HomeMy WebLinkAboutC-5949 - Restrictive Covenant AgreementRFCORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk
City ofNewport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Recorded in 0ffca1 Records, Orange County
Hugh Nguyen, C erk-Recorder
11 IIII 110 111111 11 11111 H NO FEE
*$R00073 75 9$
20150001199451 29 pm 03109115
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THIS SPACE FOR RECORDER'S USE ONLY.
Exempt Recording Request per Government Code 27383 and 6103
TITLE OF DOCUMENT:
RESTRICTIVE COVENANT AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City ofNewport Beach
Public Works Dcpartment
100 Civic Ceriter Drive
P.O. Box 1768
Newport Beach, CA 92660
RESTRICTIVE C�VENANT AGREEMENT
This Restrictive Covenant Agreement ("Agreement") is made by and between the City of
Newport Beach ("City") and Owner of 304 Buena Vista Boulevard ("Owner") with reference to
the foliowing:
A. Owner ("Owner") is the owner in fee ofthe real property commonly known as 304
Buena Vista Boulevard ("Property"). The Property is eomprised oftwo separate
parcels: a residential parcel on which a home is built ("Parcel 1") and a bay front
parcel ("Parce] 2"). The Property is legaily described in Exhibit "C".
B. A street right-of-way ("ROW") for Buena Vista Boulevard was dedicated to the City,
which varies in width, froni 30.00' to 35.88'.
C. The ROW has been irnproved with a 6' wide public sidewaik ("Existing Sidewaik")
constructed and maintained by the City and, in the remainder ofthe ROW are located
various park -like improvements and structures installed by Owner and/or Owner's
predecessors in title,
D. Insta11ation and maintenance ofthe various park -like improvements and structures in
the ROW is pennitted pursuant to City Council Polity L-7, which recognizes that
Buena Vista Boulevard is used to provide non -vehicular access and views to the
waters of Newport Bay.
E. On October 14, 2014, the City council adopted Resolution No. 2014-89 stating its
desire to vaeate a portion ofthe ROW (the Vacated ROW") provide non -vehicular
access and views to the waters ofNewport Bay from the Existing Sidewaik by
controlling the height of fiiture improvements on the Vacated ROW. The Vacated
ROW is legaily described in Exhibit "A" and depicted in Exhibit "B" which are
attached hereto.
F. Owner acknowledges that City would not vacate any portion of the ROW, but for
Owner's agreement to execute and record this Agreement.
NOW, THEREFORE, the Parties agree as foliows:
1. VACATION PROCEEDINGS
This Agreement has rio effect and will be deerned null and void ifthe Vacated ROW is
not vacated by City or the vaeation is deemed void, invalid or ofno effect by a cornpetent
Court oflaw.
2. CONDITIONS AND RESTRICTIONS
Owner and City agree to the foliowing conditions and restrictions on the use ofthe
Existing Sidewaik, Retained ROW and Vacated ROW:
A. The City shall maintain the Existing Sidewaik and, if expanded as set forth below, the
expanded sidewaik.
B. The Vacated ROW is the ROW with the exception ofthe Existing Sidewaik and an
additional 4' wide strip ofland that runs parailel to and eontiguous with the westerly
boundary ofthe Existing Sidewaik (eollectively, the Existing Sidewaik and the additional
4' strip ofland is referred to as the "Retained ROW"). A maximum of 2' ofthe Retained
ROW can be used for fbture sidewaik expansion ("Expanded Sidewaik") by the City and
the remaining 2' ofthe Retained ROW can be used by the City only for sidewaik
maintenance purposes. lfCity constructs an Expanded Sidewaik it shall, at its sole cost,
remove any improvements in the 2' section ofthe Retained ROW where the Expanded
Sidewaik will be !ocated. lfCity constructs an Expanded Sidewaik or uses the 2' section
ofthe Retained ROW for sidewaik maintenance purposes, it shall exercise due care to
protect and not damage any Owner improvements and City shall not be liable for any in -
kind repair or replacernent ofOwner improvements.
C. The Gity agrees that the Existing Sidewaik, Expanded Sidewaik, and/or the Retained
ROW wifl not be used, at anytime, for vehicular aceess except as may be required from
tirne to time for emergency or maintenance vehicle access.
D. Improvements existing on the Retained ROW and Vacated ROW as ofthe date ofthe
recording ofthis Agreement are depicted and described in Exhibit "D" to this agreernent
and incorporated herein by this reference and shall be allowed to remain in plaee. Ifany
such improvements are removed and replaced, or ifnew improvements are installed after
the date of recordation of this Agreement, they shall not exceed forty-two inches (42") in
height as measured from the high point of the Existing Sidewaik or Expanded Sidewaik,
as applicable, immediately adjacent to such improvements. For purposes ofthis
Agreernent portable items are not improvements nor subject to the height limits ofthis
agreement provided that such portable items do not unreasonably obstruet the views to
the waters ofNewport Bay.
E. La.ndscaping and vegetation in the Retained ROW and the Vacated ROW, excluding
existing trees, shall not exceed forty-two inches (42") in height as measured from the
2
high point ofthe Existing Sidewaik immediately adjacent to such strueture, New trees
and trees to replace existing trees may be planted in the Retained ROW and the Vacated
ROW provided that the tree canopy is at least 7' at maturity as ineasured from the high
point ofthe Existing Sidewaik or Expanded Sidewaik, as applieable, imrnediately
adjacent to such tree. Any landseaping and vegetation, exeluding trees, must immediately
be trimmed to a height not greater than forty-two inches (42") when the maximum
a!lowed height is reached, exeept as set forth in Section 3, Maintenance, below.
F. The Existing Sidewaik and ifexpanded, the Expanded Sidewaik shall be used for
pedestrian use only and as required by State or Federal law regarding persons with
disabilities,
G. This Agreement shall not alter any rights or obligations ofthe City or the Owner in
connection with any recorded Encroachment Agreements, and any Owner subject to a
recorded Encroachment Agreement shall continue to have the beneflt ofsuch
Encroachment Agreement.
H. Each and all ofthe above covenants are hereby declared to be covenants running with the
land burdened by such coveriants and are hereby made appurtenant to said land.
1. lffor any reason any of the covenants herein contained is invalid, the same shall not
affect the validity ofthe remainder ofthis Agreernent.
J. To the extent any ofthe covenants herein conflict with City Couneil Policy L-7, the
covenants in this Agreement shall prevail.
K. This Agreement can be rnodified ifapproved in writing by both Owner and City and
thereafler recorded in the Official Reeords ofthe County ofOrange.
3. MAINTENANCE
Owner agrees to maintain alt landscaping and vegetation in and on the Vacated ROW and
Retained ROW, with the cxception ofthe Existing Sidewaik or Expanded Sidewaik, as
applicable, at or be]ow the height specified in this Agreement. Any trees which have a
canopy or foliage which extends below 7' as measured from the high point ofthe
Existing Sidewalk or Expanded Sidewalk, as applicabte, imrnediately adjacent to such
tree shalt, ifpossible and not detrirnental to the health ofthe tree, be pruned or taced to
maintain an openness that aliows some relieffrom a sotid wall ofcanopy or foliage as to
that portion which is below 7', and be 75% opaque. City recognizes that there may be
some existing ptants or shrubs that caimot be trimnied to 42" in height without injuring
the health ofthe plant or shrub and in such case they shall be trimmed or pruned to be
75% opaque. City shall have the right to enter onto the Vacated ROW to bring the
Iandseaping or vegetation into eonformity with this Agreement, in the event Owner fails
to do so within thirty (30) days after written notice of non-complianee is served on
Owner. Owner shall pay City all reasonable eosts associated with enforcement ofthe
height restrictions on landscape and vegetation.
3
4. MUTUAL RELEASE
A. Owner and City (including officers, agents, and employees) agree to release and
discharge each other from any claim, loss or liability or damage that now exists, that is in
any way related to their respective eontrol or maintenance ofthe Vacated ROW and
Retained ROW. Except for the Existing Sidewaik, Owner also acknowledges that the
maintenance of the private irnprovements and Iandscaping in the Retained ROW has been
the responsibility of Owner, or Owner's predecessors, since the installation ofthe
Iandscaping and private improvements in the Retained ROW, through the date of
recordation of this Agreement. Owner and City have consulted with legal cou.nsel and as
a result of that consultation fully understand the nature and extent of this release.
B. City releases and discharges Owner (including heirs, executors, administrators,
successors, and assigns) fi-orn any claim, loss, liability or damage that is in any way
related to Owners improvements to, or maintenance or control of, the Retained ROW or
Vaeated ROW prior to the date this Agreement is recorded.
C. In granting their mutual releases, City and Owner waive the provisions ofSection 1542
ofthe Civil Code that reads as foHows:
A general release does not extend to claims which the ereditor does not know or suspect
10 exist in his favor at the time of executing the release, which if known by him must
have materially affected his settlement with the debtor."
5. NOTICES
Notices required to be sent pursuant to this Agreement shall be deemed given when
personally delivered to the Party or when deposited in the U.S. Mail, firsi class postage
prepaid and addressed as foliows:
OWNER William J. Corkett
304 Buena Vista
Newport Beach, CA 92661
CITY City ofNewport Beach — City Manager
100 Civic Center Drive
Newport Beaeh, CA 92660
4
IIN WITNESS WHEREOF, the parties hereto have eaused this Agreement to be executed on
Iz.-
1
2014.
APPROVED AS TO FORM:
ATTEST:
Corporation
By:
City Attorney
ity Clerk
CITY OF NEWPSkT BEACH,
a Municipal eorporation
By: C
City Manager
OWNER: Bitona Corporation, a California
Its: President
Its: Secretary
I-I:\CLEEN1\Buena Vista Kon1eowners\Rest[ciivc Covenant Agreement 41021 304.doc
LM 922.14
5
State of Cafltornja
Countyof
j
ACKNOWLEDGMENT
)
onTheumbr- tD, c4 beforeme t3dzW e P\ K. N\ tz,vt4 PuH1_-
(insert name and ttle'of the officer)1
personaliyappeared 'N tkMfl1 \i.
who proved to me on the basis of satisfactory e'dence to be the p &onV) whose name41Jare
sljbscr!bed to the within instrument and acknowIecd to me tha he! heljhey executed the same in
iher/the:r authorized capacityies and that by(hi,/her/peir signa ure%) on the instrument the
person(/) or the ent'iy upon behalf of which the Person(?) acted, execuled the nstrument,
1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct,
WITNESS my hand and o2aI seal.
Signature
(Seal)
ACKNOWLEDGMENT
State of CoIitprna
Countyof (JY�iVi •E
3
On eC'\)er 1D Obeforeme Iie A V,
(inserl name arid title of the afficer/
personaily appeared
wl-io proved to me on the basis of satisfactory evidenc to be the pers1pp4d) whose namek41are
subseri,bed to tbe within instrument and acknowledged to methat he{shetheyexecuted fheYame in
hs&ijtheir authorized capacity(4es arxi that by hJs/1Ir signatu}e5on the instrument tbe
person(s), or the entity upon behalf of which the person(s' acted, executed the nstrument.
1 certify under PENALTY OF PERJURY under the laws ot the State of Caiforria that the foregoing
paragraph is true and correct.
WITNESS my hand and ofI9ciaseaI.
/
/
Signature
(Seal)
- -. NATAUEMIt
$OTAflY PIJBUC - CMJFORtM
COIMI9SION 02005454
ORANGE COIJNTY
!1S?TJ!LUfl? !'2'.
EXHIBITA
LEGAL DESCRIPTION
PARTIAL VACATION OF BUENA VISTA BLVD.
NAT POR11ON CF BUENA VISTA BOULEVARD AS SHOWN ON SUBDMSION OF BLOCK 'A' OF EAST
NEWPORT, PER MAP RECORDED IN BOOK 4, PAGE 51, OF MISCELLANEOUS MAPS, RECORDS OF ORANGE
COUNTY, CAUFORNIA BEING DESCRIBED AS FOLLOWS:
COMMENCING AT NE MOST WESTERLY CORNER OF LOT 167 OF SAID MISCEI.LANEOUS MAP ALSO BEING A
P0NT 0N NORThERLY RIGHT OF WAY BAY AVENUE (25.0 fttl HAll Wim) AND A P0NT ON THE
SOU1HERLY RIGHT OF WAY BUENA VJSTA BOULEVARD;
THENCE L.EAV1NG SAID CORNER ALONG SAID NCRTHEASTERLY RIGHT OF WAY GE BAY AVENtJE NORIH
78'30'34" WEST, 16.79 FEET TO THE IRUE PO4NT OF BEGINNING;
IHENCE CON11NUING ALONG SAID NOR1HEAS1ERLY RIGHT CF WAY NORIH 7g*3�340 WESTI 43.45 FEET;
IHENCE LEAMNG SAID NORTHERLY RIGHT 0F WAY OF BAY AVENUE AND ALCNG 1HE NOR1HERLY RIGHT OV
WAY OF BUENA VSTA BOULEVARD THE FOLLOWNG COURSES:
NOR1H 6455'54" EAST, 349.79 FEET; NORIH 43'22'34 EAST, 411.19 FEET;
1}IEN� LEAVING SAJD NOR1HEASTERLY RIGHT OF WAY SOUTH 4615'05 EAST, 24.00 FEET TO A POINT ON
A UNE PARALLEL %1H AND 10.00 ftll NOR1HWES1ERLY, MEASURED AT RIGHT ANGLES FROM ThE
SOUTHERLY RIGHT 0F WAY OF SAID BUENA 1STA BOULEVARD;
IHEN� ALONG SAID PARM 1 Fi UNE 11* FOLLOWING COURSES:
SCUTH 4322'34" WEST, 430.87 FEET 1HENCE SOU1H 64t5'54" WEST, 303.81 FEET TO THE 1RUE PO!NT
OF BEGINNING
CONTAINS 16.878 50. FT (+/-) OR 0.39 ACRES (+1-) 0F LAND, MORE OR LESS.
ALL AS PAR11CULARLY SHOWN ON EXHIBIT "B, A1TACHED HERETO AND BY IWIS REFERENCE MADE A PART
HEREOF.
ac;ta49t,:,
NGENT W. SCARPA11 R.C.E. 33520 DATE
UC. EXP. DA1E: 6-30-2016
SHEET 1 OF 4
BY: GT
DATE: 09/18/2014
SCALE: NONE
CONSULTING, INC.
CIVIL ENGINEERING
LAND Pt.ANNING & SURVEVING
27156 GURBANK
FOOThILL RANCI-$,
CA, 92610
T. 949.916.3800
F. 949.9163805
S.CVC.INC.NET
EXHIBIT "A"
VACATION
LEGAL DESCRIPTION
EXHIBIT B
QEDGEWATER AVE
L4
SCALE: 1" = 100'
1
LJNE TABLE
NO.
BEA1NG
LENGTh
11
N1B30'3CW
60.24"
12
N78'30'3(W
16.79'
13
N78t30!34*W
4345'
14
N4615'05W
24.00'
g0 A
2N47
148 \
NOTE:
BUENA VtSTA BOULEVARD SH0V,tI HEREON IS RASED ON 11* W1DTh OF 35.88' AS SHOWN ON ASSESSORS PARCEL MAP.
BUENA STA BOULEVARD PER BLOCI( A EAST NEwPoRr AS RECOROEO IN BOOI< 4. PAGE 51 OF MIS�ILANEOUS MAPS.
SHOWS A Y,iDTh OF 30.00'
/
SIIEET 2 OF 4
BY: GT
DATE: 0911812014
SCALE: ?l0�'
c&v
CONSULTING, INC.
CIVIL ENGINEERING
LAND PLANNIMG & SURVEVING
21156 BURBANK
FOOThILI. RANCH,
CA, 92610
T. 949.9163800
F, 949.916.3805
WV.CVC-INC.NET
EXHIBIT "B"
PARTIAL VACATION OF
BUENA VISTA BLVD
SCALE 1" = 50'
0
EXHIBIT B
LINE TABIE
NO.
BEARING
LENGTH
11
N78'30'34'W
60.24"
12
N78'30'34'W
16.79'
13
N78'30'34'W
43.45'
14
N4615'05'W
24.00'
0'
T.P.0.B. \_ (\162 ' 161
— a'at3%
\ O\
164 163
\166 \165\
1 PM
C\t 160 \
kV
/
SI-IEET3OF4
BY: GT
DATE: 9(18/2014
SCALE: 1 '=50'
CONSULTING, tNC.
CIVIL ENGINEERING
LAND PLANNING & SURVEVING
27156 BURBANK
FOOTHILL RANCH,
CA, 92610
T. 949916.3800
F. 949.918.3805
.CVC-INC.NET
EXHIBIT "B"
PARTAL VACATION OF
BUENA VISTA SLVD
t
1
EXHIBIT B
/
.4
/ //
/\
,c4
/
/
/ \147
/ \148
149 / //
2
/ \ 150 /
/1
\ 151
N
/ NI\ 152 \//
/\ /
.\ 153$y /
\154/ /
\
'2\ \156 / /
C57 /<\
/t
\ 158\y/
159\ /
\//
/
\
SCALE 1"=50
K
/
/
' 14�
/
/
\
/
/
SIIEET 4 OF 4
8?: GT
DATE: 9/18/2014
SCALE: ?r5O'
CONSULTING, INC.
CIVIL ENGINEERING
L.AND PLANIIING & SURVEYING
27156 BURBANK
FOOThtLL RANCH,
CA, 92610
T. 949.918.3800
1'. 949.916.3805
V.CVC-INC.NET
EXHIBIT "B"
PARTIAL VACATION OF
BIJENAVISTA BLVD
j
LOTS 165 - 167
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOTS 165, 166, AND 167 OF THE SUBDI1SI0N OF SLOC}< A"OF EAST NEWPORT, AS SHOWN ON A MAP
RECORDED IN 8001< 4, PAGE 51 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CAUFORNIA;
TOGETHER %TH THAT PORTION OF BUENA VISTA BOULEVARD LYING BETEEN THE NORTHWESTERLY
PROLONGA11ON OF THE NORTHEASTERLY LINE OF LOT 165 AND A LINE BEARING NO3'48'27"W FROM THE
MOST WESTERLY CORNER OF LOT 167.
RESERVING THEREFROM THE SOUTHEASTERLY 10.00 FEET OF SAID BUENA V1STA BOULEVARD, AS AN
EASEMENT IN FAVOR OF THE CITY OF NEWPORT BEACH FOR NON -VEHICULAR PUBLIC ACCESS AND
SIDEWALK MAINTENANCE PURPOSES.
PARCEL 2:
BEGINNING AT THE POINT OF INTERSECT]ON OF THE NORTHWESTERLY LINE OF BUENA V1STA BOULEVARD
W1TH THE NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY LINE OF LOT 165 OF Tl-iE "SUBDIV1SION
OF BLOCK A" OF EAST NEWPORT, AS BOTH SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 51 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE SOUTHWESTERLY ALONG SAID
NORTHWESTERLY LINE OF BUENA V1STA BOULEVARD TO A POINT DISTANT N0348'27'W 38.65 FEET FROM
THE MOST WESTERLY CORNER OF LOT 167 OF SAID MAP; TI-IENCE NO3'48'27"W 90,47 FEET, MORE OR
LESS, TO A POINT ON THE LINE OF ORDINARY HIGH 11DE OF THE PACIFIC OCEAN IN NEWPORT BAY AS
DESCRIBED IN THE DECREE RENDERED IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND
FOR THE COUNTY OF ORANGE IN AN ACTION ENTIThED "CITY OF NEWPORT BEACH, PLAIN11FF, VS BAY
ISLAND CLUB AND OTHERS, DEFENDANTS", CASE NO. 24080, A CERTIFIED COPY OF WHICH WAS RECORDED
SEPTEMBER 19, 1928 114 BOOK 203, PAGE 95 OF OFF1CIAL RECORDS OF SAID ORANCE COUNTY; THENCE
NORTHEASTERLY ALONG THE SAID TIDE LINE TO 1IIE tNTERSEC110N W111-3 SAID NORTHWESTERLY
PROLONCA11ON OF THE I40RTHEASTERLY LINE OF SAID LOT 165; THENCE SOU1HEASTERLY ALONG SAID
PROLONGATION TO THE POINT OF BEGINNING.
\t- s-
VINCENT W. SCARPA11 R.C.E. 33520 DATE
LIC. EXP. DATE: 6-30-2016
No, 520
Exp. 6/30:206
S}-1EET 1 OF 1
BY: MOX
DATE: 11-17-2014
SCALE: NONE
CONSLJLTING, INC.
CIVIL ENGINEERING
LAND PLANNING & SURVEVING
27156 BURBANK
FOOTHILL RANCH,
CA, 92610
T. 949.9183600
F. 949.916,3805
WWW,CVC-INC.NET
EXHIBIT "C"
LOTS 165-167
3O4 Buena Vista Blvd.
Page 1 of 2
304 Buena Vista Blvd. Page 2 of 2
Reference:
A. Raised Curb: 8.25'
B. Shrub: 45' - Required to be trimmed and maintained to a maximum height of 42" above sidewaik
grade.
C, Small Shrub: 40"
D. Brick WaH: 20"
E. Shrub: 45" - Required to be trimmed and maintained to a maximum height of 42" above sidewaik
grade.
F. Raised Curb: 8"
G. small Tree: 60"
H. small Shrub: 38"
1. Gate: 38"
J. Brick Carriage Waik: 8"
APPROVED AS TO L?ORM:
A.L
City Attomey
fo J Nt N