HomeMy WebLinkAboutGS BOWERY OWNER, LLC & GS BOWERY OWNER II, LLC 88U
RECORDING REQUESTED BY:
AND WHEN RECORDED RETURN TO:
Recorded in Official Records, Orange County
City of Santa Ana Hugh Nguyen, Clerk-Recorder
20 Civic Center Plaza(M-93) I II I I IIII I II III I IIIII IIII I III I I I IIIII III II IIII I II I I I III NO FEE
P.O. Box 1988 * $ R 0 0 1 6 3 0 2 0 0 1 $ *
Santa Ana, CA 92702 2026000186471 04:17 pm 06129/26
880 RecWin1A Al2 15
Free recording requested by 0.00 0.00 0.00 0.00 42.00 0.00 0.00 0.00 0.00 0.00
The City of Santa Ana per
GOVERNMENT CODE SECTION 6103,27383 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) t-
Return FULLY EXECUTED N-2026-141
Copy to City Clerk, M-30 MAINTENANCE AGREEMENT
o;pws(") FOR THE GS BOWERY PROJECT PUBLIC RIGHT-OF-WAY
T•Martinta-RivAi�D2)
JUN 1 6 2026 THIS MAINTENANCE AGREEMENT FOR THE GS BOWERY PROJECT PUBLIC
RIGHT-OF-WAY("Agreement')is made and entered into as of J V W e IS ,2026(the
"Effective Date"), by and between GS BOWERY OWNER, LLC, a Delaware limited liability
company, and GS BOWERY OWNER I1, LLC, a Delaware limited liability company
(collectively "Developer'l, on the one hand, and CITY OF SANTA ANA, a charter city and
municipal corporation organized and existing under the Constitution and laws of the State of
California (the "City', on the other hand. Developer and the City may be referred to herein
singularly as the "Party" or collectively as the"Parties."
RECITALS:
A. GS BOWERY OWNER, LLC, a Delaware limited liability company, is the
owner of that certain real property located in the City of Santa Ana, County of Orange, State of
California,with Assessor's Parcel Number 430-222-24,Parcel 1 and 2 described on Exhibit"A"
hereto (the "Bowery Owner Property").
B. GS BOWERY OWNER I1, LLC, a Delaware limited liability company, is the
owner of that certain real property located adjacent to the Bowery Owner Property in the City of
Santa Ana, County of Orange, State of California, with Assessor's Parcel Number 430-222-25,
Parcel 3 and 4 described on Exhibit "A" hereto (the "Bowery Owner II Property" and,
collectively with the Bowery Owner Property, the"Developer Property").
C. Developer owns and operates the two parcels that compose the Developer
Property as a single Mixed-Use development known as "The GS Bowery Project."
D. The City and Developer wish to establish certain maintenance obligations and
rights incidental to the public right-of-way("ROW')located adjacent to the Developer Property
as shown on Exhibits "B," "C," and"D" attached hereto and incorporated herein.
NOW,THEREFORE, for valuable consideration,the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto agree as follows:
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1. Maintenance Obligations of ROW.
A. Developer Responsibility. "Maintenance Area" means the parkway
within the ROW depicted on Exhibits "B," "C," and "D" attached hereto. The
"Maintenance Area Improvements" means the landscape, trees, and irrigation improvements
within the Maintenance Area. Developer, at its cost, shall perform the following with respect to
the Maintenance Area and Maintenance Area Improvements:
(i) Keep the Maintenance Area in a safe condition according to the City's
written, published maintenance standards regarding public streets and rights-of-way in effect as
of the Effective Date, as such standards may be reasonably modified from time to time, provided
such modifications are generally applicable citywide and do not materially increase Developer's
obligations hereunder.
(ii) Keep the Maintenance Area reasonably free of obstructions, including
obstructive plant and landscape debris.
(iii) Maintain and, if necessary, replace the street trees and parkway
landscape within the Maintenance Area such that the Maintenance Area shall, at all times, be
landscaped and have street trees (provided that all street trees are subject to the reasonable
approval of the City).As used herein, maintenance and repair shall include,without limitation,
(a)watering, fertilizing,mowing, edging, and trimming of grass, trees and shrubs as needed and
as reasonably requested by the City, (b) maintaining and, if necessary, repairing irrigation
systems, (c) shaping trees and shrubs to maintain a healthy, natural appearance, safe street
conditions and visibility, (d) replacing, as needed, all dead plant materials, (e) control and
abatement of weeds, and (f) double staking trees as needed for support.
(iv) Application of all fertilizers, pesticides, and other materials within the
Maintenance Area shall be in accordance with all applicable laws, ordinances and regulations
pertaining to the use and application of such substances.
(v) Comply with the provisions of Chapter 16,Article II,Municipal Solid
Waste Collection Regulations, of the Santa Ana Municipal Code as it relates to the
Maintenance Area.
(vi) Comply with all federal, state and local laws applicable to the
Maintenance Area.
For clarity, Developer shall not be responsible for the maintenance of the Street
Medians on Warner Avenue and Redhill Avenue, depicted on Exhibit"B".
2. Termination of Developer Maintenance Obligation. Developer shall have the
ongoing maintenance obligations of the Maintenance Area and Maintenance Area Improvements
as set forth herein until such time as the City,in its sole and absolute discretion,elects to maintain
such area. In such event, the City shall provide a written and executed notice of termination of
this Agreement to Developer in a sufficient form to be record with the Orange County Recorder's
Office.
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3. Use of ROW. The ROW shall be accessible by the general public. Except for
work to be performed pursuant to this Agreement and except as approved by the City (which
approval shall not be unreasonably withheld, conditioned or delayed), Developer agrees that
neither they nor any successor may erect any structure, perform any improvement work, or
conduct any activity or otherwise cause any activity or situation to exist that will inhibit or impair
the use of the ROW.
4. Right of the City to Remedy Failure of Maintenance Obligation.If Developer
fails to comply with the provisions of this Agreement, including any failure to maintain the
Maintenance Areas and/or the Maintenance Area Improvements, as set forth above,then the City
may deliver written notice to Developer identifying the specific defects regarding the maintenance
of the Maintenance Areas or Maintenance Area Improvements ("Defects Notice"). The Defects
Notice shall specify the date by which Developer must remedy the specific defects identified in
the Defects Notice in order to avoid action by the City, which date, except in the case of an
emergency situation, shall be no less than fifteen(15)days after Developer's actual receipt of the
Defects Notice. If the City determines a hazardous situation exists which must be remedied
immediately ("emergency situation"), then the City will provide written notice to Developer
specifying the emergency situation must be remedied within twenty-four(24)hours or such other
time as may be mutually agreed upon by the Parties.
If, after notice from the City, Developer fails to correct the specific defects
identified in the Defects Notice within the time period specified in the Defects Notice, the City
shall have the right to remedy the specific defects identified in the Defects Notice. The City or its
assignees shall have the right of access, ingress and egress upon and across the Maintenance
Areas as may be necessary to complete such remedial work. The City may retain, as its election,
its own contractors, or Developer's contractors, or other third party maintenance company to
complete the remedial work. Any costs incurred by the City for the remedial work needed to
remedy the specific defects identified in the Defects Notice shall, to the extent such costs are
reasonable and actually incurred,be borne solely by Developer. The City shall provide a written
itemized invoice and back-up documentation for such costs (e.g., documentation evidencing the
number of worker hours spent performing the remedial work, receipts for the purchase of any
materials or lease of any equipment needed to perform the remedial work, mechanics' lien
releases, etc.) to Developer within thirty (30) days after the completion of the remedial work.
Developer shall remit payment to the City within thirty (30) days from Developer's receipt of the
invoice and back-up documentation; provided, however,that Developer may reasonably dispute
any invoiced costs by written notice within fifteen (15) days, and upon such notice, the Parties
shall meet and confer in good faith to resolve such a dispute prior to any enforcement action by
the City. The Parties agree that any remedial work undertaken by the City under this section shall
not terminate the maintenance obligations of Developer under this Agreement.
5. Developer Indemnity. To the fullest extent allowed by law, Developer shall
indemnify, defend (with legal counsel reasonably acceptable to the City), and hold harmless the
City, its officers, agents, employees, representatives and volunteers from and against any
liability, claims, actions, costs, damages or losses, including reasonable costs and attorney's fees,
for injury to persons, including death of any person, or damage to any property, arising directly
or indirectly from the gross negligence or willful misconduct of Developer, its agents, or
contractors in the performance of this Agreement. However, Developer shall have no
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obligation to indemnify the City for any liability or loss arising from the gross negligence or
willful misconduct of the City, its officers, agents, or employees.
6. City Indemnity. To the fullest extent allowed by law, the City shall indemnify,
defend (with legal counsel reasonably acceptable to Developer), and hold harmless Developer,
its officers, agents, employees, members, directors, partners, and affiliates from and against
any liability, claims, actions, costs, damages or losses, including reasonable costs and
attorney's fees, for injury to persons, including death of any person, or damage to any
property, arising directly or indirectly from the gross negligence or willful misconduct of the
City, its agents, or contractors in the performance of this Agreement.However,the City shall have
no obligation to indemnify Developer for any liability or loss arising from the gross negligence
or willful misconduct of Developer, its agents, employees, or contractors.
7. Mutual Waiver of Consequential Damages. Notwithstanding any other
provision of this Agreement, in no event shall either party be liable to the other for any incidental,
special, punitive, or consequential damages (including, but not limited to, loss of profits or
revenue) arising out of this Agreement.
8. Acts Beyond Developer's Control. Nothing in this Agreement shall be
construed to entitle the City to bring an action against Developer for injury to or change in the
Maintenance Area, Maintenance Area Improvements, and/or any person or property on the
Maintenance Area resulting from unforeseeable causes entirely beyond Developer's
control, including, without limitation, fire, flood, storm, epidemics, pandemics, disease,
earth movement, or other similar natural catastrophes amounting to acts of God,
provided such could not have been prevented or mitigated by the exercise of reasonable care
or industry-standard preventative measures. This shall also apply to any reasonably prudent
action taken by Developer under unforeseen emergency conditions to prevent, abate, or mitigate
imminent and significant injury to the Maintenance Area, Maintenance Area Improvements, and/
or any person or property on the Maintenance Area. This provision does not excuse liability for
conditions resulting from typical weather patterns and risks reasonably foreseeable at the time of
execution of this Agreement.
9. AssiLrnment. Developer shall have the right, upon written notice to the City, to
assign all of Developer's rights and obligations set forth in this Agreement to a homeowner's
association formed to manage the project that has been constructed on the Developer Property or
successor owner of the Developer Property ("Successor"). Developer hereby covenants and
warrants for itself, and for its successors and assigns, that any deed or other instrument conveying
fee title to any portion of the Developer Property to a Successor shall expressly state and require
that the Successor assume all of Developer's obligations under this Agreement. After assigning
Developer's rights and obligations under this Agreement to a Successor, the Successor shall have
all rights and obligations of Developer set forth in this Agreement, and Developer shall thereafter
have no further rights, liabilities or obligations under this Agreement and shall be automatically
released from all liability under this Agreement. The written notice of the assignment to the
Successor of Developer's rights and obligations under this Agreement shall contain appropriate
contact information for the Successor, including, without 'limitation, the Successor's property
manager's name, telephone number, address, the effective date of the assignment of Developer's
rights and obligations to the Successor, and a recorded copy of the deed or instrument assigning
Developer's rights and obligations to the Successor.
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10. Insurance.Prior to undertaking performance of any work under this Agreement,
Developer or Successor, as applicable, shall maintain and shall require its subcontractors, if any,
to obtain and maintain commercial general liability insurance naming the City as an additional
insured and shall include, but not be limited to protection against claims arising from bodily and
personal injury, including death, resulting therefrom and damage to property, resulting from any
act or occurrence arising out of Developer's or Successor's operations in the performance of this
Agreement,including,without limitation,acts involving vehicles.The amounts of insurance shall
not be less than the following: single limit coverage applying to bodily and personal injury,
including death resulting therefrom, and property damage, in the total amount of$1,000,000 per
occurrence, with $2,000,000 in the aggregate, which coverage may be satisfied through a
combination of primary and umbrella or excess liability policies. To the extent broader coverage
and/or higher limits than the minimum required are obtained,the requirements of this Section shall
apply to such insurance policy. Such insurance shall be primary and not contributory with respect
to insurance or self-insurance programs maintained by the City and contain standard separation
of insureds provisions.
11. Successors and Assigns. This Agreement shall run with the land and shall be
binding upon and shall inure to the benefit of the heirs, executors, administrators, successors and
assigns of Developer and the City. The covenants, conditions and restrictions set forth in this
Agreement shall constitute equitable servitudes which shall run with the land.
12. Notices. Unless otherwise provided in this Agreement, all notices, demands, or
other communications given pursuant to the terms of this Agreement shall be in writing and shall
be deemed to have been given and received upon personal delivery or as of the second business
day after mailing in the United States by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows or to such other address or to such other person (e.g.,
Successor or its property manager) as either party may designate in a written notice to the other
party:
To Developer:
GS Bowery Owner, LLC and GS Bowery Owner II, LLC
Attn:
To the City:
City of Santa Ana
Executive Director of Public Works
Agency 20 Civic Center Plaza, M-43
P.O. Box 1988
Santa Ana, CA 92702
Additionally, Developer or Successor, as applicable, shall file annually the names,
addresses and telephone numbers of at least one officer, property manager, or other responsible
person with the City's Public Works Agency for the purpose of contacting Developer or
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Successor in the case of emergency or in those cases where the City has an interest in violations
of this Agreement.
13. Lender Protection. Nothing in this Agreement shall be construed as giving any
party priority over the rights of beneficiaries of first deeds of trust encumbering any portion of the
Developer Property. No breach of this Agreement shall invalidate the lien of any first deed of trust
encumbering the Developer Property.
14. Governing Law. The substantive and procedural laws of the State of California
shall govern the interpretation and enforcement of this Agreement,without application of statutes
or principles relating to conflicts of laws.
15. Headings. The titles or headings of the sections of this Agrccment are not a part
of the Agreement and shall have no effect upon the construction of or interpretation of this
Agreement.
16. Execution in Counterpart. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which,together, shall constitute one and the
same instrument.
[Signatures on the following page]
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IN WITNESS WHEREOF,the Parties have executed this Agreement as of the date first
set forth above.
CIT F SANTA A ATTEST
C=
Alvaro Nunez ennife . Hall '.
City Manager City Cl
APPROVED AS TO FORM "DEVELOPER"
Sonia R. Carvalho
City Attorney GS BOWERY OWNER, LLC,
a Delaware limited liability company
e Nellesen By:
Assistant City Attorney Name: •�C- �
Its:\J\,c-c�
RECOMMENDED APPROVAL GS BOWERY OWNER II, LLC,
a Delaware limited liability company
0 o Ro 6 9, P.E. By:
Acting Executive Director Name:
Public Works Agency Its: J\,C-%C QQ �p1z�r—ST
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CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document
to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California l
County of Ora Y1gf. J}
On JLkN IS, 202(D before me, E�lu 0 JOG VIVA, N ai-a r�4 RA1 1I L
Date Here Insert Name and Title of the Officer
personally appeared A�Vairb N Un2 Z
Name(s)of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
*my
EVELYNIBARRA paragraph is true and correct.
Notary Public-CaliforniaOrange County WITNESS my hand and official seal.
Commission#2489063
Comm.Expires May 3,2028
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Place Notary Seal and/or Stamp Above jig)111re of Notary Public
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Title or Type of Document:
Document Date: Number of Pages:
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Signer's Name: Signer's Name:
❑ Corporate Officer—Title(s): ❑ Corporate Officer— Title(s):
❑ Partner— ❑ Limited ❑ General ❑ Partner— ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact ❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator ❑ Trustee ❑ Guardian or Conservator
❑ Other: ❑ Other:
Signer is Representing: Signer is Representing:
C2019 National Notary Association
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF 0C^-1 e- )
On 'Z 'J 20Z
1"� { before me, ��l�i�e, � Y la��e� , a Notary
Public, personally appeared 1<6ml F. I cirne� ®,who proved to me on the basis
of satisfactory evidence to be the person(4 whose name(4 is/afe subscribed to the within
instrument, and acknowledged to me that he/ y executed the same in his/hQ4th#k
authorized capacity(i<and that by his/weir signaturew on the instrument the personv,,
or the entity upon behalf of which the person( acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WI ESS my han and official seal. SIEVE OBERLANDER
COMM. #2446998 z
Ir_ .� Notary Public•California
z" Orange County
MX Comm.Expires June 9,2027
Notary Public (SEAL)
iYrl COA 0 6e A9 rte~V14 FP, -The
F'p wee,l �
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF 61-AY1!g )
On 17,MA Z!�& before me Siege' 40he r 10kn JC r , a Notary
Public, personally appeared LA e- ,who proved to me on the basis
of satisfactory evidence to be the person(]whose nameW is/,"e subscribed to the within
instrument, and acknowledged to me that he/may executed the same in his/fir
authorized capacity(ie), and that by his/4ep4heir signature(s}on the instrument the person(es'j,
or the entity upon behalf of which the person(,4 acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITN SS my hand a d pfficipl seal. STEVE OBERLANDER
COMM. #2446998 z
aQc= Notary Public•California
Z Orange County
. M M Comm.Expires June 9,2027
Notary Public (SEAL)
n®G T1 i vt�G✓I�v,� ACC M��t`� �d�'' �Yr C
6,5 6O P1,
9
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF )
On , before me, a Notary
Public, personally appeared ,who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument, and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public (SEAL)
10
EXHIBIT"A"
LEGAL DESCRIPTION OF BOWERY OWNER PROPERTY
LOTS 1 THROUGH 4 OF TRACT NO. 19238,IN THE CITY OF SANTA ANA, COUNTY OF
ORANGE, STATE OF CALIFORNIA,PER MAP FILED IN BOOK 1013 PAGES 17 THROUGH 22,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
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