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HomeMy WebLinkAboutContracts & Agreements_52-1993I CONTRACT WITH OPTION B "EXHIBIT A" 1 This Agreement, Made and entered into thus....... 23rd .....day of......... March--........ ................. 19_23, 2 by and between the City of Redlands, a municipal corporation of the Sixth Class, party of the first part, Bennett R. Curtis and Robert E. Curtis ies 3 and part..................of the 4 second part, 5 WITNESSETH 6 1 Party of the firstart in consideration of the surrender and cancellation to it of its contract dated May 28, 1978, wherein first party therein and herein 7 is required to deliver to Myrtle D Curtis, a widow as to a 1/2 interest and Bennett Raymond Curtis and Myrtle D. Curtis as Co -Trustees under the 8 Raymond T. Curtis Testamentary Trust as to a 1/2 interest, two hundred twenty-five (225) day inches of water each thirty days under the terms 9 and conditions therein recited 10 11 does hereby covenant and agree with second part.... ies........ ..to perpetually sell and deliver water to second 12 part ..... 19Land does hereby grant to second part.... ies............. .the perpetual right to have and receive water 13 from the water system of first party, upon and subject to the following terms and conditions: 14 (a) QUANTITY OF WATER 15 The irrigating season of each year shall commence on the first day of May and extend to the 31st 16 day of October, which season of time shall be divided into periods of thirty days each, the surplus days 17 to come onto the last period The maximum quantity of water which first party shall be required to de - 1S liver in each irrigation period of thirty days shall not exceed the equivalent of a flow of................................. ------------------------------ Twenty -Five (25) --------------------------------- 19 .................. -................................................................................................ ............................................................ ............ ............ ............. ..... ------ 20 .................. -.........--......................day inches of water for a period of twenty-four hours. (For the purpose of this 21 contract, one day inch of water is hereby described as a one fiftieth part of a cubic foot per second 22 constant flow throughout a period of twenty-four hours.) 23 (b) PLACE OF DELIVERY 24 Said water shall be delivered to second part.. qq........at anyregular diversion point on the Mill Creek 25 Zanja which second parties -their _- assigns or nominees may direct, excepting that 26 delivery of such water cannot be required East of Texas Street in the City of Redlands, nor West of the 27 Mountain View Avenue in the Mission District, which District lies immediately West of and adjacent to 28 the City of Redlands, San Bernardino County, and such delivery point may be changed from time to �9 time upon reasonable notice being given to first party, such changes to be subject to the capacity of a 30 pipeline which may be constructed from the Texas Street wells of first party, Westerly and in general 31 following the course of the present Mill Creek Zanja, to or approximately to, said Mountain View Ave - 32 nue Water to be measured at delivery point. There shall be no responsibility upon first party for the con- -1— 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 trol and handling of said water below and beyond such delivery point after the same has been measured out to second part ies at any delivery point designated in this paragraph of this contract Second part. ies .......rights hereunder are hereby declared to be assignable in whole or in part, and the use of water shall be transferrable from one place to another within the area or district herein- after described (c) PLACE OF USE The place or places of use of all water delivered hereunder shall always be restricted and confined to that certain area or district situate in the County of San Bernardino, State of California, the boundaries of which are particularly described as follows, to -wit: PARCEL I Beginning at the intersection of the center lane of Texas Street and Mill Creels Zanla, thence north along the center line of Texas Street to the center line of Redlands Storm Water Drain; thence wester- ly along the center line of said storm water drain to its intersection with a line passing north and south through the center of Block 26, Barton Ranch, thence south along said line passing north and south through the center of said Block 26 to its intersection with the center line of Citrus Avenue, thence west along the center line of Citrus Avenue to its intersection with California Street, thence north along the center line of California Street to its intersection with Colton Avenue; thence west along the center line of Colton Avenue to its intersection with Mountain View Avenue, thence south along the center line of Mountain View Avenue to its intersection with San Timoteo Creek, thence easterly along the center line of San Timoteo Creek to a point 1320 feet east of the west line of Section 32, Town- ship 1 South, Range 3 West, thence North 1320 feet from and parallel with the west line of said Section 32 to a point 660 feet south of the center line of Barton Avenue, thence east, 660 feet from and parallel with the center line of said Barton Avenue, 330 feet, thence north 1650 feet from and parallel with the west line of said Section 32, to the center line of said Barton Avenue, thence east along the centerline of Barton Avenue to its intersection with Mill Creek Zanla at or near Tennessee Street; thence along the center line of said Mill Creek Zanla to the point of beginning PARCEL II Also upon that certain real property situate within said County and described as follows The south 60 acres of Lot 2, Block 72, Rancho San Bernardino, as per plat thereof recorded in the office of the County Recorder of said San Bernardino County Wherever in this contract, the words "area" or "district' are used, the same shall in all cases apply mw� I to and mean the property described in parcels I and II in this paragraph and none of said water shall be 2 conducted beyond or away from the two parcels of land herein described 3 Should said water or any portion thereof be transported or conducted out of said area or district 4 for use elsewhere than in said area or district, then first party to this contract shall have the right to sus S pend the furnishing of any further water to second part.AeS hereunder without notice 6 Should second party es , at any time after any such suspension of delivery of water under the 7 above restriction, bring an action against first party to compel delivery of water to second parties 8 under this contract, first party shall be entitled in such action as a matter of right, to a permanent in- 9 junction of the court restraining second part. a.es from transporting and conducting any water 10 delivered hereunder out of said area or district for use elsewhere than in said area or district; and in addi- 11 tion to such restraining order or injunction, second part sea shall pay to first party a reasonable attor- 12 ney's fee to be fixed by the court for defending against said action, nor shall the furnishing of water 13 hereunder be recommenced until the costs of suit, including attorney s fee, shall have been paid by second 14 part 1eS , provided that upon such costs and attorney's fee being paid, second parts...... shall be 15 entitled to have the delivery of water by first party recommenced, subject to said injunction 16 (d) PRICE AND PAYMENT 17 Charges for the delivery of all such water shall be based on whether Cr not the user_. ... pay.., 18 their proportionate share of the cost of building, constructing and maintaining a certain 19 proposed pipeline extending from the Texas Street pumping plants belonging to the City of Redlands, 24 westerly and in general following the course of the present Mill Creek Zanja to, or approximately to, 21 Mountain View Avenue, through which such water shall be delivered 22 FIRST To the user s . . who pay their ._ proportionate share of the cost of and main- 23 tenance of said pipeline as above mentioned, first party will deliver said water as aforesaid on a base 24 price of thirty cents per day inch, but if the cost of producing and delivering water from wells now or 25 hereafter owned by first party in the vicinity of said Texas Street pumping plants of first party, shall 26 increase or decrease from the base price of thirty cents per day inch hereinbefore designated, there shall 27 be an increase or decrease of the price from thirty cents per day inch, as the case may be, such increase 28 or decrease to be determined in the manner hereinafter specified. 29 SECOND To those users who have not paid their proportionate share of the cost of and main- 30 tenance of said pipeline as above mentioned, first party will deliver said water as aforesaid on the base 31 price of thirty cents per day inch, plus an additional charge of five cents per day inch as rental for the 32 —3— I use of said pg1ehne, but said base price of thirty cen+s per day jnca shall be subject to increase or de i 2 crease in the manner herein provided 3 I Provided further that the *ate at which such water shall be charges by first party fluor month to 4 ' month to second part aes as water is used by second part ii s shall, during each irrigation 5 season, be either one or the other of the rates hereinbefore specified, but that at the close of each ir- 6 rigation season, first party shall definitely determine what its total cost has been during the irrigation 7 season lust closed of producing and delivering all water produced from said Texas Street wells or wells 8 I in that vicinity and delivered to users within the area or district herein_ described as place of use, and 9 first party shall also determine the number of day inches delivered from said cells to users within said 10 area or district From these two figures the average season cost of one day inch of water so produced 11 and del_vered shall be determined, and if such determination discloses that said average cost exceeds 12 or is less than the charge of thirty cents per day inch imposed during said irrigation season, then said 13 rate of thirty cents per day inch shall be increased or decreased accordingly At the close of each irriga 14 '-ion season when first party shall have definitely determined what the average cost during such season 15 has been of producing and delivering one day inch of water hereunder to second part.. Z.es .. ... as 16 herein provided, if there be an increase in the price over the base price of thirty cents as herein pro - 17 vided, the number of day inches of water delivered by first party to second part...e5........... during such 18 season shall be multiplied by such increased price over and above thirty cents per day inch, and first 19 party shall bill second part...,ies.. .....for such additional sum, and second part..... eS........shall pay the same 20 within thirty days after presentation of statement, or should there be a decrease in such price, then first 21 party shall, in the same manner determine the total amount of such decrease and shall, within thirty 22 days after making such determination, refund to second part.AP5..................the difference to which said 23 second part des. __ . .......... entitled over the amount thus determined as the cost of production and 24 delivery and the amount actually paid by second part.Aes For the purposes of this con - 25 tract, the term "cost of production and delivery" of water from said Texas Street wells or wells in that 26 vicinity owned or operated by first party to furnish wafter hereunder, shall be the proportion of pro - 27 duction and del`fvery cost that the quantity of water furnished from said wells to second part ... ies . 2$ hereunder bears to the total quantity of water produced from all wells owned or operated by first party 29 at said Texas Street plant, from which any water whatsoever is furnished to users within said area or 30 district and to first party as a common source, such proportionate cost to be based on the follwing cost 31 items 32 (A) All power costs and charges —4— 1 2 3 4 5 6' 7I 8 9 10 11 12 13 14� 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 (B) The cost of all labor used in operation of pumping plants and wells (C) Cost of all supplies used in operating plant and wells (D) All sums expended in carrying insurance, including fire insurance on plant and buildings, and compensation and liability insurance on employees or the public (E) Depreciation on pumping plant, equipment, wells and buildings at the following rates - Concrete buildings ........... ....................... 217o of cost per year All other buildings............................................................... 5110 of cost per year Wells. ...... ...... ...... .......................................... ............ ... ......... --- . .. 3% of cost per year Pumps .. ........... _...... 10% of cost per year Electrical equipment ........... --...... ........... ........................_ .5 Jo of cost per year Power equipment other than electrical 1570 of cost per year (F) All taxes or assessments of whatsoever nature that may be levied and assessed against the wells, pumps, pumping plant, machinery, equipment, and other personal property used in connection therewith, but not taxes levied against the real property on which the same may be situated Provided, however, that whenever the depreciation charges herein set forth shall have repaid to first party its original capital investment in wells, pumps, pumping equipment, plants and buildings, and any additions made in such capital investment, and first party shall have collected a depreciation fund equivalent to all of its capital investment in such wells, pumps, pumping equipment, plants and build- ings, there shall be no further depreciation charges made until such time as further capital expenditures are made by first party, but upon such further capital expenditures being made by first party, then depre ciation charges, at the rates hereinbefore set forth shall recommence; Iikewise, interest charges thereon as provided in subdivision (G) of this paragraph until such time as such capital investment is again re- paid to first party. And similarly, throughout the lif e of this contract, there shall be depreciation charges made only at such times as first party has a capital investment in said wells, pumps, pumping equipment, pumping plants and houses which has not been repaid to it by means of said depreciation charges. (G) Simple interest at the rate of 6% per year shall be charged by first party on its invested capital in pumping plants, equipment, houses and wells, less the annual depreciation charged off at the rates hereinabove given (Capital Investment shall not exceed the amount of money that is necessary to install the wells and equipment sufficient to supply water to the parties entitled thereto in the area or district herein described ) (H) Maintenance of wells, pumping plants, equipment and houses This item to include all ex- penditur�s for the maintenance of said wells, pumps, pumping plants and houses at an economical and —5— ►J 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 efficient state of production; and in general any and all proper expenditures renjired to maintain said plant, wells and equipment which does not properly eater into or become an item of capital expenditure (1) Provided further, that in the event of any disagreement arising between the first party and second part ies as to any item of said production and delivery cost of said water each party to this contract shall select an arbitrator and the question in dispute shall be submAtted in wiiting by each of the two parties to this contract to the said arbitrators Any decision regarding said disputed matter arrived at and determined upon by the said two arbitrators shalt' be final and shall be accepted by both parties to this contract, but in the event the two arbitrators are unable to decide said matter, then they (the arbi- trators) shall select a third, and after reviewing said question in dispute, the decision of any two of said arbitrators shall be final and conclusive upon the parties to this contract Bills for water delivered are to be rendered monthly by first party and payment thereof made with in thirty days after presentation of statement, and if not so paid, such bills shall become delinquent First party reserves the right to discontinue service to second parties ._ during such delinquency, but upon payment of all delinquent bills, together with interest on balance due from date of delinquency to date of payment at the rate of one per cent per month, service shall be re-established until another delinquency occurs. In addition to all other rights reserved herein by first party to enforce payment for water delivered to second parties.. hereunder, first party shall have the right to bring suit against said second parties _.for the amount of such delinquent bill or bills and interest thereon as herein specified, to- gether with costs, including a reasonable attorney's fee to be fixed by the Court in which such suit may be brought Provided, however, that those water users who have not paid their proportionate share of the cost of said pipeline, may at any time, purchase an interest in said pipeline from the first party herein which will entitle them to delivery of water under this contract at the thirty cent rate for production and de- livery by paying to the said first party their proportionate share of the cost of said pipeline, such propor- tionate share to 4e determined upon an acreage basis, that is to say, the total cost of constructing said pipeline shall be divided by the number of irrigable acres within the area or district hereinbefore de- scribed, thus fixing the cost per acre of building said pipeline, and in the event such water user deter mines to come under the thirty cent rate class herein provided for, _.ftY... .........shall pay to first party the initial acreage cost of constructing said pipeline (less a depreciation allowance of 27o' per yeai of the total cost of construction, from date of construction to date of payment) multiplied by the number of acres of irrigable land which the said water user desires ...... to put under the thirty cent rate 6— 1 class herein provided for 2 (e) PFRIOD OF CUMULATION 3 If, during any irrigation period of thirty days, second part ies shall fail to take and use the 4 full quantity of ware,- to which they are entitled hereunder and such failure does not arise 5 from any fault or negligence of first part}, then, and in that event, such failure shall not entitle the said 6 second parties to receive, at any time thereafter any such deficiency of eater, to the end that no 7 right to cumulate any water deliverable hereunder shall accrue to said, second part ies beyond any 8 thirty day period hereinbefore designated Provided further if said second part ies should, at any 9 time receive water from first party in excess of the quantity first party is obli-eed to deliver hereunder, 10 said second part 10S agreethat they shall not acquire, nor will they ever 11 assert any claim to any right to the continued use or delivery of such excess v, iter, and any such use or 12 delivery of such excess water shall always be deemed permissive and not adverse to first party 11 (f) WINTER WATER 14 Second part les may in the winter months or non-irrigation season of each year demand and 15 receive from first party, water to be used for irrigation purposes in the district hereinbefore described 16 upon second part ies giving to first party notice in writing not less than five days before the date 17 on which delivery of such water is required, the place of delivery to be limited to place or places desig 18 nated in paragraph letter (b) of this contract, and the maximum quantity of water which second 19 parte can require in any one period of thirty days shall not exceed the maximum quantity speci- 20 fied in paragraph lettered (a) of this contract. The price which second part ies shall pav to first 21 party for such water delivered in the non irrigation season shill be determined on the base rate herein 22 before designated, with the allowance for increase or decrease from such base rate as said water rate 23 has been increased or decreased to second part ies for the water delivered during the irrigation 24 season immediately preceding the time of delivery of such water during the winter season or non irri 25 gation months (Excepting as shown in paragraph J, page 9 hereof) 26 (g) ORDERING WATER AND FIXING SCHEDULE OF DFLIVFRY 27 Second part ies shall, yearly, on or before April 1st of each year, notify the Water Depart 28 ment of first party in writing as to the second part ies estimated monthly requirements of irrigation 29 water for the ensuing irrigation season, also as to the approximate monthly date or dates of delivery 30 best suited to second parties need and the points of delivery of such water but first party reserves 31 the right to fix the irrigation schedule of all of its water users in the above described area in order to J2 accommodate the delivery of water to its delivery system, but that the dates and periods of delivery —7^ I shall be set as near those designated by second part ies as possible Provided further, that all 2 water delivered hereunder shall be delivered on schedules of twenty-four hours or multiples of twenty- 3 four hours, delivery to commence at the hour of seven o'clock A M on the date of delivery during the 4 I irr,gation season, and during the non-irrigation or winter months delivery to commence at such daylight 5 Dour as first party may designate The maximum quantity of water which second part..ie.5 6 shall have the right to demand from first party in any one irrigation period of thirty days is fixed in 7 paragraph (a) above, but should second part..-es.... ..... in any one irrigation period, desire more water 8 for use than has been ordered for that particular period and should second part les be entitled to 9 additional water under the provisions of paragraph (a), than that ordered, then such additional water 10 may be ordered from first party and delivery thereof shall be made by first party to second parties....... 11 during such period of time if the delivery system of first party be of sufficient capacity to make such 12 delivery. Provided, that such order shall be given in writing to said eater Department at least 24 13 hours prior to time of required delivery The only excuse which will permit non delivery of such 14 additional water, up to the maximum quantity herein specified, by first party to second part .zes. 15 shall be the lack of capacity in such delivery system to accommodate such water, or inability to pro- 16 duce the same owing to broken machinery or pipeline or shortage of power. Second part. les .... ............. 17 may at any time by giving at least 24 hours written notice to said Water Department, reduce to any 18 extent any such monthly requirement 19 (h) SOURCE OF SUPPLY 20 First party reserves the right to furnish said water from any available water which it may have 21 or which may now or hereafter be at its disposal and only covenants and agrees that said water shall 22 be reasonably free from detritus, but does not agree to furnish water sufficiently pure for drinking or 23 household purposes. 24 (i) UNFORSEEN CONDITIONS OR ACTS 25 In the event of storms, washouts, earthquakes, or any othei unforseen contingencies over which 26 first party has no control, taking place, which result in damage to first party s pumping plant or delivery 27 system or in the event of shortage of power, any of which events at any time interfere with, hinder or 28 stop the delivery of water hereunder temporarily, first party shall not be held responsible or liable for the 29 non-delivery of water on scheduled time as herein specified, nor shall first party be held liable or respon 30 sible for accident, labor strikes, walkouts, breakdown, breakage, sanding of wells or any other unfore- 31 seen condition resulting in inability of first party to make delivery of water hereunder on scheduled 32 time, but first party shall, no matter what may be the cause of such interference with the pumping and 8 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 delivering of water, with all due diligence endeavor to repair the damage and to reestablish its pump- ing and delivery system and first party shall, as soon as such breakdown or interference can be remedied and repaired, reestablish its water pumping and delivery system and recommence the delivery of water to second part ies In the event of delivery of water ceasing hereunder from some unfore- seen cause over which first party has no control, the schedule of delivery under which second parties are receiving water shall be advanced the number of days or fractions of days required by first party to re-establish its system and recommence the delivery of water hereunder, but no liability shall rest on first party for any interference with such delivery to second part --s- , excepting failure to use reasonable diligence to reestablish its pumping and delivery system (See Paragraph K below ) This Agreement and every covenant herein contained to be performed by first and second parties respectively, are expressly made for the benefit of and shall inure to, the benefit of and be binding upon the successors and assigns of first party and to and upon the heirs, administrators, executors, suc- cessors and assigns of second part ies J Provided, however, that whenever during the winter months or non -irrigation season, there is a surplus of water running in Mill Creek, irrigation water, limited to quantity and points of delivery as herein defined, shall on demand of second part ies , be delivered to second part. ie -9 at the rate of 10 cents for each and every day inch of water so delivered K. Provided, that should said wells or any source of supply from which water is being furnished hereunder, fail to function and delivery of water hereunder cease for a period of more than five days, then delivery from some other source must be recommenced by first party not later than five days after the cessation of delivery The purpose of this provision being that irrigation shall not be suspended at any time, when water is demanded hereunder for a longer period of time than five days from any cause whatsoever IN WITNESS WHEREOF the duly constituted officers of first party, thereunto duly authorized r by proper resolution of its board of Trustees, have hereunto set their hands and seals and the second parties have hereunto subscribed their names the day and year first herein written Attest. City Clerk a--,"