILITY AGENCY c/o City of Bakersfield 1600 Truxtun Avenue Bakersfield, CA 93301 SPACE ABOVE THIS LINE FOR NOTICE DOCUMENT ELECTRONICALLY RECORDED IN THE OFFICIAL RECORDS Please take notice that each parcel of land referenced below is subject to the jurisdiction of the Kern River Groundwater Sustainability Agency and other matters pursuant to agreement number KRGSA 19-012 entitled "Sustainable Groundwater Management Act Management Agreement with Kern River Groundwater Sustainability Agency," dated December 5, 2019, a copy of which may be obtained from the Kern River Groundwater Sustainability Agency. PARCEL NO.: 184-120-30 Dated:—/ - 7 - t? -o a..o BOS FAMILY TRUST PziritedName: i� 7. • .V� ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached and not the truthfulness, accuracy or validity of that document. State of California ) County of On ���. % 2020, before me, ---Notary Public, personally appared—i�e��-T��,3s , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal.*My SUSAN K. LAMAS Notary Public . California Z Kern County n Commission k 2275968 Comm. Expires Feb 23, 2023 Signature/, ��4i� . (Seal)