California-Vacaville-Nut Tree Ground Lease - Vacaville Redevelopment Agency, City of Vacaville and Renaissance Entertainment Corp.
GROUND LEASE
between
RENAISSANCE ENTERTAINMENT CORPORATION,
a Colorado corporation
as Tenant,
and
VACAVILLE REDEVELOPMENT AGENCY
as Landlord
and
CITY OF VACAVILLE
Dated as of
November 29, 2000
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GROUND LEASE
BASIC LEASE INFORMATION
This Basic Lease Information shall be completed and signed when all
applicable information has been set forth below.
DATE OF LEASE: As of November 29, 2000
PREMISES: Approximately 75 acres located at the old Nut Tree
Restaurant site in Vacaville, California
LANDLORD: VACAVILLE REDEVELOPMENT AGENCY,
CITY PARTY: CITY OF VACAVILLE
TENANT: RENAISSANCE ENTERTAINMENT CORPORATION,
a Colorado corporation
LEASE
COMMENCEMENT DATE: November 29, 2000
LEASE
EXPIRATION DATE: November 15, 2001
MINIMUM RENT AND
CHARITABLE DONATIONS: $180,000
LIABILITY COVERAGE: Commercial general liability with limits of
$1,000,000 per occurrence and $2,000,000 in the
aggregate, with umbrella coverage of $5,000,000
USE: To produce and operate the Renaissance Faire and
associated educational programs.
EXHIBITS: Exhibit A - Land Area Plan
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TENANT: RENAISSANCE ENTERTAINMENT CORPORATION,
A COLORADO CORPORATION
By: ________________________________
Name: _______________________
Its: _______________________
Dated: _____________________________
Address: 407 Montford Avenue
Mill Valley, CA 94941
Telephone: (415) 383-2164
Facsimile: (415) 383-2183
LANDLORD: VACAVILLE REDEVELOPMENT AGENCY
By: _______________________________
David Van Kirk
Its: Assistant Executive Director
Dated: _________________
Address: 650 Merchant Street
Vacaville, CA 95688
Telephone: (707) 449-5100
Facsimile: (707) 449-5149
CITY PARTY: CITY OF VACAVILLE
By: _______________________________
David Van Kirk
Its: Assistant City Manager
Dated: _________________
Address: 650 Merchant Street
Vacaville, CA 95688
Telephone: (707) 449-5100
Facsimile: (707) 449-5149
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TABLE OF CONTENTS
PARAGRAPH PAGE
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1. Definitions 1
2. Term 2
3. Rent 2
4. Taxes 4
5. Use 5
6. Abandonment 9
7. Services and Utilities 9
8. Alterations and Improvements 10
9. Liens 12
10. Repair and Maintenance of the Premises 12
11. Destruction or Damage 13
12. Release and Indemnification 13
13. Insurance 14
14. Compliance with Legal Requirements 16
15. Assignment and Subletting 16
16. Inspections 16
17. Default 16
18. Remedies Upon Default 17
19. Landlord's Right to Cure Default 18
20. No Merger 18
21. Holding Over 18
22. Limitation of Recovery Against Landlord 19
23. No Partnership 19
24. Waiver 19
25. Notices and Consents 19
26. Complete Agreement 20
27. Authority 20
28. Miscellaneous 20
29. Broker's Commissions 21
30. Effectiveness of Lease 21
31. Exhibits 21
32. Basic Lease Information 21
33. Financial Information 21
34. Landlord's Default 21
35. No Construction Against Preparer 22
36. Force Majeure 22
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GROUND LEASE
This Ground Lease (this "LEASE"), dated as of November 29, 2000, is
made and entered into by and between VACAVILLE REDEVELOPMENT AGENCY, a public
body, corporate and politic ("LANDLORD"), the CITY OF VACAVILLE, a municipal
corporation ("CITY"), and RENAISSANCE ENTERTAINMENT CORPORATION, a Colorado
corporation ("TENANT").
Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises subject to the terms, covenants, agreements and
conditions set forth in this Lease.
1. DEFINITIONS. Unless the context otherwise specifies or
requires, the following terms shall have the meanings specified below:
(a) "BUILDING" or "BUILDINGS" means all structures now
existing or hereafter constructed on the Premises.
(b) "CITY" means The City of Vacaville, a municipal
corporation, and its officers, officials, employees, agents and assigns.
(c) "LANDLORD PARTY" or "LANDLORD PARTIES" means
Landlord, its officers, officials, directors, employees, agents and assigns.
(d) "OFF SEASON" shall mean that period of time from the
commencement date of this Lease to July 1, 2001, when the Premises are used
solely for storage and not for other Faire operations.
(e) "PREMISES" shall mean the property depicted on the
Land Area Plan attached hereto as EXHIBIT A, including all Buildings and other
improvements located on such property. The Premises specifically excludes those
portions not indicated on the Land Area Plan as Faire use areas ("Protected
Areas"), and under no circumstances does Tenant have the right to enter, occupy,
alter or otherwise use the Protected Areas. Additionally, Tenant acknowledges
and agrees that if phase I of the Nut Tree Property future development (as set
forth in Exhibit A) is unavailable for Faire use, adjustments to the proposed
Land Area Plan will be necessary.
(f) "PROTECTED AREAS" shall mean those areas not set
forth for use by Tenant pursuant to this Agreement and the Land Area Plan set
forth in Exhibit "A."
(g) "RENAISSANCE FAIRE" is defined in Paragraph 5(a)
below.
(h) "RENT" or "RENT" shall mean the total of Minimum Rent
(as defined in Paragraph 3(a) below), Additional Rent (as defined in Paragraph
3(c) below), the Late Charges (as defined in Paragraph 3(d) below), interest on
unpaid Rent (as defined in Paragraph 3(e) below) and all other monetary sums
owing by Tenant under this Lease.
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2. TERM. The term of this Lease ("TERM") shall commence on
November 29, 2000 (the "LEASE COMMENCEMENT DATE") and, unless sooner terminated
or extended as provided in this Lease, shall terminate on November 15, 2001 (the
"LEASE EXPIRATION DATE").
3. RENT. Tenant shall pay to Landlord, or its designated payee,
throughout the Term as rental for the use and occupancy of the Premises, at the
times and in the manner provided in this Lease, the following amounts:
(a) MINIMUM RENT AND CHARITABLE DONATION. Tenant shall pay to
Landlord the minimum rent of $80,000 ("MINIMUM RENT"), and shall make a
charitable donation of $100,000, toward non-profit organizations or purposes
selected by the Vacaville City Council, all payable as follows: Tenant shall pay
$10,000 to Landlord on the Lease Commencement Date, $70,000 to Landlord on
August 15, 2001, and $100,000, total, to the various non-profit organizations or
purposes designated by the Vacaville City Council, on or by September 15, 2001.
On, or by, August 15, 2001, City shall provide notice to Tenant of the various
charitable organizations or purposes the City Council has designated to receive
the donation and the amount of each individual donation, the total of which
shall not exceed $100,000.
(b) ADDITIONAL RENT. Tenant shall pay, as additional rent
("ADDITIONAL RENT"), all sums of money or charges required to be paid by Tenant
under this Lease and all sums due and owing, or to be billed, for services
provided by CITY during the 2000 Renaissance Faire Season, in addition to
Minimum Rent and late charges, whether or not designated as "Additional Rent".
All sums due and owing, or to be billed, for services provided by CITY during
the 2000 Renaissance Faire Season, shall be paid by the due date specified on
the original invoice. If such amounts or charges are not paid at the time
provided in this Lease, they shall nevertheless be collectible as Additional
Rent with the next installment of Minimum Rent thereafter due, but nothing
contained in this Lease shall be deemed to suspend or delay the payment of any
amount of money or charge at the time the same becomes due and payable under
this Lease, or limit any other remedy of Landlord.
(c) LATE CHARGES. Tenant recognizes that late payment of any
Rent will result in extra administrative expense to Landlord and Landlord's
inability to meet its financial commitments. The extent of this additional
expense and other damage to Landlord is extremely difficult and economically
impractical to ascertain. Tenant therefore agrees that if any Rent remains
unpaid three (3) days after Landlord has provided written notice to Tenant that
the same is due, the amount of such unpaid Rent shall be increased by a late
charge to be paid to Landlord by Tenant in an amount equal to fifteen percent
(15%) of the amount of the amount due. The amount of the late charge to be paid
to Landlord by Tenant on any unpaid Rent shall be reassessed and added to
Tenant's obligations for each successive monthly period accruing after the date
on which the late charge is initially imposed. Tenant agrees that such amount is
a reasonable estimate of the loss and expense to be suffered by Landlord as a
result of such late payment by Tenant and may be charged by Landlord to defray
such loss and expense. If the amount of any late charges due hereunder exceed
the amounts allowed by law, then such late charges shall be reduced to the
maximum allowed by law. The provisions of this Paragraph 3(c) shall not be
construed to grant Tenant a grace period and shall in no way relieve Tenant of
the obligation to pay any amount of Rent on or before the date on which it
becomes due, nor do the
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terms of this Paragraph in any way affect Landlord's remedies pursuant to
Paragraph 18 if any Rent is unpaid after the date due.
(d) INTEREST ON UNPAID RENT. Minimum Rent, Additional Rent or
any other charges not paid within ten (10) days of the due date shall bear
interest until paid at a rate equal to the lesser of (i) the highest rate
allowable at law, or (ii) an annual rate equal to the prime or reference rate,
as announced by the Bank of America from time to time, plus four percent (4%).
All such interest shall be deemed to be Additional Rent.
(e) MANNER OF PAYMENT. All payments due from Tenant to
Landlord, or the designated non-profit organizations, hereunder shall be made to
Landlord or the non-profit organizations without deduction or offset in lawful
money of the United States of America actually received at Landlord's address
for notice under this Lease, or to such other person at such other place as
Landlord may from time to time designate in writing to Tenant. If any check
given by Tenant to Landlord should be returned by a bank for insufficient funds,
Landlord may, in its sole discretion, require that Tenant thereafter pay all
amounts owing under this Lease by way of cashiers check. Tenant shall reimburse
Landlord for any charges paid by Landlord to its bank in connection with such
returned check.
(f) SECURITY DEPOSIT. On June 1, 2001, Tenant shall deliver to
Landlord, by check, a security deposit of Twenty Thousand Dollars ($20,000). The
Security Deposit shall be held by Landlord as security for the faithful
performance by Tenant of all of the provisions of this Lease. If Tenant fails to
pay Rent or other charges due under this Lease, or fails to pay any outstanding
utility bills (including, but not limited to, water, sewer, waste collection,
electricity/gas, and telephone service) or any other Event of Default occurs,
Landlord may use, apply or retain all or any portion of the Security Deposit for
the payment of Rent or other charge in default or for the payment of any other
sum to which Landlord may become obligated by reason of the Event of Default, or
to compensate Landlord for any loss or damage which Landlord may suffer by
reason of the Event of Default or failure to pay outstanding utility bills. If
Landlord so uses or applies all or any portion of the Security Deposit, Tenant
shall within ten (10) days after written demand therefor deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to the full
amount stated above and Tenant's failure to do so shall be a material breach of
this Lease. No later than 30 days after the end of the term, providing no Event
of Default has occurred and is continuing and the Premises is returned to
Landlord in the condition required under this Lease, the unapplied portion of
the Security Deposit shall be returned to Tenant. No later than ten days
following the expiration of the Term or earlier termination of this Lease,
Landlord and Tenant shall conduct a joint walkthrough to assess the condition of
the Premises. No trust relationship is created herein between Landlord and
Tenant with respect to the Security Deposit nor is the Landlord obligated to
segregate or pay interest on such Security Deposit. The application by Landlord
of the Security Deposit against any obligation owing by Tenant or to compensate
Landlord for any damage sustained by it hereunder shall not constitute a waiver
by Landlord of any other remedy that may be available to it.
(g) CLEAN-UP AND POLICE SERVICES SECURITY DEPOSITS. On
August 1, 2001, Tenant shall deliver to the City of Vacaville, by check, a
security deposit of Fifty Thousand Dollars ($50,000) for the faithful
performance by Tenant of all of the provisions set forth in the conditions of
approval issued November 13, 2000, except those provisions related to police and
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fire services (the "Clean-up Deposit"). Additionally, in the event that the
Security Deposit set forth in Section 3(f) (Security Deposit), immediately
above, is insufficient to cover Tenant's obligations as set forth in Section
3(f), Landlord, upon agreement with City, may apply all or any portion of the
sum of the Clean-up Deposit toward fulfilling Tenant's obligations under Section
3(f). On August 1, 2001, Tenant shall also deliver to the City of Vacaville, by
check, a security deposit of Sixty Thousand Dollars ($60,000) for the faithful
performance by Tenant of all of the provisions set forth in both the conditions
of approval issued November 13, 2000 regarding the provision of police and fire
services by the City of Vacaville Police and fire Departments, and any written
agreement between the City of Vacaville and Tenant regarding the provision of
police and fire services by the City of Vacaville (the "Police Services
Deposit"). Following any default by Tenant of any of the provisions of the
conditions of approval or written agreement regarding police and fire services,
City may use, apply or retain all or any portion of the Security Deposit in
question for the payment of any sum to which Landlord may become obligated by
reason of the default, or to compensate City for any loss or damage which City
may suffer by reason of the default. If City so uses or applies all or any
portion of either Security Deposit, Tenant shall within ten (10) days after
written demand therefor deposit cash with City in an amount sufficient to
restore the Security Deposit used to the full amount stated above and Tenant's
failure to do so shall be a material breach of this Lease. No later than 30 days
after the end of the term, providing no Event of Default has occurred and is
continuing, Landlord shall ensure the unapplied portion of each Security Deposit
is returned to Tenant. No trust relationship is created herein between Landlord
or City and Tenant with respect to either Security Deposit nor is the Landlord
or City obligated to segregate or pay interest on either Security Deposit. The
application by City of either Security Deposit against any obligation owing by
Tenant or to compensate City for any damage sustained by it hereunder shall not
constitute a waiver by City of any other remedy that may be available to it.
In Lieu of the Clean-Up Security Deposit set forth above, Landlord and City are
agreeable to Tenant providing City with a letter of credit for the amount. The
letter of credit shall be issued in a form, and by a financial institution,
approved by the City Attorney.
(h) CHARITABLE DONATION. As part of the social consideration
for allowing the lease of the Premises for the operation of a Renaissance
Pleasure Faire and as a benefit to the community as a whole, Tenant has
committed to, and by September 15, 2001, shall, donate One Hundred Thousand
Dollars ($100,000.00) to local non-profit organizations or purposes as selected
by the Vacaville City Council, and as set forth in Section 3(a) (Minimum Rent
and Charitable Donations), above.
4. TAXES.
(a) PERSONAL PROPERTY TAXES. Tenant shall pay, before delinquent, all
taxes levied or assessed during the Term on Tenant's equipment, furniture,
fixtures, inventory and other personal property located at the Premises, and
shall reimburse Landlord upon demand for all taxes paid or payable by Landlord
(other than state and federal personal or corporate income taxes measured by the
net income of Landlord from all sources) whether or not now customary or within
the contemplation of the parties hereto: (a) upon or measured by Rent payable
under this Lease, including without limitation, any gross rents or gross
receipts tax or excise tax levied by the City of Vacaville, Solano County, the
State of California, the federal government or any other
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governmental body with respect to the receipt of such Rent; (b) upon or with
respect to the possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises or any portion
of the Premises; (c) upon, measured by or reasonably attributable to the cost
or value of Tenant's equipment, furniture, fixtures and other personal
property located in the Premises or by the cost or value of any leasehold
improvements made in or to the Premises, regardless of whether title to such
improvements shall be in Tenant or Landlord; or (d) upon this transaction or
any document to which Tenant is a party creating or transferring an interest
or an estate in the Premises. If it is unlawful for Tenant to so reimburse
Landlord, the Minimum Rent payable to Landlord under this Lease shall be
increased so that the Minimum Rent and all of the tax so imposed, shall be
equal to the Minimum Rent payable before such tax was imposed.
(b) PROPERTY TAXES. Landlord shall pay the real property taxes and
assessments for the Premises, if any.
5. USE.
(a) Except during the Off-Season, the Premises shall be used
solely and exclusively for the purpose of producing and operating a
renaissance-theme fair under the name of "The Renaissance Pleasure Faire" and
other related educational programs, operated in the manner of past Renaissance
Pleasure Faires (the "Renaissance Faire"). Tenant agrees that it shall produce
and operate from the Premises a renaissance-theme fair under the name "The
Renaissance Pleasure Faire" in the manner of and during the same days and hours
of operation as set forth in the conditions of approval issued November 13,
2000. Tenant agrees that all of its advertising and publicity program materials
shall identify that the Renaissance Faire is being held at "The Nut Tree".
Tenant shall not use or permit the Premises to be used for any other purpose or
under any other name without Landlord's prior written consent, which may be
granted or withheld at Landlord's sole discretion. Tenant agrees that during the
Off-Season Tenant is not allowed to use or occupy any portion of the Premises
except for a storage area and that certain area to be used by a caretakers, both
as set forth in the Conditions of Approval dated on or about November 13, 2000
(the "Conditions of Approval"), and except for providing for the maintenance and
up-keep provided for in section 5(b)(iii), below.
(b) Tenant:
(i) shall carry on the business of producing the
Renaissance Faire diligently and continually in the Premises throughout the Term
and shall cause such business to be conducted in the Premises during such hours
as the Renaissance Faire has typically operated in the State of California for
the past three (3) years. Tenant shall operate the Renaissance Faire in the
specified areas of the Premises set forth on the site plan attached hereto as
EXHIBIT A. Tenant shall not operate the Renaissance Faire in any area outside of
the specified areas as shown on the site plan, nor allow any of the Renaissance
Faire activities or employees, customers, invitees, vendors or agents to enter
onto or conduct any activity whatsoever in any area outside of such specified
areas.
(ii) may, from November 29, 2000 through the
termination of this Lease, maintain temporary structures and use portions of the
premises for storage purposes as set forth
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in the Conditions of Approval.
(iii) agrees that at all times during the Term of
this Agreement (including nights, weekends and holidays), an officer or employee
of Tenant shall be located on the Premises, shall make periodic inspections of
the Premises and shall immediately report to Landlord or the police, if
appropriate, if such person notices any theft, vandalism, loitering, broken
utility lines or other damage occurring or located on the Premises. The officer
or employee remaining on the Premises shall also be responsible for landscape
up-keep, including, but not limited to, weed abatement to prevent fire hazards,
litter pick-up, and maintenance of shrubs in a neat, orderly and safe condition.
Tenant and its officer or employee remaining on the Premises shall fully
cooperate with City's Code Compliance Technicians in maintaining the Premises in
a manner so as not to create a nuisance or violate the Vacaville Municipal Code.
Any reports to Landlord shall be made by contacting Dee Gilliland, at (707)
449-5660, and by faxing written notice to Landlord at its facsimile number set
forth in the Lease. Tenant shall not use any portion of the Premises for the
purpose of operating a Renaissance Faire, haunted house or for any other
activity, except for the general maintenance and up-keep provisions, above,
during the Off-Season. At the discretion of Landlord, a home, currently existing
on the Premises, may be used solely by officers or employees of Tenant for
residential purposes in furtherance of Tenant's monitoring obligations under
this Agreement.
(iv) shall not make any alterations, additions or
improvements to the Premises, Storage Area or the Homes. On or prior to November
30, 2000, at Tenant's sole cost and expense, Tenant shall (i) remove from the
Premises any signage or other advertising or promotional material for the
Renaissance Faire or any other activity conducted at the Premises by Tenant
under any previous Lease, and patch and repair any damage caused by or resulting
from Tenant's removal of such signage and material, (ii) remove all Tenant
Property from the Vacated Premises, repair any damage resulting from such
removal and otherwise leave the Vacated Premises in the condition required under
the prior Lease, and (iii) surrender possession of the Vacated Premises. If
Tenant fails to comply with these obligations, and without waiving or limiting
any other remedy available, Landlord may enter upon any portion of the Premises
and remove the same at Tenant's expense. Tenant shall not install any signage or
other advertising or promotional material on any part of the Premises during the
Off-Season."
(c) Provided that the same is in compliance with all
applicable laws, rules, regulations and conditions of approval, Tenant may
install its standard signage and advertising material for the Renaissance Faire
at or upon the Premises, no sooner than August 1, 2001. Upon request of
Landlord, Tenant shall immediately remove any sign, advertising material or
lettering which Tenant has placed or permitted to be placed in, on or about the
Premises that Landlord, in the reasonable exercise of its business judgment,
finds objectionable or offensive, and if Tenant fails to do so, Landlord may
enter upon the Premises and remove the same at Tenant's expense. At the
expiration or earlier termination of the Lease, Tenant shall, at its sole cost
and expense, remove its exterior signs and patch and repair any damage caused by
or resulting from Tenant's installation and removal of such signs.
(d) Tenant shall not do or permit to be done in, on or about
the Premises, nor bring or keep or permit to be brought or kept therein,
anything which is prohibited by or will in any way conflict with any law,
statute, ordinance or governmental rule or regulation now in force
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or which may hereafter be enacted or promulgated, or which is prohibited by
the standard form of fire insurance policy or will in any way increase the
existing rate of or affect any fire or other insurance upon the Premises or
any of its contents, or cause a cancellation of any insurance policy covering
the Premises or any part of the Premises or any of its contents without
Landlord's consent which may be withheld by Landlord in its sole discretion.
(e) Except for propane, paints, solvents, batteries and other
chemicals traditionally used in restaurants, carpentry, plumbing, electrical and
maintenance shops and other work areas traditionally operated at past
Renaissance Faires, Tenant shall not use, store, dispose, release, discharge,
transport or generate (collectively "USE OF HAZARDOUS SUBSTANCES") any Hazardous
Substances (as defined below), in, on, to, under, from or about the Premises
without Landlord's prior written consent, which consent may be granted,
conditioned or withheld in Landlord's sole and absolute discretion. Tenant
warrants and agrees that if Landlord grants its consent to Tenant's Use of
Hazardous Substances (including the Hazardous Materials consented to in the
preceding sentence), such Use of Hazardous Substances shall be conducted in
strict accordance with all Environmental Laws (as defined below) and prudent
business practices. Any consent or approval by Landlord of Tenant's Use of
Hazardous Substances shall not constitute an assumption of risk respecting the
same nor a warranty or certification by Landlord that Tenant's proposed Use of
Hazardous Substances is safe or reasonable or in compliance with Environmental
Laws. Tenant shall maintain current all permits required for its operations,
including, without limitation, those for the Use of Hazardous Substances. Tenant
shall keep and maintain the Premises in compliance with all, and shall not cause
or permit the Premises and the activities conducted thereon by Tenant to be in
violation of any, Environmental Laws. Tenant shall not undertake any remedial
action with respect to any release of Hazardous Substances or to comply with any
violation of any Environmental Law without obtaining the prior written consent
of Landlord. If Tenant's use of Hazardous Substances results in an increase in
the premiums of any insurance that Landlord currently carries for the Premises,
then Tenant shall pay the amount of such increased premiums. Additionally,
Landlord may require that Tenant procure, at Tenant's sole cost and expense,
additional insurance that specifically covers loss or damage to persons or
property that may result from Tenant's use of such Hazardous Substances.
(i) Tenant shall indemnify, defend (by counsel
reasonably acceptable to the indemnified party), protect and hold Landlord and
City harmless from and against any and all claims, liabilities, penalties,
forfeitures, losses or expenses (including, without limitation, attorneys' fees
and costs and court costs) or death of or injury to any person or damage to any
property whatsoever, arising from or caused in whole or in part, directly or
indirectly, by Tenant's Use of Hazardous Substances to, in, on, under, about or
from the Premises or Tenant's failure to comply with any Environmental Law.
Notwithstanding anything to the contrary contained in the preceding sentence, if
a final, binding judicial, administrative or arbitration determination is made
whereby Tenant's Use of Hazardous Substances or Tenant's failure to comply with
any Environmental Law is deemed to be only partially responsible or accountable
for any claims or other losses and liability covered by this Paragraph 5(e)(i),
then Tenant's indemnity obligations under this Paragraph 5(e)(i) shall only
apply to the extent Tenant is deemed responsible or accountable. For purposes of
the indemnity provisions hereof, any acts or omissions of Tenant, or by
employees, agents, assignees, contractors or subcontractors of Tenant or others
for whose acts Tenant is legally responsible or liable (whether or not they are
negligent, intentional, willful or unlawful) shall be strictly attributable to
Tenant. This indemnification shall include without
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limitation (a) personal injury claims, (b) the payment of liens, (c)
diminution in the value of the Premises, (d) damages for the loss or
restriction on use of the Premises, (e) sums paid in settlement of claims,
(f) reasonable attorneys' fees and costs, consulting fees and costs and
expert fees and costs, (g) the cost of any investigation of site conditions,
and (h) the cost of any repair, clean-up, health or other environmental
assessments, remedial, closure, removal or restoration work, decontamination
or detoxification if required by any governmental or quasi-governmental
agency or body having jurisdiction or deemed necessary in Landlord's
reasonable judgment. The indemnification contained herein shall survive the
expiration or earlier termination of this Lease.
(ii) As used in this Lease, the term "HAZARDOUS
SUBSTANCES" shall mean hazardous wastes, hazardous chemicals, biological and/or
medical waste, flammable or explosive materials, radioactive materials, toxic
materials or related materials (whether potentially injurious to persons or
property and whether potentially injurious by themselves or in combination with
other materials), including, but not limited to, petroleum products or fractions
thereof and any waste, chemical, substance or material now or hereafter
determined by any federal, state or local governmental agency or authority
having jurisdiction to be hazardous to human health or the environment or which
is or becomes regulated by such agency or authority (including, but not limited
to, those materials listed in the United States Department of Transportation
Hazardous Materials Table as amended from time to time), which were released to
the environment, including, without limitation, the soil, groundwater and/or
air, at the Premises. As used in this Lease, the term "ENVIRONMENTAL LAWS" shall
mean any and all present and future federal, state and local laws (whether under
common law, statute, rule, regulation or otherwise), requirements under permits
issued with respect thereto, and other requirements of governmental authorities
relating to the environment or to any Hazardous Substance (including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980), as heretofore or hereafter amended from time to time.
(iii) Landlord and Tenant shall immediately advise
the other in writing of, and provide the other with a copy of: (1) any notices
of violation or potential or alleged violation of any Environmental Law which
are received by either of them from any governmental agency; (2) any and all
inquiry, investigation, enforcement, clean-up, removal or other governmental or
regulatory actions instituted or threatened relating to either of them or the
Premises; and (3) all claims made or threatened by any third party against
either of them or the Premises relating to any Hazardous Substances.
(f) Tenant agrees that in connection with the use and
operation of the Premises, Tenant will not (i) create, cause, maintain or permit
any nuisance in or about the Premises; (ii) do or permit anything to be done in
or about the Premises which will in any way obstruct or interfere with the
rights of property owners and/or tenants adjoining the Premises, or injure or
annoy them; (iii) commit or suffer to be committed any waste in, on or about the
Premises; (iv) use or allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose or for any purpose which violates the terms of
any recorded instrument affecting the Premises; (v) cause or permit obnoxious
odors to emanate or be dispelled from the Premises; or (vi) permit undue
accumulations of garbage, trash, rubbish or any other refuse. If Tenant hires or
uses private security personnel for the Premises, such security personnel shall
not engage in any security activities outside of the Premises and Tenant shall
indemnify, protect and hold Landlord harmless from and defend (by counsel
reasonably acceptable to the indemnified
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party) Landlord against any and all claims, causes of action, liability,
damage, loss or expense (including reasonable consultant and expert witness
fees, attorneys' fees and costs and court costs) arising out of or related to
any activities of such security personnel. This indemnity shall survive the
expiration or earlier termination of the Lease.
(g) Tenant acknowledges that neither Landlord nor City nor any
officer, official, employee or agent of Landlord or City has made any
representations, warranties or covenants to Tenant about (i) the suitability of
the Premises with respect to Tenant's intended use of the Premises, (ii) the
need for, or lack of, any safety or security measures, or (iii) the
profitability of the location for Tenant's intended use of the Premises. Tenant
further acknowledges that Landlord and City make no representation or warranty
as to the condition of the Buildings or any improvements located at the
Premises, and makes no representation or warranty as to the presence or release
of Hazardous Materials in, under or about the Premises.
6. ABANDONMENT. Tenant shall not vacate or abandon the Premises
at any time during the Term. If Tenant shall abandon, vacate or surrender the
Premises, or be dispossessed by process of law or otherwise, any personal
property belonging to Tenant and left on the Premises shall be deemed to be
abandoned, at the option of Landlord, except such property as may be mortgaged
to Landlord.
7. SERVICES AND UTILITIES.
(a) Tenant shall maintain, repair, replace and otherwise keep
the mains and conduits located within the boundaries of the Premises that bring
water, gas, sewerage disposal, electricity and telephone service to the Premises
and to any Building, as well as all meters and submeters for such utilities, in
the same condition as existing on the commencement of the Term, subject only to
alterations, additions and improvements approved in writing by Landlord as
provided in this Lease. Tenant shall bear all of the costs of water, gas,
electricity, sewage and any other utility services to the Premises, as well as
the required meters for such services. Tenant agrees that it shall, on the Lease
Commencement Date and throughout the Term, open an account in its name with the
utility providers for all utilities to be used by it on the Premises and pay all
connection fees, deposits and other fees and charges required by the applicable
utility providers as a condition to opening Tenant's accounts. Landlord does not
have to allow Tenant access to the Premises until all such utility accounts have
been opened and all such connection fees, deposits and other fees and charges
have been paid by Tenant.
(b) Landlord shall not be obligated to furnish any utilities
or services to the Premises, and Landlord does not make any warranty or
representation as to the quantity, quality, availability, amount of duration of
any such utilities or services. Tenant acknowledges that it has inspected the
Premises and the capacity, condition and locations of all utilities, utility
conduits and utility stubs, and agrees that they are adequate for Tenant's use.
Tenant agrees that it shall pay when due all charges for utilities used by it on
and after the Lease Commencement Date. Tenant agrees at all times to cooperate
fully with Landlord and to abide by all the regulations and requirements which
Landlord may prescribe for the proper functioning and protection of the
utilities systems. Tenant agrees that it shall, at its sole cost and expense,
contract with the local utility service providers (including, but not limited
to, the providers of water, sewer, gas, electricity and phone service) for the
provision of those services as needed by Tenant.
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(c) Landlord shall not be liable to Tenant in damages or
otherwise if: (i) any utility shall be or become unavailable from any public
utility company, public authority or any other person or entity (including
Landlord) supplying or distributing such utility, or (ii) any interruption in
any utility service caused by the making of any repairs or improvements or by
any cause beyond Landlord's reasonable control. Notwithstanding the foregoing,
if any utility shall be or becomes unavailable as described in the preceding
clauses (i) and (ii) and the absence of such utility materially impairs Tenant's
ability to conduct the Renaissance Faire in substantially the same manner as
past Renaissance Faires, then Tenant shall be entitled to terminate this Lease
by providing written notice thereof to Landlord. Upon any such termination by
Tenant, Tenant shall only be obligated to pay Minimum Rent through the
termination date, prorated based on the number of scheduled event days for the
Renaissance Faire and the number of actual event days that have occurred up
through the date of termination.
(d) Tenant shall, at its sole cost and expense, contract with
the local sanitation company to provide Tenant with trash removal service for
trash generated by Tenant. Tenant shall either rent from the local sanitation
company or purchase a trash dumpster, to be placed in a location designated by
Landlord. Tenant shall place all trash generated by Tenant's use of the Premises
in this trash dumpster and shall have such trash emptied from the Premises as
often as reasonably necessary to keep the area surrounding its trash dumpster in
a neat and sanitary condition. Tenant shall, at its sole cost and expense,
regularly clean the area surrounding its trash dumpster and shall otherwise keep
this area in a neat and sanitary condition.
8. ALTERATIONS AND IMPROVEMENTS.
(a) Tenant may not make any alterations or improvements to any
existing buildings, or cut any trees, shrubs or any other existing foliage at,
or install or create any paths or roads on, the Premises without first obtaining
Landlord's prior written consent and any consent required from all applicable
governmental agencies including, but not limited to, City. Notwithstanding the
foregoing, once Tenant has obtained its planned development permit and all
appeals periods have expired, Tenant may construct such structures on the
Premises as it traditionally has constructed in connection with the operation of
past Renaissance Faires. Any alterations and improvements made by Tenant to the
Premises pursuant to this Section 8(a), shall be subject to all the other
provisions of this Paragraph 8.
(b) If Tenant makes any alterations, additions or improvements
to the Premises, then any and all work done by Tenant:
(i) shall be done at Tenant's sole expense and in
such manner as not to disturb adjoining property owners and their tenants;
(ii) shall comply with all applicable laws, rules,
orders, permits, authorizations, and governmental requirements and orders, as
well as rules and regulations of the National Board of Fire Underwriters, the
Board of Fire Underwriters responsible for the geographic area in which the
Premises are located and other bodies hereafter exercising similar functions;
and
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(iii) shall be made promptly and in a good
workmanlike manner using prime quality materials.
Tenant shall promptly correct any work not conforming to the provisions of this
paragraph or to any plans, specifications, permits, or other documents required
by this paragraph to be obtained by Tenant and shall promptly repair any damage
caused by such nonconforming work.
Additionally, Tenant shall provide Landlord with at least five (5) business
days' prior written notice of any work to be performed in the Premises.
(c) Prior to commencing any work in the Premises (other than
work for which Landlord's consent is not required under subparagraph 8(a)
above), Tenant shall procure (at its sole cost and expense), furnish to Landlord
and obtain Landlord's prior written consent for:
(i) Plans and specifications of such proposed
alterations, additions and improvements;
(ii) A certificate evidencing that Tenant or Tenant's
contractor has procured and paid for workers' compensation insurance covering
all persons employed in connection with the work;
(iii) Such additional personal injury and property
damage insurance (over and above any insurance required to be carried by Tenant
pursuant to the provisions of Paragraph 13 of this Lease) as Landlord may
reasonably require in connection with the work and including the Landlord, City,
and any first mortgagee or beneficiary as an additional insured;
(iv) Such permits, authorizations or consents as may
be required by any applicable law, rule, order or requirement of any
governmental authority having jurisdiction thereover; and
(d) If Tenant fails to comply with any provision of this
Paragraph, Landlord, in addition to any other remedy herein provided, may
require Tenant to cease all work being performed by or on behalf of Tenant and
Landlord may deny access to the Premises to any person performing work in or
supplying materials to the Premises.
(e) During the Term, all improvements, alterations and
additions (including fixtures) installed in or made to the Premises by Tenant
after the Lease Commencement Date ("TENANT ADDITIONS") shall be the property of
Tenant. As of the expiration of the Term or earlier termination of this Lease,
Tenant shall have removed all Tenant Additions and restored the Premises to the
condition it was in before Tenant entered onto the Premises under a prior lease
between Tenant and TKG Nut Tree, LLC, dated on or about June 14, 1999
(hereinafter the "Prior Lease"), (including removal of all of Tenant's trade
fixtures, equipment, personal property and exterior signage). Tenant shall, at
its sole cost, immediately repair any damage to the Premises caused by its
removal of Tenant Alterations and other property.
(f) Tenant shall, at its sole cost and expense, immediately
following the Lease Commencement Date fence off the Protected Areas and post
signs on the fences stating that no
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one is to enter the Protected Areas. Tenant shall ensure during the Term that
neither its activities nor the activities of its employees, workers,
contractors, agents, Visitors, invitees and licensees shall cause any damage
to the Protected Areas.
9. LIENS. Tenant shall keep the Premises free from any liens
arising out of any work performed, materials furnished or obligations incurred
by Tenant. If Tenant desires, in good faith, to contest the validity of any such
lien, it may do so by an appropriate proceeding after first depositing with
Landlord, within five (5) days after the filing of the lien, security in the
form of a cash deposit or surety bond in an amount which, in Landlord's sole
judgment, is sufficient to insure the payment and discharge of such lien,
together with attorneys' fees and interest and penalties thereon. If Tenant does
not, within five (5) days following the imposition of any such lien, cause the
same to be released of record, or deposit such security, Landlord shall have, in
addition to all other remedies provided in this Lease and by law, the right but
not the obligation to cause the same to be released by such means as it shall
deem proper, including payment of the claim giving rise to such lien. All sums
paid by Landlord for such purpose and all expenses incurred by it in connection
therewith, shall be payable to Landlord by Tenant on demand. Landlord shall have
the right to post and keep posted on the Premises any notices that may be
provided by law or which Landlord may deem to be proper for the protection of
Landlord and the Premises from such liens, and Tenant shall give Landlord at
least ten (10) days prior written notice of the date of commencement of any
construction on the Premises in order to permit the posting of such notices.
10. REPAIR AND MAINTENANCE OF THE PREMISES.
(a) Tenant shall, at all times during the Term and at Tenant's
sole cost and expense, keep the Premises, the Buildings, all improvements,
fixtures and equipment, trees, shrubs and any other foliage in the condition
existing as of the date immediately prior to Tenant's entry onto the Premises
under the Prior Lease (the "Initial Entry Date"), ordinary wear and tear and
alterations, additions and improvements approved in writing by Landlord
excepted. Tenant hereby waives all rights to make repairs at the expense of
Landlord or in lieu of making repairs to vacate the Premises as provided in
California Civil Code Section 1942 or any other law, statute or ordinance now or
hereafter in effect.
(b) Tenant shall provide its own janitorial service for the
Premises at Tenant's sole cost and expense.
(c) Tenant shall at the end of the Term or the earlier
termination of this Lease surrender to Landlord the Premises in the same
condition as when received on the Initial Entry Date, ordinary wear and tear
excepted. If the Premises, as of the end of the Term or earlier termination of
this Lease, remains damaged due to the occurrence of a casualty, Tenant shall
assign all of its rights and interest in and to all insurance proceeds that are
or become available as compensation for damage to Tenant Additions that were to
have remained in the Premises. "Ordinary wear and tear" shall not, however,
include any deterioration of or damage to the Premises and the alterations,
additions and improvements thereto that would have been avoided or lessened if
Tenant had fulfilled its maintenance and repair obligations under this Lease and
under the Prior Lease. If Tenant fails to leave the Premises in the condition
required under this Lease at the end of the Term or earlier termination of this
Lease and thereafter fails to restore the
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Premises to such condition within 30 days after delivery of written notice of
such failure from Landlord, then Tenant shall immediately forfeit the entire
unapplied portion of the Security Deposit and the Clean-up Deposit. Tenant
shall have a right of entry onto the Premises during such 30 day period, on
all of the terms and conditions of this Lease (excluding the obligation to
pay Minimum Rent), solely to restore the Premises to the condition required
under this Lease at the end of the Term or earlier termination of this Lease.
Landlord's retention of the Security Deposit shall not relieve Tenant of its
liability to Landlord for Tenant's failure to leave the Premises in the
condition required under this Lease at the end of the Term or earlier
termination of the Lease.
(c) Tenant further agrees that all equipment, trade fixtures,
inventory and other personal property of Tenant that remain in the Premises at
the expiration of the Term or earlier termination of the Lease ("PERSONAL
PROPERTY") shall be deemed abandoned by Tenant and shall immediately become the
property of Landlord, without compensation to Tenant, and Landlord shall be
free, as it determines in its sole discretion, to store, move, sell or otherwise
dispose of the Personal Property. Tenant hereby waives any and all of its
rights, and relieves Landlord of all of Landlord's obligations, with respect to
such Personal Property created under California Civil Code Sections 1980 ET.
SEQ. Without limiting the foregoing, Tenant acknowledges that Landlord need not
store or exercise any duty of care with respect to the Personal Property, nor
shall Landlord be obligated to provide any notice to Tenant or publish any
notice with respect to any sale of the Personal Property.
(d) Landlord has no obligation and has made no promises to
alter, remodel, improve or repair the Premises or any part of the Premises and
no representations respecting the condition of the Premises have been made by
Landlord or any prior Landlord, to Tenant.
11. DESTRUCTION OR DAMAGE.
(a) If the Premises, or any part thereof, are damaged by fire,
earthquake, act of God, the elements or other casualty, unless the Lease is
otherwise terminated pursuant to the provisions of this Paragraph 11, Landlord
may elect to restore the Premises. Upon such election, Landlord shall so notify
Tenant, this Lease shall remain in full force and effect, and to the extent
Tenant's use and occupancy of the Premises is materially impaired as a result of
such casualty, Minimum Rent shall be proportionally abated, to an extent
determined by Landlord in its reasonable business judgment, until that date that
Landlord substantially completes its restoration of the Premises. If Landlord
elects not to restore the Premises, Landlord shall so notify Tenant, this Lease
shall immediately terminate and Landlord shall have no further obligations or
liabilities to Tenant, including any liability for lost profits or any actual or
perceived injuries to Tenant or Tenant's business. Tenant hereby releases the
Landlord Parties from any claims regarding such liabilities or obligations to
Tenant if Landlord elects not to restore the Premises pursuant to this Paragraph
11(a).
(b) Tenant waives California Civil Code Sections 1932(2) and
1933(4) providing for termination of hiring upon destruction of the thing hired.
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12. RELEASE AND INDEMNIFICATION.
(a) Neither Landlord nor City shall not be liable to Tenant
and Tenant hereby waives all claims and causes of action against Landlord and
City for any injury to or death of any person or damage to or destruction of
property in or about the Premises, or any civil rights violations by or from any
cause whatsoever, except to the extent resulting from the willful misconduct or
sole negligence of Landlord or City (in which case this waiver shall not apply
only as to Landlord or City).
(b) Tenant acknowledges and understands that it is entering
into this lease following acquisition of the premises by the Vacaville
Redevelopment Agency. The Vacaville Redevelopment Agency acquired the property
with the intent of marketing the property and re-selling it. Tenant acknowledges
and agrees and to the extent allowed by law, hereby waives and releases Landlord
and City from any and all claims for relocation benefits should (i) this lease
be terminated early in the Event of Default; (ii) phase 1 of the Premises as set
forth in the Conditions of Approval be unavailable for the 2001 Faire event as a
result of anticipated development (in this case, the Faire event may still be
conducted on the remainder of the Premises, however, phase 1 of the Premises
shall not be subject to this lease or available for the Faire event or any
associated activities or uses); or (iii) the lease not be renewed by Landlord as
a result of marketing, development or sale of the property or for any other
reason.
(c) Tenant shall indemnify, protect and hold Landlord and City
harmless from and defend (by counsel reasonably acceptable to the indemnified
party) Landlord and City against any and all claims, causes of action,
liability, damage, loss or expense (including reasonable attorneys' fees and
costs and court costs), statutory or otherwise arising out of or incurred in
connection with (i) the use and occupancy of the Premises by Tenant, or any
person claiming through Tenant or the presence of Visitors at the Premises, (ii)
any activity, work or thing done or permitted or suffered by Tenant in or about
the Premises, (iii) any acts, omissions or negligence of Tenant, any person
claiming through Tenant, or the contractors, agents, employees, invitees, or
visitors of Tenant or any such person ("TENANT PARTY" or "TENANT PARTIES"), (iv)
any breach, violation or nonperformance by any Tenant Party of any provision of
this Lease or of any law, ordinance, rule or other governmental regulation of
any kind, (v) except to the extent resulting from the willful misconduct or sole
negligence of an Indemnified Party (in which case this indemnity shall not apply
only as to such Indemnified Party), any injury to or damage to the person,
property or business of any Tenant Party, or (vi) any claim by Tenant or any of
its affiliates or any other third party for relocation benefits.
(d) The foregoing indemnity obligations of the parties shall
include reasonable consultant and expert witness fees, attorneys' fees,
investigation costs and all other reasonable costs and expenses incurred by
reason of any of the foregoing. The provisions of this Paragraph 12 shall
survive the expiration or earlier termination of this Lease with respect to any
damage, injury or death occurring prior to such expiration or termination.
13. INSURANCE.
(a) At all times Tenant shall, at its sole expense, procure
and maintain the following insurance coverage:
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(i) Tenant, at its expense, shall maintain commercial
general liability insurance in the following amounts and with the coverages:
$1,000,000 per occurrence and $2,000,000 in the aggregate. Such commercial
general liability insurance shall protect and indemnify Landlord, City and
Tenant against any and all claims and liabilities for injury or damage to
persons or property or for the loss of life or of property occurring in or about
the Premises, and for injury or damage to persons or property or for the loss of
life or of property occurring upon, in or about the Premises and caused by or
resulting from any act or omission of Tenant, its employees, agents,
contractors, customers, guests, licensees or invitees. Such insurance shall
specifically insure the performance by Tenant of its indemnity obligations under
Paragraph 12 above, shall be on an occurrence basis and shall contain a
cross-liability endorsement.
(ii) Employer's liability insurance and worker's
compensation insurance, as required by applicable law;
(iii) If Tenant sells or dispenses alcoholic beverages,
standard liquor liability insurance; and
(iv) An umbrella policy of not less than $5,000,000.
(b) The insurance required under this Paragraph 13 and all
renewals thereof shall be effected under valid and enforceable policies and
shall be issued by such good and responsible companies qualified to do and doing
business in the State of California rated overall an "A" and XII, or better, in
the most recent edition of Best's Insurance Reports. Each policy shall expressly
provide that the policy shall not be canceled or altered in such manner as to
adversely affect the coverage afforded thereby without thirty (30) days prior
written notice to Landlord and City. All insurance carried by Tenant under this
Lease shall expressly provide that it shall be primary and non-contributing with
any insurance that may be carried by Landlord or City. The commercial general
liability and liquor liability insurance shall name the following parties as
additional insureds (collectively, the "ADDITIONAL INSUREDS"): (1) Landlord, and
(2) City.
(c) A certificate evidencing each policy of insurance required
to be carried under this Paragraph 13, with evidence of payment, shall be
delivered to Landlord for retention by Landlord at least ten (10) days prior to
the Lease Commencement Date or the expiration date of any policy, and a complete
copy of each such insurance policy shall be delivered to such parties as soon as
practicable thereafter. If Tenant fails to insure or shall fail to furnish to
such parties any such policy or duplicate policy as required by this Paragraph
13, Landlord may from time to time effect such insurance for the benefit of
Tenant for the Term, and any premium paid by Landlord shall be recoverable from
Tenant as Additional Rent on demand by Landlord.
(d) Tenant's obligation to procure and maintain the insurance
required by this Lease may be satisfied by obtaining coverage under a so-called
blanket policy or policies of insurance carried and maintained by Tenant
provided that the coverage afforded Landlord will not be reduced or be
diminished by reason of the use of such blanket policy of insurance and provided
further that the other applicable requirements of this Paragraph 13 are
satisfied.
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(e) This clause is intentionally omitted
(f) Landlord reserves the right to increase the limits and/or
change the terms of coverage required to be carried by Landlord and/or Tenant
under this Lease if such limits and/or terms of coverage are below or different
from those carried or required to be carried by prudent operators of other fairs
located in Solano County, California.
14. COMPLIANCE WITH LEGAL REQUIREMENTS. Tenant shall, at its sole
cost and expense, promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force ("LAWS"), with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted, with any
direction or occupancy certificate issued pursuant to any law by any public
officer or officers, as well as the provisions of all recorded documents
affecting the Premises, insofar as they relate to or affect the use or
occupancy of the Premises or any elements of the Premises, including the
structural elements and building systems of any Building. Tenant shall
promptly provide Landlord with a copy of any notices or demands whereby any
party alleges that Tenant's use or occupancy of the Premises is in violation
of any such laws, statutes, ordinances, or governmental rules, regulations or
requirements. Tenant shall indemnify, defend (by counsel reasonably
acceptable to the Landlord) and hold harmless Landlord and City from all
claims, causes of action, liabilities, penalties, fines, damages, losses or
expenses (including reasonable attorneys' fees, consultant and expert witness
fees and costs and court costs) threatened against or incurred by Landlord or
City as a result of Tenant's failure to comply with this Paragraph 14. This
indemnity obligation shall survive the expiration or earlier termination of
this Lease.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not transfer, assign
(by operation of law or otherwise), sublet, enter into license agreements, or
hypothecate this Lease or the Tenant's interest in and to the Premises or any
part thereof or permit the use of the Premises or any part thereof by any
party other than the Tenant. Tenant shall be entitled to enter into
concession agreements for the Premises with concessionaires who have
traditionally provided services at past Renaissance Faires.
16. INSPECTIONS. Landlord may enter the Premises at reasonable
times during regular business hours of Tenant to: (a) inspect the Premises;
(b) determine whether Tenant is complying with all its obligations under this
Lease; (c) supply any service to be provided by Landlord to Tenant under this
Lease; (d) post notices of non-responsibility; (e) make repairs required of
Tenant under the terms of this Lease, and may enter the Premises at any time
to make emergency repairs, provided, however, that all such work shall be
done as promptly as reasonably possible and so as to cause as little
interference to Tenant's business as reasonably possible; and (f) to promote
or market the property to prospective buyers. Tenant hereby waives, subject
to the limitations of Paragraph 12 above, if any, any claim for damages for
any injury or inconvenience to or interference with Tenant's business or any
loss of occupancy or quiet enjoyment of the Premises by reason of any such
entry and activity on the Premises, except that the foregoing waiver shall
not apply to the gross negligence or willful misconduct of Landlord.
17. DEFAULT. Tenant shall be deemed to be in default under this
Lease upon the occurrence of any of the following events ("EVENT OF
DEFAULT"): (a) Tenant fails to pay any Rent when and as the same becomes due
and payable; (b) Tenant fails to pay any other sum owing
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under this Lease, including, but not limited to amounts due and owing, or to
be billed, for services provided by CITY during the 2000 Renaissance Faire
season, when and as the same becomes due and payable and such failure shall
continue for more than five (5) days after written notice that such payment
was not received when due; (c) Tenant fails to observe, keep or perform any
of the other terms, covenants, agreements or conditions contained in this
Lease and on the part of Tenant to be observed or performed and such default
continues for a period of thirty (30) days after written notice by Landlord
and Tenant shall not within said period commence with due diligence the
curing of such default or, having so commenced, shall thereafter fail or
neglect with due diligence to complete the curing of such default or shall
not, in all events, complete the curing of such default within ninety (90)
days after the original default notice to Tenant; (d) Tenant files a petition
for bankruptcy or become insolvent or make a transfer in fraud of creditors,
or make an assignment for the benefit of creditors, or commence or there is
commenced against Tenant any proceedings of any kind under any provision of
the United States Bankruptcy Code or under any other insolvency, bankruptcy
or reorganization act and, if any such proceedings are involuntary, Tenant is
not discharged from the same within ninety (90) days thereafter; (e) a
receiver is appointed for a substantial part of the assets of Tenant and is
not dismissed or discharged within ninety (90) days; (f) Tenant vacates or
abandons the Premises; (g) this Lease or any estate of Tenant hereunder shall
be levied upon by any attachment or execution which is not discharged or
bonded against within thirty (30) days; or (h) there are more than two Events
of Default during the Term (Tenant acknowledging that a violation of this
clause (h) is not subject to cure by Tenant and that Landlord shall be
immediately entitled to exercise all rights and remedies available to it).
Tenant shall not have any cure period under this Lease if it fails to timely
deliver an estoppel certificate or a subordination agreement as provided in
Paragraphs 22 and 25 below.
18. REMEDIES UPON DEFAULT. Upon the occurrence of any Event of
Default, Landlord may, at its option and without any further notice or demand,
in addition to any other rights and remedies given under this Lease or by law,
do any of the following:
(a) Landlord shall have the right, so long as such Event of
Default continues, to give written notice of termination to Tenant, and on the
date specified in such notice (which shall not be less than three (3) days after
the giving of such notice) this Lease shall terminate.
(i) If there is any such termination of this Lease,
Landlord may then or at any time thereafter, re-enter the Premises and remove
therefrom all persons and property and regain, repossess and enjoy the Premises,
without prejudice to any other remedies that Landlord may have by reason of an
Event of Default or of such termination.
(ii) If there is any such termination of this Lease,
Landlord may recover damages as provided in Section 1951.2 of the California
Civil Code. The amount of damages which Landlord may recover in event of such
termination shall include, without limitation, (A) the worth at the time of
award (computed by discounting such amount at the discount rate of the Federal
Reserve Bank of San Francisco at the time of award plus one percent) of the
amount by which the unpaid rent for the balance of the term after the time of
award exceeds the amount of rental loss that Tenant proves could be reasonably
avoided, (B) all reasonable legal expenses and other related costs incurred by
Landlord following an Event of
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Default, and (C) costs incurred by Landlord in restoring the Premises to good
order and condition, or in remodeling, renovating or otherwise preparing the
Premises for reletting.
(b) In addition to any other rights and remedies Landlord may
have, Landlord shall have all of the rights and remedies of a landlord provided
by Sections 1951.4 (landlord may continue lease in effect after tenant's breach
and abandonment and recover rent as it becomes due, if tenant has right to
sublet or assign, subject only to reasonable limitations). Landlord may enter
the Premises, remove and store, at Tenant's expense, any of Tenant's personal
property, trade fixtures or equipment left in the Premises, and renovate and
sublet all or any portion of the Premises for Tenant's account on such terms and
conditions as Landlord deems advisable, which actions shall not constitute a
termination of this Lease.
(c) If Tenant abandons or surrenders the Premises or is
dispossessed by process of law or otherwise, any property of Tenant left on the
Premises shall be deemed to be abandoned but Tenant shall remain liable to
Landlord for all cost, loss, damage and expense incurred by Landlord for the
removal of such property from the Premises and for the repair of any damage to
the Premises caused by such removal.
(d) Landlord shall have the right to cause a receiver to be
appointed in any action against Tenant to take possession of the Premises and/or
to collect the rents or profits derived from the Premises. Acts of preservation
or maintenance of the Premises, efforts to relet the Premises or the appointment
of a receiver shall not constitute an election on the part of Landlord to
terminate this Lease unless written notice of such intention is given to Tenant.
19. LANDLORD'S RIGHT TO CURE DEFAULT. All covenants and agreements to
be performed by Tenant under this Lease shall be at Tenant's sole cost and
expense and without any abatement of Rent, unless otherwise specified in this
Lease. If Tenant shall fail to pay any sum of money, other than Rent, required
to be paid by Tenant pursuant to this Lease or shall fail to perform any other
act on Tenant's part to be performed under this Lease and such shall have become
an Event of Default under Paragraph 17 above, Landlord may, but shall not be
obligated so to do and without waiving or releasing Tenant from any obligations
of Tenant, make any such payment or perform any such other act on Tenant's part
to be made or performed as provided in this Lease. All sums paid by Landlord,
whether to fulfill Tenant's unfulfilled payment obligations or to perform
Tenant's unfulfilled performance obligations, and all incidental costs shall be
deemed Additional Rent hereunder and shall be payable to Landlord on demand.
20. NO MERGER. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not work a merger, and shall, at
the option of Landlord, terminate all or any existing subleases or subtenancies,
or may, at the option of Landlord, operate as assignment to it of any or all
such subleases or subtenancies.
21. HOLDING OVER. If, with the prior written consent of Landlord,
Tenant holds possession of the Premises after expiration of the Term, Tenant
shall become a tenant from month to month upon all of the terms specified in
this Lease as applicable immediately prior to expiration of such Term, except
that Minimum Rent shall be one hundred and fifty percent (150%) of that
applicable immediately prior to expiration of such Term. If Tenant holds over in
the Premises without Landlord's prior written consent, then Tenant shall be a
tenant-at-
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sufferance. Each party shall give the other not less than thirty (30) days'
notice of its intention to terminate a month to month tenancy (although a
tenancy at sufferance may be terminated immediately without written notice)
and such month to month tenancy shall terminate at the end of a calendar
month. If Landlord should terminate Tenant's holdover tenancy as provided in
this Paragraph 21 and Tenant shall fail to vacate the Premises at the
expiration of such tenancy, Tenant agrees that it shall be liable to Landlord
for all actual and consequential damages resulting from Tenant's failure to
so vacate. These damages may include, without limitation, the cost of
unlawful detainer proceedings instituted by Landlord against Tenant,
including court costs and attorneys' fees and costs, increased construction
costs to Landlord as a result of Landlord's inability to timely commence
construction of tenant improvements for a new tenant for the Premises, lost
rent that results from Landlord's inability to timely deliver the Premises to
such new tenant and damages incurred from Landlord's inability to timely
deliver the property to a new purchaser, including, but not limited to,
damages arising from interference with contract. This clause shall survive
the expiration or earlier termination of this Lease.
22. LIMITATION OF RECOVERY AGAINST LANDLORD. Tenant acknowledges and
agrees that the liability of Landlord and City under this Lease shall be limited
solely to Landlord's interest in the Premises, and any judgments rendered
against Landlord or any other Landlord Parties shall be satisfied solely out of
the proceeds of sale of Landlord's interest in the Premises. No Officer,
official, employee or agent of Landlord or City shall be named as a party in any
suit or action and no personal judgment shall lie against Landlord or City.
Tenant agrees that the foregoing covenants and limitations shall be applicable
to any obligation or liability of Landlord or City, whether expressly contained
in this Lease or imposed by statute or at common law. The foregoing provisions
are not intended to relieve Landlord or City from the performance of any of
Landlord's or City's obligations under this Lease, but only to limit the
personal liability of Landlord or City in case of recovery of a judgment against
Landlord or City.
23. NO PARTNERSHIP. It is expressly understood that Landlord or
City do not, in any way or for any purpose, become a partner of Tenant in the
conduct of its business, or otherwise, or a joint venturer or a member of a
joint enterprise with Tenant.
24. WAIVER. The waiver by any party of any term, covenant,
agreement or condition contained in this Lease shall not be deemed to be a
waiver of any subsequent breach of the same or any other term, covenant,
agreement or condition contained in this Lease, nor shall any custom or
practice which may develop between the parties in the administration of the
terms of this Lease be construed to waive or to lessen the right of Landlord
to insist upon the performance by Tenant in strict accordance with the terms
of this Lease. The subsequent acceptance of Rent or any other sum of money
under this Lease by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant, agreement or condition of
this Lease, other than the failure of Tenant to pay the particular Rent or
other sum so accepted, regardless of Landlord's knowledge of such preceding
breach at the time of acceptance of such rent or other sum.
25. NOTICES AND CONSENTS. All notices, demands, consents or approvals
which may or are required to be given by each party to the others under this
Lease shall be in writing and shall be deemed to have been fully given when
received, if personally delivered or sent by facsimile, and forty-eight (48)
hours after being deposited in the United States mail, postage prepaid, sent
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by certified or registered Mail or after being deposited with a nationally
recognized overnight courier service, and addressed to Tenant at the address
or facsimile number specified in the Basic Lease Information at the Premises,
and to Landlord at the address or facsimile number for Landlord specified in
the Basic Lease Information, or to such place as either party may from time
to time designate in a written notice to the other party.
26. COMPLETE AGREEMENT. Except to the extent this Lease is
affected by any Conditions of Approval issued by the City of Vacaville on or
about November 13, 2000, and any associated agreement with the City of
Vacville Police or Fire Departments, there are no oral agreements between
Landlord and Tenant affecting this Lease, and this Lease supersedes and
cancels any and all previous negotiations, arrangements, brochures, oral and
written agreements and understandings, if any, between Landlord and Tenant or
displayed by Landlord to Tenant with respect to the subject matter of this
Lease. There are no representations between Landlord and Tenant other than
those contained in this Lease and all reliance with respect to any
representations is solely upon the representations contained in this Lease.
27. AUTHORITY. If Tenant is a corporation, partnership, limited
liability company or other entity, each of the persons executing this Lease on
behalf of the Tenant does hereby covenant and warrant that Tenant is duly
organized and validly existing, that Tenant has and is qualified to do business
in California, that Tenant has full right and authority to enter into this Lease
and to carry out the transactions contemplated herein, and that each person
signing on behalf of Tenant is authorized to do so.
28. MISCELLANEOUS. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. If Tenant should consist of
more than one individual or entity, the obligations under this Lease imposed
upon Tenant shall be joint and several. Time is of the essence with respect to
this Lease and each and all of its provisions. This Lease may only be amended or
modified by a document signed by both Landlord and Tenant. Any purported
amendment or modification that is not contained in such a document shall be
ineffective. Submission of this instrument for examination or signature by
Tenant does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution and delivery by both Landlord
and Tenant. The terms, covenants, indemnities, agreements and conditions herein
contained, shall (i) subject to the provisions as to assignment, apply to and
bind the heirs, successors, executors, administrators and assigns of the parties
hereto, and (ii) survive the expiration or earlier termination of the Lease. If
any provision of this Lease shall be determined to be illegal or unenforceable,
such determination shall not affect any other provision of this Lease and all
such other provisions shall remain in full force and effect. This Lease shall be
governed by and interpreted and enforced in accordance with the laws of the
State of California (it being agreed that notwithstanding the resolution of any
choice of law issues under California law, this Lease shall be governed by
California law). The parties agree that all actions or proceedings arising out
of or related to this Lease shall be tried and litigated only in the California
state courts, County of Solano, and the federal courts located in California.
Tenant hereby irrevocably submits to the jurisdiction of the California state
courts located in the County of Solano and the Federal District Court of the
Northern District of California located in San Francisco with respect to such
actions or proceedings, and agrees that such courts constitute a proper venue
for any such actions and proceedings. All covenants and obligations arising out
of this Lease shall survive the expiration or earlier termination of this Lease
and shall remain
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outstanding until satisfied in full. Neither this Lease nor any memorandum of
this Lease shall be recorded.
29. BROKER'S COMMISSIONS. The parties each represent to the other
that they have not engaged a broker in connection with this transaction. Each
party agrees to indemnify, protect and defend the other against, and hold the
other harmless from, all loss, claim, expense and liability arising from any
such claim against a party by any broker or finder with whom the other party has
dealt, including without limitation, the cost of counsel fees in connection
therewith.
30. EFFECTIVENESS OF LEASE. This Lease shall not become effective,
and shall not create any rights or obligations of the parties hereto, until one
or more original counterparts hereof have been fully executed by both parties.
31. EXHIBITS. The Exhibits and Addendum, if any, attached to this
Lease are incorporated herein by this reference and made a part hereof as if
fully set forth herein.
32. BASIC LEASE INFORMATION. The Basic Lease Information is for
convenience of reference only. If there is any conflict between the terms of the
Lease and the terms set forth in the Basic Lease Information, the terms of the
Lease shall govern.
33. FINANCIAL INFORMATION. Tenant represents and warrants to
Landlord that all financial and other information that it has provided to
Landlord prior to the date of this Lease is true, correct and complete. If
Landlord should so request in connection with a proposed refinancing or sale of
the Premises, Tenant shall promptly provide Landlord with such financial
information concerning Tenant and Tenant's operations in the Premises as
Landlord shall reasonably request. Landlord agrees not to disclose such
financial information to any party other than to the prospective lenders or
purchasers and their respective accountants, attorneys and consultants, or as
otherwise required by law or by an order issued by a court with applicable
jurisdiction.
34. LANDLORD'S DEFAULT. Landlord shall be in default under this
Lease upon (a) the failure of Landlord to pay any sum owing by Landlord under
this Lease as and when due where such failure continues for ten (10) days after
receipt by Landlord of written notice that such payment was not received by
Tenant, unless Landlord is disputing in good faith the nature, propriety or
amount of such sum, or (b) the failure of Landlord to observe, keep or perform
any of the other terms, covenants, agreements or conditions contained in this
Lease on the part of Landlord to be observed or performed and such failure
continues for a period of thirty (30) days after written notice by Tenant to
Landlord or, if such failure is not reasonably susceptible to cure within thirty
(30) days, then within a reasonable period of time so long as Landlord shall
have commenced to cure such failure within such thirty (30) day period and shall
thereafter diligently pursue such cure to completion. Tenant may not exercise
any remedies available to it under this Lease, at law or in equity until
Landlord has been afforded the cure periods described in this Paragraph 34.
Tenant acknowledges that its obligations under this Lease, including its
obligations to pay Rent, are independent of Landlord's obligations under this
Lease. The failure of Landlord to perform Landlord's obligations under this
Lease shall not excuse Tenant from performing any of its obligations under this
Lease, including Tenant's obligation to pay Rent, or allow Tenant to terminate
this Lease or to vacate the Premises.
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35. NO CONSTRUCTION AGAINST PREPARER. This Lease has been reviewed
by Landlord and its professional advisors and by Tenant and its professional
advisors. Landlord, Tenant, and their separate advisors believe that this Lease
is the product of all of their efforts, that it expresses their agreement, and
that it should not be interpreted in favor of either Landlord or Tenant or
against either Landlord or Tenant merely because of their efforts in preparing
it.
36. FORCE MAJEURE. In addition to specific provisions of this
Lease, the time within which a party is to perform an obligation under this
Lease shall be extended on a day for day basis to the extent such performance is
delayed as a result of labor or supply difficulties, inclement weather, acts of
God, government regulation, additions, modifications or withdrawals of, or
delays in obtaining, governmental consents or approvals, building moratoria or
restrictions, requirements to prepare further environmental impact documents or
to conduct further environmental impact studies, or any similar cause beyond the
reasonable control or without the fault of the party invoking such extension.
Nothing contained in the foregoing sentence, however, shall excuse Tenant from
its obligation to timely pay Minimum Rent, Additional Rent or any other monetary
amounts owing under this Lease. Any party invoking an extension under this
paragraph shall immediately notify the other party in writing of the occurrence
and nature of the force majeure event and the anticipated delay resulting
therefrom.
IN WITNESS WHEREOF, the parties have executed this Lease on the
respective dates indicated below:
TENANT: RENAISSANCE ENTERTAINMENT CORPORATION,
A COLORADO CORPORATION
By: ________________________________
Name: __________________________
Its: __________________________
Dated: _____________________________
Address: 407 Montford Avenue
Mill Valley, CA 94941
Telephone: (415) 383-2164
Facsimile: (415) 383-2183
/ / /
/ / /
/ / /
/ / /
/ / /
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LANDLORD: VACAVILLE REDEVELOPMENT AGENCY
By: ___________________________________
David Van Kirk
Its: Assistant Executive Director
Dated: _________________________________
Address: 650 Merchant Street
Vacaville, CA 95688
Telephone: (707) 449-5100
Facsimile: (707) 449-5149
CITY PARTY: CITY OF VACAVILLE
By: ___________________________________
David Van Kirk
Its: Assistant City Manager
Dated: _________________________________
Address: 650 Merchant Street
Vacaville, CA 95688
Telephone: (707) 449-5100
Facsimile: (707) 449-5149
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EXHIBIT A
SITE PLAN
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