AMENDED AND RESTATED PROPERTY MAINTENANCE AGREEMENT
This Amended and Restated Property Maintenance Agreement (“First Amendment”), isentered intoon November 4, 2025 (“EffectiveDate”) between the City of Newport Beach (“City”)and the Newport Coast Community Association (“NCCA” or “Association”)(individually“Party”or collectively“Parties”)and ismade with reference to the following;
RECITALS
A. City isa charter citywith the powers and authorityprovided inthe Newport Beach CityCharter and the Constitutionand laws of the State of California.For purposes of this First Amendment, the term City includes the employees, officers, representatives,agents or contractorsof the City.
Association isa Common InterestDevelopment formed pursuant to CaliforniaCivil Code section 1350 et seq.
City,pursuant to a Pre-Annexation Agreement (“PAA”) with the Newport Coast Committee of 2000, agreed to maintain the landscaping of certainareas/properties (“EligibleProperty(ies)”)in the areas commonly known as Newport Coast and/or Newport Ridge (“Annexed Area”).
On December 9, 2003, the Parties entered into the Property Maintenance Agreement (“Agreement” or “PMA”), attached hereto as Exhibit A, which set forth the terms and conditions of the City’smaintenance obligations. Unless otherwise specificallyamended herein,the Agreement remains in effect.
On January 26, 2024, Association fileda lawsuit inOrange County Superior Court, Case No. 30-2024-01375558-CU-BC-CJC, alleging the City breached the Agreement, which the Citydenies (“Action”).The Partieshave conditionallysettled the action pursuant to a Settlement Agreement and Release.
Notwithstanding the foregoing,as part of the resolutionof the Action, the City and Association agreed to enter this First Amendment to further delineate the maintenance obligationsof the City under the Agreement.
B.
C.
D.
E.
F.
NOW, THEREFORE, the Parties agree as follows;
1. TERM.
(a) Effective Date. The initialterm of thisFirstAmendment (InitialTerm) shall be four (4) years commencing on the EffectiveDate unless this First Amendment isterminated as provided in Section 9 or Subsection (b) below, (b) Extension. The Parties agree that the term of this First Amendment shall automatically extend for periods of four (4) years (Extended Term[s]) commencing on the expiration of the InitialTerm or the expiration of any
ATTACHMENT A
8-4
Extended Term unless the Association serves the City with a notice of termination within thirty(30) days priorto expirationof the InitialTerm or any Extended Term.
MAINTENANCE TO BE PERFORMED.2.
(a) Scope. City shall at its sole cost and expense, through either its own employees or a qualifiedthirdparty contractor (unless the Parties agree to reimburse NCCA forthe completion of certainwork afterreview and approval of a proposal),perform maintenance services (“Maintenance”) listed,and to the standard(s) described, in the Scope of Services attached hereto as Exhibit B (Scope of Services) with respect to the EligibleProperty described/depicted in ExhibitC and more particularlydescribed in ExhibitC-1, which sets forth the geospatial coordinates. The Parties agree to confirm the above geospatial coordinates in ExhibitC-1 followingthe execution of this First Amendment. To the extent the geospatial coordinates cannot be confirmed and agreed upon, the Parties agree to follow the dispute resolution procedures set forth in Sections 3.d. and 6.i.of the Settlement Agreement and Release in the Action.
The City shallhave no obligationto maintain or perform work on any property that is not specificallydescribed/depicted as EligibleProperty in Exhibits C and/or C-1. The City,in itssole and exclusive discretion,shall have control over the means, methods, equipment, techniques, sequences or procedures used to provide the Maintenance. City may remove or alterlandscaping or other objects from the EligibleProperty, following approval by the Association, and aftera determination by the Public Works Directorthat the: (a) landscaping is sufferingfrom incurable or infectiousdisease; (b) landscaping or object is damaged beyond recovery or repair;or (c) the landscaping or object is inconsistent with the safe movement of pedestrians or vehicles including, without limitation,obstructions to adequate sitedistance along or across any roadway or sidewalk. City shall use its best effortsto installreplacement landscaping that isidenticalto the landscaping thatwas removed except ifthis is highly impracticable.Except as specificallyprovided herein or in Exhibit B, the City shallinstalllandscaping that is:(a) most similarto,includingsize,the landscaping removed; and (b)on the then currentand approved paletteof plant materials for the Association. The plant palette remains the same, with the followingchanges/revisions: Trees can includethe followingspecies: Quercus Virginians‘Joan Lionetti,’Metrosideros Excelsa ‘New Zealand Christmas Tree,’ Arbutus Marina ‘Marina Strawberry Tree,’CaliforniaSycamores (onlygrown in naturalareas not on planed slopes),Olive Trees (36-inch box or smaller),and New Zealand Christmas Tree. Trees to be removed from the current plant palette include the following species: Cypress Trees, Allepo Pine Trees, Eldarica Pine Trees, Eucalyptus Trees and Stone Pine Trees. Plants/Ground Cover can include the following species: Casuarina Glauca, Callistemon Red Rover, Coprosma Marble Queen, Coprosma Repens Taupata Gold, Agonis Flexuosa Nana, and Chrysanthemoides Incana. Plants/Ground Cover to be removed from the current plant palette include the following species: Acacia, ‘Low Boy Prostrate,’and Myoporum. NCCA can provide updated plant palettes.
Amended and Restated Property Maintenance Agreement Page 2 8-5
which can be modified by NCCA from time to time so long as itdoes not increase the costs to the City, or NCCA will have the option to pay the difference. Notwithstanding the foregoing,the City shall not be obligated to installreplacement landscaping of the same species ifithas been determined thatthe entirespecies isaffectedby the same disease, insect, or condition that caused the damage, destructionor removal of the landscaping and that the disease, insect, or condition cannot be prevented by industry standard maintenance. The intent of the Parties is that the City is obligated,to the maximum extent possible, to maintain the landscape density, design and appearance of the EligibleProperty when all landscaping was in good condition.Cityshallconsider,but not be bound by,comments submitted by the Association relativeto the means, methods, or techniques used to provide Maintenance. This Section shall control the City’sMaintenance obligations.
Other than confirmingthe geospatialcoordinates (tobe agreed upon in Exhibit C-1) set forth above, any disputes or failuresto agree between City and Association related to the Maintenance obligationsset forth above shall be resolved in accordance with Section 8(b) herein,
(b) Landscape Changes. The Parties understand that itmay be necessary or advantageous forthe Associationto modify or change the landscape species (withinthe EligibleProperty areas) forreasons relatedto aesthetics or for other reasons. Should the Association choose to voluntarilymodify or change the landscape species and not because of being compelled to do so because of a governmental requirement, the Association shall be obligated to pay for the cost of such modificationsor changes and be responsiblefor maintaining the particulararea. Ifthe modificationor change is mandated by a government requirement, the cost of the modificationor change shallbe paid by the City.
3. CONDITIONS OF DUTY TO MAINTAIN
The City'sduty to provide Maintenance issubjecttoAssociation’sfullcompliance with thisFirstAmendment and the followingexpress conditions:
(a)Access. Association shall grant City the rightsnecessary, to provide the Maintenance includingsurface and subsurface access, ingress and egress and the right,at the City’ssole cost and expense, to modify,or replace any faculty or equipment adjacent to, on, over or under the EligibleProperty (Access).
Except as provided in Subsection (b),the Association’sgrant of Access shall not be subject to any restrictionincluding,without limitation,limitson the date or time of access, any obligationto provide insurance/indemnityor any limiton the size or nature of vehicles or equipment,
(b)Access Conditions. The Association’sgrant ofAccess shallbe subject to the conditions that:(i)the City repair or replace,to the condition priorto damage, any landscaping or facilitythat isdamaged by City in the course of providing the Maintenance or otherwise;and (ii)except inthe event of an emergency, the Amended and Restated Property Maintenance Agreement Page 3 8-6
City willcomply with the Association’s rules pertainingto the days and hours during which landscape maintenance may be performed,
(c) Payment for Utilities.City,in itssole discretion,shall either (i)pay for and provide forthe separation of any water or electricalmeter or similar device if the meter or meters provide service to the EligibleProperty and other properties adjacent to or nearby the EligibleProperty that are controlledor maintained by the Association or itscontractors; orOi)City shallreimburse Association in an amount that is based on a formula, calculated by the City and the Association using theirrespective best effortsand acting in good faith that,represents the percentage of the overallcost of water and electricalservice to all Association property that isattributableto the EligibleProperty. Any dispute regarding the formula shall be submitted to the Neutral Arborist, as set forth in Section 8. (d) Adjacent Property. The Association shalluse itsbest effortsto cooperate and comply with requests of the City relatingto the maintenance, modification or condition of Association property or facilitythat is adjacent to the Eligible Property, and which is necessary for the City to fulfilits Maintenance obligations. Association agrees to indemnify and hold City harmless with respect to any damage or injury to the EligibleProperty that is proximately caused by Association’sfailureto comply with itsobligations pursuant to this Subsection. Association’s duty to cooperate includes, without limitation,the obligationto maintain itsproperty in good condition and in a manner that does not create or increase any risk of injury or damage to persons or real or personal property,
(e) Inspection of Eligible Property. Association shallpermit, and the City shall conduct, within thirty(30) days after the Effective Date, an inspection to document via photographs and/or video the condition of the EligibleProperty.
Both parties shall review the documentation and agree on the baseline condition of the EligibleProperty. Ifthe Parties cannot agree on the baseline condition, itshall be submitted to the Neutral Arborist as set forth in Section 8(b) below.
4. ADDITIONAL PARTY OBLIGATIONS
In additionto the duty to perform Maintenance;
(a) Irrigation System Management. The City shall, repair, maintain, and/or replace any electrical,drainage, or irrigationequipment on the EligibleProperty within the Maintenance Schedule timeframes set forth in ExhibitB that requires repair or replacement during the Term at itssole cost and expense, (b) Damage to Association Property. City shallas soon as reasonably practical repair orreplace any Association property thatisdamaged or destroyed by City while providing the Maintenance.
Amended and Restated Property Maintenance Agreement Page 4 8-7
WATER QUALITY & WATER CONSERVATION5.
(a) NPDES Obligations. Cityshallreasonably comply with any and allobligations and requirements (includingapplying for and obtaining any required permits) pertainingto the EligibleProperty 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 CaliforniaRegional Water Quality Control Board, Santa Ana Region (“Regional Board”), under the National PollutantDischarge EliminationSystem (“NPDES”) permit system,
(b)Water Quality-Limited Watersheds. Association shallreasonably cooperate with the City with respect to compliance with any regulatory directiveby the Regional Board or the State Water Resources Control Board (“StateBoard”) pertainingto the EligibleProperty.The City'sobligationto perform Maintenance shallbe 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 EligibleProperty,
(c)Water Conservation. Association and its agents and contractors shall reasonably cooperate with the City with respect to any water conservation measure adopted by the City Council or other governmental agency with jurisdictionover the EligibleProperty.
6. INDEMNIFICATION AND INSURANCE
(a) Indemnification. City shall,assuming Association isnot indefault withrespect to itsobligationspursuant to this FirstAmendment, 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 inany way relatedto, any act or omission of the City in the performance or non-performance of Maintenance pursuant to this FirstAmendment. Association and itsofficers,employees, agents and members shallreasonably cooperate with City in the defense or any claim or lawsuitthe City isobligated to defend pursuant to thisFirstAmendment. City's obligations pursuant to this FirstAmendment shall not apply to damages, claims, injuries,liability,losses, costs, attorney fees or expenses that are proximately caused by the sole negligence or willfulact of the Association or its officers,employees, agents, representatives,or members. City shallhave full discretionto selectcounsel, experts or other professionals to represent or advise itand the Association as well as itsofficers,agents, employees and members with respect to any litigationor any action related to the litigation, (b)Insurance. In additionto itsindemnificationobligationsin Subsection (a),the City shall maintain throughout the term of this FirstAmendment commercial general liabilityinsurance 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'sbest interestsgiven the current Amended and Restated Property Maintenance Agreement Page 5 8-8
market conditions.City shall provide Association with appropriate certificates evidencing compliance with thisSection and shalluse its best efforts to add the Association as an additionalinsured on any such policyprovided the City would incur no additional cost to do so or Association reimburses the cost.
7. ADMINISTRATION
This FirstAmendment willbe administered by the Director of the City'sPublic Works Department (“Director”).The Director shall be considered the Project Administrator and shallhave the authorityto act for City pursuant to this First Amendment. The ProjectAdministrator or his/her authorized representative shall represent City in all matters pertaining to the Maintenance. The Project Administrator's address, phone number, facsimile number and e-mail address is set forth in Section 10 of this First Amendment. The City agrees that each time the ProjectAdministratorchanges, itwillnotifythe Association of such change within thirty(30) days, and provide Association with the address, phone number, and e- mail address of the new ProjectAdministrator at the time of notificationof change.
8. MONTHLY WALKTHROUGHS AND DISPUTE RESOLUTION
(a) Monthly Walkthroughs. The City and Association shall conduct monthly walkthroughs of the EligibleProperty to inspect and assess the maintenance work performed. During each walk-through, both Parties shalldocument any items requiringrepair,correction,or completion. Each Party shallcomplete the tasks identifiedinthe monthly walk-through withinone (1) month or,ifthe work cannot be reasonably completed within one month, a reasonable time.
Notwithstanding the foregoing time frame, ifany maintenance work requires urgent or immediate attentionto prevent damage, preserve safety,or avoid material deterioration,the responsible Party shall take reasonable steps to address such maintenance promptly,
(b) Dispute Resolution. The Parties recognize thatdisputes may arise as to compliance with the terms of thisFirstAmendment. To minimize the need for furtherlitigationover a dispute regarding the interpretationor compliance with thisFirstAmendment, eitherParty may give writtenNotice to the other Party of a dispute inthe manner set forthherein,fullydescribing the exact nature of the dispute (“Dispute Notice”).Within thirty(30) days aftereitherParty sends a Dispute Notice, the Partiesshalleithermutually agree to a NeutralArborist to decide/resolve the issues raised inthe Dispute Notice, or ifno such agreement can be reached, each Party shalldesignate their own arborist, and those two arborists shall select a third arborist within thirty(30) days afterthe initialdesignation, to decide/resolve the issues raised in the Dispute Notice.
The Neutral Arborist shall be authorized to meet with the Parties and/or require writtensummaries relatingto the issues raised in the Dispute Notice.
The decision(s) of the Neutral Arborist as to the work that needs to be completed to comply with thisFirstAmendment shallbe binding on the Parties Amended and Restated Property Maintenance Agreement Page 6 8-9
and shallbe performed by the obligated Party ina timely manner. The Neutral Arborist shall only have jurisdictionto interpretthis First Amendment as it applies to work to be completed and shallnot have jurisdictionto change any terms in the same.
The Neutral Arborist shall serve as the Neutral Arborist for a four-yearterm, which may be renewed by agreement of the Parties, ifthe Parties cannot agree upon renewing the term of the Neutral Arborist,the Parties shall follow the procedure set forthinthisparagraph to selecta new Neutral Arborist. This provision is meant to be consistent with the Neutral Arborist Resolution Procedure set forth in Section 3d. of the Settlement Agreement and Release in the Action. To the extent there are any inconsistencies,the provision in the Settlement Agreement and Release shallcontrol.
The Parties agree to execute a writtenagreement provided by the Neutral Arboristforthe payment of his/herfees and costs. The fees and costs of the NeutralArboristshallbe shared by the Parties equally.
9. TERMINATION
(a) Notice. Inthe event eitherpartyfailsor refusesto perform any of the provisions in this FirstAmendment, that party shall be deemed to be in default in the performance of thisFirstAmendment. The party not in defaultmay terminate thisFirstAmendment if,withinten (10) days afternotice ofdefault,the party in default has not cured the default,or ifmore 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 afterreceipt of written notice of default,specifyingthe nature of such defaultand the steps necessary to cure such default. To the extent the City terminates this FirstAmendment, the Association maintains (and does not waive) any rightsitmay have related to PAAand associated annexation of the Newport Coast community, including without limitation,allremedies.
(b) Restoration Following Termination. Upon termination of this First Amendment by eitherparty,City agrees to restore the EligibleProperty to the conditionthat existed upon the date of the City'sinspection as described in Subsection 3(e) of this FirstAmendment. The restorationof the Eligible Property shall be completed as quickly as reasonably practicable,but in no event more than ninety (90) days followingtermination.Any damage or injury to Association property,facilities,landscaping or hardscape that isproximately caused by the Cityduring the restorationprocess, or as a resultof any delay in the restorationprocess (forexample, plant material dying as a resultof any irrigation,drainage, or electricalequipment being inoperative during the restoration)shallbe repaired or replaced by City.
Amended and Restated Property Maintenance Agreement Page 7 8-10
(c)Survival of Obligations. The commitments and obligationsof the City that are specified in Sections 4(b), 6(a), 9(b), 9(c) and 16 shall survive the termination of this First Amendment.
10. NOTICES
All notices, demands, requests or approvals to be given under this First Amendment shallbe given in writingand conclusivelyshall be deemed served when delivered personally or on the thirdbusiness day afterthe deposit thereof in the United States mail, postage prepaid, firstclass mail, addressed as set forth below or as changed by eitherParty with writtennotice to the other Party in the manner specifiedinthisSection with additionalnoticing,ifdesired by eitherParty, by e-mail at the e-mail addresses set forthbelow.
All notices, demands, requests or approvals from Association to City shall be addressed to cityat:
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92625
Attn:City Manager
Phone: (949)644-3311
E-Mail: [email protected]
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92625
Attn:CityAttorney
Phone: (949)644-3311
E-Mail: [email protected]
City of Newport Beach
100 Civic Center Drive Newport Beach, CA 92625
Attn: Director of Public Works
Phone: (949) 644-3311
E-Mail: [email protected]
All notices,demands, requests or approvals from City to Association shall be addressed to the Association,attention“PropertyManager” and the followingother individuals at:
Newport Coast Community Association
c/o First Service Residential
15241 Laguna Canyon Road
Irvine,CA92618
Attn: Holly Maddalena
Phone: (949) 500-1163
Amended and Restated Property Maintenance Agreement Page 8 8-11
E-Mail: Holly,[email protected]
Charles S. Krolikowski,Esq.
Newmeyer & Dillion,LLP
895 Dove St.,2nd Floor
Newport Beach, CA 92660
Phone: (949)271-7233
E-Mail: [email protected]
Amber Y Snider
9 Veneto
Newport Coast, CA 92657
Phone: (949) 355-3862
E-Mail: [email protected]
Gerald Klein
15 Castellina Drive
Newport Coast CA 92657 and
Phone: (949) 683-2009
E-Mail: [email protected]
Jim McGee
McGee & Associates
24 Corporate Plaza Drive
2"^ Floor
Newport Beach, CA 92660
E-Mail: [email protected]
Nothing herein shallrequirean amendment to thisFirstAmendment to revise the names provided herein. The persons identifiedherein may be modified by either Party by providing priorwrittennotification.
11. WAIVER
The waiver by City or Association of any breach of this FirstAmendment by the other shallnot be deemed to be a waiver of any term, covenant, or condition or any subsequent breach.
12. PARTIAL INVALIDITY
If any term or provision of this First Amendment is declared invalid or unenforceable, the remainder of this FirstAmendment shall not be affected.
13. GOVERNING LAW
The laws of the State of Californiashallgovern the enforcement and interpretation Amended and Restated Property Maintenance Agreement Page 9 8-12
of thisFirstAmendment. Neither the City’sexecution of this First Amendment nor any consent or approval given by the City pursuant to this First Amendment shall affectthe City'spowers and duties as a governmental entity.
14. ENTIRE AGREEMENT; MODIFICATION
This FirstAmendment contains the entire understanding between the Parties relativeto the subject matter. No verbal agreement or implied covenant shall be held to vary the provisions of this FirstAmendment. Each Party has reliedon its own examination of this FirstAmendment, the counsel of itsown advisors, and the warranties, representations, and covenants in this First Amendment. The failure or refusalof eitherParty to read thisFirstAmendment or other documents or to obtain legalor other advice relevant to this FirstAmendment constitutes a waiver of any objection,contention,or claim thatmight have been based on such reading, inspection, oradvice. No provisionof thisFirstAmendment may be amended or varied except by an agreement inwritingsigned by the Partiesor theirrespective successors and approved as to form by the City Attorney.
15. HEADINGS
The headings and captions of the various sections of this First Amendment are for convenience and ease of reference only and do not define, limit,augment, or describe the scope, content, or intentof the same.
ATTORNEY’S FEES AND COSTS16.
Should litigationbecome necessary to enforce one or more of the terms, conditions and/or provisionsof thisFirstAmendment or with respect to any issue arisingout of thisFirstAmendment, the prevailingpartyshallbe entitled to recover reasonable attorney'sfees and costs.
[SIGNATURES ON FOLLOWING PAGE]
Amended and Restated Property Maintenance Agreement Page 10 8-13
IN WITNESS WHEREOF, the Parties have caused this FirstAmendment to be executed on the day, and year firstwrittenabove.
APPROVED AS TO FORM:
CITY ATTORNEY’S OFFICE
Date; I ^/ 2.^ / Z ^
CITY OF NEWPORT BEACH,
a Californiamunicipal corporation
Date:
By: By;
Aan Harp Vi Joe Stapleton
MayorCityAttorney
ATTEST:
Date;
NEWPORT COAST COMMUNITY
ASSOCIATION, a Californiacorporation
Date;
By: By;
Lena Shumway
City Clerk
Date:
By;
[END OF SIGNATURES]
Attachments: ExhibitA - Agreement
Exhibit B - Scope of Services
ExhibitC - EligibleProperty - Property Map
ExhibitC-1 Geospatial Coordinates of EligibleProperty
Amended and Restated Property Maintenance Agreement Page 11 8-14
EXHIBIT A
Agreement
8-15
PROPERTY MAINTENANCE AGREEMENT
I
ThisAgreement(Agreement),datedthis9^dayof ber'.2003 (EffectiveDate) between die City of Newport Beach ("City*)and the Newport Coast Community Association("Association")ismade with refererx* to the following.
RECITALS
A. City isa chartercitywith thepowers and authorityprovided inthe Newport Beach CityCharterand the Constitutionand laws of the State of California.For purposes of thisAgreement, the term Cityincludes the employees, officers,representatives,agents or contractorsof the City.
B, Association isa Common interestDevelopment fomned oursuant to California CivilCode Section 1350, et seq.
C. City has, pursuant to a Pre-Annexation Agreement (PAA) with the Newport Coast Committee of 2000, agreed to maintain certainproperties(EligibleP ropetlies)in the areas commonly known as Newport Coast and/or Newport Ridge (Annexed Area).
D. The maintenance of parkways and medians provides a public benefitby minimizing the potentialfor pedestrian and/or trafficaccidents,ensuring compliance with water qualitylaws, promoting ah attractive environment and preserving publicviews.
E. City'sobligationto maintain the EligibleProperies is subjectto certainconditionsincluding arequest from the Association (as the property owner) and execution of. and compliance with, this Property Maintenance Agreement.
F. Associationhas submitteda requestthat CitymaintainEligiblePropertyowned by Associationand, by execution of thisAgreement, has committed to comply withallconditionsspecifiedinthePAA (relevant section included withinExhibit C).
G. At itsRegular Meeting on December 9, 2003, the Newport Beach City Council authorizedthe City Manager toexecute thisdocument on behalfthe Cityof Newport Beacn.
NOW, THEREFORE, the Partiesagree as follows:
1. TERM
Effective Date. The initialterm of this Agreement (InitialTerm) shall be four (4) years commencing on the EffectiveDate unlessthisAgreement is terminated as provided in Section 8 or extended pursuant to Subsection 1(b).
Extension. The Partiesagree thatthe term of thisAgreement shallautomaticallyextend for periods of four years (Extended Term(s]) commencing on the expirationof the InitialTerm or the expirationof any Extenced Term provided that Association has not served City with a notice of terminationwithinthirty(30) days priorto the expirationof the InitialTerm or any Extended Term.
MAINTENANCE TO BE PERFORMED
City shall.a t itss ole c ost and e xpense. through e ifheritso wn employees o r a c ontractor, perform s ervices listed,and to the standard(s) described, in Exhibit A (Maintenance)with respect to the EligibleProperty described in Exhibit B (Property Map). Association waTants and represents,and Cityisreasonably relyingon Association's representation, that the Maintenance is substantallysimilarto the servicesperformed by /Vssocation or its contractors immediately prior to the EffectiveDate. City shall,in itssole and exclusive discretion,have control over the means, methods, equipment, techniques,sequences or procedures used to (a)
(b)
2. 8-16
!
i
Property Mamtenaryx Agreervent
provide the Maintenance. City may remove or alterlandscaping or other objects from the Property foibwing consultation with Association and after a determination by the General Services Directorthat the (a) the landscaping is sufferingfrom incurable or infectiousdisease;(b)the landscaping or objectisdamaged beyond recovery or repair;or (c)thatthe landscaping or objectisinconsistentwith thesafe movement of pedestriansor vehicles inckjding.without limitation,obstructions to adequate sight distance along or across any roadway or sidewalk. City shalluse itsbest effortsto installreplacement landscaping that is identicalto the landscaping thatwas removed, but ifthisishighlyimpracticableCityshallinstalllandscapingthatis(a)most sbiilarto the landscaping removed; and (b) on the then currentand approved paletteof piantmaterialsforthe Association.
Notwithstandingthe foregoing.City shallnot be obligatedto installreplacement landscaping of the same species if ithas been determined thatthe entirespecies is affectedby the same disease or conditbn that caused the damage, destructionor removal of the landscaping. The intentof the Partiesis that the Cityis obligated,to the maximum extent possible,to maintainthe landscape density,design and appearance of the Propertywhen alllandscaping was in good condition.City shallconsider,but not be bound by, comments submited by the Associatbn relativeto the means, methods, or techniques used to provide the Maintenance.
3. CONDITIONS OF DUTY TO MAINTAIN
City'sduty to provide Maintenance Is subject to Association'sfullcompliance with ths Agreement and the followingexpress conditions;
Associationshall grant City the rights necessary to provide the Maintenance includingsurface and subsurface access, ingress and egress and the right,at the City’ssolediscretion and at the City'ssole cost and expense, to modify,or replace any facultyor equipment adjacent to,on, over or under the Property (Access). Except as provided in Subsection (b),the Association’sgrant of Access shallnot be subject to any restrictionincluding,without limitation,limitson the date or time of access, any obligationto provide insurance/indemnity or any limiton the size or nature of vehiclesor equipment.
(a) Access.
Access Conditions. The Association'sgrant of Access shall be subject to the conditions that:(i)the City repair or replace,to the conditionpriorto damage, any andscaping or facilitythatwas damagjedbyCityinthecourseofprovidingtheMaintenanceor otherwise:and (ii)except inthe event of an emergency, the City willcomply with the Assoc ation’srulespertainingto the days and hours during which landscape maintenance may be performed.
Meter Separation/Pavment for Utilities,
forand provideforthe separationofany water or electricalmeter or similar device ifthe meter or meters provideservicetothel^opertyand other propertiesadjacent to or nearby the Property that are controlledand maintained by the Associationor itscontractors:OR (ii)Cityshallreimburse Association in an amount that is based on a formula, calculated by the City and the Association using their respectivebest effortsand actingin good faith,thatrepresentsthe percentage of the overallcost of water and electricalservice to allAssociation property that isattributableto the Property. The formula developed by the Partiesshallbe attached to thisAgreement as an exhibit.
Association shall use itsbest effortsto cooperate and comply with reques'iSof the Cityrelativeto the maintenance, modificationor conditionof Associationpropertyor facility that is adjacent to the Property and which is necessary in order for the Cityto perform itsMaintenance obligations.Associationagrees to indemnifyand holdCityharmless withrespecttoany damage or injuryto the Propertythatisproximatelycaused by Association’sfailureto comply with itsobligationspursuant to thisSubsection. Association'sduty to cooperate includes,without limitation,the obligabon to maintain its pKX>pertyingood conditionand ina manner thatdoes not createor increaseany irsk of injury ordamage to persons or realor personal property.
(b>
City,in itssolediscretion,shalleither(i)pay(c)
(d) Adjacent Property,
Association shallpermit,and City shallconduct within30 days afterthe EffectiveDate, an inspectionof tne Property and any adjacentpropertythatcontainsfacilities that serve the Property,to confirm thatthe Property contains liveand viable landscaped material and that the Property and any relevant adjacent property containa fullyfurctionhg irrigationsystem (fully functioningmeans ailirrigationcontrollers,pipes, sprinklerheads or similardevices, water meters, (») Inspection of Property
8-17
IProperty Maintenance Agreement
wiring,or any other aspect of the irrigationsystem are in good working conditionand functioningas intended),and other facilities,such as electricalservice,facilitiesnecessary to perform the Services.The inspection shall be conducted to confirm that the Property meets the criteriafor City Maintenance pursuant to the PAA and to establish a baseline with respect to the conditionof the Property.The City may take videos or photographs of landscaping and irrigationequipment during thisinspectionand may retain these visual records.
ADDITIONAL CfTY OBLIGATIONS4.
In additionto the duty to perform Maintenance;
Irrigation System Management,
and/or replace any electrical,drainage, or irrigationequipment and any tree,bush, shrub, ground cover or other plant materialon the Propertythat requiresrepair or replacement during the Term at itssole cost and expense.
(a) City or itscontractorshallpromptly repair,maintain. (b) Damage to Association Property. City its contractor shall as soon as reasonably practicablerepairor replace any Association Property that is damaged or destroyed by City or its contractor whileprovidingthe Services.
City agrees to pay the Associationfunds addressing past maintenance to the EligibleProperties (maintenance thatoccurred between March 1, 2002 and the EffectiveDate) in a schedule that shallbe added at a laterdate an incorporated herein wthin Exhibit D (Compensation Schedule).
(c) Reimbursement.
WATER QUALITY & WATER CONSERVATION
NPDES Obligations. City shall reasonably comply with any and all obligationsand 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 CaliforniaRegional Water Quality Control Board. Santa Ana Region (‘Regional Board"), under the National Pollutant Discharge EliminationSystem (NPDES) permit system.
Water Quality-Limited Watersheds. Association shall reasonably cooperate with City with respectto compliance withany regulatorydirectiveby theRegionalBoard ortheStateWater Resources ControlBoard ("StateBoard")pertainingtothe Property.City’sobligationto perform Maintenance shall be deemed modified to the extentnecessary to conform to ary directiveor orderfrom the StateBoard, Regional Board, or otheragency withjurisdictionover the Property.
Water Conservation. Association and itsagents and contractors shallreasonably cooperate with City with respect to any water conservation measure adopted by the City Council or other governmentalagencywithjurl^icdonovertheProperty.
INDEMNIFICATION AND INSURANCE
5. (a)
(b)
i
(C)
6. City shall,assuming Associationis not in defaultwith 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,liabiitty,loss,injury,cost attorney fees or expense that arises out of,or isinany way relatedto,any act oromissionofCityin 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 theCity isobligatedto defend pursuant to thisAgreement. City'sobligationspursuant to this Agreement shal not apply to damages, claims, injuries,liability,losses,costs,attorney fee$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 fulldiscretionto select counsel, e xperts or other professionalsto represent or advise itand the Association as wells as its (a) Indemnification.
8-18
Property Maintenance Agreement
officers,agents, employees and members with respect to any litigationor any action relatedto the litigation.
In addition to its indemnificationobligationsin Subsection (a),the City of Newport Beach shall maintain throughout the term of this Agreement commercial general liability insurance coverage includingowned, non-owned and hired vehicle insurance in an amount, and with the selfinsuranceretentions,as the CityCouncildetermines to be inthe City’sbest interestsgiven then current market conditions.CHy shall provide Associationwith appropriate Certificatesevidencing compliance with this Section and shall use itsbest efforts to add the Association as an additional insuredon any such policyprovidedthe Citywould incur no additional cost to do so or Association reimburses the cost.
(b) Insurance.
ADMINISTRATION7.
This Agreement willbe administerec by the Director of theCity'sGeneral ServicesDepartment (Director).The Directorshallbe considered the ProjectAdministratorand shallhave the authority to act forCity pursuant to this Agreement. The Project Administrator or his/herauthorized representative shall represent City in allmatters pertainingto the Maintenance. The ProjectAdministrators address, phone number, facsimile number and e- mail address are set forthin Section 9 of thisAgreement. City agrees thateach time the ProjectAdministrator changes, itwillpromptly notifyAssociationof such change, and provideAssociationwith the address, phone number, facsimile number and e-mail address of the new ProjectAdministratorat the time of notificotionof change.
TERMINATION8.
(a) Notice. In the event either party failsor refuses to perform any of the provisions m this Agreement, that partyshallbe deemed to be in defaultinthe performance of thisAgreement. The party not in defaultmay terminate thisAgreement if,withinten (10)days afternotice ofdefault,the partyin default has not cured the default, or if more than ten (10) days are reasonably required to cure the default the party in defaulthas failedto give adequate assurance of due performance withinten (10) days afterreceipt of writtennotice of default,specifying the nature of such default and the steps necessary to cure such default.
Restoration Following Termination. Upon terminationof this Agreement by eitherparty.
Cityagrees to restoretne Propertyto the conditionthatexistedupon the date of the Cit/s inspectionas describedinSubsection3(d) ofthisAgreement The restorationof the Property shallbe completed as quicklyas reasonably practicable,but inno event more than ninety(90)days followingtermination./\ny damage or injuryto Associationproperty,facilities,landscapingor hardscap>ethatisproxmately caused by the City during the restoraton process, or as a resultof any delay in the restorationprocess (for example, plant materialdying as a resultof any irrigation,drainage, or electricalequipment being inoperativedunng the restoration)shallbe repairedor replaced by City.
Survival of Obligations. The commitments and obligationsof the City thatare specifiedin Sections 4(b), 6(a),6(c)and 15 shallsurvivethe terminationof thisAgreement. (b)
(c)
9. NOTICES
All notices, demands, requests or approvals to be given under this Agreement shallbe given in writingand conclusively shall be deemed served when delivered personallyor on the thirdbusiness day alterthe deposit thereofin the United States mail,postage prepaid,firstclass mail, addressed as set forth below or as changed by eitherParty with writtennotice to the otner Parly inthe manner specifiedin thisSection All notices, demands, requests or approvals from Association to City shall be addressed to City,attention “General Services Director" at:
8-19
Property MaintenarKe Agreement
City of Newport Beach
3300 Newport Boulevard
P. O. 00x1768
Newport Beach. CA 92658-8915
Attn: Director of General Services
Phone: (949) 644-3055
(949)650-0747
[email protected]
Fax:
E-Mail:
All notices,demands, requests or approvalsfrom Cityto Association shall be addressed to Associaton, attention'PropertyManager" at:
Newport Coast Community Association
c/o Ment PropertyManagement
25910 Acero Street, Second Floor
Mission Viejo,CA 92691
Attn. Melodie LaMont
Phone: (949)465-5210
Fax:
E-Mail: [email protected]
(949) 595-2304
10. WAIVER
The waiver by City or Association of any breach of thisAgreement by the other shallnot be deemed to be a waiver of any term,covenant, or conditionor any subsequent breacn
11. PARTIAL INVALIDITY
Ifany term or provisionof thisAgreement isdeclared invalidor unenforceable,the remainder of thisAgreement shall not be affected
12. GOVERNING LAW
I
The laws of the Stateof Californiashallgovern the enforcement and interpretationof ths Agreement. Neither City'sexecutionof thisAgreement nor any consent or approvalgiven by Citypursuant to thisAgreement shall ^ect City'spowers and dutiesas a governmental entity.
13. ENTIRE AGREEMENT: MODIFICATION
I
This Agreement contains the entireunderstanding between the Parties relativeto the subjectmatter. No verbal agreement or implied covenant shall be held to vary the provisionsof thisAgreement. Each Partyhas reliedon itsown examination of thisAgreement, the counsel of itsown advisors, and the warranties, representatiore, and covenants inthisAgreement. The failureor refusalof eitherPartyto read thisAgreement or otherdocuments or to obtain legalor other advice relevantto thisAgreement constHutes a waiver of any objection,contention, or daim that might have been based on such reading, inspection,or advice. No provision of thisAgreement may be amended or varied except by an agreement inwritingsigned by the Partiesor theirrespectiveSuccessors.
14. HEADINGS
The headings and captions of the various sectionsof thisAgreement are forconvenience and ease of reference only and do not define,limit,augment, or describe the scope, content,or intentof thisAgreement. 8-20
Property Maintenance Agreement
15. ATTORNEY’S FEES AND COSTS
Should litigationbecome necessary in order to enforce one or more of the terms, conditionsand/or provisionsof thisAg'-eement or with respect to any issue arisingout of this/Agreement,the prevailing partyshallbe entitled to recovery reasonable attorney’sfees and costs.
IN V/ITNESS WHEREOF, the Parties have caused thisAgreement to be executed on the day and year first written above.
CITY OF NEWPORT BEACH
A Municipal Corporation
HomerBludauyCityManager
APPROVED#S TO FORM:
ByBy:
!bber1Burnham, CityAttorney
NEWPORT^OAST COMMUNITY ASSOCIATION
int of the Association Board
8-21
Property Mamterrance Agreement
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-definededge adjacentto walks, curbs,and paved areas,
b. A four(4)inch to six(6)inchbare dirtclearanceshal be maintained around the circumference ofalltrees,signs,and adjacentbuildings,
c Trim ground cover over (our (4) inches in haght at 45' angle. Ground cover should be hand- pruned and should be softinappearance as opposed to hedged.
Fertilization.
A minimum of four (4)times per year (or as needed) per recommendations of soilsreport,using a balanced fertilizerwith Iron or an approved equal program to maintain an attractive,balanced appearance of continualgrowth.
Aerification:
Aerate ground cover areas as requiredto alleviatecompaction and improve water penetration.
Hard Pruning or Mowing:
As directedby Owner's Representative,the contractormay be requiredto mow or hard prune down the heightof the ground cover toapproximatelyone third(1/3)itsheightinthe earlyspring.
Watering,
a. /Ml ground cover areas shallbe uniformlyirrigatedto insure consistent growth and plant coverage,
b. Contractor shallschedule water applicationto produce a deep rooted ground cover using repeat cycles fordeep watering and allowingsoilto dry between waterings(depending on plantvariety) without overwatering
1. 2.
3 4.
5. 6. Weed, Pest and Disease Control;
Contractor shallmaintain a weed, pest,and disease freeground cover and apply allnecessary treatments as required.
a.
B. Shrubs
1. Pruning:
Pruning of shrubs willfallintoone of the followingcategories; Natural Shape - The intentisto emphasize the naturalform of the shrub. Initially“pinchprune" to develop structure,allowingthe individualcharacteristicsof the species to develop.
NaturalHedge - The intentisto develop a loose, informalappearing hedge which requiresonly minimal attentionto keep inshape and size.Initially"pinchprune”todevelop structure,allowing to fillsolidhorizontally.
Formal Hedge - Itis the intentof these shrubs to have straight,crisp edges, initial“pinch pruning’willencourage the shrubs to fillin.
All shrubs shall be pruned as required for safety, removal of broken or diseased branches, general containment or appearance.
Pruning at the correct time of the year is essentialto maximize flowering potential. After flowering,remove any spent blossoms or flowerstalks.
Change in pruning stylewithin thecontractshallbe reviewed and agreed upon by Contractor, Owner and Owner’s Representative priorto commencement of pruning. a.
b.
c.
d.
8-22
Property Maintenance Agreement
2 Fertilization:
a Fertilizeallshrubs a minimum of four (4)times per year(oras needed) per recommendations of soilsreport using a balanced fertilizerwith Iron or an approved equal program to maintain an attractive,balanced appearance of continualgrowth,
b. Contractor shallbe responsible to apply allmaterialsrequiredto correctmineraldeficiencies affectingplantgrowth. Due to area soilconditions,supplemental feedingof iron may be requiredto prevent chlorosis.
Weed, Pest, and Disease Control:
a Contractor shall maintain a weed, pest, and disease free shrub-bed at alltimes and apply al necessary treatmentsas required,
b. All shrub areas not underplanted with ground cover willbe raked dean a minimum of once per month or as required. Beds with mulch or bark shallbe cleaned by using a blower or other means to remove debris.
3. 4. Watering;
a. Allshrub areas shallbe uniformlyirrigatedto insureconsistentgrowth and plantcoverage, b Contractor shallschedule water applicationto produce a deep rooted ground cover using repeat cydes fordeep watering and allowing soilto dry between waterings(dependingon plantvariety) without overwatering
C. Vines
Paining:
a V^es and espalierplantsshallbe checked and re-tiedas required, b Do not use nailsto secure vines on masonry walls,
c. Prune allvines usingaccepted horticulturalpractices, d Vines shallbe pruned and maintained sc not toobstructfixtures,signs,windows, etc. e. Pruning at the correcttime of year isessentialto maximize floweringpotential.Afterflowering, remove any spent blossoms or flowerstalks.
Fertilization;
Fertilizeallvines a minimum of four (4)times per year (oras needed) per recommendationsofsoils reportusing a balanced fertilizerwith Ironor an approved equal program to maintainan attractive, balanced appearance of continualgrowth.
Watering;
a. Allvines shallbe uniformlyirrigatedto insureconsistentgrowth and plantcoverage b. Contractor shallschedde water applicationto produce a deep rootedground cover using repeat cyclesfordeep wateringand allowingsoiltodrybetween waterings(depending on plantvariety) without overwateraig
Weed, Pest, and Disease Control;
a. Contractor shallmaintain a weed, pest,and disease free vine-bed at ailtimes and apply all necessary treatmentsas required,
b. Allvineplanterareas notunderplantedwithground cover willbe raked clean a minimum of once per month or as required.Beds withmulch or bark shallbe cleaned by using a blower or other means to remove debris.
1. 2.
3. 4.
D. T rees
1. No treework shallbe done withoi4 priorwrittenapprovaland directionfrom Owner's Representative.
All tree work shall be undertaken under the direction and supervisionofa certifiedarborist
2. All trees shall bo maintained in a heahhy, vigorous growingcorrditionatalltimes Alltreesshallbe allowed to grow inand to theirnaturalgeneticform and size. 8-23
Property MairttenanceAgreermrU
Pruning: Under thisspecificationpruning is limitedto thatwhich may be done from the ground or fifteen(15)footwithinthe tree,includingremoval of dead, diseased, crowded, weakly attached, low- vigorbranches and water spots from a tree’scrown or forsafety.Trees should be pruned toallowfor the necessary clearances for pedestrians and vehicle circulation.Allbranches overhanging the curb lineon roadways shallhave fourteen (14) foot clearance,and parkingareas and walkways eight(8) foot clearance.
3,
Under no circumstances shallstrippingof lower branches (“raisingup") of young trees be permitted. Lower branches can be cut off only afterthe tree is able to stand erect without staking or other support
Pruning shallbe done by those experienced and skilledinpruningtechniques.Allcutsshallbe done using proper horticulturalpracticesand in accordance with the I. S. A. Standards of Pruning.
All other tree pruning over fifteen(15) feet,such as annual thinning willbe done under a separate contract. Such “Extra" treework shallbe done onlyby a professionalI.S. A. Certified Arborist.A sample tree shallbe pruned and approved before work is started.
Tree stakes ties,and guys shallbe checked and correctedas needed. Ties willbe adjusted to prevent girdling.Girdlingis unacceptable and the Contractormay be held responsiblefor tree replacement at no additionalcost to the Association. Remove stakes, tiesand guys when no longer needed. Materialfornew treestakes and guys willbe considered extra work.
All new trees shall be staked to allow movement (at least6 inches) by wind. Stakes shallbe removed as soon as treesare deemed sturdyenough. Any treerequiringstakingformore than 12 nwnths afterinstallationshallbe broughtto the attentionof the Owner’s Representative for review and consideration.
a
b.
c.
4. i
5. Apply all chemical controls,such as insecticides,as required to control or prevent pests and diseases.
6. Fertilizealltrees 3 times per year inspring,summer and fall,(oras needed) per recommendations of soils report,using a balanced fertilizerwith Iron or an approved equal program to maintain an attractive,balanced appearance of continualgrowth. Deep rootfeedingor foliarapplicationmay be required. Palm trees shall be fertilizedwith ‘Palm Special" fertilizer,per manufacturers recommended artes,inspring,sumnxjr and fall.
Surface roots in turfup to three (3) inches in diameter which become maintenance or appearance problems willbe 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 instabilityof the tree. Such conditions that are inherited to the contract will be an exception.
7. 8.
E. Fertilizationof California native plants
1. Californianativeplants,includingtrees,shrubs and ground cover,shouldbe fertilizedtwice peryear inearlyfalland earlyspring.Apply Osmocote 18-6-12inearlyOctober athalfthe recommended labelrate Apply an alternateslow-releaseproductwithlow phosphorus and lessthan 1% iron,In earlyMarch at halfthe recommended label rate.TurtSupreme 16-6-8may be used athalf ratefor the springfeeding. Do not use Osmocote inthe spring,as itreleases too quickly.
I
8-24
Property Maintenance Agreement
CALIFORNIA NATIVE SLOPES
1 Visualreviewofneed fortrashremovalweekly. Trash removal as needed and as directedby the General ServicesDirectororhisdesignee.
2, Pruning,plantreplacement,and irrigationas needed and as directedby theGeneral ServicesDirector or hisdesignee inordertoretainthe same aestheticsand levelofvegetativecover as originallyintended with the development approvals.
3. Remove non-nativespecies and replantas necessary.
8-25
Properly Maintenarce Agreement
Page It of IS
EXHIBIT B
Properly Map *
^ NewportRidg^MctaRidg*Araat^ PAAEligMtPropanw*
* The PropertyMaps on these two pages are forillustrativepurposes only. Only eligibleproperties (asdefined)thatare owned or controlledby theNewport Coast Community Association are subjectto thisPropertyMaintenance Agreement. Propertiesowned or controlledby other entitiesyet depicted on these Maps are notincludedwithinthisPropertyMaintenance Agreement. 8-26
PropertyMaintenatKe Agreerrtent
EXHIBIT B (cont’d)
Property Map *
8-27
PropertyMaintenance Agreement
EXHIBIT C
Pre-Annexation Agreement (Section14)
14. PROPERTY MAINTENANCE.
The purpose and intentof thisSection is to allowfor City(a) Intent/Public Purpose, maintenance of certainparkways, medians, naturalslopes, and fuel modification zones in the Newport Coast in accordance with qualitystandards in effect as of the Effective Date.
The Partiesagree thatproper maintenance of parkways, medians, naturalslopes,and fuel modificationzones and the rightto protector enhance habitat serves a valuable public purpose. The Parties intend that the City’sobligationto maintain parkways, medians, natural slopes and fuel modifcation zones is contingent upon a request by the property owner and execution of an agreement that,among otherthings,fullyprotectsthe Cityfrom any liabilityrelatedto itsmaintenance unless the damage is proximatelycaused by the Cit/s activenegligence. The Partiesacknowledge thatCity’smaintenance obligationsdo not extend to any landscaping,irrigation,or lightinginor around the entrance pavilions orto any landscaped area withinany community - such as privateparks,privateparkways, or privatemedians on streetsbehind gates.
Section Definitions.For purposes of thisSection,the terms:
"Association" shall mean a residential homeowners’ association or residential community associationwithintheboundariesofthe Property. "Fuel modificationzone" shallmean a slope owned Dy an Association that Isadjacent to, and generallybelow, residentialparcels and that has been planted with fire- resistantvegetationtopreventor inhibitfre damage to structures. "Natural slope" shall mean a slope owned by an Association that has not been improved or containsprimarilynativevegetation,and is generallyadjacent to and below a fuel modification zone.
“Maintain" or “Maintenance" shall mean, in the context of natural slopes, parkways, medians, and fuel modification zones, the irrigation,maintwiance of irrigation equipment, fertlization,general care and replacement of plant material,and the maintenance of electricaland lightingequipment as applicable. “Median" shallmean the area in the center of a public street. “Parkway" shallmean the area between a publicsidewalkand the sheet curb. “Propertyowner" shallmean an Associationwithin theProperly. Itshallnot mean a government, educational,or commercial venturesuch as a school,hotel,timeshare operator,golfcourse, land development company, or retail center.
General Obligations.Cityshall,during the term of thisAgreement, have the obligationto maintainand pay forthe costsofsuch maintenance:
(i) Medians and parkways along publicstreets,
(ii)Naturalslopes or fuelmodificationzones ifand when the propertyowner fullysatisfies the conditionsspecifiedin Subsection (d). Cityshallobtainany permit necessary to conduct any maintenance on any naturalslopethatiswithin the Natural Communities Conservation Plan In no event shallthe Citybe liablefor any slope failureor slope subsidence in any fuel modificationzone unless the failure or subsidence is proximatelycaused by the activenegligenceorwillfulconduct of the City.
City or itscontractorshall maintain allmedians and parkways, and to the extent the propertyowner satisfiesthe conditionsspecifiedin Subsection(d),the naturalslopes,fuel modificationzones, and open space cedicationsand facilities,in a manner that equals or exceeds the m aintenance standards for e ach a rea o rfacilitywhich isin p lace as of the EffectiveDate. Cityshallnot be liableforany loss,claim or damage proximately caused by irrigationof a fuel modificaton zone thatis consistentwith the time and extent of irrigation (b)
(i)
(ii)
(Hi)
(iv)
(v)
(Vi)
(vii)
(c)
I
8-28
Property MairUenance Agreement
occurringas of the EffectiveDate
(d) Condftions ot City Obligation Regarding Natural $ ooes arxtFuel ModificationZones. City’s obligation to maintain any fuel modification zone or natural slope is contingent on satisfactionof ailof the following conditions:
(i) Written Request. An Association in existence as of the EffectiveDate has, within nine (9) months afterthe EffectiveDate, served City with a writtenrequest to maintainallor a portion of thefuelmodificationzone and/or natural slope;or, for those Associations not in existence as of the Effect ve Date, the Association shall, within nine (9)months of formation,have served the City with a writtenrequest to maintain allor a portion of the fuel modificationzone and/or natural slope within that Association’s boundaries
(ii) Maintenance Agreement. The prooertyowner has executed a writtenagreement (■Maintenance Agreemenr), approved as to form and content by the City Attorney, that specificallyauthorizes City to enter the property to perfomn the maintenance defin^inSubsection(b)ofthisSection,specifiesthe level of maintenance, and authorizes City use of any facilitiesnecessary 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 limitedto water ano other necessary utilityservices. The Maintenance Agreement shallconfirm thatthe City isnot liableforany loss,claim or damage, includingslope subsidence or failure,unless proximately caused by the negligence or willfulact of the City or itsofficers,employees, or agents. The Maintenance Agreement shallalso require the property owner to fullycooperate with City and itsofficers,agents, members, employees and contractors with respect to maintenance of the property,
(iii)MaterialDefault. The property owner is not in material default pursuant to the terms and conditionsof the Maintenance Agreement described inSubdivision(S).
Mao. Cityand the Committee shall,withinnine (9)months afterthe EffectiveDate prepare the maps of the fuelmodificationzones and naturalslopes. The maps are forinformation and the failureof a map to depictpropertythatotherwise qualifiesas a fuelmodification zoneornaturalslopeshallnotaffecttheCi^smaintenanceobligations. 1 1
(e)
8-29
PropertyMaintenance Agreement
Pago 15 of 16
EXHIBIT D
Compensation Schedule
(PeriodofMarch 1,2002 through EffectiveDate)
Schedule to be added.
8-30
EXHIBIT B
Scope of Services
8-31
EXHIBIT B
Scope of Services
MAINTENANCE SCHEDULEI.
With the exception ofthe work provided inSection II.A.1below, which iscompleted on a weekly basis, the City and Contractor’s performance obligations are based on regularly set intervalsand schedules set forth in the attached map. The Association may request additionalmaintenance outside the regularlyset intervals and schedules which shallbe paid for by the Association and reimbursed to the City. In the event the schedule isadjusted,the Cityshall provide the Association with advanced writtennotice. In no event shallany adjustment in the schedule resultin greater than three-month rotationof each area.
EVERGREEN SLOPES, PARKWAYS, AND MEDIANS
A. Ground cover
1. Mowing Edging and Trimming;
Allturfismowed once per week.a.
b. Maintain a neat, well-defined edge adjacent to walks, curbs, and paved areas.
A four (4) inch to six (6)inch bare dirtclearance shall be maintained around the circumference of alltrees,signs,and adjacent buildings.
Trim ground cover over four(4) inches inheightat 45° angle. Ground cover should be hand pruned and should be soft in appearance as opposed to hedged.
c.
d.
2. Fertilization;
Fertilizationshalloccur at leastfour (4) times per calendar year based on the Maintenance Schedule below or per recommendations of soils report,using a balanced fertilizerwith Ironor an approved equal program to maintain an attractive,balanced appearance of continualgrowth.
3. Aerification;
At leastonce each calendar year, aerate ground cover areas to alleviate compaction and improve water penetration.
4. Hard Pruning;
Once each calendar year based on the Maintenance Schedule below, ground cover shallbe hard pruned to approximately one 8-32
third(1/3)of itsheightinthe earlyspring.
5. Watering:
a. All ground cover areas shall be uniformly irrigatedto ensure consistentgrowth and plantcoverage,
b. Each calendar month, it shall be determined based on weather conditions,whether water applicationisnecessary to produce a deep- rooted ground cover and, ifso, repeat cyclesfordeep watering shall be implemented, allowingsoilto dry between waterings(depending on plantvariety)withoutoverwatering.
6. Weed, Pest and Disease Control;Each month. City shall inspect the EligiblePropertytoensure thatweed, pest,and disease-freeground cover is being maintained and based on the Maintenance Schedule below shall take actionas necessary to apply allnecessary treatments as required.
B. Shrubs
1. Pruning: Pruning of shrubs willfallintoone of the followingcategories; a. Natural Shape - The intentis to emphasize the naturalform of the shrub. Initially"pinch prune" to develop structure,allowing the individualcharacteristicsof the species todevelop,
b. Natural Hedge - The intentisto develop a loose, informalappearing hedge which requires only minimal attentionto keep in shape and size. Initially"pinch prune" to develop structure,allowing to fillsolid horizontally.
Formal Hedge - Itisthe intentof these shrubs to have straight,crisp edges. Initial"pinchpruning"willencourage the shrubs to fillin.
Allshrubs shallbe pruned inaccordance with InternationalSociety of Arboriculture(ISA) standards.
2. Fertilization:
a. Fertilizeallshrubs a minimum of four(4)times per year at intervals determined by the Maintenance Schedule below or per
recommendations of soilsreportusing a balanced fertilizerwith iron or an approved equal program to maintain an attractive,balanced appearance of continualgrowth,
b. Contractor shallbe responsibleforapplying allmaterials required to correctmineral deficienciesaffectingplantgrowth. Due to area soil 8-33
conditions,supplemental feeding of iron may be required to prevent chlorosis.
3. Weed, Pest, and Disease Control:
Contractor shallreasonably maintain a weed, pest, and disease-free shrub-bed and apply allnecessary treatments as required during its regularlyscheduled maintenance.
a.
b. All shrub areas not underplanted with ground cover will be raked clean a minimum of once per month or during itsregularlyscheduled maintenance. Beds with mulch or bark shall be cleaned by using a blower or other means to remove debris.
4. Watering;
All shrub areas shall be uniformly irrigatedto ensure consistent growth and plant coverage.
a.
b. Contractor shall schedule water application intended to produce a deep-rooted ground cover using repeat cycles for deep watering and allowing soilto dry between waterings (depending on plant variety) without overwatering.
C. Vines
1. Pruning;
Vines and espalier plants shall be checked and re-tied during regularlyscheduled maintenance intervals.
Do not use nailsto secure vines on masonry walls.
Prune allvines using accepted horticulturalpractices.
a.
b.
c.
d. Vines shall be pruned and maintained so not to obstruct fixtures, signs, windows, etc.
e. Pruning at the correct time of year isessentialto maximize flowering potential.Afterflowering,remove any spent blossoms or flower stalks during regularlyscheduled maintenance intervals.
2. Fertilization: Fertilize all vines a minimum of four (4) times per year based on the Maintenance Schedule below or per recommendations of soils report using a balanced fertilizerwith ironor an approved equal program to maintain an attractive,balanced appearance of continualgrowth. 8-34
3. Watering;
a. All vines shallbe uniformly irrigatedto ensure consistent growth and plant coverage,
b. Contractorshallschedule water applicationto produce a deep-rooted ground cover using repeat cyclesfordeep 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 based on the Maintenance Schedule 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 shallbe cleaned by using a blower or other means to remove debris.
D. Trees
1. Tree work, including but not limited to maintenance, removal and replacement, shallbe agreed upon based upon the Cityand Association’s monthly walkthroughs and writtenfollow-up directiveprovided in Section 8(a) of the FirstAmendment. Alltree work shall be undertaken under the directionand supervision of a certifiedarborist.
2. All trees shallbe maintained in a healthy, vigorous growing condition.All trees shallbe allowed to grow inand to theirnaturalgenetic form and size.
Tree spacing shallcomply with the InternationalSociety of Arboricultural standards.
3. Pruning: Under thisspecificationpruning is limitedto that which may be done from the ground or fifteen(15) footwithinthe tree,includingremoval of dead, diseased, crowded, weakly attached, low- vigor branches and water spots from a tree'scrown or forsafety.Trees should be pruned to allow forthe necessary clearances forpedestrians and vehicle circulation.
All branches overhanging the curb lineon roadways shall have fourteen (14) foot clearance, and parking areas and walkways eight (8) foot clearance.
a. Lower branches can be cut offonly afterthe tree is able to stand erect without staking or other support.
8-35
b. Pruning shall be done by those experienced and skilledin pruning techniques. Allcuts shallbe done using proper horticulturalpractices and inaccordance with the I.S. A. Standards of Pruning, c. Allother tree pruning over fifteen(15) feet,such as annual thinning willbe done under a separate contract.Such "Extra" tree work shall be done only by a professional I.S. A. Certified Arborist.A sample tree shallbe pruned and approved before work isstarted.
4. Tree stakes, ties,and guying shallbe checked and corrected as needed.
Ties willbe adjusted to prevent girdling.Girdlingis 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.
5. All new trees shallbe staked to allow movement (atleast6 inches) by wind.
Stakes shall be removed as soon as trees are deemed sturdy enough. Any tree requiringstaking for more than twelve (12) months after installation shall be brought to the attention of the Parties representatives during monthly walkthroughs forreview and consideration.
6. Apply allchemical controls,such as insecticides,as required to control or prevent pests and diseases.
7. Fertilizealltrees three (3)times per year in spring,summer and fall,(or as needed) per recommendations of soilsreport,using a balanced fertilizer with ironor an approved equal program to maintain an attractive,balanced appearance of continualgrowth. Deep rootfeeding or foliarapplicationmay be required.Palm trees shallbe fertilizedwith "Palm Special" fertilizer,per manufacturers recommended rates,in spring,summer and fall.
8. Surface roots in turfup 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 instabilityof the tree.
9. Tree Replacement. For the corner locations at the intersectionsof Newport Coast Drive/Ocean Ridge Drive and Newport Coast DriveA/ista Ridge Road, the City’s future obligation to replace any mature Phoenix Canadensis or Phoenix Dactyliferashallbe likeforlikewith respect to size, however, the cost cap per tree shallnot exceed $40,000. Notwithstanding the foregoing, the Phoenix Canadensis or Phoenix Dactyliferamay be replaced with alternativespecies, mutually agreed to by the Parties,inthe event the species are infected by incurable disease, or invasive insects.
Additionally,the City’sfuture obligation to replace any trees in allother locationsshallbe no largerthan a 48-inch box.
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E. Fertilization of California Native Plants; California native plants,including trees,shrubs and ground cover, should be fertilizedtwice per year inearlyfall and earlyspring.Apply fertilizerin early October at half the recommended labelrate.Apply an alternateslow-release product with low phosphorus and less than 1% iron,in early March at halfthe recommended label rate. Turf Supreme 16-6-8may be used at halfrateforthe springfeeding. Do not use Osmocote inthe spring,as itreleasestoo quickly.
CALIFORNIA NATIVE SLOPES
Visual review of need for trash removal within the City’s established Maintenance Schedule. Trash removal as needed based on the Contractor’sregularlyscheduled work on the EligibleProperty and as directedby the PublicWorks Directoror his/herdesignee.
Pruning, plant replacement, and irrigationas needed based on the Contractor’sregularlyscheduled work on the Propertyand as directed by the PublicWorks Directoror his/herdesignee to retainthe same aesthetics and levelof vegetativecover as originallyintended with the development approvals.
Remove non-nativespecies and replantas necessary.
For purposes of thisFirstAmendment, “nativeslope” is defined as an area of undeveloped terrainwithina master planned community that maintains itsoriginaltopography and vegetation, but is either:excluded from fuel modification requirements due to itsdistance from structures or lack of wildfireexposure, or Assessed by the AuthorityHaving Jurisdiction(AHJ) and determined to pose minimal wildfirerisk,based on factors such as slope gradient,aspect,vegetationtype,and topographic isolation.
1. 2.
3. 4.
IV. V-DITCHES
The City shallmaintain the V-Ditches within itsmaintenance obligationareas on not less than a quarterlybasis and shallmaintain records of completion of debris removal which may be requested atthe monthly walkthroughs and provided within reasonable timeframes.
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EXHIBIT C
Eligible Property - Property Map
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EXHIBIT C-1
Geospatial Coordinates - of EligibleProperty
TO BE INSERTED]
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