HomeMy WebLinkAboutC-5949(I) - Restrictive Covenant AgreementRECORDING REQUESTED BY AND
WHEN RECOITtDED RETURN TO:
City Clerk
City ofNewport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Recorded in 0ffca1 Records Orange County
Hugh Nguyen C erk-Recorder
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THIS SPACE FOR RECORDER'S USE ONLY.
Exempt Recording Request per Goverument Code 27383 and 6103
TITLE OF DOCUMENT:
RESTRICTIVE COVENANT AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Newport Beach
Pubile Works Department
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92660
RESTRICTIVE COVENANT AGREEMENT
This Restrictive Covenant Agreement ("Agreerneot") is made by and between the City of
Newport Beach ("City") and Owner of 324 Buena Vista Boulevard ("Owner") with referenee to
the foliowing:
A. Owner ("Owner") is the owner in fee of the real property commonly known as 324
Buena Vista Boulevard ("Property"). The Property is comprised of two 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, from 30.00' to 35.88'.
C. The ROW has been improved with a 6' wide public sidewaik ("Existing Sidewaik")
constructed and rnaintained by the City and, in the remainder ofthe ROW are located
various park -like improvements and structures installed by Owner and/or Owner's
predecessors in title.
D. Insta1Iation and rnaintenance ofthe various park -like improvements and structures in
the ROW is peiiiiitted 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 froin 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 would not vaeate 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 effeet 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 Vacated 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 wester!y
boundary ofthe Existing Sidewaik (collectively, the Existing Sidewaik and the additional
4' strip of!and is referred to as the "Retained ROW"). A maxirnum 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
rnaintenance purposes. If City eonsti-ucts 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. IfCity constnjcts 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 irnprovements 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 anytime, for vehicular access except as may he required from
time to time for emergency or maintenance vehicle access.
D. Improvements existing on the Retained ROW and Vacated ROW as ofthe date ofthe
recording ofthis Agreeinent are depicted and described in Exhihit "D" to this agreement
and incorporated herein by this reference and shall be allowed to remain in place. If any
such improvements are removed and replaced, or ifnew irnprovements are installed afier
the date ofrecordation of this Agreernent, they shali not exeeed forty-two inches (42") in
height as measured from the high point of the Existirig Sidewaik or Expanded Sidewaik,
as applicable, imniediately adjacent to such improvements. For purposes ofthis
Agreement portable items are not improvements 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, exc!uding
existing trees, shall not exceed forty-two inches (42") in height as measured from the
2
high point of the Existing Sidewaik imrnediately adjacent to such structure. New trees
and trees to replace existing trees inay be planted in the Retained ROW and the Vacated
ROW provided that the tree canopy is at least 7' at maturity as measured frorn the high
point of the Existing Sidewaik or Expanded Sidewaik, as applicable, immediately
adjacent to such tree. Any Iandscaping ancl vegetation, exeluding trees, must immediately
be trirnmcd 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 Federal law regarding persons with
d isab i liti es.
G. This Agreement shall not alter any rights or obligations ofthe City or the Owner in
conneetion with any recorded Encroachment Agreements, and any Owner subjeet to a
recorded Encroaehment 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 land.
1. Iffor any reason auiy of the covenants herein contained is invalid, the same shall not
affeet the validity of the remainder ofthis Agreernent.
J. To the extent any of the covenants herein eonfliet 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 offieial Records ofthe County ofOrange.
3. MAINTENANCE
Owner agrees to maintain all landscaping and vegetation in and 011 the Vacated ROW and
Retained ROW, with the exeeption 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 adjaeent to such
tree shall, ifpossible and not detrimental to the health ofthe tree, be pruned or laeed to
maintain an openness that aliows some relief from a so!id wall ofcanopy 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 eannot 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 eonforniity with this Agreement, in the event Owner fails
to do so within thirty (30) days afier written notice of non-eomplianee is served on
Owner. Owner shall pay City all reasonable eosts associated with enforeement ofthe
height restrictions on landscape and vegetation.
3
4. MUTUAL RELEASE
A. Owner and City (including officers, agents, and ernpioyees) agree to release and
discharge each other from any claim, loss or liability or damage that now exists, that is in
any way related to their respective control or maintenance ofthe Vaeated ROW and
Retained ROW. Except for the Existing Sidewalk, Owner also acknowledges that the
maintenance of the private improvements and landscaping in the Retained ROW has been
the responsibiiity ofOwner, or Owner's predecessors, since the installation ofthe
landscaping and private improveinents in the Retained ROW, through the date of
recordation of this Agreement. Owner and City have consulted with legal eounsel and as
a result of that 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 damage that is in any way
related 10 Owners improvements to, or maintenance or control of, the Retained ROW or
Vacated ROW prior to the dale 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 if known by him must
have inaterially affeeted his settlerrient with the debtor."
5. NOTICES
Notices required to be sent pursuant to this Agreenient 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 John J. Gless, Co -Trustee
Janet A. Gless, Co -Trustee
324 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 eaused this Agreement to be executed on
,2014.
APPROVED AS TO FORM:
ATTEST:
By:
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
OWNER: Gless Family Trust restated
November 30, 1999
By:
By:
H:\CLIENT\Buena Vista HomeownersRestrictive Covenant Agreeinent ] 41021 324doc
LM 92214
5
oiji)i. Gless, Co -Trustee
net A. Gless, Co -Trustee
CALJFORNIA ALLPURPOSE ACKNOWLEDGMENT
Stato of California
County of.
RIVERSIDE
personaily appeared
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before me, SHANA CESARIO, NOTARY PUBLIC
Here Ineed Neme and Tltle
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SHANACESARIO
COMM.#2005368
Notary Pubtic - CaUforfla —
RVERSDE COUNTY -
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place Notary Seat and/or Starep Aboye
who proved to. me on the basis ef satisfaotory
evidence to be the perso
subsoribed to the ithininstrLfrnent and aoknowlectged
to methat hSiheexecutcd the same n
authorized capaoi 4p and thst by
signature on the instrurnent the
persor)$ or the entity upon behalf of which the
perso»hcted, .executed the instrument.
1 certify under PENALTY OF PERJURY under the
laws of the State ol' California that the forgoing
paragraph is tfue and correct.
Signatur
OPTIONA4L
whose nam
Though the informatian befow /9 not requ/recf by Iaw, /t may prove va!uab/e to persons ralying on the document
and couldprevent frandulent removal and reattachnient of th/s forrn to another donunient
flescrlption of Attache
TWa or Type of Qocument:
Docunient Date:
Sigrier(s) Other Than Named Above:
capaclty(ies)E!irpd by Sign
Signcr's Name\S4'7O -ji LIt
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o lnclividual
o Partner — 0 Llrnited 0 General
o Attorney in Faot
Trustee
o Guardian or Conservator
o Other:
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—tigner's Name:
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EXHIBIT A
LEGAL DESCRIPTION
PARTIAL VACATION OF BUENA VISTA BLVD.
1}IAT POR11ON OF BUENA VISTA BOULEVARD AS SHOW?I ON SUBDIMSION OF BLOCK 'A' OF EAST
NEWPORT. PER MW RECORDED 114 BOOK 4, PAGE 51, OF MISCELLANEOUS MAPS, RECORDS OF ORANGE
CO(JN1Y, CAUFORNIA BEING DESCRIBED AS FOLLOWS:
C0MMENNG AT THE MOST WESTERLY CORNER OF LOT 167 OF SAID MIS�LLANEOUS MAP ALSO BEING A
POINT ON NORIHERLY RIGUT OF WAY BAY AVENUE (25.0 FEET HAll WFTH) ANO A POINT ON THE
SOUTHERLY RIGHT OF WAY BUENA VISTA BOIJL.EVARD;
11IENCE LEA1NG SAID CORNER ALONG SAID NORTHEASTERLY RIGHT OF WAY OF BAY AVENUE NORTH
7W30'34" WEST, 16.79 FEET TO 1HE 1RUE POINT OF BEGINNING;
1HEN� CON11NUING ALONG SAID NORTHEASTERLY RIGHT OF WAY NORIH 78'30'34" WEST, 43.45 FEET;
IHENCE LEAMNG SMD NOR1HERLY RIGHT OF WAY OF BAY AVENUE AND ALONG 1HE NORIHERLY RIGHT OF
WAY OF BUENA VISTA BOULEVARD THE FOE.LOWING COURSES:
NORTH 64.55)541 EAST, 349.79 FEET; NORIH 4322'34" EAST, 411.19 FEET;
1HEN� LEAVING SAID NOR1HEASTERLY RIGHT OF WAY SOUIH 46,5)051 EAST, 24.00 FEET TO A POINT ON
A UNE PARAIJIL WITH AND 10.00 FEET NOR1HWESTERLY, MEASURED AT RIGHT ANGLES FROM 1HE
SOU1HERLY RIGHT 0F WAY OF SAID BUENA MSTA BOULEVARD;
THENCE ALONG SALD PARAJ IPi UNE 1HE FOLLOWING C0URSE&
SOUN 43'22'34" WEST, 430.87 H± 1; IHENCE SOUTH 64.55'54" WEST, 303.81 itt 1 TO IHE TRUE POINT
OF BEGINNING
CONTAINS 16,878 SQ. FT (+/-) OR 0.39 ACRES (+1-) OF LAND, MORE OR LESS.
Ath AS PAR11CULARLY SHOWN 014 EXHIBIT "B A1TACHED HERETO AND BY 11415 REFERENCE MADE A PART
HEREOF.
NCENT W. SCARPA11 R.C.E. 33520
UC. OCR. DAIE 6-30-2016
DATE
£SS
w.soe#
. r'
No. 33520
Exp. 6/30/2016
Cjy _,
SHEET 1 OF 4
BY: GT
DATE 09118/2014
SCALE: NONE
C&V i:
CONSLJLTING, INC
CIVIL ENGINEERING
LAND PLANNING & BURVEVING
27155 BURBANK
FOOThILL RANCH,
CA, 92610
T. 949.916.3800
1'. 949.916.3805
VWWV.CVC-INC.NET
EXHIBIT "A"
VACATION
LEGAL DESCRIPTION
EXHIBIT B
EXHIBIT B
QEOGEWATER AVE
14
ScALE: 0 100'
1
/
0
-<4
T.P.0.B.
-
— 0
p.0,c
UNE TABIE
NO.
8EANG
LENGTH
11
N7830'34'W
60.24"
12
N78'30'34W
I6.7Q'
L3
N7830'3.CW
43.45'
L4
N4615'O&W
24.00'
148\
1' 149\>,, 1
\151 50/
152\ /
NOTE:
BUENA MSTA BOULEVARO SH0Y4 I1ERE0N IS BASED ON THE WWIH OF 35.88' AS SHOWN ON ASSESSORS PARCEL MAP.
BUENA MSTA BOULEVARO PER DLOCX A EAST NEwpoRr AS RECORDED IN 800K 4, PAGE 51 OF MISCEU.ANEOUS MAPS.
SHOWS A Y4DT14 0P 30.00'
SHEET 2 OF 4
BY: GT
DATE: 09/18(2014
SCALE: ?loo'
C&V Ti
CONSULTING, INC.
CIVJL ENGINEERING
LAND PLANNING & SURVEYING
27156 BURBANK
FOOThIU. RANCH,
CA, 92610
T. 949.916,3800
F. 949.916.3805
vwm.CVC4NC.NET
EXHIBIT "B"
PARTIAL VACATION OF
BUENA VISTA BLVD
SCALE 1" = 50'
1.1
r
T.P.O.B.
EXHIBIT B
UNE TABIE
NO.
BEARING
LENGTH
11
N78'0'34W
60.24"
L2
N78'30'34W
16.79'
13
N7&30'340W
43.45'
14
N461505W
24.00'
\
\_ p.0,c
�t.
.-----
159
.f 162
\161
k
164 \1R \''c
\165\
-
-
SHEET 3 OF 4
BY: GT
DATE: 9118/2014
SCALE: 1"=SO'
CSN
CONSULTING, INC.
CIVIL ENGINEERING
LAND PLANNING & SURVEVING
27156 SURBANK
FOOThILL RANCH,
CA, 92610
T. 949,916.3600
P. 94OE916.3805
.CVC-INC.NET
EXHIBIT "B"
PARTIAL VACATION OF
BUENA VSTA BLVD
EXHIBIT B
SCALE 1" = 50'
SHEET 4 OF 4
BY: GT
DATE: 9/18/2014
SCALE: 1"=50'
CSV iEi
CONSIJLTING, INC.
CIVIL ENGINEERING
LAND PLANNING & SURVEYING
27156 BURBANK
EOOThIU. RANCH,
CA, 92610
T. 949,916.3800
F. 949916.38O5
WCVC-INC.NET
EXHIBIT "B"
PARTIAL VACATION OF
BtJENAVISTABLVD
LOT 156
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITIJATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 156 OF THE 'SUBDIVlSION OF BLOCK A' OF EAST NEWPORT, AS SHOWN ON A MAP RECORDED IN BOOI<
4, PAGE 51 OF' MISCELLANEOUS MAPS, RECORDS OF ORANGE COIJNTY, CALIFORNIA; TOGETHER W1Th THAT
POR11ON OF BUENA V1STA BOULEVARD L'1NG BETWEEN THE NORTHWESTERLY PROLONGAI1ON OF IHE
NORTHEASTERLY AND SOUTHWESTERLY LINES OF SAID LOT 156.
RESERVINC THEREFROM THE SOUTHEASTERLY 10,00 FEET OF SAID BUENA V1STA BOULEVARD, AS AN
EASEMENT IN FAVOR OF THE CITY OF NEWPORT BEACH FOR NON -VEHICULAR PUBLIC ACCESS AND
SIDEWALK MAINTENANCE PURPOSES.
PARCEL 2:
BEGINMNG AT THE POINT OF INTERSECTI0N OF THE NORTHWESTERLY LINE OF BUENA VISTA BOULEVARD
WITH THE NORTHWESTERLY PROLONGA11ON OF THE NORTHEAS1ERLY LINE OF LOT 156 OF THE "SUBDMSION
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 S0U11-1WESTERLY ALONG SAID
NORTHWESTERLY LINE OF SUENA V1STA BOULEVARD TO ITS INTERSEC110N WITH 1HE NORTHWESTERLY
PROLONGA11ON OF NE SOUTHWESTERLY LINE OF SAID LOT 156; THENCE NORTHWESTERLY ALONG THE
LAST MEN11ONED PROLONGATION 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
CALIFORNIA, IN AND FOR THE COUNTY OF ORANGE IN AN ACTION EN11TLED "CITY OF NEWPORT BEACH,
PLAIN11FF, VS BAY ISLAND CLUB AND OTHERS, DEFENDANTS", CASE NO. 24080, A CERTIFIED COPY OF
WHICH WAS RECORDED SEPTEMBER 19, 1928 IN BOOK 203, PAGE 95 OF OFFICIAL RECORDS OF SAID
ORANGE COUNTY; THENCE NORTHEASTERLY ALONG THE SAID TIDE LINE TO THE INTERSECTI0N WITH SAID
NORTHWESTERLY PROLONGA11ON OF THE NORThEASTERLY LINE OF SAID LOT 156; THENCE SOUTHEASTERLY
ALONG SAID PROLONGA11ON TO THE POINT OF BEGINNING,
\- S-
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
c&v
CONSULTING, INC.
CIVIL ENGINEERING
LAND PLANNING & SURVEVING
27156 BURBANK
FOOTHILL RANCH,
CA, 92610
T. 949916.3800
F. 949.916.3805
WWW.CVC-INC.NET
EXHIBIT 'TC"
LOT 156
3Q4 Buena Vista Btvd.
Page 1 of 3
324 Buena Vista Blvd.
Page 2 of 3
324 Buena Vista Blvd. Page 3 of 3
References:
A. Brick Planter: 20"
B. Shrub: 48" - Required to be trimmed and maintained to a maximum height of 42" above
sidewaik grade.
C. Back Wall: 21"
APPROVED AS TO Th
City Attomey
(O(IL1(ILI