The URL can be used to link to this page

Home My WebLink AboutC-5949(E) - Restrictive Covenant AgreementRECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Newport Beaeh 100 Civic Center Drive Newport Beach, CA 92660 Recorded in 0ffc al Records Orange County Hugh Nguyen C e k-Recorder 11 iI 1111111111111111110 ] NO FEE *$R0007347493$* 2015000119939 1:29 pm 03/09/15 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 / RECORDING 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 316 Buena Vista Boulevard ("Owner") with reference to the foliowing: A. Owner ("Owner") is the owner in fee of the real property cornmonly known as 316 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 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 improved with a 6' wide public sidewaik ("Existing Sidewaik") constructed and maintained by the City and, in tbe remainder ofthe ROW are Iocated various park -like improvenients and structures installed by Owner and/or Owner's predecessors in title. D. Insta1Iation 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 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 Sidewalkby controlling the height of future 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 wouJd not vacate any portion ofthe ROW, but for Owner's agreernent to execute and record this Agreement. 1 NOW, THEREFORE, the Parties agree as foliows: VACATION PROCEEDINGS This Agreenient has no effect and will be deemed null and void ifthe Vacated ROW is not vaeated by City or the vaeation is deemed void, invalid or ofno effect by a competent 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 Vaeated 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 additional 4' wide strip of land that runs parailel to and contiguous with the westerly boundary ofthe Existing Sidewaik (eollectively, lhe Existing Sidewaik and the additional 4' strip ofland is referred to as the "Relained ROW"). A maximum of 2' ofthe Retained ROW can be used for fbture sidewaik expansion ("Expanded Sidewaik") by the City and the reniaining 2' ofthe Retained ROW can be used by the City only for sidewaik maintenance purposes. IfCity constructs ari Expanded Sidewaik it shall, at its sole cost, reniove any irnprovernents in the 2' section ofthe Retained ROW where the Expanded Sidewaik will be Ioeated. 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 daniage any Owner improvernents and City shall not be Iiab1e for any in - kind repair or replacement of Owner improvernents. C. The City agrees that the Existing Sidewaik, Expanded Sidewaik, and/or the Retained ROW will not be used, at anytirne, for vehicular access except as may be required from time to time for emergency or maintenance vehicle access. D. Improvements existing on the Retained ROW and Vacated ROW as of the 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 plaee. Ifany such improvements aj-e removed and replaced, or ifnew improvements are insta!led after the date of recordation of this Agreement, they shall not exceed forty-two inches (42") in heighl as measured from the high point of the Existing Sidewaik or Expanded Sidewaik, as applicable, immediately adjacent to such improvements. For purposes ofthis Agreement portable items are not improvements nor subject to the height !imits 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 exceed forty-two inches (42") in height as measured from the 2 high point ofthe Existing Sidewaik immediate!y 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 trec canopy is at least 7' at niaturity as measured from the high point ofthe Existing Sidewaik or Expanded Sidewaik, as applicable, immediately adjacent to such tree. Any landscaping and vegetation, excluding trees, musi immediately 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 Federai law regarding persons with disabilities. G. This Agreement shall not alter any rights or obligations of the 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 benefit ofsuch Encroachment Agreement. H. Each and all of the above covenants are hereby declared to be covenants runriing 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 remainder of this Agreement. J. To the extent any of the covenants 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 thereafier recorded in the Official Records of the County of Orange. 3. MAJNTENANCE 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 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 Sidewaik, as applicable, immediately adjacent to such tree shal!, ifpossible and not detrimental to the health of the tree, be pruned or laced to maintain ari openness that aliows some relieffrom a solid wall of canopy 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 shall have the right to enter onto the Vacated ROW to bring the landscaping or vegetation into conformity with this Agreernent, in the event Owner fails to do so within thirty (30) days afler written notice of non-compliance is served on Owner. Owner shall pay City al! reasonable costs associated with enforcement ofthe height restrictions on Iandscape 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 liability or damage that now exisis, that is in any way related to their respective control or rnaintenanee 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 responsibitity of Owner, or Owner's predeeessors, sinee 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 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 darnage that is in any way relatecl to Owners improvements to, or rnaintenance or control of, tlie 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 follows: "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 musi 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, first class postage prepaid and addressed as follows: OWNER Mark l-lilbert, Trustee Janet M. Hilbert, Trustee 316 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 ,2014. APPROVED AS TO FORM: By ATTEST: By: City Attorney CityClerk J CITY OF NEWPORT BEACH, a Municipal corporatiori By: ;_ (- City Manager" OWNER: The Hilbert Family Living Trust By: 31 Mark Hilbert, Trustee By: FLCLIENT\Bueoa Vista Hojneowners\Restiiotive Covenant Agrecrnent 141021 3]6doc LM 92214 net M. Hilbert, Trustee California A11-Purpose Acknowledgement State of California County ofOrange On December 24 , 2014, before me, Rochelle Johnson, Notary Public persorially appeared Mark Hilbert and Janet Hilbert who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the person or the entity upon behalf of which the person acted, executed the instrumerit. 1 certifi under Perialty ofPerjury under the laws ofthe State ofCalifornia that the foregoing paragraph is true and correct. Witness my hand and official seal. 5 ignature Seal ROCHELLE JOHNSON Comflnjonu tQMS�Q Notiry Pubtic . Cifftornls Orang. Couiwy Mx ¶°T' e!'1 EXHIBIT A EXHIBITA LEGAL DESCRIPTION PARTIAL VACATION OF BUENA VISTA BLVD. THAT POR11ON OF BUENA MSTA BOULEVARD AS SHOVi ON SUBDIV1SL0N OF BLOCK 'A' OF EAST NEWPORT, PER MAP RECORDED IN BOOK 4, PAGE 51, OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CAUFORNIA BEJNG DESCRIBED AS FOLLOWS: COMMENONC AT ThE MOST WESIERLY CORNER OF LOT 167 OF SAID MISCELLANEOUS MAP ALSO BEIMO A POINT ON NORII-IERLY RIGEIT OF WAY BAY AVENUE (25.0 FEET HALE 1N) AND A POINT ON THE SOU1HERLY RIGHT OF WAY BUENA VISTA BOULEVARD; THENCE LEAMNC SAID CORNER ALONG SAID NORTHEASTERLY RIGHT OF WAY OF BAY AVENUE NORIH 78'30'34" WEST, 16.79 FEET TO 1NE TRUE PCINT OF BEGINNING; 1HENCE CON11NUING ALONG SAID NORTHEASTERLY RIGHT OF WAY NORIH 7&30'34" WEST, 43.45 FEET; 11IENCE LEAV1NG SAID NORTHERLY RIGHT OF WAY OF BAY AVENUE AND ALONG THE NORTHERLY RIGHT 0F WAY OF BUENA 1STA BOULEVARD 1HE FOLLOWING COIJRSES: NOR1}I 64'55'54" EAST. 349.79 FEET; NORTH 4Y22'34" EAST, 411.19 FEET; ThEN� LEMING SAID NORThEASTERLY RIGHT OF WAY SOU1H 461505" EAST, 24.00 FEET TO A POINT ON A UNE PARAU.EL W1TH AND 10.00 EEET NOR1HWESIERLY, MEASURED AT RIGHT ANOLES FROM NE SOUIHERLY RIGHT OF WAY OF SAID BUENA V1STA BOULEVARD; ThEN� ALONG SAID PARALLEL UNE IHE FOLLOW1NG COURSES: SOUTH 43'22'34" WEST, 430.87 I-th 1; 1HENCE S0U1H 64"55'54" WEST, 303.81 ftL 1 TO THE IRUE POINT OF BEGINNING CONTAINS 16,878 SO. FT (+1-) OR 0.39 AOES (+1-) OF LAND, MORE OR LESS. ALL AS PAR11CULARLY SHOWN ON EXHIBIT "8", A1TACHED HERETO AND 8? THIS REFERENCE MADE A PART HEREOF. NCENT W. SCARPA11 R.C.E. 33520 UC. EXP. DA1E: 6-30-2016 DATE SHEET 1 OF 4 8?: GT DATE: 0911812014 SCALE: NONE CS.VDIE CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEVING 21156 BURBANK FOOT}ULL RANCH, CA 92810 T. 949.916.3800 F. 949.916.3605 W.CVC4NC.NET EXHIBIT "A' VACATION LEGAL DESCRIPTION EXHIBIT B EXHIBIT B QEOGEWATER AVE 4 SCALE: 1" = 100' T.P.0,B. '- — LI P.0.c 1 UNE TABLE P40. SEARING �NGTh LI N78'30'34"W 60.24" t.2 N76'30'34"W 16.79' L3 N78'30'3CW 43.45' L4 N4615'O&W 24.00' NOTE: BUENA 1STA BOULEVARD SH0 HEREON IS BASED ON 1HE W1D1B OF 35.88' AS SHO%N ON ASSESSORS PARCEL. }4AP. OLJENA MSTA BOULEVARO PER BLOCK A EAST WEWPoRr AS RECORDED IN 8001< 4, PA� 51 OF MIS�U.ANEOUS MAPS. SHOWS A WDIH OF 30.00' SHEET 2 OF 4 BY: GT DATE: 09/18/2014 SCALE r=100' CS2V 3 CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEVING 27156 BURBANI< FOOThILL RANCH, CA, 92810 T. 949.916,3800 if. 949.916.3805 .CVC4NCNET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD SCAL.E l"50' EXHIBIT B LINE TAS1.E NO. BEARING LENGTH LI N78'30'34'W 60.24" L2 N78'30'34W 16.79' L3 N78'30'34'W 43.45' L4 N4615'OSW 24.00' $ \r' - - '. — — - (;162 T.P.0.B -, o, \161 \ \ \ \ 164 163 \$A?0?'<\ -e-- L2\166 \165\ ij - P,0,c - - kV 0. / r \ "159 &t \160\ € - - SHEET 3 OF 4 BY: GT DATE: 9/18/2014 SCALE: 1'=50' ir"t 7 r. '%...—¼__'%. Y CONSIJLTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEVING 27156 BURBANK FOOTHILL RANCH, CA, 92610 T. 949.916,3800 F. 949.916.3605 tCVC-INC.NET EXHIBIT "B" PARTIAL VACATON OF BUENA VISTA BLVD SCALE 1' = 50' EXHIBIT B / 7 /\ /K S' /7 / I1I / /\ / /\ &/ \%i52\/ / $ \ 153$// / - 1 \ 154/ 7 1' 1557\ 0, \156/ / > / / 7< \ 158\// 159\ / \ \\ 7 , L4 SHEET 4 OF 4 BY: GT DATE: 9/1812014 SCALE; ?5O' csw T.E CONSULTING, INC CIVIL ENGINEERING LAND PLANNING & SURVEYING 27156 BURBANK FOOThILL RANCH, CA. 92810 T. 949.916,3800 F. 949.916.3805 WVWJ.CVC-INC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD EXHIBIT C LOT 160 LEGAL DESCRIPTION ThE LAND REFERRED TO HEREIN IS 511UATED IN THE CITY OF NEWPORT BEACHI COUNTY OF ORANCE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL 1: LOT 160 OF THE SUBDIVISION OF BLOCK A'OF EAST NEWPORT, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 51 OF MISCELLANEOIJS MAPS, RECORDS OF ORANGE COUNTY, CALiFORNIA; TOGETHER WITH THAT POR11ON OF BUENA V1STA BOULEVARD L'YlNG BETWEEN THE N0R11-IWESTERLY PROLONGATION OF THE NORTHEASTERLY AND S0UTH'ESTERLY LINES OF SAID LOT 160. 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 —VEHICULAR PUBLIC ACCESS AND SIDEWALK MAINTENANCE PURPOSES. PARCEL 2: BEGINNING AT 11-3E POINT OF INTERSECTI0N OF THE NORTHWESTERLY LINE OF BUENA VISTA BOIJLEVARD WITh THE NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY LINE OF LOT 160 OF THE "SUBDIVISION OF BLOCI< 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 ITS INTERSEC110N WITH THE NORTHWESTERLY PROLONGA11ON OF THE SOUTHWESTERLY LINE OF SAID LOT 160; THENCE NOR1HWESTERLY ALONG 1HE LAST MEN11ONED PROLONGA11ON 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 CAIJFORNIA, 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 CERTIF1ED COPY OF 1ICH WAS RECORDED SEPTEMBER 19, 1928 IN BOOI< 203, PAGE 95 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY; THENCE NORTHEASTERLY ALONG THE SAID TIDE UNE TO THE INTERSEC110N Th SAID NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY UNE 0F SAID LOT 160; THENCE SOUTHEASTERLY ALONG SAID PROLONGATION TO 1'HE POINT OF BEGINNING. ct \ 2— S— t NCENT 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 CONStJLTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEVING 27156 BURUANK FOOTHILL RANCH, CA, 92610 T. 9499163800 F. 949.916.3805 WWW.CVC-INC.NET EXHIBIT "0" LOT 160 316 Buecia Visia Blvd. Page 1 of 3 316 Buena Vista Blvd. Page 2 of 3 3162uena Vista Bivd. Page 3 of 3 References: A. Brick Pianter: 30" 8. Smafl Tree: 120" - Required to be Iaced/thinned. 0. Succulents: 52" - Required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. D. Brick Tree Well: 34" E. Rose Bush: 50" - Required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. F. Fire Pit: 25" G. Brick Planter: 27" H. Grill Table: 50" 1. Grill: 63" J. Brick Carriage Waik: 6" ROVED AS TO L?ORM: City Attorney