HomeMy WebLinkAboutC-5949(P) - Restrictive Covenant AgreementRECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Recorded in Offc'al Records, Orange County
Hugh Nguyen C erk-Recorder
H111 11011 111110 I IIIIII 11 11 NO FEE
*$R00073 7532S*
2015000119952 1:29 pm 03109/15
232407Al2F13 19
0.00 0.00 0.00 0.00 64.00 0.00 0.00 0.00
THIS SPACE FOR RECORDER'S USE ONLY.
Exempt Recording Request per Government Code 27383 aix! 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 COVENANT AGREEMENT
This Restrictive Covenant Agreement ("Agreexnent") is made by and between the City of
Newport Beach ("City") and Owner of 342 Buena Vista Boulevard ("Owner") with reference to
the foliowing:
A. Owner ("Owner") is the owner in fee of the real property commonly known as 342
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 pub!ic sidewaik ("Existing Sidewaik")
constructed and maintained by the City and, in the rernainder of the ROW are !ocated
various park -like improvements and structures installed by Owner and/or Owner's
predecessors in title.
D. InstaHation and mairitenance of the various park -like improvernents and structures 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 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 offuture 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 agreement to execute and record this Agreement.
NOW, THEREFORE, the Parties agree as foliows:
1. VACATION PROCEEDINGS
This Agreement has no effect and will be deerned null and void ifthe Vacated ROW is
nol 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 eonditions 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
additional 4' wide sirip ofland that runs parailel to and contiguous with the westerly
boundary ofthe Existing Sidewaik (coflectively, the Existing Sidewaik and the additional
4' strip ofland is refelTed 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 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 eost,
remove any improvernents in the 2' section ofthe Retained ROW where the Expanded
Sidewaik will be located. IfCity eonstructs an Expanded Sidewaik or uses the 2 section
ofthe Retained ROW for sidewaik maintenance purposes, it shal! 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. Improvements existing on the Retained ROW and Vacated ROW as ofthe date ofthe
recording of this Agreement are depicted and described in Exhibit "D" to this agreement
and incorporated herein by this reference and shall be allowed to remain in p]ace. Ifany
such improvements are reinoved and repaced, or ifnew improvements are installed afier
the date of recordation of this Agreement, they shall not exceed forty-two inches (42") in
height as measured fi-om the high point ofthe Existing Sidewaik or Expanded Sidewaik,
as applicable, immediately adjacent tosuch irnprovemerits. For purposes ofthis
Agreernent portable items are not improvements nor subject to the height limits ofthis
agreement provided that such portable items do not unreasonab!y 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 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 cariopy is at least 7' at maturity as nieasured from the high
point ofthe Existing Sidewaik or Expanded Sidewaik, as applicable, imniediately
adjacent to such tree. Any landscaping and vegetation, exeluding trees, must imrnediately
be trimmed to a height not greater than forty-two inches (42") when the maximum
a!lowed 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 Encroachment Agreement shall continue to have the benefit ofsuch
Encroachment Agreement.
H. Each and all of the 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. Jffor 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 City Council Policy L-7, the
covenants in this Agreement shall prevail.
K. This Agreement can be modifled ifapproved in writing by both Owner and City and
thereafter recorded in the Offlcial Records ofthe County ofOrange.
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 specifled in this Agreement. Any trees whieh have a
canopy or foliage which extends below 7' as ineasured from the high point ofthe
Existing Sidewaik or Expanded Sidewaik, as applicable, imrnediately adjacent to such
tree shall, ifpossible and not detrimental to the health ofthe tree, be pruned or laced to
maintain an openness that aliows some relieffrom a soJid wall of caiwpy or foliage as to
that portion which is below 7', and be 75% opaque. City reeognizes that there may be
some existing plants or shrubs that cannot be trimrned to 42" in height without injuring
the health ofthe plant or shrub and in such casc they shall be trimmed or pruned to be
75% opaque. City shall have the right to enter onto the Vacated ROW to bring the
Iandscaping or vegetation into conformity with this Agreement, in the event Owner fails
to do SO within thirty (30) days after written notice ofnon-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 (irieluding officers, agents, and ernployees) agree to release and
diseharge eaeh other from any claini, Ioss 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
niaintenance of the private improvements and landscaping in the Retained ROW has been
the responsibility of�wner, or Owner's predecessors, since the installation ofthe
landscaping and private improvenients in the Retained ROW, through the date of
recordation ofthis Agreement. Owner and City have consulted with legal counsel and as
a result ofthat consultatjon fiully understand the nature and extent ofthis release.
B. City releases and discharges Owner (ineluding heirs, executors, administrators,
suceessors, and assigns) frorn any claim, 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 to the date this Agreement is recorded.
C. In grantirig their rnutual releases, City and Owner waive the provisions ofSection 1542
ofthe Civil Code that reads as foliows:
"A general release does not extend to elaims which the creditor does not know or suspeet
to exist in his favor at the time of exeeuting the release, which ifknown 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 Cheryl L. Brooks, CPM
Senior Asset Manager
Wells Fargo Bank N,A.
2030 Main Street, 7th Floor
Irvine, CA 92614
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
,2014.
APPROVED AS TO FORM:
(
By:
ATTEST:
B y:
City Attorney
r
Lt
City Clerk
H: CLIENT\Buena Visia FlorneownersRe
LM 922.14
CITY OF NEWPORT BEACH,
a Munieipal corporation
OWNER: Welis Fargo Bank N.A. as
Successor Trustee of The Dorothy Theresa
Ziglar Trust established on Deeember 29,
1972 as amended on 9/17/73 aix! 1/26/76
By:
Its: Trustee
ctive Covenant Agreeinent 141021 342.doc
5
Broo s
Chery Brooks - VP, CPM
Sr. Trust Asset Manager
Welis Fargo Bank, N.A.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
}
OnOsc. \t3 2A4 before me, Thot%A.
Date
personafly appeared
CIVIL GODE § 1189
rLsrs\, Vcs.r'1
Here Insert Name and Title al Ibe Olficer ,)
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Name(s) 01 Sgner(s)
DOEN HURST
ComnWsslon # 1981619
Notiry Pubthc - Caldomla
Oringa Gowity
Place Nolaiy Seal Abave
who proved to me on the basis of satisfactory
evidence to be the person whose nameN islke
subscribed to the within instrument and acknowledged
to me that I/she/tey executed the same in
h\/her/their authorized capacity¼,p), and that by
hs/hethir signature) on the instrument the
person, or the entity upon behalf of which the
persons) acted, executed the instrument.
1 certify under PENALTY OF PERJURY under the
laws af the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and officia seal.
Signatu r
OPTIONA L
Signature of Notary public
Though the /nformation below /5 not required by Iaw, it may prove valuable to persons r&ying on the document
and could prevent fraudulent rernoval and reattachment of this forrn to another docurnent.
Deseriptia'.,
Title or Type of Doc
Document Date:
Attached Document
Signer(s) Other Than Nanied Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
o Corporate Officer Title(s):
o lndividual
O Partner — 0 Limited 0 Genera
o Attorney in Fact
o Trustee
0 Guardian or Cons-/ or
0 Other:
Number of Pa9es<
Signer's
Si r Is Representing:
RIGHT fltJMBPRINT:
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o lndiv
o Partner —
o Attorney in Faot
o Trustee
o Guardian or Conservator
o Other:
mited 0 Gerieral
Signer Is Representing:
@ 2010 National Natary Assothatton NattonalNotaryorg' l-800-US WOTAPY (1800-876-6827)
RIGHT THUFtEPRINT
OF SIGI'ER
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907
EXHIBIT A
EXHIBIT A
LEGAL DESCRIPTION
PARTIAL VACATION OF BUENA VISTA BLVD.
THAT POR11ON OF BUENA MSTA BOULEVARD AS SHOWN ON SUBDIMSION OF BLOCK 'A' OF EAST
NEWPORT, PER MAP RECORDED IN BOOK 4, PAGE 51, OF MISCELLANEOUS MAPS, RECORDS 0F ORANGE
COUNTY, CAUFORNIA BEING DESCRIBED AS FOLLOWS:
COMMENCING AT NE MOST WESTERLY CORNER OF LOT 167 OF SAID MISCELLANEOUS MAP ALSO BEING A
POINT ON NORTHERLY RIGUT OF WAY BAY AVENUE (25.0 FEET HAll WTH) AND A POINT ON ThE
SOIJIHERLY RKHT OF WAY BIJENA \'ISTA BOULEVARD;
IHENCE LEA1NG SAIO GORNER ALONG SAID NORTHEAS1ERLY RIGHT OF WAY OF BAY AVENIJE NORIH
78'30'34 WEST, 16.79 FEET TO 1HE TRUE POINT OF BEGINNING;
IHENCE CON11NUING ALONG SAID NORTHEAS1ERLY RIGHT OF WAY NORTH 73*3�134* WEST, 43.45 FEET
1HENCE LEAVING SAID NORTHERLY RIGHT OF WAY OF BAY AVENUE AND ALONG IHE NOR114ERLY RIGHT OF
WAY OF BUENA V1STA BOULEVARD IHE FOLLOWNG COURSES:
NORTh 64*55)54* EAST, 349.79 FEET; NORTH 4322)34* EAST, 411.19 FEET;
THEN� LEAMNG SAID NOR1HEASTERLY RIGHT OF WAY SOU11I 4615'OS" EAST, 24.00 FEET TO A POINT ON
A UNE PARALLEL WN AND 1OEOO FEET NOR11IWESTERLY, MEASURED AT RIGHT ANG�S FROM THE
SOUTHERLY RIGHT OF WAY OF SAID BUENA VISTA BOULEVARD;
THENCE ALONG SAID PARAU.EL UNE 1HE FOLLOWING COURSES:
SOUTH 432234* WEST, 430.87 FEET; IHENCE SOU1H 64*55)54* WESTI 303.81 FEET TO 1HE TRUE POINT
OF BEGINNING
CONTAINS 16,878 SQ. FT (+1-) OR 0.39 ACRES (�/-) OF LAND, MORE OR LESS.
Alt AS PAR11CIJLARLY SH0 ON EXHIBIT B", A1TACHED HERETO AND BY THJS REFERENCE MADE A PART
FIEREOF.
NCENT W. SCARPA11 R.C.E. 33520
UC. EXP. DAt 6-30-2016
z4USS/N
:t s
No. 33520 Z
\.Exp. 6/30/2016J*
SHEET 1 OF 4
BY: GT
DATE: 09/18/2014
SCALE NONE
CSW 1;::
CONSULTING, INC.
CIVJL ENGINEERING
LAND PLAJ4NING & SURVEYING
27156 SURBANK
POOThILL RANCH,
CA, 92610
T. 949.916.3800
F. 949.916.3805
.CVC-INC,NET
EXHIBIT "A"
VACATION
LEGAL DESCRIPTION
1
4
EXHIBIT B
QEDGEWATER AVE
L4
SCALE: 1" = 100'
/
— Id
--
T.P.0.B.
p
1
€
UNE TABLE
P40.
BEARING
LENGTh
11
N7W30'34W
60.24"
12
N7r3o'34W
16.79'
13
N7830'34W
43.45
14
P44615'05W
24.00'
/
/
1M
5t4 x' \sv\
¥157WK\ \/
158\/\,y,
/
/N '‚ X.'
N 4Y '
NOTE:
BUENA MSTA 80ULEVAR0 SHOV84 HEREON IS BASED ON ThE WD1H 0)' 35.88' AS 10Y41 ON ASSESSORS PAR�L MAP.
BUENA STA BOIJLEVARO PER BLOCI< A EAST ,cwoRr AS RECORDED IN 800K 4. PAGE 51 OF UIS�ILANEOUS MAPS.
SHOWS A WON 0)' 3OE00'
SHEET 2 OF 4
BY: GT
DATE: 0911812014
SCALE: ?=100'
:iI
CONSULTING, INC.
CIVIL ENGINEERING
LAND PLANNING & SURVEYU4G
27156 BURBANK
P00111111 RANCH,
CA, 92610
T. 949.916.3800
F. 949.916.3805
WVWtCVO-INC.NET
EXHIBIT "B"
PARTIAL VAGATION QF
BUENA VISTA BLVD
SCALE 1" = 50'
Li
T.P.0.B.
EXHIBIT B
UNE TABLE
NO.
BEARING
LENG1H
N78'30'34"W
60.24"
L2
N7fl0'34W
16.79'
L3
N7830'34'W
4145'
L4
N4615'OS"W
24.00'
0
U \166
-
p.o.c
159
t
e 4\162 \161
\ O\ \
164 163 \t\A90 cr\
165
-1
-
SHEET 3 OF 4
BY: GT
DATE: 9/1812014
SCALE: 1"=50'
CSN niiP
CONSULTING, INC.
CIVIL ENGINEERING
L.AND PL.ANN!NG & SURVEY1NG
27166 BURBANK
FOOThILL RANCF$,
CA, 92610
T. 949.916.3800
if. 949.916.3805
.CVC-iNC.NET
EXHIBIT "B"
PARTIAL VACATION OF
BUENA VISTA BLVD
SCALE 1" = 50'
K
EXHIBIT B
/
\4,>i52 \/ / /
,/
/ - /
,,\ 153�\ / —,- /
\ 154\tt/ K 7
C\ 1554t.
w
\ 156/
>
\ 158/\
159\ /
\\
/
/
L4
/
/
/
SHEET 4 OF 4
BY: GT
DATE 9/18/2014
SCALE: V50'
CSN _i
CONSULTING, INC.
CIVIL ENGINEERING
LAND PLANNING & SURVE'YING
27156 BURBANK
FOOThILt. MNCH,
CA, 92610
T. 949.9163600
1'. 949.916.3805
.CVC-iNC.NET
EXHIBIT "6"
PARTIAL VACATION OF
BUENA VISTA BLVD
LOT 147
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN S SITUATED IN THE C!TY OF NEWPORT BEACHI COUNTY OF ORANCE,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
LOT 147 OF THE SUBDIV1SION 0V BLOCK A'OF EAST NE*PORT, AS SHOWN ON A MAP RECORDED IN BOOK
4, PAGE 51 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA; TOGETHER WITH 11-IAT
PORT10N OF BUENA VISTA BOULEVARD L'rlNG BETWEEN THE N0RTH'ESTERLY PROLONGATION 0F TI-IE
NORTHEASTERLY AND SOUTI-I*ESTERLY LINES OF SAID LOT 147.
RESER1NG THEREFROM NE SOUTHEASTERLY 10.00 FEET OF SAID BUENA \t1STA BOULEVARD, AS AN
EASEMENT IN FAVOR OF THE CITY OF NEWPORT BEACH FOR NON -VEHICULAR PUBLIC ACCESS AND
SIDEWALI( MANTENANCE PURPOSES.
PARCEL 2:
BEGINNING AT THE POINT OF INTERSECTI0N OF THE NORTHWESTERLY (JNE OF BUENA 'VISTA BOULEVARD
%TH THE NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY LINE OF LOT 147 OF 1HE "SUBDIV1SI0N
OF BLOCK A" OF EAST NEWPORT, AS BOTH SHOWN ON A MAP RECORDED IN BOOK 4, PAGE 51 OF
MISCELLANEOIJS MAPS. RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE SOUTHWESTERLY ALONG SAID
NORTHWESTERL? LINE OF BUENA ISTA BOULEVARD TO ITS INTERSEC110N WITH THE NORTHWESTERLY
PROLONGA11ON OF THE SOUTHWESTERLY LINE OF SAJD LOT 147; THENCE NORTHWESTERLY ALONG THE
LAST MEN11ONED PROLONGATION TO THE LINE OF ORDINARY HIGH TIDE OF THE PACIFIC OCEAN IN
NEWPORT BAY AS DESCRIBED IN THE DECREE RENDERED IN THE SUPERIOR COIJRT OF THE STA1E OF
CAUFORNIA, IN AND FOR THE COUNTY OF ORANGE IN AN ACTION EN11TLED "CITY OF NEWPORT BEACH,
PLAIN11FF, VS BAY ISLAND CLUB AND OTHERS, DEFENDANTS", CASE NO. 24080, A CERT1FIED COPY OF
HICH WAS RECORDED SEPTEMBER 19, 1928 IN BOOK 203, PAGE 95 OF 0FF1CIAL RECORDS OF SAID
ORANGE COUNTY; THENCE NORTHEASTERLY ALONG THE SAiD TIDE UNE TO 1HE INTERSECTI0N WITH SAID
NORTHWESTERLY PROLONGA11ON OF THE NORTHEASIERLY LINE OF SAiD LOT 147; THENCE SOUTHEASTERLY
ALONG SAID PROLONGATION TO THE POINT OF BEGINNING.
..LJ..C.L).JC (>4 \, --V4
ViNCENT W. SCARPA11 R,C.E. 33520 DATE
LIC. EXP. DATE: 6-30-2016
SHEET1 OFI
BY: MOX
DATE: 11-17-2014
SCALE: NONE
C&V JF
CONSULTING, INC.
GIVIL ENGINEERING
LAND PLANNING & SURVEVING
27156 BURBANK
FOOTHILL RANCH,
CA, 92610
T. 949916.3800
F. 949.916.3805
WWW.CVC-INC.NET
EXHIBIT "C"
LOT 147
EXHIBIT D
342 BuenaVista Bivd.
Page 1 of 3
342 Buena Vista Blvd.
Page2of3
342 Buena Vista Blvd. Page 3 of 3
References:
A. Step: 175"
B. Planter: 20.5'
C. Shrub: 32.5"
D. Sidewaik Wail: 24"
E. Potted Plant: 59.5' - Required to be trimmed and maintained to a maximum height of 42" above
sidewaik grade.
F. Wall: 30.5'
G. Side Wall: 37.5"
H. Brick/ Concrete Carriage Waik: 3.5"
1. Artificial Turf: 3"
APPROVD AS TO L'ORM:
CityAttorney