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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 ,,z, 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. -1- 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 -2- 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 -3- 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. -4- 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 -5- 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 -6- 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 -7- 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 -8- 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' .a: 9S-4 w57.00, 86-168196 FERR/S WNEEL AREA NEWPORT 43AY �-s/°/9 `s4 "/„i ,&//kheod PCL . 20 BL K. //2 600.E 48, PQye !/ 0711 Asse5sor'S Mips BAY AVE. v Q 30' 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 • MOTE: -dl S�t.TE PEA Tic W.,ESQ crc. aGl r-. %2_ 1.{. I it A2' _BUILDING `AT B1 r.. -^�SrCM A3 A4 I111. GFi'�Ity 86=1 8196 I Re. So! pll 4II�I rL-- — (--BIRD �cE A5 A6 II�al�;l i I B3 B4 I EE(NI &T he /oAG•E 2 oF2