HomeMy WebLinkAboutC-2179 - Encroachment Agreement (For Ferris Wheel)EXEMPT RECORDING REQUEST i ..R
Cr GOVERNMENT CODE 6103
N0 CONSIDERATION
E.? RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO: �� ` �✓
(J WANDA RAGGIO, CITY CLERK/,
CITY OF NEWPORT BEACH
3300 NEWPORT BOULEVARD ,;t — r�
NEWPORT BEACH, CA 92663 "F'�.tM">>'��� { T d
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86-168a96
RECORDED IN OFFICIAL RECORDS
OF ORANGE COUNTY CALIFORNIA
-4 °o PM APR 2 8'86
04(._ C.rt COUNT*
RECORDER
(This Space to Be Used by Recorder Only)
ENCROACHMENT AGREEMENT
This Agreement, made thisa4day of , 198
by and between the CITY OF NEWPORT BEACH, a charter city and
municipal corporation, ("City"), BALBOA FUN ZONE- LIMITED, a
Limited Partnership, authorized to do and doing business in the
State of California ("Developer"), and BALBOA FUN ZONE RIDES,
INC., a corporation duly organized and existing under and by
virtue of the laws of the State of California ("Concessionaire")
is made with reference to the following facts:
A. In 1936, the property northerly of East Bay Avenue,
between Washington and Palm Streets, in the City of Newport
Beach, was developed as a carnival/arcade known as the "Fun
Zone."
B. The Fun Zone and the large ferris wheel which was
its principal feature became historical landmarks.
C. In the late 1960's the Fun Zone deteriorated and
eventually ceased operations.
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867168196
D. On January 14, 1985, the City Council granted the
approvals requested by Developer in conjunction with a
comprehensive Fun Zone redevelopment plan.
E. The redevelopment plan approved by the City Council
contemplates the continuation of the ferris wheel and related
attractions. To implement that portion of the Plan, the City
Council approved a variance authorizing erection of the ferris
wheel on the bay side of the public walkway that forms the
northerly boundary of the project.
F. The City of Newport Beach has public access and
utility easements, across and under the property on which the
ferris wheel is to be located. The sole purpose of this
Agreement is to authorize installation of the ferris wheel on the
property subject to these easements. The agreement does not
impose standards or conditions reletive to the use or operation
of the ferris wheel since those matters are subject to the
jurisdiction of departments of the State of California.
C. The City Council has determined that erection of
the ferris wheel on property subject to a public access/public
utilities easement is appropriate in this case because of the
wide public walkway located adjacent to the ferris wheel which
was provided, in part, by dedication from the developer.
NOW, THEREFORE, the parties agree as follows:
1. PERMISSION TO INSTALL:
The City grants to Developer and Concessionaire the
right to install a ferris wheel on the property described in
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867 i J8196
Exhibit "A," and depicted in Exhibit "B," provided the ferris
wheel shall not exceed forty-five (45') feet in height.
2. TERM RENEWAL:
The right of Developer/Concessionaire to maintain a
ferris wheel on the property described in Exhibit "A" shall
continue for a period of three (3) years from the date of this
Agreement. If Developer and Concessionaire are not in default on
the date this Agreement is to expire, this Agreement shall
automatically renew for successive three (3) year periods until
terminated or until Developer or Concessionaire are in default,
and fail to cure the default as provided in paragraph 5.
3. DUTY TO INDEMNIFY:
Developer and Concessionaire shall indemnify,
defend and hold City and its officers, employees and agents,
harmless from any loss, liability, claim, damage, injury, cost or
expense that is in any way related, or alleged to be related, to
the use, operation, existence or maintenance of the ferris wheel,
related improvements, or the property described in Exhibit "A,"
provided, however, the duty of Developer and Concessionaire to
indemnify, defend and hold City harmless shall not extend to
injuries, claims, losses, liabilities, damages, costs or expenses
that are proximately caused by the sole negligence, fraud, or
intentional misconduct of City, or City's officers, employees or
agents.
4. INSURANCE:
In addition to the duties specified in paragraph 4,
Developer and/or Concessionaire shall maintain, at their sole
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8L_,168196
cost and expense and at all times during the term of this
Agreement, a broad form of comprehensive coverage policy of
public liability insurance with a single combined liability limit
in the minimum amount of $1,000,000.00 which names the City of
Newport Beach as an additional insured. The coverage provided by
the insurance policy shall be at least as broad as the duty of
Developer and Concessionaire under the provisions of paragraph
3. The insurance policy or policies shall be stated a primary
and noncontributing with any insurance which may be carried by
City, and shall contain provisions requiring thirty (30) days'
notice to City prior to any cancellation of the policy or
material change in the amount or extent of coverage provided.
Satisfactory evidence of this insurance shall be delivered to
City prior to the effective date of this Agreement.
5. BREACH:
The failure of Developer or Concessionaire to
comply with any of the terms and conditions of this Agreement
shall constitute a material breach. In the event of a material
breach, City shall give Developer and/or Concessionaire thirty
(30) days within which to cure the default. If the default is
not cured within thirty (30) days, this Agreement shall terminate
and Concessionaire and/or Developer shall remove the ferris wheel
and all related equipment within sixty (60) days from the date of
termination. Within the sixty (60) day period, Concessionaire
and/or Developer shall restore the premises to its condition as
of the date of this Agreement.
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86-IUvi96
6. TERMINATION:
Developer and/or Concessionaire may terminate this
Agreement by giving City sixty (60) days' written notice. In the
event Developer and/or Concessionaire exercise their rights
pursuant to this paragraph, the property shall, prior to
termination, be restored to its condition as of the effective
date of this Agreement.
7. NOTICES:
All notices required or desired to be served under
the terms of this Agreement shall be considered given as of the
date of deposit in the U.S. Mail, if mailed by registered mail,
with postage prepaid, and addressed as follows:
IF TO CITY:
City Manager
City of Newport Beach
3300 Newport Beach
Newport Beach, CA 92663
IF TO DEVELOPER:
The Balboa Fun Zone, Ltd.,
a California Limited Partner
Attention: Balboa Marina Fun Zone Corp.,
a California corporation,
the General Partner
1800 North Highland Avenue
Suite 1800
Hollywood, CA 90028
IF TO CONCESSIONAIRE:
Tunstall
Post Office Box 546
Wildomar, CA 92395
Balboa Fun Zone Rides, Inc.
Post Office Box 546
Wildomar, CA 92395
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8b-I68I96
8. SUCCESSORS/ASSIGNMENT:
This Agreement shall be binding upon and inure to
the benefit of, the successors of Developer or Concessionaire.
The Developer and Concessionaire may not assign their interests
in this Agreement without the prior written consent of City,
which shall not be unreasonably withheld.
written.
ATTEST:
This Agreement was executed on the day and year above
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CITY OF NEWPORT BEACH
a Charter City and Municipal
Corporation
Ma b
BALBOA FUN ZONE
LIMIT7
By:
BALBOA FUN ZONE RIDES, INC.,
a Corporation
By. <�
"Presidknt
And: �� ;17//;;R
ecretary
E OF CALIFORNIA )
) ss.
COUNT' - OS ANGELES )
On
undersigned, a
appeared JORDAN W
of satisfactory evide
instrument, and acknowle
the same.
86-168196
day of April, 1986, befe, the
y Public in and for said St personally
nown to me (or proved e on the basis
to be the per - at executed this
to me th partnership executed
WI . my - and official seal.
Notary Public in and for . State
STATE OF CALIFORNIA )
) ss.
COUNTY OF
6 PIgwG6
On this icl day of April, 1986, before me, the
undersigned, a Notary Public in and for said State, personally
appeared Ci ARtr, Wi4c+AL , known to me to be the
President, and PAT VALLIeleE known to me to be the
Secretary of BALBOA FUN ZONE RIDES, INC., the corporation that
executed the within instrument, known to me to be the persons who
executed the within instrument pursuant to its by-laws or a
resolution of its board of directors.
(SEAL)
OFFICIAL SEAL
BRUCE LAWRENCE WANK
NOTARY PUBLIC - CALIFORNIA
ORANGE COUNTY (Cf-F
comm, cx res JUL 8, 1988 ' NO t a r y 11c in
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WITNESS my hand and official seal.
7
and for said
Staff
J6-168196
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On this l5th day of April, 1986, before me, the
undersigned, a Notary Public in and for said State, personally
appeared JORDAN WANK, known to me to be one of the partners of
BALBOA FUN ZONE LIMITED, and personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person/s
whose name/s is/are subscribed to this instrument, and
acknowledged that he/she/they executed it.
OFFICIAL SEAL
EN'EDIN'A PINA
NOTARY PUBLIC - CALIFORNIA
LOS ANGELES COUNTY
My comm. expires APR 22, 1987
(SEAL)
WITNESS my hand and official seal.
Notary Public in and for said State
STATE OF CALIFORNIA
) ss.
COUNTY OF ORANGE
LA
On this , r day of April, 1986, before me, the
undersigned, a Notary Public in and for said State, personally
appeared PHILIP MAURER, known to me to be the Mayor of the City
of Newport Beach, and WANDA RAGGIO, known to me to be the City
Clerk of the City of Newport Beach, known to me to be the persons
whose names are subscribed to the within instrument, and
acknowledged to me that they executed the same.
imesmosammasusanam
OFFICIAL SEAL
DOROTHY L. PALEN
NOTARY PUBLIC . CALIFORNIA
PRINCIPAL OFFICE iN
ORANGE COUNTY
My Commission Exp. Apr. 5, 1989
(SEAL)
WITNESS my hand and official seal.
Notary Publicin and for said State
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867168196
FERRIS WHEEL AREA
All that certain property in the City of Newport Beach, Orange County,
California, described as follows:
That portion of Parcel 20, Block 112, as shown on Orange County Assessor's
Map filed in Book 48, Page 11 of Assessor's Maps, in the Office of the
Recorder of said County, more particularly described as follows:
Beginning at the most northerly corner of said parcel; thence S 34° 32'
00" W along the northwesterly line of said parcel to a line parallel
with and 19.00 feet southwesterly, measured at right angles from the
northeasterly line of said parcel; thence S 51° 19' 54" E along said
parallel line, a distance of 57.00 feet; thence N 38° 40' 06" E 19.00
feet to the northeasterly line of said parcel;thence N 51° 19' 54" W
along said northeasterly line to the point of beginning.
EXH/8/T 4
50'
ALLEY
50'
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86-168196
FERR/S WNEEL AREA
NEWPORT 43AY
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PCL . 20
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Asse5sor'S Mips
BAY AVE.
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30'
CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENT
DRAWN AM.M• DATE 276786
APPROVED
FERR/5 WA/EEL Aw l
PUBLIC WORKS DIRECTOR
R.E. NO
DRAWING NO. EXN/B/T "6"
PAGE / OF 2
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