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HomeMy WebLinkAboutC-5949(N) - Restrictive Covenant AgreementRECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: C) City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Recorded in OffRfal Records 0 ange County Hugh Nguyen Cle k-Recorder 11 111111 III 11 1111011 H NO FEE *$R000?3 7530$ 2015000119950 1 29 pm 03109115 232407Al2F13 20 0.00 0.00 0.00 0.00 57.00 0.00 0.00 0.00 THIS SPACE FOR RECORDER'S USE ONLY. Exempt Recording Request per Goverument Code 27383 and 6103 p TITLE OF DOCUMENT: RESTRICTIVE COVENANT AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City ofNewport Beach Public Works Department 100 Civie Center Drive P.O. Box 1768 Newport Beach, CA 92660 RESTRICTIVE COVENANT AGREEMENT This Resirictive Covenant Agreement ("Agreement") is made by and between the City of Newport Beach ("City") and Owner of 336 Buena Visia Boulevard ("Owner") with reference to the foliowing: A. Owner ("Owner") is the owner in fee ofthe real property commonly known as 336 Buena Vista Boulevard ("Property"). The Property is comprised of two separate parce!s: a residential parce! 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 of the ROW are located various park-Iike iniprovernents and structures installed by Owner andlor Owner's predecessors in title. D. lnstallation and maintenance ofthe various park -like irnprovements and struetures 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 of Newport 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 future improvements on the Vacated ROW. The Vacated ROW is legaily deseribed 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 null and void ifthe Vaeated ROW is not vaeated by City or the vacation is deemed void, invaiid 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, if expanded 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 paraliel to and contiguous with the westerly boundary ofthe Existing Sidewaik (collectively, the Existing Sidewaik and the additional 4' sirip ofland 15 referred to as the "Retained ROW"). A maximum of 2' ofthe Retained ROW can be used for future sidewaik expansion ("Expanded Sidewaik") by the City and the rernaining 2' ofthe Retained ROW can be used by the City on!y for sidewaik maintenance purposes. IfCity constructs 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 constructs an Expanded Sidewaik or uses the 2' section ofthe Retained ROW for sidewaik maintenance purposes, it shail exercise due care to protect and not damage any Owner improvernents 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 Sidewalk, and/or the Retained ROW will not be used, at anytirne, for vehicular access except as may be required from tirne to time for emergency or maintenance vehiele access. D. Improvements existing on the Retained ROW and Vacated ROW as of the date ofthe recording ofthis Agreernent are depicted and described in Exhibit "D" to this agreernent and incorporated herein by this reference and shall be allowed to remain in place. If any such improvements are removed and replaced, or ifnew iniprovements are installed 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, iinmediately adjacent to such improvements. For purposes of this Agreement portable items are not improvements nor subject to the hcight 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 measured from the 2 high point 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 eanopy is at Ieast 7' at maturity as measured from the high point ofthe Existing Sidewaik or Expanded Sidewaik, as applicable, immediately adjacent to such tree. Any landscaping and vegetation, excluding trees, must immediately be trimmed to a height not greater than forty-two inches (42") when the maximum al!owed 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 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 Agreement. H. Each and all ofthe above covenants are hereby deciared 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 ofthe remainder ofthis Agreement. J. To the extent any ofthe covenants herein confliet 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. MAJNTENANCE Owner agrees to maintain all iandscaping and vegetation in and on 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 applicabie, immediately adjacent to such tree shall, ifpossible and not detrimentai to the health ofthe tree, be pruned or Iaced to maintain an openness that aflows sonie relief from a solid 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 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 confonnity with this Agreement, in the event Owner fails to do s� within thirty (30) days after written notice ofnon-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 (inciuding officers, agents, and employees) agree to release and discharge eaeh other from any claim, loss or liability or damage that now exists, that is in any way related to their respective control or rnaintenance ofthe Vaeated ROW and Retained ROW. Except for the Existing Sidewalk, Owner also acknowledges that the rnaintenance of the private improvements and landscaping in the Retained ROW has been the responsibility of Owner, 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 fully understand the nature and extent of this release. B. City releases and diseharges Owner (ineluding heirs. executors, adrninistrators, successors, and assigns) from any claim, loss, liability or damage that is in any way related to Owners improvernents to, or rnaintenance or control of, the Retained ROW or Vacated ROW prior to the date this Agreement is recorded. C. In granting their mutual reieases, City and Owner waive the provisions of Section 1542 ofthe Civil Code that reads as follows: "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 materiatly affected his settlement with the debtor." 5. NOTICES Notices required to be sent pursuant to this Agreement shall be deemed given when personally delivered to the Party or when deposited in the U.S. .Mail, first class postage prepaid and addressed as foliows: OWNER Margaret Susan Werner, Trustee 336 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 011 ,2014. APPROVED AS TO FORM: ByM )U1r City Attorney CITY OF NEWPORT BEACH, a Municipal corporation By: City Manager ATTEST: OWNER: Margaret Susan Werner Qualified Personal Residence Trust — Newport Beach and L.M. and MS. Werner Farnily Trust (Restated 11), dated Septernber 19, 2008 (also known as Wemer Family Trust dated November 14, 1979) — under Marital Trust By: Margaret Susan Werner 2011 Qualified Personal Residence Trust — Newport Beach By; By: garet S'usan Werner, Co -Trustee Gary R. Phillips, Co -Trustee Margaret Susan Werner, as Trustee ofthe L.M. and M.S. WERNER FAMILY TRUST (RESTATED 11), dated September 19, 2008 (also known as Werner FamiJy Tnist dated November 14, 1979)—underMaritalTrust By: 74- -J garet Susan Werner, Trustee H: ;CLIFNT\Buena Vista flomeowneSRestiictive Covcnant Agieement 141021 336.doc LM 92214 5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT • .r.r.r.r.r.r.,.c.r.rvr .,rw.c,r,,r.r (4 ( County of 6 6 6 6 State of Catifornia } CML CODE § 1189 On Nt. 1202LW4 before me, C4%AVflN 1AT3a'4NOT7? VlSi :rc- - Date ere Inoori Name a d nhle of lhe 041,cer personaily appeared MA1Z€iPQ.ET SUSRN Wara46P- Name(s) of Signer(s) CI4AVON �ATOY comnWflloll # 2044297 Notiry Public - cillfonila Orange County Mv Comni. Explrn Oct 5, 2( who proved to me on the basis of satisfactory evidence to be the personj) whose name$) is/ar subscribed to the within instrument and acknowledged to me that h#/she/thy executed the same in h14/her/flieir authorized capaoitye and that by Fiis/herfthftir signature(1) on the instrument the person(S), or the entity upon behalf of which the person( acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws 01 the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: Place Notary Seal Above shgnatore of Notary Pubito OPTIONAL Though the information bo/ow is not requirod by /aw, 1! may provo valuable to persons roly/ng on (he document and could prevent fraudulent remova/ and realtachinent of th/s form to another document. Description of Attached Document Title or Type of Document: RSTrLtCxtV6 C'aV&,.JA,X %&1rLa MENJT Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) claimed by Signer(s) Signer's Name: D Corporate Officer — Title(s): o IndividuaI o Partner — 0 Limited 0 General 0 Attorney in Fact 0 Trustee o Guardian or Conservator 0 Other: Signer Is Representing: RIGI-It TIIUMBPRINT 01' StGNER Top 04 thumb hers Signer's Name: o Corporate Officer — Title(s): o lndividual o Partner — 0 Lirnited 0 General o Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: (. .'— .'— .'- .'.-- •'-_- �-____ ..- .'- .'-_- -_-- .-'S•.--_- .'_. •'.. .\_ A.. .\.. .\ .'._\_. ....\ •'.. .'. •\. RIGIIT THUMBPRINT OF SIGNER Top 04 thurnb here © 2010 Nationat Notary Association NationatNotaryorg . 1-800-US NOTARY (1-800-876-0827) Item #5907 A notary public or other officer completing this certificate verifies only the identity ofthe individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity ofthat document. STATE OF CALIFORNIA ) ) COUNTY OF LOS ANGELES ) On December 18, 2014, before rne, Melania Seta Hakverdian, a Notary Public, personaily appeared Gary R. Phillips, who proved to me on the basis of satisfactory evidenee to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalfofwhich the person acted, executed the instrument. 1 certi' under PENALTY of PERJURY under the laws ofthe State of Califoi-nia that the foregoing paragraph is true and eorrect. WITNESS my hand and official seal, ELANIASETA HAKVERDIAN 1 COMM. # 2027774 0 NOTARY PUBLICCALrF0RNIA LOS ANGELES COUNTY My Comm. Exp. June 7,2017 Notary Public EXHIBITA LEGAL DESCRIPTION PARTIAL VACATIQN OF BUENA VISTA BLVD. NAT PORflON OF BIJENA STA BOULEVARD AS SHOWN ON SUBDIV1SI0N OF BLOCI< 'A' 0F EAST NEWPORT, PER MAP RECORDED IN BOOK 4, PAGE 51, OF MISCELLANEOUS MAPS, RECOROS OF' ORANGE C0UN1Y, CAUFORNIA BEING DESCRIBEO AS FOLLOWS; COMMENCING AT NE MOST WESTERLY CORNER OF LOT 167 OF SAID MIS�LLANEOUS MAP ALSO BONG A POINT ON NOR1HERLY RIGHT OF WAY BAY AVENUE (25.0 FEET HALF WTH) AND A POINT ON ThE SOLJTHERLY RIGHT OF WAY BUENA V1STA BOULEVARD; THENCE LEAViNG SAID CORNER ALONG SAID NORTHEASTERLY RIGHT OF WAY OF BAY AVENUE NCR1H 78'30'3C WEST, 16.79 FEET TO 1HE TRtJE POINT OF BEGINNING; THEN� CON11NUING ALONG SAID NORTHEASIERLY RIGHT OF WAY NORIH 7&30'34 WEST, 43.45 ItLI; THENCE LEAW4G SAID NORTHERLY RIGHT 0F WAY OF BAY AVENUE AND ALONG 1HE NORIHERLY RIGHT OF WAY OF BUENA VISTA BOULEVARD 1HE FOLLOWING COURSES: NOR1H 64'55'54" LASTI 349.79 FEET; NOR1H 43'22'34 EAST, 411.19 FEET; ThEN� LEAViNG SAID NORIHEASTERLY RIGHT (1 WAY SOUTh 4615'OS" EAST, 24.00 FEET TO A POINT ON A UNE PARAU.EL W11H AND 10.00 FEET NOR1HWESTERLY, MEASURED AT RIGHT ANGLES FROM THE SOIJ1HERLY RIGHT OF WAY OF SAID BUENA VISTA BOULEVARD; 1HENCE ALONG SAID PARAILEL UNE 11IE FOLLOWING COURSES: S0U111 4322'34" WEST, 430.87 FEET; THENCE SOU1H 6455'54" WEST, 303.81 FEET TO 1}IE 1RUE P0NT OF BEGINNING CONTAINS 16,878 SQ. FT (+7-) OR OE39 ACRES (+/-) OF LAND, MORE OR LESS. ALL AS PAR11CULARLY SHOWN ON EXHIBIT "B, ATTACHED HERETO AND BY *115 REFEREN� MADE A PART HEREOF. NCENT W. SCARPAII R.CE. 33520 UC, EXP. DAIE 6-30-2016 DATE SHEET 1 OF 4 BY: GT DATE: 09/18/2014 SCAL.E: NONE CONSULTING, INC. CIVJL ENGINEERING LAND PLANNING & SURVEVING 21156 SLJRBANK FOOTHILL RANCH, CA, 92610 T. 949.916.3800 F. 949.916.3805 V*MLCVC-INC.NET EXHIBIT "A' VACATION LEGAL DESCRIPTION EXHIBIT B EXHIBIT B QEDGEWATER AVE L4 SCALE: = 100' / T.P.O.B. 1 LJNE TAStE NO. BEARING LENGTh 11 N78'30'34W 60.24" (.2 N78'30'34'W 16.79' L3 N78'30'3CW 43.45' (.4 N4615'OSW 24.00' 158 \t- -.-- - \1 r NOTE: BUENA MSTA BOULEVARD SH0t4 HEREON 15 BASED 014 IHE Y#1D1H OF 35.88' AS SHOW?4 ON ASSESSORS PARCEL. MW. BUENA MSTA BOULEVARD PER BLOCK A EAST NapoRr AS RECORDW IN BOOI( 4, PAGE 51 OF MISCEI.LANEOUS MAPS. SHOWS A %MDIH OF 3OE00' SHEET 2 OF 4 BY: GT DATE: 09118/2014 SCALE ?r100 C$ViiEi CONSULTING, INC. CIVIL. ENGINEERING LAND PLANNING & SURVEVING 27156 BURBANI( FOOThILL RANCH, CA, 02810 1'. 949.916.3800 F. 949.916.3805 WN1.CVC.lNC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD t SCALE 1" = 50' EXHIBIT B UNE TASLE NO. BEARING LENON 11 N78a0'34W 60.24" L2 N7810'34'W I6.79# 13 N7W30'34'W 43.45' 14 N4615'05W 24.00' / 0 1 S.3 \\ 159 T.P.0.B. .,_g \4 - - (\162 \161 Li --u\le6 \ 165 r SHEET 3 OF 4 BY: GT DATE: 911812014 SCALE: ?=50' CSNniE! CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEYING 27156 BURBANI< FOOTHILL RANCH, CA, 92810 T. 949.916.3800 F. 949.916.3805 Wm.CVC-INC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVO 2 SCALE 1"=50' / /N /K EXHIBIT B / \ \t>N12 \// / /\ / '11 2' \147 / \148 149 / 7/ \iso 14 / ,c& / /\146\ / / / \ 151 / / .ltfl N ' / J'N/ / / \ 154 ,\ 4CC f \'t*\$ , \ lS6/K\ wj' .' Ar_ J , (0 N°1 >'' N / \ 158 /\\ 159 '1 \- \ / / / SHEET 4 OF 4 BY: GT DATE: 9/18/2014 SCALE: r=50' c&v 5E CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEVING 27156 BURBANK FOOThILL RANCH, CA. 92610 T. 949916.3800 F. 949.916.3806 vw.CVC-INc.Nr EXHIBIT "B" PARTIAL VACATION OF BUENAVISTA BLVD q 1 LOT 150 & PORTION OF LOT 149 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SI1IJATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANCE, STATE OF CALIFORNIA, AND 15 DESCRBED AS FOLLOWS: PARCEL 1: LOTS 150 AND 149 OF THE SUBDISl0N OF BLOCK A'OF EAST NEWPORT, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 51 OF MISCELLANEOIJS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; TOGETHER WITH THAT PORTION OF BUENA VISTA BOULEVARD LYING BETWEEN THE NORThWESTERLY PR0L0NGAT10N OF THE NORTHEASTERLY LINE 0F LOT 149, AND THE NORTHWESTERLY PROLONGA11ON 0F SOUTHWESTERLY LINE OF SAID LOT 150. EXCEPT1NG THEREFROM THE NORTHEASTERLY 10.00 FEET OF SAID LOT 149 AND THAT PORTION OF BUENA VISTA BOULEVARD LYING BETWEEN THE NORTHWESTERLY PROLONGATION OF il-IE SOUTHWESTERLY LINE OF THE NORTHEASTERLY 10 FEET OF SAID LOT 149, RESERANG 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: BEGINNING AT NE POINT OF INTERSEC110N OF THE N0R11-IWESTERLY LINE OV BUENA 1STA BOULEVARD W1TH THE NORTHWESTERLY PROLONGA11ON OF THE S0U11-I LINE OF THE NORTHEASTERLY 10.00 FEET OF LOT 149 OF THE "SUBDMSION OF BLOCI< 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 SOtJTHWESTERLY ALONG SAID NORTHWESTERLY LIF4E OF BUENA 1STA BOLJLEVARD TO ITS INTERSECTI0N 1Th THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY UNE OF LOT 150 OF SAID MAP; THENCE NORTHWESTERLY ALONG THE LAST MENTIONED PROLONGA11ON TO THE LINE OF ORDINARY HIGH 11DE 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 AC11ON EN11TLED "CITY OF' NEWPORT BEACH, PLAINI1FF, VS BAY ISLAND CLUB AND OTHERSI DEFENDANTS, CASE NO. 24080, A CER11FIED COPY OF HlCH WAS RECORDED SEPTEMBER 19, 1928 IN BOOK 203, PAGE 95 OF OFF1CIAL RECORDS OF SAID ORANGE COUNTY; THENCE NORTHEASTERLY ALONG THE SAID T1DE LINE TO THE INTERSEC110N Th SAID NORTHWESTERLY PROLONGATION OF THE THE SOUTH LINE OF THE NORTHEASTERLY 10.00 FEET OF LOT 149; THENCE SOUTHEASTERLY ALONG SAID PRO 1 ..±I *N TO THE POINT OF BEGINNING. - - NCENT W. SCARPA11 R.C.E. 33520 DATE LIC. EXP. DATE: 6-30-2016 a. 33520 Exp. 6/30 2016 SHEET 1 OF 1 BY: MOX DATE: 11-17-2014 SCALE: NONE CONSIJLTING, NC. CIVIL ENGINEERING LAND PLANNING & SURVEVING 27156 BURBANK FOOTHILL RANCH, CA, 92610 T. 949.9163800 F. 949.916.3805 WWW.CVC-INC.NET EXHIBIT "C" LOT 150 & POR. 149 336 Buena Vista Blvd. Page 1 of 3 336 Buena Vista Blvd. Page2of3 336 Buena Vista Blvd. Page 3 of 3 References: A. Wall: 26" B. Border Hedge: 17.5" C. Back Bush: 245" 0. Rose Bush: 71.5' - Required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. E. Shrub: 87' - Required to be trimmed and maintained to a maximum heightof42" above sidewaik grade. F. Gate Shrub: 52" - Required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. G. Stairs: 21.5' H. Gate and Fence: 56" 1. Shrub: 30.5" J. Brick Carriage Waik: 3.5"