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HomeMy WebLinkAboutC-5949(F) - Restrictive Covenant AgreementRECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Recorded in Offical Records Orange County Hugh Nguyen Clerk-Recorde 0 IFI 0 II 11111111 I 11 llI 1 1 11 NO F EE *$RDOOT3 7 91$* 2015000119940 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 �NLY. Exempt Recording Request per Governmeut Code 27383 and 6103J TITLE OF DOCUMENT: RESTRICTIVE COVENANT AGREEMENT RECORDENG 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 rriade by and between the City of Newport Beach ("City") arid 0wnerof318 Bueria Vista Boulevard ("Owner") with referenee to the foliowing: A. Owner ("Owner") is the owner in fee of the real property commonly known as 318 Buena Vista Boulevard ("Property"). The Property is eomprised of two separate parcels: a residential parcel on which a honie 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' 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 ofthe ROW are Iocated various park -like improvernents and structures installed by Owner and/or Owner's predecessors in title. D. !nstallation and maintenance ofthe various park-Iike improvements and structures in the ROW is permitted pursuant ;o 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 "Vaeated ROW") provide non -vehicular aceess 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 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 Agreerrient. NOW, THEREFORE, the Parties agree as foliows: VACATION PROCEEDINGS This Agreement has no effect and wil! be deemed null and void if'the Vacated ROW is not vacated by City orthe vacation is deemed void, invalid or ofno effect by a competent Court of Iaw. 2. CONDITIONS AND RFSTRICTIONS Owner and City agree to the foliowing conditions and restrictions on the use ofthe Existing Sidewaik, Retained ROW and Vaeated ROW: A. The City shail maintain [he Existing Sidewaik and, ifexpanded as set forth below, the expanded sidewaik. B, The Vacated ROW is the ROW with the exceprion ofthe Existing Sidewaik and an additional 4' wide strip of land that runs paraile! to and eontiguous with the westerly boundary ofthe Existing Sidewa!k (col!ectively, the Existing Sidewa!k and the additional 4' strip ofland is referred to as the "Retained ROW"). A maxinium of 2' ofthe Retained ROW can be used for future sidewaik expansion ("Expanded Sidewaik") hy the City and the remaining 2' ofthe Retained ROW can be used by the City on!y for sidewaik maintenance purposes. lfCity constructs an Expanded Sidewaik it shati, at its sole cost, remove any improvenients in the 2' section ofthe Retained ROW where the Expanded Sidewaik will be !ocated. !fCity constructs an Expanded Sidewaik or uses the 2' section ofthe Retained ROW f'or sidewa!k maintenarice purposes, it shall exercise due care to protect and not damage any Owner irriprovements and City shal! not be IiabIe for any in - kind repair or rep!acerrient ofowner irnprovements. C. The City agrees that the Existing Sidewaik, Expanded Sidewaik, and/or the Retained ROW wil! not be used, at anytime, for vehicular access exeept as may be required from time to time for emergency or maintenance vehic!e access. D. lmprovements existing ori the Retained ROW and Vacated ROW as ofthe date ofthe recording of this Agreement are depicted and described in Exhibit "D" to this agreement and incorporated herein by this referenee and shall be allowed to remain in place. !fany such improvements are rernoved and replaced, or ifnew improvements are insta!Ied after the date of recordation ofthis Agreement, they shal! not exceed forty-two inebes (42") in height as measured from the high point ofthe Existing Sidewaik or Expanded Sidewaik, as applicab!e, immediatety adjacent to such improvements. For purposes ofthis Agreement portable items are not iniprovements nor subject to 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 p!anted in the Retained ROW and the Vacated ROW provided that the tree canopy is at Ieast 7' at maturity as measured from the high point ofthe Existing Sidewaik or Expanded Sidewaik, as applicable, irnmediately adjaeent 10 such tree. Any Iandscaping 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 shal! 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 shal! continue to have the benefit ofsuch Eneroachment Agreernent. H. Each and al! ofthe above covenants are hereby dee!ared to be covenants running with the land burdened by sueh eovenants and are hereby inade appurtenant to said land. 1. Iffor any reason any of the covenants herein eontained is invalid, the sarne shall not affect the validity ofthe remainder ofthis Agreement. J. To the extent any of the covenants herein eonflict with City Couneil Po!iey L-7, the covenants in this Agreement shail prevail. K. This Agreement can be niodified 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 andscaping and vegetation in and on the Vacated ROW and Retained ROW, with the exception ofthe Existing Sidewaik or Expanded Sidewaik, as applicab!e, at or below the height speeifled in this Agreement. Any trees which have a eanopy or foliage whieh extends below 7' as measured from the high poinl ofthe Existing Sidewaik or Expanded Sidewaik, as applicable, immediately adjacent 10 such tree shall, ifpossible and not detrimental to the hea!th ofthe tree, be pruned or Iaced to rnaintain an openness that aliows some relief from a solid wall ofcanopy or fo!iage 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 ofthe plant or shrub and in sueh case they shall be trimmed or pruned to be 75% opaque. City shall have the right to enter onto the Vaeated ROW to bring the Iandscaping or vegetation into conformity with this Agreement, in the event Owner fails to do so within thirty (30) days after written notiee ofnon-comp!ianee is served on Owner. Owner shall pay City all reasonable costs associated with enforcement ofthe height reslrictions on Iandscape and vegetation. 3 LY 4. MUTUAL RELEASE A. Owner and City (including officers, agents, and ernployees) agree to release and discharge each other from any claim, loss or liability or damage ibat now exists, that is in any way reiated to their respective control or maintenance ofthe Vacated ROW and Retained ROW. Except for the Existing Sidewalk, Owner also acknowledges that the maintenance ofthe private improverrients and Iandscaping in the Retained ROW has been the responsibility of Owner, or Owner's predecessors, sirice the installation ofthe landscaping and private improvements in the Retained ROW, through the date of recordation ofthis Agreernent. Owner and City have consulted with legal counsel and as a result of that consultaiion fully understand the nature and extenr ofthis release. B. City releases and diseharges Owner (ineluding heirs, exeeutors, administrators, successors, and assigns) from any claim, Ioss, Ilability 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 ofSection 1542 ofthe Civil Code that reads as follows: "A general release does not extend to claims whieh the ereditor does not know or suspeet to exist in his favor at the time of executing the release, whieh ifknown by him must have materially affeeted his settlement with the debtor." 5. NOTICES Notices required to be sent pursuant to this Agreement shall be deemed given when personalty delivered to the Party or when deposited in the U.S. Mali, first class postage prepaid and addressed as foliows; OWNER Darryl C. Preedge, Trustee 318 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 herero have caused this Agreenient to be executed on Z.J /%j APPROVED AS TO FORM: By: ATTEST: By: City Attorney s. bD4- City Clerk CITY OF NEWPORT BEACH, a Munieipal corporation By: C.- City Manager OWNER: The DCP 2000 Revocabfe Trust U/D/T June 28, 2000 Bv: Darry! C. Preedge, Trustee H:\CLIENT\Buena Vista Homeowners\Restrictive Govenant Areement 1410213 8doc LM 92214 5 State ot California County of Orange ACKNOWLEDGMENT ) On 12/19/2014 before rne Peria A. Gouldirig, Notary Public (insert name and title of the officer) personaily appeared Darryl 0. Preedge who proved to me on the basis of satisfactory evkience to be the »Qrson(s) whose name()(1are subscribed to the within instrument and acknowledged to me thaflje/she/they executed 4he same in fiYher/their authorized capacityq�), and that byijij/her/their signaiure(s) on the instrument the prson(, orthe entity upon behalf ofwhichthe person) acted, executedthe instrument. 1 oertify under PENALTY OF PERJURY under the laws of the State of California that the foregaing paragraph is true and correct. WITNESS!rny_han; andofficial seal. (Seal) PERLA A. GOULDING 1 Sfl coeu. mlflT$ qfl 0yRyPUUUC.CMOR fl OIAJ*OEGOUWTY - .... raaq. is.&.. Nt?. It c)owurv\ 2Q Rp Au EXHIBIT A EXHIBITA LEGAL DESCRIPTION PARTIAL VACATION OF BUENA VISTA BLVD. THAT POR11ON OF BIJENA 1STA BOIJLEVARO AS SHOWN ON SUBDMSION OF' BLOCI< 'A' OF EAST NEWPORT, PER MAP RECORDED N BOOK 4. PAGE 51, OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CAUFORNIA BEING DESCRIBED AS FOLLOWS: COMMENOING AT 1HE 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 Wilil) AND A POINT ON THE SOUThERLY RIGHT OF WAY BUENA V1STA BOULEVARD; THENCE LEAVING SAID CORNER ALONG SAII) NOR11IEASTERLY RIGHT OF WAY OF BAY AVENUE NORTH 7830'34" WEST, 16.79 FEET TO THE TRUE POINT OF BEGINNING; 1HENCE CON11NUING ALONG SAID NORTHEASTERLY RICHT OF' WAY NOR1H 78'30'34" WEST, 43.45 FEET; THENCE LEAVING SAID NORTHERLY RIGHT OF WAY 0F BAY AVENUE AND ALONG il-IE NORTHERLY RIGHT CF WAY 0F BUENA V1STA BOULEVARD THE FOLLOWING COURSES: NORTH 64'55'54" EAST, 349.79 FEET; NORTH 4322'34" EAST, 411.19 FEET; THENCE LEAVING SAID NOR1}IEASTERLY RIGHT OF WAY SOUTh 4615'05 EAST, 24.00 FEET TO A POINT ON A UNE PARAUIL WITEI AND 10.00 FEET NORTHWESTERLY, MEASURED AT RIGHT ANGLES FROM TME SOUThERLY RIGHT OF WAY OF SAID BUENA VISTA BOULEVARD; ThENCE ALONG SAID PARALLEL UNE il-IE FOLLOWING COURSES: SOIJTh 4322'34" WEST, 430.87 FEET; 11-IENCE SOU11l 6(55'54" WESTI 303.81 FEET TO IHE 1RUE PO}NT OF' BEGINNINC CONTAINS 16,878 SQ. FT (+1-) OR 0.39 ACRES (+/-) OF LAND, MORE OR LESS. Alt AS PAR11CULARLY SHOWN ON EXHIBIT T, ATtACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. NCENT W. SCARPA11 R.C.E. 33520 UC. EXP. DATE: 6-30-2016 DATE SHEETI 0F4 9?: GT DATE: 09/18/2014 SCALE: NONE C&V kE CONSULTING, INC CIVIL ENGINEERING LAND PLANNING & SURVEYING 27156 BURBANK FOOTHILL RANCH, CA, 92610 T. 949,916,3800 1'. 949.918.3805 WWW.CVC-INC.NET EXHJBIT "A" VACATION LEGAL DESCRIPTION 1 g 5 2 0. EXHIBIT B SCALE: 11! = 100 EXHIBIT B 0 -\-. , T.P.0,B. LI p.0.c - N UWE TABLE NO. BEARING LENC1H 11 N78'30'34W 60.24" (2 N7&30'3CW I6.79 L3 N7830'34W 43.45' L4 N4615'OSw 24.00 QEDGEWATER AVE /\1 148 \ 149\ K150/ 151 152\ N OTE: BUENA 1STA BOULEVARD SHOV#4 HERCON IS BASED CN 111E DTh 0!' 35.85' AS SHOVTh ON ASSESSORS PARC� MAP. BUENA 1STA BOIJLEVARD PER tL0CI< A EASt NE'oRr AS RECOROED IN 8001< 4, PAGE 51 OF MISCEU.ANEOUS MAPS. SHOWS A M0Th4 0!' 30,00 1 14 / SHEET2OF4 BY: GT DATE: 09/18/2014 SCALE: ?100' c&v L; CONSULTING, INC CIVIL ENGJNEERING LAND PLANNING & SURVEVING 27156 BURBANK FOOThILL RANCH, CA. 92610 T. 949.916.3800 F. 949.916.3805 w.CVC-!NC.NEr EXHIBIT "B" PARTIAL VACATIQN OF BUENA VISTA BLVD SCALE 1'50 12.0.8. LI -1 0,c 1 - 160\ r .a C\162\ 161 .- \ \ \_ \ t" -- -- — 165\ 163 \i 66 \ . EXHIBIT B IJNE TABLE NO. BEARING LENGIH Li N78'30'3CW 60,24" L2 N75'3034W 16.79 L3 N78'3034'W 43.45' L4 N4615'OSW 24.00' - / SHEET3OF4 BY: GT DATE: 9/18/2014 SCALE: iw=501 C&V Li1 CONSIJLTING, INC GIVIL ENGINEERING LAND PLANNING & SURVE'YING 27156 BURBANK FOOTHILL RANCH, CA, 92610 T. 949.916.3800 F. 949.916,3805 .CVC-INC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD 3 tu EXHIBIT B / / \147 / \14 149 /\ >// \ iso/ / / / \isi /1 \(\ 152 \/// I / N 7/ / / .\ l53p, / -%--.- 1 / \ 7 £ 1557< \ 156 / \\ 157 2 / 159 / \ SHEET4OF4 BY: GT DATE: 9/18/2014 SCALE: 150' c&v rE1 CONSULTING, INC CIVIL ENGINEERING LAND PLANNIHG & SURVEVING 27156 BURBANK FOOThILL RANCH, CA, 92610 T. 949,916.3800 F. 949.916.3805 vwm.cVc1NC.NEr EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD EXHIBIT C LOT 159 LEGAL DESCRIPTION THE LAND REF'ERRED TO HEREIN iS SITIJATED IN THE CITY OF NEWPORT BEACH, COIJNTY OF ORANGE, STATE OF CALJFDRNIA, AND 15 DESCRIRED AS FOLLOWS: PARCEL 1: LOT 159 OF THE UB0IV1SI0N OF BLOCI< AOF EAST NEWPORT, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 51 OF MIS�LLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CAIJFORNIA; TCGE1HER Th THAT POR11ON OF BUENA VISTA ROULEVARD LY1NG BETWEEN IHE NORTHWESIERLY PROLONGA11ON OF THE NOR1HEASTERLY AND SOUIHWESTERLY LINES OF SAID LOT 159. RESER'VlNC THEREFROM IHE SOUTHEASTERLY 10.00 FEET OF SAID BUENA 1STA BO%JLEVARD, AS AN EASEMENT IN F'AVOR 0F THE CITY OF NEWPORT BEACH FOR NON-VEHIcIJLAR PUBUC ACCESS AND SIDEWAJJ( MAIN1ENANCE PURPOSES. PARCEL 2: BEGINNING AT THE POINT OF INTERSEC110N OF' THE NORTHWESIERLY UNE OF BUENA V1STA BOIJLEVARD W1Th THE NCRTHWESTERLY PROLONGA11ON OF THE NORTHEASTERLY UNE OF LOT 159 OF THE *SUBDI\ISl0N OF BLOCK A0 CF EAST NEWPORT, AS B01H SHOWN ON A MAP RECORDED IN BOOI< 4, PAGE 51 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CAUFORNIA; THENCE S0U1HWES'TERLY ALONG SAID NORTHWESTERLY UNE OF BUENA 'ASTA BOULEVARD TO 115 IN1ERSEC110N Wilil THE NORTHWESTERLY PROLONGATION OF THE SOUIHWESTERLY LINE OF SAID LOT 159; 1HENCE NORTHWESTERLY ALONG THE IAST MENfl0NED PROLONGAI1ON TO THE LINE OF ORDINARY HIGH 11DE OF THE PACIF1C 0CEAN IN NEWPORT BAY AS DESCRIBED IN THE DECREE RENDERED 114 ThE SUPERIOR CQURT OF THE STATE OF CAIJFORNIA. 114 AND FOR THE COUNTY OF ORANGE IN AN ACflON ENI1ThED CITY OF NEWPORT BEACH, PLAIN11FF, VS BAY ISLAND CLUB AND OTHERS, 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 NORTHEASTERLY ALONG 1HE SAID TIDE UNE TO 1}IE INTERSECTI0N WTH SAID NORThWESTERLY PROLONGABON OF THE NOR1HEASIERLY UNE OF SAID LOT 159; ThENCE SOUTHEASIERLY ALONG SAID PROLONGA11ON 10 THE P01141 CF BEGINNING. \2-t W4CENT W. SCARPATI R.C.E. 33520 DATE UC. EXP. DAIE: 6-30-2016 SHEET 1 OF 1 BY: MOX DATE: 11-17-2014 SCALE: NONE C&v rr CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & $URVEYIHG 27156 BLJRBANK FOOTI-ULL RANCH, CA, 92610 T. 949.916.3600 F. 949,916.3805 WWW.CVC-INC.NET EXHIBIT "C" LOT 159 EXHIBIT D 31 Buena Vista Blvd. Page 1 of 3 38 Buena Vista Blvd. Page 2 of 3 v 318 Buena Vista Blvd. Page 3 of 3 References: A. Ptants: 28' 6. 6rickWafl: 15" 0. Rased Pavement: 9U D. Brick Carriage Waik: 5" AP?ROVEJ) AS TO Gity Attorney ORM!