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
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Debra M. Rasteflo, Trustee
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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
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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