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HomeMy WebLinkAbout24 - Newport Coast Landscape MaintenanceCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 24 December 9. 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff@dty.newport-beach.ca.us SUBJECT: Slope, Parkway, and Median Landscape Maintenance in the Newport Coast ISSUE: Should the City meet its obligations under the Newport Coast Pre - Annexation Agreement to enter into agreements with community associations in the Newport Coast . to maintain the landscaping on certain slopes, parkways, and medians along public streets? RECOMMENDATIONS: 1. Authorize the City Manager to enter into a Property Maintenance Agreement or agreements substantially similar to the attached document with eligible Newport Coast community associations to maintain the landscaping on certain slopes, parkways, and medians along public streets; 2. Authorize the General Services Director to enter into or amend an existing contract with Park West Landscape Maintenance or any other qualified firm to maintain certain slopes, parkways, and medians in the Newport Coast; and 3. Authorize the City Manager to enter into a reimbursement arrangement with certain HOAs that may not want the City's contractor to do their maintenance work; 4. Adopt Budget Amendment # _ appropriating a total of $245,422 to fund expenditures for the remaining six months of FY 2003 -04 according to the following schedule: a. $ 151,612 to the General Services Department's Parks Maintenance Division Professional and Technical Services Account (3170 -8080) for Slope, Parkway, and Median Maintenance in the Newport Coast December 9, 2003 Page 2 0 contract landscaping services from Unappropriated General Fund Reserves; and b. $ 43,500 to the General Services Department's Utilities Account (3170- 8118) for reclaimed water purchases from Unappropriated General Fund Reserves; and c. $20,000 to the General Services Department's Street Tree Maintenance Division Professional and Technical Services Account (3180 -8080) to fund a tree inventory and immediate tree maintenance services to reduce liability issues on newly acquired areas adjacent to public rights of way. d. $ 30,310 to a new account within the General Services Department's Parks Maintenance Division Professional and Technical Services Account (3170- 8080X) for landscape maintenance and reclaimed water purchase reimbursements (for the Newport Ridge HOA) from Unappropriated General Fund Reserves ($23,552.00) and from the Water Enterprise Fund ($6,758.00). DISCUSSION: Background: The 7,700 -acre Newport Coast community at the eastern edge of the city is a combination of two planned communities (the San Joaquin Hills Planned Community [now known as Newport Ridge] and the Newport Coast Local Coastal Program, 2nd Amendment). In the 1980s and 1990s as the communities were developed, the major landowner (The Irvine Company) and the planning jurisdiction (the County of Orange) established a somewhat complex program of private ownership of lands that are more commonly held by public agencies -- lands like street medians, parkways, and slopes along public streets. As such, the parks in the Newport Coast area are private. Assessment and Mello -Roos districts funded construction of the Newport Coast's major infrastructure -- like the Newport Coast Fire Station, Newport Coast Elementary School, sewers, water mains, streets, streetlights, stoplights, and the installation of the community's street landscaping. The assessment districts did not fund and cannot fund the ongoing maintenance of these public facilities or properties. When homeowners moved into the community, the development was set up such that homeowners' and community associations picked up both ownership and maintenance costs of certain properties -- specifically the landscaping along streets. A Community of Associations. Today, the Newport Coast contains six major community associations: • Newport Ridge Community Association; 0 0 0 Slope, Parkway, and Median Maintenance in the Newport Coast December 9, 2003 Page 3 • Newport Ridge North Community Association; • Newport Coast Community Association; • Ziani Community Association; • Pelican Point Community Association; and • Crystal Cove Community Association. These community associations are charged with various activities, including operating private parks (like Newport Ridge Park and the Coastal Canyon Swim and Tennis Club), operating gate guard facilities, and maintaining landscaping along medians, parkways and slopes. The community associations operate concurrently with about 24 smaller homeowners associations (HOAs) that manage different properties and facilities like streetscapes behind gates, fuel modification zones, gate guards to their specific neighborhoods, and more. These smaller HOAs include: Newport Coast HOAs • Ocean Ridge I, II, and III • Pelican Hill • Pelican Crest I and II • Santa Lucia • Montecito • Pelican Point • Tesoro • Altezza • Ocean Heights • Los Trancos • Ziani • Campobello Newport Ridge HOAs • St. Laurent • Montserrat • The Vistas at Newport Ridge • Newport Ridge Apartments • St. Michel • The Summit • The Pointe • Sancerre • The Estates For information about where these HOAs and COAs are located, look at the City's web site (www. city. newport- beach. ca. us) and click on our mapping applications. Annexation Discussions. In the 4 years leading up to Newport Beach's annexation of the Newport Coast, the City Council's negotiating team agreed to "do the medians and slopes" along public streets -- meaning to maintain the landscaping and hardscape of medians (the center of the street), parkways (the area between the street and the sidewalk), and certain slopes to the maintenance standards in place at the time of annexation. This offer by the City was included within a Pre - Annexation Agreement (PAA) that the City Council later adopted and entered into with a coalition of Newport Coast residents known as the Newport Coast Committee of 2000 (NCC2K). Annexation occurred January 1, 2002. Slope, Parkway, and Median Maintenance in the Newport Coast December 9, 2003 Page 4 0 Thanks to annexation, today many of the public streets in the Newport Coast are controlled by the City via easement or ownership, but the land around them (medians, parkways, and slopes) are owned by community associations. These streets include: • Newport Coast Drive • Newport Ridge Drive • San Joaquin Hills Road • Vista Ridge Road • Ridge Park Road • Pelican Hill Road The Property Maintenance Agreement. Because of the private ownership (via the community associations) of these lands adjacent to City- controlled streets, several months passed before City staff (including the City Attorney and myself) could implement that section of the PAA via the negotiation of a written agreement that would allow the City or its landscape maintenance contractor to maintain these properties as if they were public. In Fall 2003, we completed an agreement called a Property Maintenance Agreement (PMA) -- the affected community associations (Newport Ridge and Newport Coast) agreed in late October 2003 to the terms and format of the PMA (attached). The PMA describes certain eligible properties that the City or its landscape maintenance contractor will maintain - generally, these are certain: • Medians and parkways along public streets where the City owns and maintains the streets; • California native and evergreen slopes along public streets where the City owns and maintains the streets; Some areas are excluded from eligibility via the PAA -- these include landscaped areas that are: • Within gated communities and therefore not public; • Adjacent to or within parks that are not public; • Adjacent to schools, commercial areas, hotels /timeshares, or developer -owned property; and • Enhanced entryways or decorative corner statements. Between annexation and today, only the Newport Coast Community Association was willing to let the City's contractor -- Park West Landscape Maintenance -- maintain NCCA - controlled land (specifically the medians and parkways along portions of Newport Coast Drive and Pelican Hill Road) without an executed agreement. The City took on the obligation to maintain about 14.95 acres of landscaping along these roads in Slope, Parkway, and Median Maintenance in the Newport Coast December 9, 2003 Page 5 • October 2002. The Newport Ridge Community Association did not wish us to do the same for San Joaquin Hills Road nor Newport Ridge Drive and as such has been maintaining the landscaping to this point at their request and expense. City staff -- in discussions with the Newport Coast Advisory Committee -- agreed that the time difference between annexation and the City's obligation to meet the terms of the PAA was too long. In other words, the slow development of the PMA denied the Newport Coast homeowners a benefit that we had promised them within the PAA. As such, staff agreed that the City -- once it started maintaining eligible properties under the PMA -- would provide a one -time reimbursement to the landowners (via the two COAs) as if we had maintained the properties since March 1, 2002. The Contractors. Park West Landscape Maintenance -- formerly Park Landscaping Maintenance -- was the contractor of choice by both the Newport Coast Community Association and the General Services Department. The General Services Department solicited competitive bids on that portion of COA -owned land that the City started maintaining in October 2002 and selected Park West's predecessor entity, Park Landscaping, as the qualified bidder. As noted, Park West started work on portions of NCCA -owned property in October 2002. . Park West has agreed to add the PMA's eligible properties to its bid price. General Services Department staff believes this price is reasonable and service levels have met City staff expectations. They will continue to supervise the Park West contract as the eligible properties are added. City staff -- in discussions with the Newport Coast Advisory Committee -- agreed that the time difference between annexation and the City's obligation to meet the terms of the PAA was too long. In other words, the development of the PMA was unacceptably long and denied the Newport Coast homeowners a benefit that we had promised them within the PAA. As such, staff agreed that the City -- once it started maintaining eligible properties under the PMA -- would provide a one -time reimbursement to the landowners (via the two COAs) as if we had maintained the properties since March 1, 2002. We have not yet determined the amount of this obligation. The City's tree trimming contractor, West Coast Arborists (WCA) has been working in the Newport Coast area since annexation occurred, maintaining approximately 1,500 trees located on medians and in parkways whose maintenance has already been assumed by the General Services Department. WCA will provide services to the additional area at the current contract prices. A Few Words about Prevailing Wage. Prevailing wage laws require certain public agencies to pay hired staff (and contracted staff) a wage that prevails in the region for that industry. For example, if landscape maintenance workers commonly receive $9 per • hour for their services, prevailing wage laws would require a public agency to hire persons at that wage or above, but not below. In the past, charter cities (cities that Slope, Parkway, and Median Maintenance in the Newport Coast December 9, 2003 Page 6 operate under a charter form of government rather than following the "general law" of the State of California) have been exempt from prevailing wage requirements. However, a recent case involving the City of Long Beach (a charter city) calls that into question. As that case is on appeal, a recent bill passed by the California State Legislature in 2003 (SB 966, Alarcon, 2003) and signed by Governor Davis, says that: ... a contractor may ... bring an action in a court of competent jurisdiction to recover from the body awarding a contract for a public work or otherwise undertaking any public work any increased costs incurred by the contractor as a result of any decision by the body, the Department of Industrial Relations, or a court that classifies, after the time at which the body accepts the contractor's bid or awards the contractor a contract in circumstances where no bid is solicited, the work covered by the bid or contract as a "public work," as defined in this chapter, to which Section 1771 applies, if that body, before the bid opening or awarding of the contract, failed to identify as a "public work," as defined in this chapter, in the bid specification or in the contract documents that portion of the work that the decision classifies as a "public work." Park West Landscape Maintenance asserts to the General Services Department that it pays prevailing wage to its laborers and has pledged to do so via contract throughout the course of its employment with the City. West Coast Arborists has provided the same assurance. The General Services Department has expressed its intent to — sometime in the future (likely to be at the conclusion of the five -year PWLM Contract) -- re -bid all of the Newport Coast eligible properties under City control. As they did with PWLM, GS would do so using traditional RFP and RFQ processes and nominate a selected contractor to the City Council for formal approval of a new contract. NCCA and NRCA -- Different Paths. Only the NCCA has agreed to place additional eligible properties under the PMA and under City- directed and City -paid maintenance. The NRCA has taken a different path -- they prefer direct supervision over a different contractor -- O'Connell Landscaping -- and have requested that portions of their eligible properties (about 9 acres of the 13 acres eligible) remain under their control. They have asked that the City provide them with an annual amount equivalent to what the City would have paid had the City's contractor maintained NRCA - eligible properties. City staff has tentatively agreed that this relationship is acceptable and consistent with the PAA. However, certain NRCA -owned properties (specifically medians and parkways along San Joaquin Hills Road) will be placed within a PMA and maintained by the City or its contractor. • u Slope, Parkway, and Median Maintenance in the Newport Coast December 9, 2003 Page 7 Going Forward. This agenda item -- if approved by your City Council -- would do a variety of things that will help the City meet its obligations under the PAA. Approving the recommended actions would: • Authorize the City Manager to execute any applicable PMAs with the NCCA and the NRCA; • Allow the General Services Department to, as soon as is practicable, expand the contract with Park West Landscaping Maintenance to add additional acreage to its Newport Coast contracts; • Direct the City's tree trimming contractor, West Coast Arborists (WCA) to locate and inventory the trees located on the newly acquired acreage, and perform necessary maintenance services to reduce liability to public and private property of an immediate nature; • Allow for an ongoing reimbursement program for some eligible properties to the Newport Ridge COA; and • Amend the City's FY 2003 -04 Budget accordingly. A NOTE ABOUT THE MAINTENANCE AGREEMENTS: Two exhibits are not included within the draft agreements. One is the map showing eligible properties for each HOA. This map, while a part of GIS' mapping system, may still be slightly modified before the • City Manager executes the agreements. Another is the conclusion of a long -term discussion with the NCAC relating to the time that has passed since annexation. As such, we will propose a later Council action to address the issue of compensating the two large HOAs for the maintenance of medians, parkways, and certain slopes along public streets that the City should have done starting March 1, 2002. Environmental Review: The City Council's approval of this Agenda Item does not require environmental review. Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Funding Availability: Funding for this activity requires a budget amendment. The City Council added $100,000 to the General Services Department's FY 2003 -04 Budget in anticipation of a portion of these expenses. Alternatives: The City is bound by the Pre - Annexation Agreement with the Newport Coast Committee of 2000 to provide this maintenance. It can consider other methods of providing that maintenance, including: • Reimbursing the two Master HOAs for actual costs; or • Hiring City staff to work solely in the Newport Coast doing this maintenance (rather than a contractor); Slope, Parkway, and Median Maintenance Submitted by: Dave i<iff Assistant City Manager Attachments: Property Maintenance Agreement Budget Amendment #_ in the Newport Coast December 9, 2003 Page 8 E u 0 0 0 PROPERTY MAINTENANCE AGREEMENT This Agreement (Agreement), dated this City of Newport Beach ( "City ") and the reference to the following: day of 2003 (Effective Date) between the Association ( "Association ") is made with 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. NOW, THEREFORE, the Parties agree as follows: TERM (a) Effective Date. The initial term of this Agreement (Initial Term) shall be four (4) years commencing on the Effective Date unless this Agreement is 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 shall, at its sole cost and expense, through either its own employees or a contractor, perform services listed, and to the standard(s) described, in Exhibit A (Maintenance) with respect to the Eligible Property described in Exhibit B (Property). 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 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 Property Maintenance Agreement Page 2 of 14 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 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 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) Adlacent Propertv. 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, • 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 Property Maintenance Agreement Page 3 of 14 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 reimburse the Association for the costs of providing maintenance to the Eligible Properties as more particularly set forth in Exhibit C. 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, 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 wells 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 of Newport Beach shall maintain throughout the term of this Agreement commercial general liability Property Maintenance Agreement Page 4 of 14 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 such policy provided the City would incur no additional cost to do so or Association reimburses the cost. 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 number and e-mail address of the new Project Administrator at the time of notification 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 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. (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 this Agreement 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. All notices, demands, requests or approvals from Association to City shall be addressed to City, attention "General Services Director' at: City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA 92658 -8915 Phone: (949) 644 -3055 Fax: (949) 650 -0747 Property Maintenance Agreement Page 5 of 14 0 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. 9 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. 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. Property Maintenance Agreement Page 6 of 14 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH A Municipal Corporation By: By: Robert Burnham, City Attorney Homer Bludau, City Manager NAME OF ASSOCIATION By: President of the Association Board L L_J Property Maintenance Agreement Page 7 of 14 EXHIBIT A Scope of Services EVERGREEN SLOPES, PARKWAYS, AND MEDIANS A. Ground cover 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. Property Maintenance Agreement Page 8 of 14 2. Fertilization: 0 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 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 14 • 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 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. 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. Property Maintenance Agreement Page 10 of 14 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. • EXHIBIT B Property Map to be added. I] • Property Maintenance Agreement Page 11 of 14 Property Maintenance Agreement Page 12 of 14 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 slop 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. Property Maintenance Agreement Page 13 of 14 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 the maintenance standards for each area or facility which is in place as of the 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 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. 0 Property Maintenance Agreement Page 14 of 14 EXHIBIT D Schedule of Reimbursement by City to Association For Maintenance of Eligible Properties Prior to this Agreement Schedule to be added later. 0 0 City of Newport Beach BUDGET AMENDMENT 2003 -04 CT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues rX1 from unappropriated fund balance EXPLANATION: NO. BA- 021 AMOUNT: $za5,azz.00 Increase in Budgetary Fund Balance AND X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance This budget amendment is requested to provide for the following: To increase expenditure appropriations for slope, parkway, and median maintenance in Newport Coast. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account 010 3605 500 3605 ROUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Description General Fund Fund Balance Water Fund Fund Balance Description t. _._ _� Signed: 25/�_ Administrative Approval: City Sigr"d: City Council Approval: City Clerk Amount Debit Credit $195,164.00 $50,258.00 ' Automatic $151,612.00 $43,500.00 $30,310.00 $20,000.00 Date Date Description Division Number 3170 General Services - Parks Account Number 8080 Services - Professional & Technical Division Number 3170 General Services - Parks Account Number 8118 Utilities - Water Division Number 0310 City Manager Account Number 80804 Services - Fuel Modification Division Number 3180 General Services - Street Trees Account Number 8080 Services - Professional & Technical t. _._ _� Signed: 25/�_ Administrative Approval: City Sigr"d: City Council Approval: City Clerk Amount Debit Credit $195,164.00 $50,258.00 ' Automatic $151,612.00 $43,500.00 $30,310.00 $20,000.00 Date Date City of Newport Beach BUDGET AMENDMENT 2003 -04 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues PX from unappropriated fund balance EXPLANATION: NO. BA- 0111 �1- AMOUNT: $za5,azz.00 Increase in Budgetary Fund Balance AND X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance This budget amendment is requested to provide for the following: To increase expenditure appropriations for slope, parkway, and median maintenance in Newport Coast. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account 010 3605 500 3605 REVENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Description General Fund Fund Balance Water Fund Fund Balance Description Signed: Signed: Signed Approval: City City Council Approval: City Clerk Amount Debit Credit $195,164.00 $50,258.00 $151,612.00 $43,500.00 $30,310.00 $20,000.00 Date batef I Date Description Division Number 3170 General Services - Parks Account Number 8080 Services - Professional & Technical Division Number 3170 General Services - Parks Account Number 8118 Utilities - Water Division Number 0310 City Manager Account Number 80804 Services - Fuel Modification Division Number 3180 General Services - Street Trees Account Number 8080 Services - Professional & Technical Signed: Signed: Signed Approval: City City Council Approval: City Clerk Amount Debit Credit $195,164.00 $50,258.00 $151,612.00 $43,500.00 $30,310.00 $20,000.00 Date batef I Date