HomeMy WebLinkAboutC-5949(K) - Restrictive Covenant AgreementRECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City C!erk
City ofNewport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Recorded in Offc al Records, Orange County
Hugh Nguyen C e k-Recorder
11 ti 111111 1111 11 11111111 ij NO FEE
2015000119947 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 Recording 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 Department
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92660
RESTRICTIVE C�VENANT AGREEMENT
This Restrictive Covenant Agreement ("Agreement") is made by and between the City of
Newport Beach ("City") and Owner of 328 Buena Vista Boulevard C'Owner") with reference to
the foliowing:
A. Owner ("Owner") is the owner in fee ofthe real property commonly known as 328
Buena Vista Boulevard ("Property"). The Property is comprised oftwo 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 maintained 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. Insta11ation and maintenance of the various park -like improvements and structures in
the ROW is permitted pursuant to City Council Polity L-7, whieh recognizes that
Buena Vista Boulevard is used to provide non -vehicular access and views to the
waters ofNewport Bay.
E. On Octoher 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
access and views to the waters ofNewport Bay from the Existing Sidewaik by
controlling the height offuture improvements on the Vacated ROW. The Vacated
ROW is legaily described in Exhibit "A" and depicted in Exhibit "B" whieh are
attached hereto.
F. Owner aeknowledges 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:
VACATION PROCEEDINGS
This Agreement has no effect and will be deemed null and void ifthe Vacated ROW is
not vacated by City or the vacation is deemed void, invalid or ofno effect by a competent
Court oflaw.
2. CONDJTJONS AND RESTRICTIONS
Owner and City agree to the foliowing conditions and restrietions on the use ofthe
Existing Sidewaik, Relained 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 sirip of land that runs paraliel to and contiguous with the westerly
boundary ofthe Existing Sidewaik (collectively, the Existing Sidewaik and the additional
4' strip ofland is referred to as the "Retained ROW"). A maxirnum 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. IfCity eonstructs 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 Iocated. IfCity 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 liable for any in -
kind repair or replacement of Owner improvements.
C. The City agrees that the Existing Sidewaik, Expanded Sidewaik, andlor the Retained
ROW will not be used, at anytime, for vehicular access except as may be required from
tirne to time for ernergency or maintenance vehicle access.
D. Improvements existing on the Retained ROW and Vacated ROW as ofthe date ofthe
recording of this Agreement are depicted asid described in Exhibit "D" to this agreement
and incorporated herein by this reference and shall be ailowed to remain in place. Ifany
such improvements are removed and replaced, or ifnew improvements are instafled after
the date ofrecordation 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, immediateiy 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, exeluding
existing trees, shall not exceed forty-two inches (42") in height as measured from the
2
high point of the Existing Sidewaik immediately adjacent to such structure. New trees
and trees to replace existing trees niay be planted in the Retained ROW and the Vacated
ROW provided that the tree canopy is at least 7' at maturity as measured frow the high
point ofthe Existing Sidewaik or Expanded Sidewaik, as applicable, immediately
adjacent to such tree. Any landscaping and vegetation, exeluding trees, must immediately
be trimmed to a height not greater than forty-two inches (42") when the .maximum
al]owed height is reaehed, 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 of the 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
Encroachment Agreement.
H, Each and alt ofthe above covenants are hereby declared to be covenants running with the
land burdened by such eovenants 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 of this Agreement,
J. To the extent any of the covenants herein conflict with City Council Policy L-7, the
covenants in this Agreement shall prevail.
K. This Agreement can he modified ifapproved in writing by both Owner and City and
thereafler recorded in the offlcial Records of the County ofOrange,
3. MAINTENANCE
Owner agrees to maintain all iandscaping and vegetation in and on the Vaeated 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 rneasured from the high point ofthe
Existing Sidewaik or Expanded Sidewaik, as applicable, immediately adjacent to such
tree shall, ifpossible and not detrimental to the health ofthe tree, be pruned or Iaced to
maintain an openness that aliows some relieffrorn 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 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
Iandseaping or vegetation into eonformity with this Agreement, in the event Owner fails
to do so within thirty (30) days after written notice of non-compliance is served on
Owner. Owner shall pay City all reasonable costs assoeiated with enforcement ofthe
height restrictions on Iandscape and vegetation.
3
4. MUTUAL RELEASE
A. Owner and City (including offieers, agents, and employees) 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 respect ve control or maintenance ofthe Vacated ROW and
Retained ROW. Except for the Existing Sidewaik, Owner also acknowledges that the
maintenance ofthe private improvements and landseaping in the Retained ROW has been
the responsibi!ity ofOwner, or Owner's predecessors, since the installation ofthe
landscaping 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 fiffly understand the nature and extent ofthis release.
B. City releases and discharges Owner (ineluding heirs, exeeutors, administrators,
successors, and assigns) from any claini, 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 lo the date 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 clainis which the creditor does not know or suspect
to exist in his favor at the time ofexecuting the release, which if known by him must
have materiaily 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 U.S. Mail, first class postage
prepaid and addressed as foliows:
OWNER James P. Warmington, Trustee
Victoria P. Warmington, Trustee
328 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 caused this Agreement to be executed on
tIL_t,r 1., ,2014.
APPROVED AS TO FORM:
By: 7/7 VWt. kM '-
City Attorney
ATTEST:
By:
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
OWNER: VTW Buena Vista Qualified
Personal Residence Trust established
September 25, 1997, as to an undivided fifty
percent (50%) interest
es P. Warmington, C
By:
and
Trustee
Victoria P. Warmington, Qb-Trustee
JPW Buena Vista Qualified Personal
Residence Trust established September 26,
1997, as to an undivided fifty percent (50%)
interest
By:
By:
Victoria P. Wa
H:\CLIENT\Buena Vista Horneowners\Restrictve Covenant Agreement 141021 328.doo
LM 9.22.14
ngton, Cs rustee
CALIFORNJA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State (1 f CaI i fbrii ia
('ountv oi Orsc'
Da1&r 17, zoj
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1H1,rU IriserI narr'e ancl otle o he offlcerj
naliy appcarcd J5 't4 a'f V (vnc 'T.
hcfore
who provcd to me ori thc basis ef satisfactory cvidencc to he the person(s) whose narne(s)d/are subserbed tu
the Ivithin instrunient and acknovIcdied to me that 4ielstie/they executed the same 111 k4&hciitheir authorized
capacitvtes). and that by h4Tha'their signature(s) on the instrurnent thc person(s). or the entitv upon heb011 ot
which ihe persori(s) acted. executed the nstniment.
1 certfl3 under PFNAL'FY ()I PIiRJURY undcr the laws of'the :wti 9I_CajilQrnlajhaltheloregoirlg paragraph
s truc a ni correct.
\V I]NESS iuv kanci and off'icial seal.
GAThERINE GOLDMAN
Commlgsjon # 1940838
Notary Publlc - Cliltornia
Ornnp County
IyComm. Expires .lur, 19 2015
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EXHIBIT A
EXHIBIT A
LEGAL DESCRIPTION
PARTIAL VACATION OF BUENA VISTA BLVD.
1}IAT PORTION OF BUENA MSTA BOLJLEVARD AS SH04 ON SUBOIVISION OF ELOCK 'A' OF EAST
NEWI'ORT, PER MAP RECORDED IN BOOK 4, PAGE 51, OF MISCELLANEOUS MAPS, RECORDS 0F ORANGE
COUNTY, CALIFORNIA BONG DESCRIBED AS FOLLOWS:
COMMENCING AT NE MOST €STERLY CORNER OF LOT 167 OF SAID MISCELLANEOUS MAP ALSO BEING A
POINT ON NORThERLY RIGI-IT OF WAY BAY AVENUE (25.0 FEET HALE 1Th) AND A POINT ON NE
SOUTHERLY RIGHT OF WAY BUENA V1STA BOULEVARD;
THENCE LEAVING SAID CORNER ALONG SAID NORTHEASTERLY RIGHT OF WAY OF BAY AVENUE NORTH
78'30'34' WEST, 16.79 FEET TO 1HE TRUE P01NT OF BEGINNING;
11-IEN� CON11NUING ALONG SAID NOR11IEAS1ERLY RIGHT OF WAY NOR1H 78'30'34 WESF, 43.45 FEET;
11IENCE LEAVING SAID NORTHERLY RIGHT or WAY OF BAY AVENUE AND ALONG 1HE NORTHERLY RIGI-4T OF
WAY OF BtJENA VISTA BOULEVARD THE FOLLOWING COURSES:
NORTH 645554* EAST, 349.79 FEET; NORIH 43"22'3( EAST, 411.19 FEET;
ThENOE LEAVING SAID NORIHEASTERLY RIGHT OF WAY SOUTH 4615'05' EAST, 24.00 FEET TO A POINT ON
A UNE PARAU.EL WTh AND 10.00 FEET N0R1HWESTERLY, MEASUREO AT RIGHT ANGLES FROM THE
SOUIHERLY RIGHT 0F WAY OF SAID BUENA VISTA BOULEVARD;
1HEN� ALONG SAID PARAI.LEL UNE 1HE FOLLOWNG COURSES:
SOUTH 4322'34" WEST, 430.87 FEET; 1HENCE SOU1H 64'55'54" WESTI 303.81 itt 1 TO 1HE 1RUE POINT
OF BEGINNING
CONTAINS 16,878 SQ. FT (�1-) OR 0.39 ACRES (+1-) OF LAND, MORE OR LESS.
Alt AS PARTICIJLARLY SHOWN ON EXHIBIT "8", ATFACHED HERETO AND BY 1HIS REFERENCE MADE A PART
HEREOF.
NCENT W. SCARPA11 R.C.E. 33520 DATE
UC. EXP. DA1E 6-30-2016
> No. 33520
* Exp, 6/30/2016)
SHEET1OF4
BY: GT
DATE: 09/18/2014
SCALE: NONE
CSW iE1
CONSULTING, INC.
CIVIL ENGINEERING
LAND PLANN1NG & SURVEYING
27156 BURBANK
FOOThILL RANCH,
CA, 92810
11 949.916.3800
F. 949.916.3805
WWW.CVC-INC.NET
EXHIBIT "A'
VACATION
LEGAL DESCRIPTION
EXHIBIT B
LE0GEWATER AVE
14
SCALE: "=100'
/
LI
T.P.0.B.
1
6
UNE TABI.E
P40.
BEMING
LENGTH
1.1
N1B'30'3CW
60.24"
12
N7&30134*W
16.79'
L3
N78'30'34W
43.45'
14
N4615'05W
24.00'
\ t-_-'
-2-- -
'
148
149N/
/
/
,153N/"—.. _____.7
NOTE:
BUENA VISTA BOULEVARD SHOViN HEREON IS BASED ON 1HE WDTh OF 35.88' AS SH(Tht4 QN ASSESSORS PARCEL MAP.
BUENA 1STA BOIJLEVARD PER BL0c1< A EAST uEwoRr AS RECORDED P4 BOOK 4. PAGE 51 OF MISCELLANEOUS MAPS.
SHOWS A NDTh 0F 30.00'
SHEET 2 OF 4
BY: GT
DATE: 09/18/2014
SCALE: 1"lOO'
CSW T2'
CONSULTING, INC.
CIVIL ENGINEERING
LAND PLAHNING & SURVEVING
27156 BURBANI(
FOOThILL RANCH,
CA, 92610
T. 949.916.3800
if. 949.916.3805
WWW.CVC4NC.NET
EXHIBIT "B"
PART(AL VACATON OF
BUENAVISTA BLVD
SCALE 1"=50'
EXHIBIT B
UNE TABLE
NOE
BEARING
LENGIH
Li
N78'30'3VW
60.24"
L2
N78'30'34W
16.79'
L3
N78'30'3CW
43.45'
L4
N4615'OS"W
24.00'
-‚
\
\% ‚ 159
\%$ \ 160 \
162
T.P.O.B.
1?s\3&'
161
___c< 4c%\
\C
\ 165 \163
LI L2"
-4
BAYAVENU -
SHEET 3 OF 4
BY: GI
DATE: 9/18)2014
SCALE: t'c50'
CSN 1iE1
CONSULTH4G, INC.
CIVIL ENGINEERING
L.AND PL.ANNING & SURVEVING
27166 BURBANK
POOTHILL RANCH,
CA, 92610
T. 949.916.3800
P. 949.916.3805
WWW.CVC-INC.NET
EXHIBIT "B"
PARTIAL VACATION OF
BUENA VISTA BLVD
SCALE 1 50'
EXHIBIT B
/
/
/\
L4
\
14S\/
/
/
/ \151
/
/
/
/
-
>t\ ,\1534',/ -
\ 154/ K 7
\156 / /
/< /
159\ /
\ /
/
/
/
SHEET 4 OF 4
BY: GT
DATE: 9/18/2014
SCALE: 15O'
CONSULTING, INC.
CIVIL ENGINEERING
LAND PL.ANtIJNG & SURVEVING
27156 BURBANK
FOOThILL RANCH,
CA, 92810
T. 9499163600
if, 949.916,3805
W,CVC-INC.NET
EXHIBIT "B"
PARTIAL VACATION OF
BUENA VISTA BLVD
EXHIBIT C
LOTS 153-154
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITIJATED N THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE,
STATE OF CAUFORNIA, AND 5 DESCRIBED AS FOLLOWS:
PARCEL 1:
LOTS 153 AND 154 OF THE "SUBDMSION OF BLOCK A" OF EAST NEWPORT, AS SHOWN ON A MAP
RECORDED IN BOOK 4, PAGE 51 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA;
TOGETHER WITH THAT PORTION OF BIJENA 'VlSTA BOULEVARD LYNG BETWEEN THE NORTHWESTERLY
PROLONGATION OV NE NORTI-IEASTERLY LINE OF LOT 153 AND il-IE NORTHWESTERLY PROLONGA11ON OF
THE SOUTHWESTERLY LINE OF LOT 154.
RESER'VNG THEREFROM THE SOUTHEASTERLY 10.00 FEET OF SAID BUENA VISTA BOULEVARD, AS AN
EASEMENT IN FAVOR OF THE CITY OF NEWPORT BEACH FOR NON -VEHICULAR PUBLIC ACCESS AND
SIDEWALK MPJNTENANCE PURPOSES.
PARCEL 2:
BEGNNING AT THE POINT OF INTERSECTI0N OF THE NORTHWESTERLY LINE OF BUENA Y1STA BOULEVARD
WITH THE NORThWESTERLY PROLONGATION OF THE NORTHEASTERLY LINE OF LOT 153 OF li-IE "SUBDIV1SION
OF BLOCK A" OF EAST NEWPORT, AS BOTH SHOWN ON A MAP RECORDED IN 600K 4, PAGE 51 OF
MIS�LLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE SOUTHWESTERLY ALONG SAID
NORTHWESTERLY LINE OF BUENA VISTA BOULEVARD TO ITS INTERSEC110N WFTH TI-IE NORThWESTERLY
PROLONGATION OF THE SOUTHWESTERLY LINE OF LOT 154 OF SAID MAP; THENCE NORTHWESTERLY ALONG
THE LAST MEN11ONED PROLONGATION TO THE UNE OF ORDINARY HIGH TIDE OF THE PACIFIC OCEAN IN
NEWPORT BAY AS DESCRIBED IN THE DECREE RENDERED N ThE SUPERIOR COURT OF THE STATE OF
CAUFORNIA, IN AND FOR THE COUNTY OF ORANGE IN AN ACTION EN11TLED "CITY OF NEWPORT BEACH,
PLAINTIFF, 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 INTERSEC110N WITh SAID
NORTHWESTERLY PROLONGA11ON OF THE NORTHEASTERLY LINE OF SAID LOT 153; THENCE SOUTHEASTERLY
ALONG SAID PROLONGA11ON TO THE POINT OF BEGINNING.
' &JS taftiiar
'Q6CENT 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
t j.'.%/W
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 "C"
LOTS 153-154
328 Buena Vista Blvd.
Pagelofa
328 Buena Vista Blvd.
Page 2 af 3
328 Buena Vista Blvd. Page 3 of 3
References:
A. Shrub: 26"
8. Brck Wall: 25"
C. Back Wall: 18"
D. Inside Wall: 23"
E. Pottecl P!ant: 28'
F. Rose Bush: 46" - Requirecf to be trimmed and maintained to a maximum height af 42" above
sidewaik grade.
G. Plant Wall: 25"
H. Brick Carriage Waik: 4"
1. Large Tree: 124' - Required to be pruned to a minimum canopy height of 7.
APIPROVD AS TO 5ORM:
Attorney