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HomeMy WebLinkAboutC-5949(A) - Restrictive Covenant AgreementRECORDING REQUESTED BY AND Cj WHEN RECORDED RETURN TO: City Clerk City ofNewport Beach 100 Civic Center Drive Newport Beach, CA 92660 Recorded in Off c al Records, Orange County Hugh Nguyen C erk-Recorde IlElllIIIIIIIl 11111110111 *$RQOD73475?l$ 2015000119946 1:29 pm 03/09/15 232407Al2F13 20 0.00 0.00 0.00 0.00 57.00 0.00 0.00 0.00 NO FEE THIS SPACE FOR RECORDER'S USE ONLY. Exempt Recording Request per Goverument Code 27383 and 6103 TJTLE OF DOCUMENT: RESTRICTIVE COVENANT AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City ofNewport Beach Public Works Department 100 Civic Center Drive P.O. Box 1768 Newport Beach, CA 92660 RESTRICTIVE COVENANT AGREEMENT This Restrictive Covenant Agreement ("Agreement") is made by and between the City of Newport Beach ("City") andOwner of 308 Buena Vista Boulevard ("Owner") with reference to the followirig: A. Owner ("Owner") is the owner in fee ofthe real property commonly known as 308 Buena Vista Boulevard ("Property"). The Property is comprised oftwo separate parcels: a residential parcel on which a home is built ("Parcel 1") and a bay front parcel ("Parcel 2"). The Property is ega1ly described in Exhibit "C". B. A street right-of-way ("ROW") for Buena Vista Boulevard was dedicated to the City, which varies in width, from 30.00' to 35.88'. C. The ROW has been improved with a 6' wide public sidewaik ("Existing Sidewaik") constructed and maintained by the City and, in the remainder of the ROW are located various park -like irnprovements and structures installed by Owner and/or Owner's predecessors in title. D. lnstallation and maintenance ofthe various park -like inlprovements and structures in the ROW is permitted 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 ofNewport Bay. E. On October 14, 2014, the City Council adopted Resolution No. 2014-89 stating its desire to vacate a portion ofthe ROW (the "Vacated ROW") provide non -vehicular access and views to the waters of Newport Bay from the Existing Sidewalk by contro!ling the height of thture improvements on the Vacated ROW. The Vacated ROW 15 legaily described in Exhibit "A" and depicted in Exhibit "B" which are attached hereto. F. Owner acknowledges that City would not vacate any portion ofthe ROW, but for Owner's agreement to execute and record this Agreement. 1 NOW, THEREFORE, the Parties agree as foliows: 1. VACATION PROCEEDINGS This Agreement has rio effect and wilt be deemed nuli and void ifthe Vacated ROW is not vacated by City or the vacation is deemed void, invalid or ofno effect by a cornpetent Court oflaw. 2. CONDITIONS AND RESTRICTIONS Owner and City agree to the foliowing coriditions and restrictions on the use ofthe Existing Sidewaik, Retained ROW and Vacated ROW: A. The City shall maintain the Existing Sidewaik and, ifexpanded as set forth below, the expanded sidewaik. B. The Vacated ROW is the ROW with the exeeption ofthe Existing Sidewaik and an additional 4' wide strip of land that runs paraliel to and contiguous with the westerly boundary ofthe Existing SidewMk (collectively, 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 thture 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. If City constructs an Expanded Sidewaik it shall, at its sole cost, rernove any irnprovements in the 2' section ofthe Retained ROW where the Expanded Sidewaik will be located. 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 improveinents and City shall not be IiabIe for any in - kind repair or replacement of Owner improvements. C. The City agrees that the Existing Sidewaik, Expanded Sidewaik, and/or the Retained ROW will not be used, at anytime, for vehicular access exeept as may be required from time to time for emergency or maintenance vehicle access. D. Improvernents existing on the Retained ROW and Vacated ROW as ofthe date ofthe recording ofthis Agreement are depicted and described in Exhibit "D" to this agreement and incorporated herein by this reference and shall be allowed to remain in piace. Ifany such improvements are removed and replaced, or if new improvements are installed after the date ofrecordation ofthis Agreement, they shall not exceed forty-two inches (42") in height as measured from the high point ofthe Existing Sidewaik or Expanded Sidewaik, as applieable, immediately adjacent to such improvements. For purposes ofthis Agreement portahle 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. Landscaping 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 of the Existirtg Sidewaik immediately adjacent to such structure. New trees and trees to replace existing trees may be planted in the Retairied ROW and the Vacated ROW provided that the tree canopy is at least 7' at maturity as measured from the high point ofthe Existing Sidewaik or Expanded Sidewaik, as applieable, immediately adjacent to such tree. Any landseaping and vegetation, excluding trees, must imniediate!y be trimrned to a height not greater than forty-two inches (42") when the maximum allowed height is reached, except 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 Iaw regarding persons with disabilities. 6. 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 reeorded Encroachment Agreement shall continue to have the beneflt of such Encroachment Agreement, H. Each and all of the above covenants are hereby declared to be covenants running with the land burdened by such covenants and are hereby niade appurtenant to said land. 1. If for any reason any ofthe covenants herein contained is invalid, the sarne shall not affect the validity ofthe remainder ofthis Agreement. J. To the extent any of the eovenants herein conflict with City Council Policy L-7, the covenants in this Agreement shall prevail. K. This Agreement can be modified ifapproved in writing by both Owner and City and thereafter recorded in the Offieial Records ofthe County ofOrange. 3. MAINTENANCE Owner agrees to maintain all Iandscaping and vegetation in and on the Vacated ROW and Retained ROW, with the exception ofthe Existing Sidewaik or Expanded Sidewaik, as applicable, at or below the height specifled in this Agreement. Any trees which have a canopy or foliage which extends below 7' as measured from the high point ofthe Existing Sidewaik or Expanded Sidewaik, as applicable, immediately adjacent to such tree shall, ifpossible and not detrimental to the health ofthe tree, be pruned or laced to maintain an openness that aliows some relieffroni a solid wall ofcanopy or foliage as to that portion which is below 7', and be 75% opaque. City recognizes that there may be some existing plants or shrubs that cannot be trimmed to 42" in height without injuring the health of the plant or shrub and in such case they shall be trimmed or pruned to be 75% opaque. City sha]] have the right to enter onto the Vacated ROW to bring the landscaping or vegetation into conforniity with this Agreement, in the event Owner fails to do so within thirty (30) days after written notice ofnon-eompliance is served on Owner, Owner shall pay City all reasonable costs associated with enforeeinent 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 control or maintenance of the Vacated ROW and Retained ROW, Except for the Existing Sidewaik, Owner also ackinowiedges that the maintenance ofthe private improvements and landscaping in the Retained ROW has been the responsibility of Owner, or Owner's predecessors, since the installation ofthe Iandscapirig and private improvements in the Retained ROW, through the date of recordation of this Agreement. Owner and City have consulted with legal counsel and as a result ofthat consultation ftliy understand the narure and extent of this release. B. City releases and discharges Owner (including heirs, executors, administrators, successors, and assigns) from any clairn, loss, liability or damage that is in any way related to Owners improvements to, or rnaintenance or control of, the Retained ROW or Vacated ROW prior to the date this Agreement is recorded. C. In granting their mutual releases, City and Owner waive the provisions of Section 1542 ofthe Civil Code that reads as foliows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his seltlement with the debior." 5. NOTJCES 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, first class postage prepaid and addressed as follows: OWNER Douglas P. Rastello, Trustee Debra M. Rastello, Trustee 308 Buena Vista Newport Beach, CA 92661 GITY City ofNewport Beach — City Manager 100 Civic Center Drive Newport Beach, CA 92660 4 IN WITNESS WFIEREOF, the parties hereto have caused this Agreement to be executed on ,2014. APPROVED AS TO FORM: B ATTEST: By: City Clerk CITY OF NEWPORT BEACH, a Municipal corporation By: OWNER: Rastello Living Trust dated December 4, 2003 By: Douglas P. Rastello, Trustee H:\CLIENT\Buena Visia Homcowncrs\Rcsirietjve Covenani Agrcemeot I4W2I 308.doo LM 9.22.14 e�oa1 4A -fl444.. —1L- O•stC.#. 9,goii-/L. IWNNALYNNSUEKUHN NOTARY PUBLJC STATEOFNEVADA No.11.g445 MyAppl Exp. Jan.272015 rrccrr 5 Debra M. Rasteflo, Trustee — ot4crcar ¥'- 3E8,e,3 rtl. &45 EL1O.>b" 44- ,1J IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be exeeuted on .2014. APPROVED AS TO FORM: By: City Attorney ATTEST: CITY OF NEWPORT BEACH, a Munieipal corporation By: City Manager OWNER: Rastelia Living Trust dated Deeember 4, 2003 By: 13y: City Clerk Dotiglas P.jstello, Trustee By: Debra M. Rastello, Trustee H:\CLIENT\Buena Vfsta Honicowners\Resirictivc Covenant Agrecmcnt 141021 308.doc LM 9.22.14 5 ACKNOWLEDGMENT State of Californja Courttyof Oruae_ J On?(t1e ti 20ftj beforeme, t'3(41411c P; N3dztvu4 PuHic- (insert name and litle af the office) personallyappeared i')twd t4s f who prcved to me on the basis f sabsfactory evdence to be the p on( whose name9s'(sthre tibscribed to the withpn instrument and acknowledged to metha he shelthey executed fhe'sgme Th his her/therr authorized capacityfiez and that bjhfher/their signature$ on the instrument the person(s4 or the entity upon behalf ofwhich the persoris5 acted, executed the instrument. 1 cerbfy under PENAL1Y OF PERJURY under the laws of the State of california that the foregong paragraph is true and correct. WITNESS my hand and ofI9ciLseaI, NATAUE ASft( I4OTARYPUBLIC.GAUFORNIA GOMMSSION # 2005454 ORANGE couwry Gornm. 1..Ja Signature \j C'C-c-.-J (Seal) EXHIBIT A EXHIBIT A LEGAL DESCRIPTION PARTIAL VACATION OF BUENA VISTA BLVD. THAT PORTION OF' BUENA MSTA BOULEVARD AS SHOWN ON SUBDMSION OP BLOCJ< 'A' 0F' EAST NEW0RT, PER MAP RECORDED IN BOOK 4, PAGE 51, OF MIS�LLANEOUS MAPS, RECOROS OF ORANCE COUNTY, CAUF'ORNIA BEING DESCRIBED AS FOLLOWS; COMMENCING AT THE MOST WESTERLY CORNER OF LOT 167 OF SAID MISCELLANEOUS MAP ALSO BEING A POINT ON NORTHERLY RIGHT OF WAY BAY AVENUE (25,0 FEET HALF WI1H) AND A POINT ON ThE SOUTHERLY RIGHT OF WAY BUENA VISTA BOULEVARD; THENCE LEAVING SATO CORNER ALONG SAID NCRTHEAS1ERLY RIGHT OF' WAY OF BAY AVENUE NOR1H 78'30'34 WEST, 16.79 FEET TO THE TRUE POINT CF BEGINNING; THENCE CON11NUING ALONG SAID NORIHEASTERLY RIGHT OF WAY N0R1H 7&30'34 WEST, 43.45 FEE1 THEN� LEAVING SAID NORTHERLY RIGHT OF WAY OF BAY AVENUE AND ALONG 1HE NORIHERLY RIGHT OF WAY OF BUENA VISTA BOULEVARO 1HE FOLLOWING COLJRSES; NORTh 64'55'5( EAST, 349.79 FEET; NORIH 432234" EAST, 411.19 F'EET; IHEN� LEAMNG SAID N0R11IEASTERLY RIGHT OF WAY S0U1}4 4615'OS" EAST, 24.00 FEET TO A POINT ON A LJNE PARALLEL WITH AND 1OE00 FEET NOR1HWES1ERLY, MEASURED AT RIGHT ANOLES FROM IHE S0U1HERLY RIGHT CF WAY OF SAID BIJENA VISTA BOULEVARD; 'THENCE ALONG SAID PARAt.LEL UNE 1HE FOLLOWING COURSES: SOUTH 43'22'34 WEST, 430.87 FEE1'; IHENCE SOUTH 6455'54" WEST, 303.81 FEET TO THE 1RUE POINT OF BEGINNING CONTAINS 16,878 SQ. FT (+/-) OR 0.39 ACRES (+/-) OF LAND, MORE OR LESS. AI.L AS PARTJCULARLY SHOWN ON EXHIBIT 8", ATTACHED HERETO AND BY THIS REFERENCE MADE A PARI HEREOF. NCENT W. SCARPATI R.C.E. 33520 UC. EXP. DA1E 6-30-2016 DA1E SHEETI 0F4 BY: GT DATE 09118/2014 SCALE: NONE c&v ri CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEYING 27156 BURBANK FOOTHILL RANCH, CA, 92810 T. 949.916.3800 F. 949.916.3805 t.CvC-INc.NET EXHIBIT «ft11 VACATION LEGAL DESCRIPTION 1 1 EXHIBIT B QEOGEWATER AVE 14 SCALE: 1" = 100' T.P.O.B. ' p.0.c 1 UNE TAB� NO. BEARING LENGN Li N78'30'3CW 60.24" 12 N78'30'3CW 16.79' 13 N78'30'34»W 43.45' 14 N4615'05W 24.00' 148 71' !f X\ \$v\ 157 f - NOIE: RUENA MSTA BOULEVARD Sl10#4 HEREON 5 BASED ON 1HE WIDIB 0F 35.88' AS SHOWN ON ASSESSORS PARCEI. MAP. BIJENA MSTA BOIJLEVARD PER BLOCI( A EAST NEwpoRr AS RECORDEO IN BOOI( 4, PAGE 51 OF MISCEIIANEOUS MAPS. SHOWS A WDIH OF 30S0' SHEET 2 OF 4 BY: GT OATE: 09/18/2014 SCALE 1"100' CSN 1 CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVE'YING 27156 BURBANK FOOThIIL RANCH, CA, 92610 T. 949.916.3800 E. 949.916.3805 W.CVC-INC.NET EXHIBIT "B" PARTIAL VAGATION OF BUENA VISTA BLVD SCALE 1" = 50' Li / EXHIBIT B UNE TABLE NO. StARING LENGTH U N78'30'3CW 60.24" 12 N7t30'34'W 16.79' (.3 N78'3O'34'W 43.45' (.4 N4615'OSW 24.00' 159 - 160 \ T.P.0.B. 162 \ \161 \ <u\166 165\ - \ -.----. - -a I0 0 0 9 0 SHEET 3 OF 4 BY: GT DATE: 9(18/2014 SCALE: 150' CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEYING 27156 BURBANK FOOTHILL RANCH. CA, 92810 T. 949.916.3600 F. 949.916.3805 YNV.CVC-lNC.NET EXHIBIT "B" PAR11AL VACATION OF BUENA VISTA BLVD SCALE: 1 = 50t EXHIBIT B / / /\ .4 * j/" 16\ / / \ j54\/ AC (0 / \156/ / \157\/ > /< \158\// '\ 1 / 159\ / / \ - 7 / / \148 / \149 /4 2 15O/' /\ 151/ / 7/ / \4,\152 \/7 / / .o.\\153// -j / / / SHEET4OF4 BY: GT DATE: 9/18/2014 SCkE: 15O' (J.SW rLkP CONS(JLTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEViNG 27156 BURBANK FOOThILL RANCU, CA, 92610 T. 949.916.3800 1. 949.918.3805 WVm.CVC-tNC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD LOT 164 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITIJATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANCE, STATE OF CALIFORNIA, AND S DESCRIBED AS FOLLOWS: PARCEL 1: LOT 164 OF THE "SUBDMSION OF BLOCK A" OF EAST NEWPORT, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 51 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COIJNTY, CALIFORNIA; TOGETHER W1TH THAT POR11ON OF BUENA VISTA BOULEVARD LYING BETEEN THE NORNWESTERLY PROLONGA11ON OF THE NORTHEASTERLY AND SOUTHWESTERLY LINES OF SAID LOT 164. RESER'vlNG 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: BEGNNING AT THE P0NT OF INTERSECTI0N OF THE NORTHWESTERLY LINE OF BUENA V1STA BOULEVARD W1TH THE NORTHWESTERLY PROLONGA11ON OF THE NORTHEASTERLY LINE OF LOT 164 OF THE "SUBDMSION OF BLOCK A9 OF EAST NEWPORT, AS BOTH SHOWN ON A MAP RECORDED IN 6001< 4, PAGE 51 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUN1Y, CALIFORNR; THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY LINE OF BUENA \'lSTA BOULEVARD TO ITS INTERSEC110N WITH THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE OF SAID LOT 164; THENCE NORTHWESTERLY ALONG THE LAST MEN11ONED PROLONGA11ON TO THE LINE OF ORDINARY HIGH TIDE OF THE PACIFIC OCEAN IN NEWPCRT 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 AC11ON EN11TLED "CITY OF NEWPORT BEACH, PLAINTIFF, VS BAY ISLAND CLUB AND OTHERS, DEFENDANTS", CASE NO. 24080, A CERTIFIED COPY OF WHICH WAS RECORDED SEPTEMBER 19, 1925 IN 6001< 203, PAGE 95 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY; THENCE NORTHEASTERLY ALONG THE SAID 11DE UNE TO THE NTERSECT1ON Th SAID NORTHWESTERLY PROLONGA11ON OF THE NORTHEASTERLY LINE OF SAID LOT 164; THENCE SOUTHEASTERLY ALONG SAID PROLONGATION TO THE POINT OF BEGINNING. VfNCENT W. SCARPA11 R.C.E. 33520 DATE UC. EXP. DATE: 6-30-2016 \/-; Nia. 33520 [xp. 6/30/2016 C / SHEET 1 OF 1 BY: TET DATE: 11-03-2014 SCALE: NONE CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEVING 27156 BURBANK FOOTHILL RANCH, CA, 92610 T. 9499163800 F. 949.916.3805 WWW.CVC-INC.NET EXHIBIT "C" LOT 164 EXHIBIT D 308 Buena Vista Blvd. Page 1 of 3 308 Buena Vista Blvd. Page2of3 308 Biiena Vista Blvd. Page 3 of 3 Reference: A. Entrance Gate: 47" B. Shrubs and Trees (Outside): 71" - Shrubs required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. Trees required to be Iaced/thinned. C. Brick Pianter: 25" 0. Tree nextto Entrance: 119" - Required to be Iaced/thinned. Minimum canopy height shali be 7'. E. Brick Wall (Entrance): 42" F. Covered Storage: 28' G.Tree in Brick Planter: 124" - Required to be Iaced/thinned. Minimum canopy heightshall be 7'. H. Grill Table: 44" 1. Grill: 60" J. Tree next to Grilt: 119" - Required to be Iaced/thinned. Minimum canopy height shall be 7'. K. Brick Walt (Back): 31" L. Shrub (lnside): 72" - Required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. M. Brick Wall: 39" N. Light: 61" 0. Brick Carriage Waik: 9" APPROVED AS TO ORM: City Attorney