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
*$R00073475 9$
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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