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HomeMy WebLinkAboutC-3674 - Property Maintenance Agreement (for Slope, Parkway, and Median Landscape Maintenance in the Newport Coast)• • PROPERTY MAINTENANCE AGREEMENT This Agreement (Agreement), dated this 46 day of Del2e01 her , 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 P roperties) 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 (4) years commencing o n t he Effective D ate unless t his A greement i s t erminated a s p rovided 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 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 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 Page 5 of 15 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 • Property Maintenance Agreement Page 7 of 15 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 Page 10 of 15 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 Ji • 6 i - f - f-- Newport RidgeNista Ridge Areas PAA Eligible Properties :i/ ,(.l, J' rRr'c r ! r .f\ J• . »w 9Kee44tr a r.F.. Crew MEI o-...,we. _ abe. • Se we. N at at * 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 * r... ti1v ` WPC (A-M--oM..pe..cc..a ME & a.,,..0.a_, GMvri. NM... ?Op.•L M)♦a.. ▪ Fnry..n Slaw .50 25 •revs: Nowe A.peComr Sd ,., ...34 Mvv r3 Pelican Hill Area PAA Eligible Properties it (� r • •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 Page 15 of 15 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, • II/Property Maintenance Agreement Page 3 of 14 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: • •Property Maintenance Agreement Page5of14 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. • •Property Maintenance Agreement Page 6 of 14 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 • *Property Maintenance Agreement Page 7 of 14 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. • Property Maintenance Agreement Page 8 of 14 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 9of14 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. • •Property Maintenance Agreement Page 10 of 14 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 14 i EXHIBIT B Property Map * Newport RidgeNista Ridge Areas .w. PAA Eligible Properties •i / , • ',... 1, • * - VI / ' r i / %, / t , / I 4, k J e" ' . r .._ ; ..... I ) I. .... I e- • 4,,....4 -: /, P i i" - ; , , , ; , I \ ' I ' I. d 1 / / i \• S.- • k , i / s N v *q161/0° , i \ TOM 1.111.11.• • ▪ maa. 1.11 cao... I row %se t un., - • ". ▪ .1mm 00.•Nim VW.* 111,4 N * 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. • 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. (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 • *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. • •Property Maintenance Agreement Page 14of14 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 5544.101 / 15221437.1 Las Vegas I Newport Beach I Walnut Creek newmeyerdillion.com City of Newport Beach July 12, 2023 Page 2 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) 5544.101 / 15221437.1 Las Vegas I Newport Beach I Walnut Creek newmeyerdillion.com