EXHIBIT 10(ad)
RECIPROCAL EASEMENT AGREEMENT
between
MARINE WORLD JOINT POWERS AUTHORITY
and
PARK MANAGEMENT CORP.
Dated as of November 7, 1997
TABLE ON CONTENTS
ARTICLE 1
OPERATION AND MAINTENANCE - GENERAL
SECTION 1.1. Operation and Maintenance. . . . . . . . . . . . . . . . 2
SECTION 1.2. Damage or Destruction to Improvements on any Parcel. . . 3
SECTION 1.3. Clearing Debris from Razed Improvements. . . . . . . . . 3
SECTION 1.4. Miscellaneous Repairs and Alterations. . . . . . . . . . 3
SECTION 1.5. Liability of Mortgagee . . . . . . . . . . . . . . . . . 4
SECTION 1.6. Limitation on Detrimental Characteristics. . . . . . . . 4
SECTION 1.7. Parking. . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.8. Compliance With Laws . . . . . . . . . . . . . . . . . . 5
SECTION 1.9. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . 5
SECTION 1.10. Environmental Matters. . . . . . . . . . . . . . . . . . 5
SECTION 1.11. Conflict with Article 2. . . . . . . . . . . . . . . . . 5
ARTICLE 2
OPERATION AND MAINTENANCE OF PUBLIC AREAS
SECTION 2.1. Operation and Maintenance of Public Areas. . . . . . . . 5
SECTION 2.2. Rules and Regulations. . . . . . . . . . . . . . . . . . 6
SECTION 2.3. Restrictions on Public Areas and Otherwise . . . . . . . 6
SECTION 2.4. Failure of Performance . . . . . . . . . . . . . . . . . 6
SECTION 2.5. Damage to or Destruction of Public Areas . . . . . . . . 6
SECTION 2.6. Operation of the Public Parking. . . . . . . . . . . . . 7
SECTION 2.7. Noninterference with Permittee Circulation . . . . . . . 7
SECTION 2.8. Fences . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.9. Signs and Banners. . . . . . . . . . . . . . . . . . . . 7
ARTICLE 3
RECIPROCAL EASEMENTS
SECTION 3.1. Definitions and Documentation. . . . . . . . . . . . . . 8
SECTION 3.2. Nature of Easements. . . . . . . . . . . . . . . . . . . 8
SECTION 3.3. General Easements. . . . . . . . . . . . . . . . . . . . 9
SECTION 3.4. Easements for Utility Facilities . . . . . . . . . . . . 10
SECTION 3.5. Temporary Construction Easements . . . . . . . . . . . . 11
SECTION 3.6. Termination and Abandonment of Easements.. . . . . . . . 11
ARTICLE 4
GENERAL CONSTRUCTION REQUIREMENTS
SECTION 4.1. "Construction" Defined.. . . . . . . . . . . . . . . . . 12
SECTION 4.2. Construction to Proceed in Reasonable Manner.. . . . . . 12
SECTION 4.3. Construction Barricades. . . . . . . . . . . . . . . . . 12
SECTION 4.4. Safety Matters . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.5. Workmanship. . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.6. Liens. . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 5
OTHER AGREEMENTS
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SECTION 5.1. Covenant to Perform. . . . . . . . . . . . . . . . . . . 13
SECTION 5.2. Subordination of Leases. . . . . . . . . . . . . . . . . 13
SECTION 5.3. Indemnification by Parties . . . . . . . . . . . . . . . 13
SECTION 5.4. Liability Insurance and Waiver of Subrogation. . . . . . 14
SECTION 5.5. Casualty Insurance . . . . . . . . . . . . . . . . . . . 15
SECTION 5.6. Condemnation . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.7. Fire or Other Casualty . . . . . . . . . . . . . . . . . 16
SECTION 5.8. Application of Proceeds and Awards . . . . . . . . . . . 16
ARTICLE 6
REAL ESTATE TAXES OR IMPOSITIONS
SECTION 6.1. Payment of Taxes or Impositions. . . . . . . . . . . . . 17
SECTION 6.2. Contesting Impositions.. . . . . . . . . . . . . . . . . 17
SECTION 6.3. Failure to Pay Impositions.. . . . . . . . . . . . . . . 17
SECTION 6.4. Additional Provisions Regarding Impositions. . . . . . . 17
SECTION 6.5. Other Governmental Charges . . . . . . . . . . . . . . . 19
SECTION 6.6. Exceptions from Impositions; Charges in Lieu of
Impositions. . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 7
ARBITRATION
SECTION 7.1. Disputes Subject to Arbitration. . . . . . . . . . . . . 19
SECTION 7.2. Arbitration Procedures.. . . . . . . . . . . . . . . . . 19
SECTION 7.3. Proceedings. . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 8
NOTICES AND APPROVALS
SECTION 8.1. Notices to Parties.. . . . . . . . . . . . . . . . . . . 19
SECTION 8.2. Time and Form of Approvals.. . . . . . . . . . . . . . . 20
SECTION 8.3. Notice to Mortgagees and Opportunity to Cure . . . . . . 20
ARTICLE 9
AMENDMENT
SECTION 9.1. Amendment. . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 10
EXPIRATION DATE
SECTION 10.1. Term.. . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 11
MISCELLANEOUS
SECTION 11.1. Limited Liability of Parties.. . . . . . . . . . . . . . 21
SECTION 11.2. Exhibits.. . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 11.3. References to Articles, Sections and Subsections.. . . . 22
SECTION 11.4. Table of Contents and Captions.. . . . . . . . . . . . . 22
SECTION 11.5. Locative Adverbs.. . . . . . . . . . . . . . . . . . . . 22
SECTION 11.6. REA for Exclusive Benefit of the Parties.. . . . . . . . 22
SECTION 11.7. Waiver of Default. . . . . . . . . . . . . . . . . . . . 22
SECTION 11.8. Payment on Default.. . . . . . . . . . . . . . . . . . . 23
SECTION 11.9. No Partnership Joint Venture or Principal Agent
Relationship.. . . . . . . . . . . . . . . . . . . . . . 23
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SECTION 11.10. Successors.. . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 11.11. Severability.. . . . . . . . . . . . . . . . . . . . . . 23
SECTION 11.12. Governing Laws.. . . . . . . . . . . . . . . . . . . . . 23
SECTION 11.13. Release. . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 11.14. No Dedication. . . . . . . . . . . . . . . . . . . . . . 24
SECTION 11.15. Written Consent Required.. . . . . . . . . . . . . . . . 24
SECTION 11.16. Covenants Run With the Land. . . . . . . . . . . . . . . 24
SECTION 11.17. Rules. . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 11.18. Default Shall Not Permit Termination of REA. . . . . . . 24
SECTION 11.19. Right to Enjoin. . . . . . . . . . . . . . . . . . . . . 25
SECTION 11.20. Rights, Privileges, and Easements with Respect to Liens. 25
SECTION 11.21. Identification of Utility Facilities.. . . . . . . . . . 25
SECTION 11.22. Generally Accepted Accounting Principles.. . . . . . . . 25
SECTION 11.23. Counterparts.. . . . . . . . . . . . . . . . . . . . . . 25
SECTION 11.24. Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . 25
SECTION 11.25. Breach Shall Not Defeat Mortgage.. . . . . . . . . . . . 25
SECTION 11.26. Estoppel Certificate.. . . . . . . . . . . . . . . . . . 25
SECTION 11.27. Time of Essence. . . . . . . . . . . . . . . . . . . . . 26
SECTION 11.28. Liability of Mortgagees. . . . . . . . . . . . . . . . . 26
ARTICLE 12
DEFINITIONS
SECTION 12.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . 26
EXHIBIT A DESCRIPTION OF THE LAND
EXHIBIT B DESCRIPTION OF THE PRIVATE PARCEL
EXHIBIT C DESCRIPTION OF THE PUBLIC PARCEL
EXHIBIT D DESCRIPTION OF PUBLIC AREAS
EXHIBIT E RULES AND REGULATIONS
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RECIPROCAL EASEMENT AGREEMENT
This Reciprocal Easement Agreement, dated as of November 7, 1997 (the
"REA"), is made by and between the Marine World Joint Powers Authority, a joint
exercise of powers authority organized and existing under the laws of the State
of California (the "Authority"), and Park Management Corp., a California
corporation (the "Corporation").
RECITALS
A. All capitalized terms used herein and not defined in the section where
first used in this REA are defined in Article 12 hereof or the definition of
such capitalized term is referenced in Article 12 hereof.
B. The City of Vallejo (the "City") owns approximately one hundred
thirty-eight (138) acres of land located in the County of ▇▇▇▇▇▇, State of
California, described in Exhibit A attached hereto (the "Land"). The City also
owns or controls the right to use the surface of Lake ▇▇▇▇▇▇, a flood control
and drainage reservoir consisting of approximately fifty-five (55) acres.
C. Certain improvements to the portion of the Land identified as the
"Public Parcel" below were refinanced on January 30, 1997, with the proceeds of
certificates of participation in the aggregate principal amount of $63,465,000
(the "Certificates of Participation Financing").
D. In connection with the Certificates of Participation Financing, (i) the
City entered into a 1997 Site Lease Relating to Marine World dated as of January
1, 1997 whereby the City leased the Land and rights to use Lake ▇▇▇▇▇▇ to the
Authority (the "1997 City-Marine World Lease"), (ii) the Authority and the City
entered into a 1997 Lease Agreement Relating to Marine World, dated as of
January 1, 1997, whereby the Authority leased back to the City a portion of the
Land identified in Exhibit C hereto (the "Public Parcel," which Public Parcel
shall be hereinafter deemed to include, as appropriate, all Improvements
thereon) and rights to use Lake ▇▇▇▇▇▇, (iii) the City and the Redevelopment
Agency of the City of Vallejo (the "Agency") entered into a 1997 First Sublease
Agreement Relating to Marine World, dated as of January 1 1997, whereby the City
subleased to the Agency the Public Parcel and the rights to use Lake ▇▇▇▇▇▇, and
(iv) the Agency and the Authority entered into a 1997 Second Sublease Agreement
Relating to Marine World, dated as of January 1, 1997, whereby the Agency
subleased to the Authority the Public Parcel and the rights to use Lake ▇▇▇▇▇▇
(the "1997 Agency-Marine World Lease") to enable the Authority to operate and
maintain a park under the name "Marine World/Africa U.S.A."
E. The Authority and the Corporation have entered into a 1997 Management
Agreement Relating to Marine World as of February 1, 1997 (said agreements,
together with any successor agreement with respect to the management of the
improvements on the Public Parcel, being herein called the "Management
Agreement") pursuant to which the Corporation acts as the manager of the
improvements located on the Public Parcel (the manager under the initial
Management Agreement, and any manager of the Improvements on the Public Parcel
under any successor Management Agreement, being herein called the "Manager").
F. The Authority, as landlord, and the Corporation, as Tenant, have
entered into a Parcel Lease of even dated herewith (the "Parcel Lease") pursuant
to which the Authority has leased to the Corporation the land identified in
Exhibit B hereto (the "Private Parcel," which Private Parcel shall be
hereinafter deemed to
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include, as appropriate, all Improvements thereon).
G. The Improvements to the Public Parcel include parking facilities from
time to time maintained on or used in connection with the Public Parcel (the
"Parking Areas"), an entry area which includes ticket sales and admission
facilities, various public walkways, paths, restrooms, dining facilities, picnic
areas and other related or similar areas that are intended for use by patrons
of the Public Parcel and/or the Private Parcel in connection with, or are
otherwise integral to, the operations of the Public Parcel and the Private
Parcel (together with any similar Improvements on or later constructed on the
Private Parcel, and all as more completely described in Exhibit D hereto,
collectively herein call the "Public Areas"). The Public Areas shall not
include any stadia, rides, exhibit facilities or other attractions that relate
specifically to the theme and character of the operation of the respective
Parcel or which such Public Area is located.
H. The parties to this REA desire to provide for the maintenance and
operation of the Public Areas and of the Improvements, and to otherwise create
and provide for certain rights, privileges and easements and to impose certain
restrictions and covenants on the Public Parcel, the Private Parcel and the
Public Areas as hereinafter more specifically set forth, including, but not
limited to, certain rights of ingress, egress, and access as specifically set
forth herein to and among the Public Areas, various portions of the Private
Parcel and various portions of the Public Parcel.
I. It is hereby agreed by the parties hereto that this REA shall run with
the Private Parcel and the Public Parcel and shall govern and be binding upon
all Persons who shall succeed to any interest in any portion or portions of the
Land and any improvements thereon, whether by lease, sublease, or any other
conveyance, succession upon default, foreclosure, or operation of law until such
time as this REA shall terminate in accordance with its own terms or unless and
until every Party and the City, the Agency and every Mortgagee, if any, shall
execute and acknowledge a declaration of termination of this REA and cause such
declaration to be duly recorded in the Official Records, County of ▇▇▇▇▇▇, State
of California.
AGREEMENT
ARTICLE 1
OPERATION AND MAINTENANCE - GENERAL
SECTION 1.1 OPERATION AND MAINTENANCE. The Authority shall have full
responsibility to operate and maintain the Public Parcel, including any
Improvements thereon and any Public Areas therein in a manner consistent with
the manner of operations thereof, as a whole, during the two year period
preceding the date of this REA, and the Corporation shall have full
responsibility to operate and maintain the Private Parcel, including any
Improvements thereon and any Public Areas therein in a manner consistent with
other regional theme parks operated by PPI or related entities. Each Party
shall operate and maintain, at its sole cost and expense, the Improvements on
such Party's Parcel in accordance with this REA, the Leases to which it is a
party, as applicable, and the Revenue Sharing Agreement. Each Party shall
operate and maintain the Improvements on such Party's Parcel in a manner which
does not unreasonably impede access between the Public Areas of the Parcels, or
otherwise materially interfere with the use or operation of the Public Areas or
the respective Parcels on which such Public Areas are located, and in a manner
which is otherwise compatible with the uses of the Public Areas as permitted
under this REA.
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The Authority has retained the Manager to operate and maintain the Public
Parcel as described in the Management Agreement. The Corporation acknowledges
receipt of a copy of the Management Agreement in effect on the date hereof, and
assents to its terms as they relate to the operation and maintenance of the
Public Parcel. The Authority shall provide the Corporation with any proposed
amendment to the Management Agreement and any proposed successor Management
Agreement at least two weeks prior to its effective date, and shall not enter
into any such amendment or successor agreement to which the Corporation shall
reasonably object, provided that said objections are delivered in writing during
such two week period by the Corporation to the Authority and that said objection
or objections relate to: (a) the standards of operation or maintenance of the
Public Parcel and the Improvements thereon and the Public Areas therein, or (b)
the compensation to be paid to the proposed manager, if such compensation is
materially in excess of the then prevailing rate of compensation for managers of
regional, non-destination theme parks of comparable size and with comparable
annual attendance.
If either Party shall fail to properly maintain its Parcel in accordance
with this Section 1.1, then the other Party (or, in the case of the Authority,
the Manager on its behalf) shall have the rights under the provisions of Section
2.4 to take action to correct such failures and to collect the costs of such
corrective action in the manner provided in Section 11.8.
SECTION 1.2 DAMAGE OR DESTRUCTION TO IMPROVEMENTS ON ANY PARCEL.
Unless provided otherwise herein or in any Lease, each Party severally covenants
to and with the other Party that in the event of any damage to or destruction of
all or any portion of the Improvements, such Party shall, within a reasonable
period of time commence and complete (subject to Unavoidable Delays) the
restoration, replacement, or rebuilding of the Improvements with such
alterations and additions as may be made at the Party's election pursuant to and
subject to the terms of the applicable Lease (such restoration, replacement,
rebuilding, alterations and additions, together with any temporary repairs and
property protection pending completion of the work, being hereinafter called
"Restoration"); provided, however, the Party's obligations with respect to such
Restoration are limited to the amount of insurance proceeds which are payable to
such Party on account of such damage or destruction.
Subject to the provisions of the applicable Lease and Article 5 hereof, in
the event such damage or destruction is to or of all or substantially all of the
Improvements on a Party's Parcel, or if the insurance proceeds payable to the
Party are not sufficient to complete Restoration or if there are no insurance
proceeds, or if in the opinion of the Party it is not commercially practicable
to undertake Restoration, then such Party shall promptly as practicable either
(a) commence and complete (subject to Unavoidable Delays) Restoration of the
damaged Improvements, subject to the limitation with respect to insurance
proceeds set forth herein, or (b) remove any unusable Improvements and cause the
portion of the Parcel occupied by the damaged Improvements as to which the Party
has not elected to undertake Restoration to be returned to a safe condition, and
thereafter proceed in accordance with Section 1.3.
SECTION 1.3 CLEARING DEBRIS FROM RAZED IMPROVEMENTS. If a Party who
owns or leases an Improvement is not obligated herein or in any Lease to which
it is a party to rebuild, replace or repair an Improvement that has been damaged
or destroyed, and if such Party elects not to do so, then (unless otherwise
required hereunder or under a Lease) it shall raze such Improvement (or such
part thereof as has been damaged or destroyed) and clear the area of all debris.
After such razing has been completed, the area shall be landscaped and shall be
so improved by the Party performing the razing so as to match adjacent
landscaping and Improvements until such time as rebuilding may occur thereon.
All activities that are
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performed by the Party razing the Improvements and constructing the landscaping
shall be at such Party's sole cost and expense.
SECTION 1.4 MISCELLANEOUS REPAIRS AND ALTERATIONS. Subject to the
preceding Sections of this Article and the other provisions of this REA, each
Party may make such repairs, alterations, reconstructions or additions to its
Improvements as it deems necessary or advisable under the circumstances.
SECTION 1.5 LIABILITY OF MORTGAGEE. Anything in this Article 1 to
the contrary notwithstanding, it is expressly understood and agreed that the
provisions of Sections 1.2, 1.3 and 2.5 shall be applicable to any Mortgagee of
any Parcel only in the following instances:
(a) where any such Mortgagee acquires title by reason of foreclosure,
or deed in lieu of foreclosure, or by termination for default of a
leaseback in a sale and leaseback transaction or a sublease in a sublease
and leaseback transaction, such Mortgagee or the purchaser at a foreclosure
sale shall only be liable for such reconstruction for damage (whether or
not such damage is caused by a peril included within the risks required to
be insured against under this REA) which occurs subsequent to such
foreclosure, sale, conveyance or termination of leaseback; or
(b) where damage or destruction is either (i) caused by a peril
required to be insured against under this REA; or (ii) is caused by a peril
actually insured against; and occurs prior to such foreclosure sale, any
such Mortgagee who acquires title by reason of foreclosure or deed in lieu
of foreclosure or termination for default of a leaseback, or the purchaser
at the foreclosure sale, shall be liable for such reconstruction but only
to the extent of the insurance proceeds actually received by the Mortgagee
under such insurance.
If a purchaser at the foreclosure sale is not required pursuant to the
foregoing subparagraphs to restore, repair or rebuild any Improvement that has
been damaged or destroyed and elects not to do so then such purchaser at the
foreclosure sale shall promptly raze such Improvement or such part thereof that
has been so damaged or destroyed, and clear the premises of all debris. After
the area has been cleared, it shall be landscaped and shall be so improved by
the Person performing the razing so as to match adjacent landscaping until such
time as rebuilding may occur thereon. Nothing in this Section 1.5 shall be
construed to relieve a Party of its obligations under Sections 1.2 and 1.3.
SECTION 1.6 LIMITATION ON DETRIMENTAL CHARACTERISTICS. No use or
operation will be made, conducted or permitted on any part of the Land which use
or operation is clearly detrimental to the development or operation of the
Improvements, as provided herein and in the Leases. No portion of any Parcel
may be leased, used or occupied as a funeral parlor; industrial manufacturing
facility; automobile dealership; adult bookstore or establishment selling,
exhibiting or distributing pornographic or obscene materials; massage parlor;
so-called "head shop"; body and fender shop; car wash; or off-track betting
parlor. Also included among the uses or operations which are prohibited are
uses or operations which produce or are accompanied by the following
characteristics, which list is not intended to be all-inclusive: (a) any noise,
vibration, litter, odor or other activity which constitutes a public or private
nuisance or interferes in a material adverse way with the normal conduct of the
business of any Party; or (b) any dangerous firing, explosion or other damaging
hazards; provided, however, all attractions, amusements and other activities
conducted at other theme parks operated by PPI (to the extent permitted under
applicable Law including but not limited to any local zoning and land use
regulations) shall be permitted notwithstanding the foregoing.
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SECTION 1.7 PARKING. The Authority hereby grants and conveys to the
Corporation, for the benefit of the Private Parcel and the Public Parcel, a
non-exclusive easement and right to the use, during the Term (as defined in the
Parcel Lease) of the Parking Areas for purposes of vehicular parking for the
benefit of the Parcels. Notwithstanding the foregoing easements, the Authority
shall maintain the Parking Areas as described in Section 2.6 hereof, and shall
not obstruct or unreasonably interfere with access, ingress or egress thereto.;
SECTION 1.8 COMPLIANCE WITH LAWS. Each Party shall cause the Public
Areas and all buildings and Improvements located on its Parcel to comply in all
material respects with all applicable Laws; provided however, that a Party may
contest any such Law so long as such contest does not create any material danger
of a loss of title to, or material impairment in any way of the use of, all or
any portion of the Public Areas for their intended purposes.
SECTION 1.9 MISCELLANEOUS. The easements granted hereby shall be for
the benefit of, but not restricted solely to, the Parties and each such Party
may grant the benefit of such easement to tenants of the Public Parcel and the
Private Parcel for the duration of such occupancy (but not longer than this REA
is in effect), and to the customers, employees, agents and business invitees
thereof; but same is not intended nor shall it be construed as creating any
rights in or for the benefit of the general public nor shall it affect any real
property outside of the Parcels (except for the Parking Areas). Such easement
areas are reserved for said use so long as this REA is in effect.
SECTION 1.10 ENVIRONMENTAL MATTERS. The Authority represents and
warrants that it shall not create, place, store, transport, or dispose of any
Environmental Condition or Hazardous Materials in, on, at, around or under or
affecting all or any part of the Private Parcel, and further, that the Authority
shall be responsible for all Environmental Compliance Liability with respect to
the Private Parcel which, and solely to the extent that it, results from the
Authority's negligence or willful misconduct or that of its agents, employees or
contractors. The Corporation represents and warrants that it shall not create,
place, store, transport, or dispose of any Environmental Condition or Hazardous
Materials in, on, at, around or under or affecting all or any part of the Public
Parcel, and further, that the Corporation shall be responsible for all
Environmental Compliance Liability with respect to the Public Parcel which, and
solely to the extent that it, results from the Corporation's negligence or
willful misconduct or that of its agents, employees or contractors.
SECTION 1.11 CONFLICT WITH ARTICLE 2. In the event of any conflict
or inconsistency between the provisions of this Article 1 and Article 2 below,
the provisions of Article 2 shall govern.
ARTICLE 2
OPERATION AND MAINTENANCE OF PUBLIC AREAS
SECTION 2.1 OPERATION AND MAINTENANCE OF PUBLIC AREAS. Each Party
shall, at its own cost and expense (subject to the Revenue Sharing Agreement)
operate, provide policing and adequate lighting and security for, maintain,
repair, and to the extent provided for herein, replace, including, to the extent
required under any Lease, the provision of adequate reserves to cover the cost
of maintenance and repairs, that portion of the Public Areas which are within
the Party's Parcel in good order, and sanitary condition and repair in a
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manner at least comparable to those standards generally in effect from time to
time in other regional, non-destination theme parks (including those operated
by PPI and its subsidiaries), and in accordance with any Rules and Regulations.
The Corporation shall advise the Authority in writing of any such standards at
parks operated by PPI of which it considers the Authority in violation, and the
Authority will advise the Corporation in writing of any such standard at other
regional, non-destination theme parks of which it considers the Corporation in
violation. The Authority shall have full responsibility to operate and maintain
the Public Parcel, including any Improvements thereon and any Public Areas
therein in the manner required hereunder and under the Leases to which it is a
party, and the Corporation shall have full responsibility to operate and
maintain the Private Parcel, including any Improvements thereon and any Public
Areas therein in the manner required hereunder and under the Leases to which it
is a party.
If either Party shall fail to properly maintain its Parcel in accordance
with this Section 2.1, then the other Party (or, in the case of the Authority,
the Manager on its behalf) shall have the rights under the provisions of Section
2.4 to take action to correct such failures and to collect the costs of such
corrective action in the manner provided in Section 11.8.
SECTION 2.2 RULES AND REGULATIONS. The Parties agree that the
maintenance and operation of the Parcels and the Public Areas shall be subject
to the Rules and Regulations. Any amendment or supplement to the Rules and
Regulations must be in writing, consented to and executed by each of the
Parties. Each Party agrees to consider in good faith any amendment or
supplement to the Rules and Regulations requested in writing by the other Party,
and which does not materially adversely affect or interfere with the use or
operation of its Parcel.
SECTION 2.3 RESTRICTIONS ON PUBLIC AREAS AND OTHERWISE. The Parcels
and Parking Areas shall be subject to the following restrictions which shall be
binding on each Party and each of its tenants, occupants, employees, agents or
invitees: (a) No obstruction to the free flow of traffic and joint use of the
parking and delivery facilities shall be permitted except to the extent, if at
all, expressly provided in this REA. (b) Any construction shall be conducted
by or on behalf of a Party in a manner which will limit to the maximum extent
practicable any interference with the operation of the other Party's Parcel, and
shall be performed diligently in a good workmanlike manner and in compliance in
all material respects with all applicable Laws, and completed as expeditiously
as possible. (c) Except as otherwise permitted in this REA, there shall be no
activities in the Public Areas which would materially interfere with the use of
the Parcels and the Improvements for their intended purposes.
SECTION 2.4 FAILURE OF PERFORMANCE. If either Party fails to
perform any of its duties or obligations provided for in this REA, any other
Party (if it is not the Person failing to perform) may at any time give a
written notice to the failing Party, setting forth the specific failures to
comply, and if such failures are: (a) not corrected within thirty (30) days
after receipt of such notice (or such sooner period as may be required elsewhere
herein or by Law), or (b) such that they cannot be corrected within such time
and the Party receiving such notice fails to commence the correction of such
failures within such period and diligently prosecute the same thereafter, then,
in the case of either (a) or (b), the Party giving such notice shall have the
right to correct such failures, including the right to enter upon any Parcel to
correct such failures, and the Party receiving such notice shall pay the
reasonable costs thereof. The defaulting Party shall pay any amounts so expended
with interest in accordance with Section 11.8; provided, however, these
provisions shall be without prejudice to the right of the Party receiving such
notice to contest the right of the other Party to make such repairs or expend
such monies and to withhold such amounts. Notwithstanding anything hereinabove
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contained to the contrary, in the event of any emergency situation, a Party not
in default may without notice cure any such default and, thereafter, shall be
entitled to the benefits of this Section 2.4.
In addition to the remedies set forth above or elsewhere, a party shall be
entitled to the following additional remedies: (a) to seek specific performance;
and (b) to seek injunctive relief.
SECTION 2.5 DAMAGE TO OR DESTRUCTION OF PUBLIC AREAS. Except as
otherwise provided herein or in the Lease pertaining to a Parcel, if any of the
Improvements located in any of the Public Areas are damaged or destroyed by fire
or any other cause whatsoever, whether insured or uninsured, during the term of
this REA, the Party upon whose Parcel any portion of the damaged Improvements
are located shall, at its own expense, be responsible for all necessary repairs,
including foundations, supports, roof, exterior and interior bearing walls and
all necessary repairs or replacements of any kind on such Improvements and shall
promptly rebuild, replace or repair such damaged or destroyed Improvements to
the same condition and to the same general appearance as existed immediately
prior to such damage or destruction. Except as otherwise provided herein or in
the Lease pertaining to a Parcel, any changes in the location of such restored
Improvements in any of the Public Areas shall be in accordance with plans
reasonably acceptable to the other Party, and any Improvements located in any of
the Pubic Areas which any Person is required to rebuild, replace or repair shall
be diligently prosecuted to completion and such Person shall, prior to
commencing such rebuilding, replacement or repair, comply with the requirements
set forth in Article 4.
SECTION 2.6 OPERATION OF THE PUBLIC PARKING. The Authority shall
have the right and obligation to manage and operate or oversee the management
and operation of the Parking Areas in accordance with policies and standards
adopted by the Authority and the Rules and Regulations, as applicable, and may
at any time and from time to time designate one or more other Persons (including
the Manager) to manage and operate the Parking Areas upon such terms and
conditions and for such periods of time as the Authority deems reasonable,
subject, however, to any specific requirements set forth elsewhere in this REA.
The Authority, at its cost (which shall constitute Operating Expenses under the
Revenue Sharing Agreement) shall cause the Parking Areas to be: (a) maintained
in good order and repair, in a clean and sanitary condition and in a manner
consistent with first-class standards of theme park practices; (b) kept properly
drained and reasonably free from snow, ice and debris; (c) provided with
adequate lighting and security during the hours of operation of the Parcels; and
(d) kept open, unobstructed and completely accessible to vehicles and pedestrian
traffic during the hours of operation of the Parcels.
SECTION 2.7 NONINTERFERENCE WITH PERMITTEE CIRCULATION. Except as
otherwise provided herein, there shall be no selling or other activities
conducted in the Public Areas so as to unreasonably interfere with efficient
pedestrian traffic flow between any Party's Improvements and all other areas in
the Parcels, except as may be incident to restaurant or food services
operations.
SECTION 2.8 FENCES. Except as otherwise permitted herein including
but not limited to in connection with any construction done pursuant to Section
3.5 or Article 4, no fence, structure or other obstruction of any kind (except
for a perimeter fence around the Improvements and as may be specifically
permitted herein, or except for decorative features and customer conveniences)
shall be placed, kept, permitted or maintained in the Public Areas in a manner
which unreasonably interferes with pedestrian traffic flow over the Public Areas
or otherwise with the use and operation by a Party of its Parcel.
SECTION 2.9 SIGNS AND BANNERS. The Parties shall negotiate in good
faith from time to time
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to establish and adjust, as necessary or desirable, the criteria for all signs,
banners, balloons, inflated figures and other lighter-than-air devices to be
installed anywhere on the Parcels, except for signs located within individual
Parcel not visible from the exterior of such Parcel. The sign criteria will be
subject to the provisions of any Lease entered into prior to the date hereof. No
such signs, banners, balloons, inflated figures and other lighter-than-air
devices shall be installed on the Parcels that do not conform to the
agreed-upon sign criteria. Notwithstanding anything to the contrary set forth
in this Section 2.9, the Corporation shall be permitted to install on the
Private Parcel any and all signs, banners, balloons, inflated figures, other
lighter than air devices and other identification materials which are similar to
those then being used at other theme parks operated by or on behalf of PPI so
long as no such materials that are visible beyond the exterior of the Private
Parcel are materially misleading as to the ownership of the respective Parcels,
and the Authority shall be permitted to install on the Public Parcel any and all
signs, banners, balloons, inflated figures, and other lighter than air devices
and other identification materials which are similar to those in use on the
Public Parcel prior to the date of this REA.
ARTICLE 3
RECIPROCAL EASEMENTS
SECTION 3.1 DEFINITIONS AND DOCUMENTATION. For the purposes of this
Article, the following will apply:
(a) The Party granting an easement is called the "Grantor", it being
intended that the grant shall thereby bind and include not only the Party
but also its successors and assigns.
(b) The Party to whom the easement is granted is called the
"Grantee", it being intended that the grant shall benefit and include not
only such Party but its permitted successors in interest hereunder.
(c) The word "in" with respect to an easement granted "in" a
particular Parcel means, as the context may require, "in", "to", "on",
"over", "through", "upon", "across" and "under", or any one or more of the
foregoing.
(d) The term "Separate Utility Facilities" means sewers (including,
without limitation, storm drainage and sanitary and septic sewer systems),
domestic water systems, natural gas systems and mains, electrical systems,
safety systems, fire protection water systems and water mains, telephone
systems, data or other communication systems, and all other utility systems
and facilities which serve only one Parcel or which connect Common Utility
Facilities to the Improvements.
(e) The grant of an easement by a Grantor shall bind and burden its
ownership or leasehold interest, for the purpose of this REA, be deemed to
be the servient tenement.
(f) The grant of an easement to a Grantee shall benefit and bind its
ownership or leasehold interest, for the purpose of this REA, be deemed to
be the dominant tenement.
(g) Unless provided otherwise, all easements granted hereunder are
non-exclusive and irrevocable.
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SECTION 3.2 NATURE OF EASEMENTS. All easements granted hereunder
shall exist by virtue of this REA, without the necessity of confirmation by any
other document. Likewise, upon the termination of any easement (in whole or in
part) or its release in respect of all or any part of a Parcel, the same shall
be deemed to have been terminated or released without the necessity of
confirmation by any other document. However, upon the request of any Party, the
other Party will sign and acknowledge a document memorializing the existence
(including the location and any conditions to the granting or exercise), or the
termination (in whole or in part), or the release (in whole or in part), as the
case may be, of any easement, if the form and substance of the document is
acceptable to the Party requesting the same. Any Grantor may, and at the
written request of a Party hereto shall, at the Grantor's expense (which shall
constitute Operating Expenses under and as defined in the Revenue Sharing
Agreement) cause to be prepared and recorded a survey showing the location of
the permanent easements granted hereunder in the Grantor's Parcel.
SECTION 3.3 GENERAL EASEMENTS. Each Party hereby grants and conveys
to the other Party for the benefit of the Parcel owned, leased and/or operated
by such other Party, a non-exclusive easement and the right to the use during
the term of this REA of the Public Areas, and the common curb cuts, roadways,
driveways, aisles, walkways and sidewalks located on the Public Parcel and the
Private Parcel, the location of which is shown or described on Exhibit D
attached hereto, and in any other area designated or set aside herein or in the
future under a written amendment to this REA for the use by others on its
respective Parcel for:
(a) ingress to and egress from the Grantee's Parcel;
(b) the passage and delivery of vehicles through areas designated for
that purpose;
(c) the passage and delivery and accommodation of pedestrians; and
(d) any such other purposes as are herein expressly authorized to be
done in all of the Public Areas designated for the use by others under this
REA; provided, however, that such easements are limited to such portions of
the Public Areas designated for the use by others on the Grantor's Parcel
as are now or hereafter under a written amendment to this REA set aside,
maintained and authorized for such use under this REA, on those portions
of the Land designated as Public Areas in Exhibit D.
Each Party hereby grants and conveys to the Manager, and to any successor
Manager, a non-exclusive easement and right to the use of the Public Areas, as
they may exist from time to time, for purposes of ingress and egress and for
purposes of enforcement of the provisions of this REA and of the Rules and
Regulations adopted hereunder.
Each Party hereby reserves the right to eject from the Public Areas
designated for the use by others on its Parcel any Persons not authorized to use
the same and Persons using the same in a manner which violates this REA
(including the Rules and Regulations) or the provisions of any Lease pertaining
to its Parcel. In addition, each Party reserves the right to close off the
Public Areas designated for the use by others on its Parcel for such reasonable
periods of time as may be required for serious security situations or as legally
necessary to prevent the acquisition of prescriptive rights by anyone; provided,
however, before closing off any part of the Public Areas designated for the use
by others as provided above, such Party must
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give at least 14 days' prior written notice to the Manager and the other Party
of its intention to do so and must coordinate its closing with the activities of
the other Party so that no unreasonable interference with the use or operation
of the Improvements occurs, and such Party shall use commercially practicable
efforts to minimize the time of such closure and interruption of business.
The easements provided for in this Section are subject to the rights to use
the Public Areas or other areas designated for the use by others for other
purposes provided for in this REA; however, except as otherwise herein provided,
no changes shall be made by a Party in the Public Areas or in the location or
design of the Improvements on the Public Areas without the prior written
approval of the other Party (which approval shall not be unreasonably withheld
or delayed), when any such change shall substantially adversely affect such
other Party.
Each Party hereby grants to each tenant, subtenant, licensee,
concessionaire and permitted occupant of a Parcel a non-exclusive license for
reasonable pedestrian circulation across open areas that may exist from time to
time to circulate between the various Parcels. However, no Party shall have the
right to designate specific areas for such reasonable circulation.
SECTION 3.4 EASEMENTS FOR UTILITY FACILITIES. Each Party hereby
grants and conveys to each of the other Parties for the benefit of the Private
Parcel and the Public Parcel, a non-exclusive easement in its Parcel, for the
installation, use, operation, maintenance, repair, replacement, relocation and
removal of Separate Utility Facilities and the Common Utility Facilities
existing at any time. The installation of Separate Utility Facilities and
Common Utility Facilities shall be subject, as to location, to the approval of
the Grantor, which approval shall not be unreasonably withheld or delayed.
Except as otherwise provided herein, the Grantee of any easement for
Separate Utility Facilities under this Section shall be responsible, as between
such Grantee and the Grantor, for the installation, maintenance, repair and
removal of all Separate Utility Facilities installed by the Grantee within such
easements, as well as for all Separate Utility Facilities installed by the
Grantee on its own Parcel and shall complete same as expeditiously as possible.
The Party so obligated to perform such repair, installation, maintenance and/or
removal shall, at its sole cost and expense, repair any damage to any
Improvements caused thereby. After initial installation thereof is completed,
any permitted installation, maintenance, repair, replacement, relocation and
removal of Separate Utility Facilities that is required to be performed by
Grantee must be performed by Grantee and then only after two (2) weeks' advance
written notice to Grantor of Grantee's intention to do such work. However, in
the case of an emergency, any such work may be immediately performed after such
advance notice to Grantor as is reasonably practicable under the circumstances.
In addition, the Parties agree that all such installation, maintenance, repair
and removal shall be performed in a manner that causes as little disturbance to
the Parties and their use and operation of their respective Parcels as may be
reasonably practicable under the circumstances and any and all portions of the
surface area of Grantor's Parcel which may have been excavated, damaged or
otherwise disturbed as a result of such work shall be restored at the sole cost
and expense of Grantee to essentially the same condition as the same were in
prior to the commencement of any such work.
The Grantor of any easement for Separate Utility Facilities under this
Section may use the Separate Utility Facilities as so installed, provided the
increase in costs incurred in order to make such Separate Utility Facilities
adequate to serve such additional use shall be borne by such Grantor, unless
otherwise provided under the Revenue Sharing Agreement, and, provided, further,
that Grantor complies with the requirements
10
of subparagraphs (a), (b), (c), and (d) of this Section 3.4.
The Grantor of any easement under this Section may, if reasonably required,
relocate on its premises any Separate Utility Facilities, or Common Utility
Facilities installed thereon under any easement granted by it, provided such
relocation:
(a) may be performed only after Grantor has given Grantee thirty (30)
days' prior written notice of its intention to relocate such facilities and
has set forth in such notice the reasons why such relocation is required;
(b) shall not interfere with or diminish the utility services to the
Grantee; however, temporary interferences with and diminutions in utility
services shall be permitted if:
(i) they occur during the non-business hours of Grantee or
during the off-season of the operations of the Parcels, and
(ii) Grantor promptly reimburses Grantee for all cost, expense
and loss (excluding any estimated unrealized operating profits)
incurred by Grantee as a result of such interferences or diminutions,
or both, unless otherwise provided under the Revenue Sharing
Agreement;
(c) shall not reduce or unreasonably impair the usefulness or
function of the facilities in question; and
(d) shall be performed at the sole cost of Grantor, and
(e) Grantee approves such relocation, which approval shall not be
unreasonably withheld or delayed.
All Common Utility Facilities lying within any of the Public Areas shall,
depending upon their location, for all purposes be deemed to be included within
the definition of the Improvements for the specific Public Areas so affected.
SECTION 3.5 TEMPORARY CONSTRUCTION EASEMENTS. In connection with any
construction (as defined in Section 4.1) each Party hereby grants to each of the
other Parties a non-exclusive, temporary easement for incidental encroachments
upon those portions of the Land included in its Parcel which may occur as a
result of construction, and so long as such encroachments are kept within the
reasonable requirements of construction work, expeditiously pursued, and so long
as customary insurance is maintained protecting the Grantor from the risks
involved and evidence thereof is delivered to the affected Parties.
Except as otherwise provided for herein the location of all temporary
easements under this Section shall be subject to the approval of Grantor (which
approval shall not be unreasonably withheld or delayed). The plans and
specifications showing the Improvements to be constructed, together with the
location of the required construction easements, shall be submitted to the
Grantor and approval thereof by Grantor shall constitute designation by the
Grantor of the portions of its Parcel to be used for such temporary easements;
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any such approval of Grantor shall not be unreasonably withheld or delayed.
The use of the temporary easements under this Section must not result in
damage or injury to the Improvements of the other Parcel and shall not
materially adversely affect or otherwise unreasonably interfere with or
interrupt the business operations conducted on the other Parcel. In addition,
each Grantee, at its expense, shall promptly repair, replace or restore any and
all Improvements of Grantor which have been damaged or destroyed by Grantee in
the use of the temporary easements granted under this Section or the activities
of the Grantee thereupon or in connection therewith.
SECTION 3.6 TERMINATION AND ABANDONMENT OF EASEMENTS. Any easement
granted pursuant to this Article 3, or any part thereof, may be abandoned and
terminated if: (a) all Grantors and Grantees mutually agree; or (b) the use
thereof shall have been abandoned by the Grantee thereof and continues to be
abandoned for a period of two (2) consecutive years after the Grantor of such
easement gives the Grantee thereof prior written notice in accordance with
Article 8 to the then Grantee benefited by such easement and the then record
owner, if any, of any leasehold interest in such benefited Parcel, stating that
such easement has been abandoned, and places of record in the Recorder's Office
in ▇▇▇▇▇▇ County, California, an affidavit that such abandonment has taken place
and that such notice has been properly given, and any record owner of the fee of
or leasehold interest in the benefited Parcel within such two (2) year period
fails to place of record in the Recorder's Office in ▇▇▇▇▇▇ County, California,
an affidavit that such easement has been used within such two (2) year period.
Notwithstanding the foregoing, no easement may be abandoned as aforesaid if the
Grantee thereof delivers to Grantor within 15 days after delivery by Grantor of
its notice as aforesaid written notice that such easement has not been
abandoned, and that such Grantee intends to use such easement and such Grantee
does use such easement within six (6) months thereafter, then such Grantor shall
not terminate the easement as aforesaid.
ARTICLE 4
GENERAL CONSTRUCTION REQUIREMENTS
SECTION 4.1 "CONSTRUCTION" DEFINED. As used in Section 3.5 and this
Article the word "construction" includes initial construction of Improvements,
work performed in connection with any Restoration and, except where otherwise
specified, subsequent construction carried on under this REA.
SECTION 4.2 CONSTRUCTION TO PROCEED IN REASONABLE MANNER. Each Party
agrees that construction shall not be performed so as to (a) unreasonably
interfere with construction being performed by the other Party, (b) cause any
unreasonable increase in the cost of construction being performed by the other
Party, or (c) unreasonably interfere with the other Party's operations and
rights as contemplated by this REA. Notwithstanding the foregoing, or anything
else in this Article, including Section 4.3, no Party shall perform construction
or erect such barricades in a manner which materially adversely affects, or
otherwise substantially interferes with, the use and operation by any other
Party of its Parcel, except to the extent specifically permitted elsewhere
herein.
SECTION 4.3 CONSTRUCTION BARRICADES. If any Party begins or
continues construction after the Improvements of any other Party have opened for
business to the general public, then the Party carrying on the construction
shall erect adequate, painted construction barricades substantially enclosing
the area of its construction. All barricades shall be painted in colors
reasonably approved by the other Party. Such Party
12
shall maintain these construction barricades until the construction has been
substantially completed (to the extent reasonably necessary to remove the
hazardous construction conditions).
This Section 4.3 applies only to construction that can be reasonably be
deemed to constitute a hazardous condition for Permittees; however, each Party
may erect construction barricades, as hereinabove specified, at the time of any
construction and maintain in accordance with this Article the same until the
building surrounded is secure from unauthorized intrusion.
SECTION 4.4 SAFETY MATTERS. Each Party initiating or being
responsible for the construction shall take all safety measures reasonably
required to protect each of the other Parties and all Permittees and the
property of each from injury or damage caused by or resulting from the
performance of its construction.
SECTION 4.5 WORKMANSHIP; EVIDENCE OF COMPLIANCE WITH CONSTRUCTION
REQUIREMENTS. Each Party agrees that all construction to be performed
hereunder by such Party shall be done in a diligent, good and workmanlike
manner, with materials at least comparable to those used in other regional,
non-destination theme parks (including those operated by PPI) and in accordance
with all applicable Laws. Each Party shall pay all costs, expenses, liabilities
and liens arising out of or in any way connected with such construction. After
it has completed any construction, each Party shall, within sixty (60) days
after the written request of the other Party, deliver to the requesting Party
evidence that the construction has been completed in compliance with all
applicable Laws. A certificate of occupancy (or the equivalent thereof) issued
by the governmental body having jurisdiction thereof shall be deemed
satisfactory evidence of compliance with the requirements of this Section.
SECTION 4.6 LIENS. Each Party agrees that in the event any
mechanic's lien or other statutory lien shall be filed during the term of this
REA against the ownership or leasehold interest of the other Party in the Public
Areas by reason of work, labor, services, or materials supplied to or at the
request of said Party or pursuant to any construction, it shall pay and
discharge the same of record within thirty (30) days after receiving notice of
the filing thereof, subject also to the provisions of the following sentence.
Each such Party shall have the right to contest the validity, amount or
applicability of any such respective liens by appropriate legal proceedings, and
so long as it shall furnish bond or indemnity as hereinafter provided, and be
prosecuting such contest in good faith, the requirement that it pay and
discharge such items within said thirty (30) day period shall not be applicable;
provided, however, that in any event such Party shall within thirty (30) days
after receiving notice of the filing thereof bond or indemnify against such
liens in amount and form satisfactory to induce the title insurance company
which insured title to the respective Parcel to each of the Parties hereto to
insure over such liens or to reissue or update its existing policy, binder or
commitment without showing any title exception by reason of such liens. In the
event such legal proceedings shall be finally concluded (so that no further
appeal may be taken) adversely to the Party contesting such liens, such Party
shall, within five (5) business days thereafter, cause the lien(s) to be
discharged of record.
ARTICLE 5
OTHER AGREEMENTS
SECTION 5.1 COVENANT TO PERFORM. (a) Each Party covenants and agrees
to and for the benefit of each other Party that:
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(i) it shall not enter into any agreement, amendment,
cancellation or other modification of any agreement that will preclude
such Party from fully complying with this REA; and
(ii) it shall not enter into any agreement, amendment,
cancellation or other modification of any agreement that will preclude
any other Party from exercising and enjoying all rights granted in
this REA to such other Party.
(b) Each Party covenants and agrees to and for the benefit of each
other Party that it shall provide in each grant deed or other instrument or
agreement conveying any ownership or security interest in its ownership or
leasehold interest, that each successor to such interest shall be bound by
and become a Party to this REA.
SECTION 5.2 SUBORDINATION OF LEASES. The Parties acknowledge and
agree that the terms and provisions of this REA are superior and prior to the
1997 Agency-Marine World Lease and the Parcel Lease, and, to the extent there is
a conflict in a Party's obligations hereunder and under the foregoing Leases,
the terms of this REA shall govern and control. The City, by the execution of
this REA, acknowledges and agrees that all of the real property included in
Parcels, including the City's fee interest therein and any other security
interest therein, will be subject to the terms and provisions of this REA.
SECTION 5.3 INDEMNIFICATION BY PARTIES. (a) Each Party
("Indemnitor") agrees to indemnify and save harmless the other Party, its
officers, directors, shareholders, successors, assigns and agents (collectively,
the "Indemnified Parties") from and against (i) all claims of whatever nature
against each Indemnified Party arising from any willful misconduct or gross
negligence of Indemnitor, its contractors, licensees, agents, servants,
employees, invitees, customers, concessionaires or visitors, including any
claims arising from such act (including, without limitation, any thing
whatsoever done or any condition created), (ii) all claims against each
Indemnified Party arising from any accident, injury or damage whatsoever caused
to any person or to the property of any person and occurring during, or (if
Indemnitor shall continue to use and occupy its Parcel) after the expiration of
the Term of this REA, in or about the Parcel owned or leased and operated by or
on behalf of Indemnitor, (iii) all claims arising against each Indemnified Party
relating to the imposition of any liens of mechanics or materialmen or otherwise
relating to construction done or services provided to, for, at the request, or
on behalf of Indemnitor, and (iv) any breach, violation or non-performance of
any representation, covenant, condition or agreement in this REA set forth and
contained on the part of Indemnitor to be fulfilled, kept, observed and
performed. This indemnity and hold harmless agreement shall include indemnity
from and against any and all liability, fines, suits, damages, losses, demands,
costs and expenses of any kind or nature incurred in or in connection with any
such claim or proceeding brought thereon, and the defense thereof with counsel
reasonably approved by Indemnified Party in writing, which approval shall not be
unreasonably withheld or delayed; provided, however, that the counsel designated
by Indemnitor's insurance carrier shall be deemed approved by Indemnified Party,
and the office of the City Attorney shall be deemed approved by the Corporation.
Th Indemnified Party agrees to give prompt notice to Indemnitor of any such
claim or proceeding, and the opportunity to defend such claim or proceeding if
Indemnified Party does not elect to do so. This Section 5.3 shall survive the
expiration or termination of this REA.
(b) No provision in this REA providing for the indemnification of any
Indemnified Party shall apply in any instances arising out of the gross
negligence or willful misconduct of such Indemnified Party, its agents,
servants, employees, contractors or other tenants of such Indemnified Party,
their agents, servants,
14
employees, contractors, or other licensees or invitees.
SECTION 5.4 LIABILITY INSURANCE AND WAIVER OF SUBROGATION. (a) Each
Party shall maintain or cause to be maintained so long as this REA is in effect
public liability and property damage insurance insuring against claims on
account of loss of life, bodily injury or property damage that may arise from,
or be occasioned by the condition, use or occupancy of the Public Areas by the
Party and the tenants, agents, contractors, employees, licensees, customers and
invitees, of such Party or the occupants of its Parcel except as herein
provided. Said insurance shall be carried by a reputable insurance company or
companies under insurance policies having limits for loss in the minimum
amounts, and otherwise under the material terms and conditions, as are contained
in insurance policies from time to time carried by operators of other regional
theme parks of comparable size and attendance (including other theme parks owned
or operated by or on behalf of PPI); provided, however, in no event shall the
minimum amount of coverage per occurrence be less than $5,000,000, nor the
deductible in connection therewith exceed $50,000 and the Authority shall
maintain insurance for the Public Parcel reasonably comparable to that
maintained by the Corporation for the Private Parcel. Notwithstanding the
foregoing, any Party responsible to maintain such insurance that has a net worth
in excess of $100,000,000 or is part of a governmental joint insurance pool may
"self insure", or provide for a deductible from said coverage related to the
Parcel to the extent of one percent (1 %) of the net worth of said Party in its
last annual or fiscal year as certified by an independent certified public
accountant and computed in accordance with generally accepted accounting
principles consistently applied. Such insurance may be carried under a
"blanket" policy or policies covering other properties of the party and its
subsidiaries, controlling or affiliated corporations. Each Party shall, upon
written request from the other Party, furnish to the Party making such request
certificates of insurance or other ocumentation evidencing the existence of the
insurance required to be carried pursuant to this Article or evidence of a
self-insurance capacity as hereinabove provided, as the case may be. All such
insurance shall include provisions denying to the insurer subrogation rights
against the other parties to the extent such rights have been waived by the
insured prior to the occurrence of damage or loss, so long as such coverage is
obtainable and includable at no additional cost.
(b) To the extent permitted by Law, each Party hereby waives any rights of
recovery against any other Party, its directors, officers, employees, agents and
tenants and occupants for any damage or consequential loss covered by said
policies (or "deemed policy" in the case of self-insurance), against which such
Party is protected (or deemed protected) by insurance (or self-insurance), to
the extent of the proceeds payable under such policies (or to the extent of the
deemed self-insurance), whether or not such damage or loss shall have been
caused by any acts or omissions of the other Party or its directors, officers,
employees, agents, tenants or occupants.
SECTION 5.5 CASUALTY INSURANCE. In order to assure performance of
their respective obligations under this REA, each Party shall also cause to be
carried fire and extended coverage insurance on all Improvements on their
respective Parcels or interest therein as follows: (a) with respect to the
Corporation, in minimum amounts and otherwise under the terms and conditions
required by the Parcel Lease; and (b) with respect to the Authority, in the
minimum amount, and otherwise under terms, required under Section 5.4 of the
1997 Agency - Marine World Lease (but the percentage in clause (i) of the first
sentence of said Section 5.4 shall be deemed to be seventy-five percent (75%)
instead of ninety percent (90%), and otherwise without giving effect to clause
(ii) or (iii) of the first sentence of said Section 5.4), subject to the right
of each such Party, or other party responsible for any required restorations, to
"self insure" pursuant to Section 5.4. Any such insurance shall otherwise
conform to the provisions with respect to insurance contained in Section 5.4.
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SECTION 5.6 CONDEMNATION. For purposes of this Section 5.6: (a)
"Condemnation" means: (i) the taking of all or any part of the Land or
Improvements or the possession thereof under the power of eminent domain; or
(ii) the voluntary sale (with the consent of the Party then in possession, the
other Party and any other Persons having a permitted interest therein) of all or
any part of the Land or Improvements to any Person having the power of eminent
domain, provided that the Land or Development or such part thereof is then under
the threat of condemnation from such Person. (b) Condemnation Date means the
earlier of: (i) the date when possession of the condemned Parcel (or any part
thereof) is taken by the condemning authority; or (ii) the date when title to
the condemned Parcel (of any part thereof) vests in the condemning authority.
If any part of the Improvements situated on any Party's Parcel is taken by
condemnation, such Party shall reconstruct said Improvements as nearly as
possible to the condition thereof as existed immediately prior to such taking in
accordance with the requirements and subject to the conditions of this Section
5.6, and only to the extent of any condemnation award with respect thereto. All
reconstruction hereunder shall include rebuilding and restoring the same to a
complete architectural unit. In the event of any such rebuilding of any
Improvements, the same shall be done in accordance with the provisions set forth
in Article 4 hereof.
Notwithstanding anything to the contrary contained in this Section 5.6, in
no event shall any tenant or Mortgagee be required to rebuild, replace or
restore any Improvements beyond the extent it would be required to so rebuild,
replace or restore pursuant to Sections 1.2, 1.5 and 2.5, as the case may be.
In the event a Parcel, or any part thereof, is taken by condemnation, each
Party waives, in favor of the Party whose property or any part thereof is taken
by condemnation, any value of the condemnation award attributable to any
easements which any other Party holds in the property of such other Party; and
no part of such award shall be payable to the holder of the dominant tenement by
virtue of such easement. However, a waiver under this Section shall not preclude
the holder of any interest in another Parcel from claiming and collecting the
severance and consequential damages to its own Parcel resulting from the taking
of the condemned portion of the other Parcel.
No termination under this Article of any Party's obligations to restore,
operate, and maintain as provided in this REA shall affect the existence of the
easements granted under Article 3, except to the extent such easements burden
the land taken by condemnation.
Nothing herein contained shall be deemed to prohibit any Mortgagee from
participating in any eminent domain proceedings on behalf of any Party, or in
conjunction with any Party.
The provisions of this Section 5.6 are subject to any applicable provisions
of the Leases.
SECTION 5.7 FIRE OR OTHER CASUALTY. (a) If any of the Improvements
located on any Parcel are damaged or destroyed by fire or other cause, the owner
or lessee of such Improvement ("NOTIFYING PARTY") shall exercise its election
under clause (a) or (b) of the second paragraph of Section 1.2 within 45 days
after the occurrence of such fire or other casualty, by delivering written
notice thereof (the "CASUALTY NOTICE") to the other Party, which Casualty Notice
shall set forth the Notifying Party's election to pursue either of the
following, subject to its obligations elsewhere in this REA and in the Leases to
which it is a party: (i) the repair, Restoration, or rebuilding of the
Improvement so damaged or destroyed, or (ii) the razing of any damaged
Improvement, the filling of any excavation, and performance of any other work
necessary to put
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such portion of the applicable Parcel in a clean, sightly and safe condition,
blacktopped or planted with grass. The Notifying Party shall promptly commence
and diligently pursue completing whichever of the foregoing options it elects.
(b) Notwithstanding the foregoing, in the event (i) the Notifying Party
does not send the Casualty Notice as required above, or (ii) does send a
Casualty Notice but does not complete the work elected therein in material
compliance with all Laws within a reasonable period after the Casualty Notice,
or (iii) fails to complete any Restoration for which it is responsible under
this REA, then the other Party ("ELECTING PARTY") shall have the right (in
addition to any other rights it may have), following written notice to the
Notifying Party given: (1) within 15 days after receipt of the Casualty Notice,
(2) within 15 days after the last date on which the Casualty Notice should have
been delivered, if it is not so delivered, or (3) within a reasonable time with
respect to any Restoration under clauses (ii) or (iii) above, to effect the
Restoration of the Improvements so damaged or destroyed, at its sole cost and
expense (to the extent the insurance proceeds payable to it are insufficient),
whereupon, it shall promptly commence and diligently pursue completion of such
work, including but not limited to, submitting all plans and specifications to
the Notifying Party for its prior written approval, not to be unreasonably
withheld or delayed. In such event, the Electing Party shall have the right to
receive any insurance proceeds payable in connection with such damage or
destruction to be used for such Restoration. The Notifying Party shall
cooperate with the Electing Party in connection with any such repair or
restoration. Upon completion of the Restoration, the Electing Party shall have
the right to reimbursement for reasonable amounts expended under this Section
5.7(b) from the amount otherwise payable to the Notifying Party under clause (v)
of Section 1.3(c) of the Revenue Sharing Agreement.
SECTION 5.8 APPLICATION OF PROCEEDS AND AWARDS. Except to the extent
otherwise required under the Leases in effect from time to time, to the extent a
Party is required to commence the repair and restoration as aforesaid or under
Section 5.6 hereof and/or under any Lease, all insurance proceeds or
condemnation awards, respectively, shall be paid over to such Party to be used
in connection therewith and shall be so used by such Party.
ARTICLE 6
REAL ESTATE TAXES OR IMPOSITIONS
SECTION 6.1 PAYMENT OF TAXES OR IMPOSITIONS. Subject to the
provisions of Section 6.3, each Party shall pay (or cause to be paid) before
delinquency all Impositions levied on its respective ownership or leasehold
interest (including the Improvements and personalty situated thereon), provided,
however, that (a) if, by Law, any Imposition may, at the option of the Person on
whom it is imposed, be paid in installments, the Party may exercise such option,
and shall pay all such installments (and interest, if any) becoming due as the
same respectively become due and before any further interest or any penalty,
fine or cost may be added thereto; and (b) any Imposition relating to a fiscal
period of the taxing authority, a part of which period occurs prior to the date
upon which the leasehold or fee title to such interest is conveyed to such
Party, and a part of which period occurs after the date of such conveyance,
shall be adjusted between the Person transferring such leasehold or fee and such
Party so that the Person transferring such leasehold or fee shall pay that
portion of such Impositions allocable to the period prior to the date of such
conveyance and such Party shall pay the remainder thereof. Each Party shall
upon the request of any other Party exhibit to such other Party for examination
receipts for all Impositions required to be paid by the Party pursuant to this
Article 6.
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SECTION 6.2 CONTESTING IMPOSITIONS. Each Party may, at its own cost
and after notice to the other Parties of its intention to contest Impositions,
by appropriate proceedings conducted in good faith and with due diligence
contest the validity, applicability and/or the amount of any Impositions.
Nothing in this Article requires a Party to pay any Impositions as long as it
contests the validity, applicability or the amount thereof in good faith in
accordance with this REA and so long as it does not allow the affected Parcel to
be forfeited to the imposer of such Impositions as a result of its non-payment.
The contesting Person shall within a reasonable period of time given notice to
the other Party of the commencement of any such contest and of the final
determination of such contest.
SECTION 6.3 FAILURE TO PAY IMPOSITIONS. If a Party fails to comply
with this Article, the other Party may pay the Imposition in question in
accordance with this REA and shall be entitled to prompt reimbursement from the
defaulting Party for the sums so expended with interest thereon as stated in
Section 11.8.
SECTION 6.4 ADDITIONAL PROVISIONS REGARDING IMPOSITIONS.
Notwithstanding anything to the contrary set forth above, Impositions shall be
payable as follows:
(a) The Corporation and the Authority shall each be responsible for the
payment of that portion of the Impositions which are due and payable as assessed
against their interests in their respective Parcel and Improvements in which
each has a possessory interest. The Parties shall take all reasonable efforts
to arrange, to the extent permitted under applicable law, for the relevant
taxing authorities to send all tax bills for any tax year directly to the
Corporation and the Authority, and to accept payment of their respective
portions directly from the Corporation and the Authority. The amount of
Impositions payable by each of the Parties hereunder for any tax year (or
portion thereof) shall be timely paid by each party directly to the taxing
authority for said tax year (or portion thereof) so as to avoid the accrual of
interest or the payment of a penalty or creation of a lien, and evidence of each
such payment shall be provided upon request to the other Party.
(b) The Impositions upon a Parcel for any tax year shall mean such amounts
as shall be finally determined after deducting net reductions or abatements,
refunds or rebates, if any, to be the Impositions payable with respect to the
Parcel for said tax year. For the purposes of determining payments due from
each of the Corporation and the Authority in accordance with the provisions of
this Article, the Impositions upon a Parcel for any tax year shall be deemed to
be the Impositions assessed for such year until such time as a reduction,
abatement, refund or rebate shall be made for such tax year, and, if any
reduction, abatement, rebate or refund shall be made for any tax year, an
appropriate refund shall be made with respect to the amount paid by each of the
Corporation and the Authority on account of Impositions dependent upon the
amount of such reduction, abatement, rebate or refund, less the cost and expense
of obtaining the same.
(c) If the Land, or any part thereof, is entitled to any abatements,
exemptions or credits of or against Impositions and same are granted, each of
the Parties hereto, including the Agency, hereby agrees that thereafter it shall
use commercially reasonable efforts to ensure that said abatements, exemptions
or credits of Impositions shall not be terminated, rescinded or otherwise lost
due to its willful misconduct or gross negligence (whether or not such willful
misconduct is permitted by this REA).
(d) Notwithstanding the foregoing, or anything to the contrary set forth
herein, each Party shall
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have the right, exercisable following at least ten (10) business days prior
written notice to the other Party, to make any payment of the other Party's
share of the Impositions in order to avoid the accrual of interest or other late
fees or the imposition of a penalty or creation of a lien upon the Parcel of the
noticed Party if such noticed Party does not pay same within said ten (10)
business days from the date of delivery of such notice. In the event that a
Party makes any such payment or otherwise incurs any cost or expense in
accordance with this Section 6.4 as a result of the non-payment of the share of
the Impositions allocated to another Party, such first Party shall have the
right to be reimbursed therefore as a component of Operating Expenses under the
Revenue Sharing Agreement,
(e) Each Party shall also pay before any fine, penalty, interest or cost
may be added thereto or become due or be imposed by operation of Law for the
non-payment thereof, all excises, levies, licenses and permit fees and other
governmental charges, general and special, ordinary and extraordinary,
unforeseen and foreseen, of any kind and nature whatsoever which at any time
during the Term, with respect to the Corporation, and prior to or during the
Term of this REA with respect to the other Parties, may be assessed, levied,
confirmed, imposed upon, or grow or become due and payable out of or in respect
of or become a lien on, their respective Parcels or any part thereof or any
appurtenance thereto as the result of or in connection with the use to which the
Parcels are put by such Party (notwithstanding that such use may be for the
purposes herein permitted or may have been consented to by the other Party).
(f) The Corporation and the Authority shall each have the right to employ
a tax consulting firm, reasonably acceptable to the other Party, to attempt to
assure a fair tax burden on each of the Parcels. Each Party shall pay fifty
percent (50%) of the cost of such service. Additionally, the Parties shall in
their reasonable determination have the right to contest, at their sole expense,
any tax assessment, valuation or levy against all or any portion of their
respective parcel, and to retain legal counsel and expert witnesses to assist in
such contest. In the event such contest results in a refund of Impositions in
any year, the other Party shall be entitled to receive its proportionate share
of such refund, pro-rated for the period with respect to which the Party paid
its share of Impositions for such year, after deducting from the refund all
fees, expenses and costs incurred in connection with such contest.
(g) Any payment to be made pursuant to this Section with respect to the
real estate tax year in which this REA commences or terminates shall bear the
same ratio to the payment which would be required to be made for the full tax
year as that part of such tax year covered by the Term of this REA bears to a
full tax year.
SECTION 6.5 OTHER GOVERNMENTAL CHARGES. Each party shall also pay
before any fine, penalty, interest or cost may be added thereto or become due or
be imposed by operation of Law for the non-payment thereof, all excises, levies,
licenses and permit fees and other governmental charges, general and special,
ordinary and extraordinary, unforeseen and foreseen, of any kind and nature
whatsoever which during the Term, with respect to the Corporation, and at any
time prior to or during the Term, with respect to the other Parties may be
assessed, levied, confirmed, imposed upon, or grow or become due and payable out
of or in respect of or become a lien on, their interests in respective Parcels,
or any part thereof or any appurtenance thereto as the result of or in
connection with the use to which the Parcels are put by such Party
(notwithstanding that such use may be for the purposes herein permitted or may
have been consented to by the other Party).
SECTION 6.6 EXCEPTIONS FROM IMPOSITIONS; CHARGES IN LIEU OF
IMPOSITIONS. Nothing herein
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contained shall require either Party to pay any portion of any estate,
inheritance, succession, capital levy, corporate franchise, gross receipts,
transfer or income tax of any other Party, nor shall any of the same be deemed
to be included within the term "Impositions" as defined herein, unless the same
shall be imposed in lieu of any Impositions referred to in this Article 6.
ARTICLE 7
ARBITRATION
SECTION 7.1 DISPUTES SUBJECT TO ARBITRATION. Any dispute under this
REA shall be resolved by arbitration under this Article.
SECTION 7.2 ARBITRATION PROCEDURES. Any arbitration shall be
conducted in the manner provided in Section 20.01 of the Parcel Lease.
SECTION 7.3 PROCEEDINGS. To the extent permitted by Law, but subject
to the exception described in the second sentence of Section 7.1 above,
compliance with this Article 7 is a condition precedent to the commencement by
any Party of any judicial proceeding arising out of a dispute subject to
arbitration. The decision of the arbitrator may be entered as a judgment in a
court of competent jurisdiction.
ARTICLE 8
NOTICES AND APPROVALS
SECTION 8.1 NOTICES TO PARTIES. For purposes of serving notices, or
requesting or granting approvals or authorizations under this REA, as well as
for purposes of transmitting correspondence concerning this REA and all of the
activities of the parties hereunder, the addresses of the parties shall be as
follows:
If to the Corporation or the Manager: Premier Parks Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman and CEO
with a copy to: ▇▇▇▇ Marks & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
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If to the Agency: Executive Director, Redevelopment Agency
of the City of Vallejo
City of Vallejo
City Hall
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Authority: Marine World Joint Powers Authority
▇/▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Any party may change its address as stated above upon written notice to the
other parties. Any notice or other communication under this Agreement shall be
deemed given (a) upon personal delivery, (b) upon receipt by each other party as
evidenced by a written receipt of the United States Postal Service or any
reputable courier service, (c) three (3) business days after deposit, postage
prepaid and correctly addressed, with the United States Postal Service,
registered or certified, or with a reputable courier service, (d) one (1)
business day after delivery, postage prepaid and correctly addressed, with a
reputable courier service guaranteeing overnight delivery, or (e) upon receipt
of a telecopy provided a confirmation of delivery is sent via first class,
registered or certified mail with the United States Postal Service or with a
reputable courier service. The attorneys for any Party may, but shall not be
required to, give any notice on behalf of its respective client.
SECTION 8.2 TIME AND FORM OF APPROVALS. Wherever in this REA
approval of a Party is required, and unless a different time limit is provided
herein, such approval or disapproval shall be given in writing within thirty
(30) days following the receipt of the item to be so approved or disapproved, or
the same shall be conclusively deemed to have been approved by such Party. Any
disapproval which requires objective reasonableness shall specify with
particularity the reasons therefor.
The item to be so approved shall be clearly marked (or shall be accompanied
by a cover letter which is clearly marked) "Request for Approval" and indicate
the Section of this REA under which approval is required.
Wherever in this REA a lesser period of time for approval or disapproval is
provided for than the thirty (30) day period specified in this Section, such
lesser time limit shall not be applicable unless the notice to the Person whose
consent, approval or disapproval is required contains a specific statement of
the period of time within which such Person shall act. Failure to specify such
time shall not invalidate the notice but simply shall require the action of such
Person to be taken within thirty (30) days.
SECTION 8.3 NOTICE TO MORTGAGEES AND OPPORTUNITY TO CURE.
The Mortgagee under any Mortgage affecting ownership or leasehold interest
of any Party shall be entitled to receive notice of any default by any Party,
provided that such Mortgagee shall have delivered a copy of a notice in the form
hereinafter contained to both Parties and to the Manager. The form of such
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notice shall be as follows:
The undersigned, whose address is __________________________, does
hereby certify that it is a Mortgagee of _____________'s interest in the
________________ Parcel(s), a legal description of which is attached hereto
as Exhibit A and made a part hereof. In the event that any notice shall be
given of the default of any Party to this REA, a copy thereof shall be
delivered to the undersigned. In the event the Party in default, as
specified in such notice, is _____________________, then the undersigned
shall have all rights of such Party to cure such default with a period to
cure equivalent to that given to the defaulting Party. Failure to deliver
a copy of such notice to the undersigned shall in no way affect the
validity of the notice of default as it respects any Party, but shall make
the same invalid as it respects the interest of the undersigned and its
Mortgage upon said Parcel(s).
Any such notice to a Mortgagee shall be given in the same manner as
provided in Article 8.1 hereof. Giving of any notice of default or the failure
to deliver a copy to any Mortgagee shall in no event create any liability on the
part of the Party so declaring a default. In the event that any notice shall be
given of the default of a Party and such defaulting Party has failed to cure or
commence to cure such default as provided in this REA, then and in that event
the Mortgagee under the Mortgage affecting the defaulting Party's interest shall
be entitled to receive an additional notice given in the manner provided in
Article 8.1 hereof, that the defaulting Party has failed to cure such default
and such Mortgagee shall have thirty (30) days after the receipt of said
additional notice (but shall not be required) to cure any such default, or, if
such default cannot be cured within thirty (30) days, to diligently commence
curing within such time and diligently cure within a reasonable time thereafter.
ARTICLE 9
AMENDMENT
SECTION 9.1 AMENDMENT;. Except as otherwise provided for herein, this
REA may be amended or otherwise modified only by a writing signed and
acknowledged by all of the Parties and recorded in the office of the Recorder
for ▇▇▇▇▇▇ County, California. Each Party agrees to consent to any changes in
this REA reasonably required by a Mortgagee, provided the Party is not
materially adversely affected by the change.
ARTICLE 10
EXPIRATION DATE
SECTION 10.1 TERM. This REA shall remain in full force and effect so
long as the Parcel Lease is in effect. This REA shall in all events terminate
at such date as may be required in order that this REA will not be invalidated
or be subject to invalidation by reason of a limitation imposed by Law on the
duration hereof. Notwithstanding the foregoing, this REA is intended by the
Parties to run with the Land for the benefit of the Parties and their successors
and assigns unless and until this REA terminates in accordance with the terms
hereof.
ARTICLE 11
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MISCELLANEOUS
SECTION 11.1 LIMITED LIABILITY OF PARTIES. Except as otherwise
expressly set forth in this REA, the liability of any Party under this REA shall
be limited solely to the interest of the Party in its Parcel. No partner,
officer, agent or employee of any Party, nor any of such Person's separate
property shall be personally liable for any claim arising out of or related to
this REA. Notwithstanding any provision hereof to the contrary, and except as
otherwise provided below, any monetary obligations of the City hereunder shall
be limited to funds available from insurance proceeds, condemnation proceeds or
amounts obtained by City in respect of such obligations hereunder.
Any obligations of the City hereunder shall be special limited obligations
payable solely from amounts obtained under the REA, the Revenue Sharing
Agreement, insurance proceeds, or condemnation proceeds, and in no event shall
the City's general fund or taxing power be called upon to satisfy its
obligations hereunder.
The provisions of this Section 11.1 shall not relieve the City from fully
and completely discharging its obligations under the Leases to which it is a
party. Furthermore, notwithstanding any other provision of this REA or this
Section 11.29, this Section 11.29 shall not limit City's liability for
intentional or negligent actions or omissions, and shall not limit the City's
liability for failure to perform any obligation hereunder in the event that
funds for the City's performance thereof were made available to the City on a
timely basis from the REA, the Revenue Sharing Agreement insurance proceeds, or
condemnation proceeds, but City nevertheless failed to discharge such obligation
as required hereby.
SECTION 11.2 EXHIBITS. Each reference herein to an Exhibit refers to
the applicable Exhibit that is attached to this REA, which Exhibit may be
amended by the Parties from time to time in accordance with the provisions of
Article 9. All such Exhibits constitute a part of this REA and by this Section
are expressly made a part hereof.
SECTION 11.3 REFERENCES TO ARTICLES, SECTIONS AND SUBSECTIONS. All
references herein to a given Article, Section, subsection or subparagraph refer
to the Article, subsection or subparagraph of this REA.
SECTION 11.4 TABLE OF CONTENTS AND CAPTIONS. The table of contents
and captions of this REA are inserted only as a matter of convenience and for
reference. They do not define, limit or describe the scope or intent of this
REA and they shall not affect the interpretation hereof. For example, there are
substantive agreements of the Parties contained within Article 12, which is
entitled "Definitions".
SECTION 11.5 LOCATIVE ADVERBS. The locative adverbs "herein",
"hereunder", "hereto", "hereby", "hereinafter", and like words wherever the same
appear herein, mean and refer to this REA in its entirety and not to any
specific Article, Section or Subsection hereof.
SECTION 11.6 REA FOR EXCLUSIVE BENEFIT OF THE PARTIES. Except for
provisions herein for the benefit of a Mortgagee, the provisions of this REA are
for the exclusive benefit of the Parties, their successors and assigns, and not
for the benefit of any third Person, and this REA shall not be deemed to have
conferred any rights upon any third Person.
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SECTION 11.7 WAIVER OF DEFAULT. A waiver of any default by a Party
must be in writing and no such waiver shall be implied from any omission by a
Party to take any action in respect of such default. No express written waiver
of any default shall affect any default or cover any period of time other than
the default and period of time specified in such express waiver. One or more
written waivers of any default in the performance of any provision of this REA
shall not be deemed to be a waiver of any subsequent default in the performance
of the same provision or any other term or provision contained herein. The
consent or approval by a Party to or of any act or request by another Party
requiring consent or approval shall not be deemed to waive or render unnecessary
the consent or approval to or of any subsequent similar acts or requests. The
rights and remedies given to a Party by this REA shall be deemed to be
cumulative and no one of such rights and remedies shall be exclusive of any of
the others, or of any other right or remedy at law or in equity which a Party
might otherwise have by virtue of a default under this REA, and the exercise of
one such right or remedy by a Party shall not impair such Party's standing to
exercise any other right or remedy.
SECTION 11.8 PAYMENT ON DEFAULT. If under this REA a Party is
compelled or elects to pay any sum of money or do any acts that require the
payment of money by reason of the other Party's failure or inability to perform
any of the provisions of this REA to be performed by such other Party, the
defaulting Party shall promptly upon demand reimburse the paying Party for such
sums, and all such sums shall bear interest at the rate of two percent (2%) per
annum over the then existing prime rate of interest charged by the Bank of
America National Trust and Savings Association, San Francisco, California (but
in no event exceeding the maximum rate per annum permitted by California law)
from the date of expenditure until the date of such reimbursement. Any other
sums payable by any Party to any other Party under this REA that shall not be
paid when due shall bear interest at the rate of two percent (2%) per annum over
the then existing prime rate of interest charged by said Bank of America (but in
no event exceeding said maximum lawful annual rate) from the due date of payment
thereof.
Whenever a Party hereto is entitled to reimbursement or compensation by
another Party hereto and said amount is not paid when due, if such obligation is
not of a character such that it is included in the definition of Operating
Expenses under the Revenue Sharing Agreement and entitled to be paid as such,
the amount so owing shall be paid from said Party's share under clause (v) of
Section 1.3(c) of the Revenue Sharing Agreement prior to the remission of any
amount otherwise to be disbursed to the delinquent party under said clause (v).
Any Party desiring to avail itself of the foregoing provision, shall send
written notice of the amount owing (and the specific obligation giving rise to
the debt) to the Treasurer (as defined in the Revenue Sharing Agreement) with a
copy to the delinquent Party.
SECTION 11.9 NO PARTNERSHIP JOINT VENTURE OR PRINCIPAL AGENT
RELATIONSHIP. Neither anything in this REA nor any acts of the Parties shall
be deemed by the Parties, or by any third Person, to create the relationship of
principal and agent, or of partnership, or of joint venture, or of any
association between the Parties and no provisions of this REA are intended to
create or constitute any Person a third party beneficiary hereof.
SECTION 11.10 SUCCESSORS. This REA shall be binding upon and inure
to the benefit of the respective successors and assigns of the Parties and the
Mortgagees.
SECTION 11.11 SEVERABILITY. If any provision of this REA shall to
any extent be invalid or unenforceable, the remainder of this REA (or the
application of such provision to Persons or circumstances other than those in
respect of which it is invalid or unenforceable) shall not be affected thereby,
and each
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provision of this REA, unless specifically conditioned upon such invalid or
unenforceable provision shall be valid and enforceable to the fullest extent
permitted by law.
SECTION 11.12 GOVERNING LAWS. This REA shall be construed and
enforced in accordance with the laws of the State of California applicable to
contracts made and performed in California.
SECTION 11.13 RELEASE. If a Party or other Person obligated to
comply with any provisions of this REA sells, transfers or otherwise conveys its
Parcel, or any part thereof, such Party or Person shall, as respects the Parcel
or part thereof so conveyed, be released from all liabilities of thereafter
complying with the provisions of this REA provided:
(a) it gives prior written notice to the other Party of its sale,
transfer or other conveyance promptly after the filing for record of the
instrument effecting the same;
(b) all amounts that are then due and payable by such Party or Person
to the other Parties have been paid to such other Parties;
(c) such Party or Person delivers to the other Party an instrument
signed by its assignee in recordable form that acknowledges such
assignee's assumption of the duties, responsibilities and obligations
imposed on such Party or Person by this REA and assumed by such assignee's,
which instrument must be in a form reasonably satisfactory to said other
Party; and
(d) such sale, transfer or other conveyance complies with the Leases
to which such Person is a Party.
Notwithstanding such Party's or Person's failure to provide the other Party
with the document described above in Subsection 11.13(c), the grantee of any
sale, transfer or other conveyance of such Parcel, or any part thereof, shall be
deemed to have automatically assumed all provisions of this REA that such Party
or Person was theretofore obligated to perform.
SECTION 11.14 NO DEDICATION. Nothing herein contained shall be
deemed to be a gift or dedication of any part of the Land, the Parcels or the
Public Areas to the general public, or for the general public or for any public
purpose whatsoever, it being the intention of the Parties that this REA shall be
strictly limited to and for the purposes herein expressed. A Party shall not
dedicate any part of its Parcel for public purposes without the consent of the
other Party and any Mortgagee whose Mortgage encumbers that Parcel.
All or a part of the Public Areas may be closed from time to time to such
extent as may be sufficient in the opinion of the legal counsel to the Parties
to prevent a dedication thereof or the accrual of rights of any person or of the
public therein.
SECTION 11.15 WRITTEN CONSENT REQUIRED. Whenever a Party is
requested to consent to or approve of any matter with respect to which its
consent or approval is required by this REA, such consent or approval shall be
given in writing, and shall (except as otherwise provided in this REA) not be
unreasonably delayed or withheld.
SECTION 11.16 COVENANTS RUN WITH THE LAND. It is intended that the
covenants, easements,
25
agreements, promises and duties of each Party as set forth in this REA shall be
construed as covenants and not as conditions, and that, to the fullest extent
legally possible, all such covenants shall run with the land or constitute
equitable servitudes as between the Parcel of the respective Grantor, as the
servient tenement, and the Parcel of the respective Grantee as the dominant
tenement.
Unless the context indicates otherwise, every covenant, easement, agreement
and promise of each Party as set forth in this REA shall be deemed a covenant,
easement, agreement and promise made for the joint and severable benefit of the
other Party and every duty of each Party as set forth in this REA shall be
deemed to run to and for the joint and severable benefit of the other Party.
SECTION 11.17 RULES. Each Party shall observe and shall use all
commercially practicable efforts to cause its Permittees to observe the Rules
and Regulations.
SECTION 11.18 DEFAULT SHALL NOT PERMIT TERMINATION OF REA. No
default under this REA shall entitle any Party to cancel or otherwise rescind
this REA, provided, however, that this limitation shall not affect any other
rights or remedies that the Parties may have by reason of any default under this
REA.
SECTION 11.19 RIGHT TO ENJOIN. In the event of any violation or
threatened violation of any of the provisions of this REA by a Party, any other
party shall have the right, to apply to a court of competent jurisdiction for an
injunction against such violation or threatened violation, but nothing in this
Section 11.19 shall be deemed to affect whether or not injunctive relief is
available on account of such violation or threatened violation.
SECTION 11.20 RIGHTS, PRIVILEGES, AND EASEMENTS WITH RESPECT TO
LIENS. This REA and the rights, privileges and easements of each Party with
respect to the other Party and their respective ownership and leasehold
interests shall in all events be superior and senior to any lien placed upon any
Parcel, including the lien of any Mortgages. Subject to Article 9, any
amendments or modification hereof, whenever made, shall be deemed superior and
senior to any and all liens, including the lien of Mortgages and any lien or
encumbrance created or arising out of a Party's Lease or this REA, the same as
if the same had been executed concurrently herewith.
SECTION 11.21 IDENTIFICATION OF UTILITY FACILITIES. Upon the written
request of the Manager or the other Party hereto, a Party shall provide, at its
sole cost and expense, a copy of any "as-built" construction drawings which have
been prepared so as to appropriately identify the type and location of each
Separate Utility Facility and Common Utility Facility.
SECTION 11.22 GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. Whenever in
this REA there is a provision requiring the determination of the cost or expense
of any construction, replacement, repair, maintenance or operation such costs or
expense shall be determined on the basis of generally accepted accounting
principles, consistently applied, provided that the cash basis may be used.
SECTION 11.23 COUNTERPARTS. This REA may be signed in several
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute one and the same instrument. The signature of a
Party to any counterpart may be removed and attached to any other counterpart.
Any counterpart to which is attached the signatures of all Parties shall
constitute an original of this REA.
26
SECTION 11.24 ATTORNEYS' FEES. In the event any Party shall
institute any action, arbitration or proceeding against the other relating to
the provisions of this REA, or any default hereunder, the unsuccessful
litigant(s) in such action, arbitration or proceeding agree(s) to reimburse the
successful litigant(s) therein for the reasonable expenses of attorneys' fees
(including the reasonable cost of outside counsel and the cost allocable to
in-house counsel), expert's fees and disbursements incurred therein by the
successful litigant(s) as determined by the court or arbitrator.
SECTION 11.25 BREACH SHALL NOT DEFEAT MORTGAGE. A breach of any of
the terms, conditions, covenants, or restrictions of this REA shall not defeat
or render invalid the lien of any Mortgage made in good faith and for value,
but, subject to the provisions of Section 8.3 hereof (with respect to the cure
of defaults by Mortgagees), such term, condition, covenant or restriction shall
be binding upon and effective against any Person who becomes a Party by
acquiring title to said Parcel or any portion thereof by foreclosure, trustee's
sale or otherwise.
SECTION 11.26 ESTOPPEL CERTIFICATE. Each Party hereby severally
covenants that within 10 business days after a written request of the other
Party or the Manager, it will issue to such other Party, or to any Mortgagee, or
the Manager or to any permitted prospective purchaser or prospective Mortgagee
specified by such requesting Party or the Manager, an estoppel certificate
stating: (a) whether the Party to whom the request has been directed knows of
any default under the REA, or any event or condition that with notice and/or the
passage of time would be a default under the REA, and if any are known, then
specifying the nature thereof; (b) whether the REA has been modified or amended
in any way (or if it has, then stating the nature thereof; (c) that to the
Party's knowledge the REA as of that date is in full force and effect; and (d)
the status of any other condition, covenant or requirement under the REA. Such
statement shall act as a waiver of any claim by the Party furnishing it to the
extent such claim is based upon facts contrary to those asserted in the
statement and to the extent the claim is asserted against a bona fide
encumbrancer or purchaser for value who has acted in reasonable reliance upon
the statement. However, such statement shall in no event subject the Party
furnishing it to any liability whatsoever, notwithstanding the inadvertent
failure of such Party to disclose correct and/or relevant information.
SECTION 11.27 TIME OF ESSENCE. Time is of the essence with respect
to the performance of each of the covenants and agreements contained in this
REA.
SECTION 11.28 LIABILITY OF MORTGAGEES. (a) Whether before or after
a Mortgagee takes title to the property covered by its Mortgage (the "mortgaged
property") whether by foreclosure or by deed or assignment in lieu of
foreclosure, by a new lease, or otherwise, the Parties shall look only to, and
their sole and exclusive recourse against the Mortgagee shall be against the
proceeds received upon execution of judgment against the Mortgagee's right,
title and interest in and to the mortgaged property (including the rents or
other income therefrom and the consideration from the sale or other disposition
thereof) for the satisfaction of a judgment, arbitration award, or other
judicial process requiring the payment of money by the Mortgagee in the event of
any default by the Mortgagee under this REA and no other property or assets of
the Mortgagee (nor of any officer, employee, shareholder, partner or tenant in
common of or with the Mortgagee or any other person or entity related to or
having an interest in the Mortgagee, none of whom, including the Mortgagee,
shall be personally liable for any deficiency in the payment of such judgment,
arbitration award, or other judicial process) shall be subject to any execution
or other enforcement procedure for the satisfaction of a judgment or other
judicial process or a Party's remedies under or with respect to this REA, the
relationship of the Parties hereunder or a Party's use or occupancy of the Land.
Nothing herein shall be
27
construed as to prohibit a Party from obtaining an equitable decree requiring
the performance by a Mortgagee of any of the Mortgagee's obligations under this
REA. The provisions of this Section 11.28 shall inure to the benefit of the
successors and assigns of each Mortgagee.
(b) Subject to the provisions of Section 1.5 and 11.28(a), if any
Mortgagee or any purchaser at any foreclosure sale acquires title to the
mortgaged property, whether by foreclosure, or by deed or assignment in lieu of
foreclosure, by a new lease, or otherwise, such Mortgagee or purchaser shall
only be liable for the obligations of the Party which granted or executed the
applicable Mortgage and which accrue under this REA from and after the earlier
of (i) the date of its acquisition of title, or (ii) the date upon which such
Mortgagee takes possession of the mortgaged property personally (and not by a
receiver).
ARTICLE 12
DEFINITIONS
SECTION 12.1 DEFINITIONS. As used in this REA, the following terms
have the following meanings:
"Accounting Period" means any period beginning on November 1 and ending on
the next following October 31.
"Authority" is defined in the introductory paragraph of this REA.
"Certificate of Participation Financing" is defined in Recital B.
"City" is defined in Recital A.
"Common Utility Facilities" means all storm drainage facilities, sanitary
sewer systems, natural gas systems, domestic water systems, fire life safety
detection/protection systems, electrical systems, emergency light, lighting,
telephone systems, data or other communication systems, cable television systems
and all other utility systems and facilities located or situated on the Land
designed to be used by more than one Parcel.
"Construction" is defined in Section 4.1.
"Corporation" is defined in the introductory paragraph of this REA.
"Environmental Laws" means any and all Laws concerning air, water, solid
waste, Hazardous Materials, Releases, worker and community right-to-know, hazard
communication, noise, resource protection, subdivision, inland wetlands and
watercourses, health protection and similar environmental, health, safety, and
land use concerns in all cases at any time, from time to time in effect during
the Term of this REA.
"Environmental Condition" means circumstances with respect to soil, land
surface, subsurface strata, surface waters, groundwaters, stream sediments, air
and similar environmental media both on and off the respective Parcel resulting
from any activity, inactivity, operations or Release occurring on or off the
respective Parcel, which under Environmental Laws require investigatory,
corrective and/or remedial
28
measures and/or that may result in claims or demands or give rise to liabilities
of the Authority or the Corporation or to third parties including, but not
limited to, governmental entities.
"Environmental Compliance Liability" means any obligation or liability
arising as the result of any default, violation or breach by a Party or its
affiliates or previous tenants of such Party's Parcel or adjoining tenants
during the Term of this REA of: (i) environmental permits and other approvals,
consents, licenses, certificates and authorizations applicable to such Party's
Parcel of the operation of prior tenant's or other occupant's business and
activities thereon which are required by Environmental Laws; (ii) any
environmental regulatory compliance requirements applicable to such Party's
Parcel or operations conducted on or from such Party's Parcel under
Environmental Laws; or (iii) other Environmental Laws.
"Expiration Date" means the date on which this REA shall terminate pursuant
to Article 10 hereof.
"Grantee" means any Party hereto being granted the benefit of any easement
pursuant to the terms hereof, its successors and assigns to its interest in a
Parcel.
"Grantor" means any Party hereto granting any easement pursuant to the
terms hereof, its successors and assigns to its interest in a Parcel.
"Hazardous Materials" means any petroleum, petroleum products, fuel oil,
derivatives of petroleum products or fuel oil, explosives, reactive materials,
ignitable materials, corrosive materials, hazardous chemicals, hazardous wastes,
hazardous substances, extremely hazardous substances, toxic substances, toxic
chemicals, radioactive materials, medical waste, biomedical waste, infectious
materials and any other element, compound mixture, solution or substance which
may pose a present or potential hazard to human health or safety or to the
environment.
"Impositions" means all taxes, (including possessory interest taxes
associated with a Parcel and the execution of any Lease), assessments (including
all assessments for public improvements or benefits, fees, water, sewer or
similar rents, rates and charges, excises, levies, license fees, permit fees,
inspection fees and other authorization fees and other governmental charges of
any kind or nature whatsoever, whether general or special, ordinary or
extraordinary, foreseen or unforeseen, or hereafter levied or assessed in lieu
of or in substitution of any of the foregoing of every character (including all
interest and penalties thereon), which at any time during or in respect of the
Term may be assessed, levied, confirmed or imposed on or in respect of or be a
lien upon a Parcel, any Improvements, any personal Property now or hereafter
located thereon, on the leasehold estate created by any lease or which may be
imposed upon any taxable interest of a Party acquired pursuant to a Lease or on
account of any taxable possessory right which a Party may have acquired pursuant
to a Lease, or any part thereof or which may be levied upon or measured by the
rent payable thereunder. Notwithstanding anything to the contrary set forth
above, "Impositions" shall not include any income, excess profit, estate,
inheritance, successions transfer, franchise, capital or other tax assessment
upon the interest of any other Party in a Parcel or upon the rentals payable
under a Lease.
"Improvements" means any buildings, outbuildings, structures, plazas,
walkways, rides, attractions, improvements, fixtures, signs or anything else
(including renewals and replacements thereof) now or hereafter erected, built,
placed, installed or constructed upon either of the Parcels.
"Land" is defined in Recital A.
29
"Law" shall mean all applicable present and future laws, ordinances,
rules, regulations, permits, authorizations, orders and requirements, including,
without limitation, all consents or approvals required to be obtained from, and
all rules and regulations of, and all building and zoning laws of, all federal,
state, county and municipal governments, the departments, bureaus, agencies or
commissions thereof, authorities, board or officers, any national or local board
of fire underwriters, or any other body or bodies exercising similar functions,
having or acquiring jurisdiction of, or which may affect or be applicable to the
Parcels.
"Lease" means any or all, as the context requires, of the 1997
Agency-Marine World Lease, the Parcel Lease, or any of the other Public Leases
(as defined in the Parcel Lease).
"Management Agreement" is defined in Recital D.
"Manager" is defined in Recital D.
"Mortgagee" means a mortgagee and/or a trustee and beneficiary under a
Mortgage as hereinafter defined. Except as expressly otherwise provided in this
REA, the term "Mortgagee" shall not refer to any of the foregoing Persons when
in possession of the Parcel of any Party; provided, however, this sentence shall
not be deemed a limitation upon any rights or benefits conferred by this REA
upon a Mortgagee with respect to the period after such Mortgagee takes title to
or possession of the Parcel of any Party. "Mortgage" means any first mortgage,
indenture of first mortgage, or first deed of trust of the interest, of a Party
in a Parcel. Any notice given under this REA to a Person which is a Mortgagee in
more than one capacity shall be deemed a notice given in accordance with the
terms hereof to such Person in all such capacities if the address for notice to
such Mortgagee in all such capacities is the same.
"1997 Agency-Marine World Lease" is defined in Recital C.
"PPI" means Premier Parks Inc. and its wholly-owned subsidiaries.
"Parcel" means, individually, the Public Parcel and the Private Parcel, and
collectively, both of such parcels.
"Parcel Lease" is defined in Recital F.
"Parking Areas" is defined in Recital G.
"Patrons" means all Persons using the Parcels as customers, guests,
visitors or other invitees.
"Party" means the Authority, the Corporation and their permitted successors
in interest and assigns hereunder.
"Permittees" means all Persons entitled by sublease, license or contract to
use and occupy any portion of the Parcels, and their respective officers,
directors, employees, agents, partners, contractors, licensees and
concessionaires and Patrons.
"Person" or "Persons" mean individuals, partnerships, associations,
corporations and any other form
30
of business organization, or one or more of them, as the context may require.
"Private Parcel" is defined in Recital F.
"Public Areas" is defined in Recital G, and are more particularly described
in Exhibit D hereto.
"Public Parcel" is defined in Recital C and includes the Parking Areas.
"REA" means this Reciprocal Easement Agreement.
"Release" means releasing, spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, disposing or dumping, or
as otherwise defined under the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901, et seq.) ("RCRA"), the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. Section 9601, et seq.) ("CERCLA"), or
any other federal, state or local Environmental Law, including Laws relating to
emissions, discharges, releases or threatened releases or pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment (including ambient air, surface water, ground water, land
surface or subsurface strata) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes as may be amended from time to time, or other
Environmental Laws.
"Restoration" is defined in Section 1.2.
"Rules and Regulations" means those rules and regulations pertaining to the
Parcels and/or the Public Areas, as applicable, set forth in Exhibit E hereto,
as such Exhibit is amended or supplemented in accordance with the provisions of
Section 2.2 and 11.30 hereof.
"Second Sublease" means that certain 1997 Second Sublease Agreement
Relating to Marine World, dated as of January 1, 1997 by and between the
Redevelopment Agency of the City of Vallejo, as lessor, and the Authority, as
lessee.
"Separate Utility Facilities" is defined in Section 3.1.
"Subsequent Construction" or "subsequent construction" means any and all
work, construction or improvements in connection with any repairs,
reconstructions, replacements, additions, expansions, restorations, alterations
or modifications.
"Unavoidable Delays" means delays or defaults due to war; insurrection;
strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God;
acts of the public enemy; epidemics; quarantine restrictions; freight embargoes;
lack of transportation, government restrictions or priority; unusually severe
weather; inability to secure necessary labor; materials or tools; acts of the
other party; acts or failure to act of the City or any other public or
governmental agency or entity (other than an act or failure to act by the
Authority, which shall not excuse performance by the Authority), or any other
causes beyond the control or without the fault of the Party claiming an
extension of time to perform; provided that failure to lease or sell or to
finance or inability to make a payment is not an Unavoidable Delay. An extension
of time for any such cause shall be for the period of the enforced delay and
shall commence to run from the time of the
31
commencement of the cause if notice by the Party claiming such extension is
given to the other Party or Parties within thirty (30) days after the
commencement of the cause.
32
IN WITNESS WHEREOF, the Authority and the Corporation have caused this REA
to be signed by their duly authorized officers as of the day and year first
above written, but this REA shall not be effective until it is recorded in the
Official Records of ▇▇▇▇▇▇ County, California.
"AUTHORITY"
MARINE WORLD JOINT POWERS AUTHORITY
By: /s/
--------------------------------
Executive Director
"CORPORATION"
PARK MANAGEMENT CORP.
By: /s/
--------------------------------
Its:
The foregoing REA and all easements
granted hereunder by the Parties
are hereby consented to.
CITY OF VALLEJO
By: /s/
--------------------------
City Manager
REDEVELOPMENT AGENCY OF THE CITY
OF VALLEJO
By: /s/
--------------------------
Executive Director
33
STATE OF CALIFORNIA )
) ss
COUNTY OF ___________)
On _________________, 1997 before me, _____________________, Notary Public,
personally appeared _________________________, 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 the within instrument and acknowledged to me that
he/she/they executed the same 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.
WITNESS my hand and official seal.
Signature of Notary (Seal)
STATE OF CALIFORNIA )
) ss
COUNTY OF____________)
On _______________________, 1997 before me, _______________, Notary Public,
personally appeared _____________________________________, 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 the within instrument and acknowledged to me
that he/she/they executed the same 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.
WITNESS my hand and official seal.
Signature of Notary (Seal)
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On ___________________, 1997 before me, ___________________________, Notary
Public, personally appeared _____________________________, 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 the within instrument and acknowledged to me
that he/she/they executed the same 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.
WITNESS my hand and official seal.
Signature of Notary (Seal)
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On ___________________, 1997 before me, ___________________________, Notary
Public, personally appeared _____________________________, 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 the within instrument and acknowledged to me
that he/she/they executed the same 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.
WITNESS my hand and official seal.
Signature of Notary (Seal)
EXHIBIT A
DESCRIPTION OF THE LAND
The real property constituting the Site consists of that certain land
located in the City of Vallejo, County of ▇▇▇▇▇▇, State of California, more
fully described as follows:
REAL PROPERTY in the City of Vallejo, County of ▇▇▇▇▇▇, State of California,
described as follows:
PARCEL ONE:
A portion of the Parcel of land described in the Deed to the City of Vallejo,
recorded February 16, 1946 in Book 337 of Official Records, Page 337, Series No.
2545, and being a portion of Section 6, Township 3 North, Range 3 West, Mount
Diablo Base and Meridian, described as follows:
Beginning at the Northeasterly corner of ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇. ▇, as shown in Book 22 of Maps at Page 19, ▇▇▇▇▇▇ County Records; thence
along the Northerly line of said ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, Unit No. 1 shown in Book 19 of Maps at Page 24, ▇▇▇▇▇▇ County
Records, North 89 Degrees 28'32" West, 1,500.00 feet; thence North 15 Degrees
40'00" East, 758.00 feet; thence North 23 Degrees 22'00" East, 223.00 feet;
thence North 41 Degrees 08'00" East, 382.00 feet; thence North 45 Degrees
24'00" East, 230.21 feet; thence North 85 Degrees 55'13" East, 215.99 feet;
thence North 4 Degrees 04'47" West, 350.00 feet; thence South 85 Degrees
55'13" West, 889.86 feet; thence North 38 Degrees 23'17" West, 2,260.00 feet;
thence North 51 Degrees 36'43" East, 189.51 feet; thence North 41 Degrees
55'09" West, 427.75 feet to a point on the proposed new Southerly
right-of-way line of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇; thence along said Southerly line,
South 84 Degrees 57'14" East, 1,180.93 feet; thence East 265.00 feet; thence
South 84 Degrees 46'02" East, 348.45 feet; thence South 80 Degrees 54'00"
East 229.08 feet; thence South 82 Degrees 55'13" East, 217.44 feet to the
intersection of the proposed Westerly line of Fairgrounds Drive; thence South
36 Degrees 18'50" East, 93.97 feet; thence South 37 Degrees 19'48" East,
215.15 feet; thence South 10 Degrees 15'18" East, 73.76 feet to the beginning
of a curve to the left with a radius of 86.00 feet; thence along said curve,
through a central angle of 27 Degrees 04'27", an arc distance of 40.64 feet;
thence South 37 Degrees 19'45" East, 85.33 feet to the beginning of a
A-1
curve to the left with a radius of 44.00 feet; thence along said curve,
through a central angle of 90 Degrees 00'00" an arc distance of 69.12 feet;
thence South 32 Degrees 30'00" East 142.51 feet; thence South 37 Degrees
19'53" East, 40.96 feet to the beginning of a curve to the right with a
radius of 978.00 feet; thence along said curve, through a central angle of 5
Degrees 24'00", an arc distance of 92.17 feet to a point of compound
curvature; thence along a curve to the right with a radius of 170.00 feet,
through a central angle of 32 Degrees 15'00", an arc distance of 95.69 feet;
thence South 20 Degrees 30'53" East, 101.30 feet to the beginning of a curve
to the right with a radius of 941.00 feet; thence along said curve, through a
central angle of 16 Degrees 57'00", an arc distance of 278.37 feet; thence
South 3 Degrees 33'55" East, 52.43 feet; thence South 86 Degrees 26'14" West,
46.99 feet; thence South 31 Degrees 13'02" East, 123.95 feet; thence South 6
Degrees 34'05" East, 639.79 feet; thence South 4 Degrees 43'59" East, 800.07
feet; thence South 5 Degrees 26'51" East, 400.12 feet; thence South 4 Degrees
40'07" East, 440.03 feet; thence South 12 Degrees 55'17" West, 162.65 feet to
the point of beginning.
EXCEPTING FROM PARCEL ONE ABOVE: That portion of the premises conveyed to the
State of California, by Deed recorded November 29, 1973 in Book 1866 of
Official Records, Page 536, Series No. 28896, ▇▇▇▇▇▇ County Records, and as
modified by the State of California Relinquishment to the City of Vallejo in
Instrument recorded July 12, 1979 in Book 1979 at Page 57270, Series No.
33917, ▇▇▇▇▇▇ County Official Records.
FURTHER EXCEPTING THEREFROM: All those portions of Parcel One above conveyed by
Marine World Foundation, a California non-profit public benefit corporation to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, etal, by the following Corporation Grant Deeds, recorded June
26, 1987 t Book 1987, Pages 86969, 86974, 87009, 86979, 87049, 87004, 87044,
87039, 86984, 87014, 87019, 87024, 87029, 87034, 86989, 86994 and 86999, ▇▇▇▇▇▇
County Records.
FURTHER EXCEPTING THEREFROM: All those portions of Parcel One above conveyed by
Marine World Foundation, a California nonprofit public benefit corporation, to
the State of California, by Quitclaim Deed recorded December 11, 1989, Series
No. 890088359, and by Quitclaim Deed recorded February 6, 1990, Series No.
900009554, ▇▇▇▇▇▇ County Records.
PARCEL TWO:
A-2
An easement as an appurtenance to Parcel One above for the surface use of
Lake ▇▇▇▇▇▇ and being a portion of the parcel of land described in the Deed
to the City of Vallejo, recorded February 16, 1946 in Book 337 of Official
Records, Page 337, Series No. 2545, and being a portion of Section 6,
Township 3 North, Range 3 West, Mount Diablo Base and Meridian, described as
follows:
Commencing at the Northeasterly corner of ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇ as shown in Book 22 of Maps at Page 19, ▇▇▇▇▇▇ County Records, thence
along the Northerly line of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇ and the Northerly
line of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, ▇▇▇▇ ▇▇▇▇ ▇▇. ▇ being shown in Book
19 of Maps at Page 24, ▇▇▇▇▇▇ County Records, North 89 Degrees 28'32" West,
1,500.00 feet; thence along the Easterly fence of ▇▇▇ ▇▇▇▇▇ Park, North 15
Degrees 40'00" East, 758.00 feet; thence North 23 Degrees 22'00" East, 223.00
feet; thence North 41 Degrees 08'00" East, 382.00 feet; thence North 45
Degrees 24'00" East, 230.21 feet; thence North 85 Degrees 55'13" East to its
intersection with the 72.5 foot contour line on the Southerly shore of Lake
▇▇▇▇▇▇ (City of Vallejo Datum) shown on Topographic Map showing the
boundaries of Parcel 1, Flosden Acres Redevelopment Plan, Amendment No.
3-857023, ▇▇▇▇▇▇▇▇ Engineers-Bissell & ▇▇▇▇, and as amended by the site rough
grading lakeshore development drawing C-2.1 of April 1985, said point of
intersection being the true point of beginning; thence following said 72.5
foot contour line in a Northwesterly, Northeasterly, Southeasterly, Southerly
and Westerly direction around the shore of Lake ▇▇▇▇▇▇ to the point of
beginning.
A-3
EXHIBIT B
DESCRIPTION OF THE PRIVATE PARCEL
All that certain property situated in the City of Vallejo, County of
▇▇▇▇▇▇, State of California, described as follows:
REAL PROPERTY in the City of Vallejo, County of ▇▇▇▇▇▇, State of California,
described as follows:
PARCEL ONE:
A portion of the Parcel of land described in the Deed to the City of Vallejo,
recorded February 16, 1946 in Book 337 of Official Records, Page 337, Series
No. 2545, and being a portion of Section 6, Township 3 North, Range 3 West,
Mount Diablo Base and Meridian, described as follows:
Beginning at the Northeasterly corner of ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇. ▇, as shown in Book 22 of Maps at Page 19, ▇▇▇▇▇▇ County Records; thence
along the Northerly line of said ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇. ▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, Unit No. 1 shown in Book 19 of Maps at Page 24, ▇▇▇▇▇▇ County
Records, North 89 Degrees 28'32" West, 1,500.00 feet; thence North 15 Degrees
40'00" East, 758.00 feet; thence North 23 Degrees 22'00" East, 223.00 feet;
thence North 41 Degrees 08'00" East, 382.00 feet; thence North 45 Degrees
24'00" East, 230.21 feet; thence North 85 Degrees 55'13" East, 215.99 feet;
thence North 4 Degrees 04'47" West, 350.00 feet; thence South 85 Degrees
55'13" West, 889.86 feet; thence North 38 Degrees 23'17" West, 2,260.00 feet;
thence North 51 Degrees 36'43" East, 189.51 feet; thence North 41 Degrees
55'09" West, 427.75 feet to a point on the proposed new Southerly
right-of-way line of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇; thence along said Southerly line,
South 84 Degrees 57'14" East, 1,180.93 feet; thence East 265.00 feet; thence
South 84 Degrees 46'02" East, 348.45 feet; thence South 80 Degrees 54'00"
East 229.08 feet; thence South 82 Degrees 55'13" East, 217.44 feet to the
intersection of the proposed Westerly line of Fairgrounds Drive; thence South
36 Degrees 18'50" East, 93.97 feet; thence South 37 Degrees 19'48" East,
215.15 feet; thence South 10 Degrees 15'18" East, 73.76 feet to the beginning
of a curve to the left with a radius of 86.00 feet; thence along said curve,
through a central angle of 27 Degrees 04'27", an arc distance of 40.64 feet;
thence South 37 Degrees 19'45" East, 85.33 feet to the beginning of a
B-1
curve to the left with a radius of 44.00 feet; thence along said curve,
through a central angle of 90 Degrees 00'00" an arc distance of 69.12 feet;
thence South 32 Degrees 30'00" East 142.51 feet; thence South 37 Degrees
19'53" East, 40.96 feet to the beginning of a curve to the right with a
radius of 978.00 feet; thence along said curve, through a central angle of 5
Degrees 24'00", an arc distance of 92.17 feet to a point of compound
curvature; thence along a curve to the right with a radius of 170.00 feet,
through a central angle of 32 Degrees 15'00", an arc distance of 95.69 feet;
thence South 20 Degrees 30'53" East, 101.30 feet to the beginning of a curve
to the right with a radius of 941.00 feet; thence along said curve, through a
central angle of 16 Degrees 57'00", an arc distance of 278.37 feet; thence
South 3 Degrees 33'55" East, 52.43 feet; thence South 86 Degrees 26'14" West,
46.99 feet; thence South 31 Degrees 13'02" East, 123.95 feet; thence South 6
Degrees 34'05" East, 639.79 feet; thence South 4 Degrees 43'59" East, 800.07
feet; thence South 5 Degrees 26'51" East, 400.12 feet; thence South 4 Degrees
40'07" East, 440.03 feet; thence South 12 Degrees 55'17" West, 162.65 feet to
the point of beginning.
EXCEPTING FROM PARCEL ONE ABOVE: That portion of the premises conveyed to the
State of California, by Deed recorded November 29, 1973 in Book 1866 of
Official Records, Page 536, Series No. 28896, ▇▇▇▇▇▇ County Records, and as
modified by the State of California Relinquishment to the City of Vallejo in
Instrument recorded July 12, 1979 in Book 1979 at Page 57270, Series No.
33917, ▇▇▇▇▇▇ County Official Records.
FURTHER EXCEPTING THEREFROM: All those portions of Parcel One above conveyed
by Marine World Foundation, a California non-profit public benefit
corporation to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, etal, by the following Corporation Grant
Deeds, recorded June 26, 1987 t Book 1987, Pages 86969, 86974, 87009, 86979,
87049, 87004, 87044, 87039, 86984, 87014, 87019, 87024, 87029, 87034, 86989,
86994 and 86999, ▇▇▇▇▇▇ County Records.
FURTHER EXCEPTING THEREFROM: All those portions of Parcel One above conveyed
by Marine World Foundation, a California nonprofit public benefit
corporation, to the State of California, by Quitclaim Deed recorded December
11, 1989, Series No. 890088359, and by Quitclaim Deed recorded February 6,
1990, Series ▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
FURTHER EXCEPTING THEREFROM: The portion of Parcel One described as follows:
beginning at a point that bears North 12 Degrees 55'17" East,. 51.21 feet
from the Northeasterly corner of ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇-▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇. ▇, as shown in Book 22 of Maps at page 19, ▇▇▇▇▇▇ County
Records; thence North 89 Degrees 28'32" West, 1497.46 feet; thence North 15
Degrees 40'00" East, 706.20 feet; thence North 23 Degrees 22'00" East, 223.00
feet; thence North 41 Degrees 08'00" East, 382.00 feet; thence North 45
Degrees 24'00" East, 230.21 feet; thence North 85 Degrees 55'13" East, 215.99
feet; thence North 4 Degrees 04'47" West, 925.66 feet; thence North 86
Degrees 08'44" East, 251.21 feet; thence South 89 Degrees 46'55" East, 189.52
feet; thence South 2 Degrees 20'41" East, 63.55 feet; thence South 89 Degrees
44'56" East, 38.69 feet; thence South 6 Degrees 34'05" East, 499.35 feet;
thence South 4 Degrees 43'59" East, 800.07 feet; thence South 5 Degrees
26'51" East, 400.12 feet;thence South 4 Degrees 40'07" East, 440.03 feet;
thence South 12 Degrees 55'17" West, 111.44 feet to the point of beginning,
containing 48.54 acres more or less.
FURTHER EXCEPTING THEREFROM: The portions of Parcel One described as Parcels
A, B, C, D and E in the attachment hereto.
PARCEL TWO:
An easement as an appurtenance to Parcel One above for the surface use of
Lake ▇▇▇▇▇▇ and being a portion of the parcel of land described in the Deed
to the City of Vallejo, recorded February 16, 1946 in Book 337 of Official
Records, Page 337, Series No. 2545, and being a portion of Section 6,
Township 3 North, Range 3 West, Mount Diablo Base and Meridian, described as
follows:
Commencing at the Northeasterly corner of ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇ as shown in Book 22 of Maps at Page 19, ▇▇▇▇▇▇ County Records, thence
along the Northerly line of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇ and the Northerly
line of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇, ▇▇▇▇ ▇▇▇▇ ▇▇. ▇ being shown in Book
19 of Maps at Page 24, ▇▇▇▇▇▇ County Records, North 89 Degrees 28'32" West,
1,500.00 feet; thence along the Easterly fence of ▇▇▇ ▇▇▇▇▇ Park, North 15
Degrees 40'00" East, 758.00 feet; thence North 23 Degrees 22'00" East, 223.00
feet; thence North 41 Degrees 08'00" East, 382.00 feet; thence North 45
Degrees 24'00" East, 230.21 feet; thence North 85 Degrees 55'13" East to its
intersection with the 72.5 foot contour line on the Southerly shore of Lake
▇▇▇▇▇▇ (City of Vallejo Datum) shown on Topographic Map showing the
boundaries of Parcel 1, Flosden Acres Redevelopment Plan, Amendment No.
3-857023, ▇▇▇▇▇▇▇▇ Engineers-Bissell & ▇▇▇▇, and as amended by the site rough
grading lakeshore development drawing C-2.1 of April 1985, said point of
intersection being the true point of beginning; thence following said 72.5
foot contour line in a Northwesterly, Northeasterly, Southeasterly, Southerly
and Westerly direction around the shore of Lake ▇▇▇▇▇▇ to the point of
beginning.
B-3
[ATTACH HERE DESCRIPTION OF PARCELS A, B, C, D AND E]
B-4
EXHIBIT C
DESCRIPTION OF THE PUBLIC PARCEL
All of the real property described in Exhibit A to this Reciprocal Easement
Agreement, other than the real property described in Exhibit B to this
Reciprocal Easement Agreement.
C-1
EXHIBIT D
DESCRIPTION OF PUBLIC AREAS
The Public Areas include the following facilities or improvements located
on the Public Parcel, the present locations of some of which are identified on
the map attached hereto:
Front Entrance System
Ticket Booths
Restrooms
Merchandise Shop
First Aid Center/Main Gate
Cash Room
Food Commissary Warehouse
Merchandise Warehouse
Security/Employee Entrance
Walkways/Paths/Driveways
Food Services Areas
Parking Areas
Maintenance Shop
Office and Administrative Areas
The Public Areas also include the following facilities or improvements now
located or when constructed on the Private Parcel:
Walkways/Paths/Driveways
Restrooms
Restaurants
Food Service Areas
Parking Areas
▇-▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇-▇
EXHIBIT E
RULES AND REGULATIONS
1. All local, state, and federal Laws will be adhered to and enforced (in
all material respects), subject to and otherwise in compliance with this REA.
2. Non-motorized strollers must be stored in the appropriate storage
areas, located in the Public Areas.
3. There shall be no unreasonable obstructions or obstacles to parking in
the Parking Areas and the passage and circulation of pedestrians and vehicles to
and from the Parking Areas, at all times, except as otherwise expressly
permitted in this REA.
4. Carrying fire arms of any type or open sheath knife (regardless of
size) in violation of Law is prohibited.
5. Use of all Public Areas by Patrons will be restricted to the time
period commencing one (1) hour before the Parcels are open for business and
ending one (1) hour after the Parcels are closed for business.
6. Access to Patrons of the Parcels to all portions of the Public Areas
shall be provided. Said access shall not grant priority to any one person over
that of another person based upon race, color, religion, gender, or national
origin, and shall also be subject to any applicable Local, State and Federal
Law.
E-1