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HomeMy WebLinkAbout08 - Amended and Restated Property Maintenance Agreement with Newport Coast Community AssociationQ �EwPpRT CITY OF s NEWPORT BEACH `q44:09 City Council Staff Report November 4, 2025 Agenda Item No. 8 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David A. Webb, Public Works Director - 949-644-3311, dawebb@newportbeachca.gov PREPARED BY: Kevin Pekar, Parks & Trees Superintendent - 949-644-3069, kpekar@newportbeachca.gov TITLE: Approval of Amended and Restated Property Maintenance Agreement with Newport Coast Community Association ABSTRACT: The City of Newport Beach (City) maintains certain landscaped slopes, medians, entry nodes and roadsides in Newport Coast through a Property Maintenance Agreement, which was entered into in 2003 between the City and the Newport Coast Community Association (NCCA). Following many years of disputes between the parties regarding responsibility for certain tree and landscape area maintenance, a lawsuit was filed against the City by the NCCA in January 2024. As part of the Settlement Agreement of the lawsuit, the parties agreed to amend the 2003 Maintenance Agreement to clarify and better define all areas of disputed maintenance obligations. Staff recommends approval of the first Amendment to the Property Maintenance Agreement with the NCCA. RECOMMENDATIONS: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Approve Amended and Restated Property Maintenance Agreement between the City of Newport Beach and the Newport Coast Community Association. DISCUSSION: Annexation of the Newport Coast area into the City occurred January 1, 2002, by way of the Newport Coast Pre -Annexation Agreement (PAA). Through the PAA, the City agreed to maintain certain eligible properties in the areas commonly known as Newport Coast and/or Newport Ridge. On December 9, 2003, the City and the NCCA entered into a Property Maintenance Agreement (Agreement) which set forth the terms and conditions of the City's maintenance obligations. Under the Agreement, the City's maintenance obligations includes, but is not limited to, general landscaping (such as removal of leaves, weeds, trash, and other debris from landscaped areas and disposed of off -site), 8-1 Approval of first Amended Property Maintenance Agreement with the Newport Coast Community Association November 4, 2025 Page 2 maintenance/repairs and adjustments of irrigation system, mowing, edging and fertilization of turf areas; trimming and fertilization of groundcovers, shrubs and trees; as needed weeding, pest treatments, and as needed California native slope maintenance. Also, under the Agreement, the City pays the water and electric bills for the City maintained areas. Throughout the years, the City has worked to ensure that specifications under the Agreement were met. Public Works staff meet monthly with landscape committee members, property managers of the NCCA and landscape contractors, where maintenance punch lists are developed and previous landscape items are checked for completion. The City's current contractors for the area's landscape and trees maintenance are Brightview Landscape Services and Great Scott Tree Services, respectively. Annual maintenance costs for Newport Coast areas covered by the agreement exceed $500,000 for Brightview and $100,000 for Great Scott. In recent years disagreements have arisen over various items of responsibility, however two particular items: 1) the responsibility of replacing several mature Canary Island Date Palms infected with Fusarium disease located on the corner and entry statements, and 2) removal of City maintained trees throughout the sloped landscape that have been deemed by NCCA consultants to be a fire threat have been the primary items of dispute. On January 26, 2024, the NCCA filed a lawsuit in Orange County Superior Court, alleging the City breached the Agreement, which the City denies. The Parties have recently conditionally settled the disputed obligations pursuant to a Settlement Agreement and Release. As part of the resolution, the City and NCCA have also agreed to an Amended Agreement to further clarify and delineate the maintenance obligations of the City. The substantive changes to the Agreement include: 1) Revised maintenance map that delineates the City is now responsible for a larger swath along Newport Coast Drive including the corner statements at Newport Coast/Ocean Ridge and Newport Coast/Vista Ridge while NCCA is now responsible for most of the area in and around Pelican Hill Road and other portions within Newport Coast; 2) The cost to the City in the future for removal and replacement of the Canary Island Date Palms at Newport Coast/Ocean Ridge and Newport Coast/Vista Ridge is capped at $40,000 per tree; 3) The City's future obligation to replace trees in all other locations shall be per the Citywide standard, but also limited to no larger than a 48-inch box; 4) Landscape enhancements are to be funded or carried out by NCCA; 5) Monthly walkthroughs between the City and NCCA are intended to serve as the means to resolve all dispute regarding the parties' compliance with the Agreement. Any disputes that are not resolved through the monthly walkthrough would be elevated for resolution through a third -party landscape expert or arborist. 8-2 Approval of first Amended Property Maintenance Agreement with the Newport Coast Community Association November 4, 2025 Page 3 FISCAL IMPACT: The City currently expends approximately $600,000 on landscape maintenance pursuant to the Agreement in the Newport Coast area. With this amendment to the Agreement, the City's tree replacement costs would increase. For example, there are 40 Canary Island Date Palms within the corner statement areas of Newport Coast/Ocean Ridge and Newport Coast/Vista Ridge that the City has now agreed to replace. Ten of these trees are currently dead or in a dying state. The cost to address these 10 trees now is covered in the separate Settlement Agreement. In the future, when replacement of any of the other Canary Island Date Palms is required, the City would cover the cost of their replacement, capped at $40,000 per tree. This increased tree replacement cost will be included within future Department operating budgets, funded by the General Fund. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENT: Attachment A — Amended and Restated Property Maintenance Agreement 8-3 ATTACHMENT A AMENDED AND RESTATED PROPERTY MAINTENANCE AGREEMENT This Amended and Restated Property Maintenance Agreement ("First Amendment"), is entered into on November 4, 2025 ("Effective Date") between the City of Newport Beach ("City") and the Newport Coast Community Association ("NCCA" or "Association") (individually "Party" or collectively "Parties") and is made with reference to the following: RECITALS A. City is a charter city with the powers and authority provided in the Newport Beach City Charter and the Constitution and laws of the State of California. For purposes of this First Amendment, the term City includes the employees, officers, representatives, agents or contractors of the City. B. Association is a Common Interest Development formed pursuant to California Civil Code section 1350 et seq. C. City, pursuant to a Pre -Annexation Agreement ("PAK) with the Newport Coast Committee of 2000, agreed to maintain the landscaping of certain areas/properties ("Eligible Property(ies)") in the areas commonly known as Newport Coast and/or Newport Ridge ("Annexed Area"). D. On December 9, 2003, the Parties entered into the Property Maintenance Agreement ("Agreement" or "PMA"), attached hereto as Exhibit A, which set forth the terms and conditions of the City's maintenance obligations. Unless otherwise specifically amended herein, the Agreement remains in effect. E. On January 26, 2024, Association filed a lawsuit in Orange County Superior Court, Case No. 30-2024-01375558-CU-BC-CJC, alleging the City breached the Agreement, which the City denies ("Action"). The Parties have conditionally settled the action pursuant to a Settlement Agreement and Release. F. Notwithstanding the foregoing, as part of the resolution of the Action, the City and Association agreed to enter this First Amendment to further delineate the maintenance obligations of the City under the Agreement. NOW, THEREFORE, the Parties agree as follows: 1. TERM. (a) Effective Date. The initial term of this First Amendment (Initial Term) shall be four (4) years commencing on the Effective Date unless this First Amendment is terminated as provided in Section 9 or Subsection (b) below. (b) Extension. The Parties agree that the term of this First Amendment shall automatically extend for periods of four (4) years (Extended Term[s]) commencing on the expiration of the Initial Term or the expiration of any M. Extended Term unless the Association serves the City with a notice of termination within thirty (30) days prior to expiration of the Initial Term or any Extended Term. 2. MAINTENANCE TO BE PERFORMED. (a) Scope. City shall at its sole cost and expense, through either its own employees or a qualified third party contractor (unless the Parties agree to reimburse NCCA for the completion of certain work after review and approval of a proposal), perform maintenance services ("Maintenance") listed, and to the standard(s) described, in the Scope of Services attached hereto as Exhibit B (Scope of Services) with respect to the Eligible Property described/depicted in Exhibit C and more particularly described in Exhibit C-1, which sets forth the geospatial coordinates. The Parties agree to confirm the above geospatial coordinates in Exhibit C-1 following the execution of this First Amendment. To the extent the geospatial coordinates cannot be confirmed and agreed upon, the Parties agree to follow the dispute resolution procedures set forth in Sections 3.d. and 6.i. of the Settlement Agreement and Release in the Action. The City shall have no obligation to maintain or perform work on any property that is not specifically described/depicted as Eligible Property in Exhibits C and/or C-1. The City, in its sole and exclusive discretion, shall have control over the means, methods, equipment, techniques, sequences or procedures used to provide the Maintenance. City may remove or alter landscaping or other objects from the Eligible Property, following approval by the Association, and after a determination by the Public Works Director that the: (a) landscaping is suffering from incurable or infectious disease; (b) landscaping or object is damaged beyond recovery or repair; or (c) the landscaping or object is inconsistent with the safe movement of pedestrians or vehicles including, without limitation, obstructions to adequate site distance along or across any roadway or sidewalk. City shall use its best efforts to install replacement landscaping that is identical to the landscaping that was removed except if this is highly impracticable. Except as specifically provided herein or in Exhibit B, the City shall install landscaping that is: (a) most similar to, including size, the landscaping removed; and (b) on the then current and approved palette of plant materials for the Association. The plant palette remains the same, with the following changes/revisions: Trees can include the following species: Quercus Virginians 'Joan Lionetti,' Metrosideros Excelsa 'New Zealand Christmas Tree,' Arbutus Marina 'Marina Strawberry Tree,' California Sycamores (only grown in natural areas not on planed slopes), Olive Trees (36-inch box or smaller), and New Zealand Christmas Tree. Trees to be removed from the current plant palette include the following species: Cypress Trees, Allepo Pine Trees, Eldarica Pine Trees, Eucalyptus Trees and Stone Pine Trees. Plants/Ground Cover can include the following species: Casuarina Glauca, Callistemon Red Rover, Coprosma Marble Queen, Coprosma Repens Taupata Gold, Agonis Flexuosa Nana, and Chrysanthemoides Incana. Plants/Ground Cover to be removed from the current plant palette include the following species: Acacia, 'Low Boy Prostrate,' and Myoporum. NCCA can provide updated plant palettes, Amended and Restated Property Maintenance Agreement Page 2 8-5 which can be modified by NCCA from time to time so long as it does not increase the costs to the City, or NCCA will have the option to pay the difference. Notwithstanding the foregoing, the City shall not be obligated to install replacement landscaping of the same species if it has been determined that the entire species is affected by the same disease, insect, or condition that caused the damage, destruction or removal of the landscaping and that the disease, insect, or condition cannot be prevented by industry standard maintenance. The intent of the Parties is that the City is obligated, to the maximum extent possible, to maintain the landscape density, design and appearance of the Eligible Property when all landscaping was in good condition. City shall consider, but not be bound by, comments submitted by the Association relative to the means, methods, or techniques used to provide Maintenance. This Section shall control the City's Maintenance obligations. Other than confirming the geospatial coordinates (to be agreed upon in Exhibit C-1) set forth above, any disputes or failures to agree between City and Association related to the Maintenance obligations set forth above shall be resolved in accordance with Section 8(b) herein. (b) Landscape Changes. The Parties understand that it may be necessary or advantageous for the Association to modify or change the landscape species (within the Eligible Property areas) for reasons related to aesthetics or for other reasons. Should the Association choose to voluntarily modify or change the landscape species and not because of being compelled to do so because of a governmental requirement, the Association shall be obligated to pay for the cost of such modifications or changes and be responsible for maintaining the particular area. If the modification or change is mandated by a government requirement, the cost of the modification or change shall be paid by the City. 3. CONDITIONS OF DUTY TO MAINTAIN The City's duty to provide Maintenance is subject to Association's full compliance with this First Amendment and the following express conditions: (a) Access. Association shall grant City the rights necessary, to provide the Maintenance including surface and subsurface access, ingress and egress and the right, at the City's sole cost and expense, to modify, or replace any faculty or equipment adjacent to, on, over or under the Eligible Property (Access). Except as provided in Subsection (b), the Association's grant of Access shall not be subject to any restriction including, without limitation, limits on the date or time of access, any obligation to provide insurance/indemnity or any limit on the size or nature of vehicles or equipment. (b) Access Conditions. The Association's grant of Access shall be subject to the conditions that: (i) the City repair or replace, to the condition prior to damage, any landscaping or facility that is damaged by City in the course of providing the Maintenance or otherwise; and (ii) except in the event of an emergency, the Amended and Restated Property Maintenance Agreement Page 3 City will comply with the Association's rules pertaining to the days and hours during which landscape maintenance may be performed. (c) Payment for Utilities. City, in its sole discretion, shall either (i) pay for and provide for the separation of any water or electrical meter or similar device if the meter or meters provide service to the Eligible Property and other properties adjacent to or nearby the Eligible Property that are controlled or maintained by the Association or its contractors; or (ii) City shall reimburse Association in an amount that is based on a formula, calculated by the City and the Association using their respective best efforts and acting in good faith that, represents the percentage of the overall cost of water and electrical service to all Association property that is attributable to the Eligible Property. Any dispute regarding the formula shall be submitted to the Neutral Arborist, as set forth in Section 8. (d) Adjacent Property. The Association shall use its best efforts to cooperate and comply with requests of the City relating to the maintenance, modification or condition of Association property or facility that is adjacent to the Eligible Property, and which is necessary for the City to fulfil its Maintenance obligations. Association agrees to indemnify and hold City harmless with respect to any damage or injury to the Eligible Property that is proximately caused by Association's failure to comply with its obligations pursuant to this Subsection. Association's duty to cooperate includes, without limitation, the obligation to maintain its property in good condition and in a manner that does not create or increase any risk of injury or damage to persons or real or personal property. (e) Inspection of Eligible Property. Association shall permit, and the City shall conduct, within thirty (30) days after the Effective Date, an inspection to document via photographs and/or video the condition of the Eligible Property. Both parties shall review the documentation and agree on the baseline condition of the Eligible Property. If the Parties cannot agree on the baseline condition, it shall be submitted to the Neutral Arborist as set forth in Section 8(b) below. 4. ADDITIONAL PARTY OBLIGATIONS In addition to the duty to perform Maintenance: (a) Irrigation System Management. The City shall, repair, maintain, and/or replace any electrical, drainage, or irrigation equipment on the Eligible Property within the Maintenance Schedule timeframes set forth in Exhibit B that requires repair or replacement during the Term at its sole cost and expense. (b) Damage to Association Property. City shall as soon as reasonably practical repair or replace any Association property that is damaged or destroyed by City while providing the Maintenance. Amended and Restated Property Maintenance Agreement Page 4 8-7 5. WATER QUALITY & WATER CONSERVATION (a) NPDES Obligations. City shall reasonably comply with any and all obligations and requirements (including applying for and obtaining any required permits) pertaining to the Eligible Property that are imposed pursuant to the Municipal Separate Storm Sewer System ("MS4") Permit issued to the City and to the County of Orange by the California Regional Water Quality Control Board, Santa Ana Region ("Regional Board"), under the National Pollutant Discharge Elimination System ("NPDES") permit system. (b) Water Quality -Limited Watersheds. Association shall reasonably cooperate with the City with respect to compliance with any regulatory directive by the Regional Board or the State Water Resources Control Board ("State Board") pertaining to the Eligible Property. The City's obligation to perform Maintenance shall be deemed modified to the extent necessary to conform to any directive or order from the State Board, Regional Board, or other agency with jurisdiction over the Eligible Property. (c) Water Conservation. Association and its agents and contractors shall reasonably cooperate with the City with respect to any water conservation measure adopted by the City Council or other governmental agency with jurisdiction over the Eligible Property. 6. INDEMNIFICATION AND INSURANCE (a) Indemnification. City shall, assuming Association is not in default with respect to its obligations pursuant to this First Amendment, defend, indemnify and hold harmless the Association, its officers, employees, agents and members with respect to any damage, claim, liability, loss, injury, cost, attorney fees or expense that arises out of, or is in any way related to, any act or omission of the City in the performance or non-performance of Maintenance pursuant to this First Amendment. Association and its officers, employees, agents and members shall reasonably cooperate with City in the defense or any claim or lawsuit the City is obligated to defend pursuant to this First Amendment. City's obligations pursuant to this First Amendment shall not apply to damages, claims, injuries, liability, losses, costs, attorney fees or expenses that are proximately caused by the sole negligence or willful act of the Association or its officers, employees, agents, representatives, or members. City shall have full discretion to select counsel, experts or other professionals to represent or advise it and the Association as well as its officers, agents, employees and members with respect to any litigation or any action related to the litigation. (b) Insurance. In addition to its indemnification obligations in Subsection (a), the City shall maintain throughout the term of this First Amendment commercial general liability insurance coverage including owned, non -owned and hired vehicle insurance in an amount, and with the self-insurance retentions, as the City Council determines to be in the City's best interests given the current Amended and Restated Property Maintenance Agreement Page 5 : market conditions. City shall provide Association with appropriate certificates evidencing compliance with this Section and shall use its best efforts to add the Association as an additional insured on any such policy provided the City would incur no additional cost to do so or Association reimburses the cost. 7. ADMINISTRATION This First Amendment will be administered by the Director of the City's Public Works Department ("Director"). The Director shall be considered the Project Administrator and shall have the authority to act for City pursuant to this First Amendment. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the Maintenance. The Project Administrator's address, phone number, facsimile number and e-mail address is set forth in Section 10 of this First Amendment. The City agrees that each time the Project Administrator changes, it will notify the Association of such change within thirty (30) days, and provide Association with the address, phone number, and e- mail address of the new Project Administrator at the time of notification of change. 8. MONTHLY WALKTHROUGHS AND DISPUTE RESOLUTION (a) Monthly Walkthroughs. The City and Association shall conduct monthly walkthroughs of the Eligible Property to inspect and assess the maintenance work performed. During each walk-through, both Parties shall document any items requiring repair, correction, or completion. Each Party shall complete the tasks identified in the monthly walk-through within one (1) month or, if the work cannot be reasonably completed within one month, a reasonable time. Notwithstanding the foregoing time frame, if any maintenance work requires urgent or immediate attention to prevent damage, preserve safety, or avoid material deterioration, the responsible Party shall take reasonable steps to address such maintenance promptly. (b) Dispute Resolution. The Parties recognize that disputes may arise as to compliance with the terms of this First Amendment. To minimize the need for further litigation over a dispute regarding the interpretation or compliance with this First Amendment, either Party may give written Notice to the other Party of a dispute in the manner set forth herein, fully describing the exact nature of the dispute ("Dispute Notice"). Within thirty (30) days after either Party sends a Dispute Notice, the Parties shall either mutually agree to a Neutral Arborist to decide/resolve the issues raised in the Dispute Notice, or if no such agreement can be reached, each Party shall designate their own arborist, and those two arborists shall select a third arborist within thirty (30) days after the initial designation, to decide/resolve the issues raised in the Dispute Notice. The Neutral Arborist shall be authorized to meet with the Parties and/or require written summaries relating to the issues raised in the Dispute Notice. The decision(s) of the Neutral Arborist as to the work that needs to be completed to comply with this First Amendment shall be binding on the Parties Amended and Restated Property Maintenance Agreement Page 6 and shall be performed by the obligated Party in a timely manner. The Neutral Arborist shall only have jurisdiction to interpret this First Amendment as it applies to work to be completed and shall not have jurisdiction to change any terms in the same. The Neutral Arborist shall serve as the Neutral Arborist for a four-year term, which may be renewed by agreement of the Parties. If the Parties cannot agree upon renewing the term of the Neutral Arborist, the Parties shall follow the procedure set forth in this paragraph to select a new Neutral Arborist. This provision is meant to be consistent with the Neutral Arborist Resolution Procedure set forth in Section 3d. of the Settlement Agreement and Release in the Action. To the extent there are any inconsistencies, the provision in the Settlement Agreement and Release shall control. The Parties agree to execute a written agreement provided by the Neutral Arborist for the payment of his/her fees and costs. The fees and costs of the Neutral Arborist shall be shared by the Parties equally. 9. TERMINATION (a) Notice. In the event either party fails or refuses to perform any of the provisions in this First Amendment, that party shall be deemed to be in default in the performance of this First Amendment. The party not in default may terminate this First Amendment if, within ten (10) days after notice of default, the party in default has not cured the default, or if more than ten (10) days are reasonably required to cure the default the party in default has failed to give adequate assurance of due performance within ten (10) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default. To the extent the City terminates this First Amendment, the Association maintains (and does not waive) any rights it may have related to PAA and associated annexation of the Newport Coast community, including without limitation, all remedies. (b) Restoration Following Termination. Upon termination of this First Amendment by either party, City agrees to restore the Eligible Property to the condition that existed upon the date of the City's inspection as described in Subsection 3(e) of this First Amendment. The restoration of the Eligible Property shall be completed as quickly as reasonably practicable, but in no event more than ninety (90) days following termination. Any damage or injury to Association property, facilities, landscaping or hardscape that is proximately caused by the City during the restoration process, or as a result of any delay in the restoration process (for example, plant material dying as a result of any irrigation, drainage, or electrical equipment being inoperative during the restoration) shall be repaired or replaced by City. Amended and Restated Property Maintenance Agreement Page 7 8-10 (c) Survival of Obligations. The commitments and obligations of the City that are specified in Sections 4(b), 6(a), 9(b), 9(c) and 16 shall survive the termination of this First Amendment. 10. NOTICES All notices, demands, requests or approvals to be given under this First Amendment shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as set forth below or as changed by either Party with written notice to the other Party in the manner specified in this Section with additional noticing, if desired by either Party, by e-mail at the e-mail addresses set forth below. All notices, demands, requests or approvals from Association to City shall be addressed to city at: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92625 Attn: City Manager Phone: (949) 644-3311 E-Mail: gleung�a newportbeachca.gov City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92625 Attn: City Attorney Phone: (949) 644-3311 E-Mail: aharp newportbeachca.gov City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92625 Attn: Director of Public Works Phone: (949) 644-3311 E-Mail: dawebb(-newportbeachca.gov All notices, demands, requests or approvals from City to Association shall be addressed to the Association, attention "Property Manager" and the following other individuals at: Newport Coast Community Association c/o First Service Residential 15241 Laguna Canyon Road Irvine, CA 92618 Attn: Holly Maddalena Phone: (949) 500-1163 Amended and Restated Property Maintenance Agreement Page 8 8-11 E-Mail: Holly.Maddelena@fsresidential.com Charles S. Krolikowski, Esq. Newmeyer & Dillion, LLP 895 Dove St., 2nd Floor Newport Beach, CA 92660 Phone: (949) 271-7233 E-Mail: Charles. Krolikowski(a)-ndIf. com Amber Y Snider 9 Veneto Newport Coast, CA 92657 Phone: (949) 355-3862 E-Mail: essays1 cox.net Gerald Klein 15 Castellina Drive Newport Coast CA 92657 and Phone: (949) 683-2009 E-Mail: gklein74 _outlook.com Jim McGee McGee & Associates 24 Corporate Plaza Drive 2nd Floor Newport Beach, CA 92660 E-Mail: limmcgee(o)mcgee-law.com Nothing herein shall require an amendment to this First Amendment to revise the names provided herein. The persons identified herein may be modified by either Party by providing prior written notification. 11. WAIVER The waiver by City or Association of any breach of this First Amendment by the other shall not be deemed to be a waiver of any term, covenant, or condition or any subsequent breach. 12. PARTIAL INVALIDITY If any term or provision of this First Amendment is declared invalid or unenforceable, the remainder of this First Amendment shall not be affected. 13. GOVERNING LAW The laws of the State of California shall govern the enforcement and interpretation Amended and Restated Property Maintenance Agreement Page 9 8-12 of this First Amendment. Neither the City's execution of this First Amendment nor any consent or approval given by the City pursuant to this First Amendment shall affect the City's powers and duties as a governmental entity. 14. ENTIRE AGREEMENT; MODIFICATION This First Amendment contains the entire understanding between the Parties relative to the subject matter. No verbal agreement or implied covenant shall be held to vary the provisions of this First Amendment. Each Party has relied on its own examination of this First Amendment, the counsel of its own advisors, and the warranties, representations, and covenants in this First Amendment. The failure or refusal of either Party to read this First Amendment or other documents or to obtain legal or other advice relevant to this First Amendment constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection, or advice. No provision of this First Amendment may be amended or varied except by an agreement in writing signed by the Parties or their respective successors and approved as to form by the City Attorney. 15. HEADINGS The headings and captions of the various sections of this First Amendment are for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content, or intent of the same. 16. ATTORNEY'S FEES AND COSTS Should litigation become necessary to enforce one or more of the terms, conditions and/or provisions of this First Amendment or with respect to any issue arising out of this First Amendment, the prevailing party shall be entitled to recover reasonable attorney's fees and costs. [SIGNATURES ON FOLLOWING PAGE] Amended and Restated Property Maintenance Agreement Page 10 8-13 IN WITNESS WHEREOF, the Parties have caused this First Amendment to be executed on the day, and year first written above. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: / 6y Z / Z S� By: C9 Aaron C. Harp , 0,2t �s City Attorney ATTEST: Date: M Lena Shumway City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Joe Stapleton Mayor NEWPORT COAST COMMUNITY ASSOCIATION, a California corporation Date: go Date: [END OF SIGNATURES] Attachments: Exhibit A - Agreement Exhibit B - Scope of Services Exhibit C - Eligible Property — Property Map Exhibit C-1 Geospatial Coordinates of Eligible Property Amended and Restated Property Maintenance Agreement Page 11 8-14 EXHIBIT A Agreement 8-15 PROPERTY MAINTENANCE AGREEMENT This Agreement (Agreement), dated this Lf day of beK , 2003 (Effective Date) between .he 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 terrn City includes the employees, officers, representatives agents or contractors of the City. B. Association s a Common interest Development formed oursuant 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 provdes 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 Citys obligation to maintain the Flirgible ProperJes is subject to certain conditions including a request from the Association (as the prooerty 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 th�s 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 Ciy Council authorized the City Manager to execute this document on behalf the City of Newport Beacri. NOW, THEREFORE, the Parties agree as follows: TERM (a) Effective Date. The initial term of this Agreement (Initial Term) shall be four (4) years commencing o n t he Effective D ate ur Mess t nis A greement i s It erminated a s p rovided i n Section 8 or extended pursuant to Subsection 1(b). (b) Extension. The Parties agree that the term o` this Agreemew shall automatically extend for periods of fou- years (Extended Term[s]) commencing on the expiration of the Initial Term or the exp ration of any Extended Terri provided that Association has not served City with a iotice 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 It i is s ole c ost and a xpense, t hrough e ither i is c wn employees o r a c ontractor, p erform s ervices listed, and to the standards) described. in Exhibit A (Maintenance) with respect to the Eligible Property described it Exhibit B (Property Map). Association wa,ra its and represents, and City is reasonably relyinc on Assoc.ation's representation, that the Maintenance is substant ally similar to the services performed by Assocation or its contractors immediately prior to the Effective Date. City shall, in its sole and exclusive discretion, have control over the mears, methods, equipmeit, techniques, sequences or procedures used to 8-16 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 sufferin, from incurable or infections disease; (h) the landscaping or object is damaged beyond recovery or repair, or (c) that the landscaping or object is irconsistent with the safe movement of pedestrians or vehicles including, without limitation, obstructions to adequate sight distance along cr across any roadway o• 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 aeen 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 al landscaping was in good condition. City shall consider, but not be bourd by, comments submitted by the Assocation relative to the means, methods, or techniques used to provide the Maintenance. CONDITIONS OF DUTY TO MAINTAIN City's duty to provide Maintenance is subject to Association's full compliance with th s Agreement and the following express conditions. (a) Access. Association s hall grant C ity the r ights necessary :o provide he M aintonance including surface and sibsurface access, ingress and egress and the right, at the City's sole discretion and at the City's sole cost and experse, 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 shal not be subject to any restriction including, without limitation, limits on the date or time of access, any obligation to provide insurance/indemnity cr any limit on the size or raturP of vehicles or equipment. (b) Access Conditions. The Association's grant of Access shad be subject to the conditions that: (i) the City repair or replace, to the condition prior to damage, any andscaping or facility that was damaged by City n the course of providing the Maintenance or otherwise; and (ii) except in the event of an emergency, the City w ll comply with the Assoc ation'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 li) pay for and provide for the separation of any water or a ectrical meter or similar device if the meter or meters provide service to the Propery 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 s 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 Assocatior property that is attributable to the Property. The formula developed by the Parties shall be attached to this Agreement as an exnibit. (d) Adjacent Property. Association shall use its best efforts to cooperate and comply with requests of the City relative to the maintenanc;e, 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 :o 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 manrer that does not create or increase any ris,, of injury or damage to persons or real or personal property. (e) Inspection of Property Association shall permit, and City shall conduct withir 30 days afte- 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 `urctioning irrigation system (fully functioning means all irrigation controllers, pipes, sprinkler heads or similar devices, water meters, 8-17 Property Maintenance Agreemen! 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. ADDITIONAL CITY OBLIGATIONS In addition to the duty to perform Maintenance. (a) Irrigation System Management. City or its contractor shall promptly repay, maintain, and/or replace any electrical, drairage, or irrigation equipment and any tree, bush, shrub. ground cover or other plant material on the Property that requires repair or replacement durirg 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 '.hat occurred between March 1, 2002 and the Effective Date) in a schedule that shall be added at a ater date an incorporated herein wthin Exhibit D (Compensation Schedule). 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 'o 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 shad reasonably cooperate with City with respect to compliance with any reculatory directive by the Regional Board or the State `hater Resources Contro 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 Boarc, or other agency with jurisdiction over the Property. (c) Water Conservation. Association and its agents and contractors shall reasonably cooperate with City with respect tc 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 s not in default with respect to its obligations pursuant to tnis 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 th,s Ag-eement 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 shal not apply to damages, claims, injuries, liability, losses, costs, attorney fees or expenses that are proximately caused by the sole negligence or w Ilful act of the Association or its officers, employees, agents. representatives, or members. City shall have full discretion to seect counsel, a xpers or o ther professionals t o r epresent o r a dvise it a nd tie A ssociation as wells as i is S Property Maintenance Agreement Page 4 of 15 officers, agents, employees and members with respect to any litigation or any action re',ated to the litigation. (b) Insurance. In addition to its indemnification obligations in Subsection (a), the City of Newport Beach shall maintain throughout 'he term of this Agreement commercial general liability insurance coverage including owned, non -owned and hired vehicle insurance in an amount, and with the self insurarce 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 snall use its best efforts to add the Association as an additional insured on any s uch policy o rovided t he City w ould i ncur no additional cost to do so o r Association reimburses the cost. ADMINISTRATION This Agreement will be administerec by the Director of the City's General Services Department ;Director). The Director shall be considered the P,ofect Administrator and shall have the authority to act for City pursuant to this Agreement. The Project Administrator or hisP er 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, f acsimile n umber and a -mail a ddress of t he n ew P roject A dmin strator a t the t ime of n otification of change. 8. TERMINATION (a) Notice. In the event either party fails or refuses to perform any of the provisiors n 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 required to cure the default the party in de ault 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 tie Property to the condition that existed upon the date of the City's inspection as described in Subsection 3(dt of this Agreement The restoration of the Property shall be completed as quickly as reasonably practicable, but it no event more than ninety (90) days following termination. .Any damage or injury to Association property, fac lities, landscapirg or hardscape that is proximately caused by the City during the restoraton 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 repairec or replaced by City. (c) Survival of Obligations. The commitments and obliga'iuns of the City that are specfed in Sections 4(b), 6(a), 8(c) and 15 shall su•vive the termination of Iris Ag-eement. NOTICES All )otices, demands, requests or approvals to be given under t his Agreemert shall be g iven i n w riting a nd conclusively shall be deemed served when delivered personally or on the th rd busiress day after the depose thereof it the United States mail, postage prepaid, first class mail, addressed as set forth below or as changed by either Party with written notice :o the otter Party it the manner specified in this Section All notices, demands, requests or approvals from Associatior 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. C. Box 1768 Newport Beach, CA 92658-8915 Attn Director of General Services Phone: (949)644-3055 Fax: (949) 650-C747 E-Mail: dneiderhaus@city.rewpert-beach.ca.us All notices, demands, requests or approvals from City to Association shall be addressed to Associaton, attention "Property Nlarager" at: Newport Coast Community Association cio PJ1ent Property Management 25910 Acere S*reet, Second Floor Mission Viejo, CA 92691 Attn. Nlelodie LaAlont Phone. (949) 465-5210 Fax. (949) 595-2304 E-Mail: mlamont@rreritpm.com 10. WAIVER The waiver by City or Associatior 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 snall govern the enforcement and interpretaton of th s 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 dities 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 relief on its own examination of this Agreement, the course of its own advisors, and the warranties, representations, and covenants in this Agreement The failure or refusai of either Party to read this Agreement or other doctments 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 amender or varied oxcopt by an agreement in writing signed by the Parties or their respective Successors. 14. HFADINGS The ieaid ngs and captions of the va-ious sections of this Agreement are for convenience and ease of reference cnly and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. AMI Property Maintenance Agreement Pag© 6 of 15 15. ATTORNEY'S FEES AND COSTS Should litigation become necessary in o-der 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 A5 TO FORM: By. Burnham, City Attorney CITY OF NEWPORT BEACH A Municipal Corporation By. —_ Homer Blu au ty Manager T COMMUNITY ASSOCIATION of the Association Board 8-21 Property Maintenance Agreement Page 7 of 15 EXHIBIT A Sccpe of Services EVERGREEN SLOPES, PARKWAYS, AND MEDIANS A. Ground cover Edging and Trimming: a. Edge as needed to maintain a neat, well-defined edge adjacent to walks, curbs, and paved areas. b. A four (4) inch to six (6) inch bare dirt clearance snall 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 nedged. 2. Fertilization. A minimum of four t4) times per year for 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 (113) 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 overNatering 6. Weed, Pest and Disease Control: a. Contractor sha'il maintain a weed, pest, and disease free ground cover and apply all necessary treatments as required. E. Shrubs 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, a lowing to fill solid horizontally. Formal Hedge - It is the intent cf these shrubs to have straight crisp edges. nitial "pinch pruning" will encourage the shrubs to fill in. b. All shrubs shall be pruned as required for safety, removal of bruken 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 commencemert of pruring. 8-22 Property Maintenance Agreement Page 6 of 15 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. Weed, Pest, and Disease Control: a Contractor shall maintain a weed, pest, and disease tree shrub -bed at all times and apply au necessary treatments as required. b. All shrub areas not underplanted with ground cover will De raked clean a minimum of once per rnonth or as required. Beds with mulch or bark stroll be cleaned by using a blower or other means to remove debris. 4. Watering: a. All shrub arcas shall oe 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 scil to dry between waterings (depending on plant variety) without overwatering C Vines Pruning: a Vines and espalier plants shall be checked and re -tied as required. b Do not use nails to secure vines on masonry walls. c Prune all vines using accepted horticultural practices. d Vines shall be pruned and maintained sc not to obstruct fixtures, signs, windows, etc. e. Pruning at the correct time of year is essential to maximize flowering potential. After Powering, remove any spent blossoms or tower stalks. Fertilization: Fertilize all vines a minimum of four (4) times per year (or as neededi per recommendatons 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 v nes 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 a -id allow�ng soil to dry between waterings (depending on plant variety) without overwatering Weed, Pest, and Disease Control: a. Contractor shall maintain a weed pest, and disease free vine -bed at all times and apply a l necessary treatments as required. b. All vine planter areas not underplanted with ground cover will be raked clean a minimum cf once per month or as required. Beds with mulch or bark shall be cleaned by using a blowe, o, other means to remove debris- D. Trees No tree work s,rall be done with -out prior written approval and direction from Owner's Represertative. All tree work shall be undertaken under the direction and supervision of a certifleC arborist. All trees shall be maintained in a healthy, vigorous growing conditon at all times All trees shall be allowed to grow in and to their ratural genetic forma nd size 8-23 Property Maintenance Agreement Page 9 of 15 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- v gor 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 cf 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 P�uniny. 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 afte, 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 n spring, summer and fall, (ur as needed) per recommendations of soils report, using a balanced fertilizer with Iron or an approved equal program to maintain an attractive. balanced appearance of continual growth. Deep root feeding or foliar application may be required. Palm trees shall be fertilized with "Palm Special" fertilizer, per manufacturers recommended rates, in spring, summer and fall. 8 Surface roots in turf up to three (3) inches in diameter which become maintenance or appearance problems will be removed as required to prevent damage to adjacent paved areas. No more than 50% of the surface roots may be removed at one time to prevent instability of the tree. Such conditions that are inherited to the contract will be an exception. E. Fertilization of California native plants California native plants, including trees, shrubs and ground cover, should be fertilized twice per year in early fall and early spring. Apply Osmocote 18-6-12 in early October at half the recommended label rate Apply an alternate slow -release product with pow phosphorus and less than 1 °k iron, in early March at halt the ecommended 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. 8-24 Property Maintenance Agreement Page 10 of 15 CALIFORNIA NATIVE SLOPES 1. Visual review of need for t-ash removal weekly. Trash removal as needed and as directed by the General Sentices Director or his designee. 2. Pruning, plant replacement, and irrigation as needed and as directed by the General Sery ces Director or IIS designee in order to retain the same aesthetics and level or vegetative cover as originally intended with the development approvals. 3. Remove non-native species and replant as necessary. 8-25 Property Maintenance Agreement Page t t of 15 EXHIBIT B Property Map H.aput. � PAA �� mil s ', � --• i'a� t � 1 �! M �I J..L \A ! -_i. 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 '�� = `• Pelican Hill Area .. ;Lit :: ; r . �:: fr PAA Eligible Properties •.;-- "^ ��'. � 1. /.• I'�'`T f't '. •`, �A''L _ t '4 �it/Lay_ E-�UYAY�� "•Y. ^ _.. .. . ... ..A. �.. - a• ! rr �N 4�.-� as _ww'. •(f _�, •,..:;*.� �'•. �� ..;, 1 j�•.{ •• a .+. �• •�•�'� �� t�"•,, :�.. •� 't� •'fir/_ � •(J��� i�- r.i Property Maintenance Agreement Page 13 o° 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 .n effect as of the Effective Date. The Par -ties 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 modifcation zones is contingent upon a request by the property owier 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 regligence. The Parties acknowledge that City's maintenance obligations do not extend ;o 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. o, 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 associatioi within the bourdaries of the Property. (it) "Fuel modfcation zore" shall mear a slope owned ey an Association that is adjacent to, and generally below, residential parcels and that has been planted with Ilre- 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 rnwification 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 lightirg equipment as applicable. (v) "Median" snall mean tie area in the center of a publ c 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 ro event shall the City be liable for any slope failure or slope subsidence in any fuel modification zore unless the failure cr subsidence is proximately caused by the active negligence or willful conduct of the City. City or its contractor shall maintain all med ans and parkways, and to the extent the property owner satisfies the conditions specified in Subsect on (d), the natural slopes, fuel modification zones, and open space cedications and facilities, in a manner that equals or exceeds t he m aintenance standards for a ach a rea o r f acility which is i in p lace as of t he Effective Date. City shall not be iiable for any loss, claim or damage proximately caused by irrigation of a fuel modificaton zone that is consistent wit. the time and extent of irrigation s Pruperly Maintenance Agreement Page 14 or 15 occurring as of the Effective Date. (d) Conditions to City Obligation Regarding Natural S opes and Fuel Modification Zones, City's obligation to maintain any fuel modification zone or natural slope is contirgent on satisfaction of all of the following conditiors: 0/; Written Request. An Association in existence as of the Effective Date has, withir 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 o; the Effectve Date, the Associaton shall, within nine (9) months of formation, have served the City with a written request to maintain all or a portion of the tuel modification zone and/or natural slope within that Associat on's boundaries. (n) Maintenance Agreement. The property owner has executed a written agreement (`Maintenance Agreement"), approved as to furrn and content by fie 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 facilites 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 anc other necessary utility services. The Maintenance Agreement shall confirm that the City is not liable for any loss, claim or damage, !ncluding 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 ovtner 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. 8-29 Property Maintenance Agreement Page 15 a 15 EXHIBIT D Compensation Schedule (Period of March 1, 2002 through Effective Date) Schedule to be added. 8-30 EXHIBIT B Scope of Services 8-31 EXHIBIT B Scope of Services I. MAINTENANCE SCHEDULE With the exception of the work provided in Section I I.A.1 below, which is completed on a weekly basis, the City and Contractor's performance obligations are based on regularly set intervals and schedules set forth in the attached map. The Association may request additional maintenance outside the regularly set intervals and schedules which shall be paid for by the Association and reimbursed to the City. In the event the schedule is adjusted, the City shall provide the Association with advanced written notice. In no event shall any adjustment in the schedule result in greater than three-month rotation of each area. II. EVERGREEN SLOPES, PARKWAYS, AND MEDIANS A. Ground cover 1. Mowing Edging and Trimming: a. All turf is mowed once per week. b. Maintain a neat, well-defined edge adjacent to walks, curbs, and paved areas. c. A four (4) inch to six (6) inch bare dirt clearance shall be maintained around the circumference of all trees, signs, and adjacent buildings. d. 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: Fertilization shall occur at least four (4) times per calendar year based on the Maintenance Schedule below or 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: At least once 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 shall be hard pruned to approximately one 8-32 third (1/3) of its height in the early spring. 5. Watering: a. All ground cover areas shall be uniformly irrigated to ensure consistent growth and plant coverage. b. Each calendar month, it shall be determined based on weather conditions, whether water application is necessary to produce a deep- rooted ground cover and, if so, repeat cycles for deep watering shall be implemented, allowing soil to dry between waterings (depending on plant variety) without overwatering. 6. Weed, Pest and Disease Control: Each month, City shall inspect the Eligible Property to ensure that weed, pest, and disease -free ground cover is being maintained and based on the Maintenance Schedule below shall take action as necessary to apply all necessary treatments as required. B. Shrubs 1. Pruning: Pruning of shrubs will fall into one of the following categories: a. 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. b. Natural Hedae - 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. All shrubs shall be pruned in accordance with International Society of Arboriculture (ISA) standards. 2. Fertilization: a. Fertilize all shrubs a minimum of four (4) times per year at intervals determined by the Maintenance Schedule below or 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 for applying all materials required to correct mineral deficiencies affecting plant growth. Due to area soil 8-33 conditions, supplemental feeding of iron may be required to prevent chlorosis. 3. Weed, Pest, and Disease Control: a. Contractor shall reasonably maintain a weed, pest, and disease -free shrub -bed and apply all necessary treatments as required during its regularly scheduled maintenance. b. All shrub areas not underplanted with ground cover will be raked clean a minimum of once per month or during its regularly scheduled maintenance. 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 ensure consistent growth and plant coverage. b. Contractor shall schedule water application intended 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 during regularly scheduled maintenance intervals. 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 during regularly scheduled 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 fertilizer with iron or an approved equal program to maintain an attractive, balanced appearance of continual growth. 8-34 3. Watering: a. All vines shall be uniformly irrigated to ensure 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 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 shall be 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, shall be agreed upon based upon the City and Association's monthly walkthroughs and written follow-up directive provided in Section 8(a) of the First Amendment. 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. All trees shall be allowed to grow in and to their natural genetic form and size. Tree spacing shall comply with the International Society of Arboricultural standards. 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. Lower branches can be cutoff only after the tree is able to stand erect without staking or other support. 8-35 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 guying 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. 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 twelve (12) months after installation shall be brought to the attention of the Parties representatives during monthly walkthroughs 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 three (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. 9. Tree Replacement. For the corner locations at the intersections of Newport Coast Drive/Ocean Ridge Drive and Newport Coast DriveNista Ridge Road, the City's future obligation to replace any mature Phoenix Canariensis or Phoenix Dactylifera shall be like for like with respect to size, however, the cost cap per tree shall not exceed $40,000. Notwithstanding the foregoing, the Phoenix Canariensis or Phoenix Dactylifera may be replaced with alternative species, mutually agreed to by the Parties, in the event the species are infected by incurable disease, or invasive insects. Additionally, the City's future obligation to replace any trees in all other locations shall be no larger than a 48-inch box. 8-36 E. Fertilization of California Native Plants: California native plants, including trees, shrubs and ground cover, should be fertilized twice per year in early fall and early spring. Apply fertilizer 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. III. CALIFORNIA NATIVE SLOPES 1. Visual review of need for trash removal within the City's established Maintenance Schedule. Trash removal as needed based on the Contractor's regularly scheduled work on the Eligible Property and as directed by the Public Works Director or his/her designee. 2. Pruning, plant replacement, and irrigation as needed based on the Contractor's regularly scheduled work on the Property and as directed by the Public Works Director or his/her designee 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. 4. For purposes of this First Amendment, "native slope" is defined as an area of undeveloped terrain within a master planned community that maintains its original topography and vegetation, but is either: excluded from fuel modification requirements due to its distance from structures or lack of wildfire exposure, or Assessed by the Authority Having Jurisdiction (AHJ) and determined to pose minimal wildfire risk, based on factors such as slope gradient, aspect, vegetation type, and topographic isolation. IV. V-DITCHES The City shall maintain the V-Ditches within its maintenance obligation areas on not less than a quarterly basis and shall maintain records of completion of debris removal which may be requested at the monthly walkthroughs and provided within reasonable timeframes. 8-37 T Few ip U, O'N 43% AW � 04,57 j pg 019, %hr �4 R 4., 34- Zoe, FT lAW I 4A 'Apt EXHIBIT C Eligible Property - Property Map 0 500 1.000 NEWPORT • COAST t ► HOA Maintained (27.98 Acres) City Maintained Evergreen Slope (58.62 Acres) �J City Maintained Native Slope (31.93 Acres) Exhibit C Eligible Property — Property Map NBGUS City of Newport Beach cis Division lure 23, 2025 EXHIBIT C-1 Geospatial Coordinates - of Eligible Property [TO BE INSERTED]