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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 :ii [}i/!lIl 11111 JIII 1111 IIIIJI!III!!! Jt NO FEE 2015000119941 1.29 pm 03/09/15 232407AI2FI3 18 0.00 0.00 0.00 0.00 51.00 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 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