HomeMy WebLinkAboutC-3675-2 - Amended and Restated Property Maintenance AgreementAMENDED AND RESTATED PROPERTY MAINTENANCE AGREEMENT
This Amended and Restated Property Maintenance Agreement ("First
Amendment"), is entered into on November 4, 2025 ("Effective Date") between the City
of Newport Beach ("City") and the Newport Coast Community Association ("NCCA" or
"Association") (individually "Party" or collectively "Parties") and is made with reference to
the following:
RECITALS
A. City is a charter city with the powers and authority provided in the Newport Beach
City Charter and the Constitution and laws of the State of California. For purposes
of this First Amendment, the term City includes the employees, officers,
representatives, agents or contractors of the City.
B. Association is a Common Interest Development formed pursuant to California Civil
Code section 1350 of seq.
C. City, pursuant to a Pre -Annexation Agreement ("PAA") with the Newport Coast
Committee of 2000, agreed to maintain the landscaping of certain areas/properties
("Eligible Property(ies)") in the areas commonly known as Newport Coast and/or
Newport Ridge ("Annexed Area").
D. On December 9, 2003, the Parties entered into the Property Maintenance
Agreement ("Agreement" or "PMA"), attached hereto as Exhibit A, which set forth
the terms and conditions of the City's maintenance obligations. Unless otherwise
specifically amended herein, the Agreement remains in effect.
E. On January 26, 2024, Association filed a lawsuit in Orange County Superior Court,
Case No. 30-2024-01375558-CU-BC-CJC, alleging the City breached the
Agreement, which the City denies ("Action"). The Parties have conditionally settled
the action pursuant to a Settlement Agreement and Release.
F. Notwithstanding the foregoing, as part of the resolution of the Action, the City and
Association agreed to enter this First Amendment to further delineate the
maintenance obligations of the City under the Agreement.
NOW, THEREFORE, the Parties agree as follows:
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(a) Effective Date. The initial term of this First Amendment (Initial Term) shall be
four (4) years commencing on the Effective Date unless this First Amendment
is terminated as provided in Section 9 or Subsection (b) below.
(b) Extension. The Parties agree that the term of this First Amendment shall
automatically extend for periods of four (4) years (Extended Term[s])
commencing on the expiration of the Initial Term or the expiration of any
2.
Extended Term unless the Association serves the City with a notice of
termination within thirty (30) days prior to expiration of the Initial Term or any
Extended Term.
MAINTENANCE TO BE PERFORMED.
(a) Scope. City shall at its sole cost and expense, through either its own
employees or a qualified third party contractor (unless the Parties agree to
reimburse NCCA for the completion of certain work after review and approval
of a proposal), perform maintenance services ("Maintenance") listed, and to the
standard(s) described, in the Scope of Services attached hereto as Exhibit B
(Scope of Services) with respect to the Eligible Property described/depicted in
Exhibit C and more particularly described in Exhibit C-1, which sets forth the
geospatial coordinates. The Parties agree to confirm the above geospatial
coordinates in Exhibit C-1 following the execution of this First Amendment. To
the extent the geospatial coordinates cannot be confirmed and agreed upon,
the Parties agree to follow the dispute resolution procedures set forth in
Sections 3.d. and 6.i. of the Settlement Agreement and Release in the Action.
The City shall have no obligation to maintain or perform work on any property
that is not specifically described/depicted as Eligible Property in Exhibits C
and/or C-1. The City, in its sole and exclusive discretion, shall have control
over the means, methods, equipment, techniques, sequences or procedures
used to provide the Maintenance. City may remove or alter landscaping or other
objects from the Eligible Property, following approval by the Association, and
after a determination by the Public Works Director that the: (a) landscaping is
suffering from incurable or infectious disease; (b) landscaping or object is
damaged beyond recovery or repair; or (c) the landscaping or object is
inconsistent with the safe movement of pedestrians or vehicles including,
without limitation, obstructions to adequate site distance along or across any
roadway or sidewalk. City shall use its best efforts to install replacement
landscaping that is identical to the landscaping that was removed except if this
is highly impracticable. Except as specifically provided herein or in Exhibit B,
the City shall install landscaping that is: (a) most similar to, including size, the
landscaping removed; and (b) on the then current and approved palette of plant
materials for the Association. The plant palette remains the same, with the
following changes/revisions: Trees can include the following species: Quercus
Virginians 'Joan Lionetti,' Metrosideros Excelsa `New Zealand Christmas Tree,'
Arbutus Marina 'Marina Strawberry Tree,' California Sycamores (only grown in
natural areas not on planed slopes), Olive Trees (36-inch box or smaller), and
New Zealand Christmas Tree. Trees to be removed from the current plant
palette include the following species: Cypress Trees, Allepo Pine Trees,
Eldarica Pine Trees, Eucalyptus Trees and Stone Pine Trees. Plants/Ground
Cover can include the following species: Casuarina Glauca, Callistemon Red
Rover, Coprosma Marble Queen, Coprosma Repens Taupata Gold, Agonis
Flexuosa Nana, and Chrysanthemoides Incana. Plants/Ground Cover to be
removed from the current plant palette include the following species: Acacia,
'Low Boy Prostrate,' and Myoporum. NCCA can provide updated plant palettes,
Amended and Restated Property Maintenance Agreement Page 2
which can be modified by NCCA from time to time so long as it does not
increase the costs to the City, or NCCA will have the option to pay the
difference. Notwithstanding the foregoing, the City shall not be obligated to
install replacement landscaping of the same species if it has been determined
that the entire species is affected by the same disease, insect, or condition that
caused the damage, destruction or removal of the landscaping and that the
disease, insect, or condition cannot be prevented by industry standard
maintenance. The intent of the Parties is that the City is obligated, to the
maximum extent possible, to maintain the landscape density, design and
appearance of the Eligible Property when all landscaping was in good
condition. City shall consider, but not be bound by, comments submitted by the
Association relative to the means, methods, or techniques used to provide
Maintenance. This Section shall control the City's Maintenance obligations.
Other than confirming the geospatial coordinates (to be agreed upon in Exhibit
C-1) set forth above, any disputes or failures to agree between City and
Association related to the Maintenance obligations set forth above shall be
resolved in accordance with Section 8(b) herein.
(b) Landscape Changes. The Parties understand that it may be necessary or
advantageous for the Association to modify or change the landscape species
(within the Eligible Property areas) for reasons related to aesthetics or for other
reasons. Should the Association choose to voluntarily modify or change the
landscape species and not because of being compelled to do so because of a
governmental requirement, the Association shall be obligated to pay for the
cost of such modifications or changes and be responsible for maintaining the
particular area. If the modification or change is mandated by a government
requirement, the cost of the modification or change shall be paid by the City.
3. CONDITIONS OF DUTY TO MAINTAIN
The City's duty to provide Maintenance is subject to Association's full compliance
with this First Amendment and the following express conditions:
(a) Access. Association shall grant City the rights necessary, to provide the
Maintenance including surface and subsurface access, ingress and egress and
the right, at the City's sole cost and expense, to modify, or replace any faculty
or equipment adjacent to, on, over or under the Eligible Property (Access).
Except as provided in Subsection (b), the Association's grant of Access shall
not be subject to any restriction including, without limitation, limits on the date
or time of access, any obligation to provide insurance/indemnity or any limit on
the size or nature of vehicles or equipment.
(b) Access Conditions. The Association's grant of Access shall be subject to the
conditions that: (i) the City repair or replace, to the condition prior to damage,
any landscaping or facility that is damaged by City in the course of providing
the Maintenance or otherwise; and (ii) except in the event of an emergency, the
Amended and Restated Property Maintenance Agreement Page 3
City will comply with the Association's rules pertaining to the days and hours
during which landscape maintenance may be performed.
(c) Payment for Utilities. City, in its sole discretion, shall either (i) pay for and
provide for the separation of any water or electrical meter or similar device if
the meter or meters provide service to the Eligible Property and other properties
adjacent to or nearby the Eligible Property that are controlled or maintained by
the Association or its contractors; or (ii) City shall reimburse Association in an
amount that is based on a formula, calculated by the City and the Association
using their respective best efforts and acting in good faith that, represents the
percentage of the overall cost of water and electrical service to all Association
property that is attributable to the Eligible Property. Any dispute regarding the
formula shall be submitted to the Neutral Arborist, as set forth in Section 8.
(d) Adjacent Property. The Association shall use its best efforts to cooperate and
comply with requests of the City relating to the maintenance, modification or
condition of Association property or facility that is adjacent to the Eligible
Property, and which is necessary for the City to fulfil its Maintenance
obligations. Association agrees to indemnify and hold City harmless with
respect to any damage or injury to the Eligible Property that is proximately
caused by Association's failure to comply with its obligations pursuant to this
Subsection. Association's duty to cooperate includes, without limitation, the
obligation to maintain its property in good condition and in a manner that does
not create or increase any risk of injury or damage to persons or real or
personal property.
(e) Inspection of Eligible Property. Association shall permit, and the City shall
conduct, within thirty (30) days after the Effective Date, an inspection to
document via photographs and/or video the condition of the Eligible Property.
Both parties shall review the documentation and agree on the baseline
condition of the Eligible Property. If the Parties cannot agree on the baseline
condition, it shall be submitted to the Neutral Arborist as set forth in Section
8(b) below.
4. ADDITIONAL PARTY OBLIGATIONS
In addition to the duty to perform Maintenance:
(a) Irrigation System Management. The City shall, repair, maintain, and/or
replace any electrical, drainage, or irrigation equipment on the Eligible Property
within the Maintenance Schedule timeframes set forth in Exhibit B that requires
repair or replacement during the Term at its sole cost and expense.
(b) Damage to Association Property. City shall as soon as reasonably practical
repair or replace any Association property that is damaged or destroyed by City
while providing the Maintenance.
Amended and Restated Property Maintenance Agreement Page 4
5. WATER QUALITY & WATER CONSERVATION
(a) NPDES Obligations. City shall reasonably comply with any and all obligations
and requirements (including applying for and obtaining any required permits)
pertaining to the Eligible Property that are imposed pursuant to the Municipal
Separate Storm Sewer System ("MS4") Permit issued to the City and to the
County of Orange by the California Regional Water Quality Control Board,
Santa Ana Region ("Regional Board"), under the National Pollutant Discharge
Elimination System ("NPDES") permit system.
(b) Water Quality -Limited Watersheds. Association shall reasonably cooperate
with the City with respect to compliance with any regulatory directive by the
Regional Board or the State Water Resources Control Board ("State Board")
pertaining to the Eligible Property. The City's obligation to perform Maintenance
shall be deemed modified to the extent necessary to conform to any directive
or order from the State Board, Regional Board, or other agency with jurisdiction
over the Eligible Property.
(c) Water Conservation. Association and its agents and contractors shall
reasonably cooperate with the City with respect to any water conservation
measure adopted by the City Council or other governmental agency with
jurisdiction over the Eligible Property.
6. INDEMNIFICATION AND INSURANCE
(a) Indemnification. City shall, assuming Association is not in default with respect
to its obligations pursuant to this First Amendment, defend, indemnify and hold
harmless the Association, its officers, employees, agents and members with
respect to any damage, claim, liability, loss, injury, cost, attorney fees or
expense that arises out of, or is in any way related to, any act or omission of
the City in the performance or non-performance of Maintenance pursuant to
this First Amendment. Association and its officers, employees, agents and
members shall reasonably cooperate with City in the defense or any claim or
lawsuit the City is obligated to defend pursuant to this First Amendment. City's
obligations pursuant to this First Amendment shall not apply to damages,
claims, injuries, liability, losses, costs, attorney fees or expenses that are
proximately caused by the sole negligence or willful act of the Association or its
officers, employees, agents, representatives, or members. City shall have full
discretion to select counsel, experts or other professionals to represent or
advise it and the Association as well as its officers, agents, employees and
members with respect to any litigation or any action related to the litigation.
(b) Insurance. In addition to its indemnification obligations in Subsection (a), the
City shall maintain throughout the term of this First Amendment commercial
general liability insurance coverage including owned, non -owned and hired
vehicle insurance in an amount, and with the self-insurance retentions, as the
City Council determines to be in the City's best interests given the current
Amended and Restated Property Maintenance Agreement Page 5
market conditions, City shall provide Association with appropriate certificates
evidencing compliance with this Section and shall use its best efforts to add
the Association as an additional insured on any such policy provided the City
would incur no additional cost to do so or Association reimburses the cost.
7. ADMINISTRATION
This First Amendment will be administered by the Director of the City's Public
Works Department ("Director"). The Director shall be considered the Project
Administrator and shall have the authority to act for City pursuant to this First
Amendment. The Project Administrator or his/her authorized representative shall
represent City in all matters pertaining to the Maintenance. The Project
Administrator's address, phone number, facsimile number and e-mail address is
set forth in Section 10 of this First Amendment. The City agrees that each time the
Project Administrator changes, it will notify the Association of such change within
thirty (30) days, and provide Association with the address, phone number, and e-
mail address of the new Project Administrator at the time of notification of change.
8. MONTHLY WALKTHROUGHS AND DISPUTE RESOLUTION
(a) Monthly Walkthroughs. The City and Association shall conduct monthly
Walkthroughs of the Eligible Property to inspect and assess the maintenance
work performed. During each walk-through, both Parties shall document any
items requiring repair, correction, or completion. Each Party shall complete the
tasks identified in the monthly walk-through within one (1) month or, if the work
cannot be reasonably completed within one month, a reasonable time.
Notwithstanding the foregoing time frame, if any maintenance work requires
urgent or immediate attention to prevent damage, preserve safety, or avoid
material deterioration, the responsible Party shall take reasonable steps to
address such maintenance promptly.
(b) Dispute Resolution. The Parties recognize that disputes may arise as to
compliance with the terms of this First Amendment. To minimize the need for
further litigation over a dispute regarding the interpretation or compliance with
this First Amendment, either Party may give written Notice to the other Party
of a dispute in the manner set forth herein, fully describing the exact nature of
the dispute ("Dispute Notice"). Within thirty (30) days after either Party sends
a Dispute Notice, the Parties shall either mutually agree to a Neutral Arborist
to decide/resolve the issues raised in the Dispute Notice, or if no such
agreement can be reached, each Party shall designate their own arborist, and
those two arborists shall select a third arborist within thirty (30) days after the
initial designation, to decide/resolve the issues raised in the Dispute Notice.
The Neutral Arborist shall be authorized to meet with the Parties and/or
require written summaries relating to the issues raised in the Dispute Notice.
The decision(s) of the Neutral Arborist as to the work that needs to be
completed to comply with this First Amendment shall be binding on the Parties
Amended and Restated Property Maintenance Agreement Page 6
and shall be performed by the obligated Party in a timely manner. The Neutral
Arborist shall only have jurisdiction to interpret this First Amendment as it
applies to work to be completed and shall not have jurisdiction to change any
terms in the same.
The Neutral Arborist shall serve as the Neutral Arborist for a four-year term,
which may be renewed by agreement of the Parties. If the Parties cannot
agree upon renewing the term of the Neutral Arborist, the Parties shall follow
the procedure set forth in this paragraph to select a new Neutral Arborist. This
provision is meant to be consistent with the Neutral Arborist Resolution
Procedure set forth in Section 3d. of the Settlement Agreement and Release
in the Action. To the extent there are any inconsistencies, the provision in the
Settlement Agreement and Release shall control.
The Parties agree to execute a written agreement provided by the Neutral
Arborist for the payment of his/her fees and costs. The fees and costs of the
Neutral Arborist shall be shared by the Parties equally.
9. TERMINATION
(a) Notice. In the event either party fails or refuses to perform any of the provisions
in this First Amendment, that party shall be deemed to be in default in the
performance of this First Amendment. The party not in default may terminate
this First Amendment if, within ten (10) days after notice of default, the party in
default has not cured the default, or if more than ten (10) days are reasonably
required to cure the default the party in default has failed to give adequate
assurance of due performance within ten (10) days after receipt of written
notice of default, specifying the nature of such default and the steps necessary
to cure such default. To the extent the City terminates this First Amendment,
the Association maintains (and does not waive) any rights it may have related
to PAA and associated annexation of the Newport Coast community, including
without limitation, all remedies.
(b) Restoration Following Termination. Upon termination of this First
Amendment by either party, City agrees to restore the Eligible Property to the
condition that existed upon the date of the City's inspection as described in
Subsection 3(e) of this First Amendment. The restoration of the Eligible
Property shall be completed as quickly as reasonably practicable, but in no
event more than ninety (90) days following termination. Any damage or injury
to Association property, facilities, landscaping or hardscape that is proximately
caused by the City during the restoration process, or as a result of any delay in
the restoration process (for example, plant material dying as a result of any
irrigation, drainage, or electrical equipment being inoperative during the
restoration) shall be repaired or replaced by City.
Amended and Restated Property Maintenance Agreement Page 7
(c) Survival of Obligations. The commitments and obligations of the City that
are specified in Sections 4(b), 6(a), 9(b), 9(c) and 16 shall survive the
termination of this First Amendment.
10. NOTICES
All notices, demands, requests or approvals to be given under this First
Amendment shall be given in writing and conclusively shall be deemed served
when delivered personally or on the third business day after the deposit thereof in
the United States mail, postage prepaid, first class mail, addressed as set forth
below or as changed by either Party with written notice to the other Party in the
manner specified in this Section with additional noticing, if desired by either Party,
by e-mail at the e-mail addresses set forth below.
All notices, demands, requests or approvals from Association to City shall be
addressed to city at:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92625
Attn: City Manager
Phone: (949) 644-3311
E-Mail: Iq eungpc�newportbeachca.gov
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92625
Attn: City Attorney
Phone: (949) 644-3311
E-Mail: aharp(c-),newportbeachca.gov
City of Newport Beach
100 Civic Center Drive Newport Beach, CA 92625
Attn: Director of Public Works
Phone: (949) 644-3311
E-Mail: dawebb6a�newportbeachca.gov
All notices, demands, requests or approvals from City to Association shall be
addressed to the Association, attention "Property Manager" and the following other
individuals at:
Newport Coast Community Association
c/o First Service Residential
15241 Laguna Canyon Road
Irvine, CA 92618
Attn: Holly Maddalena
Phone: (949) 500-1163
Amended and Restated Property Maintenance Agreement Page 8
E-Mail: Holly.Maddelena@fsresidential.com
Charles S. Krolikowski, Esq.
Newmeyer & Dillion, LLP
895 Dove St., 2nd Floor
Newport Beach, CA 92660
Phone: (949) 271-7233
E-Mail: Charles. Krolikowski(o7ndIf. com
Amber Y Snider
9 Veneto
Newport Coast, CA 92657
Phone: (949) 355-3862
E-Mail: essaysl@cox.net
Gerald Klein
15 Castellina Drive
Newport Coast CA 92657 and
Phone: (949) 683-2009
E-Mail: gklein74(a-)_outlook.com
Jim McGee
McGee & Associates
24 Corporate Plaza Drive
2nd Floor
Newport Beach, CA 92660
E-Mail: jimmcgee(a�mcgee-law.com
Nothing herein shall require an amendment to this First Amendment to revise the names
provided herein. The persons identified herein may be modified by either Party by
providing prior written notification.
11. WAIVER
The waiver by City or Association of any breach of this First Amendment by the
other shall not be deemed to be a waiver of any term, covenant, or condition or
any subsequent breach.
12. PARTIAL INVALIDITY
If any term or provision of this First Amendment is declared invalid or
unenforceable, the remainder of this First Amendment shall not be affected.
13. GOVERNING LAW
The laws of the State of California shall govern the enforcement and interpretation
Amended and Restated Property Maintenance Agreement Page 9
of this First Amendment. Neither the City's execution of this First Amendment nor
any consent or approval given by the City pursuant to this First Amendment shall
affect the City's powers and duties as a governmental entity.
14. ENTIRE AGREEMENT; MODIFICATION
This First Amendment contains the entire understanding between the Parties
relative to the subject matter. No verbal agreement or implied covenant shall be
held to vary the provisions of this First Amendment. Each Party has relied on its
own examination of this First Amendment, the counsel of its own advisors, and the
warranties, representations, and covenants in this First Amendment. The failure
or refusal of either Party to read this First Amendment or other documents or to
obtain legal or other advice relevant to this First Amendment constitutes a waiver
of any objection, contention, or claim that might have been based on such reading,
inspection, or advice. No provision of this First Amendment may be amended or
varied except by an agreement in writing signed by the Parties or their respective
successors and approved as to form by the City Attorney.
15. HEADINGS
The headings and captions of the various sections of this First Amendment are for
convenience and ease of reference only and do not define, limit, augment, or
describe the scope, content, or intent of the same.
16. ATTORNEY'S FEES AND COSTS
Should litigation become necessary to enforce one or more of the terms, conditions
and/or provisions of this First Amendment or with respect to any issue arising out
of this First Amendment, the prevailing party shall be entitled to recover reasonable
attorney's fees and costs.
[SIGNATURES ON FOLLOWING PAGE]
Amended and Restated Property Maintenance Agreement Page 10
IN WITNESS WHEREOF, the Parties have caused this First Amendment to be
executed on the day, and year first written above.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California municipal corporation
• 9
Date: ---- "1 - �-) Date:
By-
Aaron C. Harp Joe Stapleton
City Attorney Mayor
ATTEST:
Date:
Lena Shumway
City Clerk
NEWPORT COAST COMMUNITY
ASSOCIATION, a California corporation
Date:
Date: ----L% _✓ (07 . _ .
By:.
.( -rwk -r. J./�
[END OF SIGNATURES] L11f-Q.c OY
Attachments: Exhibit A - Agreement
Exhibit B - Scope of Services
Exhibit C - Eligible Property - Property Map
Exhibit C-1 Geospatial Coordinates of Eligible Property
Amended and Restated Property Maintenance Agreement Page 11
IN WITNESS WHEREOF, the Parties have caused this First Amendment to be
executed on the day, and year first written above.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California mu icipal corporation
Date: 12�L2 S DatZStleto
% 2 S
-- _ B :
By: �� y
Aaron C. Harp J
City Attorney Mayor 6
ATTEST:
Date:
By:
Lena Shumway
City Clerk
NEWPORT COAST COMMUNITY
ASSOCIATION, a California corporation
Date: __ A
By:
"Miou 51116er'
l�
[END OF SIGNATURES]
Attachments: Exhibit A - Agreement
Exhibit B - Scope of Services
Exhibit C - Eligible Property — Property Map
Exhibit C-1 Geospatial Coordinates of Eligible Property
Amended and Restated Property Maintenance Agreement Page 11
0 0 C-y_o?5_
PROPERTY MAINTENANCE AGREEMENT
This Agreement (Agreement), dated this L day of 6-, 2003 (Effective Date) between the
City of Newport Beach ("City") and the Newport Coast Community Association ("Association") is made with
reference to the following:
RECITALS
A. City is a charter city with the powers and authority provided in the Newport Beach City Charter and the
Constitution and laws of the State of California. For purposes of this Agreement, the term City includes
the employees, officers, representatives, agents or contractors of the City.
B. Association is a Common Interest Development formed pursuant to California Civil Code Section 1350,
et seq.
C. City has, pursuant to a Pre -Annexation Agreement (PAA) with the Newport Coast Committee of 2000,
agreed to maintain certain properties (Eligible Properties) in the areas commonly known as Newport
Coast and/or Newport Ridge (Annexed Area).
D. The maintenance of parkways and medians provides a public benefit by minimizing the potential for
pedestrian and/or traffic accidents, ensuring compliance with water quality laws, promdting ah attractive
environment and preserving public views.
E. City's obligation to maintain the Eligible Properties is subject to certain conditions including a request
from the Association (as the property owner) and execution of, and compliance with, this Property
Maintenance Agreement.
F. Association has submitted a request that City maintain Eligible Property owned by Association and, by
execution of this Agreement, has committed to comply with all conditions specified in the PAA (relevant
section included within Exhibit C).
G. At its Regular Meeting on December 9, 2003, the Newport Beach City Council authorized the City
Manager to execute this document on behalf the City of Newport Beach.
NOW, THEREFORE, the Parties agree as follows:
1. TERM
(a) Effective Date. The initial term of this Agreement (Initial Term) shall be four (d) years
commencing on the Effective D ate unless this Agreement i s terminated as provided in Section 8 or
extended pursuant to Subsection 1(b).
(b) Extension. The Parties agree that the term of this Agreement shall automatically extend for
periods of four years (Extended Term[s]) commencing on the expiration of the Initial Term or the
expiration of any Extended Term provided that Association has not served City with a notice of
termination within thirty (30) days prior to the expiration of the Initial Term or any Extended Term.
2. MAINTENANCE TO BE PERFORMED
City s hall, a t i is s ole c ost and a xpense, t hrough a ither i is o wn employees o r a c ontractor, p erform s ervices
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Property Maintenance Agreement
Page 2 of 15
provide the Maintenance. City may remove or alter landscaping or other objects from the Property following
consultation with Association and after a determination by the General Services Director that the (a) the
landscaping is suffering from incurable or infectious disease; (b) the landscaping or object is damaged beyond
recovery or repair; or (c) that the landscaping or object is inconsistent with the safe movement of pedestrians or
vehicles including, without limitation, obstructions to adequate sight distance along or across any roadway or
sidewalk. City shall use its best efforts to install replacement landscaping that is identical to the landscaping
that was removed, but if this is highly impracticable City shall install landscaping that is (a) most similar to the
landscaping removed; and (b) on the then current and approved palette of plant materials for the Association.
Notwithstanding the foregoing, City shall not be obligated to install replacement landscaping of the same
species if it has been determined that the entire species is affected by the same disease or condition that
caused the damage, destruction or removal of the landscaping. The intent of the P arties i s that the City i s
obligated, to the maximum extent possible, to maintain the landscape density, design and appearance of the
Property when all landscaping was in good condition. City shall consider, but not be bound by, comments
submitted by the Association relative to the means, methods, or techniques used to provide the Maintenance.
3. CONDITIONS OF DUTY TO MAINTAIN
City's duty to provide Maintenance is subject to Association's full compliance with this Agreement and the
following express conditions:
(a) Access. Association s hall grant C ity the r ights necessary to provide t he M aintenance
including surface and subsurface access, ingress and egress and the right, at the City's sole discretion
and at the City's sole cost and expense, to modify, or replace any faculty or equipment adjacent to, on,
over or under the Property (Access). Except as provided in Subsection (b), the Association's grant of
Access shall not be subject to any restriction including, without limitation, limits on the date or time of
access, any obligation to provide insurance/indemnity or any limit on the size or nature of vehicles or
equipment.
(b) Access Conditions. The Association's grant of Access shall be subject to the conditions
that: (i) the City repair or replace, to the condition prior to damage, any landscaping or facility that was
damaged by City in the course of providing the Maintenance or otherwise; and (ii) except in the event of
an emergency, the City will comply with the Association's rules pertaining to the days and hours during
which landscape maintenance may be performed.
(c) Meter Separation/Payment for Utilities. City, in its sole discretion, shall either (i) pay
for and provide for the separation of any water or electrical meter or similar device if the meter or meters
provide service to the Property and other properties adjacent to or nearby the Property that are
controlled and maintained by the Association or its contractors; OR (ii) City shall reimburse Association
in an amount that is based on a formula, calculated by the City and the Association using their
respective best efforts and acting in good faith, that represents the percentage of the overall cost of
water and electrical service to all Association property that is attributable to the Property. The formula
developed by the Parties shall be attached to this Agreement as an exhibit.
(d) Adjacent Property. Association shall use its best efforts to cooperate and comply with
requests of the City relative to the maintenance, modification or condition of Association property or facility
that is adjacent to the Property and which is necessary in order for the City to perform its Maintenance
obligations. Association agrees to indemnify and hold City harmless with respect to any damage or injury to
the Property that is proximately caused by Association's failure to comply with its obligations pursuant to
this Subsection. Association's duty to cooperate includes, without limitation, the obligation to maintain its
property in good condition and in a manner that does not create or increase any risk of injury or damage to
persons or real or personal property.
(e) Inspection of Property. Association shall permit, and City shall conduct within 30 days
after the Effective Date, an inspection of the Property and any adjacent property that contains facilities
that serve the Property, to confirm that the Property contains live and viable landscaped material and
that the Property and any relevant adjacent property contain a fully functioning irrigation system (fully
functioning means all irrigation controllers, pipes, sprinkler heads or similar devices, water meters,
•
Property Maintenance Agreement
Page 3 of 15
wiring, or any other aspect of the irrigation system are in good working condition and functioning as
intended), and other facilities, such as electrical service, facilities necessary to perform the Services. The
inspection shall be conducted to confirm that the Property meets the criteria for City Maintenance
pursuant to the PAA and to establish a baseline with respect to the condition of the Property. The City
may take videos or photographs of landscaping and irrigation equipment during this inspection and may
retain these visual records.
4. ADDITIONAL CITY OBLIGATIONS
In addition to the duty to perform Maintenance:
(a) Irrigation System Management. City or its contractor shall promptly repair, maintain,
and/or replace any electrical, drainage, or irrigation equipment and any tree, bush, shrub, ground cover
or other plant material on the Property that requires repair or replacement during the Term at its sole
cost and expense.
(b) Damage to Association Property. City its contractor shall as soon as reasonably
practicable repair or replace any Association Property that is damaged or destroyed by City or its
contractor while providing the Services.
(c) Reimbursement. City agrees to pay the Association funds addressing past maintenance
to the Eligible Properties (maintenance that occurred between March 1, 2002 and the Effective Date) in
a schedule that shall be added at a later date an incorporated herein within Exhibit D (Compensation
Schedule).
5. WATER QUALITY & WATER CONSERVATION
(a) NPDES Obligations. City shall reasonably comply with any and all obligations and
requirements pertaining to the Property that are imposed pursuant to the Municipal Separate Storm
Sewer System (MS4) Permit issued to the City and to the County of Orange by the California Regional
Water Quality Control Board, Santa Ana Region ("Regional Board"), under the National Pollutant
Discharge Elimination System (NPDES) permit system.
(b) Water Qualitv-Limited Watersheds. Association shall reasonably cooperate with City with
respect to compliance with any regulatory directive by the Regional Board or the State Water Resources
Control Board ("State Board") pertaining to the Property. City's obligation to perform Maintenance shall
be deemed modified to the extent necessary to conform to any directive or order from the State Board,
Regional Board, or other agency with jurisdiction over the Property.
(c) Water Conservation. Association and its agents and contractors shall reasonably cooperate
with City with respect to any water conservation measure adopted by the City Council or other
governmental agency with jurisdiction over the Property.
6. INDEMNIFICATION AND INSURANCE
(a) Indemnification. City shall, assuming Association is not in default with respect to its
obligations pursuant to this Agreement, defend, indemnify and hold harmless the Association, its
officers, employees, agents and members with respect to any damage, claim, liability, loss, injury, cost,
attorney fees or expense that arises out of, or is in any way related to, any act or omission of City in the
performance or non-performance of Maintenance pursuant to this Agreement. Association and its
officers, employees, agents and members shall reasonably cooperate with City in the defense or any
claim or lawsuit the City is obligated to defend pursuant to this Agreement. City's obligations pursuant
to this Agreement shall not apply to damages, claims, injuries, liability, losses, costs, attorney fees or
expenses that are proximately caused by the sole negligence or willful act of the Association or its
officers, employees, agents, representatives, or members. City shall have full discretion to select
counsel, e xperts or other professionals t o r epresent o r a dvise it a nd t he Association as wells as i is
Properly Maintenance Agreement
Page 4 of 15
officers, agents, employees and members with respect to any litigation or any action related to the
litigation.
(b) Insurance. In addition to its indemnification obligations in Subsection (a), the City of
Newport Beach shall maintain throughout the term of this Agreement commercial general liability
insurance coverage including owned, non -owned and hired vehicle insurance in an amount, and with
the self insurance retentions, as the City Council determines to be in the City's best interests given then
current market conditions. City shall provide Association with appropriate Certificates evidencing
compliance with this Section and shall use its best efforts to add the Association as an additional
insured on any s uch p olicy p rovided t he City w ould i ncur no a dditional cost to do so o r Association
reimburses the cost.
7. ADMINISTRATION
This Agreement will be administered by the Director of the City's General Services Department (Director). The
Director shall be considered the Project Administrator and shall have the authority to act for City pursuant to this
Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters
pertaining to the Maintenance. The Project Administrator's address, phone number, facsimile number and e-
mail address are set forth in Section 9 of this Agreement. City agrees that each time the Project Administrator
changes, it will promptly notify Association of such change, and provide Association with the address, phone
number, facsimile n umber a nd a -mail a ddress of t he n ew P roject A dministrator at t he t ime of n otification of
change.
8. TERMINATION
(a) Notice. In the event either party fails or refuses to perform any of the provisions in this
Agreement, that party shall be deemed to be in default in the performance of this Agreement. The party
not in default may terminate this Agreement if, within ten (10) days after notice of default, the party in
default h as not cured the d efault, or if more than ten (10) days a re reasonably r equired to cure the
default the party in default has failed to give adequate assurance of due performance within ten (10)
days after receipt of written notice of default, specifying the nature of such default and the steps
necessary to cure such default.
(b) Restoration Following Termination. Upon termination of this Agreement by either party,
City agrees to restore the Property to the condition that existed upon the date of the City's inspection as
described in Subsection 3(d) of this Agreement. The restoration of the Property shall be completed as
quickly as reasonably practicable, but in no event more than ninety (90) days following termination. Any
damage or injury to Association property, facilities, landscaping or hardscape that is proximately caused
by the City during the restoration process, or as a result of any delay in the restoration process (for
example, plant material dying as a result of any irrigation, drainage, or electrical equipment being
inoperative during the restoration) shall be repaired or replaced by City.
(c) Survival of Obligations. The commitments and obligations of the City that are specked in
Sections 4(b), 6(a), 8(c) and 15 shall survive the termination of this Agreement.
9. NOTICES
All notices, demands, requests or approvals to be given under t his Agreement shall b e g iven i n w riting a nd
conclusively shall be deemed served when delivered personally or on the third business day after the deposit
thereof in the United States mail, postage prepaid, first class mail, addressed as set forth below or as changed
by either Party with written notice to the other Party in the manner specified in this Section.
All notices, demands, requests or approvals from Association to City shall be addressed to City, attention
"General Services Director" at:
•
Property Maintenance Agreement
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City of Newport Beach
3300 Newport Boulevard
P. O. Box 1768
Newport Beach, CA 92658-8915
Attn: Director of General Services
Phone: (949) 644-3055
Fax: (949) 650-0747
E-Mail: dneiderhaus@city.newport-beach.ca.us
All notices, demands, requests or approvals from City to Association shall be addressed to Association,
attention "Property Manager" at:
Newport Coast Community Association
c/o Merit Property Management
25910 Acero Street, Second Floor
Mission Viejo, CA 92691
Attn: Melodie LaMont
Phone: (949) 465-5210
Fax: (949) 595-2304
E-Mail: mlamont@meritpm.com
10. WAIVER
The waiver by City or Association of any breach of this Agreement by the other shall not be deemed to be a
waiver of any term, covenant, or condition or any subsequent breach.
11. PARTIAL INVALIDITY
If any term or provision of this Agreement is declared invalid or unenforceable, the remainder of this Agreement
shall not be affected.
12. GOVERNING LAW
The laws of the State of California shall govern the enforcement and interpretation of this Agreement. Neither
City's execution of this Agreement nor any consent or approval given by City pursuant to this Agreement shall
affect City's powers and duties as a governmental entity.
13. ENTIRE AGREEMENT; MODIFICATION
This Agreement contains the entire understanding between the Parties relative to the subject matter. No verbal
agreement or implied covenant shall be held to vary the provisions of this Agreement. Each Party has relied on
its own examination of this Agreement, the counsel of its own advisors, and the warranties, representations, and
covenants in this Agreement. The failure or refusal of either Party to read this Agreement or other documents or
to obtain legal or other advice relevant to this Agreement constitutes a waiver of any objection, contention, or
claim that might have been based on such reading, inspection, or advice. No provision of this Agreement may
be amended or varied except by an agreement in writing signed by the Parties or their respective Successors.
14. HEADINGS
The headings and captions of the various sections of this Agreement are for convenience and ease of reference
only and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
• Property Maintenance Agreement
Page 6 of 15
15. ATTORNEY'S FEES AND COSTS
Should litigation become necessary in order to enforce one or more of the terms, conditions and/or provisions of
this Agreement or with respect to any issue arising out of this Agreement, the prevailing party shall be entitled to
recovery reasonable attorney's fees and costs.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first
written above.
APPROVED , +r TO FORM: CITY OF NEWPORT BEACH
A Municipal Corporation
By:
obert Burnham, City Attorney
ity Manager
OAST COMMUNITY ASSOCIATION
ent of the Association Board
•
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EXHIBIT A
Scope of Services
EVERGREEN SLOPES, PARKWAYS, AND MEDIANS
A. Ground cover
1. Edging and Trimming:
a. Edge as needed to maintain a neat, well-defined edge adjacent to walks, curbs, and paved
areas.
b. A four (4) inch to six (6) inch bare dirt clearance shall be maintained around the circumference
of all trees, signs, and adjacent buildings.
c. Trim ground cover over four (4) inches in height at 45° angle. Ground cover should be hand -
pruned and should be soft in appearance as opposed to hedged.
2. Fertilization:
A minimum of four (4) times per year (or as needed) per recommendations of soils report, using a
balanced fertilizer with Iron or an approved equal program to maintain an attractive, balanced
appearance of continual growth.
3. Aerification:
Aerate ground cover areas as required to alleviate compaction and improve water penetration.
4. Hard Pruning or Mowing:
As directed by Owner's Representative, the contractor may be required to mow or hard prune down
the height of the ground cover to approximately one third (1/3) its height in the early spring.
5. Watering:
a. All ground cover areas shall be uniformly irrigated to insure consistent growth and plant
coverage.
b. Contractor shall schedule water application to produce a deep rooted ground cover using repeat
cycles for deep watering and allowing soil to dry between waterings (depending on plant variety)
without overwatering.
6. Weed, Pest and Disease Control:
a. Contractor shall maintain a weed, pest, and disease free ground cover and apply all necessary
treatments as required.
B. Shrubs
1. Pruning:
a. Pruning of shrubs will fall into one of the following categories:
Natural Shape - The intent is to emphasize the natural form of the shrub. Initially "pinch prune"
to develop structure, allowing the individual characteristics of the species to develop.
Natural Hedge - The intent is to develop a loose, informal appearing hedge which requires only
minimal attention to keep in shape and size. Initially "pinch prune" to develop structure, allowing
to fill solid horizontally.
Formal Hedge - It is the intent of these shrubs to have straight, crisp edges. Initial "pinch
pruning" will encourage the shrubs to fill in.
b. All shrubs shall be pruned as required for safety, removal of broken or diseased branches,
general containment or appearance.
c. Pruning at the correct time of the year is essential to maximize flowering potential. After
flowering, remove any spent blossoms or flower stalks.
d. Change in pruning style within the contract shall be reviewed and agreed upon by Contractor,
Owner and Owner's Representative prior to commencement of pruning.
• Properly Maintenance Agreement
Page 8of15
2. Fertilization:
a. Fertilize all shrubs a minimum of four (4) times per year (or as needed) per recommendations of
soils report using a balanced fertilizer with Iron or an approved equal program to maintain an
attractive, balanced appearance of continual growth.
b. Contractor shall be responsible to apply all materials required to correct mineral deficiencies
affecting plant growth. Due to area soil conditions, supplemental feeding of iron may be
required to prevent chlorosis.
3. Weed, Pest, and Disease Control:
a. Contractor shall maintain a weed, pest, and disease free shrub -bed at all times and apply all
necessary treatments as required.
b. All shrub areas not underplanted with ground cover will be raked clean a minimum of once per
month or as required. Beds with mulch or bark shall be cleaned by using a blower or other
means to remove debris.
4. Watering:
a. All shrub areas shall be uniformly irrigated to insure consistent growth and plant coverage.
b. Contractor shall schedule water application to produce a deep rooted ground cover using repeat
cycles for deep watering and allowing soil to dry between waterings (depending on plant variety)
without overwatering.
C. Vines
1. Pruning:
a. Vines and espalier plants shall be checked and re -tied as required.
b. Do not use nails to secure vines on masonry walls.
c. Prune all vines using accepted horticultural practices.
d. Vines shall be pruned and maintained so not to obstruct fixtures, signs, windows, etc.
e. Pruning at the correct time of year is essential to maximize flowering potential. After flowering,
remove any spent blossoms or flower stalks.
2. Fertilization:
Fertilize all vines a minimum of four (4) times per year (or as needed) per recommendations of soils
report using a balanced fertilizer with Iron or an approved equal program to maintain an attractive,
balanced appearance of continual growth.
3. Watering:
a. All vines shall be uniformly irrigated to insure consistent growth and plant coverage.
b. Contractor shall schedule water application to produce a deep rooted ground cover using repeat
cycles for deep watering and allowing soil to dry between waterings (depending on plant variety)
without overwatering.
4. Weed, Pest, and Disease Control:
a. Contractor shall maintain a weed, pest, and disease free vine -bed at all times and apply all
necessary treatments as required.
b. All vine planter areas not underplanted with ground cover will be raked clean a minimum of once
per month or as required. Beds with mulch or bark shall be cleaned by using a blower or other
means to remove debris.
D. Trees
1. No tree work shall be done without prior written approval and direction from Owner's Representative.
All tree work shall be undertaken under the direction and supervision of a certified arborist.
2. All trees shall be maintained in a healthy, vigorous growing condition at all times. All trees shall be
allowed to grow in and to their natural genetic form and size.
Property Maintenance Agreement
Page 9 of 15
3 . Pruning: Under this specification pruning is limited to that which may be done from the ground or
fifteen (15) foot within the tree, including removal of dead, diseased, crowded, weakly attached, low -
vigor branches and water spots from a tree's crown or for safety. Trees should be pruned to allow for
the necessary clearances for pedestrians and vehicle circulation. All branches overhanging the curb
line on roadways shall have fourteen (14) foot clearance, and parking areas and walkways eight (8)
foot clearance.
a. Under no circumstances shall stripping of lower branches ("raising up") of young trees be
permitted. Lower branches can be cut off only after the tree is able to stand erect without
staking or other support.
b. Pruning shall be done by those experienced and skilled in pruning techniques. All cuts shall be
done using proper horticultural practices and in accordance with the I. S. A. Standards of
Pruning.
c. All other tree pruning over fifteen (15) feet, such as annual thinning will be done under a
separate contract. Such "Extra" tree work shall be done only by a professional I. S. A. Certified
Arborist. A sample tree shall be pruned and approved before work is started.
4. Tree stakes, ties, and guys shall be checked and corrected as needed. Ties will be adjusted to
prevent girdling. Girdling is unacceptable and the Contractor may be held responsible for tree
replacement at no additional cost to the Association. Remove stakes, ties and guys when no longer
needed. Material for new tree stakes and guys will be considered extra work.
5. All new trees shall be staked to allow movement (at least 6 inches) by wind. Stakes shall be
removed as soon as trees are deemed sturdy enough. Any tree requiring staking for more than 12
months after installation shall be brought to the attention of the Owner's Representative for review
and consideration.
6. Apply all chemical controls, such as insecticides, as required to control or prevent pests and
diseases.
7. Fertilize all trees 3 times per year in spring, summer and fall, (or as needed) per recommendations of
soils report, using a balanced fertilizer with Iron or an approved equal program to maintain an
attractive, balanced appearance of continual growth. Deep root feeding or foliar application may be
required. Palm trees shall be fertilized with "Palm Special" fertilizer, per manufacturers
recommended rates, in spring, summer and fall.
8. Surface roots in turf up to three (3) inches in diameter which become maintenance or appearance
problems will be removed as required to prevent damage to adjacent paved areas. No more than
50% of the surface roots may be removed at one time to prevent instability of the tree. Such
conditions that are inherited to the contract will be an exception.
E. Fertilization of California native plants
1. Califomia native plants, including trees, shrubs and ground cover, should be fertilized twice per year
in early fall and early spring. Apply Osmocote 18-6-12 in early October at half the recommended
label rate. Apply an alternate slow -release product with low phosphorus and less than 1% iron, in
early March at half the recommended label rate. Turf Supreme 16-6-8 may be used at half rate for
the spring feeding. Do not use Osmocote in the spring, as it releases too quickly.
• •
Property Maintenance Agreement
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CALIFORNIA NATIVE SLOPES
1. Visual review of need for trash removal weekly. Trash removal as needed and as directed by the
General Services Director or his designee.
2. Pruning, plant replacement, and irrigation as needed and as directed by the General Services Director
or his designee in order to retain the same aesthetics and level of vegetative cover as originally intended
with the development approvals.
3. Remove non-native species and replant as necessary.
Property Maintenance Agreement
Page 11 of 15
EXHIBIT B
Property Map
1
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f-- Newport RidgeNista Ridge Areas
PAA Eligible Properties
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* The Property Maps on these two pages are for illustrative purposes only. Only eligible properties
(as defined) that are owned or controlled by the Newport Coast Community Association are subject to
this Property Maintenance Agreement. Properties owned or controlled by other entities yet depicted
on these Maps are not included within this Property Maintenance Agreement.
Property Maintenance Agreement
Page 12 of 15
EXHIBIT B (cont'd)
Property Map *
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• •Property Maintenance Agreement
Page 13 of 15
EXHIBIT C
Pre -Annexation Agreement (Section 14)
14. PROPERTY MAINTENANCE.
(a) Intent/Public Purpose. The purpose and intent of this Section is to allow for City
maintenance of certain parkways, medians, natural slopes, and fuel modification zones in
the Newport Coast in accordance with quality standards in effect as of the Effective Date.
The Parties agree that proper maintenance of parkways, medians, natural slopes, and fuel
modification zones and the right to protect or enhance habitat serves a valuable public
purpose. The Parties intend that the City's obligation to maintain parkways, medians,
natural slopes and fuel modification zones is contingent upon a request by the property
owner and execution of an agreement that, among other things, fully protects the City from
any liability related to its maintenance unless the damage is proximately caused by the
City's active negligence. The Parties acknowledge that City's maintenance obligations do
not extend to any landscaping, irrigation, or lighting in or around the entrance pavilions or to
any landscaped area within any community — such as private parks, private parkways, or
private medians on streets behind gates.
(b) Section Definitions. For purposes of this Section, the terms:
(i) "Association" shall mean a residential homeowners' association or residential
community association within the boundaries of the Property.
(ii) "Fuel modification zone" shall mean a slope owned by an Association that is adjacent
to, and generally below, residential parcels and that has been planted with fire-
resistant vegetation to prevent or inhibit fire damage to structures.
(iii) "Natural slope" shall mean a slope owned by an Association that has not been
improved or contains primarily native vegetation, and is generally adjacent to and
below a fuel modification zone.
(iv) "Maintain" or "Maintenance" shall mean, in the context of natural slopes, parkways,
medians, and fuel modification zones, the irrigation, maintenance of irrigation
equipment, fertilization, general care and replacement of plant material, and the
maintenance of electrical and lighting equipment as applicable.
(v) "Median" shall mean the area in the center of a public street.
(vi) "Parkway" shall mean the area between a public sidewalk and the street curb.
(vii) "Property owner" shall mean an Association within the Property. It shall not mean a
government, educational, or commercial venture such as a school, hotel, timeshare
operator, golf course, land development company, or retail center.
(c) General Obligations. City shall, during the term of this Agreement, have the obligation to
maintain and pay for the costs of such maintenance:
(i) Medians and parkways along public streets.
(ii) Natural slopes or fuel modification zones if and when the property owner fully satisfies
the conditions specified in Subsection (d). City shall obtain any permit necessary to
conduct any maintenance on any natural slope that is within the Natural Communities
Conservation Plan. In no event shall the City be liable for any slope failure or slope
subsidence in any fuel modification zone unless the failure or subsidence is
proximately caused by the active negligence or willful conduct of the City.
City or its contractor shall maintain all medians and parkways, and to the extent the
property owner satisfies the conditions specified in Subsection (d), the natural slopes, fuel
modification zones, and open space dedications and facilities, in a manner that equals or
exceeds t he m aintenance standards for e ach a rea o r facility which is i n p lace as of t he
Effective Date. City shall not be liable for any loss, claim or damage proximately caused by
irrigation of a fuel modification zone that is consistent with the time and extent of irrigation
• •Property Maintenance Agreement
Page 14 of 15
occurring as of the Effective Date.
(d) Conditions to Citv Obligation Regarding Natural Slopes and Fuel Modification Zones. City's
obligation to maintain any fuel modification zone or natural slope is contingent on
satisfaction of all of the following conditions:
(e)
(i) Written Request. An Association in existence as of the Effective Date has, within
nine (9) months after the Effective Date, served City with a written request to
maintain all or a portion of the fuel modification zone and/or natural slope; or, for
those Associations not in existence as of the Effective Date, the Association shall,
within nine (9) months of formation, have served the City with a written request to
maintain all or a portion of the fuel modification zone and/or natural slope within
that Association's boundaries.
(ii) Maintenance Agreement. The property owner has executed a written agreement
(`Maintenance Agreement"), approved as to form and content by the City Attorney,
that specifically authorizes City to enter the property to perform the maintenance
defined in Subsection (b) of this Section, specifies the level of maintenance, and
authorizes City use of any facilities necessary to provide maintenance. The
Maintenance Agreement shall require the City to pay all costs incurred in
maintenance of the natural slope, median, parkway, or fuel modification zone,
including but not limited to water and other necessary utility services. The
Maintenance Agreement shall confirm that the City is not liable for any loss, claim
or damage, including slope subsidence or failure, unless proximately caused by
the negligence or willful act of the City or its officers, employees, or agents. The
Maintenance Agreement shall also require the property owner to fully cooperate
with City and its officers, agents, members, employees and contractors with
respect to maintenance of the property.
(iii) Material Default. The property owner is not in material default pursuant to the
terms and conditions of the Maintenance Agreement described in Subdivision (ii).
Mao. City and the Committee shall, within nine (9) months after the Effective Date prepare
the maps of the fuel modification zones and natural slopes. The maps are for information
and the failure of a map to depict property that otherwise qualifies as a fuel modification
zone or natural slope shall not affect the City's maintenance obligations.
• •Property Maintenance Agreement
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EXHIBIT D
Compensation Schedule
(Period of March 1, 2002 through Effective Date)
Schedule to be added.
•
PROPERTY MAINTENANCE AGREEMENT
This Agreement (Agreement), dated this 1 day of ably) hr, 2003 (Effective Date) between the
City of Newport Beach ("City") and the Newport Ridge Community Association ("Association") is made with
reference to the following:
RECITALS
A. City is a charter city with the powers and authority provided in the Newport Beach City Charter and the
Constitution and laws of the State of California. For purposes of this Agreement, the term City includes
the employees, officers, representatives, agents or contractors of the City.
B. Association is a Common Interest Development formed pursuant to California Civil Code Section 1350,
et seq.
C. City has, pursuant to a Pre -Annexation Agreement (PAA) with the Newport Coast Committee of 2000,
agreed to maintain certain properties (Eligible Properties) in the areas commonly known as Newport
Coast and/or Newport Ridge (Annexed Area).
D. The maintenance of parkways and medians provides a public benefit by minimizing the potential for
pedestrian and/or traffic accidents, ensuring compliance with water quality laws, promoting an attractive
environment and preserving public views.
E. City's obligation to maintain the Eligible Properties is subject to certain conditions including a request
from the Association (as the property owner) and execution of, and compliance with, this Property
Maintenance Agreement.
F. Association has submitted a request that City maintain Eligible Property owned by Association and, by
execution of this Agreement, has committed to comply with all conditions specified in the PAA (relevant
section included within Exhibit C).
G. At its Regular Meeting on December 9, 2003, the Newport Beach City Council authorized the City
Manager to execute this document on behalf the City of Newport Beach.
NOW, THEREFORE, the Parties agree as follows:
1. TERM
(a) Effective Date. The initial term of this Agreement (Initial Term) shall be four (4) years
commencing o n t he Effective D ate unless t his A greement i s t erminated a s p rovided i n Section 8 or
extended pursuant to Subsection 1(b).
(b) Extension. The Parties agree that the term of this Agreement shall automatically extend for
periods of four years (Extended Term[s]) commencing on the expiration of the Initial Term or the
expiration of any Extended Term provided that Association has not served City with a notice of
termination within thirty (30) days prior to the expiration of the Initial Term or any Extended Term.
2. MAINTENANCE TO BE PERFORMED
City s hall, a t i ts s ole cost and e xpense, t hrough e ither i ts o wn employees or a contractor, p erform s ervices
listed, and to the standard(s) described, in Exhibit A (Maintenance) with respect to the Eligible Property
described in Exhibit B (Property Map). Association warrants and represents, and City is reasonably relying on
Association's representation, that the Maintenance is substantially similar to the services performed by
Association or its contractors immediately prior to the Effective Date. City shall, in its sole and exclusive
discretion, have control over the means, methods, equipment, techniques, sequences or procedures used to
•
•Property Maintenance Agreement
Page 2 of 14
provide the Maintenance. City may remove or alter landscaping or other objects from the Property following
consultation with Association and after a determination by the General Services Director that the (a) the
landscaping is suffering from incurable or infectious disease; (b) the landscaping or object is damaged beyond
recovery or repair; or (c) that the landscaping or object is inconsistent with the safe movement of pedestrians or
vehicles including, without limitation, obstructions to adequate sight distance along or across any roadway or
sidewalk. City shall use its best efforts to install replacement landscaping that is identical to the landscaping
that was removed, but if this is highly impracticable City shall install landscaping that is (a) most similar to the
landscaping removed; and (b) on the then current and approved palette of plant materials for the Association.
Notwithstanding the foregoing, City shall not be obligated to install replacement landscaping of the same
species if it has been determined that the entire species is affected by the same disease or condition that
caused the damage, destruction or removal of the landscaping. The intent of the Parties is that the City is
obligated, to the maximum extent possible, to maintain the landscape density, design and appearance of the
Property when all landscaping was in good condition. City shall consider, but not be bound by, comments
submitted by the Association relative to the means, methods, or techniques used to provide the Maintenance.
3. CONDITIONS OF DUTY TO MAINTAIN
City's duty to provide Maintenance is subject to Association's full compliance with this Agreement and the
following express conditions:
(a) Access. Association s hall grant C ity the r ights necessary to provide t he M aintenance
including surface and subsurface access, ingress and egress and the right, at the City's sole discretion
and at the City's sole cost and expense, to modify, or replace any faculty or equipment adjacent to, on,
over or under the Property (Access). Except as provided in Subsection (b), the Association's grant of
Access shall not be subject to any restriction including, without limitation, limits on the date or time of
access, any obligation to provide insurance/indemnity or any limit on the size or nature of vehicles or
equipment.
(b) Access Conditions. The Association's grant of Access shall be subject to the conditions
that: (i) the City repair or replace, to the condition prior to damage, any landscaping or facility that was
damaged by City in the course of providing the Maintenance or otherwise; and (ii) except in the event of
an emergency, the City will comply with the Association's rules pertaining to the days and hours during
which landscape maintenance may be performed.
(c) Meter Separation/Payment for Utilities. City, in its sole discretion, shall either (i) pay
for and provide for the separation of any water or electrical meter or similar device if the meter or meters
provide service to the Property and other properties adjacent to or nearby the Property that are
controlled and maintained by the Association or its contractors; OR (ii) City shall reimburse Association
in an amount that is based on a formula, calculated by the City and the Association using their
respective best efforts and acting in good faith, that represents the percentage of the overall cost of
water and electrical service to all Association property that is attributable to the Property. The formula
developed by the Parties shall be attached to this Agreement as an exhibit.
(d) Adiacent Property. Association shall use its best efforts to cooperate and comply with
requests of the City relative to the maintenance, modification or condition of Association property or facility
that is adjacent to the Property and which is necessary in order for the City to perform its Maintenance
obligations. Association agrees to indemnify and hold City harmless with respect to any damage or injury to
the Property that is proximately caused by Association's failure to comply with its obligations pursuant to
this Subsection. Association's duty to cooperate includes, without limitation, the obligation to maintain its
property in good condition and in a manner that does not create or increase any risk of injury or damage to
persons or real or personal property.
(e) Inspection of Property. Association shall permit, and City shall conduct within 30 days
after the Effective Date, an inspection of the Property and any adjacent property that contains facilities
that serve the Property, to confirm that the Property contains live and viable landscaped material and
that the Property and any relevant adjacent property contain a fully functioning irrigation system (fully
functioning means all irrigation controllers, pipes, sprinkler heads or similar devices, water meters,
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II/Property Maintenance Agreement
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wiring, or any other aspect of the irrigation system are in good working condition and functioning as
intended), and other facilities, such as electrical service, facilities necessary to perform the Services. The
inspection shall be conducted to confirm that the Property meets the criteria for City Maintenance
pursuant to the PAA and to establish a baseline with respect to the condition of the Property. The City
may take videos or photographs of landscaping and irrigation equipment during this inspection and may
retain these visual records.
4. ADDITIONAL CITY OBLIGATIONS
In addition to the duty to perform Maintenance:
(a) Irrigation System Management. City or its contractor shall promptly repair, maintain,
and/or replace any electrical, drainage, or irrigation equipment and any tree, bush, shrub, ground cover
or other plant material on the Property that requires repair or replacement during the Term at its sole
cost and expense.
(b) Damage to Association Property. City its contractor shall as soon as reasonably
practicable repair or replace any Association Property that is damaged or destroyed by City or its
contractor while providing the Services.
(c) Reimbursement. City agrees to pay the Association funds addressing past maintenance
to the Eligible Properties (maintenance that occurred between March 1, 2002 and the Effective Date) in
a schedule that shall be added at a later date an incorporated herein within Exhibit D (Compensation
Schedule).
5. WATER QUALITY & WATER CONSERVATION
(a) NPDES Obligations. City shall reasonably comply with any and all obligations and
requirements pertaining to the Property that are imposed pursuant to the Municipal Separate Storm
Sewer System (MS4) Permit issued to the City and to the County of Orange by the California Regional
Water Quality Control Board, Santa Ana Region ("Regional Board"), under the National Pollutant
Discharge Elimination System (NPDES) permit system.
(b) Water Quality -Limited Watersheds. Association shall reasonably cooperate with City with
respect to compliance with any regulatory directive by the Regional Board or the State Water Resources
Control Board ("State Board") pertaining to the Property. City's obligation to perform Maintenance shall
be deemed modified to the extent necessary to conform to any directive or order from the State Board,
Regional Board, or other agency with jurisdiction over the Property.
(c) Water Conservation. Association and its agents and contractors shall reasonably cooperate
with City with respect to any water conservation measure adopted by the City Council or other
governmental agency with jurisdiction over the Property.
6. INDEMNIFICATION AND INSURANCE
(a) Indemnification. City shall, assuming Association is not in default with respect to its
obligations pursuant to this Agreement, defend, indemnify and hold harmless the Association, its
officers, employees, agents and members with respect to any damage, claim, liability, loss, injury, cost,
attorney fees or expense that arises out of, or is in any way related to, any act or omission of City in the
performance or non-performance of Maintenance pursuant to this Agreement. Association and its
officers, employees, agents and members shall reasonably cooperate with City in the defense or any
claim or lawsuit the City is obligated to defend pursuant to this Agreement. City's obligations pursuant
to this Agreement shall not apply to damages, claims, injuries, liability, losses, costs, attomey fees or
expenses that are proximately caused by the sole negligence or willful act of the Association or its
officers, employees, agents, representatives, or members. City shall have full discretion to select
counsel, e xperts or o ther professionals t o r epresent o r a dvise it a nd t he Association as wells as i ts
Property Maintenance Agreement
Page 4 of 14
officers, agents, employees and members with respect to any litigation or any action related to the
litigation.
(b) Insurance. In addition to its indemnification obligations in Subsection (a), the City of
Newport Beach shall maintain throughout the term of this Agreement commercial general liability
insurance coverage including owned, non -owned and hired vehicle insurance in an amount, and with
the self insurance retentions, as the City Council determines to be in the City's best interests given then
current market conditions. City shall provide Association with appropriate Certificates evidencing
compliance with this Section and shall use its best efforts to add the Association as an additional
insured on any s uch p olicy p rovided t he City w ould i ncur no a dditional cost to do so o r Association
reimburses the cost.
7. ADMINISTRATION
This Agreement will be administered by the Director of the City's General Services Department (Director). The
Director shall be considered the Project Administrator and shall have the authority to act for City pursuant to this
Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters
pertaining to the Maintenance. The Project Administrator's address, phone number, facsimile number and e-
mail address are set forth in Section 9 of this Agreement. City agrees that each time the Project Administrator
changes, it will promptly notify Association of such change, and provide Association with the address, phone
number, facsimile n umber a nd a -mail a ddress o f t he n ew P roject Administrator a t t he t ime o f n otification o f
change.
8. TERMINATION
(a) Notice. In the event either party fails or refuses to perform any of the provisions in this
Agreement, that party shall be deemed to be in default in the performance of this Agreement. The party
not in default may terminate this Agreement if, within ten (10) days after notice of default, the party in
default h as not cured the d efault, or i f more than ten (10) days a re reasonably r equired to cure the
default the party in default has failed to give adequate assurance of due performance within ten (10)
days after receipt of written notice of default, specifying the nature of such default and the steps
necessary to cure such default.
(b) Restoration Following Termination. Upon termination of this Agreement by either party,
City agrees to restore the Property to the condition that existed upon the date of the City's inspection as
described in Subsection 3(d) of this Agreement. The restoration of the Property shall be completed as
quickly as reasonably practicable, but in no event more than ninety (90) days following termination. Any
damage or injury to Association property, facilities, landscaping or hardscape that is proximately caused
by the City during the restoration process, or as a result of any delay in the restoration process (for
example, plant material dying as a result of any irrigation, drainage, or electrical equipment being
inoperative during the restoration) shall be repaired or replaced by City.
(c) Survival of Obligations. The commitments and obligations of the City that are specified in
Sections 4(b), 6(a), 8(c) and 15 shall survive the termination of this Agreement.
9. NOTICES
All notices, demands, requests or approvals to be given under t his Agreement shall b e g iven i n writing and
conclusively shall be deemed served when delivered personally or on the third business day after the deposit
thereof in the United States mail, postage prepaid, first class mail, addressed as set forth below or as changed
by either Party with written notice to the other Party in the manner specified in this Section.
All notices, demands, requests or approvals from Association to City shall be addressed to City, attention
"General Services Director" at:
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•Property Maintenance Agreement
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City of Newport Beach
3300 Newport Boulevard
P. O. Box 1768
Newport Beach, CA 92658-8915
Attn: General Services Director
Phone: (949) 644-3055
Fax: (949) 650-0747
E-Mail: dneiderhaus@city.newport-beach.ca.us
All notices, demands, requests or approvals from City to Association shall be addressed to Association,
attention "Property Manager" at:
Newport Ridge Community Association
c/o Merit Property Management
25910 Acero Street, Second Floor
Mission Viejo, CA 92691
Attn: Cynthia Cattem
Phone: (949) 465-5121
Fax: (949) 595-2311
E-Mail: ccattern@meritpm.com
10. WAIVER
The waiver by City or Association of any breach of this Agreement by the other shall not be deemed to be a
waiver of any term, covenant, or condition or any subsequent breach.
11. PARTIAL INVALIDITY
If any term or provision of this Agreement is declared invalid or unenforceable, the remainder of this Agreement
shall not be affected.
12. GOVERNING LAW
The laws of the State of California shall govern the enforcement and interpretation of this Agreement. Neither
City's execution of this Agreement nor any consent or approval given by City pursuant to this Agreement shall
affect City's powers and duties as a governmental entity.
13. ENTIRE AGREEMENT; MODIFICATION
This Agreement contains the entire understanding between the Parties relative to the subject matter. No verbal
agreement or implied covenant shall be held to vary the provisions of this Agreement. Each Party has relied on
its own examination of this Agreement, the counsel of its own advisors, and the warranties, representations, and
covenants in this Agreement. The failure or refusal of either Party to read this Agreement or other documents or
to obtain legal or other advice relevant to this Agreement constitutes a waiver of any objection, contention, or
claim that might have been based on such reading, inspection, or advice. No provision of this Agreement may
be amended or varied except by an agreement in writing signed by the Parties or their respective Successors.
14. HEADINGS
The headings and captions of the various sections of this Agreement are for convenience and ease of reference
only and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
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15. ATTORNEY'S FEES AND COSTS
Should litigation become necessary in order to enforce one or more of the terms, conditions and/or provisions of
this Agreement or with respect to any issue arising out of this Agreement, the prevailing party shall be entitled to
recovery reasonable attorney's fees and costs.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first
written above.
APPROV a AS TO FORM: CITY OF NEWPORT BEACH
A Municipal Corporation
By:
rt =urnham, City Attorney Homer Bludau, Ci
anager
NEWPORT RIDGE COMMUNITY ASSOCIATION
r sident oft Association Board
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EXHIBIT A
Scope of Services
EVERGREEN SLOPES, PARKWAYS, AND MEDIANS
A. Ground cover
1. Edging and Trimming:
a. Edge as needed to maintain a neat, well-defined edge adjacent to walks, curbs, and paved
areas.
b. A four (4) inch to six (6) inch bare dirt clearance shall be maintained around the circumference
of all trees, signs, and adjacent buildings.
c. Trim ground cover over four (4) inches in height at 45° angle. Ground cover should be hand -
pruned and should be soft in appearance as opposed to hedged.
2. Fertilization:
A minimum of four (4) times per year (or as needed) per recommendations of soils report, using a
balanced fertilizer with Iron or an approved equal program to maintain an attractive, balanced
appearance of continual growth.
3. Aerification:
Aerate ground cover areas as required to alleviate compaction and improve water penetration.
4. Hard Pruning or Mowing:
As directed by Owner's Representative, the contractor may be required to mow or hard prune down
the height of the ground cover to approximately one third (1/3) its height in the early spring.
5. Watering:
a. All ground cover areas shall be uniformly irrigated to insure consistent growth and plant
coverage.
b. Contractor shall schedule water application to produce a deep rooted ground cover using repeat
cycles for deep watering and allowing soil to dry between waterings (depending on plant variety)
without overwatering.
6. Weed, Pest and Disease Control:
a. Contractor shall maintain a weed, pest, and disease free ground cover and apply all necessary
treatments as required.
B. Shrubs
1. Pruning:
a. Pruning of shrubs will fall into one of the following categories:
Natural Shape - The intent is to emphasize the natural form of the shrub. Initially "pinch prune"
to develop structure, allowing the individual characteristics of the species to develop.
Natural Hedge - The intent is to develop a loose, informal appearing hedge which requires only
minimal attention to keep in shape and size. Initially "pinch prune" to develop structure, allowing
to fill solid horizontally.
Formal Hedge - It is the intent of these shrubs to have straight, crisp edges. Initial "pinch
pruning" will encourage the shrubs to fill in.
b. All shrubs shall be pruned as required for safety, removal of broken or diseased branches,
general containment or appearance.
c. Pruning at the correct time of the year is essential to maximize flowering potential. After
flowering, remove any spent blossoms or flower stalks.
d. Change in pruning style within the contract shall be reviewed and agreed upon by Contractor,
Owner and Owner's Representative prior to commencement of pruning.
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2. Fertilization:
a. Fertilize all shrubs a minimum of four (4) times per year (or as needed) per recommendations of
soils report using a balanced fertilizer with Iron or an approved equal program to maintain an
attractive, balanced appearance of continual growth.
b. Contractor shall be responsible to apply all materials required to correct mineral deficiencies
affecting plant growth. Due to area soil conditions, supplemental feeding of iron may be
required to prevent chlorosis.
3. Weed, Pest, and Disease Control:
a. Contractor shall maintain a weed, pest, and disease free shrub -bed at all times and apply all
necessary treatments as required.
b. All shrub areas not underplanted with ground cover will be raked clean a minimum of once per
month or as required. Beds with mulch or bark shall be cleaned by using a blower or other
means to remove debris.
4. Watering:
a. All shrub areas shall be uniformly irrigated to insure consistent growth and plant coverage.
b. Contractor shall schedule water application to produce a deep rooted ground cover using repeat
cycles for deep watering and allowing soil to dry between waterings (depending on plant variety)
without overwatering.
C. Vines
1. Pruning:
a. Vines and espalier plants shall be checked and re -tied as required.
b. Do not use nails to secure vines on masonry walls.
c. Prune all vines using accepted horticultural practices.
d. Vines shall be pruned and maintained so not to obstruct fixtures, signs, windows, etc.
e. Pruning at the correct time of year is essential to maximize flowering potential. After flowering,
remove any spent blossoms or flower stalks.
2. Fertilization:
Fertilize all vines a minimum of four (4) times per year (or as needed) per recommendations of soils
report using a balanced fertilizer with Iron or an approved equal program to maintain an attractive,
balanced appearance of continual growth.
3. Watering:
a. All vines shall be uniformly irrigated to insure consistent growth and plant coverage.
b. Contractor shall schedule water application to produce a deep rooted ground cover using repeat
cycles for deep watering and allowing soil to dry between waterings (depending on plant variety)
without overwatering.
4. Weed, Pest, and Disease Control:
a. Contractor shall maintain a weed, pest, and disease free vine -bed at all times and apply all
necessary treatments as required.
b. All vine planter areas not underplanted with ground cover will be raked clean a minimum of once
per month or as required. Beds with mulch or bark shall be cleaned by using a blower or other
means to remove debris.
D. Trees
1. No tree work shall be done without prior written approval and direction from Owner's Representative.
All tree work shall be undertaken under the direction and supervision of a certified arborist.
2. All trees shall be maintained in a healthy, vigorous growing condition at all times. All trees shall be
allowed to grow in and to their natural genetic form and size.
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•Property Maintenance Agreement
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3 . Pruning: Under this specification pruning is limited to that which may be done from the ground or
fifteen (15) foot within the tree, including removal of dead, diseased, crowded, weakly attached, low -
vigor branches and water spots from a tree's crown or for safety. Trees should be pruned to allow for
the necessary clearances for pedestrians and vehicle circulation. All branches overhanging the curb
line on roadways shall have fourteen (14) foot clearance, and parking areas and walkways eight (8)
foot clearance.
a. Under no circumstances shall stripping of lower branches ("raising up") of young trees be
permitted. Lower branches can be cut off only after the tree is able to stand erect without
staking or other support.
b. Pruning shall be done by those experienced and skilled in pruning techniques. All cuts shall be
done using proper horticultural practices and in accordance with the I. S. A. Standards of
Pruning.
c. All other tree pruning over fifteen (15) feet, such as annual thinning will be done under a
separate contract. Such "Extra" tree work shall be done only by a professional 1. S. A. Certified
Arborist. A sample tree shall be pruned and approved before work is started.
4. Tree stakes, ties, and guys shall be checked and corrected as needed. Ties will be adjusted to
prevent girdling. Girdling is unacceptable and the Contractor may be held responsible for tree
replacement at no additional cost to the Association. Remove stakes, ties and guys when no longer
needed. Material for new tree stakes and guys will be considered extra work.
5. All new trees shall be staked to allow movement (at least 6 inches) by wind. Stakes shall be
removed as soon as trees are deemed sturdy enough. Any tree requiring staking for more than 12
months after installation shall be brought to the attention of the Owner's Representative for review
and consideration.
6. Apply all chemical controls, such as insecticides, as required to control or prevent pests and
diseases.
7. Fertilize all trees 3 times per year in spring, summer and fall, (or as needed) per recommendations of
soils report, using a balanced fertilizer with Iron or an approved equal program to maintain an
attractive, balanced appearance of continual growth. Deep root feeding or foliar application may be
required. Palm trees shall be fertilized with "Palm Special" fertilizer, per manufacturers
recommended rates, in spring, summer and fall.
8. Surface roots in turf up to three (3) inches in diameter which become maintenance or appearance
problems will be removed as required to prevent damage to adjacent paved areas. No more than
509'' of the surface roots may be removed at one time to prevent instability of the tree. Such
conditions that are inherited to the contract will be an exception.
E. Fertilization of California native plants
1. California native plants, including trees, shrubs and ground cover, should be fertilized twice per year
in early fall and early spring. Apply Osmocote 18-6-12 in early October at half the recommended
label rate. Apply an alternate slow -release product with low phosphorus and less than 1% iron, in
early March at half the recommended label rate. Turf Supreme 16-6-8 may be used at half rate for
the spring feeding. Do not use Osmocote in the spring, as it releases too quickly.
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•Property Maintenance Agreement
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CALIFORNIA NATIVE SLOPES
1. Visual review of need for trash removal weekly. Trash removal as needed and as directed by the
General Services Director or his designee.
2. Pruning, plant replacement, and irrigation as needed and as directed by the General Services Director
or his designee in order to retain the same aesthetics and level of vegetative cover as originally intended
with the development approvals.
3. Remove non-native species and replant as necessary.
• •
Property Maintenance Agreement
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i
EXHIBIT B
Property Map *
Newport RidgeNista Ridge Areas
.w. PAA Eligible Properties
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* The Property Map on this page is for illustrative purposes only. Only eligible properties (as defined)
that are owned or controlled by the Newport Ridge Community Association are subject to this
Property Maintenance Agreement. Properties owned or controlled by other entities yet depicted on
this Map are not included within this Property Maintenance Agreement.
Unless later amended by both parties, it is the intent of both parties that the City or its contractor
maintain the medians and parkways along San Joaquin Hills Road that are owned by the Newport
Ridge Community Association.
Generally, this Agreement can be interpreted by both parties to allow the Newport Ridge Community
Association to maintain parkways, medians, and slopes along Newport Ridge Drive certain medians
and slopes along San Joaquin Hills Road provided that Newport Ridge Drive remains a public street.
It is the intent of both parties that the City shall compensate the Newport Ridge Community
Association at an amount equal to the City's costs if the City or its contractor had provided the service
to these eligible properties. Should Newport Ridge Drive ever become private, the Association is no
longer eligible for this compensation nor is the City obligated to pay it.
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Property Maintenance Agreement
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EXHIBIT C
Pre -Annexation Agreement (Section 14)
14. PROPERTY MAINTENANCE.
(a) Intent/Public Purpose. The purpose and intent of this Section is to allow for City
maintenance of certain parkways, medians, natural slopes, and fuel modification zones in
the Newport Coast in accordance with quality standards in effect as of the Effective Date.
The Parties agree that proper maintenance of parkways, medians, natural slopes, and fuel
modification zones and the right to protect or enhance habitat serves a valuable public
purpose. The Parties intend that the City's obligation to maintain parkways, medians,
natural slopes and fuel modification zones is contingent upon a request by the property
owner and execution of an agreement that, among other things, fully protects the City from
any liability related to its maintenance unless the damage is proximately caused by the
City's active negligence. The Parties acknowledge that City's maintenance obligations do
not extend to any landscaping, irrigation, or lighting in or around the entrance pavilions or to
any landscaped area within any community — such as private parks, private parkways, or
private medians on streets behind gates.
(b) Section Definitions. For purposes of this Section, the terms:
(i) "Association" shall mean a residential homeowners' association or residential
community association within the boundaries of the Property.
(ii) "Fuel modification zone" shall mean a slope owned by an Association that is adjacent
to, and generally below, residential parcels and that has been planted with fire-
resistant vegetation to prevent or inhibit fire damage to structures.
(Hi) "Natural slope" shall mean a slope owned by an Association that has not been
improved or contains primarily native vegetation, and is generally adjacent to and
below a fuel modification zone.
(iv) "Maintain" or "Maintenance" shall mean, in the context of natural slopes, parkways,
medians, and fuel modification zones, the irrigation, maintenance of irrigation
equipment, fertilization, general care and replacement of plant material, and the
maintenance of electrical and lighting equipment as applicable.
(v) "Median" shall mean the area in the center of a public street.
(vi) "Parkway" shall mean the area between a public sidewalk and the street curb.
(vii) "Property owner" shall mean an Association within the Property. It shall not mean a
government, educational, or commercial venture such as a school, hotel, timeshare
operator, golf course, land development company, or retail center.
(c) General Obligations. City shall, during the term of this Agreement, have the obligation to
maintain and pay for the costs of such maintenance:
(i) Medians and parkways along public streets.
(ii) Natural slopes or fuel modification zones if and when the property owner fully satisfies
the conditions specified in Subsection (d). City shall obtain any permit necessary to
conduct any maintenance on any natural slope that is within the Natural Communities
Conservation Plan. In no event shall the City be liable for any slope failure or slope
subsidence in any fuel modification zone unless the failure or subsidence is
proximately caused by the active negligence or willful conduct of the City.
City or its contractor shall maintain all medians and parkways, and to the extent the
property owner satisfies the conditions specified in Subsection (d), the natural slopes, fuel
modification zones, and open space dedications and facilities, in a manner that equals or
exceeds t he m aintenance standards for e ach a rea o r facility which is i n p lace as of t he
Effective Date, City shall not be liable for any loss, claim or damage proximately caused by
irrigation of a fuel modification zone that is consistent with the time and extent of irrigation
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*Property Maintenance Agreement
Page 13 of 14
occurring as of the Effective Date.
(d) Conditions to City Obligation Regarding Natural Slopes and Fuel Modification Zones. City's
obligation to maintain any fuel modification zone or natural slope is contingent on
satisfaction of all of the following conditions:
(i) Written Request. An Association in existence as of the Effective Date has, within
nine (9) months after the Effective Date, served City with a written request to
maintain all or a portion of the fuel modification zone and/or natural slope; or, for
those Associations not in existence as of the Effective Date, the Association shall,
within nine (9) months of formation, have served the City with a written request to
maintain all or a portion of the fuel modification zone and/or natural slope within
that Association's boundaries.
(ii) Maintenance Agreement. The property owner has executed a written agreement
("Maintenance Agreement"), approved as to form and content by the City Attorney,
that specifically authorizes City to enter the property to perform the maintenance
defined in Subsection (b) of this Section, specifies the level of maintenance, and
authorizes City use of any facilities necessary to provide maintenance. The
Maintenance Agreement shall require the City to pay all costs incurred in
maintenance of the natural slope, median, parkway, or fuel modification zone,
including but not limited to water and other necessary utility services. The
Maintenance Agreement shall confirm that the City is not liable for any loss, claim
or damage, including slope subsidence or failure, unless proximately caused by
the negligence or willful act of the City or its officers, employees, or agents. The
Maintenance Agreement shall also require the property owner to fully cooperate
with City and its officers, agents, members, employees and contractors with
respect to maintenance of the property.
(iii) Material Default. The property owner is not in material default pursuant to the
terms and conditions of the Maintenance Agreement described in Subdivision (ii).
(e) Map. City and the Committee shall, within nine (9) months after the Effective Date prepare
the maps of the fuel modification zones and natural slopes. The maps are for information
and the failure of a map to depict property that otherwise qualifies as a fuel modification
zone or natural slope shall not affect the City's maintenance obligations.
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•Property Maintenance Agreement
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EXHIBIT D
Compensation Schedule
(Period of March 1, 2002 through Effective Date)
Schedule to be added.
NEWMEYER
DILLION 40
July 12, 2023
VIA FIRST CERTIFIED MAIL & E-MAIL
City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658-8915
Attn: Director of General Services
Phone: (949) 644-3055
Fax: (949) 650-0747
dneiderhaus(o)city.newport-beach.ca.us
Newmeyer & Dillion LLP
895 Dove Street
Second Floor
Newport Beach, CA 92660
(949)854-7000
Charles S. Krolikowski
Charles. Krolikowski@ndlf.com
City of Newport Beach
Office of the City Clerk
P.O. Box 1768
Newport Beach, CA 92658
cityclerkC@newoortbeachca.gov
Re: Newport Coast Community Association Demand to City of Newport Beach to
Comply with Property Maintenance Agreement, Dated December 9, 2003
To the Director of General Services & the City Clerk:
Our office is counsel for the Newport Coast Community Association ("Association").
Reference is made to the Property Maintenance Agreement, dated December 9, 2003,
between the City of Newport Beach ("City") and the Association ("Agreement"). With
this letter, the Association demands that the City comply with its obligations under the
Agreement (attached hereto), as more specifically detailed herein.
Under the Agreement, the City has several enumerated maintenance obligations
concerning ground cover, shrubs, vines, and trees at the property described in the
Agreement ("Property"). These obligations include, without limitation, that the City (or
its contractors) must "promptly repair, maintain and/or replace any electrical, drainage,
or irrigation equipment and any tree, bush, shrub, ground cover or other plant material
on the Property that requires repair or replacement during the Term at its sole cost and
expense."
Our office has retained a consultant(s) that has inspected and identified numerous
examples of items that the City has failed to address despite being required to do so
under the Agreem_ent.These items include, without limitation;_(1) trees, bushes, or
shrubs that require immediate repair or replacement; (2) trees that are dead, diseased,
crowded, or have weak branches; (3) trees that do not have sufficient clearances; (4)
trees that are not properly stakes, tied, and/or guyed; (5) trees that need chemical
controls to prevent damage from pests and diseases and/or have already suffered
damage from pests or diseases due to the City's neglect; and (6) tree root systems that
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City of Newport Beach
July 12, 2023
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may cause damage to paved areas and/or have already caused damage to paved
areas due to the City's neglect.
These samplings contain a detailed description of each tree (including palm trees) or
plant for which action is required. That description includes, without limitation, an ID
number for each referenced tree, botanical and common names, latitude/longitude,
notes regarding the issue and the health of the plant or tree, pictures of the identified
items, and the actions the City must take to comply with the Agreement.
The Association requests that the City respond to this letter by July 21, 2023. In its
response, the Association requests that the City acknowledge its obligations under the
Agreement and agree to work with our office on a plan for the City to comply with those
obligations. As part of that process, our office is willing to share the above consultant's
information if the City agrees that it will be subject to the privileges applicable to
mediation and settlement -related discussions and will be treated as confidential and
inadmissible for any purpose in any future litigation.
We look forward to working with the City to resolve the above issues amicably. In the
meantime, if you have any questions or comments regarding the content of this letter,
do not hesitate to contact the undersigned.
Very truly yours,
�/>]� r
Charles S. Krolikowski
Enclosure (Property Maintenance Agreement)
cc: Newport Coast Community Association
Aaron Harp, Newport Beach City Attorney (via e-mail to
sharp@newportbeachca.gov)
Leilani Brown, City Clerk for City of Newport Beach (via e-mail to
(brown@newportbeachca.gov)
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