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HomeMy WebLinkAboutA6567 - GARNET & GRANITE CONSTRUCTION COVENANT & AGREEMENT DOC # 2014-0256016 07/10/2014 09:10A Fee:NC Page 1 of 11 Recorded in Official Records County of Riverside Larry W. Ward Assessor, County Clerk & Recorder RECORDINGCITY OF PALM SPRINGS I IIIIII IIIIIII III IIIII IIIIII IIII II III III IIIII IIII IIII Cityof Palm Springs I S R U I PAGE SIZE I DA I MISC LONG RFD FCOPY City Clerk P Box 2743 Palm Springs, CA 92263 M A L 465 426 PCOR NCOR SMF CH EMjM y T: CTY UNI W� ,Y121 Filing fee EXEMPT per Government Code 6103 A6567 COVENANT AND AGREEMENT REGARDING WATER QUALITY MANAGEMENT PLAN THIS AREA FOR RECORDER'S USE ONLY THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Engineer City of Palm Springs 3200 East Tahquitz Canyon Way Palm Springs, California 92262 APN: Space Above This Line For Recorder's Use Only (Exempt from recording fees per Govt. Code§6103) COVENANT AND AGREEMENT REGARDING WATER QUALITY MANAGEMENT PLAN BMP, CONSENT TO INSPECT, AND INDEMNIFICATION This Agreement Regarding Water Quality Management Plan Best Management Practices, Consent to Inspect, and Indemnification and Covenant Running With the Land ("Agreement") is made on this 17th day of January, 2014, by and among the CITY OF PALM SPRINGS, a California municipal corporation and charter city ("Covenantee" or "City"), Garnet Solar Power Generation Station 1, LLC, a California limited liability company ("Garnet"), and Granite Construction Company, a California corporation, the undersigned property owner ("Covenantor"). RECITALS A. Covenantor is the owner of certain real property located in the City of Palm Springs, County of Riverside, State of California, of land located within the metes and bounds more particularly described and as more particularly depicted on the attached Exhibit "A" as the "Leased Premises" located within Covenantors' owned property generally located at 25-500 North Indian Avenue, Palm Springs, California 92240 (APN 669 100 001). This Agreement applies only to the approximately forty (40) acres Leased Premises identified on the attached Exhibit "A" which for the purpose of this Agreement, shall be termed the "Property'. City has fee or easement interests in various streets, sidewalks and other property within the City and is responsible for the planning and development of land within the City in such a manner as to provide for the health, safety and welfare of the residents of the City. B. The City is the owner of interests in that certain real property within the City of Palm Springs, County of Riverside, State of California, containing storm drains, pipelines, and related appurtenances constituting the City's municipal separate storm sewer system (the City's "Storm Drain System")- C. Covenantor has entered a long-term ground lease with Garnet, as lessee, for the use of the Property for the purpose of a solar energy generating facility. Garnet intends to develop, improve, and/or use the Property in such a way that approval of the City for Garnet's development, improvement, and/or use is required pursuant to the applicable laws. D. As a condition for said approval by the City, City required Garnet, and Garnet with approval by the Covenantor desires to, restrict the use of Property according to the conditions, covenants, equitable servitudes, and restrictions contained herein for the express benefit of the City's Storm Drain System. NOW, THEREFORE, incorporating the foregoing Recitals and in consideration thereof, in consideration of the covenants and conditions contained herein, and for other good and Page 1 of 9 11111111111IN IIIIIIIIII 111111111111111107 2 e12e£506160R valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and expressly for the benefit of, and to bind, their successors in interest, the parties hereto agree as follows: AGREEMENT 1. Water Quality Management Plan ("WQMP") for Best Management Practices "BMP" Garnet, Covenantor, and each successive owner (or lessee as the case may be) of an interest in all or any part of the Property (collectively, "Owner(s)") shall, throughout the period of their respective ownership or leasehold (as the case may be), implement, and fund implementation of the WQMP required for development of the Property related to Garnet's approved project, and shall operate and maintain the BMP described therein including, but not limited to, the methods and standards set forth in Section 8.70.100 of the City's Municipal Code, as that Section may be amended from time to time and which is incorporated herein by this reference. The current WQMP, as it may be amended from time to time according to its terms, which is on file with the City of Palm Springs Engineering Division, is incorporated herein by this reference. 2. Compliance with City of Palm Springs Municipal Code and Consent to Inspect Owners shall use and maintain the Property in full compliance with the provisions of Chapter 8.70 of the Palm Springs Municipal Code, as it may be amended from time to time, which is incorporated herein by this reference. Owners hereby consent to inspection of the Property pursuant to Section 8.70.140 of the City's Municipal Code by an inspector authorized by the City Manager, the City Engineer, or their designee, for the purpose for verifying compliance with the provisions of this Agreement, the BMP of the WQMP, and the City's Municipal Code. 3. Indemnification Owners, on a joint and several basis, agree to indemnify, defend, and hold harmless the City, its elected officers, employees, agents, and contractors from and against any and all liability, expense, including costs and reasonable legal fees, and claims of damage of any nature whatsoever including, but not limited to, death, bodily injury, personal injury, or property damage arising from or connected with the City inspection of the Property except where such liability, expense, or claim for damage results from the negligence or willful misconduct of the City. 4. Rights and Obligations Run With the Land Unless terminated in accordance with Paragraph 5, below, or by law, the rights and obligations of the parties hereunder shall constitute covenants, benefits, burdens, conditions, equitable servitudes, and restrictions which run with the land in perpetuity and which shall be binding upon, and inure to the benefit of, each Owner during its respective period of ownership of all or any part of the Property. 5. Termination of Agreement Upon Termination of WQMP This Agreement and the conditions, covenants, equitable servitudes, and restrictions set forth herein shall terminate upon decommissioning and removal of Garnet's equipment in Page 2 of 911111111111111III 111111111 IN 11111111111 II 01 za 4500150R 3 0£ 11 accordance with all applicable laws, conditional use permits, zoning variances, and governmental approvals; and restoration of the Property to a condition reasonably approximate to that existing prior to the solar project. Upon completion of these requirements, the WQMP applicable to the Property will be terminated. Upon termination of the WQMP applicable to the Property, Garnet or Covenator may request that, and the City shall promptly execute, a recordable document approved by the City approving and acknowledging termination of this Agreement. A recorded document duly executed and acknowledged by the City Engineer of City, or his or her designee, approving termination of this Agreement shall be conclusive evidence of such termination. 6. Enforcement The City may, but shall not be obligated to, enforce this Agreement by a proceeding at law or in equity against any person or persons violating or attempting to violate any condition, covenant, equitable servitude, or restriction provided for herein, either to restrain such violation or to recover damages. The City may also enforce this Agreement pursuant to Section 8.70.140 of the City's Municipal Code, which enforcement remedies are incorporated herein by this reference. 7. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements and understandings with respect to the subject matter hereof, whether oral or written. 8. Severability. If any part of this Agreement is declared by a final decision of a court of competent jurisdiction to be invalid for any reason, such shall not affect the validity of the rest of the Agreement. The other parts of this Agreement shall remain in effect as if this Agreement had been executed without the invalid part. The parties declare that they intend and desire that the remaining parts of this Agreement continue to be effective without any part or parts that have been declared invalid. s m moo- 9. Counterparts. �m< This Agreement may be executed in counterparts, each of which so executed shall, N m irrespective of the date of its execution and delivery, be deemed an original, and all such counterparts together shall constitute one and the same instrument. 10. Attorneys' Fees. If any party files an action or brings any proceeding against the other arising from this Agreement, the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, reasonable attorneys' fees and costs to be fixed by the court. A party not entitled to recover its costs shall not recover attorneys' fees. No sum for attorneys' fees shall be included in calculating the amount of a judgment for purposes of deciding whether a party is entitled to its costs or attorneys' fees. Page 3 of 9 11. Amendment. No modification, amendment, addition to, or alteration of the terms of this Agreement whether written or verbal, shall be valid unless made in writing, formally approved and executed by the City and the current Owner(s) of the Property, and duly recorded. 12. Authority of Signatories to Agreement. Each person executing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement on behalf of the parties for which execution is made. Each party represents and warrants to the other that the execution of this Agreement and the performance of such party's obligations hereunder have been duly authorized and that the agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. 13. Mortgagee Protection. 13.1 Encumbrances on the Property. This Agreement shall not prevent or limit the Covenantor or Garnet from encumbering the Property or any portion thereof or any improvements thereon with any mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a portion thereof or interest therein, is pledged as security, and contracted for in good faith and fair value (a "Mortgage") securing financing with respect to the construction, development, use, or operation of the Property. 13.2 Mortgage Protection. This Agreement shall be superior and senior to the lien of any Mortgage recorded on title to the site after the date of recordation of this Agreement. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Property or any portion thereof by a holder of a beneficial interest under a Mortgage, or any successor or assignee to said holder(a "Mortgagee") [whether pursuant to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination or otherwise] shall be subject to all of the terms and conditions of this Agreement. 13.3 Mortgagee Not Obligated. No Mortgagee will have any obligation or duty under this Agreement to perform the obligations of the Covenantor or Garnet or other affirmative gym= covenants of Covenantor or Garnet hereunder, or to guarantee such performance, unless the Mortgagee acquires or accepts title or interest in or with respect to the Property as provided in Section 13.2 of this Agreement. 80 N� r. 0 13.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure. City shall, upon C written request to the City by Covenantor or Garnet upon payment of any applicable charge or fee of the City, deliver to each Mortgagee identified by the Covenantor or Garnet a copy of any notice of default given to Covenantor and/or Garnet under the terms of this Agreement, at the C same time and in the same manner of sending such notice of default to Covenantor and/or Garnet. The Mortgagee shall have the right, but not the obligation, within thirty (30) days after the receipt of such notice from the City, to cure, correct, or remedy the default, or, for such defaults that cannot reasonably be cured, corrected, or remedied within thirty (30) days, the Mortgagee shall commence to cure, correct, or remedy the default within such thirty (30) day period, and shall continuously and diligently prosecute such cure to completion. If the default is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession of the Property, such Mortgagee shall have the right to seek to obtain possession with diligence Page 4 of 9 and continuity through foreclosure, a receiver or otherwise, and shall be permitted thereafter to remedy or cure the default within such time as is reasonably necessary to cure or remedy said default but in no event more than thirty (30) days after obtaining possession. If any such default cannot, with diligence, be remedied or cured within such thirty (30) day period, then such period shall be extended to permit the Mortgagee to effect a cure or remedy so long as Mortgagee commences said cure or remedy during such thirty (30) day period, and thereafter diligently pursues and completes such cure. [SIGNATURES ON FOLLOWING PAGE] m m�0- m 0� V NN 0 N� n 0 Page 5 of 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above. "CITY" / "COVENANTEE" CITY OF PALM SPRINGS David H. Ready, City Manager ATTEST: / ames Thompson, City Clerk APPROVED BY C{1Y COUNCIL APP O AS TO FORM: � a� •`� t'\b h b� Dou s . Holland, , City ttorney "COVENANTOR" Granite Construction,ine: ttrt� P),)AG Signature m mm- AUa MA-JssA 000 n M1 Title mm !u, 0 "GARNET" Garnet Solar Power Generation Station 1, LLC Si nature 5eurt�} .Lee Alm &*In!= C Title [Signature to be Notarized] Page 6 of 9 AFO R" CERTIFICATE OF LIABILITY INSURANCE I�(i5�1 I 09iiai2o023 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policylles) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WANED, subject to the terms and conditions of the policy, certain policies may require an andoreement. A statement on this certifiests does not Confer rights to the Certificate holder in lieu of such endorsement(s). PRODUCER LIC a0C36851 1-415-403-1491 CONTACTNAME Kimberly Le_ikam Alliant Insurance Services, Inc. PHONE IFAA 560 mission Street, 6th Floor San Prancisco, CA 94105 INSURED Granite Construction Company 585 Nest Beach Street CA 95076 We Ne,EABl 415-403-1491 (A/c No):-415-874-4819 ADDRESS kleikamgalliant.com INSURERISLAFFORDIN_GCOVE_RAGE _ _ NMCe_ _ INSURERA:_TRANSPORTATION INS CO '20494 INSURERS: VALLRY FORGE INS CO 20508 INSUFERC: - - - INSURERD: INSURER E - COVERAGES CERTIFICATE NUMBER- 69609323 REVISION NUMBER - THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INBR- AOOLTSV&R _- -- _ -. -._. _ POLICYEFF POUCYEXP-_--- . LTp. TYPE OF INSURANCE POLN)YNUMBER M LIMITe A X COMMERCIAL GENERAL LIABILITY Y Y IGL2074978689 10/01/23 10/01/36 I EACHoocuRRENCE S 2,000,000 `OAMAG€TOR€NTEIS - - __- I CLAIMS -MADE X OCCUR PREMISES (Ee p_0C. aL S 21000.000 _ jj X Contractual Liability MEDEXP(An Onepevon) IS Nil X XCO He Xarda PERSONAIaADVNJURY Is 2,000,000 GEN" L AGGREGATE LIMIT APPLIES PER r GENERALAGGREGATE 'S 10,000,000 i POLICY I X_J PRO- , X _. � _ - _.JECT - I LOC PROWCTS-COMPXIP AGGII S 2,000,000 E. —__— OTHER: 3 H AUTOMOBILE LIABILRY X X BUA2074978692 10/01/23 10/01/26 COMBINED SINGLE LIMIT S 2,000,000 _ BODILY INJURY( Per Pereo,) X ANYAUTO 's OWNED SCHEDULED AUTOS ON AUTOS -- -++ BODILY INJURY (PereaMent)s - -- -- X HIRED X NON -OWNED 'AUTOS PROPEAJw0) CeE _ _ ONLY (Pyr cda.ml j contrAUTOS actual X Contractual _ UMBRELLA LAB I--- OCCUR EACH OCCURRENCE S EXCESS LIAR CtAIM5A1ADE 'AGGREGATE S DEC ' RETENTION$ Is WORKERS COMPENSATION e ANDEMPLOYERa'LIABILITY X- I PER OTH Y INC274978630 (CA) 10/01/23 10/01/24 STATUTE -_ ER_- - ---- Is 2,000,000 - A ANYROPRIETORPARTNEUEXECUTNE MINI NIA X i10227497B644 (AOS/Stop Gapl0/Ol/23 10/01/24 E1. EACH ACCIDENT OFFICERMIEMBEREXCLUDEDi (MandYoryinNH) E._L. DISEASE-EAEMPLOYEEIS 7, 000,000 un it99N.deecdN under _ - --_ -- -_00 — _— _ DESCRIPTION OPERATIONS MIcry E.L. DISEASE -POLICY LIMIT S2, 000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES ACORD 101, A4dMonal Remwaa SdaduM, may N aftac l N m m epeoa Ia r tared) 2250 City of Palm Springs, Provide Emulsified Surface Sealant for Palm Springs International Airport Commercial Aviation Ramp, IFH 19-01. City of Palm Springs, it's officials, employees and aagents are named an additional insured but Only with respect to work performed for City of Palm Springs, Provide Emulsified Surface Sealant for Palm Springs International Airport Commercial Aviation Remy, IFB19-01 under this contract or permit. Thirty (30) day Notice of Cancellation an required by agreement. GL Per ISO Form CG0001 10/01; AL Per ISO Form CA0001 10113 of Palm Springs 3200 Tabquitz Canyon Nay P 0 Box 2743 Palm Springs, CA 92263-2743 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZEDREPRESENTATNE USA 01988-2015 ACORD CORPORATION(. All rights msirva"d. ' ` ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD City Hall ttagannp - RBCepfion DeSk 69609323 DATE SUPPLEMENT TO CERTIFICATE OF INSURANCE 09/12/2023 NAME Of INSURED: Granite construction couvany The named insured reserves its rights to provide any additional coverages under the policies above to only those expressly negotiated for by contract. m 4 0 N