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Home My WebLink AboutC-5949(J) - Restrictive Covenant AgreementRECORDING REQUESTED BY AND ' WHEN RECORDED RETURN TO: City Cierk City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Recorded in Off ca1 Records, Orange County Hugh Nguyen C erk-Recorde 11111 H 1111 II IlilIlIMIll H NOFEE *$g00073 7516$ 2015000119944 1 29 pm 03109115 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 Recorcling Request per Government Code 27383 and 6103 TITLE OF DOCUMENT: RESTRICTIVE COVENANT AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City ofNewport Beach Public Works Depariment 100 Civic Center Drive P.O. Box 1768 Newport Beach, CA 92660 RESTRLCTIVE COVENANT AGREEMENT This Restrictive Covenant Agreement ("Agreement") is made by and between the City of Newport Beach ("City") and Owner of 326 Buena Vista Boulevard ("Owner") with reference to the following: A. Owner ("Owner") is the owner iri fee ofthe real property commonly known as 326 Buena Vista Boulevard ("Property"). The Property is comprised oftwo separate parcels: a residential parcel on which a horne is buiit ("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 \1ista 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 of the ROW are located various park -like improvements and structures insta]led by Owner and/or Owner's predecessors in title. D. Insta1Iation and maintenance ofthe various park -like improvements 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 ofthe ROW (the "Vacated ROW") provide non -vehicular aceess and views to the waters ofNewport Bay from the Existing Sidewalk by eontrolling the height of fiiture improvements on the Vacated ROW. The Vacated ROW is legally 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 Agreement. NOW, THEREFORE, the Parties agree as foliows: L VACATJON PROCEEDINGS This Agreement has no effect and will be deemed null and void ifthe Vacated ROW is not vacated by City or the vaeation is deemed void, invalid or ofno effect by a competent Court oflaw. 2. CONDITIONS AND RESTRJCTJONS 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 mainlain the Existing Sidewaik and, if expanded as set forth below, the expanded sidewaik. B. The Vacated ROW is the ROW with the exception of the Existing Sidewaik and an additional 4' wide strip of land that runs paraliel to and eontiguous with the wester!y boundary ofthe Existing Sidewaik (collectively, the Existing Sidewaik and the additional 4' strip ofland is referred to as the "Retained ROW"), A maximum of 2' ofthe Retained ROW ean 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. lfCity construets an Expanded Sidewaik it shal!, at its sole cost, remove any improvements in the 2' section ofthe Retained ROW where the Expanded Sidewaik will be located. IfCity constructs an Expanded Sidewaik or uses the 2' section ofthe Retained ROW for sidewaik rnaintenancepurposes, it shall exercise due care to protect and not damage any Owner improvements and City shall not be liable for any in - kind repair or replacement ofOwner improvements. C. The City agrees that the Existing Sidewaik, Expanded Sidewaik, and/or the Retained ROW will not be used, at anytime, for vehieular access except as may be required from time to time for emergency or maintenance vehiele access. D. lmprovements existing on the Retained ROW and Vacated ROW as ofthe 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 place. If any such improvements are removed and replaced, or ifnew improvements are installed afier the date ofrecordation ofthis Agreernent, they shall not exceed forty-two inches (42") in height as measured from the high point ofthe Existing Sidewaik or Expanded Sidewaik, as applicable, immediat&y adjacent to such improvements. For purposes ofthis Agreernent portable items are not improvements nor subject to the height limits ofthis agreement provided that such portable items do not unreasonably obstruet the views to the waters ofNewport Bay. E. Landscaping and vegetation in the Retained ROW and the Vacated ROW, exeluding existing trees, shall not exceed forty-two inches (42") in height as measured from the 2 high poirit ofthe Existing Sidewaik immediately 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 tree canopy is at least 7' at maturity as measured from the high point ofthe Existing Sidewaik or Expanded Sidewaik, as applicable, imrnediately adjacent to such tree. Any landscaping and vegetation, excluding trees, must immediateiy 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 shall 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 shall continue to have the benefit of such Encroachment Agreernent. 1-1. 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 any of the covenants herein contained is invalid, the same shall not affect the validity of the remainder ofthis Agreement. J. To the extent any ofthe covenants herein eonflict 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. MAINTENANCE 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 SidewaJk or Expanded Sidewaik, as applicable, immediately adjacent to such tree shall, ifpossible and not detrimental to the health ofthe tree, be pruned or laced to maintain an openness that allows sorne relieffrom a solid wall ofeanopy 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 10 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 shali have the right to enter onto the Vacated ROW to bring the landscaping or vegetation mb confoimity with this Agreement, in the event Owner fails to do so within thirty (30) days afier written notice ofnon-compliance is served on Owner. Owner shall pay City all reasonable costs associated with enforcement ofthe height restrictions on Iandscape and vegetation. 3 4. MUTUAL RELEASE A. Owner and City (including officers, agents, and employees) agree to release arid discharge each other froni any claim, loss or Iiability or damage that now exists, that is in any way related to their respeetive eontrol or maintenance ofthe Vacated ROW and Retained ROW. Except for the Existing Sidewaik, Owner also acknow!edges that the rnaintenance ofthe private improveinents and landscaping in the Retained ROW has been the responsibility ofOwner, or Owner's predecessors, since lhe installation ofthe landscaping and privale 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 ofthis release. B. City releases and discharges Owner (ineluding heirs, executors, administrators, successors, and assigns) from any claim, Ioss, liability or damage that is in any way related 10 Owners improvements to, or rnaintenanee or control of, the Retained ROW or Vacated ROW prior to the date this Agreement is recorded. C. In granting their rnutual releases, Cily and Owner waive the provisions of Section 1542 ofthe Civil Code thal 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 ifknown by him must have rnaterially affected his settlernent with the debtor." 5. NOTICES Notices required to be sent pursuant to this Agreement shall be deenied given when personaily delivered to the Party or when deposited in the U.S. Mail, first class postage prepaid and addressed as follows: OWNER Holly G. Winder 326 Buena Vista Newport Beaeh, CA 92661 CITY City ofNewport Beach City Manager 100 Civic Center Drive Newport Beaeh, CA 92660 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on 'eaMX,V )S ,2014. APPROVED AS TO FORM: By: ATTEST: City Attorney CITY OF NEWPORT BEACH, a Municipa! eorporation B y: OWNER: Holly G. Winder, a Widow and the Estate of Miguel G. Winder By and The Estate ofMiguel G. Winder By: H:CLIENTBuena Vista HorneownersRestrictive Covenant Agreeinent 141021 326doc LM 92214 5 Holl indera Widow y n.er, Executrix ALL-PURPOSE ACKNOWLEDGMENT • 0 $ 0 0 0 $ $ 0 $ 0 $ $ $ 00 se e•e-e State ofCalifornia County of On bPJU4&V DATE personaily appeared 000 -eec eec eeee }SS. before me, t{t CC. 4 CLtvvQv1 6 basis of satisfactory evidence to be the person45 whose name .1 ,(Lor. BROOKE A, CLEMENTS t\ Con.# 2060976 ,! -JN0TARYFUBLiC-CALWQRt1lA My Co,w Ejp, Mn, 16, 2011t who proved to me on the islare subscribed toShwithin instrument and acknowledged to me that-he(sijj/thv7executed the same in 4thrii authorized capacityic, and that by frist?ttrtr signature(4'&n the instrurnent the person( or the entity upon behalf of which the person5cted, executed the instrument. 1 eertify ander PENALTY OF PERJURY under the taws of the State of California that the for-egoing paragraph is true and correct. WITNESS my hand and offieial seal. NOTARY'S SIC3NATURE PLACE NOTARY SEAL IN ABOVE SPACE OPTIONAL INFORMATION The information below is optional. However, it may prove valuable and could prevent fraudulent attachnient ofthis forni to an unauthorized document. CAPACITY CLAJMED BY SIGNER (PRINCLJ'AL) DESCRIPTION OFATTACI-JED DOCUMENT LI n 'LI ID $ 0 $ INDJVIDUAL CORPORATE OFFICER PARTNER(S) ATTORNEY -IN -FACT TRUSTEE(S) GUARDIAN/CONSERVATOR OTHER: TITLE(S) SJGNER (PRINCIPAL) IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(JES) \-c3kyicf1'Je. Lcx&ia*t Ar2cta 'k TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES \Q\g DATE0F!0CUM NT R1GHT THUMBPRINT OF SIGNER OTHER $ 0 0 $ •e-e-e-ee-e--000ee-ee-eeeee-e-eeeeee 0-e- 0-0 - 00000 APA 01/2008 NOTARYBONDS, SUPPLIESAND FORMSATWITP WWW\ALLEY-SIE AGOM -/2005-2008 ALLEY'SIERRA INSURANCE EXHIBIT A LEGAL DESCRIPTION PARTIAL VACATION OF BUENA VISTA BLVD. NAT POR11ON OF BUENA 1STA BOtJLEVARD AS SHOWN ON SUBDMSION OF BLOCI( #A OF' EAST NEWPORT. PER MAP RECORDED IN BOOK 4, PAGE 51, OF MISCELLANEOIJS MAPS, RECORDS OF ORANGE CO(JNTY, CAUFORNIA BEING DESCRIBED AS FOLLOWS: COMMENCING AT 11IE MOST WESTERLY CORNER OF LOT 167 OF SAID MISCELLANEOUS MAP ALSO BEING A POINT ON NORTHERLY RIGHT OF WAY BAY AVENUE (25.0 FEET HAll WITH) AND A POINT ON ThE SOUIHERLY RIGHT OF WAY BUENA VISTA BOIJLEVARD; 1}IENCE LEMING SAID CORNER ALONG SAID NORTHEAS1ERLY RIGHT OF WAY OF BAY AVENUE NORIH 78'30'3C WEST 16.79 FEET TO 11IE TRUE POINT OF BEGINNN0; THENCE CON11NUING ALONG SAIO NORTHEASTERLY RIGHT OF WAY NORIH 7&30'34" WEST, 43.45 ftti; 1HENCE �ANG SAID NORIHERLY RIGHT or WAY OF BAY AVENUE AND ALONG IHE NORTHERLY RIGHT 0F WAY OF BIJENA V1STA BOULEVARD 1HE FOLLOWNG COURSES: NORTh 54.5554fl EAST, 349.79 FEET; NOR1H 4Y22'34" EAST, 411.19 FEET; NEN� LEMING SAID NOR1HEASTERLY RIGHT OF WAY SOUTH 46'15'05' EAST, 24.00 FEET TO A POINT ON A UNE PARAU.EL WI1H AND 10.00 FEET NOR1HMSTERLY, MEASURED AT RIGHT ANGLES FROM THE SOU1HERLY RIGHT OF WAY OF SAID BUENA VISTA BOULEVARD; THENCE ALONG SAID PARALLEL UNE THE FOLLOWING COURSES: SOUTH 4322'34" WEST, 430.87 FEET; IHENCE SOU11-I 645554* WEST, 303.81 FEET TO THE 1RUE POINT OF BEGINNING CONTAINS 16,878 SQ. FT (+/-) OR OE39 ARES (+/-) OF LAND, MORE OR LESS. ALL AS PARTICULARLY SHOW?4 ON EXHIBIT WBN, A11'ACHED HERETO AND BY 11115 REFERENCE MADE A PART HEREOF. NOENT W. SCARPAI1 R.C.E. 33520 DATE UC. EXP. DA1E: 6-30-2016 No. 33520 Exp. 6/30/2016 5. CpJ SHEET 1 OF 4 BY: GT DATE: 0911812014 SCALE: NONE C8zVtE CONSULTING, INC. CIVJL ENGINEERING LAND PLAJOIING & SURVEVING 27156 BURBANK FOOThILL RANCH, CA, 92610 T. 949.916.3800 F. 949,916.3805 VWV.CVC-INC.NET EXHIBIT R' VACATION LEGAL DESCRIPTION '3 j SCALE: 1" = 100' - - T.P.0.8. - EXHIBIT B 1 UNC TABIE NOE BEARING LENG1H 11 N7830'3?W 60.24" 12 N7t30'34"W 16.79' 13 N78'30'34"W 43.45' 14 N4615'05W 24.00' \ \_—' -.3_-- — (EDGEWATER AVE 2\147 146 149N 151 150 / 152 \ 7,, NOTE: BUENA MSTA BOULEVARD SHOV.t4 HEREON 13 BASED 011 1HE WDN 01' 35.88' AS SHO%N ON ASSESSORS PARCEL. }AAP. SUENA 1STA BOULEVARD PER "BLOCI( A EAST NEw'oRr AS RECORDED IN BOOK 4. PAGE 51 01' MISCEtLANEOUS MAPS. SHOWS A WDI# 01' 30.00' 1 4 / SHEET 2 OF 4 B't': GT OATE: 09/18/2014 SCALE ?=100' CSN Ir CONSULTING, INC. GIVIL ENGINEERING LAND PLANNING & SURVEVING 27156 SURBANK FOOThILL RANCH, CA, 92610 T. 949.916.3800 F. 949.916.3805 Wm.CVC-INC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD 2 8 2 2 s EXHIBIT B LJNE TASLE NO. BEARING LENGTH Li N78'30'34W 60.24" 12 N78'30'34"W 16.79' 13 N7W30'3CW 43.45' 14 N4615'OSW 24.00' SCALE 1"=50' 1 \ 66 T.P.0.8. P.o.c '3' .3. fl9 SHEET 3 OF 4 BY: GT DATE: 9118/2014 SCALE: ?50' c&v i: CONSULTING, INC CIVIL ENGINEERING LAND PL.ANNING & SURVEVING 27156 BURBANK FOOTIIILL RANCH, CA, 92610 T. 949.916.3800 P. 949.916.3805 Wm.CVC4NC.NET EXHIBJT "B" PARTIAL VACATION OF BLJENA VISTA BLVD 2 2 SCALE 1" = 50' EXHIBIT B •\ 153, / 't€P N \156 / \157N/ / / /1 158 1 \. \ \- / / / 7 1 L4 / SHEET 4 OF 4 BY: GT DATE: 9/18/2014 SCALE: 150' csv 'r CONSULTING, INC. CIVIL ENGINEERING LAND PL.ANNJNG & SURVEYING 27156 BURBANK FOOThILL MNCH, CA. 92610 T. 949.916.3800 F. 949.916.3805 W.CVC-INC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD LOT 155 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANCE, STATE OF CALIFORNIA, AND 15 DESCRIBED AS FOLLOWS: PARCEL 1: LOT 155 OF THE SUBDIV1SI0N OF BLOCK A"OF EAST NEWPORT, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 51 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CAUFORNIA; TOGETHER WITH THAT POR11ON OF BUENA STA BOULEVARD L'flNG BETWEEN THE NORTHWESTERLY PROLONGATION 0V THE NORTHEASTERLY AND SOUTHWESTERLY LINES OF SAID LOT 155. RESERVJNG THEREFROM THE SOUTHEASTERLY 10.00 FEET OF SAID BUENA VJSTA BOULEVARD, AS AN EASEMENT IN FAVOR OF THE CITY OF NEWPORT BEACH FOR NON -VEHICULAR PUBLIC ACCESS AND SIDEWALK MAINTENANCE PURPOSES. PARCEL 2: BEGNNING AT THE POINT OF INTERSEC110N OF THE NORTHWESTERLY UNE OF BUENA VISTA BOULEVARD WITH THE NORTHWESTERLY PROLONGA11ON OF THE NORTHEASTERLY LINE OF LOT 155 OF THE "SUBDIV1SI0N 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, CAUFORNIA; THENCE SOUTHWESTERLY ALONG SAID NORTHWESTERLY LINE OF BUENA VJSTA BOULEVARD TO ITS INTERSECTI0N WFFH THE NORTHWESTERLY PROLONGATION OF li-IE SOUTHWESTERLY LINE OF SAID LOT 155; THENCE NORTHWESTERLY ALONG THE 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 CALIFORNIA, IN AND FOR THE GOUNTY OF ORANGE IN AN AC11ON ENT1ThED "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 CDUNTY; THENCE NORTHEASTERLY ALONG THE SAID TIDE LINE TO THE INTERSEC110N Th SAID NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY LINE OF SAID LOT 155; THENCE S0U11-IEASTERLY ALONG SAID PROLONGA11ON TO THE POINT OF BEGINNING. >L tr'tsa-t —S- VJNCENT W. SCARPA11 R.C.E. 33520 DATE LIC. EXP. DATE: 6-30-2016 > No. 33520 Cxp. 6/30, 2016 SHEET 1 OF 1 BY: MOX DATE: 11-17-2014 SCALE: NONE c&v CONSULTII'IG, INC. CIVIL ENGINEERING LAND PLANNING & SURVEYING 27156 BURBANK FOOTHILL RANCH, CA, 92610 T. 949.916.3800 F. 949.916,3805 WWW.CVC-INC.NET EXHIBIT "C" LOT 155 EXHIBIT D 326 Buena Vista Blvd. Pagel of$ 26 Buena Vista Blvd. Page 2 of 3 326 Buna Vista Blvd. Page 3 of 3 References: A. Wall: 18.5" B. Potted Bamboo: 58.5" - Required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. C. Shrub: 335" D. Potted Tree: 77.5" - Required to be iaced/thinned. E. Thorn Bush: 62.5" - Required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. F. lnside Shrub: 61.5" - Required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. G. Raised platform to Dock: 11.5" H. Brick Carriage Waik: 5.5" AflROVED AS TO ORM: Gity Attorney loltuth1