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HomeMy WebLinkAboutC-5949(C) - Restrictive Covenant AgreementRECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City ofNewport Beach 100 Civic Center Drive Newport Beach, CA 92660 Recorded in Off cal Records, Orange County Hugh Nguyen, Cle k-Recorder ij IFIIIIIIIIIJIIIIIfIJIIIIJj IIN0FEE *$R0007356105$* 2015000148395 8:03 am 03124115 47411Al2 19 0.00 0.00 0.00 0.00 54.00 0.00 0.00 0.00 THIS SPACE FOR RECORDER'S USE ONLY. Exempt Recording Request per Government Code 27383 and 6103 TIE 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 RESTRICTJVE COVENANT AGREEMENT This Restrictive Covenant Agreernent ("Agreement") is made by and between the City of Newport Beach ("City") and Owner of312 Buena Vista Boulevard ("Owner") with reference to the foliowing: A. Owner ("Owner") is the owner iri fee of the real property comrnonly known as 312 Buena Visia Boulevard ("Property"). The Property is eomprised oftwo separate parcels: a residentiai parcel on which a home is built ("Parcel 1") and a bay front parcel ("Parcel 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, from 30.00' 10 35.88'. C. The ROW has been improved with a 6' wide public sidewaik ("Existing Sidewaik") constmcted and maintained by the City and, in the remainder ofthe ROW are loeated various park -like improvements and structures installed by Owner and/or Owner's predecessors in title. D. Insta11ation and niaintenance ofthe various park-Iike improvements 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 of the ROW (the "Vacated ROW") provide non -vehicular access and views to the waters ofNewport Bay from the Existing Sidewaik by controlling the height of thture 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 10 execute and record this Agreement. NOW, THEREFORE, the Parties agree as foliows: 1. VACATION PROCEEDINGS This Agreement has no effeet and will be deenied null and void ifthe Vacated ROW is not vaeated by City or the vacation is deemed void, invalid or ofno effect by a competent Court of!aw. 2. CONDITIONS AND RESTRICTJONS 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, ifexpanded as set forth below, the expanded sidewaik. B. The Vacated ROW is the ROW with the exception ofthe Existing Sidewaik and an additionai 4' wide sirip of land that runs parailel to and contiguous with the westerly boundary ofthe Existing Sidewaik (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 future sidewaik expansion ("Expanded Sidewaik") by the City and the remaining 2' ofthe Retained ROW can be used by the City only for sidewaik maintenanee purposes. If City constructs an Expanded Sidewaik it shall, at its sole cost, rernove any improvements in the 2' section ofthe Retained ROW where the Expanded Sidewaik will be located. IfCity 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 improvemerits and City shall not be liable 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 except as may be required from titne to time for emergency or maintenance vehicle access. D. Improvements existing on the Retained ROW and Vacated ROW as of the date ofthe recording of this Agreernent are depicted and described in Exhibit "D" to this agreement and incorporated herein by this reference and shall be allowed to remain in place. Ifany such improvements are removed and replaced, or ifnew iniprovements are installed after the date ofrecordation ofthis Agreernent, they shall not exceed forty-two inches (42") in height as measured from the high point ofthe Existing Sidewaik or Expanded Sidewaik, as applicable, immediately adjaeent to such iniprovements, For purposes ofthis Agreement portable items are not improvements nor subject 10 the height Iimits ofthis agreement provided that such portable items do not unreasonably obstruct the views to the waters ofNewport Bay. E. Landscaping and vegetation in the Retained ROW and the Vacated ROW, excluding existing trees, shall not exeeed forty-two inches (42") in height as measured from the 2 high point ofthe Existing Sidewaik immediately adjacent to such structure. New trees and trees to replace existing trees may be planted iri the Retained ROW and the Vacated ROW provided that the tree canopy is at least 7' at maturity as nieasured from the high point ofthe Existing Sidewaik or Expanded Sidewaik, as applicable, immediately adjacent to such tree. Any !andscaping and vegetation, exeluding trees, must immediately be trimmed 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, 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 tlie benefit ofsuch Encroachment Agreement. H. Each and all ofthe above covenants are hereby declared to be covenants running with the land burdened by such covenants and are hereby made appurtenant to said land. 1. Iffor any reason any ofthe covenants herein contained is invalid, the same shall not affect the validity of the rernainder of this Agreement. J. To the extent any ofthe covenants herein conflict with City Council Poliey L-7, the covenants in this Agreement shafl prevail. K. This Agreement can be modified ifapproved in writing by both Owner and City 2md thereafter recorded in the Official Records of the County ofOrange. 3. MAINTENANCE Owner agrees to maintain all landscaping and vegetation in and on the Vacated ROW and Retained ROW, with the exception ofthe Existing Sidewaik or Expanded Sidewalk, as applicable, at or below 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 Sidewaik or Expanded Sidewatk, as applicable, immediately adjacent to such tree shall, ifpossible and not detrimental to the health of the 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 beiow 7', and be 75% opaque. City recognizes that there may be sorne existing plants or shrubs that cannot be trimmed 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 Jandscaping or vegetation into conformity with this Agreement, in the event Owner fails to do so within thirty (30) days afier written notice ofnon-compliance is served on Owner. Owner shall pay City alt reasonable costs associated with enforcement ofthe height restrictions on landscape and vegetation. 3 4. MUTUAL RELEASE A. Owner and City (including offieers, 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 rnaintenance of the Vacated ROW and Retained ROW. Except for the Existing Sidewaik, Owner also acknowledges that the maintenance of the private irnprovements and landscaping in the Retained ROW has been the resporisibility of Owner, or Owner's predecessors, since the installation ofthe landseaping and private improvenients 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 fully understand the nature and extent of this release. B. City releases and discharges Owner (including heirs, executors, administrators, successors, and assigns) from any claim, loss, liability or damage that is in any way related to Owners irnprovements to, or maintenanee or control of, the Retained ROW or Vacated ROW prior to the date this Agreement is reeorded. C. Tn granting their mutual releases, City and Owner waive the provisions of Section 1542 ofthe Civil Code that reads as foliows: "A generaT release does not extend to claims which the creditor does not know or suspect to exisi in his favor at the time of executing the release, which if known by hirn must have materially affected his settlement with the debtor." 5. NOTICES Notices required to be sent pursuant to this Agreemern shall be deemed given when personally delivered to the Party or when deposited in the IJ.S. Mail, first class postage prepaid and addressed as foliows: OWNER Patriek F. Collins, Trustee Mary E. Collins, Trustee 312 Buena Vista Newport Beach, CA 92661 CITY City ofNewport Beach — City Manager 100 Civic Center Drive Newport Beach, CA 92660 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on 2015. APPROVED AS TO FORM: ATTEST: By: City Attorney City Clerk 5 CITY OF NEWPORT BEACH, a Municipal corporation By: -j City Manager "- OWNER(S): By: e» By: CALIFORNIA ALL-PURPOSE ACKNOWL.EDGMENT CIVIL CODE 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which ths certificate is attached, and not the truthfuiness, aocuracy, or validity of that document. State of California Countyof OR4Ni(s5 On MQCH 701S beforeme,.JN3LfFJt NrC fllULVE1i-kbThP2H PCLC Date Here Jnsert Name and 117t/e of the Ofticer personaily appeared PAI\Z\C\4 QYaNJ CY COLLI r-.1S + Name(s) of Signer(s) rv1ocl L 2R?t1\-t ('OLS4NhS who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that he/shefthey executed the same in his/her/their authorized capacityes), and that by his/herftheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the aws of the State of California that the foregoing paragraph is true and correct. JENNER ANN MULVEY commiSsi�fl# 2045022 Notary public - Cabfoqnia orange County - .MzG0ffmtEt0ctl2*20itI Place Notary Seal Above WITNESS my ha and official seal, Signature OPTIONAL e of Notary Public Though this section /3 optiona/, completThg this information can deter alteration of the document or fraudulent reattachment of th!s form to an unfntended document Desoription of Attached Document Tftle or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Ctaimed by Signer(s) Signer's Name: LI Corporate Officer — Title(s): El Partner — El Limited El General LI IndividuaI Li Attorney in Fact LJ Trustee [11 Guardian or Conservator Li Other: Signer Is Representing: Signer's Name: [11 Corporate Officer — Tite(s): Li Partner — El Limited L] General El ndividual LI Attorney in Fact LI Trustee L] Guardian or Conservator LI Other: Signer Is Representing: ©2014 National Notary Association wwwNationalNotary.org 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT A LEGAL DESCRIPTION PARTIAL VACATION OF BUENA VISTA BLVD. 1}1AT POR11ON GE BUENA MSTA BOULEVARD AS SHOWN ON SUBDIV1SI0N OF BLOCK 'A' OF EAST NEWPORT, PER MAP RECORDED 114 8001< 4, PAGE 51, OF MISCELLANEOLJS MAPS, RECORDS OF ORANGE COUNTY, CAUF'ORNIA BEING DESCRIBED AS FOLLOWS: C0MMENN0 AT NE MOST WES1ERLY CORNER 0F LOT 167 OF SAID MISCELLANEOLJS MAP ALSO BEING A POINT 014 NORTHERLY RIGHT OF WAY BAY AVENUE (25.0 FEET HALE 1TH) AND A POINT 014 ThE SOIJ11IERLY RIGHT OF WAY BUENA VISTA BOULEVARD; 1HENCE LEAVING SAID CORNER ALONO SAID NORTHEASTERLY RICHT OF WAY OF BAY AVENUE NORTH 7ff30'34" WEST, 16.79 FEET TO 1HE TRIIE POINT OF BEGINNING; IHENCE CON11NUING ALONG SAID NORTHEAS1ERLY RIGHT OF WAY NORIH 78'30'3C WEST, 43.45 Pft 1; 1HENOE LEAV1NG SAID NOR1HERLY RIGHT 0F WAY 0F BAY AVENUE AND ALONG 1HE NOR1HERLY RIGHT OF WAY 0F' BUENA VISTA BOULEVARD 1HE FOLLOWNG COURSES: NORTH 64'55'54" EAST, 349.79 FEET; N0R111 43'22'34" EAST, 411.19 FEET; HEN� LEAVING SAID NORTHEAS1ERLY RIGHT OF WAY S0U1H 4615'OS" EAST, 24.00 FEET TO A POINT 014 A LINE PARAIJ.EL WITH AND 10.00 FEET NOR1HWES1ERLY, MEASURED AT RIGHT ANGLES FROM ThE 50U1HERLY RIGHT OF WAY OF SAID BUENA VISTA BOULEVARD; ThENCE ALONG SAID PARAISEL UNE THE FQLI.OW1NG COURSES: SOIJTH 4322'34" WEST, 430.87 FEE1 1HENCE SOUIH 64'55'54" WESTI 303.81 fth 1 TO IHE IRUE POINT 0F BEGINNING CONTAINS 16,878 SQ. FT (�1-) OR 0.39 ACRES (+1-) OF LAND, MORE OR LESS. ALL AS PAR11CULARLY SHOWN 014 EXHIBIT B, ATFACHED HERETO AND BY 1HIS REFERENCE MADE A PART HEREOF. -. . ______ NCENT W. SCARPA11 R.C.E. 33520 DAIE UC. EXP. DA1E: 6-30-2016 ESSj4 t % > No. 33520 Exp. 6/30/2D16J* SHEET 10F4 BY: GT DATE: 09/18/2014 SONS: NONE CSW 1iE CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEVING 27156 BURSANK FOOTHILL RANCH, CA, 92610 T. 949.916.3800 F. 949.916.3805 .CVC-INCNET EXHIBIT "A" VACATION LEGAL DESCRIPTION EXHIBIT B EXHIBIT B QEDGEWATER AVE 4 SCALE: " 100' 1 \ T.P.0.8. P.0.c :iL LJNE TA&E NOE BEAR*IG LENC1H 11 N78'30'3CW 60.24" 12 w78'30'3CW 16.79' L3 N78'30'3CW 43.45' L4 N4615'OSW 24.00' /K$ \iso NOTE: BUENA STA BOULEVARD 5H0V'L HEREON IS BASED ON INE WDTh 01' 35.88' AS SHOWN 014 ASSESSORS PARCEL MW'. SUENA MSTA BOULEVARD PER 'BLOCI< A EAST NEWPORr AS RECORDED IN 600K 4. PAGE 51 OF MISCEU.ANEOUS MW'S. SH0Y.S A Y0TH 0F 30.00' SHEET 2 OF 4 BY: GT DATE: 09/18/2014 SCALE: 1'iOO' Csw 'i:. CONSULTING, INC. CIVIL ENGINEERING LAND PLANNIKG & SURVEVING 27156 BURBANK FOOThILL RANCH, CA, 92610 T. 949.916.3800 E. 949.916.3805 n.CVC.IP4C.NET EXHIBIT "B" PARTIAL VACATION OF BUENAVISTA BLVID 5 8 2 2 SCALE 1"=50' LI T.P.O.B. p.ot EXHIBIT B UNE TABIE NO. BEARING LENG114 1.1 N78'30'34'W 60.24" L2 N76'30'34W 16.79' 1.3 N78t34'W 43.45' L4 N4615'05'W 24.00' 4 cPt (,\162 \16 164 163 165\ i 1 SHEET 3 OF 4 BY: GT DATE: 9118/2014 SCALE: 1'=50' CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEYING 27156 BURBANI( FOOTHILL RANCH, CA. 92610 T. 949,916.3800 F. 949.916.3805 WW.CVC-INC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD 1 SCALE 1" = 50' / / -, // \15e'\" N57 ><' > \ 158 / 159\ / \ / EXHIBIT B / L4 /\ / /\ 14S\ / / ,1 / 49' / /\• '\ "/' /,/ id N-" /'( ..\ l53 / \ 154\*t/ /< / N • \ 155 -r 1 / / / SHEET 4 CF 4 8?: GT DATE: 9/18/2014 SCALE ?rsO' c&v 5P• CONSULTING, INC. CIVIL. ENGINEERING LAND PLANNING & SURVEVING 27156 BURBANK FOOThILL RANCI-I, CA, 92610 T. 949916.3800 F, 949.9163805 VCVC-NC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD LOT 162 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE CITY OF NEWPORT BEACHI COUNTY OF ORANCE, STATE OF CALIFORNIA, AND 15 DESCRIBED AS FOLLOWS: PARCEL 1: LOT 162 OF THE SUBDIVISION OF BLOCK A"OF EAST NEWPORT, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 51 OV MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; TOGETHER WITH THAT POR11ON OF BUENA V1STA BOULEVARD LYING BETWEEN THE NORTHWESTERLY PROLONGA11ON OF THE NORTHEASTERLY AND SOUTHWESTERLY LINES OF SAIO LOT 162. RESERVING THEREFROM THE SOUTHEASTERLY 10.00 FEET OF SAID BUENA VISTA BOULEVARD, AS AN EASEMENT IN FAVOR OF THE CITY OF NEWPORT BEACH FOR NON-VEHICIILAR PUBLIC ACCESS AND SIDEWALK MAINTENANCE PURPOSES. PARCEL 2: BEGINNING AT THE POINT OF INTERSECTI0N OF THE NORTHWESTERLY LINE OF BUENA VISTA BOULEVARD Wim THE NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY LINE OF LOT 162 OF ThE "SUBDMSION 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 VISTA BOULEVARD TO ITS INTERSECTI0N WITH THE NORTHWESTERLY PROLONGM1ON OF THE SOIJThWESTERLY LINE OF SAID LOT 162; THENCE NORTHWESTERLY ALONG THE LAST MEN11ONED PR0L0NGAT10N TO THE LINE OF ORDINARY HIGH TIDE 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 ENT1TLED "CITY OF NEWPORT BEACH, PLAIN11FF, VS BAY ISLAND CLUB AND OTI-IERS, DEFENDANTS", CASE NO. 24080, A CER11FIED COPY OF WHICH WAS RECORDED SEPTEMBER 19, 1928 IN BOOK 203, PAGE 95 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY THENCE NOR11-IEASTERLY ALONG THE SAID TIDE LINE TO THE INTERSEC110N W1Th SAID NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY LINE OF SAID LOT 162; THENCE SOUTHEASTERLY ALONG SAID PROLONGA11ON TO THE POINT OF BEGINNING. \t -5- ‚ 'V9N�NT W. SCARPA11 R.C.E. 33520 DATE LIC. EXP. DATE: 6-30-2016 SHEET 1 OF 1 BY: MOX DATE: 11-17-2014 SCALE: NONE 1 CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEVING 27156 BURBANK FOOTHILL RANCH, CA, 92610 T. 949.916.3800 F. 949.916.3805 WWWCVC-INC.NET EXHIBIT "0" LOT 162 312 Buena Vista Blvd. Fage '1 of 3 312 Buena Vista Blvd. Page2of3 312 Buena Vista Bvd, Page 3 of 3 References: A. Planting: 41" - Required to be maintained to a maximum height of 42" above sidewaik grade. 3. Brick Wall (outside): 28" C. Pot Plarit: 51" - Required 10 be trimmed andmaintained to a maximum height of 42" above sidewaik grade. D. Pot Plant: 64" - Required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. E. Brick WaH (inside): 26" F. Grifl Table: 44" G.Grill: 61" H. Potted Piants an Brick Wail: 46" - Required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. 1. FRose Bush: 54" - Required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. J. Brick Wall: 61" K. Brick Carriage Waik: 6" PROViID AS City Attorney