Exhibit 10.25
AGREEMENT NO. 99-73
99 - 03 W.B.
NORTHEAST BAKERSFIELD
WATER SUPPLY AGREEMENT
THIS AGREEMENT is made and entered into on MAR 31 1999 by and
between the CITY OF BAKERSFIELD, a Charter CITY and municipal corporation,
("CITY" herein) and CALIFORNIA WATER SERVICE COMPANY, a California public
utility water corporation ("CAL WATER" herein).
RECITALS
WHEREAS, CITY and CAL WATER have each been investigating the
feasibility of providing water to areas in northeast Bakersfield that are not
represented by organized water districts or purveyors; and
WHEREAS, CAL WATER is currently engaged in purveying domestic water
to, among others, residents and citizens within the CITY and desires to expand
its service and augment its existing water service in the incorporated northeast
Bakersfield system; and
WHEREAS, It is currently CAL WATER and CITY's desire that CAL WATER
provide high quality domestic water service using Kern River water to CITY
residents in the Northeast Bakersfield area; and
WHEREAS, on December 22, 1976, CITY acquired water rights to the
Kern River in order to meet the present and future needs of the citizens of
Bakersfield; and
WHEREAS, CITY and CAL WATER will cooperate and effect a project to
achieve water service to the incorporated northeast Bakersfield area, termed the
Northeast Water Supply Project (NEWSP), that will include a Kern River intake
structure, settling/storage reservoirs, high and low lift pump stations,
filtration plant and transmission and distribution pipelines all to be located
within the area described as NEWSP; and
WHEREAS, CITY has received bicycle path funding to extend the path
from Alfred Harrell Highway to Paladino Drive along the alignment of the future
Morning Drive and thus creating an opportunity to install water facilities
coincidental with bicycle path construction; and
-- Page 1 of 10 Pages --
WHEREAS, the County of Kern (COUNTY) owns the Kern River Regional
Park, consisting of the Hart Memorial Park (HMP) unit, the California Living
Museum (CALM), and Kern County Soccer Park (KSP) and COUNTY desires to improve
water delivery services from the Kern River to these lands; and
WHEREAS, CITY and COUNTY have entered into Operational Agreement No.
98-224 and a Non-exclusive Easement for Water Facilities that are incorporated
by reference and attached as Exhibit "A", that grants right-of-ways and use of
portions of the Kern River Regional Park to construct, operate and maintain
facilities required for the NEWSP.
NOW, THEREFORE, incorporating the foregoing recitals herein, it is
mutually agreed as follows:
1. WATER SUPPLY. CITY will make available to CAL WATER a Kern River
surface water supply to serve the needs of present and future CITY residents
located in the area described as Northeast Bakersfield to include those lands
within the area described herein as the NEWSP. The parties anticipate CITY will
make available to CAL WATER up to 12,000 (Twelve Thousand) acre-feet per year to
meet the initial needs of a newly constructed filtration plant. CITY is to
provide additional water to meet future demands of the NEWSP filtration plant as
projected on schedules provided in Exhibit "B".
2. AREA OF SERVICE. The NEWSP area of service for the supplying of high
quality domestic water service shall be bounded on the north by the Kern River,
on the east by Olcese Water District's boundary, on the south by East Niles
Community Service District boundary, and to the west by the franchise service
territory of CAL WATER that lies within the CITY limits. These boundaries may be
changed by the mutual consent of both parties and may be adjusted for CITY
annexations; however, CAL WATER understands the CITY will require water supplied
hereunder will only be delivered to CITY residences within the incorporated
boundaries of the CITY no matter what the specified boundaries described in this
Agreement. Both parties acknowledge the water acquired hereunder by CAL WATER
may be commingled with other waters at any time with the resulting goal that the
water quality at all times shall meet or exceed all Federal, State, and local
statutory and regulatory water quality standards, including, but not limited to,
California Department of Health Services standards. A map showing the NEWSP area
is attached hereto as Exhibit "C", and incorporated by reference as though fully
set forth.
3. POINT OF DELIVERY AND MEASUREMENT. CITY shall make available to CAL
WATER a Kern River water supply at the southerly end of the proposed settling
basins, near CALM and KSP in Section 5 of T.29S./R.29E. Measuring devices shall
be installed and maintained by CAL WATER, with approval of CITY, in accordance
to industry standards as set by the American Water Works Association.
-- Page 2 of 10 Pages --
4. WATER FACILITIES.
4.1 The CITY will design, finance, construct, own and operate the
Kern River diversion and intake works to meet normal seasonal demand of the
Northeast Filtration Plant, including but not limited to:
4.1.1 Acquisition of land, right-of-ways or easements needed
for diversion works and settling basins;
4.1.2 Kern River intake and low-lift pump station;
4.1.3 Canal from diversion works to raw water storage and
settling reservoirs;
4.1.4 Settling reservoirs or pools; and
4.1.5 Turn-outs to HMP, KSP and CALM.
4.2 CAL WATER will design, finance, construct, own and operate the
facilities that are needed to transport, purify and deliver water to NEWSP,
including, but not limited to:
4.2.1 Acquisition of all land, easements or right-of-ways
needed for construction and locating pipelines,
filtration plants, pump stations and all works CAL WATER
may need for this project;
4.2.2 High lift pump station and facility for metering supply
delivered by CITY at southerly end of settling basins;
4.2.3 Intake pipeline from high lift pump station to
filtration plant;
4.2.4 Filtration plant;
4.2.5 Transmission pipelines and facilities to provide retail
delivery within NEWSP. Said transmission facilities may
be funded under California Public Utilities Commission
extension agreement rules.
4.3 Each party agrees to construct all the listed water facilities
and put said facilities into operation within six (6) years from the date this
Agreement is executed.
5. FAILURE TO CONSTRUCT. Each party to this Agreement will bear the cost
and risk of constructing the water facilities listed for which each party is
responsible as set forth in Section 4 of this Agreement. Under no circumstances
shall either party pay for the construction of facilities which are to be
constructed by the other.
6. PLACE OF USE. The water supplied by CITY to CAL WATER under this
agreement shall be used by CAL WATER for the sole purpose of purification and
distribution to residents of the CITY of Bakersfield in the NEWSP area.
-- Page 3 of 10 Pages --
7. WATER QUALITY. CITY does not represent or guarantee the quality of the
raw water which is subject of this Agreement. CAL WATER understands the water
specified for delivery under this Agreement, as supplied from the Kern River, is
untreated and not fit for human consumption as delivered. CAL WATER shall be
solely responsible for testing said water and for any and all treatment which
may be necessary to bring the water into conformity with all Federal, State and
local domestic water quality requirements prior to its delivery for domestic
use. CITY shall not be responsible for the quality of water delivered by CAL
WATER in any way or at any time and CAL WATER's failure to test or property
treat the water is not the responsibility of CITY. By execution of this
Agreement CAL WATER expressly waives any and all legal remedies against CITY,
from the CITY's delivery of non-potable water to CAL WATER. CAL WATER shall
indemnify, defend and hold CITY harmless from and against any and all claims
from or against CAL WATER for failure to delivery water to domestic users
pursuant to this Agreement in conformance with Federal, State and local domestic
water quality requirements. CITY will provide timely notice to CAL WATER of
contamination to the water delivered of which the CITY has actual knowledge.
8. COMPENSATION TO CITY. To compensate CITY for CITY Kern River water
delivered hereunder (except as otherwise provided herein), CAL WATER shall pay
CITY Fifty-five Dollars ($55.00) per acre foot. The price is subject to annual
adjustment on the basis of the January 1999 Producer Price Index for "All
Commodities" published by the Bureau of Labor Statistics of the U. S. Department
of Labor and first adjustment shall occur in January of the year following
execution of this Agreement. The price as stated shall include all costs CITY
may incur in pumping, exchange and storage fees in delivering Kern River water
to CAL WATER high lift pump station metering point. Payment in full shall be
made to CITY within thirty (30) days after mailing of an itemized invoice to CAL
WATER. The due date on the invoice shall be clearly set forth and shall be
thirty (30) days beyond the billing date. CITY shall bill CAL WATER for
quantities delivered only after the water is actually delivered by CITY through
the high lift pump station metering facility. CAL WATER shall not assess or levy
any charge of any kind or type to CITY for the delivery of said water. Failure
to pay CITY in full within thirty (30) days of the due date shall subject CAL
WATER to late fees. Reasonable late fee amounts (not to exceed 6% on unpaid
balance) may be assessed by CITY and shall be paid by CAL WATER upon demand. At
CITY's sole discretion, CITY may terminate this Agreement after notice and a
sixty (60) day cure period for failure to pay all charges assessed for water
delivery and collect all past due sums and late fees.
9. CONSUMER WATER RATES. CAL WATER intends and will use its best efforts
to continue with a single tariff water rate schedule for domestic water service
to all its Bakersfield district customers. The single rate tariff would apply to
customers in the existing system and in the NEWSP project area. CITY and CAL
WATER understand and agree that CAL WATER's rates are currently subject to the
jurisdiction and control of the California Public Utilities Commission (CPUC)
and CAL WATER's rates will comply with decisions issued by the CPUC.
-- Page 4 of 10 Pages --
10. SPECIAL FACILITY FEE. CAL WATER special facility fees may be necessary
to supplement the financing of the construction of facilities as listed in
Section 4.2 of this Agreement. CAL WATER shall petition the CPUC to allow the
imposition of special facility fees to new water service connections within the
service territory of CAL WATER in its Bakersfield District and a differential
fee structure to those properties connecting in the NEWSP.
11. ENVIRONMENTAL STUDIES OR REVIEW. CITY shall be responsible at its sole
cost for preparation of any environmental impact reviews or reports required
under State and Federal law for the NEWSP. The environmental review will be
provided for the project that includes, but is not necessarily limited to the
Kern River intake structure, canal to settling basins, pipeline and conveyance
facilities to Hart Park the settling basins or lagoons, pumping stations, raw
water transmission pipes, filtration plant site and major trunk distribution
mains. If available, CAL WATER may obtain copies of CITY treated water data
otherwise available to the public.
12. ACCOUNTING RECORDS. CITY and CAL WATER shall maintain accurate
accounting records and other written documentation pertaining to all costs
incurred in performance of this Agreement. Such records and documentation shall
be kept at each party's office during the term of this Agreement and said
records shall be made available to CITY or CAL WATER representatives upon proper
request.
13. ASSIGNMENT. This Agreement shall not be assigned by any party, or any
party substituted, without prior written consent of all the parties.
14. BINDING EFFECT. The rights and obligations of this Agreement shall
inure to the benefit of, and be binding upon, the parties to this Agreement and
their heirs, administrators, executors, personal representatives, successors and
assigns.
15. CITY INSURANCE. CITY represents it is self-insured and will,
throughout the term of the this Agreement, maintain its self-insurance program.
Currently the CITY is self-insured for One Million Dollars ($1,000,000) and
carries additional coverage through an insurance pooling arrangement termed
ACCELL. The amounts of this additional coverage may vary. CITY warrants that, at
all times during the term of this Agreement, it shall have and maintain workers'
compensation insurance in compliance with the Labor Code of the State of
California. CITY shall supply documentation of its self-insurance program to CAL
WATER upon request.
16. COMPLIANCE WITH ALL LAWS. In connection with the performance of its
obligation under this Agreement, CAL WATER shall, at CAL WATER'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.
-- Page 5 of 10 Pages --
17. CONFIDENTIALITY. During the term of this Agreement, CAL WATER will be
dealing with information of a legal and confidential nature, and such
information could severely damage CITY if disclosed to outside parties. CAL
WATER will not disclose to any person, directly or indirectly, either during the
term of this Agreement or at any time thereafter, any such information or use
such information other than as necessary in the course of this Agreement.
Confidential information given to CAL WATER under this Agreement is the
exclusive property of the CITY. Under no circumstances shall any such
information or documents be removed from the CITY's offices without the CITY's
prior written consent. CITY is subject to the Public Records Act and cannot
maintain confidential records unless allowed by said Act. CITY understands CAL
WATER may, through the California Public Utilities Commission, be required to
release documents. It shall not be a violation of this Agreement to release
documents or information which are required by law to be public.
18. CORPORATE AUTHORITY. Each individual executing this Agreement
represents and warrants they are duly authorized to execute and deliver this
Agreement on behalf of the corporation or organization, if any, named herein and
this Agreement is binding upon said corporation or organization in accordance
with its terms.
19. 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.
20. EXHIBITS. In the event of a conflict between the terms, conditions or
specifications set forth in this Agreement and those in exhibits attached
hereto, the terms, conditions, or specifications set forth in this Agreement
shall prevail. All exhibits to which reference is made in this Agreement are
deemed incorporated in this Agreement, whether or not actually attached.
21. FORUM. Any lawsuit pertaining to any matter arising under, or growing
out of, this Agreement shall be instituted in Kern County, California.
22. JOINT LIMITATION ON LIABILITIES AND INDEMNIFICATION.
22.1 Neither party shall be liable to the other party for any loss,
damage, liability, claim or cause of action for damage to or
destruction of property or for injury to or death of persons
arising solely from any act or omission of the other party's
officers, council, directors, agents or employees.
22.2 CITY and CAL WATER agree to indemnify and hold each other
harmless from any and all claims, demands, liabilities, losses
or causes of action which arise by virtue of its own acts or
omissions
-- Page 6 of 10 Pages --
(either directly or through or by its agents, council,
directors, officers, or employees) to such extent and in such
part as the respective parties are found by reason of law to
have proximately caused the injury or damage.
22.3 The party against whom any claim arising from any subject
matter of this Agreement is filed shall give prompt notice of
the filing of the claim to the other party.
23. INDEPENDENT CONTRACTOR. CAL WATER shall not become or be deemed a
partner or joint venturer with CITY or associate in any relationship with CAL
WATER by reason of the provisions of this Agreement other than specified herein.
CAL WATER shall not, for any purpose, be considered an agent, officer or
employee of CITY in regard to this Agreement.
24. INSURANCE. CAL WATER shall procure and maintain for the duration of
this Agreement the following types and limits of insurance ("basic insurance
requirements" herein):
24.1 Automobile liability insurance, providing coverage on an
occurrence basis for bodily injury, including death, of one or
more persons, property damage and personal injury, with limits
of not less than One Million Dollars ($1,000,000) per
occurrence; and the policy shall:
24.1.1 Provide coverage for owned, non-owned and hired autos.
24.1.2 Contain an additional insured endorsement in favor of
the CITY, its mayor, council, officers, agents,
employees and designated volunteers.
24.2 Broad form commercial general liability insurance, providing
coverage on an occurrence basis for bodily injury, including
death, of one or more persons, property damage and personal
injury, with limits of not less than One Million Dollars
($1,000,000) per occurrence; and the policy shall:
24.2.1 Provide contractual liability coverage for the terms of
this Agreement.
24.2.2 Contain an additional insured endorsement in favor of
the CITY, its mayor, council, officers, agents,
employees and designated volunteers.
-- Page 7 of 10 Pages --
24.3 Workers' compensation insurance, as required or permitted by
California state law.
All policies required of CAL WATER shall be primary insurance as to the CITY,
its mayor, council, officers, agents, employees, or designated volunteers and
any insurance or self-insurance maintained by the CITY, its mayor, council,
officers, agents, employees, and designated volunteers shall be excess of the
CAL WATER's insurance and shall not contribute with it.
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 Agreement, or
insurance rated below Bests' A:VII, must be declared prior to execution of this
Agreement and approved by the CITY in writing.
All policies shall contain an endorsement providing the CITY 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.
The insurance required hereunder shall be maintained until all work required to
be performed by this Agreement is satisfactorily completed as evidenced by
written acceptance by the CITY.
CAL WATER shall furnish the City Risk Manager with a certificate of insurance
and required endorsements evidencing the insurance required. CAL WATER shall
provide CITY with certificates of insurance and endorsements required prior to
the execution of this Agreement.
Unless otherwise approved by the CITY, if any part of the work under this
Agreement is subcontracted, the "basic insurance requirements" set forth above
shall be provided by, or on behalf of, all subcontractors even if the CITY has
approved lesser insurance requirements for CAL WATER.
25. MERGER AND MODIFICATION. This Agreement sets forth the entire
Agreement between the parties and supersedes all other oral or written
representations. Its terms are intended by the parties as a final expression of
their agreement with respect to such terms as are included herein and may not be
contradicted by evidence of any prior agreement 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.
-- Page 8 of 10 Pages --
26. NON-INTEREST. No officer or employee of the CITY shall hold any
interest in this Agreement (California Government Code section 1090).
27. 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 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:
CITY: CITY OF BAKERSFIELD
CITY Hall
1501 Truxtun Avenue
Bakersfield, California, 93301
CAL WATER: CALIFORNIA WATER SERVICE COMPANY
1720 North First Street
San Jose, CA 95112-4598
28. POSSESSORY INTEREST TAXES. CAL WATER's interest hereunder may be
subject to property taxation and CAL WATER, 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.
29. PRE-JUDGEMENT INTEREST. In the event of a default by any party to this
Agreement, the non-defaulting party shall be allowed to recover interest on all
damages at the legal rate from the date of the breach.
30. TAX NUMBERS.
CAL WATER's Federal Tax Identification No. 94-0362795.
CAL WATER is a corporation? Yes X No __.
(Please check one.)
31. TERM. This Agreement shall commence upon date of execution and
terminate on December 31, 2022 unless sooner terminated as herein provided. This
Agreement will automatically renew for an additional term of ten (10) years
unless either party provides written notice within 180 days of termination date.
32. TIME. Time is of the essence in this Agreement.
33. 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.
-- Page 9 of 10 Pages --
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, the day and year first-above written.
"CITY" "CAL WATER"
CITY OF BAKERSFIELD CALIFORNIA WATER SERVICE
COMPANY
By: /s/ Bob Price By: /s/ Peter C. Nelson
------------------------- -------------------------
BOB PRICE, Mayor Title: President
----------------------
APPROVED AS TO CONTENT: By: /s/ [ILLEGIBLE]
WATER RESOURCES DEPARTMENT -------------------------
Title: Corporate Secretary
----------------------
By: /s/ Gene Bogart
-------------------------
GENE BOGART
Water Resources Manager
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By: /s/ Bart J. Thiltgen
-------------------------
BART J. THILTGEN
City Attorney
COUNTERSIGNED:
By: /s/ Gregory J. Klimko
-------------------------
GREGORY J. KLIMKO
Finance Director
Attachments:
Exhibit "A", Exhibit "B", Exhibit "C"
ADD:dlr
T:\Water\CalWaterNWSP 2 wpd
December 14, 1998
-- Page 10 of 10 Pages --
Kern County EXHIBIT A
Agt # 734-98
AGREEMENT NO. 98-224
Approved 9/23/1998
OPERATIONAL AGREEMENT
NORTHEAST WATER SUPPLY PROJECT
THIS OPERATIONAL AGREEMENT, is made and entered into this 15th day of
September, 1998, by and between the CITY OF BAKERSFIELD, a municipal corporation
and charter city ("CITY" herein), and the COUNTY OF KERN, a political
subdivision of the State of California ("COUNTY" herein),
RECITALS
WHEREAS, CITY and CALIFORNIA WATER SERVICE COMPANY ("CAL WATER" herein)
are cooperating to develop water service to CITY residents in the northeast
Bakersfield area, and
WHEREAS, COUNTY leases property to the COUNTY BOARD) OF EDUCATION for the
benefit of CALIFORNIA LIVING MUSEUM ("CALM" herein) for non-profit purposes; and
WHEREAS, COUNTY AND CALM see benefits to both parties in developing the
northeast water supply as set forth in this Agreement and in cooperating with
the CITY and CAL WATER in granting easements for its development; and
WHEREAS, the water facilities to be constructed include, but are not
limited to, access, diversion works, headworks, headgates, pump stations,
canals, water storage facilities, settling reservoirs or ponds, turnouts,
pipelines, filtration plants, and other related facilities ("Water Facilities"
herein); and
WHEREAS, CAL WATER is currently engaged in purveying domestic water to,
among others, residents and citizens within the CITY's incorporated area; and
WHEREAS, that portion of the Kern River County Park, owned by the COUNTY
consisting of CALM, Kern County Soccer Park, and Hart Memorial Park would
benefit from an improved water delivery service from the Kern River; and
WHEREAS, CITY and CAL WATER desire to cooperate and effect a project to
provide high quality domestic water service using Kern River water to residents
and citizens of the CITY in the northeast Bakersfield area.
NOW, THEREFORE, incorporating the foregoing recitals herein, CITY and
COUNTY mutually agree as follows:
Page 1 of 5
1. OWNERSHIP OF WATER. CITY shall own all water diverted into the Transfer
Facilities which shall start with the Kern River intake or headworks, except for
water diverted for COUNTY use under the existing March 17, 1934 agreement. CITY
may sell or otherwise put its water to beneficial use Notwithstanding the
foregoing, the existing March 17, 1934 agreement for supplying water to Hart
Memorial Park shall remain in full force and effect and shall not be modified by
this Agreement. In addition, CITY agrees to provide to County (at no cost) up to
a maximum of 648 acre feet of City water annually for use on County property
which is currently under lease to CALM and the Kern County Soccer Foundation, in
addition to water diverted under the March 17, 1934 agreement.
2. OPERATION AND MAINTENANCE. CITY shall be responsible for the design,
construction, operation and maintenance of the new Kern River intake structure,
low-lift pump station, pipelines connecting CITY's facilities, canal and raw
water storage reservoirs and settling ponds, including the turnouts (head gates)
to Hart Memorial Park, the Kern County Soccer Park and CALM, and the required
service roads and security fencing. CITY shall maintain a minimum of 150 feet of
unobstructed public access paralleling the south shoreline of the Kern River (as
measured from the mean high water mark) to allow public access to and along the
Kern River Notwithstanding the foregoing, CITY may preclude public access to the
Kern River along the length of the intake structure (for public safety reasons).
Portions of the intake structure may encroach south of the mean high water mark,
however, unobstructed public access along the south side of the intake structure
shall be at least 150 feet in width. CITY shall provide suitable screening of
the Kern River intake structure, including but not limited to, native
vegetation, trees, berms and other landscapes that compliment the natural
surrounding. Under CITY's direction and control, CAL WATER shall be responsible
for the design, construction, operation and maintenance of the high-lift pump
station and metering facility, pipelines connecting to CAL WATER's facilities
located at the south end of the future reservoir sites. Neither COUNTY, the Kern
County Soccer Foundation or CALM will have maintenance, repair; or operation
responsibility of any kind or nature concerning the Water Facilities, including
without limitation, all electrical costs associated with the operations of the
low and high-lift pump stations.
3. RECORDS AND SCHEDULING. CITY shall maintain records of all water diverted via
Water Facilities head works. All water to be diverted shall be scheduled
Twenty-four (24) hours in advance through the CITY Water Dispatcher. CITY, as
owner and operator of the head works, shall have sole control of same.
Notwithstanding the foregoing, CITY will provide such water as COUNTY is
entitled to in Section 1 hereof, on an uninterrupted basis (except for
circumstances beyond CITY's control) unless notified to the contrary by COUNTY.
4. TERM. The term of this Agreement shall commence the day and year first-above
written and the same shall continue thereafter in full force and effect unless
terminated. This Agreement terminates if the easement reverts to the COUNTY for
failure to engage in the uses specified therein.
5. ASSIGNMENT. This Agreement shall not be assigned by any party, or any party
substituted, without prior written consent of all the parties.
Page 2 of 5
6. 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 representative, successors and
assigns.
7. CITY INSURANCE. CITY, in order to protect COUNTY, its governing board,
commissions, officers, agents and employees against all claims and expense for
death, injury, loss, or damage as a result of CITY's use of and activities on
the premises or in connection therewith, shall secure and maintain in force
during the life of the Agreement and covering all of CITY's operations and
activities on the premises, the following insurance:
CITY represents it is self insured with certain excess coverage and will,
throughout the term of this Agreement, maintain self-insurance limits of One
Million Dollars ($1,000,000) with a minimum of excess insurance coverage to Ten
Million Dollars ($10,000,000). CITY warrants that, at all times during the term
of this Agreement, it shall have and maintain worker's compensation insurance in
compliance with the Labor Code of the State of California.
8. JOINT LIMITATION ON LIABILITIES AND INDEMNIFICATION.
8.1 No party shall be liable to any other party for any loss, damage,
liability, claim or cause of action for damage to or destruction of property or
for injury to or death of persons arising solely from any act or omission of any
other party's officers agents or employees.
8.2 CITY and COUNTY agree to indemnify, defend and hold each other
harmless from any and all claims, demands liabilities, losses or causes of
action which result from its own acts or omissions (either directly or through
or by its agents, officers, or employees) to such extent and in such part as the
respective parties are found by reason of law to have proximately caused the
injury or damage.
8.3 The party against whom any claim arising from any subject matter of
this Agreement is filed shall give prompt notice of the filing of the claim to
all other parties.
9. CORPORATE AUTHORITY. Each individual executing this Agreement represents and
warrants they are duly authorized to execute and deliver this Agreement on
behalf of the corporation or organization, if any, named herein and this
Agreement is binding upon said corporation or organization in accordance with
its terms.
10. 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.
11. EXHIBITS. In the event of a conflict between the terms, conditions or
specifications set forth in this Agreement and those in exhibits attached
hereto, the terms, conditions, or specifications set
Page 3 of 5
forth in this Agreement shall prevail. All exhibits to which reference is made
in this Agreement are deemed incorporated in this Agreement, whether or not
actually attached.
12. FORUM. Any lawsuit pertaining to any matter arising under, or growing out of
this Agreement shall be instituted in Kern County, California.
13. MERGER AND MODIFICATION. This Agreement sets forth the entire Agreement
between the parties and supersedes all other oral or written representations.
This Agreement may be modified only in a writing approved by the Kern County
Board of Supervisors and the CITY Council.
14. NON-INTEREST. No officer or employee of the CITY shall hold any interest in
this Agreement (California Government Code section 1090).
15. 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 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:
CITY: CITY OF BAKERSFIELD
Water Resources Dept.
1000 Buena Vista Road
Bakersfield, CA 93311
COUNTY: County of Kern
Parks and Recreation Dept.
1110 Golden State Ave.
Bakersfield, CA 93301
16. 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.
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Page 4 of 5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, the day and year first-above written.
"CITY" "COUNTY"
CITY OF BAKERSFIELD COUNTY OF KERN
By: /s/ Bob Price By: /s/ Pete H. Parra
------------------------- -------------------------
BOB PRICE, Mayor PETE H. PARRA, Chairman,
Board of Supervisors
APPROVED AS TO CONTENT: APPROVED AS TO CONTENT:
WATER RESOURCES DEPATMENT PARKS & RECREATION DEPT.
By: /s/ Gene Bogart By: /s/ Robert D. Addison
------------------------- -------------------------
GENE BOGART ROBERT D. ADDISON, Director
Water Resources Manager
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
OFFICE OF THE CITY ATTORNEY COUNTY ADMINISTRATIVE OFFICE
By: /s/ Alan D. Daniel By: /s/ William A. Wilbanks
------------------------- -------------------------
ALAN D. DANIEL WILLIAM A. WILBANKS, Assistant
Assistant City Attorney County Administrative Officer
for General Services
COUNTERSIGNED: APPROVED AS TO FORM:
OFFICE OF THE COUNTY COUNSEL
By: /s/ Gregory J. Klimko By: /s/ Bruce Divelbliss
------------------------- -------------------------
GREGORY J. KLIMKO BRUCE DIVELBLISS, Deputy
Finance Director
Page 5 of 5
James Maples Assessor-Recorder JASON
Kern County Official Records Pages: 6
DOCUMENT #: 0198134283 9/29/1998
8:00:00
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
[BAR CODE OMITTED] Fees
CITY OF BAKERSFIELD 0198132483 Taxes
PROPERTY MANAGEMENT DEPT Other
1501 TRUXTLJN AVENUE TOTAL
BAKERSFIELD, CA 93301 PAID
Stat Types: I
- --------------------------------------------------------------------------------
Portion of Assessor's Parcel No 386-030-17 Space above for Recorder's use
4951
NON-EXCLUS1VE EASEMENT FOR WATER FACILITIES AND ACCESS
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the
COUNTY OF KERN, a political subdivision of the State of California ("County")
hereby grants to the CITY OF BAKERSFIELD, a municipal corporation and charter
city ("City"), upon condition that the City engages in the described uses of the
property, a non-exclusive easement to lay, remove, construct, operate, maintain,
repair, reconstruct, or change the size of electrical facilities, diversion
works, head works, head gates, sealing reservoirs or ponds, pump stations,
canals, water storage facilities and the pertinent and necessary surface and
subsurface structures, fittings, and other equipment, with the right of ingress
and egress thereto, in, under, across, over and upon those parcels of land
described in Exhibit "A" as Parcel No. 1, Parcel No. 2 and Parcel No. 3 and
shown on the drawing entitled "Figure 1", all of which are attached hereto and
incorporated herein by this reference City shall maintain 150 feet of
unobstructed public access paralleling the Kern River as measured from the mean
high water mark or the south side of any intake structure on the southern side
of the Kern River. City may prevent access to any intake structure built by
City. The design, construction and maintenance of the water facilities shall
compliment the natural park setting of Kern River County Park. All construction
plans must be approved in advance by County. County shall have a 60 day period
in which to review and comment on the plans. The plans shall be deemed approved
if County does not respond within 60 days of County's receipt of the plans. The
rights conveyed hereunder are subject to the provisions of the 1974 Quitclaim
Deed recorded in the County of Kern at Book 4847 Page 1882, whereby the State of
California transferred title to the property described in Exhibit "A" to the
County of Kern, including the restriction therein that the property be used
"...only for park and recreation purposes..."
In the event the City fails to use the easement for any of the stated purposes
for a period of two (2) years, all rights conveyed hereunder shall automatically
revert to the County, who shall be immediately entitled to exclusive possession
of the premises. In the event of such reversion, City shall restore the property
encumbered by the easement to its original condition, or as near thereto as is
reasonably possible, unless directed otherwise by County.
IN WITNESS WHEREOF, COUNTY executes this easement on:
September 15, 1998
-------------
/s/ Pete H. Parra
------------------------------
Chairman, Board of Supervisors
"County"
4951
CITY OF BAKERSFIELD
RESERVOIR EASEMENT
PARCEL NO. 1
All that portion of Section 5, Township 29 South, Range 29 East, MDB&M,
County of Kern, State of California, being a parcel of land described as:
Commencing at the Northwest corner of the Southwest quarter of said
Section;
THENCE (1) South 0(degrees) 39' 47" East, along the West line of said Southwest
quarter, a distance of 433.02 feet to the centerline of County Road No.
2239 as shown on Map 9P1KRP1aM5, on file in the Kern County Surveyors
office;
THENCE (2) South 65(degrees) 07' 49" East, along said centerline, a distance of
414.81 feet, to the centerline of the future extension of Morning Drive;
THENCE (3) North 42(degrees) 19' 44" East, along said extension, a distance of
800.00 feet;
THENCE (4) South 47(degrees) 40' 16" East, a distance of 55.00 feet to the
easterly right-of-way of the future extension of Morning Drive;
THENCE (5) North 42(degrees) 19' 44" East, a distance of 886.31 feet, to Lease
Corner No. 7 as identified on said Map 9P1KRP1aM5;
THENCE (6) South 70(degrees) 28' 33" East, a distance of 37.97 feet, to the true
point of beginning;
THENCE (7) South 70(degrees) 28' 33" East, a distance of 1265.89 feet, to Lease
Corner No 6;
THENCE (8) From a tangent which bears North 83(degrees) 02' 16" East, easterly
along a curve, concave southerly, having a radius of 1800 feet, through a
central angle of 7(degrees) 57' 28", an arc length of 250.00 feet;
THENCE (9) North 00(degrees) 59' 44" East, 70.00' to the beginning of a curve;
THENCE (10) From a tangent which bears South 89(degrees) 00' 16" East, easterly
along a curve, concave southerly, having a radius of 1870 feet, through a
central angle of 9(degrees) 11' 31", an arc length of 300 00 feet;
THENCE (11) South 10(degrees) 11' 15" West, 140.00 feet;
THENCE (12) South 78(degrees) 32' 18" West, 963.45 feet;
THENCE (13) North 70(degrees) 28' 33" West, 400.00 feet;
THENCE (14) South 72(degrees) 18' 35" West, 1096.91 feet;
THENCE (15) North 47(degrees) 40' 16" West, 125.00 feet, to a point located
35.00 feet from the easterly right-of-way of the future extension of
Morning Drive;
THENCE (16) North 42(degrees) 19' 44" East, 1101.03 feet, on a line that is
35.00 feet easterly of an parallel to the easterly right-of-way of the
future extension of Morning Drive, to the True Point of Beginning
Containing 20.65 acres more or less
[SEAL]
REGISTERED PROFESSIONAL ENGINEER
MORRIS W. TAYLOR
/s/ Morris W. Taylor
No 13340
Exp. Date 3-31-01
CIVIL
STATE OF CALIFORNIA
EXHIBIT "A"
4951
CITY OF BAKERSFIELD
ACCESS ROAD EASEMENT
PARCEL NO. 2
All that portion of Section 5, Township 29 South, Range 29 East, MDB&M,
County of Kern, State of California, being a parcel of land, more particularly
described as follows:
A 24 foot wide easement for the construction and operation of an access
road commencing at the entrance to the California Living Museum at County
Road No. 2239;
THENCE(1) Following existing and new road alignments northwesterly to the base
of the bluff, and then continuing westerly along the base of the bluff,
northerly of the Bike Path, and northerly and easterly of the Lease Line
for the California Living Museum, to a point on the southwest corner of
Parcel No. 1, an approximate length of 2230 feet.
Containing 1.2 acres more or less.
[SEAL]
REGISTERED PROFESSIONAL ENGINEER
MORRIS W. TAYLOR
/s/ Morris W. Taylor
No 13340
Exp. Date 3-31-01
CIVIL
STATE OF CALIFORNIA
EXHIBIT "A"
4951
CITY OF BAKERSFIELD
PIPE LINE EASEMENT
PARCEL NO.3
All that portion of Section 5, Township 29 South, Range 29 East, MDB&M,
County of Kern, State of California, being a parcel of land described as:
Commencing at the Northwest corner of the Southwest quarter of said
Section,
THENCE (1) South 0(degrees) 39' 47" East, along the West line of said Southwest
quarter, a distance of 433.02 feet to the centerline of County Road No.
2239 as shown on Map 9P1KRP1aM5, on file in the Kern County Surveyors
office;
THENCE (2) South 65(degrees) 07' 49" East, along said centerline, a distance of
414.81 feet, to the centerline of the future extension of Morning Drive;
THENCE (3) North 42(degrees) 19' 44" East, along said extension, a distance of
600.00 feet;
THENCE (4) South 47(degrees) 40' 16" East, a distance of 80.00 feet to the
easterly right-of-way of the future extension of Morning Drive also being
the true point of beginning:
THENCE (5) continuing South 47(degrees) 40' 16" East, a distance of 136.36 feet;
THENCE (6) South 42(degrees) 19' 44" West, a distance of 290.03 feet, to a point
on the northerly right-of-way of County Road 2239 (Alfred Harrell
Highway);
THENCE (7) along said right-of-way line North 47(degrees) 39' 26" West, a
distance of 136.38 feet;
THENCE (8) North 42(degrees) 19' 44" East, a distance of 290.00 feet to the true
point beginning.
Containing 0.91 acres more or less.
[SEAL]
REGISTERED PROFESSIONAL ENGINEER
MORRIS W. TAYLOR
/s/ Morris W. Taylor
No 13340
Exp. Date 3-31-01
CIVIL
STATE OF CALIFORNIA
EXHIBIT "A"
[MAP OMITTED]
[SEAL]
REGISTERED PROFESSIONAL ENGINEER
MORRIS W. TAYLOR
/s/ Morris W. Taylor
No 13340
Exp. Date 3-31-01
CIVIL
STATE OF CALIFORNIA
EXHIBIT "A"
Kennedy/Jenks Consultants
CITY OF BAKERSFIELD
RESERVOIR, ACCESS & PIPELINE EASEMENT
PARCEL MAP
AUGUST 6, 1998
948608.00
Figure 1
4951
CERTIFICATE OF ACCEPTANCE
THIS IS TO CERTIFY that the interest in real property conveyed by the deed
or grant dated September 15, 1998 from County of Kern, to the City of
Bakersfield, a political corporation and/or governmental agency is hereby
accepted by order of the Council of the City of Bakersfield on September 23,
1998, and the grantee consents to recordation thereof by its duly authorized
officer.
DATED: September 25, 1998
-------------------------
By: /s/ Bob Price
--------------------------------
BOB PRICE
Mayor of the City of Bakersfield
EXHIBIT "B"
Proposed Plan of Delivery of
City of Bakersfield's Kern River Water to
California Water Service Company for
Northeast Bakersfield Water Filtration Plant
Introduction
The City of Bakersfield ("CITY") Kern River water supplies vary in quantity from
year to year. Thus, the Miscellaneous Water supplies available to the City for
diversion to California Water Service Company's ("CAL WATER") filtration plant
will fluctuate on an annual basis.
An analysis of the annual water supplies that will be made available to CAL
WATER was performed utilizing historical data and review of CITY water right
yields.
Assumptions:
CITY:
1.) Honor all presently existing agreements, contracts or documents referring
to provisions to supply Kern River water;
2.) Best use its acquired surface storage reservoir space to maximize
conservation of miscellaneous water for filtration plant deliveries;
3.) Operate its "2800 Acres" banking and extraction facility to supplement
Kern River flows during critically "dry" conditions to provide minimum
base flows to filtration plant;
4.) Formulate exchanges or trades of water supplies in anticipation of annual
shortages of CITY miscellaneous water;
5.) Exercise the provisions of certain contracts for priority use of Kern
River water within CITY boundaries and on CITY properties.
CAL WATER:
1.) Determine a ramp up timetable for the filtration plant initial annual
delivery requirement and expansion to full build-out;
2.) Project annual delivery schedule required to meet filtration plant
requirements including demands for maximum and minimum month & maximum and
minimum day;
3.) Limit take to filtration plant in critically "dry" years to amount
necessary to serve only the new customers in the immediate vicinity of the
filtration plant;
4.) Optimize use of alternative water supply sources, both treated surface and
groundwater resources, in years of critically dry or low flows on the Kern
River;
5.) Use best efforts to regulate receiving Kern River waters into its system
to minimize peaks and dips in flows.
Projected Annual Delivery Schedules
The delivery schedules are developed to quantify projected water deliveries for
the NEWSP under various hydrologic conditions on the Kern River. CITY will
attempt to deliver the water in conformance with the Normal Delivery where
practical and at the ability and convenience of the CITY. However, CITY may
deliver pursuant to the Critically Dry or Maximum Delivery schedules as
conditions warrant.
1.) NORMAL DELIVERY
=============================================================================================
PLANT MAXIMUM PEAK MINIMUM M[NIMUM ANNUAL
YEAR CAPACITY MONTH FLOW MONTH FLOW TOTAL
(MGD) (AF) (CES) (CFS) (AF)
=============================================================================================
2002 10 1,000 15.5 1,000 15.5 12,000
2007 20 1,900 31 1,900 31 22,800
2012 40 3,700 62 1,900 31 29,500
2017 60 5,500 93 1,900 31 39,600
=============================================================================================
2.) CRITICALLY DRY DELIVERY
=============================================================================================
PLANT MAXIMUM PEAK MINIMUM M[NIMUM ANNUAL
YEAR CAPACITY MONTH FLOW MONTH FLOW TOTAL
(MGD) (AF) (CES) (CFS) (AF)
=============================================================================================
2002 10 300 5 200 3.5 4,500
2007 20 500 8 300 5 4,500
2012 40 1,500 25 500 8 10,525
2017 60 2,000 35 625 10.5 13,825
=============================================================================================
2
3.) MAXIMUM DELIVERY
=============================================================================================
PLANT MAXIMUM PEAK MINIMUM M[NIMUM ANNUAL
YEAR CAPACITY MONTH FLOW MONTH FLOW TOTAL
(MGD) (AF) (CES) (CFS) (AF)
=============================================================================================
2002 10 1,000 15.5 1,000 15.5 12,000
2007 20 1,900 31 1,900 31 22,800
2012 40 3,700 62 2,500 42 37,200
2017 60 5,500 93 3,500 59 54,000
=============================================================================================
Revised Deliveries
If CAL WATER desires to vary its delivery schedule, it may do so by submitting a
revised schedule to CITY no later than February 1 of the year for which CAL
WATER desires to vary schedule. CITY shall review and advise CAL WATER of
approval of revised schedule for that remaining year by March 1 of that year.
CITY will make reasonable efforts to deliver the water according to the approved
revised schedules. The inability of CAL WATER to accept water when tendered by
CITY under schedules herein shall be deemed to be water delivered under terms of
this Agreement
3
[MAP OMITTED]
Exhibit "C"