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Home My WebLink AboutC-5949(D) - Restrictive Covenant AgreementRECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City ofNewport Beach 100 Civie Center Drive Newport Beach, CA 92660 Recorded in 0ffca1 Records Orange County Hugh Nguyen C erk-Reco de 11 [10111111 1111 111111111111 NO FEE *$R0007347489$ 2015000119938 1 29 pm 03109/15 232407Al2F13 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 TITLE OF DOCUMENT: RESTRICTIVE COVENANT AGREEMENT RECORDJNG REQUESTED BY AND WHEN RECORDED RETURN TO: City of Newport 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") and Owner of 314 Buena Vista Boulevard ("Owner") with reference to the foliowing: A. Owner ("Owner") is the owner in fee of the real property commonly known as 314 Buena Vista Boulevard ("Property"). The Property is comprised oftwo separate parcels: a residential parcel on which a horne 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 Visia 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 sidewalk ("Existing Sidewaik") constructed and maintained by the City and, in the remainder of the ROW are located various park-Iike improvements and structures installed by Owner and/or Owner's predecessors in title. D. Insta11ation and maintenance ofthe various park -like irnprovements 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 Councii 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 future improvements on the Vacated ROW. The Vacated ROW is legaljy deseribed 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. NOW, THEREFORE, the Parties agree as foliows: 1. VACATION PROCEEDINGS This Agreement has no effect and will be deemed null and void ifthe Vaeated ROW is not vacated by City or the vaeation is deemed void, invalid or ofno effect by a competent Court oflaw, 2. CONDJTIONS 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 rnaintain the Existing Sidewaik and, ifexpanded as set forth below, the expanded sidewaik. B, The Vacated ROW is the ROW with the exeeption of the Existing Sidewaik and an additionai 4' wide strip of land that runs paraliel to and contiguous with the westerly boundary ofthe Existing Sidewaik (collectively, the Existing Sidewaik and the additional 4' strip oflarid is referred to as the "Retained ROW"). A maximum of 2' ofthe Retained ROW cnn 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 maintenance purposes. IfCity 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 located. lfCity constructs an Expanded Sidewaik or uses the 2' section ofthe Retained ROW for sidewaik rnaintenance purposes, it shall exercise due care to proteet and not damage any Owner improvements 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 anytinie, for vehicular access except as may be required from time to time for emergency or maintenance vehicle access. D. lmprovements existing on the Retained ROW and Vacated ROW as of the date of the recording ofthis Agreement are depicted and described in Exhibit "D" to this agreement and ineorporated herein by this reference and shall be allowed to remain in place. If any sueh improvements are removed and replaced, or ifnew improvements are installed afier the date ofreeordation 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 appiicable, immediately adjacent to such improvements. For purposes ofthis Agreement portable iteins are not improvements nor subject to the height limits ofthis agreement provided that such portable itenis do not unreasonably obstruct the views to the waters of Newport Bay. E. Landscaping and vegetation in the Retained ROW and the Vacated ROW, excluding existing trees, shall not exceed forty-two inches (42") in beight 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 in the Retained ROW and the Vacated ROW provided that the tree canopy is at Ieast 7' at maturity as measured from tlie high point of the Existing Sidewaik or Expanded Sidewaik, as applicable, irnmediately adjacent to such tree. Any iandscaping and vegetation, exeluding tiees, 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 if expanded, the Expanded Sidewaik shall be used for pedestrian use ony 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 eonnection with any recorded Encroachment Agreements, and any Owner subject to a recorded Encroachment Agreement shall continue to have the 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 Iarid. 1. Iffor any reason any of the covenants herein contained is invalid, the same shall not affect the validity of the remainder ofthis Agreement. J. To the extent any ofthe covenants herein conflict with City Council Policy L-7, the eovenants in this Agreement shall prevail. K. This Agreement can be rnodified ifapproved in writing by both Owner and City and thereaflerrecorded in the Official Reeords ofthe County ofOrange. 3. MAINTENANCE Owner agrees to maintain all landscaping and vegetation in axid on the Vacated ROW and Retained ROW, with the exception ofthe Existing Sidewaik or Expanded Sidewaik, as apphcable, 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 of the tree, be pruned or laced to maintain an openness that aliows some relieffrom 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 pJants or shrubs that cannot be trimrned 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 shall have the right to enter onto the Vacated ROW to bring the landscaping or vegetation into conformity with this Agreement, in the event Owner fails to do so within thirty (30) days after written notice ofnon-compliance is served on Owner. Owner shall pay City all reasonable costs associated with enforcement ofthe height restrictions on landscape and vegetation. 3 4. MUTUAL RELEASE A. Owner and City (ineluding officers, agents, and employees) agree to release and discharge each other from any claim, loss or liabilily or damage that now exists, that is in any way related to their respective control or maintenance ofthe Vacated ROW and Retained ROW. Except for the Existing Sidewaik, Owner also acknowledges that the maintenance of the private improvements and landscaping in the Retained ROW has been the responsibiflty of Owner. or Owner's predecessors, since the installation ofthe landscaping 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 of that consultation thlly understand the nature and extent ofthis release. B. City releases and discharges Owner (ineluding heirs, executors, administrators, successors, and assigns) from 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 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 ifknown by him must have materially affected his settlernent with the dehtor." 5. NOTICES Notices required to be sent pursuant to this Agreement shall be deemed given when personaily delivered to the Party or when deposited in the U.S. Mail, first class postage prepaid and addressed as foliows: OWNER Winston R. Fulier, Jr., Trustee Carlita J. Fuller, Trustee 314 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 L€LerrLz,c 30 , 2014. APPROVED AS TO FORM: By: (1 ATTEST: By: City Attorney CITY OF NEWPORT BEACH, a Munieipal eorporation By: City Manager \ OWNER: Winston R. Fulier, Jr. and Carlita J. Fulier Trust Agreement dated May 8, 1988 By: By: H:CLIENT'Buena Vista Horneowners Restrictive Covenant Agreernent 141021 314.doc LM 9.2214 5 Lc Winston R. Fulier, Jr., Trustee CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of OR On $L3o beforeme, NlArua 7. C,z,cwctj E'ate 1 Here Inserl Name arld Tilte ol the otlicer personaily appeared L2 r'JS-vt-J , 'S i1c'e. -a4 Namis) of Sgner(a) C&;rlLk J//?Jc 1 NANCY R. CAAVEN commlsslon# 1968120 Notry Pubflc - taflfomla Orange County - Comm. Exekes Feb 28, 2016 Place Notary Seal Above CWIL CODE 1169 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowiedged to me that he/she/they executed the same in his/her/their authorized capacityes), and that by his/her/their signature(s) on the instrumerit the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNES$ mv h&,d and official seal. OPTIONAL Though the information below 18 not required by and could prevent fraudu/ent removal Deseription of AttachedJocument Title ar Type of Document: Me-s*r «h JC_ Document Date: / a ( ?'j / 11 Sigrbr(s) Qther Than Narned Above: Signature: 0 4iv..1 1/. — lure of Notary ub c law, It may prove valuable to persons relying on the document and reattaohment 0! this form to another document. Cve.u,a,* '\5r'e (t..eJ- Nurnber of Pages Capacity(ieCtajmed by Signer(s) Signer's Name: Signer's Name: [1 Corporate Officer — TitIe(s) E !ndividual E Pariner — E Limited D General LJ Attorney n Fact LJ Trustee El Guardian or Consen'ator Other: FlIGHT THUEPRINT OF SIGl'ER Top of thumb hare 0 Corporate Officer — Title(s): o IndividuaI ----DPartner — El Limited 0 General 0 Attorny in Fact o Trustee o Guardian or Consrvator o Other: Signer Is Representing: 2010 Nationat Notary Assooiation NationatNotary.org 1-800-US NOTARY 1-600-876-6827) RIGHT THUtEPRINT OF StGI\ER Top of thumb here tem #5907 EXHIBIT A LEGAL DESCRJPTION PARTIAL VACATION OF BUENA VISTA BLVD. ThAT PORU0N OF BUENA V1STA BOULEVARD AS SHOWN ON SUBDIVISION OF BLOCK 'A' OF EAST NEWPORT, PER MAP RECORDED 114 BOOK 4, PAGE 51, OF MISCELLANEOIJS MAPS, RECORDS OF ORAI4GE C0tJNTY, CAUFORNIA BEJNG DESCRIBED AS FOLLOWS: COMMENQNG AT 1HE MOST WESTERLY CORNER OF LOT 167 OF SAID MISCELLANEOUS MAP ALSO BEING A POINT ON NORIHERLY RIGHT OF WAY BAY AVENUE (25.0 FEET HALl' W1IH) AND A POINT ON IHE SOIJTHERLY RIGHT OF WAY BUENA VISTA BOULEVARD; ThENCE LEAVING SAID CORNER ALONG SAID NORTHEASTERLY RIGHT 0F WAY OF BAY AVENLJE NOR1H 78'30'3C WEST, 16.79 FEET TO ThE TRUE POINT OF BEGINNING; NEN� CON11NUJNG ALONG SAID NORTHEASIERLY RIGHT OF WAY NORIH 78'30'34" WEST, 43.45 fth 1; IHENCE LEAVING SAID NORTHERLY RIGHT 01' WAY 01' BAY AVENUE AND ALONG 11IE NORTHERLY RIGHT 01' WAY OF BUENA VISTA BOULEVARO ThE FOLLOWING COURSES: N0R1H 6455'54" EAST, 349.79 FEET; NORTH 43'22'3C EAST, 411.19 FEET; ThEN� LEAVING SAID NORIHEASTERLY RIGHT 01' WAY SOUIH 4815'O& EAST, 24.00 FEET TO A POINT 014 A UNE PARAU.EL *1111 AND 10.00 FEET NOR1HWES1ERLY, MEASURED AT RIGHT ANGLES FROM THE SOUTHERLY RIGHT 01' WAY 01' SAID BUENA VISTA BOULEVARD; NENCE ALONG SAID PARAI 1 FI UNE THE F0LL0W1NG COURSES: SOUTH 4322'34 WESt 430.87 FEET; IHENCE SOUIH 64'55'54" WESTI 303.81 FEET TO THE 1RUE POINt 01' BEGINNING CONTAINS 16,878 SQ. FT (+1-) OR 0.39 ACRES (+/-) 01' LAI4D, MORE OR LESS. AI.L AS PAR11CULARLY SHOWN 014 EXHIBIT WBS, ATTACHED HERETO AND BY NIS REFERENCE MADE A PART HEREOF. NCENT W. SCARPA11 R.C.E. 33520 UC. EXP. DAIE 6-30-2016 DATE SHEET 1 OF 4 8Y: GT DATE: 09/18/2014 SCALE: NONE C•SW CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEYING 27156 BURBANK FOOTWLL RANCI4, CA,92610 T. 949.916.3800 F. 949.916.3805 V.CVC.lNC,NEt EXHIBIT "A" VACATION LEGAL DESCRIPTION EXHIBIT B EXHIBIT B QEDGEWATER AVE L4 SCALE: 1" = 100' / 1.1 0N{?° <K& I1J LINE TABLE NO. BEARING LENG1H 11 N78'30'3CW 60.24" 12 N76'30'34W 16.79' 13 N7W30'34W 43.45' 1.4 N4615'05W 24.00' /155 44 157 158 \ \_—' -�b' — - NOTE: BUENA SASTA BOULEVARO SH%t'l KEREON IS BASED 014 THE WDTh OF' 35.88' AS SHOM4 014 ASSESSORS PARCE!. }I4AP. 8UENA MSTA BOULEVARD PER 'BLOCI( A EAST NEwPoRr AS RECORDED 114 BOOK 4. PAGE 51 0F' UISCEILANEOUS MAPS. SHOWS A ND1H or 30.00' SHEET 2 OF 4 BY: GT DATE: 09/18/2014 SCALE: ?100' CONSLJLTING, INC CIVIL ENGINEERING LAND PLANNING & SURVEYING 21156 BURBANK FOOThILL RANCH, CA, 92610 T. 949,916.3600 F. 949.916.3805 .CVC-lNC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD 1 SCALE 1" = 50' LI T.P.O.B EXHIBIT B UNE TA&E NO. BEARING LENGBI 11 N7W30'3VW 60.24' L2 N78'30'34»W 16.79' 13 N78'30'34"W 43.45' 14 N4615'05W 24.00' \ — u' \166 —.- P.o.c 0 r. .5 \ 160\ \162 \161 c,t \ 164 163 165\ - / - SHEETSOF4 BY: GT DATE; 9118)2014 SCALE: 15CY 1 C&V :i CONSULTING, INC. CIVJL ENGINEERING LAND PLANNING & $URVEYING 27156 BURBANK FOOTHILL RANCH, CA, 92610 T. 949.9163800 F. 949.915.3605 W.CVC-lNC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VJSTA BLVD 2 1 SCALE 1" = 50 EXHIBITB "146\ / / ( 147 \ 14 > 1' 7 / N \14 /4 /\ >i / \ 150 / \151 / / \4\i52 >'2' / II l53$ / / - / \ 154V/ ,KZ / 557\ \\ /\ \156 / \157\/ / 158'y/ 159\ \// \% / , / SHEET4OF4 BY: GT DATE: 911812014 SCALE: 150' c&v i CONSLJLTING, INC. CIVIL ENGINEERING LAND PL.ANNING & SURVEY�IG 27156 BURBANK FOOThLL RANCH, CA, 92610 T. 949.918,3800 F, 949.916.3805 .CVC-lNC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD 1 EXHIBIT C LOT 161 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITtJATED IN THE CITY OF NE%'ORT BEACK, COUNTY OF ORANCE, STATE OF CALIFORNIA, AND 5 DESCRIBED AS FOLLOWS: PARCEL 1: LOT 161 OF THE SUBDMSION OF BLOCK A"OF EAST NEWPORT, AS SHOWN 014 A MAP RECORDED 14 BOOK 4, PAGE 51 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; TOGETHER WITH THAT POR11CN OF BUENA V1STA BOULEVARD L'r1NG BETWEEN THE NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY AND SOUTHWESTERLY LINES OF SAID LOT 161. RESERV1NC THEREFROM THE SOUTHEASTERLY 10.00 FEET OF SA]D BUENA 1STA 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 INTERSECTI0N OF THE NORTHWESTERLY LINE OF BUENA V1STA BOULEVARD TH THE NORTHWESTERLY PROLONGA11ON OF THE NORTHEASTERLY LINE OF LOT 161 OF ThE "SUBDI'V1SI0N 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 \I1STA BOULEVARD TO ITS INTERSEC110N W1TH THE NORTHWESTERLY PROLONGA11ON OF THE SO%JTHWESTERLY LINE OF SAID LOT 161; THENCE NORTHWESTERLY ALONG THE LAST MENTIONED PROLONGA11ON TO TI-IE UNE OF ORDINARY HIGH 11DE OF THE PACIFIC OCEAN IN NEWPORT BAY AS DESCRIBED 114 THE DECREE RENDERED 14 THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF ORANGE 114 AN ACTION ENTFFLED "CITY OF NEWPORT BEACH, PLAINTIFF, VS BAY ISLAND CLUB AND OTHERS, DEFENDANTS", CASE NO, 24080, A CERTIFIED COPY OF -lICH WAS RECORDED SEPTEMBER 19, 1928 IN BOOK 203, PAGE 95 OF OFF1CIAL RECORDS OF SAID ORANGE COUNTY; THENCE NORTHEASTERLY ALONG THE SAID TIDE LINE TO THE INTERSECTION WTH SAID NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY LINE OF SAID LOT 161; THENCE SOUTHEASTERLY ALONG SAID PRCLONGA11ON TO THE POINT OF BEGINNING. ---J- fl-s:-t'-.. NCENT W. SCARPA11 RC.E. 33520 DATE LIC. EXP. DATE: 6-30-2016 SHEET1 OF1 BY: MOX DATE: 11-17-2014 SCALE: NONE c&v r CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEVING 27156 BURBANK FOOTHILL RANCH, CA, 92610 T. 949.916.3600 F. 949.916.3805 WWW.CVC-INC.NET EXHIBIT '1C" LOT 161 EXHIBIT D 314Buena Vista Blvd. Page 1 of 3 314 Buena Vista Blvd. Page2of3 314 BuenaVista B!vd. Referen ces: Page 3 of 3 A. Brick Wall: 28" B. Flowers/Shrub: 41" - Required to be maintained to a maximum height of 42" above sidewaik grade. C. Shrub: 54" - Required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. 0. Potted Tree: 71" - Required to be Iaced/thinned. E. Brick Tree Well: 23" F. Grill: 55" G. Brick Grill Table: 42" H. Grill Wall: 50" 1. Brick Carriage Waik: 6" APi ROV€J) AS TO L?ORM: City Attorney