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HomeMy WebLinkAboutC-5949(M) - Restrictive Covenant AgreementRECORDING REQLJESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Recorded in OffcaI Records Orange County Hugh Nguyen C erk Recorde 11 U0lI 11 110 1111 11 111101 IU 11 NO FE *$R00073475 9$ 2015000119949 1:29 pm 03109115 232407Al2F13 19 0.00 0.00 0.00 0.00 54.00 0.00 0.00 0.00 E THLS SPACE FOR RECORDER'S USE ONLY. Exempt Recording Request per Government Code 27383 and 6103 TITLE OF' DOCUMENT: V1 RESTRICTIVE COVENANT AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City ofNewport Beaeh Public Works Department 100 Civie Center Drive P.O. Box 1768 Newport Beach, CA 92660 RESTRICTIVE COVENANT AGREEMENT This Restrictive Covenant Agreement ("Agreement") is made by and between the City of Newport Beach ("City") and Owner of 334 Buena Vista Boulevard ("Owner") with reference to the foliowing: A. Owner ("Owner") is the owner in fee of the real property commonly known as 334 Buena Vista Boulevard ("Property"). The Property is cornprised oftwo separate parcels: a residentiai parcel on which a honie is built ("Parcel 1") and a bay front parcel ("Parcel 2"). The Property is legally 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 3000' to 35.88'. C. The ROW has been irnproved with a 6' wide public sidewaik ("Existing Sidewaik") constnicted and maintained by the City and, in the rernainder of the ROW are loeated various park-iike improvements and structures installed by Owner and/or Owner's predecessors in title. D. Insta11ation and maintenance ofthe various park -like improvernents and structures in the ROW is permitted pursuant to City Couneil 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 access and views to the waters ofNewport Bay from the Existing Sidewaik by controlling the height of fiiture improvements on the Vaeated ROW. The Vaeated ROW is legaily 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. 1 NOW, THEREFORE, the Parties agree as foliows: 1. VACATION PROCEEDINGS This Agreement has no effect and will be deemed nuli and void ifthe Vacated ROW is not vacated by City or the vacation is deemed void, inva!id 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 additionai 4' wide strip of land that runs parailel to and contiguous with the westerly boundary ofthe Existing Sidewaik (collectively, the Existing Sidewaik and the additional 4' strip ofland is referred 10 as the "Retained ROW"). A maximum of 2' ofthe Retained ROW can be used for fiiture 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 constructs an Expanded Sidewaik it shall, at its sole cost, remove any improvements in the 2' section OEfthe Retained ROW where the Expanded Sidewaik will be located. 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, 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. Improvernents 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 after the date of recordation ofthis Agreement, they shall not exceed forty-two inches (42") in height as rneasured 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 improvernents nor subject to the height limits 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, excluding existing trees, shall not exceed forty-two inches (42") in height as rneasured from the 2 high point ofthe Existirig Sidewaik immediately adjacent to such structure. New trees and trees to replaee existing trees inay be planted in the Retained ROW and the Vacated ROW provided that the tree canopy is at ieast 7' at maturity as measured from the high point ofthe Existing Sidewaik or Expanded Sidewaik, as applieable, immediately adjacent to such tree. Any landscaping and vegetation, excluding trees, must immediately be trirnrned to a height not greater than forty-two iriches (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 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 Encroachrnent 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 any ofthe covenants herein contained is invalid, the sarne shall not affect the validity of the remainder ofthis Agreement. J. To the extent any ofthe covenants herein conflict with City Council Policy L-7, the covenants in this Agreement shaU prevail. K. This Agreement can be modified ifapproved in writing by both Owner and City and thereafter recorded in the Official Records of the County of Orange. 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 Sidewaik or Expanded Sidewaik, as applicable, immediate!y adjacent to such tree shall, ifpossible and not detrimental to the health ofthe tree, be pruned or laced to maintain an openness that aJlows some relieffrom a solid wall ofcanopy or foliage as to that portion which is below 7', and be 75% opaque. City recognizes that there rnay be some existing plants or shrubs that cannot be trirnmed 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 conformity with this Agreement, in the event Owner fails to do so within thirty (30) days after written notiee of non-compliance is served on Owner. Owner shall pay City all reasonable costs associated with enforcement ofthe height restrictions on landscape and vegetation, 3 4. MUTUAL RELEASE A. Owner and City (including officers, agents, and employees) agree to release and discharge each other from any claini, loss or liability or darnage 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 maintenance of the private improvements and landscaping in the Retained ROW has been the responsibiiity ofOwner, or Owner's predeeessors, since the installation ofthe landscaping and private irnprovenients in the Retained ROW, through the date of recordation of this Agreement. Owner and City have consulted with legal eounsel and as a result ofthat consultation fully understand the nature and extent of this release. B. City releases and discharges Owner (including heirs, executors, administrators, suecessors, and assigns) froni any claim, ]oss, 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 lhis 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 ereditor does not know or suspect to exist in his favor at the time of exeeuting the release, which if known 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 U.S. Mail, first class postage prepaid and addressed as foliows: OWNER James R. Simpson, Trustee Susan J. Simpson, Trustee 334 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 011 ,2014. APPROVED AS TO FORM: B ATTEST: By: City Attorney City Clerk CITY OF NEWPORT BEACH, a Municipal corporation By: City Manager OWNER: Simpson Family Trust UDT 2/24/97 By»fft& 2Ltt{)3r±TYLL) S4k ames R. Simpson, Trustee By:.L1. TkuUc Susan J. Skhpson, Trutee H:\CLIENTfluena Visia Houieowneis\Restrictive Covenant Agreenient l4 021 334doc LM 92214 5 CALIFORNIA NOTARY ACK. /JURAT-ATTACHED , pCi20': ACKNOWLEDGMENT State of california County of ORANGE On ) before me, R.H. BADANI, Notary Pub!ic (insert name and title of the officer) personafly appeared 3CLnno1c R x4 ,'9Daoi -4' SL4oa'7i who proved to me on the basis of satistactory evidence to be the person(s) whose namd(s)t/are subscribed to the wthin instrument and acknowledged tp me that he/ehelthey executed the same in hisRtStheir authorized capactty(ies), and that by ki&her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. VV1TNESS my hand and official seal. signatLlre (Seal) R. 11, BADANI COMM,1977059 g NOTARY PU$tIC.C4LrFoqij4 H OPANGECOVNTY W Moy3i, OPTIONAL Though thc infonnatior, helow not requircd by Iaw. it may provc vduabIc 10 persons rclyiog on tlie docunicnt and cotiid prcvcnt I';z,ndn}cnt re,iioval ''id reattachinent 0 F 1 is forrn 10 anot her docu,ncnt Deseription ofAttacbed Documcnt Title or Type ofDocunicnt: IQto\-nck u C Y Cu Document Date: I\ Numbcr ofPages: Signer(s) Other That Named Above: (Not neluding this page) 0 Q,Y}1_isE' EXHIBIT A EXHIBIT A LEGAL DESCRIPTION PARTIAL VACAT!ON OF BUENA VISTA BLVD. ThAT POR11ON OF SUENA V1STA BOULEVARD AS SHOMI ON SUBDIVISION OF BLOCK 'A' ar EASt NEWPORT, PER MAP RECORDED IN 8001< 4, PAGE 51, OF MISCEI±ANEOUS MAPS, RECORDS 0F ORANGE COUNTY, CAUFORNIA BEING DESCRIBED AS FOLLOWS: C0MMENING AT NE MOST WESIERLY CORNER OF LOT 167 OF SAID MISCELLANEOUS MAP ALSO BEING A POINT ON NORIHERLY RIGHT OF WAY BAY AVENUE (25.0 FEET HALF WTTH) AND A POINT ON ThE SOUThIERL.Y RIGHT OF WAY BUENA V1STA BOULEVARD; ThENCE LEA1NG SAID CORNER ALONG SAID NORTHEASTERLY RIGHT OF WAY GE BAY AVENUE NORIH 7830'34" WEST, 16.79 FEET TO 1HE TRUE P0NT OF BEGINNING; THENCE C0NflNtJING ALONG SAID NORTHEAS1ERLY RIGHT OF WAY NORTH 7830'34" WEST, 43.45 FEET; THENCE LEAMNG SAID NORTHERLY RIGHT OF WAY OF BAY AVENUE AND ALONG 1TIE NORIHERLY RIGHT 0F WAY OF BUENA VISTA BOIJLEVARD IHE FOLLO*1NG COURSES: NORTH 64'SS'SC EAST, 349.79 FEET; NOR1H 43'22'34" EAST, 411.19 FEET; ThEN� LEAVING SAID NORTHEASTERLY RIGHT OF WAY SOUTH 4615'05" EASTI 24.00 FEET TO A POINT ON A UNE PARALLEL 1Th AND 10.00 ILtI NORTHWESTERLY, MEASURED AT RIGHT ANGLES FROM THE SOUTHERLY RIGHT OF WAY OF SAID BUENA VISTA BOULEVARD; ThENCE ALONG SAID PARAILEL UNE THE F0LLOW1NG COURSES: SOUTH 4322'34" WEST, 430.87 FEET; 1HENCE SOU1H 64'55'54" WEST, 303.81 FEET TO THE 1RUE POINT OF BEGtNNING CONTAINS 16,878 50. FT (�1-) OR 0.39 ACRES (+/-) OF LAND, MORE OR LESS. ALL AS PAR11CULARLY SHOWt4 ON EXHIBIT "8, ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. NCENT W. SCARPA11 R.C.E. 33520 UC. EXP. DATE 6-30-2016 DATE ESSioj-. t tp' , No. 33520 Exp. 6/30/2016 Cjys... ••. SHEET 1 OF 4 BY: GT DATE: 0911812014 SCALE: NONE CSVtiE CONSULTING, INC. GIVIL ENGINEERING LAND PLANNING & SURVEVING 27156 BURBANK FOOThILL RANCH, CA, 92610 T. 949.916.3800 F. 949.916.3805 I.CVC4NC.NET EXHIBIT "A" VACATION LEGAL DESCRIPTION SCALE: 1" = 100' LI T.P.0.B. '• %t EXHIBIT B 1 € UNE TASLE NO. BEAR4NG LENGTh 11 N73o'34"W 60.24" 12 N7r3ff3(W 16.79' 13 N7r3o'34W 43.45' 14 N4S15'05W 24.00' QEOGEWATER AVE 148 149N>,_. 151 \152 1 7 /S\ 74 158 \/ 4(4 \t .-_\_- - 157 '2< NO1E: RUENA MSTA BOIJLEVARD SH0Vft4 HEREON IS BASED ON 1HE WDN OF 35.88' AS SHOWN 014 ASSESSORS PARCEI. MAP. SUENA MSTA BOU�VARD PEP BLOCI( A EAST NEWORr AS RECORDED IN 6001< 4, PAGE 51 OF MIS�ILANEOUS MAPS. SHOWS A NDTh OF 30.00' 1 14 / SHEET 2 OF 4 8'?: GT DATE: 09(1812014 SCALE: ?100' CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEYING 27156 BURBANK FOOThIU. RANCH, CA. 92810 T. 949.916.3600 P. 949.916.3805 YWWQCVC.INC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD PAD'a)�-OOl\i SCALE 1°50' 11 EXHIBIT B UNE TABLE 140. BEARING LENGN 11 N78'30'34W 60.24" L2 1478'30'34"W 16.79' 1.3 N78'30'34W 43.45 1.4 144615'OSW 24.00' T.P.0.B. \ 164 163 \t2°t - •Q5 ' L2 \i66 165 \\ , p.o.c r - \159 °'- 162" 160 \ \161 ISA 0) SHEET 3 OF 4 BY: 61 DATE; 9/18/2014 SCALE: V50' CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVE'V114G 27156 RURBANK FOOThILL RANCH, CA, 92610 T. 949.916.3800 F, 949.916,3805 W.CVC-INC.WET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD 1 SCALE 1"=50' EXHIBIT B "le\ / /\ /< // 147 >/ / // 148 /\ \14 /4 >i /K \ 150 / // / y N(\ 152\O/ / &ts \ ,\ 153$// \ 154// /< 155Y\ \Ths6 /\\ 15»\/ \\ / 159\ / / / SHEET 4 OF 4 8?: GT DATE: 9/18/2014 SCALE: C&W 'iP CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEVING 27156 BURBANK FOOThILL RANCI-$, CA, 92610 T. 949.916.3800 F. 949.916.3805 .CVC-INC.NET EXHIBIT "B" PARTIAL BUENA VISTA BLVD 1 1 1 EXHIBIT C LOT 151 LEGAL DESCRIPT!ON THE LAND REFERRED TO HEREIN IS Sfl1JATED IN 1HE CITY OF NEWPORT BEACH, COUNTY OF ORANCE, STATE OF CALIFORN!A, AND IS DESCRIBED AS FOLLOWS: PARCEL 1: LOT 151 OF THE SUBD1V1SION OF BLOCK A"OF EAST NEWPORT, AS SHOM'J ON A MAP RECORDED IN BOOK 4, PAGE 51 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; TOGETHER WIN THAT POR11ON OF BUENA V1STA BOULEVARD LYING BETWEEN 1HE NORTHWESTERLY PROLONGA11ON OF THE NORTHEASTERLY AND SOUTHWESTERLY LINES OF SAID LOT 151. RESERVING THEREFROM THE SOUTHEASTERLY 10.00 FEET OF SAID BUENA V1STA BOULEVARD, AS AN EASEMENT IN FAVOR OF THE CIIY OF NEWPORT BEACH FOR N0N-VEHCULAR PUBLIC ACCESS AND SIDEWALK MAINTENANCE PURPOSES. PARCEL 2: BEGINNING AT THE POINT OF INTERSEC110N OF THE NORTHWESTERLY LINE OF BUENA V1STA BOULEVARD WITH THE NORTHWESTERLY PROLONGATION OF Ti-JE NORTHEASTERLY LINE OF LOT 151 OF THE "SUBDIV1SI0N OF BLOCK A° OF EAST NEWPORT, AS BOTH SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 51 OF MSCELLANE0US MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE SOUTHWESTERLY ALONC SAID NORTHWESTERLY LJNE OF BUENA VISTA BOULEVARD TO ITS INTERSEC110N WHH THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE OF SAIO LOT 151; THENCE NORTHWESTERLY ALONG THE LAST MENTIONED PROLONGA11ON TO THE LINE OF ORDINARY HIGH 11DE OF THE PACIF1C OCEAN IN NEW'ORT 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 AC11ON ENTITLED "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 0FFICAL RECORDS OF SAIO ORANGE COUNTY; THENCE NORTHEASTERLY ALONG THE SAID TIDE UNE TO THE INTERSEC110N TH SAID NORTHWESTERLY PROLONGATION OF ThE NORTHEASTERLY LINE OF SAID LOT 151; THENCE SOUTHEASTERLY ALONG SAIO PROLONGATION TO THE POINT OF BEGINNING. U NCENT W. SCARPA11 R,C,E. 33520 DATE UC. EXP, DATE: 6-30-2016 SHEET 1 OF 1 BY: MOX DATE: 11-17-2014 SCALE: NONE ,r CONSIJLTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEVING 27156 BURBANK FOOTHLL RANCH, CA, 92610 T. 9499163800 F. 949.916.3805 WWW.CVC-INC,NET EXHIBIT "0" LOT 151 EXHIBIT D 334 Bueria Vista Blvd. Page 1 of: 3 334 Buena Vista Blvd. Page2of3 334 Buena Vista Blvd. References: A. Planter Wall: 9.5" B. BackWall: 19.5" C. Wall: 18.5" D. Raised Platform: 8" E. Plants: 18.5" F. Rose Bush: 31.5" G. Lamp Post: 75.5" H. Brick Carriage Waik: 2.5" Page3of3 JPPROVED AS TO EoRM: City Attorney