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HomeMy WebLinkAboutC-2320 - Land Use AgreementCITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY MEMORANDUM December 3, 1990 TO: Wanda Raggio FROM: Robert H. Burnham SUBJ: Termination of Land Use Agreement In 1982, the City and Ed Karagozian entered into an Agreement which allowed him to install a ham radio antenna on his property in Bayshores. Recently, Karagozian sold his Bayshores property and relocated his ham radio equipment to his new residence. Under the circumstances, termination of the Land Use Agreement was appropriate and this office prepared a document doing so. I have attached the original Termination Agreement and this should be placed in the file next to the original Land Use Agreement. RHB:kmc Attachment kwlkara.m Robert H. Bur'. City Attorney 90-564131 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: RECORDING REQUESTED BY TICOR TITLE INS. CO. OF CALIF. ROBERT H. BURNHAM CITY OF NEWPORT BEACH RECORDED IN OFFICIAL RECORDS 3300 Newport Boulevard OF ORANGE COUNTY, CALIFORNIA P.O. Box 1768 Newport Beach, CA 92659-1768 -0.95 AM OCT Z 4'90 EXEMPT: GOVT CODE 6103 MIT 1-4 TERMINA`ZQN OF LAND USE AGREEMENT THIS AGREEMENT is made and entered into this day of between EDWARD KARAGOZIAN (hereinafter referred to as "KARAGOZIAN") and the CITY OF NEWPORT BEACH (hereinafter referred to as "CITY") with respect to the following facts: A. A Land Use Agreement was made and entered into between KARAGOZIAN and CITY on March 24, 1982, defining the rights and duties of the parties in relation to allowing KARAGOZIAN to install an amateur radio antenna, mast, and supporting structure (hereinafter referred to as "Equipment") on property located at , 05 2461 Crestview Drive, Newport Beach, California (hereinafter referred to as "Property"), and legally described as follows: Lot 93, Tract 1140 as per map recorded in Book 36, Page 28, of Miscellaneous Maps in the d\ Office of the County Recorder of Orange County. B. The Land Use Agreement was recorded in the Official Records of Orange County, California, on April 21, 1982, at 2:45 C. The Agreement contains certain conditions that have been 1 imposed upon the use of the proposed antenna and was recorded to put prospective owners of the property on notice of the restrictions. D. KARAGOZIAN desires to transfer ownership of the property and remove the Equipment from the property. Removal of the equipment effectively terminates the Land Use Agreement and any interest of the Bayshore Community Association. NOW, THEREFORE, the Parties agree as follows: 1. The Land Use Agreement shall terminate as of the date on which the equipment is removed. 2. The City of Newport Beach waives and gives up any right upon title, interest, lien or encumbrance created by the Land Use Agreement as of the date the equipment is removed. 3. Removal of the equipment shall also operate to terminate the rights of any third party beneficiary to the Land Use Agreement. 4. This Agreement shall not be recorded until the equipment is removed from the property. Dated: Dated:r,%ire EDWARD KARAGO CITY OF NEWPO By: ATTEST: 2 Ruthelyn SCI F�pF� j ummer, Mayor City Clerk D AS TO FORM: ROBERT H. BURNHAM, City Attorney TMH\TERMLAND.AGR STATE OF CALIFOUPAnge I SS COUNTY OF On this 24th day of September , in the year cl 1990 :? ,before me, the undersigned, a Notary Public in N and for said County and State, personally appeared EDWARD KARAGOZTAN J personally known to me (or proved to me on the basis of satisfactory D evidence) to be the person whose name T S - subscribed to the within instrument and ,r Z acknowledged that HE executed the r- same. a Signature Ud = aiJ)YATEEL U m mame (Typed or Prin d) Notary Public in and for said County and State F2492 R 6/84 OFFICIAL SEAL JUDY A TEEL NoLW Public-Califomia ORANGE COUNTY My C(mm. Exp. July 16,1993 i FOR NOTARY SEAL OR STAMP STATE OF CALIFORNIA Orange ss. COUNTY OF 9 On this 4th day of October , in the year 19 90 , before me, the undersigned, a Notary Public in and for said State, personally appeared Ruthelyn Plummer, known to me to be the Mayor of the Cit of Newport Beach and Robert H. Burnhamknown to me to b the City Attorney for the City of Ne fl)gL i�known to me ,� (or proved to me on the basis of satisfactory evidence) to be the person_ whose names REK OFFICIAI: IE. 2 are subscribed to the within instrument, and acknowledged to me that —they— DOROTHY L. PALEN executed it. NOTARY PUBLIC - CALIFORNIA " ORANGE COUNTY WITNESS my hand and official seal. FOB L+y Comm. Expires May 25,19933 ACKNOWLEDGMENT—General—Wolcotts Form 233CA—Rev, 5-82 Notary P is in and for said State. ©1982WDLCDTTS,INC. (price class8-2) DOROTHY L. PALEN RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: ROBERT H. BURNHAM CITY OF NEWPORT BEACH 3300 NEWPORT BLVD., NEWPORT BEACH, CA. 92662 EXEMPT: GOVT. CODE 6103 LAND USE AGREEMENT THIS AGREEMENT is made and entered into this day of between EDWARD KARAGOZIAN (hereinafter referred to as KARAGOZIAN) and THE CITY OF NEWPORT BEACH (hereinafter referred to as CITY) with respect to the following facts: A. A dispute has arisen between KARAGOZIAN and CITY over the applicability of CITY's zoning ordinances for an amateur EXHIBIT "B" STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) On the 24 day of March , 1982, before me, the under- signed, a Notary Public in and for said State, personally appear- ed EDWARD KARAGOZIAN known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same. WITNESS my hand and official seal. STATE OF CALIFORNIA ) )ss COUNTY OF ORANGE ) Notary Public On the day of , 1982, before me, the under- signed, a Notary Public in and for said State, personally appear- ed EVELYN HART known to me to be the Mayor Pro Tem of the CITY OF NEWPORT BEACH, a municipal corporation, and known to me to be the person who executed the within instrument on behalf of said cor- poration and acknowledged to me that such corporation executed the same. WITNESS my hand and official seal. Notary Public 7 6n e OFFICIAL SEAL` PATRICIA R. DRIMEROD NOTARY PUBLIC - CAL.IFORNIA PRINCIPAL OFFICE IN Y ORANGE COUNTY MY Commission FXp, Feb. Zit, 1386 STATE OF CALIFORNIA ) )ss COUNTY OF ORANGE ) Notary Public On the day of , 1982, before me, the under- signed, a Notary Public in and for said State, personally appear- ed EVELYN HART known to me to be the Mayor Pro Tem of the CITY OF NEWPORT BEACH, a municipal corporation, and known to me to be the person who executed the within instrument on behalf of said cor- poration and acknowledged to me that such corporation executed the same. WITNESS my hand and official seal. Notary Public 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stipulated and agreed to: Dated:-- 1'Lc - -+ FrIc5derick J. Law66n Attorney for Plaintiff Stipulated and agreed to: Dated: Michael' H.' Miller City Attorney Attorney for Defendant Dated: IT IS SO ORDERED Judge 31 4 5 6 7 n Ll.l 8 C r � 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MICHAEL H. MILLER, CITY ATTORNEY SB #42319 ROBERT H. BURNHAM, ASSISTANT CITY ATTORNEY SB #44926 CITY OF NEWPORT BEACH A Municipal Corporation 3300 Newport Boulevard Newport Beach, California 92�fl ERED (714) 640-2201 FEB 18 182 Attorneys for Defendant CITY OF NEWPORT BEACH CLERK, U. S. GIST"} a C�JUiiT�e� C1E� IK U. S. % w3 �;. 1 i' (11 IT F.N TRAL OISTRICT C'. ALIFORNIA ElEPUTY CENTRAL DISTRIOT Or' C,',..}I-OR �(y - , BY, rrT[! E}1 - el IN THE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EDWARD KARAGOZIAN, JR. Plaintiff, VS. CITY OF NEWPORT BEACH, Defendant. ('f4 H Case No. CV 81 3983 CBM (Tx) STIPULATION FOR JUDGMENT This Stipulation is entered into by and between EDWARD KARAGOZIAN, JR., Plaintiff, (hereinafter KARAGOZIAN) and THE CITY, OFNEWPORT BEACH, Defendant, (hereinafter CITY) based on the following: A. A dispute has arisen between KARAGOZIAN and CITY over the applicability of CITY's zoning ordinances for an amateur radio antenna which KARAGOZIAN proposes to construct. B. The settlement of this litigation on the terms and conditions specified herein will grant to KARAGOZIAN substantial- ly all of the use of his radio equipment that he would otherwise EXHIBIT"A" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 82-137676 enjoy and preserves, substantially, all of the public interests that CITY protects through its zoning ordinances. NOW, THEREFORE, THE PARTIES HERETO STIPULATE AND AGREE AS FOLLOWS: 1. KARAGOZIAN shall be permitted to install an amateur radio antenna, mast and supporting structure on property located at 2461 Crestview Drive, Newport Beach, California. The radio antenna and mast to be installed shall meet the following specifications. (a) The total height measured from grade at the point of installation of the antenna, mast and/or any other appurtenances shall be 65 feet or less; (b) The antenna and mast must be constructed and equipped with a device such that the entire assembly can be lowered to an elevation of 28 feet or less; (c) The radio antenna and mast must be installed in accordance with all applicable ordinances of CITY including, but not limited to, zoning and building ordinances. 2. KARAGOZIAN's use of this radio antenna and mast shall be limited as follows: (a) The antenna and mast, when not in use, shall be lowered to 28 feet or less; if the antenna is in use during daylight hours, defined as the time after sunrise and before sunset, it 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 82-137676 shall be raised only to a height of 40 feet above grade and is to be lowered to 28 eet when the use ceases. (b) If the antenna is in use during nighttime hours, defined as the time after sunet and before sunrise, it may be raised to 65 feet, but shall be lowered to 28 feet when the use ceases. (c) Notwithstanding the restrictions on use as set forth in (a) - (d) above, KARAGOZIAN may uti- lize the antenna, at full height, during time of national or local emergency or when requested to so do by any Governmental agency in furtherance of legitimate public interests. 3. At such time as the new antenna and mast are installed and ready for operation, KARAGOZIAN shall remove the existing radio antenna and mast. 4. Should CITY receive complaints with respect to use of the antenna, CITY may notify KARAGOZIAN and, upon request of - notice of complaint, KARAGOZIAN shall, in good faith, use all reasonable efforts to eliminate the basis of the complaint. The provisions of this paragraph shall not be construed as a limita- tion on the right of CITY, pursuant to paragraphs 4 and 5, to bring appropriate legal action in the event of violations of this agreement. 5. It is the intent of the parties, that repeated or regular violations by KARAGOZIAN of the provisions of this agree 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ment concerning use of the antenna shall constitute a material breach of this agreement. 6. The parties hereto stipulate and agree that in the event of regular or repeated violations of the use restrictions imposed upon KARAGOZIAN by this agreement, in addition to the other remedies provided by law or the Bayshore Community Associa- tion, CITY may bring an action, in the Superior Court of Orange County, for specific performance of this agreement as well as for temporary injunctive relief, and that the prevailing party in that litigation shall be entitled to recover reasonable attorney's fees and costs. The parties agree that specific per- formance is an appropriate remedy, that monetary damage for such violations would be inadequate and difficult to ascertain, and that repeated violations would constitute irreparable injury to both defendants and Bayshores Community Association. Defendant hereby waives any and all affirmative defenses to an action for specific performance and/or injunctive relief and reserves only the right to contest the factual allegations that constitute the alleged breach, and to interpose State and Federal constitutional - defenses. 7. KARAGOZIAN agrees to hold CITY harmless from and defend CITY against any claim, loss, liability or damage that arises from, or is in any way related to, the construction, main- tenance or existance of the antenna or mast. 8. This agreement shall be recorded in a form as shown on Exhibit "A" hereto and is to be binding on the sucessors-in- interest to KARAGOZIAN .. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. This agreement may not be assigned or transferred without the written consent of the other party. 10. It is the intent of the parties that the Bayshores Community Association is to be a third party beneficiary of this agreement with rights of enforcement equal to those of the par- ties. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 82-.137676 Stipulated and agreed to: Dated: Stipulated and agreed to: Dated: Dated: IT IS SO ORDERED Fr derick J. Law66n Attorney for Plaintiff 1 Michael H.1Miller City Attorney Attorney for Defendant Judge RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: ROBERT H. BURNHAM CITY OF NEWPORT BEACH 3300 NEWPORT BLVD., NEWPORT BEACH, CA. 92662 EXEMPT: GOVT, CODE 6103 LAND USE AGREEMENT THIS AGREEMENT is made and entered into this day of Z between EDWARD KARAGOZIAN (hereinafter referred to as KARAGOZIAN) and THE CITY OF NEWPORT BEACH (hereinafter referred to as CITY) with respect to the following facts: A. A dispute has arisen between KARAGOZIAN and CITY over the applicability of CITY's zoning ordinances for an amateur EXHIBIT "B" 82-1%37676 radio antenna which KARAGOZIAN proposes to construct, and KARAGOZIAN has filed a lawsuit in Federal Court to resolve the dispute. B. This litigation has been settled by way of a Stipu- lated Judgment and certain conditions have been imposed upon the use of the proposed antenna pursuant thereto. C. This agreement contains those conditions and is required to be recorded so that prospective owners of the proper- ty are on notice of the restrictions or the use of the equipment. D. KARAGOZIAN shall be permitted to install an amateur radio antenna, mast and supporting structure on property located at 2461 Crestview Drive, Newport Beach, California and legally described as follows: Lot 93 Tract No. 1140 as per Map recorded in Book 36 Page 28 of Miscel- laneous Maps in the office of the county recorder of Orange County. The radio antenna and mast to be installed shall meet the following specifications. 1. The total height measured from grade at the point of installation of the antenna, mast and/or any other appurtenances shall be 65 feet or less; r 2. The antenna and mast must be constructed and equipped with a device such that the entire assembly can be lowered to an elevation of 28 feet or less; 3. The radio antenna and mast must be installed in accordance with all applicable ordinances of CITY including, but not limited to, zoning and building ordinances. E. KARAGOZIAN°s use of this radio antenna and mast shall be limited as follows: 1. The antenna and mast, when not in use, shall be lowered to 28 feet or less; if the antenna is in use during daylight hours, defined as the time after sunrise and before sunset, it shall be raised only to a height of 40 feet above grade and is to be lowered to 28 feet when the use ceases. 2. If the antenna is in use during nighttime hours, defined as the time after sunet and before sunrise, it may be raised to 65 feet, but shall be lowered to 28 feet when the use ceases. 3. Notwithstanding the restrictions on use as set 3 82-137676 forth above, KARAGOZIAN may utilize the anten- na, at full height, during time of national or local emergency or when requested to so do by any Governmental agency in furtherance of legitimate public interests. F. At such time as the new antenna and mast are installed and ready for operation, KARAGOZIAN shall remove the existing radio antenna and mast. G. Should CITY receive complaints with respect to use of the antenna, CITY may notify KARAGOZIAN and, upon request of notice of complaint, KARAGOZIAN shall, in good faith, use all reasonable efforts to eliminate the basis of the complaint. The provisions of this paragraph shall not be construed as a limita- tion on the right of CITY, pursuant to paragraphs 4 and 5, to bring appropriate legal action in the event of violations of this agreement. H. It is the intent of the parties, that repeated or regular violations by KARAGOZIAN of the provisions of this agree- ment concerning use of the antenna shall constitute a material breach of this agreement. I. The parties hereto stipulate and agree that in the event of regular or repeated violations of the use restrictions imposed upon KARAGOZIAN by this agreement, in addition to the 4 other remedies provided by law or the Bayshore Community Associa- tion, CITY may bring an action, in the Superior Court of Orange County, for specific performance of this agreement as well as for temporary injunctive relief, and that the prevailing party in that litigation shall be entitled to recover reasonable attorney's fees and costs. The parties agree that specific per- formance is an appropriate remedy, that monetary damage for such violations would be inadequate and difficult to ascertain, and that repeated violations would constitute irreparable injury to both defendants and Bayshores Community Association. Defendant hereby waives any and all affirmative defenses to an action for specific performance and/or injunctive relief and reserves only the right to contest the factual allegations that constitute the alleged breach and to interpose State and Federal constitutional defenses. J. KARAGOZIAN agrees to hold CITY harmless from and defend CITY against any claim, loss, liability or damage that arises from, or is in any way related to, the construction, main- tenance or existance of the antenna or mast. K. This agreement shall be recorded in a form as shown on Exhibit "A" hereto and is to be binding on the sucessors-in- interest to KARAGOZIAN . L. This agreement may not be assigned or transferred 5 without the written consent of the other party. M. It is the intent of the parties that the Bayshores Community Association is to be a third party beneficiary of this agreement with rights of enforcement equal to those of the parti- es. Date:— k ". 24, Edward Karagozia CITY OF NEWPORT Date: .47 Evelyn art Mayor Pro Tem ATTEST: City Clerk APPROVED AS/ TO FORM City Attorney 0 82 --137G76 (� 1JF RECOROf0 IN OFFICIAL, RECORDS RECBFZ0ARD MA T® Of ORANGE COUNTY, CALIFORNIA PTS .2 p{� APR 2.1 '82 city tier sport Beach C2_ city ct ®,t Blvd. �� 3ko Ne -INP , - 884 tTE A. 6 AMRIC , CO+�n Rword ' �.®�r�r+� CA 92668 RESOLUTION NO. 82-21 RESOLUTION OF THE CITY COUNCIL OF THE CITY 0.' NEWPORT ,BEACH. AUTHORIZING THE MAYOR, TO EXE �Slr�n, ATTORNEYA LAND S TOAEXECUTET; DIRECTING A STIPULATIONHFORIJUD 1NT�RT``g RESOLVING THE LITIGATION BETWEEN CITY ANDk�6!�Y; q�'t - ���ITEDWARD KARAGOZIAN AND DIRECTING THE CITY \-- O RECORD SAME r�ITH THE OR:?':NCE CO:�NTY nEC WHEREAS, a dispute has arisen between Edwar (hereinafter KARAGOZIAN) and the City of Newport Beach, (herein- after CITY) over the applicability of CITY's zoning ordinances for an amateur radio antenna which KARAGOZIAN proposes to con- struct; and WHEREAS, the parties hereto have entered into a settle- ment whereby this litigation can be resolved on the terms and conditions specified a certain Stipulation for Judgment, a copy of which is attached hereto, marked E%bibit "A" ank,3 f.neornorated herein as though fully set forth at length, which Stipulation will be filed with the U.S. District Court after acceptance by the City Attorney, wherein CITY will grant to KARAGOZIAN substantially all of the use of his radio equipment that he would otherwise enjoy; and preserve, substantially, all of the public interests which CITY protects through its zoning ordinances; and WHEREAS, a certain Land Use Agreement has been prepar- ed, for recording purposes, a copy of which is attached hereto marked Exhibit "B" and incorporated herein as though fully set forth at length, which includes the terms and provisions of the Stipulation for Judgment, which agreement will be signed by both parties and recorded in the Orange County Recorder's office. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach that the City Attorney be and hereby is authorized and directed to sign said Stipulation for Judgment for filing with the U.S. District Court; and - r82-137676 BE IT FURTHER RESOLVED that the Mayor be and hereby is authorized and directed to sign, before a Notary Public, that certain Land Use Agreement which incorporates, for recording, the terms and provisions of the Stipulation; and BE IT FURTHER RESOLVED that the City Clerk be and hereby is directed to record said Land Use Agreement in the offices of the recorder in and for the County of Orange. ADOPTED this 8th day of February , 1982. ATTTE T: r City1Clerk Mayor W 01IRTIfIED AS TRUE ANO CORRECT COPY Gam- "`7`C,'.� CITY CLERK OF THE CITY OF N!,1�N►POR`T BEACH DATESd._._:y .