HomeMy WebLinkAboutC-5949(G) - Restrictive Covenant AgreementRECORDING REQUESTED BY AND
WHEN RECORDED RETUIRN TO:
City Clerk
City ofNewport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Recordecj in Off c al Records, Orange County
Hugh Nguyen C e k-Reco der
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2015000119941 1.29 pm 03/09/15
232407AI2FI3 18
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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 ofNewport Beach
Public Works Department
100 Civie Center Drive
P.O. Box 1768
Newport Beaeh, CA 92660
RESTR[CTIVE COVENANT AGREEMENT
This Restrictive Covenant Agreement ("Agreement") is made by and between the City of
Newport Beach ("City") and Owner of 320 Buena Vista Boulevard ("Owner") with reference to
the foliowing:
A. Owner ("Owner") is the owner in fee ofthe real property commonly known as 320
Buena Vista Boulevard ("Property"). The Property is comprised oftwo separate
parcels: a residential parce! 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 riglit-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 located
various park-Iike improvements and structures installed by Owner and/or Owner's
predecessors n title.
D. lnstallation and maintenance ofthe various park-Iike improvements and structures in
the ROW is permitted pursuant to City Counci! 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 Counci! 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 ofNewport Bay from the Existing Sidewaik by
controlling the height of future improvements on the Vacated ROW. The Vacated
ROW is legalty described in Exhibit "A" and depicted in Exhibit "B" which are
attached hereto.
F. Owner acknowledges that City woutd not vacate any portion ofthe ROW, but for
Owner's agreernent to execute and record this Agreement.
NOW, THEREFORE, the Parties agree as foljows:
VACATJON PROCEEDINGS
This Agreement has no effect and will be deemed null and void ifthe Vacated ROW is
not vaeated by City or the vacation is deemed void, inva!id or ofno effeet by a competent
Court of !aw.
2. CONDITIONS AND RESTRTCTIONS
Owner and City agree to the foUowing conditions and restrictions on the use ofthe
Existing Sidewaik, Retained ROW and Vacated ROW:
A. The City shaH 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 (col!ectively, the Existing Sidewaik and the additional
4' strip of iand 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
maintenance purposes. IfCity eonstructs an Expanded Sidewaik it shall, at its sole eost,
remove any improvements in the 2' section ofthe Retained ROW where the Expanded
Sidewaik will be !ocated. If City 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 improvements and City shall not be Iiab1e 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
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 incorporated herein by this reference and shall be allowed to remain in place. Ifany
such improvements are removed and replaced, or ifnew improvements are installed afler
the date of recordation 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 applicable, immediately adjacent to such improvements. For purposes ofthis
Agreement portable items are not improvements nor subject to the height limits ofthis
agreement provided that such portable items do not unreasonabty 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 immediately adjacent to such structure. New trees
and trees to rep!ace existing trees may be planted in the Retained ROW and the Vacated
ROW provided that the tree canopy is at least 7' at maturity as measured from the hgh
point ofthe Existing Sidewaik or Expanded Sidewaik, as appticab!e, immediately
adjacent to such tree. Any landscaping and vegetation, excluding trees, must immediately
be trimmed to a height not greater than forty-two inehes (42") when the maximum
altowed 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 Agreernent 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 Eneroachment Agreement shal! continue to have the benefit ofsuch
Encroachment Agreement.
H. Each and all of the above covenants are hereby deciared to be covenants running with the
land burdened by such covenants and are hereby niade appurtenant to said land.
1. Iffor any reason any of the covenants herein contained is inva!id, the same shall not
affect the validity ofthe rernainder ofthis Agreement.
J. To the extent any ofthe 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
thereafter recorded in the Official Records ofthe County ofOrange.
3. MAJNTENANCE
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 Sidewaik, as
applieable, 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 Sidewalk, as applicab!e, immediately adjacent to such
tree shall, ifpossib[e and not detrimental to the health ofthe tree, be pruned or Iaced to
maintain an openness that allows some relief from 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 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
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. Oer shall pay City all reasonab!e costs associated with enforcement ofthe
height restrictions on landscape and vegetation.
3
4. MUTIJAL RELEASE
A. Owner and City (including offlcers, agents, and employees) agree to release and
discharge eaeh other from any claim, loss or liability or daniage 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
maintenanee of the private improvements and iandscaping in the Retained ROW has been
the responsibility ofOwner, or Owner's predecessors, since the instajiation ofthe
iandseaping and private improvements in the Retained ROW, through the date of
recordation ofthis Agreement. Owner and City have consulted with legal counsel and as
a result of that consultation fully understand the nature and extent of this release.
B. City releases and discharges Owner (ineluding heirs, executors, administrators,
suceessors, and assigns) from any elaim, 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 mutuai 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
lo exist in his favor at the time of executing the release, which ifknown by him must
have materially affected his settlement with the debtor."
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 115. Mali, first class postage
prepaid and addressed as follows:
OWNER Caroline M. Kinkle, Trustee
320 Buena Vista
Newport Beach, CA 92661
CITY City ofNewport Beaeh — City Manager
100 Civic Center Drive
Newport Beach, CA 92660
4
IN WLTNESS WHEREOF, the parties hereto have caused this Agreement to be executed on
,2014.
APPROVED AS TO FORM:
By:
ATTEST:
By:
City Attorney
CITY OF NEWPORT BEACH,
a Municipa! corporation
By:
K
City Manager '
OWNER: Kink!e Family Trust DTD
0ctober21, 1992
By:
Caroline M. Kinkle, trustee
H:\CLIENT\Buena Vista Honieowners'Restrjctjve Covenant Agreement 141021 320doc
LM 922.14
5
CALJFORNEA 4LL-P1JRPOSE
CERTJFICATE OF ACKNOWLEDGMENT
State af California
County o f YJ)
On before me, - L i tk 1
name and tit e of th o cer)
person al ly appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(-s-)-is/are-subscrjbed to
the within instrument and acknowledged to rne that tre/she/they executed the sarne iri his/her/thfrauthorjzed
capaeityfiee-and that by hisTher/their signatur$s)on the instrun,ent the persor1()-or the entity upon hehalfof
whieh the person(s-acted, executed the instnirnent,
1 eerti' under PENALTY OF PERflJRY under the laws ofthe State of California that the foregoing paragraph
is true and correct.
Gornmjssion # 2082999 t
2 — Notary Public - Ca!ifornia £
WITNE: 5/ d official seal, Los Angeles County
/ My Comm. Expires Apr 27, 2018 t
Srgnatureof V: 1 Pu. je
0'Jotary Seal)
ADDITrnNAL OPTJONAI INFOI&L�N
DESC 110 OF THE
Vsc
ATTACHED DOCUMENT
(Title or descnptron ol atlached docnment)
(Title or desc4phn ofattached document contirrued)
Nurnber ofPages T DocurnentDateDt% t1Z.
(Additionaj inforrnatton)
CnPAC1fl CLAIMED BY THE SiGNER
E lndividuaj (s)
E Corporate Officer
(Titie)
E Partner(s)
C Attorney -in -Fact
D Trustee(s)
E Other
INSTRUCTJONS FOR COMPLETD4G ThIS FORM
Am' acksou'kdgment compleftd tn CaI(fornia musf cosnain verbioge exocth' ar
oppears ethove in the notag' rechon or a separafe acknoi.i'?edgn,ent forn, musi be
properlv comp/eted and atgached /0 IJrn/ docnn,e,,t The on/j, excepfion 18 if a
doczunen; is lo be recorded ontside qf Ca/iforoia. 1,, meli i,,s,onccs, am a/ten,a/ne
acknrnviedgment verbioge as rnai be printed on such o documenf 80 long as the
verbiage does aol reqwre the nolary /0 do soneflnng that is diego! for 0 170/ary 10
Colifornia (Le. certifvzng Ilin authori:ed capaciry of (be signer). Pleasc chec* thc
dotumeni carefidlvforproper nolar,af worthng and anach th!sforn, jfrequired,
* State and County infni-mation moat be the State and County wbere the doctirnent
5150er(s) pentonally appeared hefnre the notary pubilo for ackriowledgment.
• Date of notanzatton rrnisl be the date Ibat the signer(s) personally appeared whjeh
rnnst also he the same date the aeknowledgnaent is compteted
• Tbe notary pubitc. nlust print has or her name as it appears within his or her
eommisston ?ollowed hy a comma and then your title Inotary pobile)
• Prrni the narnels) nt doeumenl. stgnertst who personallv appear at (he ume of
flotarlzntion
• indieate she eorreer singuiar or piura fornis hy eroasing 081 neorrect 1orms 0 e.
he/she/they,- is /lwe ) or rnreling the eontct forn,s Failure to cnrreetly indisate tt18s
infannatton 05)' ead to relection of dncurnent recording.
• The notary seal inipressson must be clear and photographiea(ly reproducjble
lmpressjon must nol eover texi or lines, 11 scsi impression smudsaes, re -seat if
suthetent area permits. otherwise enniptete a dtfferent aelrnowtedgmern forrrs
• Signature ofthe notary publie must niatch the signature no Ole with the office ot'
the counly clerit
• Adthtionat nfonnatton is nol required but eould help 10 ensure tht,
actmowledgment is not rrnsnsed or sftached 181 a different doeutuent
• tnthaate t,tle or type of attached 0000ment nuniber of pages and date
• (nd;eate the eapacity clanned hy the stgner. [8 Ibe elaimed cap000y ir. 3
corporate nfficer, indicatethei.ttte (s.e. CEO. CFO, Sccretaryy
• Scourely attach this docuntent 10 the signed documenl
2008 Version CAPA v12,10D7 800-8739365 wvwj'iotaryCiasses.corn
EXHIBIT A
EXHIBIT A
LEGAL DESCRIPTION
PARTIAL VACATION OF BIJENA VISTA BLVD.
ThAT PORIION OF BUENA VISTA BOUI.EVARD AS SH0Wt4 014 SUBDMSION OF BLOCK 'A' OF EAST
NEWPORT, PER MAP RECORDED 114 BOOK 4, PAGE 51, OF MISCEU..ANEOIJS MAPS, RECORDS OF ORANGE
COtJNTY, CAUFORNIA BEING DESCRIBED AS FCLLOWS:
C0MMEN1NG AT 11IE MOST WESIERLY CORNER OF LOT 167 OF SAID MISOELLANEOUS MAP ALSO BEING A
POINT 014 NOR1HERLY RGHT OF WAY BAY AVENUE (25.0 FEET HAll WUH) AND A PQINT DPI THE
SOUTHERLY RIGHT 0F WAY BUENA VISTA BOULEVARD;
IHENCE �A1NG SAID CORNER ALONG SAID NOR1}4EASTERLY RIGHT OF WAY OF BAY AVENUE NORTH
7W30'34" WEST, 16.79 FEET 'ID THE 1RUE POINT OF BEGINNING;
THEN� CON11NUING ALONG SAID NORTHEASTERLY RICHT 0f' WAY NORIH 78'30'34" WEST, 43.45 FEET;
1HENCE LEAVING SAID NOR1HERLY RIGHT OF WAY OF BAY AVENUE AND ALONG 1HE NORNERLY RIGHT OF
WAY OF BUENA VISTA BOULEVARD 1NE F01.LO1NG COURSES:
NORTH 64'55'5C EAST, 349.79 1±11; NOR11-I 4322'34" EAST, 411.19 F'EET;
1HEN� LEAVING SAID NOR1HEASTERLY RIGUT OF WAY SOUTH 4615'05 EAST, 24.00 FEET TO A POINT ON
A UNE PARAIJ.EL WITH AND 10.00 FEET NORIHWES1ERLY, MEASURED AT RIGHT ANGLES FROM ThE
SOUTHERLY RIGHT OF WAY OF SAID BUENA V1STA BOULEVARD;
11IENCE ALONG SAID PARALLEL UNE 1HE FOUMWING GOURSES:
SOUTH 43'22'34" WEST, 430.87 FEET; IHENCE SOUTH 64'55'54» WEST, 303.81 FEET TO 1HE TRUE POINT
OF BEGINNING
CONTAINS 16,878 SQ. Fi' (+/-) OR 0.39 ACRES (+/-) OF' LAND, MORE OR LESS.
AI.L AS PARTICJLARLY SHOWN ON EXHIBIT "B', ATTACHED HERETO AND BY mis REFERENCE MADE A PART
HEREOF'.
NCENT W. SCARPA11 R.C.E. 33520 DATE
UC. EXP. DATE: 6-30-2016
SHEET 10F4
BY: GT
DATE: 09/18/2014
SCALE: NONE
CONSULTING, INC.
CIVIL ENGINEERING
LAND PLANNING & SURVEY1NG
27156 BURBANK
FOOTHILL RANCH,
CA, 92610
T. 949.918.3800
F. 949.916.3805
W.CVC.INC.NET
EXHIBIT "A"
VACATION
LEGAL DESCRIPTION
1
EXHIBIT B
EXHIBIT B
QEOGEWATER AVE
L4
SCALE: 1" = 100'
/
LI
-
T.P.0.B.
P,0.c
1
€
UNE TABLE
NO.
BEARING
LENGTH
11
N7t30'3CW
60.24"
L2
N78'30'34°W
16.79'
13
1478'30'3CW
43.45'
1.4
N4615b05*W
24.00'
NOTE:
BIJENA 1STA BOULEVARD SH0t4 HEREON IS BASEB ON 1HE WIDTh OF 35.88' AS SHO%74 014 ASSESSORS PARCEL MAP.
BUENA MSTA BOULEVARD PER BL0CI< A EAST wEwoRr AS RECORDEO IN 8001< 4, PAGE 51 OF MISCEIiANEOUS MAPS.
SH0W A WD1}4 OF 30.00'
SIIEET 2 OF 4
BY: GT
DATE: 09/18/2014
SCALE: 1"tl�o'
CONSULTING, INC.
CIVIL ENGINEERING
LAND PLANNING & SURVEYING
27156 BLJRBANK
FOOThILL RANCH,
CA. 92610
T. 949.916.3800
F. 949.916.3805
¶M.CVC-INCNET
EXHIBIT "B"
PARTIAL VAGATION OF
BUENA VISTA BLVD
P\D'WC)�-OOl'
SCALE 1" = 50'
EXHIBIT B
UNE TABLE
NO.
BEARING
LENGTH
11
N78'30'34W
6OE24"
12
N7830*34*W
1619'
13
N78*30*34*W
43.45
14
N4615'O&W
24.00'
160 \
159
T.P.O.B.
c e$- t\162
\161
u.\166 165 164 163 \�?
\
-
Id
p.0.c
r
\
SHEETSOF4
8?: GT
DATE: 911812014
SCALE: 150'
CONSULTING, INC.
CIVIL ENGINEERING
LAIID PLANNING & SURVEYII4G
27156 BURBANK
FOOThILL RANCH,
CA, 82610
T. 949.916,3800
F. 949.916.3805
LCVC-INCi4ET
EXHIBIT "B"
PARTIAL VACATION OF
BUENA VISTA BLVD
"3
SCALE 1" = 50'
159
\ 157 N /
'/ /
7<
158 \\// N
'1
N
/
EXHIBIT B
/
/
/
/\
/
/\•
/\
/ \147
/ ¼ 14R
\ fl9\ /4
\15O >i
/ \151/ /
\(t\ 152\O/ / 1
/\ %I /
/
\ o.\i53$// /
\ 154 t/. 7
N 4CCV\
/
/
/
4
SHEET 4 OF 4
8?: GT
OATE: 9118/2014
SCALE: 15O
C.SW P
CONSULTING, INC.
CIVIL ENGINEERING
LAND PLANNING & SURVE'YING
27155 BtJRBANK
FOOThILL RANCH,
CA. 92610
T. 949.916,3800
if. 949.916.3805
VWW.CVC4NC.NET
EXHIBIT "B"
PAR11AL VACATION OF
RUENA VSTA BLVD
EXHIBIT C
LOT 158
LEGAL DESCRIPTION
IHE LAND REFERRED TO HEREIN IS SITUATED IN IHE crn' OF NEWPORT BEACH, COUN1Y OF ORANGE,
STATE OF CAIJFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 158 OF TIff SUBDIV1SION OF RLOCI< A'OF EAST NEWPORT, AS SHOWN ON A MAP RECORDED IN BOOK
4, PAGE 51 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CAIJFORNIA; TOGETHER W1H 1HAT
PORI1ON OF BUENA VISTA BOULEVARD LY1NG BETWEEN 1ME NORTHWESTERLY PROLONGATION OF IHE
NORTHEASIERLY AND S0UTHESTERLY UNES OF SAID LOT 158.
RESERV1NG 1HEREFROM THE S0U1HEAS1ERLY 10.00 FEET OF SAID BUENA VISTA BOULEVARD, AS AN
EASEMENT 114 FAVOR OF THE CITY OF NEWPORT BEACK FOR N0N-EHICUt.AR PUBUC AC�SS AND
SIDEWAIJ< MAINTENANCE PURPOSES.
PARCEL 2:
8EGINNING AT 1HE POINT OF IN1ERSEC110N OF THE NORTHWESTERLY UNE OF BUENA V1STA BOIJLEVARD
MTh 1HE NCRTHWESIERLY PROLONGA11ON OF THE NORTHEASIERLY UNE OF LOT 158 OF THE SUBDIVI510N
OF' BLOCI< A° OF EAST NEWPORT, AS BOIH SHOWN ON A MAP RECORDED 114 8001< 4, PAGE 51 OF
MISGELLANEOUS MAPS, RECORDS OF ORANGE COUN1Y, CALlV0RNIk 1HENCE SOU11IWESIERLY ALONG SAID
NORTH*ZSTERLY UNE OF BUENA VISTA BOULEVARD TO ITS INTERSEC110N WI1H IME NORIHWESTERLY
PROLONGATION OF THE SOUIHWESTERLY LINE OF SAID LOT 158; THENCE NOR1}IWESTERLY ALONG lHE
LAST MENTIONED PROLONGA11ON TO THE LINE OF ORDINARY HIGH 11DE OF THE PACIFIC OCEAN IN
NE1'ORT BAY AS DESCRIBED IN 1HE DECREE RENDERED IN THE SUPERIOR COURT OF IHE STATE OF
CAUFORNIA, 114 AND FOR 1HE COUNTY OF ORANGE IN AN ACTION ENI1RED Cffl' OF NEWPORT BEACH,
PLAJN1WF, VS BAY ISI.AND UB AND O1HERS, DEFENDANTSS, CASE 140. 24080, A �RTIF1ED COPY 0F
$IICH WAS RECORDED SEPTEL4BER 19, 1928 IN BOOK 203, PAGE 95 OF OFFIOAL RECORDS OF SAID
ORANGE COUN1Y; THEN� NORTHEASIERLY ALONG THE SAID 11DE UNE TO THE IN1ERSEC110N N SAID
NORTHWES1ERLY PROLONGATION OF THE NORTHEASTERLY UNE OF SAID LOT 158; THENCE 50U1}IEAS1ERLY
ALONG SAID PROLONGA11ON TO THE POINT OF BEGINNING.
4 NCENT W. SARPA11 R.C.E. 33520 DATE
110. EXP. DATE: 6-30-2016
SHEET 1 OF 1
BY: MOX
DATE: 11-17-2014
SCALE: NONE
•••") -••---
(&s' .
CONSULTING, INC.
CIVIL ENGINEERING
1*10 PIANN!NG & SURVEVING
27156 BURBANK
FOOTHtLL RANCH,
CA, 92610
T. 949.916.3800
1'. 949.918.3805
WWW.CVC-INC.NET
EXHIBIT "C"
LOT 158
EXHIBIT D
32OBuena Vista Blvd.
Page 1 of 2
32OBuenaVista Blvd.
References:
Page 2 of 2
A. Shrub: 49" Required to be trimmed arid maintained to a maximum height of 42" above
sidewaik grade.
B. Raised Curb: 9"
0. Smalt Plants: 22"
D. Potted Plants: 49" - Required lo be trimmed and maintained to a maximum height of 42" above
sidewaik grade.
E. Brick Carriage Waik: 4"
OVED AS TO L?ORM:
CityAttomey