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HomeMy WebLinkAboutC-5949(O) - Restrictive Covenant AgreementRECORDING REQUESTED BYAND WHEN RECORDED RETURN TO: City Clerk City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Recorded in Off ca! Records, Orange County Hugh Nguyen C erk-Recorder 11 101 111111 fihl 11 IIIII Idi 11 *$R00073 753 $* NO FEE 2015000119951 1 29pm03109115 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 (j( RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City ofNewport Beach Pubile Works Department 100 Civic 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 338 Buena Vista Boulevard ("Owner") with reference to the foliowing: A. Owner ("Owner") is the owner in fee of the real property commonly known as 338 Buena Vista Boulevard ("Properly"). 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 3000' to 35.88'. C. The ROW has been improved with a 6' wide public sidewaik ("Existing Sidewaik") constructed and niaintained 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 titie. D. Insta1Iation and maintenance ofthe various park -like improvements and structures in the ROW is pezinitted 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 Councii adopted Resolution No. 2014-89 stating its desire to vacate a portion oftlie ROW (the "Vacated ROW") provide non -vehicular access and views to the waters ofNewport Bay from the Existing Sidewaik by controiling the height of fiuture improvements on the Vacated ROW. The Vacated 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 agreernent to execute and record this Agreement. 1 NOW, THEREFORE, the Parties agree as follows: VACATION PROCEEDINGS This Agreemeril has no effect and wili be deemed null and void ifthe Vacated ROW is not vacated by City or the vacation is deerned void, invalid 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 exeeption 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' 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 hy the City on]y for sidewaik maintenance purposes. lfCity 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 constitcts 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 improvenients 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 cmergency or maintenance vehicle access. D, Improvements existing on the Retained ROW and Vacated ROW as of the 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 of recordation ofthis Agreement, they shal! not exceed forty-two inches (42") in height as measured 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 improvements 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 of the Existing Sidewaik immediately adjacent to such structure. New trees and trees to replace existing trees may be panted in the Retained ROW and the Vacated ROW provided that the tree canopy is at least 7' at niaturity as measured from the high point ofthe Existing Sidewailc or Expanded Sidewaik, as applicable, immediately adjacent to sueh tree, Any Iandscaping and vegetation, exeluding trees, must immediately be trimmed to a height not greater than forty-two inches (42") when the maxirnuni allowed height is reached, except as set forth in Section 3, Maintenance, below. F. The Existing Sidewaik and ifexpanded, the Expanded Sidewaik shafl 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 ofsuch Encroachment Agreement. H. Each and alt ofthe above covenants are hereby declared to be covenants running with the tand burdened by such covenants and are hereby made appurtenarn to said land. 1. Iffor any reason any ofthe covenants herein contained is invalid, the same shall not affect the validity of the remainder ofthis Agreement. J. To the extent any of the covenants herein conflict with CityCouncil Policy L-7, the covenants in this Agreement shall prevait. K. This Agreement can be modifled ifapproved in writing by both Owner and City and tliereafter recorded in the Official Records ofthe County ofOrange. 3. MAJNTENANCE Owner agrees to rnaintain all landscaping 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, immediately adjacent to such tree shall, ifpossible and not detrimental to the health of the tree, be pruned or laeed to maintain an openness that aliows some relieffrom a sotid 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 trimmed to 42" in height without injuring the health ofthe 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 notice ofnon-eompliance 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 (includirig officers, agents, and eniployees) 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 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 resporisibility ofOwner, or Owner's predecessors, since the installation ofthe landscaping and private improvements in the Retained ROW, through the date of recordation of this Agreement. Owner and City have consulted with legal cotrnsel and as a result of that consultation fully understand the nature and extent ofthis release. B, City releases and discharges Owner (including heirs, executors, administrators, successors, and assigns) from any claim, Ioss, 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 this Agreement is recorded. C. In granting their rnutual releases, City and Owner waive the provisions of Section 1542 ofthe Civil Code that reads as foliows: "A general release does not extend ro 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 niust have materially affected his settlernent 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 Rachael Gabriel 338 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 exeeuted on ,2014. APPROVED AS TO FORM: By: (JY ATTEST: 3 y: City Attomey City Clerk CITY OF NEWPORT BEACH, a Municipal eorporation By: Nr-_'_ ( (( City Manager lt OWNER:Rachael Gabriel, a single wornan By: H:CLIENT\13uena Visia FlomeownersRestri&iV ovenant Agt-eeinent I4iO2i 338doc LM 92214 5 CALIFORNIA ALL-PURPOSE ACKPIOWLEDGMENT CiVIL GODE § 1189 A notary public or other officer completirig this oertificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or vaiidity of that document. State of california Countyof CQi\k Onl)tc_ q Date personaily appeared i2: ck-1rfL N ) ) before me, NN [ELL Xjj [\tsE i ¥icR1 Puau c Here !nsert Name and Title of the Ofticer Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)- is/are subscribed to the within instrument and acknowiedged to me that he/she/they executed the sarne in his/her/their authorized capacity(ies) and that by his/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 aws of the State of California that the foregoing paragraph is true and correct. JENNIFER ANN MULVEY ccmmissiOfl # 2045022 Notary public - Catit�nla Orange County — P/ace Nota,y Seal Above WITNESS my han4and official seal, Signature OPTIONAL natureof N6in, Pub/ic Though this sect/on is optional, comp/eting this information can deter alteration of the document or fraudu/ent reattachment of this form to an uriintended document. Desoription of Attached Dooument Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) claimed by Signer(s) Signer's Name: [1 Corporate Officer — Title(s): El Partner — J Limited EJ General [1 !ndividual Li Attorney in Fact fl Trustee [1 Guardian or Conservator LI Other: Signer Is Representing: Signer's Name: Li Corporate Officer — Tite(s): Li Partner — [11 Limited E General E Individual Li Attorney in Fact LI Trustee LI Guardian or Conservator Li Other: Signer Is Representing: ©2014 National Notary Association www.NationalNotary.org 1-800-US NOTARY (1-800-876-6827) tem #5907 EXHIBITA LEGAL DESCRIPTION PARTIAL VACATION OF BUENA VISTA BLVD. ThAT POR11ON OF BUENA MSTA BOULEVARD AS SHOWN ON SUBDIV1SION OF BLOCK 'A' OF EAST NEWPORT, PER MAP RECORDED IN BOOK 4, PAGE 51, OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CAUFORNIA BEING DESCRIBED AS FOLLOWS: COMMENQNG AT 'THE MOST *ESTERLY CORNER OF LOT 167 OF SAID MISCELLANEOUS MAP ALSO BEING A P0!NT ON NORTHERLY RIGHT OF WAY BAY AVENUE (25.0 FEET HALF WTh) AND A POINT ON THE SOIJ1HERLY RGHT OF WAY BUENA 1STA BOULEVARD; 11IENCE LEANG SAID CORNER ALONG SAID NCRTHEAS1ERLY RIGHT OF WAY GE BAY AVENUE NORTH 78Z0'34" WEST, 16.79 FEET TO THE TRUE POINT OF BEGINNING; IHEN� CON11NUING ALONG SAJD NORTHEASTERLY RIGHT OF WAY NOR1H 78'30'34" WEST, 43.45 FEET; 1HENCE LEAMNG SAID NORTHERLY RIGHT OF WAY OF BAY AVENUE AND ALONG IHE NOR1HERLY RIGHT OF WAY OF BUENA STA BOULEVARD 1HE FOLLOWING COURSES; NORTH 64'55'54" EAST, 349.79 FEET; NOR1H 43'22'34" EAST, 411.19 FEET; 1HENcE LEAV1NG SPJD NOR1HEASTERLY RIGHT OF WAY SOUTH 4615'OS" EAST, 24.00 FEET TO A POINT ON A UNE PARALL.EL %Th AND 10.00 FEET NOR11-IWESIERLY, MEASURED AT RIGHT ANOLES FROM THE SOIJThERLY RIGHT OF WAY OF SAID BUENA 1STA BOULEVARD; NENCE ALONG SAID PARAJ 1 P1 UNE 1HE FOLLOWNG CCURSES: SOU1H 43'22'34" WEST, 430.87 FEET; 1HENCE SOUTH 64'55'54" WESTI 303.81 FEL 1 TO IHE 1RUE PGINT OF BEGINNING CONTAINS 16,878 SQ. FT (+/—) OR 0.39 ARES (+1-) OF LAND, MORE OR LESS. AU. AS PARTICULARLY SHOWN ON EXHIBIT A1TACHED HERETO AND BY 11415 REFERENCE MADE A PART HEREOF. NCENT W. SCARPA11 R.C.E. 33520 DATE UC. OCR. DATE 6-30-2016 0 > No. 33520 Z' * \Exp. 6130/2016J * •...OF CM.t- SHEET 10F4 BY: GT DATE 09/18/2014 SCALE: NONE C&VEiEE CONSULTING, INC. CIVIL ENGINEERING LAN» PLANNING & SURVEYTNG 27156 BURBANK FOOThILL RANCH, CA, 92610 T. 949.916.3800 F. 949.916.3805 .CVC-INC.NET EXHIBIT "A" VACATION LEGAL DESCRIPTION EXHIBIT B EXHIBIT B SCALE: "= 100' LI --.r T.P.0.B. P.0.c LINE TAEI.E NO. BEARING LENGTh 11 N7t30'34"W 60.24" 12 N78'30'3CW 16.79' L3 N7830'aCW 43.45' 14 N4615'05W 24.00' 1LEDGEWATER AVE //\147 148 1' 149 151 152\> NOTE: B1JENA 1sTA BOULEVARD SHOWN I1ERE0N 15 BASED ON NE WIDN OF 35.88' AS SHO%W4 ON ASSESSORS PARCS. MAP. 8u&A VISIA BOULEVARO PER BLOCI< A EAST wEwPoRr AS RECORDEI) IN 6001< 4, PAGE 51 OF MIS�U.ANEOIJS MAPS. 10WS A DTh OF 30.00' 14 / SHEET2OF4 BY: GT DATE: 09118/2014 SCALE: ?tloo' CSN JiiT CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEYING 21156 BURBANK FOOThILL RANCH, CA, 92610 T. 949.918,3800 F. 949.916.3805 .CVC-INC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD 0 2 2 £ EXHIBIT B IJNE TABLE NO. BEARING LENGIH 11 N78'30'34W 60.24" 12 N7830'34W 16.79' 13 N78'30'JCW 43.45' L4 N4615'OSW 24.00' SCALE 1" = 50' 0 r T.P.0.B 12 - \166 P.0.c tst't*z - / 0' 159 160 \ �a S\162\ \161 \ \ \ 164 163 \t0t 165 .tt'5 _—\ - £ - - 9 SHEET 3 OF 4 BY: GT DATE: 911812014 SCALE: 1'50' CSW1S CONSULTING, INC. CIVJL ENGINEERING LAND PLANNING & SURVEYING 27166 BURBANK FOOThILL RANCH, CA, 92610 T. 949.916.3600 E. 949.916.3805 WWW.CVC-INC.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD SCALE 1"=50' /K EXHIBIT B / /\ / 4 /\ / 1' \147 / / / 148 / 1 K \ 1D1 /J.'%- - \ 14 /4 /\ >i \15o/ N / / / / / wc >z / \ 153ty'/ - \ 154// \ / \\\ \ yf 157 / /< \158/ \ 159 7, 7 / / SHEET4OF4 BY: GT DATE: 9/18/2014 SCALE: 150 csw riia CONSULTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEVING 27156 BURBANK FOOTMIU. RANCH, CA, 92610 T. 949,916.3800 P. 949.916.3805 VWtCVC-ING.NET EXHIBIT "B" PARTIAL VACATION OF BUENA VISTA BLVD LOT 148 & PORTION OF LOT 149 LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITIJATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL 1: LOT 148 TOGETHER WITH 1}IE NORTHEASTERLY 10.00 FEET OF LOT 149, OF THE SUBDIVISION OF BLOCK A" OF EAST NEWPORT, AS SHOWN ON A MAP RECORDED IN 8001< 4, PAGE 51 OF MISCELLANEOUS MAPS, RECORDS OF ORANCE COUNTY, CALIFORNIA; TOGETIIER W1TH THAT PORTION OF BUENA V1STA BOULEVARD LYING SETWEEN THE NORTHWESTERLY PR0L0NGAT0N OF THE NORTHEASTERLY LINE OF LOT 148, AND THE NORTHWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE OF THE NORTHEASTERLY 10.00 FEET 0F' SAID LOT 149. RESERVING THEREFROM THE SOUTHEASTERLY 10.00 FEET OF SAD BUENA VISTA BOULEVARD, AS AN EASEMENT IN FAVOR OF THE CITY OF NEWPORT BEACH FOR N0N-VEHCULAR PUBLIC ACCESS AND SIDEWALK MAINTENANCE PURPOSES. PARCEL 2: BEGINNING AT THE P0NT OF INTERSECTION OF THE NORTHWESTERLY UNE OF BUENA VISTA BOULEVARD WITH THE NORTHWESTERLY PROLONGA11ON OF THE NORTHEASTERLY LINE OF LOT 148 OF THE »SUBDMSION 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 ALONG SAID NORTHWESTERLY UNE OF BUENA VISTA BOULEVARD TO ITS INTERSEC110N W1TH THE NOR1HWESTERLY PROLONGATION OF THE SOUTHWESTERLY LINE 0F THE NORTHEASTERLY 10,00 FEET OF LOT 149; THENCE NORTHWESTERLY ALONG THE LAST MENTIONED PROLONGATION TO THE LINE OF ORDINARY HIGH 110E OF THE PACIFIC OCEAN IN NEWPORT BAY AS DESCRIBED IN THE DECREE RENDERED IN THE SIJPERIOR COURT OF THE STATE OF CALIFORNIA, N AND FOR 1'HE COUNTY OF ORANGE IN AN ACTION EN11TLED "CITY OF NEWPORT BEACH, PLAIN11FF, VS BAY ISLAND CLUB AND OTHERS, DEFENDANTS", CASE NO. 24080, A CERTff1ED COPY OF iICH 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 SAIO NORTHWESTERLY PROLONGA11ON OF THE NORTHEASTERLY LINE OF SAID LOT 148; THENCE SOUTHEASTERLY ALONG SAID PROLONGA11ON TO THE POINT OF BEGINNING. LA 'e- tr -\ VINCENT W. SCARPA11 R.C.E. 33520 DATE UC. EXP. DATE: 6-30-2016 No. 33520 Exp. 6/30 2016 SREET 1 OF 1 BY: MOX DATE: 11-17-2014 SCALE: NONE c&v : CONSIJLTING, INC. CIVIL ENGINEERING LAND PLANNING & SURVEYING 27156 BURBAN}< FOOTHILL RANCH, CA, 92610 T. 949.916.3800 F. 949.916.3805 WWW.CVC-INC.NET EXHIBIT "0" LOT 148 & POR. 149 EXHIBIT D 338 Buena Vista Bvd. Page lof 3 338 Buena Vista Blvd. Page2of3 338 Buen-a Vista Blvd. Page 3 of 3 References: A. Front Tree: 81" - Required to be laced/thinned. B, Plants: 73" - Required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. C. Dry Shrub: 32" D. Wail: 20" E. Step: 12" F. Shrubs: 40" G. Potted Tree: 74" H. Potted Plants: 52" - Required to be trimmed and maintained to a maximum height of 42" above sidewaik grade. 1. Brick Carriage Waik: 6" J. Flagstone Paving: 3"