HomeMy WebLinkAboutGilroy Gardens - Purchase and Sale Agreement
PURCHASE AND SALE AGREEMENT
BETWEEN
(
CITY OF GILROY,
a charter city and municipal corporation organized under the Constitution and laws of the
State of California
as Purchaser
AND
GILROY GARDENS FAMILY THEME PARK, INC.,
a Delaware nonprofit corporation
as Seller
As of January 22, 2008
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement"), dated as of January
22,2008, is entered into by and between the CITY OF GILROY, a charter city and municipal
corporation organized under the Constitution and laws of the State of California ("Purchaser"),
and GILROY GARDENS FAMILY THEME PARK, INC., a Delaware nonprofit corporation
fonnerly known as "Bonfante Gardens, Inc." ("Seller").
BACKGROUND
A. Seller owns and operates a horticultural education and theme park known as
Gilroy Gardens (the "Gilroy Gardens Park") located in Gilroy, California.
B.
defined).
The Gilroy Gardens Park is located on a portion of the Real Property (as herein
C. The parties believe that it is in their best interests that Seller sell to Purchaser, and
Purchaser acquire from Seller, the Property (as herein defined), subject to and on the terms and
conditions of this Agreement.
D. The Real Property is encumbered by that certain Deed of Trust, Security
Agreement and Fixture Filing with Assignment of Rents and Leases made as of December 1,
2000 (the "Senior Bond Deed of Trust"), being recorded on January 11,2001 as Instrument No.
15523372, in the Official Records of the County of Santa Clara, State of California, securing
those certain City of Gilroy Senior Lien Project Revenue Bonds (Bonfante Gardens Theme Park
Project), Series 2000, issued in the initial principal amount of $27,920,000.00 (the "Senior Lien
Bonds").
E. U.S. Bank National Association is the Trustee under the Senior Lien Bond Trust
Indenture dated December 1, 2000 (the "Trust Indenture"), which pertains to the Senior Lien
Bonds (the "Bond Trustee"). .
F. At the Closing, the parties further desire to lease the Real Property (as herein
defined) to Seller, and to grant rights to Seller with respect to the use of the Personal Property
and Intangible Property (both as defined herein), pursuant to the Lease described in this
Agreement, subject to and on the terms of this Agreement.
G. Seller has agreed to amend its Bylaws to enable the Council Director, as defined
therein, to cause the dissolution of Seller when such Council Director is acting pursuant to a
resolution of the City Council of the City of Gilroy.
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AGREEMENT
1. DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement, the following terms, when
used in this Agreement (including the Exhibits attached hereto, and whether or not underscored),
shall have the following meanings:
"Accounts Receivable" means all of the rights of Seller to payments due and to become
due for items delivered and/or services relating to Gilroy Gardens Park performed prior to the
Closing Date.
"Bond Escrow Holder" means the Bond Trustee or such other escrow agent appointed as
is acceptable to Purchaser and Seller.
"Books and Records" means all books, papers and records of Seller relating to the
operation of the Gilroy Gardens Park.
"Buildings and Improvements" means all of the buildings, improvements, fixtures, and
structw:es owned by Seller and located on the land described on Exhibit A attached hereto, which
specifically excludes the 110' by 120' tent structure being leased from Sprung Instant Structures,
Inc., pursuant to a lease dated October 4, 2000, as amended on July 16, 2003, but otherwise
includes all theme park rides, horticultural gardens, landscaping, water features and other
environmental elements, theme park buildings, office, storage, training, recreational, meeting and
other buildings, improvements, fixtures and structures, together with all guaranties and
warranties; all drawings, plans, specifications (including as-builts), project manuals and the like
relating to the Property.
"Closing" means the closing of the purchase of the Property as described in Section 2.7.
"Closing. Date" shall have the meaning set forth in Section 2.7.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Equipment Leases" means those leases now or hereafter in effect pursuant to which
assets used in connection with the Gilroy Gardens Park are leased by Seller from others.
"Excluded Property" shall have the meaning set forth in Section 2.2.
"Gilroy Gardens Park" shall have the meaning set forth in the Recitals to this Agreement.
"Immediately Available Funds" means electronic wire transfer to an account or accounts
designated by the payee.
"Intangible Property" means the following intangible assets and rights of Seller relating
directly to the Gilroy Gardens Park: all indemnities, claims, third-party guaranties and
warranties, all reports, test results, appraisals, maps and surveys relating to the Property,
trademarks, trade names, trade dress, and domain names.
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"Intangibles Assignment" means the Assignment of Intangible Property described tn
Section 2.7.2.3.
"Inventorv" means all inventory owned by Seller and intended for sale to the public or
for consumption in the ordinary course of business in connection with the operation of the Gilroy
Gardens Park, wherever located.
"Lease" means that certain Lease for the Real Property to be effective as of the Closing
between Seller, as tenant, and Purchaser, as landlord, in the form attached as Exhibit B hereto.
"Leased Equipment" means the machinery, manufacturing equipment, tools, supplies,
furniture, appliances, fixtures (including without limitation displays, whether or not attached to
the walls, floors, ceilings or any framework), and all other items of personal property which are
leased by Seller from others and used in connection with the Gilroy Gardens Park as of the
Closing Date, including without limitation those described on the attached Exhibit C.
"Liens" means any title defects, liens, security interests, mortgages, deeds of trust,
encumbrances, reservations, charges, leases, licenses, encroachments, permits, easements,
claims, or restrictions or other matters encumbering title to the Property.
"Permitted Exceptions" means those liens, encumbrances and exceptions to title to the
Property which are approved by Purchaser prior to the Closing in Purchaser's sole discretion.
"Person" means an individual, corporation, partnership, limited liability company, limited
liability partnership, unincorporated association, trust, joint venture or other organization or
entity, including a governmental entity or any department, agency or political subdivision of
such entities.
"Personal Property" for the purposes of this Agreement means all of the electrical
generating equipment and printing equipment utilized by Seller at the Gilroy Gardens Park, to be
described with specificity to Buyer's reasonable satisfaction in the Bill of Sale.
"Property" means all of the Real Property, Personal Property and Intangible Property.
"Property Escrow Holder" means Chicago Title Company or such other escrow agent as
is acceptable to Purchaser and Seller to act as the escrow agent with respect to the sale of the
Property pursuant to this Agreement.
"Purchase Price" shall have the meaning set forth in Section 2.3.
"Real Property" means those certain parcels of land legally described on the attached
Exhibit A, together with all rights and interests appurtenant thereto and all of the Buildings and
Improvements thereon.
"Service Contracts" means any and all service, supply, advertising, maintenance,
management and other contracts affecting the Property (other than those recorded in the Official
Records of Santa Clara County, California and constituting Permitted Exceptions).
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"Title Company" means Chicago Title Company.
"Title Policy" means an extended coverage owner's title insurance policy insuring title to
the Property vested in favor of Purchaser, in the amount of the Purchase Price, subject to no liens
or encumbrances other than the Permitted Exceptions, and in such form and with such
endorsements as is approved by Purchaser in Purchaser's sole discretion prior to the Closing.
2. PURCHASE AND SALE OF PROPERTY.
2.1 Purchase and Sale of Property. On and subject to the terms and conditions set
forth in this Agreement, at Closing, Seller shall sell, assign, transfer, convey, set over and deliver
to Purchaser, and Purchaser shall purchase, acquire and accept from Seller, all of the Property.
2.2 Excluded Property. Notwithstanding anything to the contrary contained in this
Agreement, the following properties, assets and rights used in, or related to, the Gilroy Gardens
Park (the "Excluded Property") are excluded from the Property and shall not be purchased by
Purchaser, assigned to Purchaser or assumed by Purchaser at the Closing:
2.2.1 Bank accounts, cash, cash equivalents, notes receivable and employee
advances in existence on the Closing Date, including without limitation, all funds held in any
reserve or other account with the Bond Trustee, and all sums deposited by Seller with the Bond
Trustee for principal and interest payments accruing after November 1, 2007, as required under
the Trust Indenture (all such funds held by the Bond Trustee are hereinafter collectively referred
to as "Trust Indenture Deposits");
2.2.2 Prepaid taxes, expenses, advances and any tax refunds arising from taxes
that accrued during any period prior to Closing;
2.2.3 Insurance policies, including any premium refunds in respect of such
policies and claims covered by such policies arising prior to Closing (except as provided in
Section 5.1.5);
2.2.4 Accounts Receivable;
2.2.5 Books and Records;
2.2.6 Inventory;
2.2.7 Vehicles and rolling stock, other than those which are part of or integrated
into the theme park rides and attractions;
2.2.8 Leased Equipment and Seller's right, title and interest in Equipment
Leases, it being the parties intention and agreement that any Equipment Leases in effect shall
remain the obligation of Seller from and after the Closing and shall not bind Purchaser or the
Property;
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2.2.9 Seller's right title and interest in Service Contracts, it being the parties
intention and agreement that all Service Contracts in effect as of the Closing shall remain the
obligations of Seller from and after the Closing and shall not bind Purchaser or the Property; and
2.2.10 All other assets of Seller not included within the definition of the Property.
Seller has advised Purchaser that the restaurants, shops and other facilities of the Gilroy
Gardens Park are operated by Seller, through its current manager, and are therefore not currently
subject to any concession agreements, leases or similar agreements. If any such concession
agreements, leases or similar agreement were in effect as of the Closing, it is the parties intention
and agreement that all such agreements would remain the obligations of Seller from and after the
Closing and shall not bind Purchaser or the Property.
2.3 Purchase Price.
2.3.1 The purchase price for the Property (the "Purchase Price") shall be an
amount equal to a sum which is sufficient to (i) cause the defeasance of all Senior Lien Bonds
outstanding as of November 1, 2007, excluding Senior Lien Bonds (if any) which have been
purchased by the City and tendered to the Bond Trustee for retirement on or before the date set
forth in Section 2.7.1, as required to enable the execution, delivery and recordation of a Deed of
Reconveyance of the Senior Bond Deed of Trust; and (ii) pay all costs and expenses incurred to
effectuate the defeasance of the Senior Lien Bonds, including without limitation all escrow and
other fees and costs charged by the Bond Trustee, bond counsel, verification agent and financial
advisor. The defeasance of the Senior Lien Bonds, and amount of the Purchase Price, shall be set
forth in an Escrow Agreement to be entered into among the Purchaser, the Seller and the Bond
Trustee concurrently with the defeasance ofthe outstanding Senior Lien Bonds, in substantially the
form heretofore filed with the Purchaser and the Seller (the "Escrow Agreement"). The portion of
the Purchase Price described in clause (i) above shall be an amount which, together with the
earnings to be received on the investment thereof in accordance with the Escrow Agreement, is
sufficient to pay 100% of the principal of and interest (accrued from November 1, 2007) on the
Senior Lien Bonds to and including November 1,2010, on which date the Senior Lien Bonds shall
be redeemed in full in accordance with the Trust Indenture. The Seller hereby directs the
Purchaser to pay the Purchase Price directly to the Bond Trustee for application in accordance with
the Escrow Agreement. On or before the date set forth in Section 2.7.1, the Seller and the
Purchaser shall execute and deliver the final form of the Escrow Agreement. It is recognized that
the Purchaser may elect to acquire some of the outstanding Senior Lien Bonds directly from one or
more bondholders, either prior to or concurrently with the defeasance of the remaining Senior Lien
Bonds. In the event the Purchaser acquires any Senior Lien Bonds from an existing bondholder
prior to the defeasance of the remaining Senior Lien Bonds, then Purchaser shall immediately
tender such acquired Senior Lien Bonds to the Bond Trustee for retirement in accordance with the
Trust Indenture, and such Senior Lien Bonds shall not be taken into account in computing the
Purchase Price.
2.3.2 In Purchaser's sole and absolute discretion, on or after the date of this
Agreement, but prior to the Closing, Purchaser may elect to advance or pay to Bond Trustee for
Seller's account the amount of any periodic or installment reserves that are provided for under the
tenns of the Senior Lien Bonds, with the effect and intention that any such advances shall serve to
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reduce the amount of the Purchase Price contemplated by Section 2.3.1 above. In the event that
Purchaser advances or pays such amounts, but for whatever reason the Closing does not occur
under this Agreement, Seller shall refund the full amount of the advance(s) to Purchaser on or
before November 1,2008, without prior notice or demand. For the purposes of this Agreement,
any sums advanced by Purchaser pursuant to this Section 2.3.2 shall not constitute Trust Indenture
Deposits and shall not be payable to Seller at the Closing or otherwise.
2.4 Escrow. Concurrently with the parties' mutual execution and delivery of this
Agreement, Seller and Purchaser shall open an escrow (the "Property Escrow") with the Property
Escrow Holder, and open an escrow (the "Bond Escrow") with the Bond Escrow Holder
pursuant to the terms of a Bond Escrow Agreement substantially in the form attached as Exhibit
D. The Property Escrow Agreement and Bond Escrow Agreement shall be signed by the parties
hereto concurrently with the execution of this Agreement, for delivery to the Property Escrow
Holder and Bond Escrow Holder, respectively. The "Opening of Escrow" shall be the date upon
which a fully executed copy of this Agreement has been delivered to the Property Escrow Holder
and the Bond Escrow Holder. The Property Escrow Holder and Bond Escrow Holder shall give
Seller and Purchaser written notice of the date of their receipt of a fully executed copy of this
Agreement and the opening of the respective escrows. Property Escrow Holder is designated
the "real estate reporting person" for purposes of Section 6045 of Title 26 of the United States
Code and Treasury Regulation 1.6045-4 and any instructions or settlement statement prepared by
Property Escrow Holder shall so provide. Upon the consummation of the transaction
contemplated by this Agreement, Property Escrow Holder shall file a Form 1099 information
return and send the statement to Seller to the extent required under the aforementioned statute
and regulation.
2.5 Allocation of the Purchase Price. Purchaser and Seller agree that the Purchase
Price shall be allocated in accordance with the attached Exhibit E.
2.6 Prorations and Other Payment Obligations.
2.6.1 Ad Valorem Taxes. Ad valorem taxes and assessments on the Real
Property and personal property portion of the Property payable for the fIrst installment of the
2007-2008 tax year and all such taxes payable for tax years prior to 2007 shall be paid current by
Seller on or before Closing. The obligation to make such payments and such adjustment shall
survive the Closing. Such taxes and assessments shall not be prorated, and Seller shall be solely
responsible for obtaining any refund after the Closing for taxes and assessments attributable to
the post-Closing periog, to the extent Seller would be entitled to a refund. If ad valorem taxes
and assessments on the Real Property for the tax year in which the Closing Date occurs are
increased or if supplemental taxes are imposed on the Real Property relating to the pre-Closing
period, Seller's obligation to make such payments shall survive Closing. There shall be no
proration of prepaid taxes, assessments or of any other expenses relating to the Property as of the
Closing, since Seller will continue to be obligated to pay such taxes, assessments and expenses
after the Closing pursuant to the Lease.
2.6.2 Closing Costs. At or prior to Closing, Purchaser shall pay for the cost of
the Title Policy, the escrow fees owed to the Property Escrow Holder and Bond Escrow Holder
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as of the Closing and all other closing costs relating to the defeasance of the Senior Lien Bonds
and the acquisition of the Property by Purchaser.
2.7 The Closing.
2.7.1 Closing. The Closing of the purchase and sale of the Property shall take
place on February 28, 2008, through the offices of the Property Escrow Holder, or on such other
date as may be mutually designated by the parties in writing. Purchaser shall be entitled to
possession of the Property at Closing, free of tenancies and any third-party claims to possession
other than the rights of Seller pursuant to the Lease.
2.7.2 Closing Deliveries by Seller. Prior to Closing, in sufficient time for
Closing to occur on the Closing Date, Seller shall deliver or cause to be delivered to Property
Escrow Holder:
2.7.3 A Bill of Sale in substantially the form attached to this Agreement as
Exhibit F, executed by Seller, conveying the Personal Property to Purchaser free and clear of any
Liens;
2.7.4 A Grant Deed in substantially the form: attached to this Agreement as
Exhibit G (the "Grant Deed") conveying the Real Property to Purchaser free and clear of any
Liens, except for the Permitted Exceptions, executed and acknowledged by Seller;
2.7.5 An Assignment of Intangible Property in substantially the form attached to
this Agreement as Exhibit H, executed by Seller ("Intangibles Assignment");
2.7.6 Seller's payment for its share of the obligations described in Section 2.6.1
in Immediately Available Funds;
2.7.7 An affidavit certifying that Seller is not a "foreign person" for purposes of
Section 1445 of the Code and meeting the Code Section 1455 Foreign Investment in Real Property
Tax Act requirements for such certification, and a California Franchise Tax Form 593-C, certifying
that Seller satisfies one or more of the requirements necessary to exempt Purchaser from any
California withholding requirement under California Revenue and Taxation Code Section 18662,
both executed by Seller;
2.7.8 Copies of the following, in each case certified as of the Closing Date by
the Secretary of Seller: (i) resolutions of the board of directors of Seller authorizing the execution,
delivery and performance of this Agreement; and (ii) the signature and incumbency of the officers
of Seller authorized to execute and deliver this Agreement and the other instruments and
documents to be executed and delivered by Seller hereunder;
2.7.9 Such further certificates, owner declarations, affidavits or other documents
signed by Seller as may be reasonably requested by Property Escrow Holder or Bond Escrow
Holder to close the escrows and issue the Title Policy to Purchaser at the Closing;
2.7.10 Amended Bylaws as provided in Section 4.2, below; anda
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2.7.11 Two (2) execution counterpart originals of the Lease, executed by Seller,
and one (1) counterpart original of the Memorandum of Lease required to be recorded following
the Closing pursuant to the Lease, signed by Seller with signatures notarized for recording.
2.7.12 Closing Deliveries by Purchaser. Prior to Closing, in sufficient time for
Closing to occur on the Closing Date, Purchaser shall deliver or cause to be delivered to Property
Escrow Holder and/or Bond Escrow Holder:
2.7.13 The Purchase Price in. Immediately Available Funds shall be delivered to
Bond Escrow Holder, to facilitate the defeasance of the Senior Lien Bonds, with written
instructions directing the Bond Escrow Holder to cause Sun Trust Bank, a Georgia Bank, as
Trustee under the Senior Bond Deed of Trust, to (i) execute and deliver to Property Escrow
Holder, in recordable form, a Deed of Reconveyance of the Senior Bond Deed of Trust (the "Deed
of Reconveyance"); and (ii) immediately distribute to Property Escrow Holder, for Seller's
account, all Trust Indenture Deposits.
2.7.14 In the event Purchaser acquires any Senior Lien Bonds directly from a
current bondholder, then Purchaser shall deliver the acquired Senior Lien Bonds to the Bond
Escrow Holder for retirement.
2.7.15 Purchaser's payment for its share of the obligations described in Section
2.6.2; and
2.7.16 Two (2) counterpart execution originals of the Lease, executed by
Purchaser, and one (1) counterpart original of the Memorandum of Lease required to be recorded
following the Closing pursuant to the Lease, signed by Purchaser with signatures notarized for
recording or otherwise attested to permit recording of such document.
2.7.17 Deed of Reconveyance. Prior to Closing, the Bond Trustee shall have
delivered, in recordable form, a Deed of Reconveyance duly executed by Bond Trustee, as Trustee
under the Senior Bond Deed of Trust. The Property Escrow Holder. shall cause the Deed of
Reconveyance to be duly recorded in the Official Records of the County of Santa Clara, State of
California.
2.7.18 Delivery of Documents and Funds Upon Closing. Upon the Closing,
the Property Escrow Holder shall deliver to Purchaser a conformed copy of the recorded Grant
Deed and Memorandum of Lease, the original Title Policy, fully executed originals of the Bill of
Sale, the Intaiigibles Assignment, the Lease, a copy of the certifications described in Sections
2.7.2.5 and 2.7.2.6 above and a copy of the other documents deposited into the Bond Escrow and
Property Escrow. Upon the Closing, the Property Escrow Holder shall deliver to Seller a
conformed copy of the recorded Grant Deed and Memorandum of Lease, a fully executed original
Lease, and a copy of the other documents deposited into the Bond Escrow and Property Escrow.
In addition, upon the Closing, Property Escrow Holder shall deliver to Seller (by bank wire
transfer) the Trust Indenture Deposits.
2.8 Further Documents or Necessary Action. Seller and Purchaser shall take all
actions that may be reasonably necessary or appropriate to effectuate the transactions
contemplated by this Agreement. On or after the Closing Date, if any further action is
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reasonably necessary or desirable to carry out the purposes of this Agreement to vest Purchaser,
as appropriate, with full title to the Property, Seller shall take all such reasonably necessary or
appropriate action.
3. AS-IS PURCHASE/TITLE REVIEW.
3.1 As-Is Purchase. Purchaser acknowledges and agrees that prior to the Closing, it
shall have performed its own inspections of the Property as is may desire, including, without
limitation, governmental laws and regulations to which the Property is subject, and, except for
Seller's express representations, warranties and covenants contained in this Agreement,
Purchaser shall accept the Property upon the basis of Purchaser's own review and determination
of all matters pertaining to the Property. Purchaser acknowledges and agrees that the Property is
to be sold and conveyed to and accepted by Purchaser in an "AS IS" condition with all faults,
subject to Seller's express representations, warranties and covenants set forth in this Agreement.
Seller does not make any representations or warranties of any kind whatsoever, either express or
implied, with respect to the Property, except as expressly provided in this Agreement.
3.2 Title Review. Within two (2) days after the Effective Date, Purchaser may
obtain from the Title Company an updated preliminary title report for the Property (the "Title
Reoort"). Purchaser shall have until Closing to approve or disapprove any condition of title
affecting the Real Property. If Purchaser disapproves any matter affecting title and Seller is
either unable or unwilling to cause such disapproved exception to be removed, then Purchaser
shall have the right to either proceed to close, in which case such disapproved exception(s),
together with all other exceptions shown in the Title Report which were not disapproved of,
shall be deemed Permitted Exceptions; or Purchaser may elect in writing to terminate this
Agreement. In the event Purchaser elects to terminate this Agreement, then this Agreement
shall be deemed cancelled, null and void, and each of the parties hereto shall be have no
further rights, duties or obligations hereunder.
4. COVENANTS.
4.1 Conduct of Seller.
4.1.1 Ordinary Course. Until the Closing, Seller shall operate Gilroy Gardens
Park only in the usual, regular and ordinary course, in substantially the same manner as
previously conducted, and shall not, without the prior written consent of Purchaser (which
consent shall not be unreasonably withheld), make any substantial change to its methods of
management, purchase, sale, accounting or operationin-respeot-,of Gilroy Gardens Fark., Until .,
the Closing Seller shall not sell, lease, transfer or encumber any of the Property, or modify any
Lien, without the prior written consent of Purchaser (which consent may be withheld in
Purchaser's sole and absolute discretion), and shall continue to insure the Property in the manner
insured by Seller as of the Effective Date.
4.1.2 Access to Information. Until the Closing, Seller shall give Purchaser,
and Purchaser's accountants, counsel and other representatives, reasonable access during normal
business hours to the properties, books, records, officers, directors and employees of Seller and
shall furnish promptly to Purchaser, upon written request, (i) a copy of each report, notice, return
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or other document filed or received by, or on behalf of, Seller relating to the Property or Gilroy
Gardens Park; and (ii) all other information pertaining to Gilroy Gardens Park, the Property, and
operations and personnel of Seller related thereto as Purchaser may request.
4.1.3 Access to Property. Until the Closing, Purchaser shall have the right, at
Purchaser's expense, to:
4.1.3.1
Perform, or hire consultants to perform, a physical inspection
of the Property.
4.1.3.2 Inspect, or hire consultants to inspect, the environmental
condition of the Property, and to obtain and review, at Purchaser's sole election, soils, geology,
structural and environmental and any other engineering reports and an ALTA survey of the
Property.
4.1.3.3 Examine at the Property, Seller's office and/or the property
manager's office, as the case may be, all books, records, reports, and files related to the
ownership, leasing, maintenance and operation of the Property.
Anyon-site inspections of the Property shall occur at reasonable times agreed upon by
Seller and Purchaser after reasonable prior written notice to Seller and shall be conducted so as
not to interfere unreasonably with the use of the Property by Seller. Seller may have a
representative present during any such inspections. If Purchaser desires to do any invasive
testing at the Property, Purchaser shall do so only after notifying Seller and obtaining Seller's
prior written consent thereto, which consent shall not be unreasonably withheld or delayed.
Purchaser agrees to protect, indemnify, defend and hold Seller harmless from and against any
claims for personal injuries and property damage arising out of or resulting from the inspection
of the Property by Purchaser or its agents or consultants, and notwithstanding anything to the
contrary in this Agreement, such obligation to indemnify, defend and hold harmless Seller shall
survive the Closing or any termination of this Agreement; provided however that in no event
shall Purchaser have any liability as the result of Purchaser's discovery of any environmental or
other condition or fact affecting or concerning the Property, or any liability for matters caused by
the acts or negligence of anyone other than Purchaser and Purchaser's representatives. Purchaser
shall keep the Property free and clear of any mechanic's liens or materialmen's liens arising out
of Purchaser's entry onto the Property.
- -. '.~-
4.2 Amendment of Bylaws. Priorto Closing, Seller shall cause its Bylaws to be
amend.ed to 'be in the form of Exhibit I, attached hereto and incorporated herein. A 'certified copy
of the Amended Bylaws shall be delivered to Purchaser at Closing.
5. CONDITIONS TO OBLIGATIONS OF PURCHASER AND SELLER.
5.1 Conditions to Obligations of Purchaser. Notwithstanding any other provision of
this Agreement, the obligation of Purchaser to purchase the Property is subject to the satisfaction
or waiver in writing in Purchaser's sole and absolute discretion, on or before the Closing Date, of
the following conditions, which conditions are solely for Purchaser's benefit and can be
unilaterally waived by Purchaser:
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5.1.1 Representations and Warranties; Covenants. Seller shall have
performed and complied with all material covenants, obligations and conditions required by this
Agreement to be performed or complied with by Seller.
5.1.2 Consents and Approvals. All Persons whose consent or approval is
required for the consummation of the transactions contemplated by this Agreement shall have
granted such required consents or approvals in form and substance reasonably acceptable to
Purchaser.
5.1.3 Litigation. There shall be no pending litigation against the Gilroy
Gardens Park, the Property or Seller that, in the reasonable opinion of counsel for any party, has
or could have any material adverse effect on the Gilroy Gardens Park, the Property or the
enjoyment of the benefits of them by Purchaser.
5.1.4 Authorizations. All actions necessary to authori:z:e the execution,
delivery and performance of this Agreement by Seller and the consummation of the transactions
contemplated by this Agreement shall have been duly and validly taken by Seller.
5.1.5 Damage to or Destruction of the Property. There shall have been no
material adverse change in the physical condition of the Property. In the event of any destruction
of the Buildings or Improvements or other elements of the Property prior to Closing, Purchaser
may elect, at its sole option to, (i) proceed to Closing and pay the Purchase Price pursuant to the
terms of this Agreement and receive any insurance proceeds with respect to the Property so
destroyed, free and clear of all Liens or interests of any third persons, and at such Closing Seller
shall pay over to Purchaser any proceeds received by Seller with respect to such casualty and
assign to Purchaser the right to all other insurance proceeds payable with respect to such
casualty, or (ii) terminate this Agreement and the purchase of the Property contemplated by this
Agreement. Seller shall provide Purchaser with written notice of any destruction of the Property
or the Real Property or any portion thereof promptly after Seller becomes aware of the
occurrence of such destruction.
5.1.6 Environmental Issues. Purchaser shall have received a Phase I
Environmental Site Assessment consistent with ASTM Standard E1527-05 on each parcel of the
Real Property, and as to each such parcel of the Real Property where Purchaser's environmental
consultant so recommends, a current Phase II environmental assessment, including a written
report thereof, and such reports shall not have specified any recognized environmental condition
on or affecting any of the Real Property not acceptable to Purchaser in its sole discretion. Such
assessments and reports 'shalt beat PurchaSer's sole cost.
5.1.7 Due Diligence. Purchaser shall have conducted a due diligence review of
Seller, the Gilroy Gardens Park and the Property and shall be satisfied with the results thereof, in
its sole and absolute discretion. The cost of such due diligence review shall be at Purchaser's
sole cost.
5.1.8 Closing Deliveries. Seller shall have delivered to Property Escrow
Holder and Bond Escrow Holder, as appropriate, all of the closing deliveries described in Section
2.7.2.
\TMORELL\734864.15
011708-04706118
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5.1.9 Title Policy. Title Company shall be irrevocably committed to issuing the
Title Policy to Purchaser immediately upon the Closing.
5.2 Conditions to Obligations of Seller. Notwithstanding any other provision of this
Agreement, the obligation of Seller to consummate the transactions contemplated by this
Agreement is subject to the satisfaction or waiver in writing, on or before the Closing Date, of
the following conditions, which conditions are solely for Seller's benefit and can be unilaterally
waived by Seller:
5.2.1 Covenants. Purchaser shall have performed and complied with all
material covenants, obligations and conditions required by this Agreement to be performed or
complied with by Purchaser prior to or on the Closing Date.
5.2.2 Authorizations. All actions necessary to authorize the execution,
delivery and performance of this Agreement by Purchaser and the consummation of the
transactions contemplated by this Agreement shall have been duly and validly taken by
Purchaser.
5.2.3 Closing Deliveries. Purchaser shall have delivered to Bond Escrow
Holder and Purchase Escrow Holder, as appropriate, all of the closing deliveries described in
Section 2.7.3.
5.2.4 Deed of Reconveyance. The Deed of Reconveyance shall have been duly
recorded in the Official Records of the County of Santa Clara, State of California.
5.2.5 Trust Indenture Deposits. The Bond Trustee shall have actually
delivered to the Property Escrow from the Bond Escrow all Trust Indenture Deposits, for Seller's
account, such that the Property Escrow Holder is prepared to make payment thereof to Seller
upon the Closing.
6. MISCELLANEOUS.
6.1 Further Assurances. Seller and Purchaser will, from time to time on or after the
Closing Date, execute and deliver to the other parties all such further assignments, instructions,
endorsements and other documents as Purchaser or Seller, as the case may be, reasonably
requests in order to complete the transactions contemplated by this Agreement.
6.2 Amendments and Waivers. The provisions of this. Agreement may,.beameuded
only by the written agreement of all of the parties to this Agreement. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any provisions or
conditions of this Agreement must be made in writing and shall be effective only to the extent
specifically set forth in such writing.
6.3 Successors and Assigns. This Agreement shall bind and inure to the benefit of the
respective successors and assigns of the parties to this Agreement. Neither party may assign this
Agreement without the other party's written consent; provided, however, that Purchaser may,
without notice or consent, assign any or all of its rights under this Agreement to any entity
affiliated with or controlled by Purchaser. The provisions of this Agreement and of the
\TMORELL\734864.15
011708-04706118
-12-
documents to be executed and delivered at Closing are and will be for the benefit of Seller and
Purchaser only and are not for the benefit of any third party; and, accordingly, no third party
shall have the right to enforce the provisions of this Agreement or of the documents to be
executed and delivered at Closing.
6.4 Interpretation. The words "include," "includes" and "including" when used herein
shall be deemed in each case to be followed by the words "without limitation." The headings
contained in this Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever used herein, the singular number shall
include the plural, the plural shall include the singular, and the use of any gender shall be
applicable to both genders. All references to monetary amounts are to currency of the United
States of America.
6.5 Time of the Essence; Attorneys' Fees. Time is of the essence of this Agreement.
In any suit, action or appeal to enforce this Agreement or any term or provision of this
Agreement, or to interpret this Agreement, the prevailing party shall be entitled to recover its
costs incurred, including reasonable attorneys' fees at trial or on appeal.
6.6 Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision will
be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
6.7 Notices. Any notices, requests, demands or other communications required or
permitted to be sent under this Agreement shall be delivered personally, sent by overnight
courier or mailed by registered or certified mail, return receipt requested, to the following
addresses:
If to Purchaser:
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
Attn: Anna J atczak
Tel: (408) 846-0212
Fax: (408) 846-0500
With a copy to:
"', '.,~..' .~':;-,..,>..... <''',' -"-". ,.'.
Berliner Cohen
10 Almaden Bbulevard,Suite 1100
San Jose, CA 95113
Attn: Andrew Faber, Esq.
Tel: (408) 286-5800
Fax: (408) 998-5388
\TMORELL\734864.15
011708-04706118
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If to Seller:
Gilroy Gardens Family Theme Park
3050 Hecker Pass Highway
Gilroy, CA 95020
Attn: Bob Kraemer
Tel: (408) 840-7100
Fax: (408) 846-6474
With a copy to:
Miller, Morton, Caillat & Nevis, LLP
25 Metro Drive, 7th Floor
San Jose, CA 95110
Attn: David Nevis, Esq.
Tel: (408) 292-1765
Fax: (408) 292-4484
Either party may change the address to which notices are required to be delivered, by
delivering written notice of such change given in accordance with this Section.
6.8 Governing Law; Forum. The validity, meaning and effect of this Agreement shall
be determined in accordance with the laws of the State of California applicable to contracts made
and to be performed in that state. Any action or proceeding brought by any party in connection
with this Agreement shall be brought in the County of Santa Clara, California.
6.9 Brokers. Purchaser and Seller agree that no brokerage commISSIons are
contemplated to be paid in connection with the transaction memorialized by this Agreement.
Each party hereto accordingly agrees that if any person or entity makes a claim for brokerage
commissions or finder's fees related to the sale of the Property by Seller to Purchaser, and such
claim is made by, through or on account of any acts or alleg~ acts of said party or its
representatives, said party will protect, indemnify, defend and hold the other party free and
harmless from and against any and all loss, liability, cost, damage and expense (including
reasonable attorneys' fees) in connection therewith. The provisions of this paragraph shall
survive Closing or any termination of this Agreement.
6.10 Entire Agreement. This Agreement, together with those documents expressly
referred to in this Agreement, constitutes the final agreement of the parties concerning the
matters referred to in this Agreement, and supersedes all prior agreements and understandings.
_ 6.11 Counterparts.. This Agreement may be executed in one or more counterparts, each
of which shaH bean original, and all of which together shall constitute one agreement. Facsimile
transmission of any signed original document, and retransmission of any signed facsimile
transmission, shall be the same as delivery of an original. At the request of any party, the parties
will confirm facsimile transmitted signatures by signing an original document.
6.12Negotiated Terms. Each party has had the opportunity to be advised by legal
counsel and other professionals in connection with this Agreement, and each party has obtained
such advice as each party deems appropriate. The parties agree that the terms and conditions of
this Agreement are the result of negotiations between the parties and that this Agreement shall
\TMORELL\734864.15
011708-0470611 B
-14-
not be construed in favor of or against any party by reason of the extent to which any party or its
professionals participated in the preparation of this Agreement.
6.13 Computation of Time. In computing any period of time pursuant to this
Agreement, the day of the act or event from which the designated period of time begins to run
will not be included, and the last day of the period so computed will be included, unless it is a
Saturday, Sunday or legal holiday recognized as such in California, in which event the period
runs until the end of the next day which is not a Saturday, Sunday or such legal holiday. As used
in the Agreement, "business day" shall mean a day which is not a Saturday, Sunday or legal
holiday recognized as such in California.
6.14 Schedules and Exhibits. The following Schedules and Exhibits are attached to and
fonn an integral part of this Agreement:
EXHIBITS:
Legal Description of Land
Lease
List of Leased Equipment
Bond Escrow Agreement
Price Allocation
Bill of Sale
Grant Deed
Intangibles Assignment
Amended Bylaws
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
[Signatures appear on next page]
\TMORELL\734864.15
011708.04706118
-15-
The parties to this Agreement have executed this Agreement as of the date first set forth
above.
SELLER:
GILROY GARDENS F AMIL Y THEME PARK,
INC., a Delaware nonprofit corporation
Name:
Tit~: f\....t}
;d~...~~
Name: ']> At!<../ t!-/ j3 /.-. I-!/#l-Ioe,/;,..,
Title: ,-<::ec47nty
PURCHASER:
By:
By
By
ATTEST:
\TMORELL\734864.15
011708.04706118
'-v1.-'\.
Jl1-kzQK. - . .
{rtriW\ Ct~ .k/nUr'\lSfi$
By
APPROVED AS TO FORM:
By
(~;JL~ If. ~
Name: Linda A. Callon
Title: City Attorney
-16-
EXHIBIT A
LEGAL DESCRIPTION OF LAND
(See attached pages.)
\TMORELL\734864.15
011708-04706118
-1-
Title No. 07-98702516-KV
Locate No. CACTI7743-7743-2987-0098702516
LEGAL DESCRIPTION
EXHIBIT "A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF GILROY, COUNTY OF SANTA CLARA,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOUOWS:
PARCEL ONE:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Highway, as said line was
established by Parcel One in the Deed from the De Bell Corporation, a Corporation, to the State of California,
dated June 12, 1957, recorded July 30, 1957 in Book 3855 Official Records, Page 512, Santa Clara County
Records, with the Easterly line of that certain 24.07 acre tract of land described in the Deed from Jack De Bell
et ux, to Louis A. Filice, et ux, dated September 15, 1954 recorded October 19, 1954 in Book 2986 Official
Records, Page 527, Santa Clara County Records; thence from said Point of Beginning South 60 deg 42' 34"
East along said Northeasterly line of Hecker Pass Highway for a distance of 599.78 feet; thence Southeasterly
continuing along said last mentioned line along an arc of a curve to the left, tangent to the preceding course,
with a radius of 1450.00 feet, through a central angle of 14 deg 52' 00", for an arc distance of 376.24 feet to
the point of intersection thereof with the Southeasterly prolongation of a Westerly line of that certain 3.728
acre tract of land described in that certain final order of condemnation entered on November 3, 1958 in the
Superior Court of the State of California, in and for the County of Santa Clara in that certain action entitled,
''The People of the State of California, Acting By and Through the Department of Public Works, Plaintiff, vs.
Louis A. Felice et ai, Defendants Case No. 103483," a certified copy of which order was filed for record in the
Office of the Recorder of the County of Santa Clara, State of California, on November 3, 1958 in Book 4219
Official Records, Page 701, Santa Clara County Records (shown as South 33 deg 16' 39" East 246.03 feet;
thence North 33 deg 16' 30" West along said prolongation and the said Westerly line of the 3.728 acre tract for
a distance of 376.66 feet to the Northwesterly corner of said 3.728 acre tract, said point also being the
Southwesterly corner of that certain 1.567.acre tract of land described as Parcel Two in the Deed to said State
of California above referred to; thence North 24 deg 18' 19" West along the Westerly line of said 1.567 acre
tract for a distance of 94.17 feet, thence North 37 deg 18' 07" East continuing along said Westerly line of the
1.567 acre tract and its Northeasterly prolongation for a distance of 254.41 feet to the Northeasterly corner of
that certain tract of land described in the Deed from the State of California, to the De Bell Corporation, a
California Corporation, dated August 30, 1957, recorded September 27, 1957 in Book 3900 Official Records,
Page 632, Santa Clara County Records; thence North 88 deg 39' 04" West along the Northerly line of land so
described in the Deed to said De Bell Corporation for a distance of 433.45 feet to the Northwesterly corner
thereof; thence South 1 deg 47' West along the Westerly line of land so described in the Deed to said De Bell
Corporation for a distance of 64.46 feet to the Southwesterly corner thereof in the Northerly line of that certain
160.91 acre tract of land described as Parcel Three in the Deed from Jack De Bell et ux, to the De Bell
Corporation, a California Corporation, dated October 26, 1956, recorded April 29, 1957 in Book 3786 Official
Records Page 463, Santa Clara County Records; thence North 88 deg 13' West along said Northerly line of the
160.91 acre tract for a distance of 291.56 feet to the Northeasterly corner of the said 24.07 acre tract above
referred to; thence South 23 deg 11' West along the Easterly line of said 24.07 acre tract for a distance of 130
feet more or less to the Point of Beginning.
Excepting from the above described Parcel One, the following described parcel of land:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Road, as said line was
established by Parcell in the Deed from De Bell Corporation, a Corporation, to the State of California, dated
June 12, 1957, recorded July 30, 1957 in Book 3855 Official Records, Page 512, Santa Clara Courity Records,
with the Northwesterly line of that certain 160.91 acre tract of land described as Parcel Three in the Deed from
Jack De Bell et ux, to the De Bell Corporation, a California Corporation, dated October 26, 1956, recorded April
29, 1957 in Book 3736 Official Records, Page 463, Santa Clara County Records; thence from said Point of
Beginning South 60 deg 42' 34" East along said Northeasterly line of Hecker Pass Road, for a distance of 80.00
feet, thence leaving said last mentioned line and running North 29 deg 17' 26" East 170 feet, more or less, to
the point of intersection thereof with the Southwesterly line of the Old Hecker Pass road; thence South 66 deg
15' East along said Southwesterly line of the Old Hecker Pass Road for a distance of 270.00 feet; thence
leaving said last mentioned line and running North 23 deg 00' East 99.6 feet to the True Point of Beginning of
2
CLTA Preliminary Report Form - Modified (1l/17/06)
EXHIBIT "A" (continued)
litle No. 07-98702516-KV
locate No. CACTI7743-7743-2987-0098702516
the tract of land to be described; thence from said True Point of Beginning North 67 deg DO' West 10.00 feet;
thence at right angles North 23 deg 00' East 20.00 feet; thence at right angles South 67 deg DO' East 20.00
feet; thence at right angles South 23 deg 00' West 20.00 feet; thence at right angles North 67 deg 00' West
10.00 feet to the True Point of Beginning.
APN 783-05-011 AND 013
PARCEL TWO:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Road, as said line was
established by Parcel 1 in the Deed from the De Bell Corporation, a Corporation, to the State of California,
dated June 21, 1957, recorded July 3D, 1957 in Book 3855 Official Records, Page 512, Santa Clara County
Records, with the Northwesterly line of that certain 160.91 acre tract of land described as Parcel Three in the
Deed from Jack De Bell, et ux, to the De Bell Corporation, a California Corporation, dated October 26, 1956,
recorded April 29, 1957 in Book 3736 Official Records, Page 463, Santa Clara County Records; thence from said
Point of Beginning South 60 deg 42' 34" East along said Southeasterly line of Hecker Pass Road for a distance
of 80.00 feet, thence leaving said last mentioned line and running North 29 deg 17' 26" East 170 feet, more or
less, to the point of intersection thereof with the Southwesterly line of the Old Hecker Pass Road; thence South
66 deg IS' East along said Southwesterly line of the Old Hecker Pass Road for a distance of 270.00 feet;
thence leaving said last mentioned line and running North 23 deg 00' East 99.6 feet to the True Point of
Beginning of the tract of land to be described; thence from said True Point of Beginning North 67 deg DO' West
10.00 feet; thence at right angles North 23 deg DO' East 20.00 feet; thence at right angles South 67 deg 00'
East 20.00 feet; thence at right angles South 23 deg DO' West 20.00 feet; thence at right angles North 67 deg
DO' West 10.00 feet to the True Point of Beginning.
APN 783-05-012
PARCEL THREE:
A Portion of Parcels One and Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43,
Santa Clara County, and a Portion of Lands of Blocher, I 361 O.R. 202, Santa Clara County Records, described
as follows:
Beginning at a Point on the West Line of said Parcel four, said Point also being at the Northeastern most
corner of Parcel Three as shown on said Parcel Map said Point also lying on the West line of Lands of Nob Hill
General Store, Inc., a California Corporation, as described in that Deed recorded in K805 of Official Records at
page 1589, Santa Clara County, and proceeding along the Westerly, Southerly, Easterly and Northerly lines of
said Parcel four and said lands of Nob Hill the following courses:
1. S 0 deg. 03' 40" W 778.37 feet
2. East 70.00 feet
3. S 17 deg. 45' 49" E 294.02 feet
4. West 160.00 feet
5. SO deg. 03' 40" W 418.87 feet
6. S 0 deg. 13' 40" W 4094.58 feet
7. East 1254.00 feet
8. N 0 deg. 14' E 4527.60 feet
9. N 0 deg. 02' W 1672.30 feet
10. N 67 deg. 23' W 262.00 feet
11. N 49 deg. 20' 3D" W 98.97 feet
12. N 31 deg. 26' W 154.34 feet
13. S 37 deg. 18' 09 W 85.48 feet
14. N 42 deg. 54' 55" W 294.28 feet
15. N 38 deg. 11' 51" W 55.00 feet
16. N 72 deg. 45' 58" W 83.84 feet
17. S 66 deg. 33' 05" W 57.31 feet
18. N 69 deg. 23' 35" W 301.68 feet
to the Easternmost corner of those lands conveyed to the State of California by 3627 of Official Records at
3
ClTA Preliminary Report Form - Modified (11/17/06)
EXHIBIT "Au (continued)
Title No. 07-98702516-KV
Locate No. CACTI7743-7743-2987-0098702516
page 1271, Santa Clara County; thence along the Southerly line of last said lands S 83 deg. 53' 57" W 44.13
feet; thence Northwesterly along a 1585 Foot radius curve to the right, from a tangent bearing N 82 deg. 52'
34" W., said curve having an interior angle of 18 deg. 50' 48", and a length of 521.36 feet to a point lying
91.84 feet Southerly along the said 1585 Foot radius curve from an angle point in last said Southerly line;
thence S 0 deg. 09' W 419.62 feet; thence S 17 deg. 14' 00" E 810.00 feet; thence S 20 deg. 16' 11" W 194.80
feet to a point on the Northeasterly line of said Parcel Three, last said point being N 69 deg; 43' 49" W 288.41
feet from the Northeasterly corner of said Parcel Three; thence S 69 deg. 43' 49" E. 288.41 feet to the Point of
Beginning.
Excepting therefrom the following described parcel of land:
Beginning at the Northeastern most corner of said Parcel Four and proceeding S 00 deg. 09' 33" E along the
East line of said Parcel Four, 269.81 feet to the Westerly terminus of the Northeast line of a
Pedestrian/Equestrian Easement as shown on Parcel One on that Parcel Map recorded in Book 663 of Maps at
Pages 13 and 14, Santa Clara County Records; thence N 30 deg. 15' W 412.10 feet more or less to a point on
the Northeasterly line of said Parcel Four; thence S 67 deg. 23' E 224.09 feet along last said line to the Point of
Beginning.
Also excepting therefrom "Parcel C" as described in that certain Certificate of Compliance recorded April 14,
1998 as Instrument No. 14139227, Official Records of Santa Clara County, and being more particularly
described as follows:
A portion of real property located in the County of Santa Clara, State of California, described as follows:
All of Parcel Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County
Records,
Except therefrom the following:
Beginning at the Northeasternmost corner of said Parcel Four and proceeding S 00009'33" E along the East line
of said Parcel Four, 269.81 feet to the Westerly terminus of the Northeast line of a Pedestrian/Equestrian
Easement as shown on Parcel One on that Parcel Map recorded in Book 663 of Maps at Pages 13 and 14,
Santa Clara County Records; thence N 30015' W 412.10 feet more or less to a point on the Northeasterly line
of said Parcel Four; thence S 67023' E. 224.09 feet along last said line to the point of beginning.
APN 810-17-026, 810-17-029
PARCEL FOUR:
A portion of Parcels Two and Three as shown on that Parcel Map recorded in Book 494 of Maps, at page 43,
Santa Clara County Records, lying in Santa Clara County, California, described as follows:
Beginning at a point on the South line of said Parcel Two, said point lying S 89 deg. 35' 00" W 145.44 feetfrom
the Southeasterly angle point in said Parcel Two, last said angle point being produced by the courses S 17 deg.
40' 40" W 105.66 feet and S 89 deg. 35' DO" W 428.05 feet as shown on said Map; thence along the following
courses:
COURSE NO.
1. N 19 deg. 21' 40" E 417.99 feet
2. N 76 deg. 19' 19" W 13.90 feet
3. N 17 deg. 40' 40" E 1089.46 feet
4. N 64 deg. 27' 00" E 208.60 feet
to a point on the Northeasterly line of said Parcel Two, said point lying N 69 deg. 43' 49/1 W 9.45 feet from the
Northeastern corner of said Parcel Two; thence along the Northestern line of said Parcels Two and Three and
along the Easterly and Southerly line s of said Parcel Three the fOllowing courses:
4
CLTA Preliminary Report Form - Modified (11{17{05)
EXHIBff"A" (continued)
"TItle No. 07-98702516-KV
Locate No. CACfI7743-7743-2987-0098702516
COURSE NO.
5. S 69 deg. 43' 49" E 689.53 feet
6. S. 0 deg. 03' 40" W 778.37 feet
7. East 70.00 feet
8.517 deg. 45' 49" W 294.02 feet
9. West 160.00 feet
10. SO deg. 03' 40" W 350.00 feet
11. N. 78 deg. 40' 00" W 1134.00 feet
12. S 17 deg. 40' 40" W 105.66 feet, and
13. S 89 deg. 35' 00" W 145.44 feet
to the point of beginning.
APN 810-17-014, 015, 021, 024 AND 025
PARCEL FIVE:
A non-exclusive easement for Ingress and Egress and for the installation and maintenance of public utilities,
appurtenant to the above described parcels, over a strip of land 60.00 feet in width, lying 10.00 feet Westerly
of and 50.00 feet Easterly of the following described line:
Beginning at a point in the Southwesterly line of the State Highway IV-SCI- 32D-1957, distant thereon South 60
deg 14' 20" East 232.40 feet from a concrete monument at Station 325 57.01 E. C. of said Highway and
running thence South 57 deg 45' 40" West 161.79 feet; South 41 deg 31' 40" West 262.30 feet; South 31 deg
44' 40" West 311.70 feet; South 3 deg 19' 10" West 344.34 feet; South 23 deg 29' 50" East 166.48 feet;
thence Southwesterly 150 feet, more or less, to a paint which bears South 71 deg 14' 02" East 94.02 feet and
North 19 deg 29' 13" East 110.0 feet from the most Easterly corner of Parcell, as said Parcel is shown upon
that certain Map entitled, "Record of Survey being a portion of the solis Rancho", which Map was filed for
record in the Office of the Recorder of the County of Santa Clara, State of California on December 7, 1967 in
Book 231 of Maps, at Page 22; thence South 19 deg 29' 13" West 110.00 feet and the terminus of said
easement, said easement is appurtenant to and for the Benefit of Parcels Three, Four, Seven and Twelve.
PARCEL SIX:
A non-exclusive easement for Ingress and Egress and for the installation and maintenance of public utilities
and for water pipe lines, appurtenant to the above described parcels, over an existing roadway 60.00 feet in
width, the center line of which is described as follows:
Beginning at the point of intersection of the Easterly line of that certain 160.91 acre tract of land described as
Parcel Three in the Deed from Jack De Bell, et ux, to the De Bell Corporation, dated October 26, 1956,
recorded April 29, 1957 in Book 3786 Official Records, page 463, Santa Clara County Records, with the
Southwesterly line of Hecker Pass Road, as said line was established by Parcel One in the Deed from the De
Bell Corporation, to the State of California dated June 12, 1957, recorded July 30, 1957 in Book 3655 Official
Records, page 512, Santa Clara County Records; thence from said point of beginning South 0 deg OS' 19" West
along said Easterly line of the 160.91 acre tract for a distance of 1370.09 feet to the True Point of Beginning of
the easement to be described; thence from said True Point of Beginning North 69 deg. 43' 49" West 1460.17
feet to the terminus of said easement, said easement is appurtenant to and for the Benefit of Parcels Three,
Four and Twelve.
Excepting therefrom all that portion thereof lying within the above described Parcels Three and Four.
PARCEL SEVEN:
5
CLTA Preliminary Report Form - Modified (11/17/06)
EXHIBIT "Au (continued)
Title No. 07-98702516-KV
Locate No. CACD7743-7743-2987-0098702516
All of Parcel Two, as shown upon that certain Map entitled, "Parcel Map, being a portion of the Las Animas
Rancho", which Map was filed for record in the Office of the Recorder of the County of Santa Clara, State of
California on October 12, 1993 in Book 650 of Maps, at Page 49.
APN 810-18-010 and 011
PARCEL EIGHT:
An easement 40 feet in width for ingress and egress and public utilities the centerline of said easement
described as follows:
Commencing at a point in the centerline of that 60 foot wide easement recorded in Book 7981 of Official
Records at Page 56, Santa Clara County Records, said point being the northeast terminius of that course
shown as No. 16 on that Parcel Map recorded in Book 494 of Maps, at Page 43, Santa Clara County Records
and proceeding S 20016' 11" W 30.00 feet to a point on the southwesterly line of said easement to the Point of
Beginning; thence from said Point of Beginning S 27003' W 28.19 feet to station "A"; thence along a curve to
the right with a radius of 40 feet at an angle of 60.00 feet for a distance of 41.89 feet to station "B";
thence S 87003' W 28.00 feet to station C; thence along a curve to the left with a radius of 85.47 feet at an
angle of 70033'08" for a distance of 105.24 feet to station "D"; thence S 16029'52"W for a distance of 224.83
feet to station "E"; thence on a curve to the left with a radius of 457.22 feet at an angle of 18037'52" for a
distance of 148.68 feet to station "P'; thence S 2008' E for a distance of 32.29 feet to station "G"; thence on a
curve to the right with a radius of 196.58 feet at an angle of 41046' for a distance of 143.30 feet to station
"H"; thence S 39038' W for a distance of 151.72 feet to station Iff'; thence on a curve to the left with a radius
of 250.00 feet at an angle of 45.000 for a distance of 196.34 feetto station "J"; thence S 5022' E 110.00 feet to
station "K"; thence on a curve to the right with a radius of 414.00 feet at an angle of 21010' for a distance of
152.94 feet to station "L"; thence S 15048' W 93.00 feet to station "M"; thence on a curve to the left with a
radius of 243.00 feet at an angle of 30031' for a distance of 129.42 feet to station "N"; thence 5 14043' E
456.60 feet more or less to a paint on the south line of parcel two of said parcel map, last said point being
152.52 feet westerly from the southerly terminus of that course, (5 0025'00" E 89.33 feet), as shown on said
parcel map, to station "a", said easement is appurtenant to and for the Benefit of Parcel Seven.
PARCEL NINE:
An easement for ingress and egress described as follows:
Beginning at the point of beginning of the above described 40 foot wide easement and running 5 69043'49" E
20.00 feet to the easterly line of said 40.00 foot wide easement being the true point of beginning; thence 5
69043'49" E along the southwesterly line of the 60.00 foot easement (7981-or-56) 30 feet; thence 80 feet more
or less southwesterly to the mid point (on the southeast line of above described 40 foot easement) of the
40.00 foot radius (centerline) curve; thence northeasterly along the southeasterly line of said 40.00' foot wide
easement above described 60 feet more or less to true point of beginning, said easement is appurtenant to
and for the Benefit of Parcel Seven.
PARCEL TEN:
A 10 foot wide easement for ingress and egress. The easterly line of said easement described as follows:
Commencing at above station "L" and running 5 15048'W 40.00 feet and N 74012' W 20.00 feet to the True
Point of Beginning; thence 5 15048' W 53.00 feet; thence southerly along a 263.00 foot radius curve to the
left, having an interior angle of 17025'42" a distance of 80.00 feet to the terminus of said easement, said
easement is appurtenant to and for the Benefit of Parcel Seven.
6
CLTA Preliminary Report Form - Modified (11/17/06)
EXHIBIT "A" (continued)
TItle No. 07-98702516-KV
Locate No. CACTl7743-7743-2987-0098702516
PARCEL ELEVEN:
An easement for ingress-egress said easement described as follows:
Commencing at said station "0", and proceeding S 89035' W along the Southerly line of Parcel Two as shown
on Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County Records 20.64 feet to the True
Point of Beginning; thence continuing S 89035' W 25.00 feet; thence N 37026'15" E 30.68 feet to a point on the
Southwesterly line of the 40 foot wide easement above described; thence S 14043' E 25.00 feet to the Point of
Beginning, said easement is appurtenant to and for the Benefit of Parcel Seven.
PARCEL TWELVE:
A Portion of Parcels One and Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43,
Santa Clara County, and a Portion of Lands of Blocher, 1361 O.R. 202, Santa Clara County Records, described
as follows:
Beginning at a Point on the West Line of said Parcel four, said Point also being at the Northeastern most
corner of Parcel Three as shown on said Parcel Map said Point also lying on the West line of Lands of Nob Hill
General Store, Inc., a California Corporation, as described in that Deed recorded in K805 of Official Records at
page 1589, Santa Clara County, and proceeding along the Westerly, Southerly, Easterly and Northerly lines of
said Parcel four and said lands of Nab Hill the following courses:
COURSE NO.
1. SO deg. 03' 40" W 778.37 feet
2. East 70.00 feet
3. S 17 deg. 45' 49" E 294.02 feet
4. West 160.00 feet
5. SO deg. 03' 40" W 418.87 feet
6. S 0 deg. 13' 40" W 4094.58 feet
7. East 1254.00 feet
8. N 0 deg. 14' E 4527.60 feet
9. N 0 deg. 02' W 1672.30 feet
10. N 67 deg. 23' W 262.00 feet
11. N 49 deg. 20' 30" W 98.97 feet
12. N 31 deg. 26' W 154.34 feet
13. S 37 deg. 18' 09 W 85.48 feet
14. N 42 deg. 54' 55" W 294.28 feet
15. N 38 deg. 11' 51" W 55.00 feet
16. N 72 deg. 45' 58" W 83.84 feet
17. S 66 deg. 33' 05" W 57.31 feet
18. N 69 deg. 23' 35" W 301.68 feet
to the Easternmost corner of those lands conveyed to the State of California by J627 of Official Records at
page 1271, Santa Clara County; thence along the Southerly line of last said lands S 83 deg. 53' 57" W 44.13
feet; thence Northwesterly along a 1585 Foot radius curve to the right, from a tangent bearing N 82 deg. 52'
34" W., said curve having an interior angle of 18 deg. 50' 48", and a length of 521.36 feet to a point lying
91.84 feet Southerly along the said 1585 Foot radius curve from an angle point in last said Southerly line;
thence 5 0 deg. 09' W 419.62 feet; thence S 17 deg. 14' 00" E 810.00 feet; thence S 20 deg. 16' 11" W 194.80
feet to a point on the Northeasterly line of said Parcel Three, last said point being N 69 deg. 43' 49" W 288.41
feet from the Northeasterly corner of said Parcel Three; thence 5 69 deg. 43' 49" E. 288.41 feet to the Point of
Beginning.
Excepting therefrom the the following described parcel of land:
7
CLTA Preliminary Report Form - Modified (11/17/06)
EXHIBIT "Au (continued)
TItle No. 07-98702516-KV
Locate No. CACTI7743-7743-2987-0098702516
Beginning at the Northeastern most corner of said Parcel Four and proceeding 500 deg. 09' 33" E along the
East line of said Parcel Four, 269.81 feet to the Westerly terminus of the Northeast line of a
Pedestrian/Equestrian Easement as shown on Parcel One on that Parcel Map recorded in Book 663 of Maps at
Pages 13 and 14, Santa Clara County Records; thence N 30 deg. 15' W 412.10 feet more or less to a point on
the Northeasterly line of said Parcel Four; thence S 67 deg. 23' E 224.09 feet along last said line to the Point of
Beginning.
Excepting therefrom all that portion lying Westerly of the Westerly line of said Parcel 4
And, in addition thereto, the following parcel of land designated as 'Transfer Parcel" on the accompanying plat
entitled "Exhibit B", being more particularly described as follows:
A portion of Parcel B, as said Parcel is described in that certain Certificate of Compliance for Lot Line
Adjustment filed for record as Document Number 14139227, Official Records of Santa Clara County, California,
being more particularly described as follows:
BEGINNING at southwesterly corner of said Parcel B, said point also being the southerly terminus of the course
designated as S 00 02" E 1672.30 feet on that certain Lot Line Adjustment Parcel Map filed for record in Book
494 of Maps, at Page 43, Records of Santa Clara County, California, and the northwest corner of Lot 61, as
said Lot 61 is shown on the map of Tract 9365, Eagle Ridge, filed for record in Book 748 of Maps, at Page 20,
Records of Santa Clara County, California; thence running along the common line of said Parcel B and Parcel C
1.) N 000 09' 33" W, a distance of 1,402.67 feet to the northwesterly corner of said Parcel B; thence leaving
said common line and running along the northerly line of said Parcel B
2.) S 310 08' 00" E, a distance of 262.40 feet to the beginning of a curve to the left having a radius of 193.00
feet; thence continuing along said northerly line
3.) Southeasterly along said curve, through a central angle of 49007' 00", a distance of 165.45 feet to the
beginning of a compound curve to the left having a radius of 632.00 feet; thence continuing along said
northerly line
4.) Easterly along said curve, through a central angle of 230 25' DO", a distance of 258.30 feet; thence
continuing along said northerly line
5.) N 76020' 00" E, a distance of 499.27 feet to the beginning of a curve to the right having a radius of
1,360.00 feet; thence continuing along said northerly line
6.) Easterly along said curve, through a central angle of 130 40' 00"; a distance of 324.40 feet; thence
continuing along said northerly line
7.) East, a distance of 88.59 feet to the beginning of a curve to the left having a radius of 65.00 feet; thence
continuing along said northerly line
8.) Easterly along said curve, through a central angle of 04037' 09"; a distance of 5.24 feet; thence continuing
along said northerly line
9.) S 000 36' 00" E, a distance of 0.34 feet; thence continuing along said northerly line
10.) S 890 59' 56" E, a distance of 240.84 feet to the northeasterly corner of said Parcel B; thence leaving said
northerly line and running along the easterly line of said Parcel B
8
CLTA Preliminary Report Fonn . Modified (11/17{06)
EXHIBIT "A" (continued)
Title No. 07-98702516-KV
Locate No. CACTI7743-7743-2987-0098702516
11.) 5 00008' 00" E, a distance of 304.39 feet; thence leaving said easterly line
12.) 5 870 59' 43" W, a distance of 330.76 feet; thence
13.) N 890 02' 02" W, a distance of 222.92 feet; thence
14.) 5 840 51' 07" W, a distance of 357.84 feet; thence
15.) 5 760 21' 10" W, a distance of 402.59 feet; thence
16.) N 880 13' 32" W, a distance of 194.26 feet; thence
17.) N 630 29' 09" W, a distance of 72.82 feet; thence
18.) 5 210 41' 39" W, a distance of 190.51 feet; thence
19.) 5 000 46' 42" E, a distance of 146.48 feet; thence
20.) 5 090 19' 49" E, a distance of 120.58 feet; thence
21.) 5 020 29' 27" W, a distance of 36.13 feet; thence
22.) 5 040 18' 56" W, a distance of 178.81 feet; thence
23.) 5 000 07' 43" W, a distance of 178.08 feet to the southerly line of said Parcel B, also being the northerly
line of said Lot 61 of Tract 9365; thence running along said southerly line of Parcel B and northerly line of Lot
61
24.) N 89" 52' 17" W, a distance of 48.11 feet to the POINT OF BEGINNING.
Being Parcel C as described in the Certificate of Compliance Recorded May 2, 2005 as Instrument No.
18348300.
APN 810-18-002; 810-19-005, 007, 010, 011, and 014
9
CLTA Preliminary Report Fonn - Modified (11/17/06)
EXHIBIT B
LEASE
(See attached pages.)
\TMORELL\734864.15
011708-04706118
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SINGLE TENANT LEASE
(Gilroy Gardens Property, Gilroy, California)
THIS SINGLE TENANT LEASE ("Lease"), dated e:f- .:z L, 2008 (the "Commencement
Date"), is entered into by and between GILROY GARDENS FAMILY THEME PARK, INC., a
Delaware nonprofit corporation formerly known as "Bonfante Gardens, Inc." ("Tenant") and the
CITY OF GILROY, a municipal corporation ("Landlord").
RECITALS
WHEREAS, immediately prior to the effectiveness of this Lease, Landlord purchased
from Tenant that certain real property located in Gilroy, California, as more particularly
described in Exhibit A attached hereto (the "Land"), the buildings and improvements located on
the Land (the "Improvements"), and certain other related assets (the Land, Improvements and
other assets acquired by Landlord pursuant to the Sale Contract being the "Property"), all
pursuant to and in accordance with the provisions of that certain Purchase and Sale Agreement,
dated for reference purposes as of January 22, 2008, by and between Tenant, as "Seller," and
Landlord, as "Purchaser" (the "Sale Contract").
WHEREAS, the Land is improved with a horticultural education and theme park known
as "Gilroy Gardens," which was developed and constructed by Tenant, which has been operated
by Tenant from its inception, and which shall continue to be operated by Tenant during the
Term, subject to and under the terms ofthis Lease.
WHEREAS, this Lease is being entered into as is contemplated by the provisions of the
Sale Contract.
WHEREAS, Landlord and Tenant are mutually desirous of setting forth herein their
understanding with respect to the use and operation of the Premises (defined below) and the
Licensed Property (defined below), and their respective rights, duties and obligations pertaining
thereto, all upon the terms and subject to the conditions hereinafter set forth.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable
consideration paid by each of the parties hereto to the other, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby covenant
and agree as follows:
1. PREMISES.
1.1 Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
the Land and Improvements (collectively, the "Premises"), together with a concurrent license to
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use the other Property conveyed by Tenant to Landlord under the Sale Contract, such as personal
property and intangible rights relating to the Premises sold to Landlord by Tenant (such other
licensed Property being the "Licensed Property"), upon all of the conditions and agreements set
forth in this Lease. The leasing of the Premises and licensing of the Licensed Property by
Landlord to Tenant is expressly subject to all liens, encumbrances, restrictions, conditions, and
other matters recorded against the Premises in the Official Records or Santa Clara County,
California ("Official Records") as of the Commencement Date ("Existing Title Exceptions").
1.2 Possible Use of Surplus Property. Tenant acknowledges that Landlord
will be evaluating potential uses of the Premises prior to and following the expiration of the
Term. At Landlord's request, Tenant agrees to meet and confer in good faith regarding
Landlord's possible use of any portion of the Premises not used by Tenant in its business
operations or otherwise needed by Tenant (including without limitation the Surplus Land
described in Section 5.1 below), on such terms and conditions as are mutually acceptable to the
parties.
2. LEASE TERM.
2.1 Tenn. The term of this Lease ("Term") shall be for approximately two
(2) years, commencing on the Commencement Date, and expiring on February 28,2010. "Lease
Termination" shall mean the expiration or sooner termination ofthis Lease.
2.2 Early Entry. Tenant acknowledges that Tenant's use and occupancy of the
Premises and use of the Licensed Property prior to the Commencement Date has been and is at
Tenant's sole risk, and at all times in accordance with Tenant's interest as owner thereof.
2.3 Acceptance. Tenant hereby accepts the Property in its "AS IS" and
"WITH ALL FAULTS" condition, without representation or warranty of any kind, express or
implied, and subject to all applicable Laws (defined in Paragraph 5.3 below). Tenant is the
immediately prior owner of the Property and is highly familiar with and satisfied with the
condition of the Property. Landlord shall have no obligation to maintain, repair, replace, or
construct any portion of the Property, it being intended that all such obligations shall be the sole
obligation of Tenant pursuant to this Lease. Neither Landlord nor Landlord's agents makes any
representation or warranty as to the suitability of the Property for the conduct of Tenant's
business, the condition of the Property, the use or occupancy which may be made thereof, or any
other matter related to the Property, and Tenant is satisfied in all respects that the Property is and
will be suitable for Tenant's intended use. None of the provisions of this Lease, including the
Term as defined in Section 2.1 of this Lease shall be deemed to affect Tenant's corporate
governing documents, including Tenant's corporate Bylaws, or serve to diminish or qualify
Landlord's rights and powers relating to such governing documents.
3. RENT.
3.1 Rent.
(a) Base Rent. During each twelve (12) month period during the Term
(each, a "Lease Year"), Tenant shall pay to Landlord as Base Rent the amount of One Dollar
($1.00) per Lease Year, without proration as to any partial Lease Year. Base Rent for the first
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Lease Year shall be paid upon execution of this Lease by Tenant, and Base Rent for the
remaining Lease Year shall be paid on the first day of the remaining Lease Year. Base Rent
shall be paid throughout the Term without offset, deduction, prior notice or demand.
(b) Percentage Rent. During and for each fiscal year of Tenant
(running from March 1 through the end ofthe following February) during the Tenn, Tenant shall
pay annual percentage rent ("Percentage Rent") equal to ten percent (10%) percent of all of
Tenant's positive "EBITDA" (hereinafter defined) from all operations, including in pertinent
part resulting from business conducted in, on or from the Premises during the fiscal year. Within
sixty (60) days after the close of each such fiscal year, Tenant shall furnish to Landlord a
compilation prepared by an officer of Tenant setting forth the amount of EBITDA during the
preceding fiscal year and showing the amount of Percentage Rent, if any, required to be paid by
Tenant for such fiscal year. The full amount of any Percentage Rent due shall be paid to
Landlord on the July 1 that follows the end of Tenant's fiscal year (e.g., 4 months after the end of
the fiscal year).
(c) EBITDA. For the purposes of calculating Percentage Rent due
under this Lease, the tenn "EBITDA" shall mean: the net income (but not loss) of Tenant for
Tenant's fiscal year as set forth above, detennined in accordance with generally accepted
accounting principles ("GAAP"), plus, to the extent deducted in computation of such Net
Income, any interest expense, the amount of depreciation and amortization expense, and any tax
liability allocable to such period, all as detennined in accordance with GAAP. For such purpose,
Net Income (and accordingly EBITDA as that tenn is used herein) shall not include any addition
for capital gains or deduction for capital losses on the sale or other disposition, of investments or
fixed or capital assets, in that the intention of Landlord and Tenant is that Percentage Rent is to
generally reflect the success of Tenant's business operations, which should not be distorted by
such non-cash accounting charges.
3.2 Additional Rent. All amounts which Tenant is required to pay under this
Lease, and all damages, costs and expenses which Landlord may incur by reason of any default
by Tenant under this Lease shall be deemed to be additional rent hereunder ("Additional Rent").
Upon nonpayment of Additional Rent, Landlord shall have all of the rights and remedies with
respect thereto as Landlord has for the non-payment of Base Rent. "Rentals" as used in this
Lease shall mean Base Rent and all Additional Rent. All Rentals shall be paid in lawful money
of the United States to Landlord at the address specified in this Lease for purposes of notice, or
to such other persons or at such other places as may be designated in writing by Landlord from
time to time. All Rentals shall be paid without offset or deduction and, except as otherwise
expressly provided in this Lease, without prior notice or demand. Base Rent will be an
absolutely net return to the Landlord throughout the Tenn, free of any expense, charge, or other
deduction whatsoever with respect to the Property or the Landlord's interest therein, or the
ownership, leasing, operation, management, maintenance, repair, use or occupation thereof. This
Lease is a true "net lease" and Tenant's obligations arising or accruing during the Term to pay all
Rentals and any other payments hereunder required to be made by Tenant will be absolute and
unconditional and Tenant will pay all such amounts without notice, demand, counterclaim, set-
off, deduction or defense and without abatement, suspension, defennent, diminution or reduction
(except as otherwise expressly provided herein), free from any charges, assessments,
impositions, expenses or deductions of any and every kind or nature whatsoever. All costs,
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expenses and obligations of every kind and nature whatsoever relating to the Property and the
use and occupancy thereof which may arise or become due and payable during or with respect to
the Tenn (whether or not the same will become payable during such Term or thereafter) shall be
paid by Tenant. Tenant assumes the sole responsibility for the condition, use, operation,
maintenance, and management of the Property, and Landlord will have no responsibility in
respect thereof and will have no liability for damage to the Property or any other assets of Ten ant
on any account or for any reason whatsoever.
3.3 Tenant Required At All Times to Maintain Nonprofit Status. This Lease,
including without limitation the nominal base rental amount reflected in Paragraph 3.1, has been
negotiated specifically in consideration of Tenant's status as a nonprofit corporation, and
Tenant's agreement to maintain its nonprofit status and to use the Property in accordance with
the terms and conditions of this Lease. Accordingly, Tenant covenants and warrants that during
the Term, Tenant shall at all times be (i) an organization described in Section 501(c)(3) of the
Internal Revenue Code ("Code"), or corresponding provisions of prior law, (ii) exempt from
federal income taxes under Section 501(a) of the Code (except for unrelated business income
subject to taxation under Section 511 of the Code), and (iii) in compliance with the terms,
conditions and limitations contained in said Code Sections. Any breach of the covenants in this
Section shall be a material default by Tenant under this Lease.
4. TAXES.
4.1 Real Property Taxes. Tenant shall pay, before the same become
delinquent, all Real Property Taxes imposed against the Premises during the Term or otherwise
attributable to any period prior to or within the Term. As used in this Lease, "Real Property
Taxes" means any fonn of assessment, license, fee, rent tax, levy, possessory interest or other
tax (other than Landlord's net income, estate, successor or inheritance taxes), now or hereafter
imposed by any authority having the direct or indirect power to tax or by any city, county, state
or federal government or any improvement or other district or division thereof, whether or not
now customary or within the contemplation of the parties, ordinary or extraordinary, general or
special, together with any taxes levied or assessed in lieu of, in substitution for, or in addition to
existing taxes and assessments against the Premises, provided that the foregoing shall specially
exclude any increases in Real Property Taxes resulting from a change in ownership occurring
after the Commencement Date and not caused by Tenant, Tenant's subtenants or anyone
claiming by or through Tenant or its subtenants. Tenant acknowledges that in connection with
California Revenue and Taxation Code 107.6, upon Landlord's lease of the Premises to a
nongovernmental entity, a possessory interest subject to property taxes may be created, and such
parties in whom the possessory interest is vested may be subject to the payment of taxes levied
on such interest, all of which shall be the obligation of Ten ant hereunder.
4.2 Tax on Leasehold or Personalty. Tenant shall be responsible for and shall
pay before delinquency all municipal, county or state taxes, levies and fees of every kind and
nature including, but not limited to, general or special assessments assessed during or with
respect to any period prior to or within the Tenn against any leasehold interest or trade fixtures
or personal property of any kind, owned, leased or licensed by, or placed in, upon or about the
Premises, by Tenant, including without limitation the Licensed Property. Tenant agrees to pay
before delinquency the amount of all taxes levied upon or measured by the rent payable
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hereunder, whether as a so-called sales tax, transaction privilege tax, excise tax, or otherwise. If
such taxes, levies or fees are assessed, levied, or imposed upon Landlord or any portion of the
Premises, Landlord shall give Tenant a statement of the amount applicable to the Premises. If a
separate assessment of the improvements is not available from the appropriate governmental
authority, Landlord's good faith allocation shall be binding on Tenant. In such event, Tenant
shall pay Landlord on demand for such taxes, levies and fees applicable to the Premises.
5. COVENANTS OF TENANT.
5.1 Use of the Premises. Tenant shall use the Property solely for the
continuous operation of the Gilroy Gardens horticultural education and theme park, at all times
in substantial confonnity with the manner of the operations engaged in by Tenant during the two
(2) year period immediately prior to the Commencement Date. Notwithstanding the foregoing to
the contrary, the parties acknowledge that the theme park is operated on approximately 70 acres
of land and Tenant shall have the right to use the remaining acreage (hereinafter collectively
referred to as the "Surplus Land" for any lawful short tenn use consistent with Tenant's
charitable mission, or otherwise as shall be consented to in advance by Landlord in writing, in
the reasonable exercise of Landlord's discretion.
5.2 Compliance with Law. Tenant, at its expense, shall comply promptly with
all applicable Laws regulating the use by Tenant of the Property, foreseen or unforeseen,
ordinary as well as extraordinary, even if the same will require structural or extraordinary
repairs, alterations or additions; provided, however, if such compliance requires capital
expenditures for or capital improvement to the Premises, costing in excess of a cumulative
amount of Fifty Thousand Dollars ($50,000), then in lieu of bringing the Premises into
compliance, the Tenant may elect to terminate this Lease on no less than thirty (30) days advance
written notice to Landlord. Upon receipt of such termination notice, without any obligation to do
so, Landlord may elect to keep this Lease in effect by agreeing in writing, within ten (10)
business days after Landlord's receipt of Tenant's tennination notice, to pay the cost of the
requisite compliance costs in excess of Fifty Thousand Dollars ($50,000), in which event
Tenant's termination notice shall be void. Tenant shall place no loads upon the floors, walls or
ceilings in excess of the maximum designed load or which endanger the structure; nor place any
harmful liquids in the drainage systems; nor dump or store waste materials or refuse or allow
such to remain upon the Premises, except in designated enclosed trash areas.
5.3 Specific Compliance Obligations. Without limiting the generality of
Paragraph 5.2 above, but subject to Tenant's right to terminate this Lease as provided therein,
Tenant shall comply, at its sole cost and expense, with all present and future laws, statutes,
codes, ordinances, permits, licenses, rules, orders, regulations and governmental approvals and
requirements (including, but not limited to, any health and safety regulations, the American's
With Disabilities Act and all zoning and land use ordinances or regulations affecting the Property
or Tenant's use thereof) relating to the Property and any amendments thereto (collectively,
"Laws"), regardless of whether any such law imposes the duty of compliance on Landlord or
Tenant. The foregoing obligation will include making any alteration or other modification to the
Property required by any such Laws. Tenant will not use, occupy, or permit the Property to be
used or occupied, nor do or permit anything to be done in or on the Premises in a manner which
would (a) violate any certificate of occupancy or equivalent certificate affecting the Premises, or
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(b) constitute a public or private nuisance or waste. Tenant further agrees that it will, at its own
cost and expense, fully and faithfully perform and observe all requirements and conditions of all
the Existing Title Exceptions insofar as the same imposes any obligation upon the Landlord.
5.4 Hazardous Materials.
5.4.1 As used in this Lease, the following terms are defined as follows:
(a) "Hazardous Materials" shall mean any substance: (A) that now
or in the future is regulated or governed by, requires investigation or remediation under, or is
defined as a hazardous waste, hazardous substance, pollutant or contaminant under any Laws,
including for example only and without limitation, the Comprehensive Environmental Response
Compensation and Liability Act, 42 V.S.C. S 9601 et ~., and the Resource Conservation and
Recovery Act, 42 U.S.c. S 6901 et ~., or (B) that is toxic, explosive, corrosive, flammable,
radioactive, carcinogenic, dangerous or otherwise hazardous, including for example only and
without limitation, gasoline, diesel, petroleum hydrocarbons, polychlorinated biphenyls (PCBs),
asbestos, mold, radon and urea fonnaldehyde foam insulation.
(b) "Environmental Requirements" shall mean all Laws of any kind
applicable to Hazardous Materials.
(c) "Handle," "Handled," or "Handling" shall mean any
installation, handling, generation, storing, treatment, use, disposal, discharge, release,
manufacture, refinement, presence, migration, emission, abatement, removal, transportation, or
any other activity of any type in connection with or involving Hazardous Materials.
(d) "Environmental Losses" shall mean all costs and expenses of any
kind, damages, fines and penalties incurred in connection with any violation of and compliance
with Environmental Requirements by Tenant or Tenant's Representatives, or resulting from the
activities of any person or entity (other than Landlord) upon any portion of the Premises prior to
or during the Tenn, including without limitation all losses of any kind attributable to the
diminution of value, loss of use or adverse effects on marketability or use of any portion of the
Property, and all attorneys' and consultants' fees incurred in connection therewith.
(e) "Tenant's Representatives" shall mean
employees, officers, contractors, subtenants, assignees, licensees,
representatives.
Tenant's agents,
transferees and
5.4.2 No Hazardous Materials shall be Handled at the Premises by
Tenant, Tenant's Representatives or Tenant's visitors, invitees or guests without Landlord's prior
written consent, which consent may be granted, denied, or conditioned upon compliance with
Landlord's requirements, all in Landlord's sole, absolute discretion; except that Tenant shall have
the right to use the Hazardous Materials to the extent necessary to the operation of the Gilroy
Gardens amusement and recreational park but provided in all cases that any such Hazardous
Materials stored at the Premises shall not exceed commercially reasonable quantities thereof and
that all such Hazardous Materials shall at all times be Handled in accordance with all
Environmental Requirements. All activities at the Premises, including without limitation the
Handling of all Hazardous Materials by Tenant or Tenant's Representatives, shall comply at all
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times with all Environmental Requirements. At Lease Termination, Tenant shall have removed
from the Premises all Hazardous Materials, other than those that may have migrated onto the
Property from an offsite source and which were not caused by Tenant or Tenant's
Representatives, and other than Hazardous Materials contamination to the extent caused by the
acts of Landlord. Tenant shall keep Landlord fully and promptly informed of all Handling of
Hazardous Materials by Tenant or Tenant's Representatives or otherwise occurring upon the
Premises.
5.4.3 Subject to this Paragraph 5.4.3 below, Tenant shall, at its own
expense, promptly take all actions required by any governmental authority in connection with
any Hazardous Materials affecting the Premises which were improperly Handled by Tenant or
Tenant's Representatives, including without limitation, inspection and testing, performing all
cleanup, removal and remediation work required with respect to those Hazardous Materials,
complying with all closure requirements and post-closure monitoring, and filing all required
reports or plans. All of the foregoing work and all Handling of all Hazardous Materials shall be
performed in a good, safe and workmanlike manner by consultants qualified and licensed to
undertake such work and in compliance with all Environmental Requirements. Tenant shall
deliver to Landlord prior to delivery to any governmental authority, or promptly after receipt
from any such authority, copies of all permits, manifests, closure or remedial action plans,
notices, and all other documents relating to Hazardous Materials affecting the Premises which
were improperly Handled by Tenant or Tenant's Representatives. Tenant shall remove at its
own expense, by bond or otherwise, all liens or charges of any kind filed or recorded against the
Premises in connection with Hazardous Materials affecting the Premises which were improperly
Handled by Tenant or Tenant's Representatives, within ten (10) days after the filing or recording
of such lien or charge, and if Tenant fails to do so, Landlord shall have the right, but not the
obligation, to remove the lien or charge at Tenant's expense in any manner Landlord deems
expedient. Notwithstanding the foregoing, Tenant's obligations pursuant to this Paragraph 5.4.3
shall not apply to Hazardous Materials that were not caused by Tenant or Tenant's
Representatives.
5.4.4 Tenant agrees to indemnify, defend and hold harmless Landlord
and Landlord's officers, council members, employees, agents, agencies and other affiliates and
representatives from all Environmental Losses incurred by Landlord from or in connection with
Hazardous Materials on the Premises arising out of the Handling of Hazardous Materials by
Tenant or Tenant's Representatives, or Tenant's breach of its obligations pursuant to the
provisions of Paragraph 5.4 above; provided however that Tenant's obligations pursuant to this
Paragraph 5.4.4 shall not apply to Hazardous Materials that were not caused by Tenant or
Tenant's Representatives. Tenant's obligations under this Paragraph 5.4 shall survive the
expiration or termination ofthis Lease.
6. MAINTENANCE. REPAIRS. AND AL TERA nONS.
6.1 Tenant's Responsibility. Tenant shall, during the Term, keep in good
order, condition and repair the Premises and every part thereof, including, without limitation,
buildings, roofs and structures, all fixtures, interior walls and interior surface of exterior walls,
exterior facade, exterior walls, rides, attractions, landscaping, sidewalks, parking areas and other
exterior areas, electrical and plumbing systems, heating, ventilating and air conditioning systems,
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all equipment, windows, plate glass, downspouts, gutters, ceilings, floors and floor coverings,
and doors, subject to Paragraphs 6.4 and 8.1 below. Tenant shall, during the Term, also keep in
good order, condition and repair all of the personal property licensed to Tenant under this Lease.
Tenant shall keep the Premises at all times in a neat, clean and sanitary condition, shall neither
commit nor permit any waste or nuisance thereon, and shall keep the walks and all exterior areas
thereto free from Tenant's waste or debris. Tenant's obligations under this Paragraph 6.1 shall
include the obligation to replace any of the foregoing items, or any portion thereof, which cannot
be fully repaired, subject to Paragraphs 6.4 and 8.1 below. In no event shall Landlord have any
repair or maintenance responsibility for the Premises or Licensed Property, or any portion
thereof. Notwithstanding the foregoing to the contrary, in the event such maintenance and
repairs requires capital expenditures for or capital improvement to the Premises, then, in lieu of
making such repairs, Tenant may elect to terminate this Lease on no less than thirty (30) days
advance notice to Landlord.
If Tenant fails to perform its obligations under this Paragraph 6.1, notwithstanding any
other provision hereof and without waiving any other right or remedy Landlord may have,
Landlord may, at its option, after ten (10) days' written notice to Tenant, enter upon the Premises
and put the Premises and/or Licensed Property in good order, condition and repair and at
Landlord's further option, continue such maintenance and repair obligation for the remainder of
the Term, and the cost thereof shall become immediately due and payable as Additional Rent by
Tenant to Landlord upon demand.
6.2 Condition Upon Surrender. On Lease Tennination, Tenant shall surrender
the Premises and Licensed Property to Landlord in the same condition as exists on the
Commencement Date, ordinary wear and tear excepted, subject to Paragraph 8.1 below. Upon
Lease Tennination, all of Tenant's rights with respect to the Premises and Licensed Property
shall tenninate.
6.3 Improvements by Tenant. Tenant shall not, without prior written consent
of Landlord, which consent will not be unreasonably withheld except as provided in Paragraph
6.4 below, make any alterations, improvements, or additions (collectively, "Alterations") to the
Premises. Before commencing any Alterations, Tenant shall submit plans and specifications to
Landlord for Landlord's approval. At least ten (10) days prior to undertaking construction of any
Alterations, Tenant shall give written notice to Landlord setting forth the date work is to
commence. Landlord shall have the right at all reasonable times to post and keep posted on the
Premises such notices of nonresponsibility as Landlord may deem necessary for the protection of
Landlord and the Premises from mechanic's and materialman's liens. All Alterations shall be
installed at Tenant's sole cost and expense, in compliance with all applicable Laws and any
covenants, conditions or restrictions of record, shall be done in a good and workmanlike manner
by licensed contractors conforming in quality and design with the Premises existing as of the
Commencement Date, and shall not diminish the value of the Premises. All Alterations made by
Tenant shall be and become the property of Landlord upon installation and shall not be deemed
Tenant's personal property.
6.4 Limitation on Expenditures. Notwithstanding the proVISIons of this
Article 6 above, Tenant may only make or install, without Landlord's prior written approval, any
Alterations, refurbishments, new attractions or capital improvements which in the aggregate in
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any Lease Year would not result in an expenditure of over One Hundred Thousand Dollars
($100,000). The foregoing limitation on expenditures does not apply to ordinary repairs and
maintenance which are not in the nature of capital improvements. All alterations,
refurbishments, new attractions or capital improvements made pursuant to the provisions of this
Paragraph 6.4, shall remain on the Premises at Lease Termination and Tenant shall have no duty
to remove same on Lease Termination.
7. INSURANCE AND INDEMNITY.
7.1 Tenant to Maintain. Tenant shall at all times maintain insurance coverage
providing coverage at least as broad as the existing insurance coverage maintained by Tenant
that is described in the schedule attached hereto as Exhibit C. Without limiting the scope of the
insurance requirements of Exhibit C, but as a supplement to the requirements thereof, Tenant
shall maintain in full force throughout the Tenn, commercial general liability insurance
providing coverage on an occurrence form basis with limits of not less than Five Million and
NollOOths Dollars ($5,000,000.00) each occurrence for bodily injury and property damage
combined, Five Million and Noll OOths Dollars ($5,000,000.00) annual general aggregate, and
Five Million and Noll OOths Dollars ($5,000,000.00) products and completed operations annual
aggregate. Tenant's liability insurance policy or policies shall: (i) include premises and
operations liability coverage, products and completed operations liability coverage, broad form
property damage coverage including completed operations, blanket contractual liability coverage
including, to the maximum extent possible, coverage for the indemnification obligations of
Tenant under this Lease, and personal and advertising injury coverage; (ii) provide that the
insurance company has the duty to defend all insureds under the policy; (iii) provide that defense
costs are paid in addition to and do not deplete any of the policy limits; (iv) cover liabilities
arising out of or incurred in connection with Tenant's use or occupancy of the Premises or the
Property; and (v) extend coverage to cover liability for the actions of Ten ant's Representatives.
7.2 Insurance Requirements. The policies required to be maintained by
Tenant pursuant to Paragraph 7.1 above shall be with companies, on forms, with deductible
amounts (if any), and loss payable clauses satisfactory to Landlord. All liability policies shall
include Landlord as an additional insured, and shall provide that Landlord may, although an
additional insured, recover for any loss suffered by Tenant's negligence. Certificates of
insurance and, if requested by Landlord, certified copies of policies and endorsements
evidencing the required coverage, shall be delivered to Landlord prior to the Commencement
Date; a new certificate, or if requested by Landlord certified policy and endorsements, shall be
delivered to Landlord at least thirty (30) days before expiration date of the old policy. Tenant
shall obtain a written obligation on the part of Tenant' s insurer(s) to notify Landlord in writing of
any delinquency in premium payments and at least thirty (30) days prior to any cancellation or
modification of any policy. Tenant's policies shall provide coverage on an occurrence basis and
not on a claims made basis. In no event shall the limits of any policies maintained by Tenant be
considered as limiting the liability of Tenant under this Lease.
7.3 Waiver of Liabilitv. Landlord and Tenant each hereby waives any and all
rights of recovery against the other or against the employees, representatives and agents of such
other party for loss of or damage to such waiving party or its property or the property of others
under its control, arising from any cause to the extent insured against under any insurance policy
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carried by such waiving party pursuant to this Lease and to the extent such waiver is permitted
under such insurance policy and does not prejudice coverage under such policy. Tenant shall
obtain and furnish evidence to Landlord ofthe waiver by Tenant's insurance carriers of any right
of subrogation against Landlord.
7.4 Tenant to IndemnifY. Tenant hereby agrees to defend, indemnifY and hold
harmless Landlord and Landlord's officers, council members, employees, agents, agencies and
other affiliates and representatives from and against any and all claims, damages, losses,
liabilities or expenses (including without limitation reasonable attorneys' fees) due to any cause
including without limitation, bodily injury and property damage, which arises out the use or
occupancy of the Premises or any part thereof, the acts or omissions of Tenant or Tenant's
Representatives, or Tenant's breach of this Lease, except to the extent caused by the willful
misconduct or active negligence of Landlord. Tenant's obligation under this Paragraph 7.4 shall
survive Lease Tennination.
7.5 Landlord's Disclaimer. Landlord shall not be liable for injury or damage
which may be sustained by the person, goods, wares, merchandise or property of Tenant, its
employees, invitees or customers or any other person in or about the Premises caused by or
resulting from fire, steam, electricity, gas, water or rain which may leak or flow from or into any
part of the Premises, or from the breakage, leakage, obstruction or other defects of the pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the same, or from
any other cause, whether such damage or injury results from conditions arising upon the
Premises or from other sources.
8. REPAIRS AND RESTORATION.
8.1 Damage. Subject to this Paragraph 8.1 below, if at any time during the
Term the Premises are damaged, whether partially or entirely, Tenant shall have the option to
either (i) promptly repair such damage or rebuild the Premises at Tenant's sole cost and expense,
in which event this Lease shall continue in full force and effect, or (ii) terminate this Lease by
giving written notice of termination to Landlord within sixty (60) days following the event of
damage. Notwithstanding the foregoing, if within thirty (30) days following the event of
damage, the Landlord notifies Tenant in writing that: (i) Landlord has determined that the cost to
repair or rebuild the Premises is estimated to exceed One Hundred Thousand Dollars ($100,000),
and (ii) that Landlord will not consent to Tenant's repair or restoration of all or any part of such
damage, then Tenant shall not have the right to contract for or commence any such work and
Tenant shall have the option of either (x) continuing this Lease in full force or effect without
making such repairs or restorations that were disapproved by Landlord, or (y) terminating this
Lease by giving written notice of termination to Landlord within thirty (30) days following
Tenant's receipt of Landlord's written notice, as described above. If Tenant fails to provide
Landlord with written notice of termination within thirty (30) day period described in this
Paragraph 8.1 above, Tenant shall be deemed to have elected to continue this Lease in full force
and effect and, except to the extent prohibited by Landlord pursuant to this Paragraph 8.1 above,
repair such damage. If Tenant elects to terminate this Lease pursuant to this Paragraph 8.1
above, or if Landlord has prohibited repairs pursuant to this Paragraph 8.1 above, then all
insurance proceeds paid to Tenant or otherwise recoverable under the any insurance policy in
connection with such casualty (other than business interruption insurance proceeds) shall be paid
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over to Landlord immediately upon receipt of such payment by Tenant, it being agreed that
Tenant shall have no right to any such proceeds. If Tenant elects and has the right to repair the
damage, Tenant shall be entitled to utilize the insurance proceeds paid as a result of such
casualty to effectuate such repairs, with any excess proceeds to be paid over to Landlord In no
event shall Landlord be obligated to repair or rebuild the Premises in the event of any damage or
destruction to the Premises from any cause, whether or not insurance proceeds are paid to
Landlord. All repairs by Tenant shall be done in compliance with all applicable Laws and any
covenants, conditions or restrictions of record, by a licensed contractor, and shall be done in a
good workmanlike manner conforming in quality and design with the Premises existing as of the
date the Premises were delivered to Tenant under this Lease. Before commencing repair of the
Premises, Tenant shall submit plans and specifications to Landlord for Landlord's approval,
which approval shall not be unreasonably withheld except to the extent Landlord has the right
not to consent to repairs pursuant to this Paragraph 8.1 above. Tenant's obligations under this
Paragraph 8.1 shall survive Lease Termination.
8.2 Notice. Rent Abatement Refixturing. Tenant shall notify Landlord in
writing immediately upon the occurrence of any damage or destruction to all or any portion of
the Premises. There shall be no abatement of Rent or other Rentals payable hereunder and
Tenant shall have no claim against Landlord for any damage suffered by Tenant by reason of any
such damage, destruction, repair or restoration. In no event shall any damage, destruction,
restoration or repair of any portion of the Premises result in an extension of the expiration date of
the Lease.
9. ASSIGNMENT AND SUBLETTING.
9.1 Landlord's Consent Required. Tenant shall not, either voluntarily,
involuntarily or by operation of law (i) assign, sell or otherwise transfer all or any part of the
Tenant's interest in this Lease or in the Premises or Licensed Property, or (ii) pennit any part of
the Premises to be sublet, occupied or used by anyone other than Tenant, or (iii) permit any
person to succeed to any interest in this Lease, the Premises or the Licensed Property (all of the
foregoing being collectively referred to as a "Transfer"), without the prior written consent of
Landlord, which consent may be granted, conditioned or denied by Landlord in the exercise of
Landlord's sole and absolute discretion. Consent by Landlord to one or more Transfers shall not
operate to exhaust Landlord's rights under this Article to consent to subsequent Transfers. If
Tenant is a corporation, any dissolution, merger, consolidation or reorganization of Tenant, or
the sale (cumulatively) of fifty percent (50%) or more of the value of Tenant's assets shall be
deemed a Transfer. In no event shall Tenant hypothecate, mortgage, pledge or encumber
Tenant's interest in this Lease or in the Premises or Licensed Property or otherwise use the Lease
as a security device in any manner, nor shall Tenant transfer any right appurtenant to this Lease
or the Premises separate from a pennitted Transfer. Tenant expressly agrees that the provisions
of this Article are not unreasonable standards or conditions for purposes of Section 1951.4(b )(2)
of the California Civil Code, as amended from time to time, under the federal Bankruptcy Code,
or for any other purpose. Notwithstanding the foregoing to the contrary, the parties agree that (i)
the entering into a management agreement with Cedar Fair, or some other management company
to manage the theme park does not constitute a violation of this Paragraph 9.1, and (ii) entering
into a short-tenn occupancy agreement consistent with Tenant's charitable purpose, such as
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allowing a week-end camping trip for a scouting group, shall not constitute a sublease requiring
Landlord's consent for purposes ofthis Section 9.1.
9.2 Notice to Landlord. If Tenant desires at any time to effect a Transfer, it
shall first notify Landlord of its desire to do so and shall submit in writing to Landlord (a) the
name of the proposed Transferee; (b) the nature of the proposed Transferee's business to be
carried on in the Premises; and (c) such other infonnation as Landlord may reasonably request to
evaluate the Transfer and Transferee.
9.3 Tenant Not Released. No Transfer, even with the consent of Landlord,
shall relieve Tenant of its obligation to pay the Rentals and perfonn all of the other obligations to
be performed by Tenant hereunder. The acceptance of Rentals by Landlord from any other
person shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be a
consent to any Transfer.
10. EMINENT DOMAIN.
10.1 Automatic Termination. If the entire Premises, or so much thereof as to
make the Premises not reasonably adequate for the conduct of Tenant's business in Tenant's
reasonable judgment, shall be taken under the power of eminent domain, this Lease shall
automatically terminate as of the date on which the condemning authority takes possession.
10.2 No Rent Abatement. If a portion of the Premises is taken by power of
eminent domain which does not result in a termination of this Lease, then this Lease shall
continue in full force and effect as to the part of the Premises not so taken. There shall be no
abatement of Rent or other Rentals payable hereunder and Tenant shall have no claim against
Landlord for any damage suffered by Tenant by reason of any taking of the Premises under the
power of eminent domain.
10.3 Condemnation Award. Any award for any taking of all or any part of the
Premises under the power of eminent domain shall be the property of Landlord, whether such
award shall be made as compensation for diminution in value of the leasehold or for taking ofthe
fee, or otherwise. In no event shall Landlord be obligated to make any repairs or perform any
restoration or other work required as a result of a taking.
lOA Sale Under Threat of Condemnation. A sale by Landlord to any authority
having the power of eminent domain, either under threat of condemnation or while
condemnation proceedings are pending, shall be deemed a taking under the power of eminent
domain for all purposes under this Article. Each party waives the provisions of California Code
of Civil Procedure Section 1265.130 allowing either party to petition the Superior Court to
terminate this Lease in the event of a taking.
11. UTILITY SERVICES. Tenant shall arrange for, and shall timely pay directly to
the appropriate utility or service supplier all charges for, water, gas, heat, light, power, sewer,
electricity, refuse and waste disposal, telephone, janitorial service, or any other service or utility
metered, supplied or provided to the Premises during the Term of this Lease. Landlord shall not
be liable in damages or otherwise for any failure or interruption of any utility or service being
furnished to the Premises and no such failure or interruption shall entitle Tenant to terminate this
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Lease or shall otherwise affect Tenant's obligations under this Lease. Landlord shall be entitled
to cooperate voluntarily and Tenant agrees to cooperate, with the efforts of governmental
authorities or utility suppliers in reducing energy or other resource consumption.
12. DEFAULTS. REMEDIES.
12.1 Defaults. The occurrence of anyone or more of the following events shall
constitute a default hereunder by Tenant:
12.1.1 The failure by Tenant to make any payment required by this
Lease as and when due.
12.1.2 The failure by Tenant to timely observe or perfonn any of the
express or implied covenants or provisions ofthis Lease to be observed or performed by Tenant.
12.1.3 The making by Tenant of any general assignment for the benefit
of creditors; the appointment of a trustee or receiver to take possession of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease, where possession is
not restored to Tenant within thirty (30) days; or the attachment, execution or other judicial
seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interest in
this Lease, where seizure is not discharged within thirty (30) days.
12.2 Remedies. Upon a default, Landlord shall have the following remedies, in
addition to all other rights and remedies provided by law or otherwise provided in this Lease, to
which Landlord may resort cumulatively or in the alternative:
12.2.1 Landlord may terminate this Lease and Tenant's right to
possession of the Premises at any time if (i) such default is in the payment of Rentals and it is not
cured within three (3) days after written notice from Landlord, or, (ii) with respect to the defaults
referred to in Paragraph 12.1.2 such default is not cured within thirty (30) days after written
notice from Landlord; provided, however, that if the nature of Tenant's default is such that more
than thirty (30) days are reasonably required for its cure, if Tenant does not commence to cure
the default within the thirty (30) day period or does not diligently and in good faith prosecute the
cure to completion within a reasonable time thereafter, or (iii) with respect to the default
specified in Paragraph 12.1.3, such default is not cured within the respective time specified in
that Paragraph. The parties agree that any notice given by Landlord to Tenant pursuant to this
Paragraph 12.2.1 shall be sufficient notice for purposes of California Code of Civil Procedure
Section 1161 and Landlord shall not be required to give any additional notice in order to be
entitled to commence an unlawful detainer proceeding. On termination, Landlord has the right to
remove all of Tenant's personal property, signs and trade fixtures and store same at Tenant's cost
and to recover from Tenant as damages:
12.2.1.1 The worth at the time of award of unpaid Rentals and
other sums due and payable which had been earned at the time of termination; plus
12.2.1.2 The worth at the time of award of the amount by which
the unpaid Rentals and other sums due and payable which would have been payable after
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termination until the time of award exceeds the amount of such Rental loss that Tenant proves
could have been reasonably avoided; plus
12.2.1.3 The worth at the time of award of the amount by which
the unpaid Rentals and other sums due and payable for the balance of the Term after the time of
award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided;
plus
12.2.1.4 Any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform Tenant's obligations
under this Lease, or which, in the ordinary course of things, would be likely to result therefrom,
including, without limitation, any costs or expenses incurred by Landlord: (a) in retaking
possession of the Premises or Licensed Property; (b) in maintaining, repairing, preserving,
restoring, replacing, cleaning, altering or rehabilitating the Premises, Licensed Property or any
portion thereof, including such acts for reletting to a new tenant or tenants; (c) for leasing
commissions; or (d) for any other costs necessary or appropriate to relet the Premises; plus
12.2.1.5 Such other amounts in addition to or in lieu of the
foregoing as may be permitted from time-to-time by the laws of the State of California.
The "worth at the time of award" of the amounts referred to in Paragraphs 12.2.1.1 and
12.2.1.2 is computed by allowing interest at the Stipulated Rate (defined in Paragraph 16). The
"worth at the time of award" of the amount referred to in Paragraph 12.2.2.3 is 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 (1 %).
12.3 No delay or omission of Landlord to exercise any right or remedy shall be
construed as a waiver of any such right or remedy or of any default by Tenant hereunder.
12.4 Default by Landlord. Landlord shall not be in default in the performance
of any obligation required to be perfonned by it hereunder unless and until it has failed to
perfonn such obligation within thirty (30) days after written notice by Tenant to Landlord
specifying wherein Landlord has failed to perform such obligation; provided, however, that ifthe
nature of Landlord's obligation is such that more than thirty (30) days are required for its
performance then Landlord shall not be deemed to be in default if it shall commence such
performance within such thirty (30) day period and thereafter diligently prosecute the same to
completion. Notwithstanding any other provision of this Lease, in no event shall Landlord be
liable to Tenant for consequential damages, or loss of or interference with Tenant's business,
including without limitation lost profits.
12.5 Expenses of Prevailing Party. If either party incurs any expense, including
reasonable attorneys' fees, in connection with any action or proceeding instituted by either party
arising out of this Lease, the party prevailing in such action or proceeding shall be entitled to
recover its reasonable expenses including reasonable attorneys' fees from the other party.
12.5 Exculpation. Notwithstanding anything contained in this Lease to the
contrary, any liability or obligation imposed upon Tenant under or with respect to this Lease
shall not thereby constitute the personal liability of any officer or director of Tenant, and shall
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not create or involve any claim against, or any personal liability on the part of any ofthem, and
that in the event any such liability or obligation at any time exists, Landlord shall look solely to
the assets of Tenant for the satisfaction thereof, and will not seek recourse against such officers
or directors or any of their personal assets for such satisfaction.
13. SIGNS. Tenant's signs shall comply with all applicable Laws.
14. RIGHT OF ENTRY. Landlord and its agents shall have free access to the
Premises during all reasonable hours for the purpose of examining the same to ascertain if they
are in good repair, making repairs or installations which Landlord may be permitted to make
hereunder (without obligation to do so), perfonning Landlord's obligations under this Lease,
protecting the Premises (without obligation to do so), posting notices of nonresponsibility, and
exhibiting the same to prospective purchasers, lenders or tenants.
15. TRANSFER OF LANDLORD'S INTEREST. Upon any transfer of Landlord's
interest in the Premises, the transferor shall be automatically relieved of any and all obligations
and liabilities on the part of Landlord accruing from and after the date of such transfer, provided
that the transferee is liable for any and all obligations and liabilities on the part of Landlord
accruing from and after the date of such transfer. Upon such transfer, Tenant shall have the
election of either (i) tenninating this Lease, or (ii) attorning to any transferee of Landlord's
interest in the Premises.
16. INTEREST. Any amount due from Tenant to Landlord hereunder which is not
paid when due shall bear interest from the due date until paid an annual rate of interest (the
"Stipulated Rate") equal to ten percent (10%), provided that in no event shall such rate exceed
the highest rate pennissible under applicable law. Payment of such interest shall not excuse or
cure any default by Tenant under this Lease.
17. MISCELLANEOUS.
17.1 Time of Essence. Time is of the essence with respect to the performance
of every provision of this Lease.
17.2 Captions. The article and paragraph captions contained in this Lease are
for convenience only and shall not be considered in the construction or interpretation of any
provision hereof.
17.3 Entire Agreement and Amendments. This Lease contains all of the
agreements of the parties hereto with respect to any matter covered or mentioned in this Lease,
and no other agreement or understanding pertaining to any such matter shall be effective for any
purpose. No provision of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in interest.
17.4 Notice. Any notices, requests, demands or other communications required or
permitted to be sent under this Agreement shall be delivered personally, sent by overnight
courier or mailed by registered or certified mail, return receipt requested, to the following
addresses:
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If to Purchaser:
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
Attn: Anna Jatczak
Tel: (408) 846-0212
Fax: (408) 846-0500
With a copy to:
Berliner Cohen
10 Almaden Boulevard, Suite 1100
San Jose, CA 95113
Attn: Andrew Faber, Esq.
Tel: (408) 286-5800
Fax: (408) 998-5388
Ifto Seller:
Gilroy Gardens Family Theme Park, Inc.
3050 Hecker Pass Highway
Gilroy, CA 95020
Attn: Bob Kraemer
Tel: (408) 842-6949
Fax: (408) 846-6474
With a copy to:
Miller, Morton, Caillat & Nevis, LLP
25 Metro Drive, 7th Floor
San Jose, CA 95110
Attn: David Nevis, Esq.
Tel: (408) 292-1765
Fax: (408) 292-4484
Any notice so given by mail shall be deemed effectively given two (2) days after being deposited
in the United States mail, registered or certified, postage prepaid and addressed as specified
herein. Either party may by written notice to the other specifY a different address for notice
purposes. Notwithstanding the foregoing, any legal notices required to be sent by one party to
the other (including without limitation, a notice pursuant to California Code of Civil Procedure
Section 1161) shall be delivered in the manner required or allowed by law.
17.5 Holdover. This Lease shall terminate without further notice at the
expiration of the Term. Any holding over after Lease Termination with the consent of Landlord
shall be construed to be a tenancy from month to month, with Base Rent payable at the rate of
One Dollars ($1) per month in advance, but otherwise on the same terms and conditions set forth
in this Lease. If Tenant remains in possession of the Premises after Lease Termination without
Landlord's consent or fails to surrender the Premises and Licensed Property in the condition
required by Paragraph 6.2, Tenant shall indemnifY, defend and hold Landlord and Landlord's
employees, representatives and agents harmless from and against any claims, losses, damages,
expenses or liabilities (including without limitation reasonable attorneys' fees) resulting from
Tenant's failure to surrender the Premises in the required condition, including without limitation,
any claims made by any succeeding tenant based upon delay in the availability ofthe Premises.
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17.6 Brokers. Landlord and Tenant each warrants and represents to the other
that it has had no dealings with any real estate broker or agent in connection with the negotiation
of this Lease. Each party agrees to defend, indemnify and hold the other party and the other
party's employees, representatives and agents harmless from and against any and all claims,
losses, damages, liabilities or expenses (including without limitation reasonable attorney's fees)
arising out of or in connection with the indemnifying parties' breach of its representations and
warranties set forth in this Paragraph 17.6.
17.7 Acceptance. The effectiveness of this Lease shall be conditioned upon the
purchase of the Property by Landlord under the Sale Contract and full execution hereof by
Landlord and Tenant.
17.8 Waiver. The waiver by one party of any breach of any term, condition or
covenant of this Lease shall not be deemed to be a waiver of such provision or any subsequent
breach of the same or any other term, condition or covenant of this Lease. The subsequent
acceptance of Rentals hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach at the time of acceptance of such payment. No covenant, term or condition of
this Lease shall be deemed to have been waived by a party unless such waiver is in writing
signed by such party.
17.9 Separability. If one or more of the provisions contained herein, except for
the payment of Rentals, is for any reason held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provision of this
Lease, but this Lease shall be construed as if such invalid, illegal or unenforceable provision had
not been contained herein.
17.10 Liens. Tenant shall pay for all labor and services performed for, and all
materials used by or furnished to Tenant or Tenant's Representatives and keep the Premises free
from any liens arising out of work performed, materials furnished, or obligations incurred by
Tenant or Tenant's Representatives with respect to the Premises. Tenant shall indemnify, hold
hannless and defend Landlord and Landlord's employees, representatives and agents from and
against any liens, demands, claims, judgments or encumbrances (including all attorneys' fees)
arising out of any work or services performed for or materials used by or furnished to Tenant or
Tenant's Representatives with respect to the Premises. Tenant shall do all things necessary to
prevent the filing of any mechanic's or other liens against the Premises or any part thereof by
reason of work, labor, services or materials supplied or claimed to have been supplied to Tenant,
or anyone holding the Premises, or any part thereof, through or under Tenant. If any such lien
shall at any time be filed against the Premises, Tenant shall either cause the same to be
discharged of record within ten (10) days after the date of filing of the same, or, if Tenant in
Tenant's discretion and in good faith determines that such lien should be contested, Tenant shall
furnish such security as may be necessary or required to (a) prevent any foreclosure proceedings
against the Premises during the pendency of such contest, and (b) cause a the removal of such
lien as a matter affecting title to the Premises. If Tenant shall fail to discharge such lien within
such period or fail to furnish such security, then, in addition to any other right or remedy of
Landlord resulting from Tenant's said default, Landlord may, but shall not be obligated to,
discharge the same either by paying the amount claimed to be due or by procuring the discharge
of such lien by giving security or in such other manner as is, or may be, prescribed by law.
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Tenant shall repay to Landlord on demand all sums disbursed or deposited by Landlord pursuant
to the foregoing provisions of this Paragraph 17.1 0 including Landlord's costs, expenses and
reasonable attorneys' fees incurred by Landlord in connection therewith, with interest thereon at
the Stipulated Rate. Nothing contained herein shall imply any consent or agreement on the part
of Landlord to subject Landlord's estate to liability under any mechanics' or the lien law. Tenant
shall give Landlord adequate opportunity and Landlord shall have the right to post such notices
ofnonresponsibility as are provided for in the mechanics' lien laws of California.
17.11 Subordination. Subject to this Paragraph 17.11 below, this Lease is
subject and subordinate to all the Existing Title Exceptions, and to all renewals, modifications,
consolidations, replacements and extensions thereof; provided, however, if the holder or holders
of any such Existing Title Exception ("Holder") shall require that this Lease be prior and
superior thereto, within seven (7) days after written request of Landlord to Tenant, Tenant shall
execute, have acknowledged and deliver any and all documents or instruments, in the form
presented to Tenant, which Landlord or Holder deems necessary or desirable for such purposes.
Landlord shall have the right to cause this Lease to be and become and remain subject and
subordinate to any and all mortgages, deeds of trust, covenants, conditions and restrictions of
record and all other liens and encumbrances (each a "Future Encumbrance") which may
hereafter be executed covering the Premises or any renewals, modifications, consolidations,
replacements or extensions thereof, for the full amount of all advances made or to be made
thereunder and without regard to the time or character of such advances, together with interest
thereon and subject to all the tenns and provisions thereof, provided that the holder of such
Future Encumbrance ("Future Holder") shall agree in writing for the benefit of Tenant that this
Lease and Tenant's interest hereunder shall not be disturbed so long as Tenant is not in default
under this Lease. Within ten (10) days after Landlord's written request, Tenant shall execute any
and all documents reasonably required by Landlord or a Holder or Future Holder to confinn the
current subordination of this lease to an Existing Title Exception or to make this Lease
subordinate to any lien of a Future Encumbrance, provided that the Holder or Future Holder, as
applicable, agrees that so long as Tenant is not in default under this Lease, this Lease and
Tenant's interest hereunder shall not be disturbed. Tenant hereby attorns and agrees to attorn to
any entity purchasing or otherwise acquiring the Premises at any sale or other proceeding or
pursuant to the exercise of any other rights, powers or remedies under any Existing Title
Exception of Future Encumbrance so long as the Lease remains in effect.
17.12 Tenant's Obligation Not to Discriminate. Tenant covenants and agrees for
itself, its successors, its assigns and every successor-in-interest to all or any portion of the
Premises, that there shall be no discrimination against or segregation of any person, or group of
persons, on account of race, color, religion, sex, sexual orientation, marital status, national
origin, ancestry, familial status, source of income, or disability, in the assignment, sublease,
transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the Tenant, itself or any
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of assignees, sub-tenants, sub-lessees or vendees ofthe Property.
17.13 Landlord's Right to Perform Tenant's Covenants. If Tenant fails to make
any payment or perfonn any other act on its part to be made or performed under this Lease,
Landlord may, but shall not be obligated to and without waiving or releasing Tenant from any
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022508-04706118
obligation of Tenant under this Lease, make such payment or perform such other act to the extent
Landlord may deem desirable, and in connection therewith, pay expenses and employ counsel.
All sums so paid by Landlord and all penalties, interest and costs in connection therewith shall
be due and payable by Tenant immediately on demand, together with interest at the Stipulated
Rate from the date of payment by Landlord to the date of payment by Tenant to Landlord.
17.14 Tenant's Remedy. If, because of a default by Landlord under this Lease,
Tenant recovers a money judgment against Landlord, such judgment shall be satisfied only out
of the proceeds of sale received upon execution of such judgment and levied thereon against the
right, title and interest of Landlord in the Premises and out of rent or other income from the
Premises receivable by Landlord, and neither Landlord, nor any of Landlord's officers, council
members, employees, agents, agencies and other affiliates and representatives, shall be
personally liable for any deficiency. Landlord's officers, council members, employees, agents,
agencies and other affiliates and representatives, nor any oftheir respective assets, shall be liable
for Landlord's breach of this Lease.
17.15 Exhibits. All exhibits, amendments, riders and addenda attached hereto
are hereby incorporated herein and made a part hereof.
17.16 Conditions. All agreements of Tenant contained in this Lease, whether
expressed as conditions or covenants, shall be construed to be both conditions and covenants,
conferring upon Landlord, in the event of a breach thereof, the right to terminate this Lease.
17.17 No Partnership or Joint Venture. Nothing in this Lease shall be construed
as creating a partnership or joint venture between Landlord, Tenant, or any other party, or cause
Landlord to be responsible for the debts or obligations of Tenant or any other party.
17.18 Construction. This Lease shall not be construed either for or against
Tenant or Landlord, but shall be construed in accordance with the general tenor of the language.
This Lease shall be construed in accordance with the laws of the State ofCalifomia.
17.19 Binding Effect. Subject to the provisions of Article 9 and Article 15, all of
the provisions hereof shall bind and inure to the benefit of the parties hereto and their respective
heirs, legal representatives, successors and permitted assigns.
17.20 Legal Representation. Tenant acknowledges and agrees that Berliner
Cohen acts as legal counsel only to Landlord, and that Berliner Cohen has not and will not
represent or give advice to the Tenant in connection with this Lease or any transactions
contemplated by this Lease. Tenant shall rely upon the advice of its own legal counsel as to the
legal and tax consequences ofthis Assignment and the transactions contemplated hereunder.
17.21 Recording. On or promptly following the Commencement Date, Landlord
and Tenant shall execute and record in the Official Records a Memorandum of Lease in the form
attached hereto Exhibit D, with the Commencement Date inserted in the blanks provided for
such information in the introductory paragraph of the Memorandum of Lease. Promptly
following Lease Termination, Tenant agrees to execute in recordable form, a memorandum,
quitclaim deed or other document reasonably requested by Landlord to clear this Lease from
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022508-04706118
title, with signatures notarized for recording in the Official Records. Tenant's obligation
pursuant to this Paragraph 17.21 shall survive Lease Termination.
\KKS\7 44417 .12
022508-04706118
[Signatures on next page]
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THIS LEASE is effective as ofthe Commencement Date set forth above.
TENANT:
GILROY GARDENS FAMILY THEME PARK,
a Delaware nonprofit public benefit corporation
fonnerly known as "Bonfante Gardens, Inc."
By:
.1 '~
I / / /
;.... ..f'- _1 /-
.,(.. A ,'fA/fL.., ~~
IL~V"'. f/ li
.'
LANDLORD:
By:
Its:
APPROVED AS TO FORM:
~~{/c~
City Attorney
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EXHIBIT A
LEGAL DESCRIPTION
[To Be Attached]
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IKKSI7 44417 .12
022508-04706118
Escrow No.: 07-98702516-JW
Locate No.: CACTI7743-7743-2987-0098702516
Title No.: 07-98702516-KV
EXHIBIT "A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF GILROY, COUNTY OF SANTA CLARA, STATE OF
CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Highway, as said line was established by Parcel
One in the Deed from the De Bell Corporation, a Corporation, to the State of California, dated June 12, 1957, recorded July
30,1957 in Book 3855 Official Records, Page 512, Santa Clara County Records, with the Easterly line of that certain 24.07 acre
tract of land described in the Deed from Jack De Bell et ux, to Louis A. Filice, et ux, dated September 15, 1954 recorded
October 19, 1954 in Book 2986 Official Records, Page 527, Santa Clara County Records; thence from said Point of Beginning
South 60 deg 42' 34" East along said Northeasterly line of Hecker Pass Highway for a distance of 599.78 feet; thence
Southeasterly continuing along said last mentioned line along an arc of a curve to the left, tangent to the preceding course,
with a radius of 1450.00 feet, through a central angle of 14 deg 52' 00", for an arc distance of 376.24 feet to the point of
intersection thereof with the Southeasterly prolongation of a Westerly line of that certain 3.728 acre tract of land described in
that certain final order of condemnation entered on November 3, 1958 in the Superior Court of the State of California, in and
for the County of Santa Clara in that certain action entitled, "The People of the State of California, Acting By and Through the
Department of Public Works, Plaintiff, vs. Louis A. Felice et ai, Defendants Case No. 103483," a certified copy of which order
was filed for record in the Office of the Recorder of the County of Santa Clara, State of California, on November 3, 1958 In
Book 4219 Official Records, Page 701, Santa Clara County Records (shown as South 33 deg 16' 39" East 246.03 feet; thence
North 33 deg 16' 30" West along said prolongation and the said Westerly line of the 3.728 acre tract for a distance of 376.66
feet to the Northwesterly corner of said 3.728 acre tract, said point also being the Southwesterly corner of that certain 1.567
acre tract of land described as Parcel Two in the Deed to said State of California above referred to; thence North 24 deg 18'
19" West along the Westerly line of said 1.567 acre tract for a distance of 94.17 feet, thence North 37 deg 18' 07" East
continuing along said Westerly line of the 1.567 acre tract and its Northeasterly prolongation for a distance of 254.41 feet to
the Northeasterly corner of that certain tract of land described in the Deed from the State of California, to the De Bell
Corporation, a California Corporation, dated August 30, 1957, recorded September 27, 1957 in Book 3900 Official Records,
Page 632, Santa Clara County Records; thence North 88 deg 39' 04" West along the Northerly line of land so described in the
Deed to said De Bell Corporation for a distance of 433.45 feet to the Northwesterly corner thereof; thence South 1 deg 47'
West along the Westerly line of land so described in the Deed to said De Bell Corporation for a distance of 64.46 feet to the
Southwesterly corner thereof in the Northerly line of that certain 160.91 acre tract of land described as Parcel Three in the
Deed from Jack De Bell et ux, to the De Bell Corporation, a California Corporation, dated October 26, 1956, recorded April 29,
1957 in Book 3786 Official Records Page 463, Santa Clara County Records; thence North 88 deg 13' West along said Northerly
line of the 160.91 acre tract for a distance of 291.56 feet to the Northeasterly corner of the said 24.07 acre tract above
referred to; thence South 23 deg 11' West along the Easterly line of said 24.07 acre tract for a distance of 130 feet more or
less to the Point of Beginning.
Excepting from the above described Parcel One, the following described parcel of land:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Road, as said line was established by Parcell in
the Deed from De Bell Corporation, a Corporation, to the State of California, dated June 12, 1957, recorded July 30, 1957 in
Book 3855 Official Records, Page 512, Santa Clara County Records, with the Northwesterly line of that certain 160.91 acre
tract of land described as Parcel Three in the Deed from Jack De Bell et UX, to the De Bell Corporation, a California
Corporation, dated October 26, 1956, recorded April 29, 1957 in Book 3736 Official Records, Page 463, Santa Clara County
Records; thence from said Point of Beginning South 60 deg 42' 34" East along said Northeasterly line of Hecker Pass Road, for
a distance of 80.00 feet, thence leaving said last mentioned line and running North 29 deg 17' 26" East 170 feet, more or less,
Exhibit Page - Legal( exhibit)(08-07)
to the point of intersection thereof with the Southwesterly line of the Old Hecker Pass road; thence South 66 deg 15' East
along said Southwesterly line of the Old Hecker Pass Road for a distance of 270.00 feet; thence leaving said last mentioned
line and running North 23 deg 00' East 99.6 feet to the True Point of Beginning of the tract of land to be described; thence
from said True Point of Beginning North 67 deg 00' West 10.00 feet; thence at right angles North 23 deg 00' East 20.00 feet;
thence at right angles South 67 deg 00' East 20.00 feet; thence at right angles South 23 deg 00' West 20.00 feet; thence at
right angles North 67 deg 00' West 10.00 feet to the True Point of Beginning.
APN 783-05-011 AND 013
PARCEL TWO:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Road, as said line was established by Parcell in
the Deed from the De Bell Corporation, a Corporation, to the State of California, dated June 21, 1957, recorded July 30, 1957
in Book 3855 Official Records, Page 512, Santa Clara County Records, with the Northwesterly line of that certain 160.91 acre
tract of land described as Parcel Three in the Deed from Jack De Bell, et UX, to the De Bell Corporation, a California
Corporation, dated October 26, 1956, recorded April 29, 1957 in Book 3736 Official Records, Page 463, Santa Clara County
Records; thence from said Point of Beginning South 60 deg 42' 34" East along said Southeasterly line of Hecker Pass Road for
a distance of 80.00 feet, thence leaving said last mentioned line and running North 29 deg 17' 26" East 170 feet, more or less,
to the point of intersection thereof with the Southwesterly line of the Old Hecker Pass Road; thence South 66 deg 15' East
along said Southwesterly line of the Old Hecker Pass Road for a distance of 270.00 feet; thence leaving said last mentioned
line and running North 23 deg 00' East 99.6 feet to the True Point of Beginning of the tract of land to be described; thence
from said True Point of Beginning North 67 deg 00' West 10.00 feet; thence at right angles North 23 deg 00' East 20.00 feet;
thence at right angles South 67 deg 00' East 20.00 feet; thence at right angles South 23 deg 00' West 20.00 feet; thence at
right angles North 67 deg 00' West 10.00 feet to the True Point of Beginning.
APN 783-05-012
PARCEL THREE:
A Portion of Parcels One and Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County,
and a Portion of Lands of Blocher, I 361 O.R. 202, Santa Clara County Records, described as follows:
Beginning at a Point on the West Line of said Parcel four, said Point also being at the Northeastern most corner of Parcel
Three as shown on said Parcel Map said Point also lying on the West line of Lands of Nob Hill General Store, Inc., a California
Corporation, as described in that Deed recorded in K805 of Official Records at page 1589, Santa Clara County, and proceeding
along the Westerly, Southerly, Easterly and Northerly lines of said Parcel four and said lands of Nob Hill the following courses:
1. S 0 deg. 03' 40" W 778.37 feet
2. East 70.00 feet
3. S 17 deg. 45' 49" E 294.02 feet
4. West 160.00 feet
5. SO deg. 03' 40" W 418.87 feet
6. S 0 deg. 13' 40" W 4094.58 feet
7. East 1254.00 feet
8. N 0 deg. 14' E 4527.60 feet
9. N 0 deg. 02' W 1672.30 feet
10. N 67 deg. 23' W 262.00 feet
11. N 49 deg. 20' 30" W 98.97 feet
12. N 31 deg. 26' W 154.34 feet
13. S 37 deg. 18' 09 W 85.48 feet
14. N 42 deg. 54' 55" W 294.28 feet
15. N 38 deg. 11' 51" W 55.00 feet
16. N 72 deg. 45' 58" W 83.84 feet
17. S 66 deg. 33' 05" W 57.31 feet
18. N 69 deg. 23' 35" W 301.68 feet
Exhibit Page - Legal(exhibit)(08-07)
to the Easternmost corner of those lands conveyed to the State of California by J627 of Official Records at page 1271, Santa
Clara County; thence along the Southerly line of last said lands S 83 deg. 53' 57" W 44.13 feet; thence Northwesterly along a
1585 Foot radius curve to the right, from a tangent bearing N 82 deg. 52' 34" W., said curve having an interior angle of 18
deg. 50' 48", and a length of 521.36 feet to a point lying 91.84 feet Southerly along the said 1585 Foot radius curve from an
angle point in last said Southerly line; thence S 0 deg. 09' W 419.62 feet; thence S 17 deg. 14' 00" E 810.00 feet; thence S 20
deg. 16' 11" W 194.80 feet to a point on the Northeasterly line of said Parcel Three, last said point being N 69 deg. 43' 49" W
288.41 feet from the Northeasterly corner of said Parcel Three; thence S 69 deg. 43' 49" E. 288.41 feet to the Point of
Beginning.
Excepting therefrom the following described parcel of land:
Beginning at the Northeastern most corner of said Parcel Four and proceeding S 00 deg. 09' 33" E along the East line of said
Parcel Four, 269.81 feet to the Westerly terminus of the Northeast line of a Pedestrian/Equestrian Easement as shown on
Parcel One on that Parcel Map recorded in Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30
deg. 15' W 412.10 feet more or less to a point on the Northeasterly line of said Parcel Four; thence S 67 deg. 23' E 224.09
feet along last said line to the Point of Beginning.
Also excepting therefrom "Parcel C" as described in that certain Certificate of Compliance recorded April 14, 1998 as
Instrument No. 14139227, Official Records of Santa Clara County, and being more particularly described as follows:
A portion of real property located in the County of Santa Clara, State of California, described as follows:
All of Parcel Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County Records,
Except therefrom the following:
Beginning at the Northeasternmost corner of said Parcel Four and proceeding S 00009'33" E along the East line of said Parcel
Four, 269.81 feet to the Westerly terminus of the Northeast line of a Pedestrian/Equestrian Easement as shown on Parcel One
on that Parcel Map recorded in Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30015' W 412.10
feet more or less to a point on the Northeasterly line of said Parcel Four; thence S 67023' E. 224.09 feet along last said line to
the point of beginning.
APN 810-17-026, 810-17-029
PARCEL FOUR:
A portion of Parcels Two and Three as shown on that Parcel Map recorded in Book 494 of Maps, at page 43, Santa Clara
County Records, lying in Santa Clara County, California, described as follows:
Beginning at a point on the South line of said Parcel Two, said point lying S 89 deg. 35' 00" W 145.44 feet from the
Southeasterly angle point in said Parcel Two, last said angle point being produced by the courses S 17 deg. 40' 40" W 105.66
feet and S 89 deg. 35' 00" W 428.05 feet as shown on said Map; thence along the following courses:
COURSE NO.
1. N 19 deg. 21' 40" E 417.99 feet
2. N 76 deg. 19' 19" W 13.90 feet
3. N 17 deg. 40' 40" E 1089.46 feet
4. N 64 deg. 27' 00" E 208.60 feet
to a point on the Northeasterly line of said Parcel Two, said point lying N 69 deg. 43' 49" W 9.45 feet from the Northeastern
corner of said Parcel Two; thence along the Northestern Line of said Parcels Two and Three and along the Easterly and
Southerly line s of said Parcel Three the following courses:
Exhibit Page - Legal(exhibit)(08-07)
COURSE NO.
5. S 69 deg. 43' 49" E 689.53 feet
6. S. 0 deg. 03' 40" W 778.37 feet
7. East 70.00 feet
8. S 17 deg. 45' 49" W 294.02 feet
9. West 160.00 feet
10. SO deg. 03' 40" W 350.00 feet
11. N. 78 deg. 40' 00" W 1134.00 feet
12. S 17 deg. 40' 40" W 105.66 feet, and
13. S 89 deg. 35' 00" W 145.44 feet
to the point of beginning.
APN 810-17-014, 015, 021, 024 AND 025
PARCEL FIVE:
A non-exclusive easement for Ingress and Egress and for the installation and maintenance of public utilities, appurtenant to
the above described parcels, over a strip of land 60.00 feet in width, lying 10.00 feet Westerly of and 50.00 feet Easterly of
the following described line:
Beginning at a point in the Southwesterly line of the State Highway IV-SCI-32D-1957, distant thereon South 60 deg 14' 20"
East 232.40 feet from a concrete monument at Station 325 57.01 E. C. of said Highway and running thence South 57 deg 45'
40" West 161.79 feet; South 41 deg 31' 40" West 262.30 feet; South 31 deg 44' 40" West 311.70 feet; South 3 deg 19' 10"
West 344.34 feet; South 23 deg 29' 50" East 166.48 feet; thence Southwesterly 150 feet, more or less, to a point which bears
South 71 deg 14' 02" East 94.02 feet and North 19 deg 29' 13" East 110.0 feet from the most Easterly corner of Parcell, as
said Parcel is shown upon that certain Map entitled, "Record of Survey being a portion of the solis Rancho", which Map was
filed for record in the Office of the Recorder of the County of Santa Clara, State of California on December 7, 1967 in Book 231
of Maps, at Page 22; thence South 19 deg 29' 13" West 110.00 feet and the terminus of said easement, said easement is
appurtenant to and for the Benefit of Parcels Three, Four, Seven and Twelve.
PARCEL SIX:
A non-exclusive easement for Ingress and Egress and for the installation and maintenance of public utilities and for water pipe
lines, appurtenant to the above described parcels, over an existing roadway 60.00 feet in width, the center line of which is
described as follows:
Beginning at the point of intersection of the Easterly line of that certain 160.91 acre tract of land described as Parcel Three in
the Deed from Jack De Bell, et ux, to the De Bell Corporation, dated October 26, 1956, recorded April 29, 1957 in Book 3786
Official Records, page 463, Santa Clara County Records, with the Southwesterly line of Hecker Pass Road, as said line was
established by Parcel One in the Deed from the De Bell Corporation, to the State of California dated June 12, 1957, recorded
July 30, 1957 in Book 3655 Official Records, page 512, Santa Clara County Records; thence from said point of beginning South
o deg 05' 19" West along said Easterly line of the 160.91 acre tract for a distance of 1370.09 feet to the True Point of
Beginning of the easement to be described; thence from said True Point of Beginning North 69 deg. 43' 49" West 1460.17 feet
to the terminus of said easement, said easement is appurtenant to and for the Benefit of Parcels Three, Four and Twelve.
Excepting therefrom all that portion thereof lying within the above described Parcels Three and Four.
Exhibit Page - Legal( exhibit)(08-07)
PARCEL SEVEN:
All of Parcel Two, as shown upon that certain Map entitled, "Parcel Map, being a portion of the Las Animas Rancho", which
Map was filed for record in the Office of the Recorder of the County of Santa Clara, State of California on October 12, 1993 in
Book 650 of Maps, at Page 49.
APN 810-18-010 and 011
PARCEL EIGHT:
An easement 40 feet in width for ingress and egress and public utilities the centerline of said easement described as follows:
Commencing at a point in the centerline of that 60 foot wide easement recorded in Book 7981 of Official Records at Page 56,
Santa Clara County Records, said point being the northeast terminius of that course shown as No. 16 on that Parcel Map
recorded in Book 494 of Maps, at Page 43, Santa Clara County Records and proceeding 520016'11" W 30.00 feet to a pOint on
the southwesterly line of said easement to the Point of Beginning; thence from said Point of Beginning S 27003' W 28.19 feet
to station "A"; thence along a curve to the right with a radius of 40 feet at an angle of 60.00 feet for a distance of 41.89 feet
to station "B";
thence S 87003' W 28.00 feet to station C; thence along a curve to the left with a radius of 85.47 feet at an angle of 70033'08"
for a distance of 105.24 feet to station "0"; thence 5 16029'52"W for a distance of 224.83 feet to station "E"; thence on a
curve to the left with a radius of 457.22 feet at an angle of 18037'52" for a distance of 148.68 feet to station "F"; thence 5
2008' E for a distance of 32.29 feet to station "G"; thence on a curve to the right with a radius of 196.58 feet at an angle of
41046' for a distance of 143.30 feet to station "H"; thence S 39038' W for a distance of 151.72 feet to station "I"; thence on a
curve to the left with a radius of 250.00 feet at an angle of 45.000 for a distance of 196.34 feet to station "]"; thence 5 5022' E
110.00 feet to station "K"; thence on a curve to the right with a radius of 414.00 feet at an angle of210lO' for a distance of
152.94 feet to station "L"; thence S 15048' W 93.00 feet to station "M"; thence on a curve to the left with a radius of 243.00
feet at an angle of 30031' for a distance of 129.42 feet to station "N"; thence 5 14043' E 456.60 feet more or less to a point on
the south line of parcel two of said parcel map, last said point being 152.52 feet westerly from the southerly terminus of that
course, (5 0025'00" E 89.33 feet), as shown on said parcel map, to station "0", said easement is appurtenant to and for the
Benefit of Parcel Seven.
PARCEL NINE:
An easement for ingress and egress described as follows:
Beginning at the point of beginning of the above described 40 foot wide easement and running 569043'49" E 20.00 feet to
the easterly line of said 40.00 foot wide easement being the true point of beginning; thence S 69043'49" E along the
southwesterly line of the 60.00 foot easement (7981-or-56) 30 feet; thence 80 feet more or less southwesterly to the mid
point (on the southeast line of above described 40 foot easement) of the 40.00 foot radius (centerline) curve; thence
northeasterly along the southeasterly line of said 40.00' foot wide easement above described 60 feet more or less to true point
of beginning, said easement is appurtenant to and for the Benefit of Parcel Seven.
PARCEL TEN:
A 10 foot wide easement for ingress and egress. The easterly line of said easement described as follows:
Commencing at above station "L" and running S 15048'W 40.00 feet and N 74012' W 20.00 feet to the True Point of
Beginning; thence S 15048' W 53.00 feet; thence southerly along a 263.00 foot radius curve to the left, having an interior
angle of 17025'42" a distance of 80.00 feet to the terminus of said easement, said easement is appurtenant to and for the
Exhibit Page - Legal(exhibit)(08-07)
Jenefit of Parcel Seven.
PARCEL ELEVEN:
An easement for ingress-egress said easement described as follows:
Commencing at said station "0", and proceeding S 89035' W along the Southerly line of Parcel Two as shown on Parcel Map
recorded in Book 494 of Maps at Page 43, Santa Clara County Records 20.64 feet to the True Point of Beginning; thence
continuing S 89035' W 25.00 feet; thence N 37026'15" E 30.68 feet to a point on the Southwesterly line of the 40 foot wide
easement above described; thence S 14043' E 25.00 feet to the Point of Beginning, said easement is appurtenant to and for
the Benefit of Parcel Seven.
PARCEL TWELVE:
A Portion of Parcels One and Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County,
and a Portion of Lands of Blocher, 1361 O.R. 202, Santa Clara County Records, described as follows:
Beginning at a Point on the West Line of said Parcel four, said Point also being at the Northeastern most corner of Parcel
Three as shown on said Parcel Map said Point also lying on the West line of Lands of Nab Hill General Store, Inc., a California
Corporation, as described in that Deed recorded in K805 of Official Records at page 1589, Santa Clara County, and proceeding
along the Westerly, Southerly, Easterly and Northerly lines of said Parcel four and said lands of Nob Hill the following courses:
COURSE NO.
1. SO deg. 03' 40" W 778.37 feet
2. East 70.00 feet
3. S 17 deg. 45' 49" E 294.02 feet
4. West 160.00 feet
5. SO deg. 03' 40" W 418.87 feet
6. SO deg. 13' 40" W 4094.58 feet
7. East 1254.00 feet
8. N 0 deg. 14' E 4527.60 feet
9. N 0 deg. 02' W 1672.30 feet
10. N 67 deg. 23' W 262.00 feet
11. N 49 deg. 20' 30"W 98.97 feet
12. N 31 deg. 26' W 154.34 feet
13. S 37 deg. 18' 09 W 85.48 feet
14. N 42 deg. 54' 55" W 294.28 feet
15. N 38 deg. 11' 51" W 55.00 feet
16. N 72 deg. 45' 58" W 83.84 feet
17. S 66 deg. 33' 05" W 57.31 feet
18. N 69 deg. 23' 35" W 301.68 feet
to the Easternmost corner of those lands conveyed to the State of California by J627 of Official Records at page 1271, Santa
Clara County; thence along the Southerly line of last said lands S 83 deg. 53' 57" W 44.13 feet; thence Northwesterly along a
1585 Foot radius curve to the right, from a tangent bearing N 82 deg. 52' 34" W., said curve having an interior angle of 18
deg. 50' 48", and a length of 521.36 feet to a point lying 91.84 feet Southerly along the said 1585 Foot radius curve from an
angle point in last said Southerly line; thence S 0 deg. 09' W 419.62 feet; thence S 17 deg. 14' 00" E 810.00 feet; thence S 20
deg. 16' 11" W 194.80 feet to a point on the Northeasterly line of said Parcel Three, last said point being N 69 deg. 43' 49" W
288.41 feet from the Northeasterly corner of said Parcel Three; thence S 69 deg. 43' 49" E. 288.41 feet to the Point of
Beginning.
Exhibit Page - Legal(exhibit)(08-07)
Excepting therefrom the the following described parcel of land:
Beginning at the Northeastern most corner of said Parcel Four and proceeding S 00 deg. 09' 33" E along the East line of said
Parcel Four, 269.81 feet to the Westerly terminus of the Northeast line of a Pedestrian/Equestrian Easement as shown on
Parcel One on that Parcel Map recorded in Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30
deg. 15' W 412.10 feet more or less to a point on the Northeasterly line of said Parcel Four; thence S 67 deg. 23' E 224.09
feet along last said line to the Point of Beginning.
Excepting therefrom all that portion lying Westerly of the Westerly line of said Parcel 4
And, in addition thereto, the following parcel of land designated as "Transfer Parcel" on the accompanying plat entitled
"Exhibit B", being more particularly described as follows:
A portion of Parcel B, as said Parcel is described in that certain Certificate of Compliance for Lot Line Adjustment filed for
record as Document Number 14139227, Official Records of Santa Clara County, California, being more particularly described as
follows:
BEGINNING at southwesterly corner of said Parcel B, said point also being the southerly terminus of the course designated as
S 00 02" E 1672.30 feet on that certain Lot Line Adjustment Parcel Map filed for record in Book 494 of Maps, at Page 43,
Records of Santa Clara County, California, and the northwest corner of Lot 61, as said Lot 61 is shown on the map of Tract
9365, Eagle Ridge, filed for record in Book 748 of Maps, at Page 20, Records of Santa Clara County, California; thence running
along the common line of said Parcel B and Parcel C
1.) N 000 09' 33" W, a distance of 1,402.67 feet to the northwesterly corner of said Parcel B; thence leaving said common line
and running along the northerly line of said Parcel B
2.) S 310 08' 00" E, a distance of 282.40 feet to the beginning of a curve to the left having a radius of 193.00 feet; thence
continuing along said northerly line
3.) Southeasterly along said curve, through a central angle of 490 07' 00", a distance of 165.45 feet to the beginning of a
compound curve to the left having a radius of 632.00 feet; thence continuing along said northerly line
4.) Easterly along said curve, through a central angle of 230 25' 00", a distance of 258.30 feet; thence continuing along said
northerly line
5.) N 76020' 00" E, a distance of 499.27 feet to the beginning of a curve to the right having a radius of 1,360.00 feet; thence
continuing along said northerly line
6.) Easterly along said curve, through a central angle of 130 40' 00"; a distance of 324.40 feet; thence continuing along said
northerly line
7.) East, a distance of 88.59 feet to the beginning of a curve to the left having a radius of 65.00 feet; thence continuing along
said northerly line
8.) Easterly along said curve, through a central angle of 040 37' 09"; a distance of 5.24 feet; thence continuing along said
northerly line
9.) S 000 36' 00" E, a distance of 0.34 feet; thence continuing along said northerly line
Exhibit Page - Legal(exhibit)(08-07)
10.) 589059' 56" E, a distance of 240.84 feet to the northeasterly corner of said Parcel B; thence leaving said northerly line
and running along the easterly line of said Parcel B
11.) 500008' 00" E, a distance of 304.39 feet; thence leaving said easterly line
12.) 5 87059' 43" W, a distance of 330.76 feet; thence
13.) N 890 02' 02" W, a distance of 222.92 feet; thence
14.) 5 840 51' 07" W, a distance of 357.84 feet; thence
15.) S 76021' 10" W, a distance of 402.59 feet; thence
16.) N 880 13' 32" W, a distance of 194.26 feet; thence
17.) N 630 29' 09" W, a distance of 72.82 feet; thence
18.) 521041' 39" W, a distance of 190.51 feet; thence
19.) 5 000 46' 42" E, a distance of 146.48 feet; thence
20.) 5 090 19' 49" E, a distance of 120.58 feet; thence
21.) 502029' 27" W, a distance of 36.13 feet; thence
22.) S 040 18' 56" W, a distance of 178.81 feet; thence
23.) S 000 OT 43" W, a distance of 178.08 feet to the southerly line of said Parcel B, also being the northerly line of said Lot
61 of Tract 9365; thence running along said southerly line of Parcel B and northerly line of Lot 61
24.) N 89" 52' 17" W, a distance of 48.11 feet to the POINT OF BEGINNING.
Being Parcel C as described in the Certificate of Compliance Recorded May 2, 2005 as Instrument No. 18348300.
APN 810-18-002; 810-19-005,007,010,011, and 014
PARCEL THIRTEEN:
An Easement for the purposes of Ingress and Egress and Utilities, as conveyed to Bonfante Gardens, Inc., a Delaware Non-
Profit corporation by Grant Deed recorded April 28, 1999 as Instrument No. 14780039, and being more particularly described
as follows:
Beginning at a point on the East line of Parcel Four as shown upon that Parcel Map recorded in Book 494 of Maps at Page 43,
Exhibit Page - Legal(exhibit)(08-07)
Santa Clara County Records, said point being the Southwest corner of Parcel One as shown upon that Parcel Map recorded in
Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence Southerly alond said East line of Parcel Four,
360.00 feet; thence S. 89 deg. 52' 17" E. 60.00 feet; thence Northerly 360.00 feet to a point on the South line of said Parcel
One, last said point lying S. 89 deg. 52' 17" E. 60.00 feet from the point of beginning; thence N. 89 deg. 52' 17" W. 60.00 feet
to the point of beginning.
Exhibit Page - Legal( exhibit)(08-07)
EXHIBIT B
[Intentionally Omitted]
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EXHIBIT C
Fonn ofInsurance Policies To Be Maintained by Gilroy Gardens:
1. Property Choice (Business Property), Hartford Fire Insurance Company, Policy No. 57
UUM TM5946
2. Automobile Liability, ACE American Insurance Company, Policy No. H08134364
3. Commercial General Liability, ACE American Insurance Company, Policy No. G2 1762
428
4. Employee Benefits Liability (Employers Liability), Majestic Insurance, Policy No.
C200603365-02
5. Directors & Officers Liability and Entity Liability, Executive Risk Indemnity Inc.
(Chubb Group ofInsurance Companies), Policy No. 8165-2558
6. Excess Liability Policy, ACE American Insurance Company (Underlying Insurance:
Commercial General Liability, Automobile Liability, Employers Liability), Policy No. XCP
N01l42951 001
7. Excess Directors & Officers Liability, RSUI Indemnity Company, Policy No. HS625865
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EXHIBIT D
MEMORANDUM
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Gilroy
7351 Rosanna Street
Gilroy, California 95020
Attn: City Clerk
RECORDING REQUESTED PURSUANT TO
GOVERNMENT CODE SECTIONS 6103 AND
27383.
SPACE ABOVE THIS LINE FOR RECORDER'S USE
MEMORANDUM
THIS MEMORANDUM is entered into as of , 2008, by and
between the CITY OF GILROY, a municipal corporation ("Landlord") and GILROY
GARDENS F AMIL Y THEME PARK, a Delaware nonprofit corporation formerly known as
"Bonfante Gardens, Inc." ("Tenant"), with respect that certain unrecorded Lease dated as of the
date hereof by and between Landlord and Tenant.
Pursuant to said Lease, Landlord leases to Tenant, and Tenant leases from Landlord,
certain real property located in the City of Gilroy, County of Santa Clara, State of California, as
more particularly described in Exhibit A attached hereto, together with the buildings and other
improvements thereon, upon the terms and conditions of the Lease. The term of the Lease shall
be for approximately two (2) years commencing on the date hereof and expiring at midnight on
February 28, 2010, subject to sooner termination as set forth in the Lease.
This Memorandum shall incorporate all of the provisions of the Lease as though fully set
forth herein. This Memorandum is entered by the parties for purposes of recordation and shall
not be deemed to modify, amend, alter, limit or otherwise change any of the provisions of the
Lease. In the event of any conflict or ambiguity between the terms of this Memorandum and the
terms ofthe Lease, the terms of the Lease shall prevail.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Memorandum
as of the dates set forth below.
GILROY GARDENS F AMIL Y THEME PARK,
INC., a Delaware nonprofit public benefit
corporation formerly known as "Bonfante Gardens,
Inc."
By:
Its:
By:
Its:
CITY OF GILROY,
a municipal corporation
By:
Its:
Attest:
By:
Approved as to form:
By:
City Attorney
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STATE OF CALIFORNIA
} ss
COUNTY OF
On before me, , Notary Public, personally
appeared who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing is true and
correct.
WITNESS my hand and official seal.
[Seal]
SIGNATURE OF NOTARY
STATE OF CALIFORNIA
} 's.
COUNTY OF
On before me, , Notary Public, personally
appeared who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing is true and
correct.
WITNESS my hand and official seal.
[Seal]
SIGNATURE OF NOTARY
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EXHIBIT A TO MEMORANDUM
[Legal Description to be Attached]
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EXHIBIT C
LIST OF LEASED EQUIPMENT
1. 110' x 120' structure, approximately 13,200 square feet, using Lattice Beam Design with
premium Tedlar coated opaque membrane, leased from Sprung Instant Structures, Inc.
2. Scooterbug strollers/wheelchairs (40 Scooterbug Single units, 40 Scooterbug Double
units, 17 Wheelchair units, and 3 ECV units), leased from Scooterbug, Inc.
3. Color Laser Printers and certain related equipment (customer picture displays and order
tenninals, image acquisition and storage servers, multiple display server systems, network
equipment, fiber optic transmission equipment, X700 cameras, lenses and enclosures, wireless
hand-held cameras, Samsung 15" LCD displays, sensors (2), Big Shot Strobe, Multimon 19"
LCD Displays, system controllers, cabinet cooling fans and vents), leased from Colorvision
International, Inc.
4. Lighting displays and ice rink components, leased from Midwest Display, Inc.
5. Certain liyestock and animals, leased from Wild Things Animal Rentals, Inc.
6. Copy Machine, leased from Marlin Leasing Corp.
7. Mailing Machine, leased from Pitney Bowes.
\TMORELL\734864.15
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EXHIBIT D
BOND ESCROW AGREEMENT
(See attached pages.)
\TMORELL\734864.15
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Jones Hall
A Professional Law Corporation
Execution Copy
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Agreement"), dated as of February 27, 2008, is
between the CITY OF GILROY, a charter city and municipal corporation organized and
existing under the Constitution and laws of the State of California (the "City"), GILROY
GARDENS FAMILY THEME PARK, INC., a Delaware nonprofit corporation, previously
known as "Bonfante Gardens Inc." (the "Corporation"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association organized and existing under the laws of
the United States of America, as escrow bank (the "Escrow Bank").
BACKGROUND:
1. The City has previously issued its City of Gilroy Senior Lien Project Revenue
Bonds (Bonfante Gardens Theme Park Project), Series 2000 in the aggregate principal
amount of $27,920,000 (the "2000 Bonds") under that certain Senior Lien Bond Trust
Indenture dated December 1, 2000 as amended by that certain First Supplemental
Indenture, dated as of June 1, 2005 (the "First Supplemental Indenture") (together with
the First Supplemental Indenture, the "Indenture") between the City and BNY Western
Trust Company, as ultimately succeeded by U.S. Bank National Association, of which
$15,875,000 in aggregate principal amount has previously matured, been redeemed or
retired in accordance with the Indenture.
2. Proceeds of the 2000 Bonds have been applied by the City to make a loan
to the Corporation under the Senior Lien Loan Agreement dated as of December 1, 2000
(the "Loan Agreement"), for the purpose of providing funds to finance the acquisition and
construction of a theme park in the City of Gilroy (the "Theme Park").
3. Concurrently with the execution of this Agreement, the City is purchasing the
Theme Park from the Corporation under a Purchase and Sale Agreement (the
"Purchase Agreement"), for a purchase price which is sufficient to enable the
Corporation to pay and prepay in full its Loan Repayment obligations under the Loan
Agreement and thereby provide sufficient funds to pay the principal of and interest on
the remaining outstanding 2000 Bonds in the aggregate principal amount of $5,520,000,
as such 2000 Bonds are described more fully in Appendix A hereto (the "Refunded 2000
Bonds").
4. The City and the Corporation have requested the Escrow Bank to enter into
this Agreement for the purpose of providing the terms and conditions relating to the
deposit and application of moneys and securities to provide for the payment and
redemption of the Refunded 2000 Bonds under and in accordance with the provisions of
the Indenture.
AGREEMENT:
In consideration of the above premises and of the mutual promises and
covenants herein contained and for other valuable consideration, the parties hereto do
hereby agree as follows:
SECTION 1. Deposit of Funds on Closing Date. On February 27, 2008 (the
"Closing Date"), the Corporation shall cause to be transferred to the Escrow Bank the
amount of $6,579,284.76 (the "Initial Deposit") in immediately available funds, to be
applied by the Escrow Bank as follows:
(a) the amount of $6,479,284.76 shall be deposited into the Escrow
Fund which is established under Section 2(a); and
(b) the amount of $100,000.00 shall be deposited into the
Administrative Costs Fund which is established under Section 2(b),
The Initial Deposit shall be derived from the funds payable to the Corporation by
the City as the purchase price of the Theme Park under the Purchase Agreement.
SECTION 2. Establishment of Funds.
(a) Escrow Fund. There is hereby created an escrow fund designated the "City
of Gilroy 2000 Bonds Escrow Fund" (the "Escrow Fund") to be held by the Escrow Bank
as an irrevocable escrow securing the payment and redemption of the Refunded 2000
Bonds as hereinafter set forth. All cash and securities in the Escrow Fund are hereby
irrevocably pledged as a special fund for the payment and redemption of the Refunded
2000 Bonds in accordance with the Indenture. If at any time the Escrow Bank receives
knowledge that the cash and securities in the Escrow Fund will not be sufficient to make
any payment required by Section 4, the Escrow Bank shall notify the City of such fact
and the City shall immediately cure such deficiency from any source of legally available
funds. The Escrow Bank has no liability for the sufficiency of funds under this
Agreement.
(b) Administrative Costs Fund. There is hereby created a fund (the
"Administrative Costs Fund") to be held by the Escrow Bank for the purpose of paying
the costs of establishing and administering the Escrow Fund. Amounts on deposit in the
Administrative Costs Fund shall be disbursed by the Escrow Bank on the Closing Date
to make payments to the payees identified in Appendix B hereto, in the respective
amounts set forth in Appendix B.
SECTION 3. Investment of Amounts in Escrow Fund. The Escrow Agent shall
invest $6,479,284.00 of the moneys deposited into the Escrow Fund on the Closing
Date in the United States Treasury Security, State and Local Government Securities
described below (the "Defeasance Securities"), and shall hold the remaining $0.76 in
cash uninvested.
Maturity Interest Total
Date Par Amount Rate Purchase Price
May 1 , 2008 $ 204,062 2.340% $ 204,062
November 1 , 2008 556,296 2.040 556,296
May 1 , 2009 152,889 1.990 152,889
November 1, 2009 579,410 1.920 579,410
May 1, 2010 142,654 1.850 142,654
November 1 , 2010 4,843,973 1.940 4,843,973
SECTION 4. Instructions as to Application of Escrow Fund. The Escrow Agent
shall apply the cash and Defeasance Securities held in the Escrow Fund for the sole
purpose of paying and redeeming the Refunded 2000 Bonds on the dates and in the
amounts as set forth below:
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Payment
Date
May 1, 2008
November 1, 2008
May 1, 2009
November 1, 2009
May 1, 2010
November 1, 2010
Interest
$ 224,375.00
224,375.00
208,278.75
208,278.75
190,960.00
190,960.00
Mandatory
Sinking Fund
Redemption
Principal to
Be Optionally
Redeemed
Total
Pavment
$ 224,375.00
619,375.00
208,278.75
633,278.75
190,960.00
4,890,960.00
$ 395,000
425,000
455,000
$ 4,245,000
The Escrow Bank has no lien upon or right of set off against the Defeasance
Securities and cash at any time on deposit in the Escrow Fund.
SECTION 5. Proceedings for Redemption of 2000 Bonds. The City hereby
irrevocably elects to redeem all of the outstanding Refunded 2000 Bonds on November
1, 2010, under Section 4.01 (b) of the Indenture. The City hereby directs the Escrow
Bank to give notice of redemption of the Refunded 2000 Bonds in accordance with
Section 4.03 of the Indenture, at the expense of the City. Such notice shall be in
substantially the form set forth in Appendix C hereto.
SECTION 6. Effect of Escrow Fund Deposit. The deposit made into the Escrow
Fund under this Agreement constitutes an irrevocable deposit for the payment and
redemption of the Refunded 2000 Bonds in accordance with Article X of the 2000 Bond
Indenture. In accordance with Section 10.01 of the Indenture, the City hereby signifies
its intention to discharge all of the outstanding Refunded 2000 Bonds and thereby to
discharge the 2000 Bond Indenture. Upon the deposit of amounts in the Escrow Fund
and the purchase of the Defeasance Securities in accordance with Section 3, all liability
of the City in respect of the Refunded 2000 Bonds shall be discharged under Article X of
the Indenture, and the Refunded 2000 Bonds shall no longer be Outstanding under and
within the meaning of the Indenture.
The deposit made into the Escrow Fund under this Agreement further constitutes
an irrevocable deposit for the payment and prepayment in full of the Loan Repayments
due by the Corporation under and as defined in the Loan Agreement. Upon the deposit
of amounts in the Escrow Fund and the purchase of the Defeasance Securities in
accordance with Section 3, no further Loan Repayments shall be due and payable by
the Corporation under the Loan Agreement.
SECTION 7. Discharge of Financing Documents; Disposition of Excess Funds.
In order to effectuate the provisions of Section 6, on the Closing Date the Escrow Bank
shall:
(a) execute and deliver a Deed of Reconveyance removing the Deed of
Trust, Security Agreement and Fixture Filing with Assignment of
Rents and Leases dated December 1, 2000, which was recorded on
January 11, 2001, as Instrument No. 15523372 in the Official
Records of the County of Santa Clara, California, as an
encumbrance on Theme Park;
(b) deliver to Chicago Title Company, for remittance to the Corporation,
all amounts held by the Escrow Bank in the funds and accounts
established under the 2000 Bond Indenture, in accordance with the
following wire transfer instructions:
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Chicago Title Company
ABA 026 009 593
Accou nt No. 12353-81969
For Account of Escrow: 07 -98702516-JW
Reference: Gilroy Gardens
(c) file an appropriate UCC-3 Form and make all other filings as may be
required to terminate any security interests which have previously
been made by the Trustee with respect to the funds and assets
pledged under the Indenture for the payment of the 2000 Bonds.
SECTION 8. Notice of Advance Refunding and Defeasance. The City hereby
directs the Escrow Bank to give notice of the advance refunding and defeasance of the
Refunded 2000 Bonds to the Owners thereof, at the expense of the City. Such notice
shall be mailed to the registered owners of the Refunded 2000 Bonds within 30 days
following the date hereof, and shall be in substantially the form set forth in Appendix D
hereto.
SECTION 9. Application of Certain Terms of 2000 Bond Indenture. All of the
terms of the Indenture, including those terms relating to the payment and redemption of
principal of and interest on the Refunded 2000 Bonds, are incorporated in this
Agreement except to the extent terms are otherwise defined herein.
SECTION 10. Compensation to Escrow Bank. The City shall pay the Escrow
Bank full compensation for its duties under this Agreement, including out-of-pocket costs
such as publication costs, redemption expenses, legal fees and other costs and
expenses relating hereto and, in addition, all fees, costs and expenses relating to the
purchase, substitution or withdrawal of any securities after the date hereof. Under no
circumstances shall amounts deposited in or credited to the Escrow Fund be deemed to
be available for said purposes.
SECTION 11. Liabilities and Obligations of Escrow Bank.
(a) The Escrow Bank has no obligation to make any payment or disbursement
of any type or incur any financial liability in the performance of its duties under this
Agreement unless the City has deposited sufficient funds therefor with the Escrow Bank.
The Escrow Bank may rely and is fully protected in acting upon the written or oral
instructions of the City, the Corporation or their respective agents relating to any matter
or action as Escrow Bank under this Agreement.
(b) The Escrow Bank and its respective successors, assigns, agents and
servants shall not be held to any personal liability whatsoever, in tort, contract, or
otherwise in connection with the execution and delivery of this Agreement, the
establishment of the Escrow Fund, the acceptance of the moneys or any securities
deposited therein, the purchase of the securities to be purchased pursuant hereto, the
retention of such securities or the proceeds thereof, the sufficiency of the securities or
any uninvested moneys held hereunder to accomplish the defeasance of the Refunded
2000 Bonds, or any payment, transfer or other application of moneys or securities by the
Escrow Bank in accordance wit the provisions of this Agreement or by reason of any
non-negligent act, non-negligent omission or non-negligent error of the Escrow Bank
made in good faith in the conduct of its duties.
-4-
(c) The recitals of fact contained herein shall be taken as the statement of the
City and the Corporation, and the Escrow Bank assumes no responsibility for the
correctness thereof. The Escrow Bank makes no representations as to the sufficiency of
the securities to be purchased pursuant hereto and any uninvested moneys to
accomplish the redemption of the Refunded 2000 Bonds, or to the validity of this
Agreement as to the City and the Corporation and, except as otherwise provided herein,
the Escrow Bank has no liability in respect thereof.
(d) The Escrow Bank is not liable in connection with the performance of its
duties under this Agreement except for its own negligence, willful misconduct or default,
and the duties and obligations of the Escrow Bank shall be determined by the express
provisions of this Agreement.
(e) The Escrow Bank may consult with counsel, who mayor may not be counsel
to the City or the Corporation, and in reliance upon the written opinion of such counsel
shall have full and complete authorization and protection in respect of any action taken,
suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow
Bank deems it necessary or desirable that a matter be proved or established prior to
taking, suffering, or omitting any action under this Agreement, such matter (except the
matters set forth herein as specifically requiring a certificate of a nationally recognized
firm of independent certified public accountants or an opinion of counsel) may be
deemed to be conclusively established by a written certification of the City or the
Corporation.
(f) The City hereby assumes liability for, and hereby agrees (whether or not any
of the transactions contemplated hereby are consummated), to the extent permitted by
law, to indemnify, protect, save and hold harmless the Escrow Bank and its respective
successors, assigns, agents and servants from and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and
disbursements (including legal fees and disbursements) of whatsoever nature which
may be imposed on, incurred by, or asserted against, at any time the Escrow Bank
(whether or not also indemnified against by any other person under any other agreement
or instrument) and in any way relating to or arising out of the execution and delivery of
this Agreement, the establishment of the Escrow Fund, the retention of the moneys
therein and any payment, transfer or other application of moneys or securities by the
Escrow Bank in accordance with the provisions of this Agreement, or as may arise by
reason of any act, omission or error of the Escrow Bank made in good faith in the
conduct of its duties. However, the City is not required to indemnify the Escrow Bank
against its own negligence or willful misconduct. The indemnities contained in this
Section 8 and the compensation and reimbursement contained in Section 7 shall survive
the termination of this Agreement or the resignation or removal of the Escrow Agent.
(g) The Escrow Bank has no liability for losses arising from any investment
made under this Agreement.
(h) Any company into which the Escrow Bank may be merged or converted or
with which it may be consolidated or any company resulting from any merger,
conversion or consolidation to which it shall be a party or any company to which the
Escrow Bank may sell or transfer all or substantially all of its corporate trust business
shall be the successor to the Escrow Bank without the execution or filing of any paper or
further act, anything herein to the contrary notwithstanding.
-5-
(i) The liability of the Escrow Bank to make the payments required by this
Agreement shall be limited to the moneys and securities in the Escrow Fund.
U) No provision of this Agreement requires the Escrow Bank to expend or risk
its own funds or otherwise incur any financial liability in the performance or exercise of
any of its duties hereunder, or in the exercise of its rights or powers, if it has reasonable
grounds for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 12. Statements. The Escrow Bank will submit to the City a statement
within thirty (30) days after each calendar month, commencing March 1, 2008, itemizing
all moneys received by it and all payments made by it under the provisions of this
Agreement during the preceding month and listing the Defeasance Securities and cash
balances on deposit in the Escrow Fund and all moneys held by it received as interest
on or profit from the collection of the Government Securities, as of the date of the report.
SECTION 13. Resignation and Discharge of Escrow Agent. The Escrow Bank
may resign and thereby become discharged from the trusts hereby created, by written
notice mailed to the Corporation and the City by registered or certified mail. Such
resignation shall take effect upon the appointment of a new escrow bank hereunder and
acceptance of the trusts hereby created. The Escrow Bank shall continue to serve as
Escrow Bank until a successor is appointed, and the Escrow Bank may, after 60 days
subsequent to its resignation, petition the Superior Court of Santa Clara County,
California for the appointment of a successor Escrow Agent if one has not yet been
appointed.
SECTION 14. Amendment. This Agreement may be amended by the parties
hereto, but only if there has been filed with the City, the Corporation and the Escrow
Bank a written opinion of nationally-recognized bond counsel stating that such
amendment will not materially adversely affect the interests of the owners of the 2000
Bonds, and that such amendment will not cause interest on the 2000 Bonds to become
includable in the gross income of the owners thereof for federal income tax purposes.
SECTION 15. Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall constitute
but one and the same instrument.
SECTION 16. Notices. All notices and communications to the Escrow Bank shall
be addressed in writing to:
U.S. Bank National Association
Attention: Corporate Trust Services
1021 East Cary Street, 18th Floor
Richmond, Virginia 23219
FascimHe: 804-771-7940
-6-
All notices and communications to the City shall be addressed in writing to:
City of Gilroy, California
Attention: City Manager
7351 Rosanna Street
Gilroy, California 95020-6197
Facsimile: (408) 846-0500
All notices and communications to the Corporation shall be addressed in writing
to:
Gilroy Gardens
Attention: President
3050 Hecker Pass Highway
Gilroy, California 95020
Facsimile: (408) 847-3949
SECTION 17. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
SECTION 18. Incorporation of Background Recitals. The Background recitals
are hereby incorporated into and made a part of this Agreement as if set forth in full.
-7-
IN WITNESS WHEREOF, the City, the Corporation and the Escrow Bank have
each caused this Agreement to be executed by their duly authorized officers all as of the
date first above written.
CITY
By
\
GilROY GARDENS FAMilY THEME
PARK, INC.
. BANK NATIONAL ASSOCIATION,
as Escrow Bank
By
Authorized Officer
-8-
IN WITNESS WHEREOF, the City, the Corporation and the Escrow Bank have
each caused this Agreement to be executed by their duly authorized officers all as of the
date first above written.
CITY OF GILROY
By
City Manager
GILROY GARDENS FAMILY THEME
PARK, INC.
By
Authorized Officer
U.S. BANK NATIONAL ASSOCIATION,
as Escrow Bank
By
-8-
APPENDIX A
IDENTIFICATION OF 2000 REFUNDED BONDS
The 2000 Refunded Bonds consist of those 2000 Bonds maturing on the dates
and in the amounts, and having CUSIP numbers, as set forth in the following table:
Maturity Date Interest Principal
(November 1) Rate Amount CUSIP
2015 8.150% $ 4,175,000 376058M 1
2016 8.250 355,000 376058AD5
2025 8.000 990,000 376058AB9
APPENDIX B
ADMINISTRATIVE COSTS TO BE PAID ON CLOSING DATE
Payee Name and Address Purpose of Obliqation Amount
Jones Hall, A Prof. Law Corp. Bond Counsel Fees $ 27,500.00
650 California Street, 18th Floor
San Francisco, California 94010
Northcross, Hills & Ach Financial Advisor Fees 34,500.00
999 Fifth Avenue, Suite 560
San Rafael, California 94901
u.S. Bank National Association Escrow Bank Fees 7,500.00
James Center Two
1021 East Cary Street, 18th Floor
Richmond, Virginia 23219
Grant Thornton, LLP Verification Agent Fees 2,500.00
500 Pillsbury Center North
200 Sixth Street
Minneapolis, Minnesota 55402-1459
Greenberg Traurig Escrow Bank Counsel
450 South Orange Avenue, Suite 650
Orlando, Florida 32801
APPENDIX C
NOTICE OF REDEMPTION
CITY OF GILROY
SENIOR LIEN PROJECT REVENUE BONDS
(BONFANTE GARDENS THEME PARK PROJECT),
SERIES 2000
NOTICE IS HEREBY GIVEN pursuant to the Senior Lien Bond Trust Indenture
dated as of December 1, 2000, between the City of Gilroy (the "City") and BNY Western
Trust Company, as trustee, that all of the outstanding City of Gilroy Senior Lien Project
Revenue Bonds (Bonfante Gardens Theme Park Project), Series 2000 (the "Bonds"),
have been called for redemption on November 1, 2010, at a redemption price of 100% of
the principal amount thereof, plus accrued and unpaid interest thereon to such
redemption date. The Bonds to be redeemed are set forth below and are hereinafter
referred to as the "Called Bonds":
Maturity Date Principal Interest CUSIP
(Julv 1) Amount Rate Number
2015 $ 4,175,000 8.150% 376058AA 1
2016 355,000 8.250 376058AD5
2025 990,000 8.000 376058AB9
On November 1, 2010, the Called Bonds will be due and payable upon
presentation and surrender thereof at the corporate trust office of U.S. Bank National
Association, Richmond, Virginia, the trustee for the Bonds (the "Trustee"), as designated
below. From and after November 1, 2010, interest on the Called Bonds will cease to
accrue.
The CUSIP numbers listed above are given as a convenience to the owners of
the Called Bonds. However, no representation is made as to the correctness of such
numbers either as printed on the Called Bonds or as contained in this Notice.
Under the provisions of the Economic Growth and Tax Relief Reconciliation Act
of 2001, as amended, a paying agent making payments of principal on municipal
securities may be obligated to withhold 30% from remittance to individuals who have
failed to furnish the paying agent with a valid Taxpayer Identification Number. Holders of
the above-described securities who wish to avoid this withholding should submit a
properly completed Internal Revenue Service Form W-9 when presenting their securities
for collection.
Dated:
,2010
CITY OF GI LROY
By: U.S. BANK NATIONAL ASSOCIATION,
as Trustee
[insert current address of Trustee]
APPENDIX 0
NOTICE OF ADVANCE REFUNDING AND DEFEASANCE
CITY OF GILROY
SENIOR LIEN PROJECT REVENUE BONDS
(BONFANTE GARDENS THEME PARK PROJECT),
SERIES 2000
NOTICE IS HEREBY GIVEN by the City of Gilroy, California (the "City"), that on
February 27, 2008, the City has deposited funds with U.S. Bank National Association, as
trustee (the ''Trustee'') for the City of Gilroy Senior Lien Project Revenue Bonds
(Bonfante Gardens Theme Park Project), Series 2000 (the "Bonds"), for the purpose of
advance refunding and defeasing the following Bonds (the "Refunded Bonds"):
Maturity Date Principal Interest CUSIP
(Julv 1) Amount Rate Number
2015 $ 4,175,000 8.150% 376058AA 1
2016 355,000 8.250 376058AD5
2025 990,000 8.000 376058AB9
Amounts so deposited with the Trustee will be held by it in trust under an Escrow
Agreement dated as of February 27, 2008, between the City and the Trustee, in its
capacity as escrow bank (the "Escrow Bank"), and will be invested in certain noncallable
direct obligations of the United States of America. Grant Thornton LLP, certified public
accountants, has verified that the amounts deposited with the Escrow Agent under the
Escrow Agreement are in such principal amount and are invested in such obligations as
will assure sufficient money to pay when due the principal of and interest on the
Refunded Bonds to and including November 1, 2010. Under the Escrow Agreement, the
City has irrevocably directed the Escrow Bank to redeem all of the outstanding Refunded
Bonds on November 1, 2010.
This notice and the information contained in it are provided solely for
informational purposes. This is not a notice of redemption of the Refunded Bonds.
There is no need for the owners of the Refunded Bonds to take any action with respect
to the Refunded Bonds. Notice of the redemption of the Refunded Bonds will be
published in accordance with the provisions of the Refunded Bonds in advance of their
redemption on November 1, 2010.
Dated: February 27, 2008
CITY OF GILROY
By: U.S. BANK NATIONAL ASSOCIATION,
as Escrow Agent
Execution Copy
BOND PURCHASE AND SALE AGREEMENT
AGREEMENT dated as of January 31, 2008 by and between Putnam High Yield
Municipal Income Trust, Putnam Municipal Opportunities Trust, Putnam Tax Free High Yield
Fund, Putnam Investment Funds Municipal Income Trust and Putnam Managed Municipal
Income Trust (collectively, the "Sellers") and the City of Gilroy, California (the "Buver").
Recitals
The Buyer is the issuer of $27,920,000 City of Gilroy Senior Lien Project Revenue
Bonds (Bonfante Gardens Theme Park Project), Series 2000 (the "2000 Bonds"), currently
outstanding in the aggregate principal amount of $12,045,000. The Sellers collectively are the
beneficial owners of outstanding 2000 Bonds in the aggregate principal amount of$6,525,000.
The proceeds of the Bonds were used to finance capital costs of Gilroy Gardens Family Theme
Park, Inc., formerly known as Bonfante Gardens, Inc., a non-profit Delaware corporation (the
"Borrower"), which owns and operates a botanical theme park in Gilroy, California.
The Buyer has determined to acquire all of the real property assets and certain of the
personal property assets of the Borrower (the "Borrower Sale Transaction") and, to that end, has
offered to acquire the 2000 Bonds beneficially owned by the Sellers and tender them to the bond
trustee for cancellation and to defease the remaining 2000 Bonds. The Sellers are willing to
cause the 2000 Bonds to be sold to the Buyer, subject to the tenns and conditions set forth in this
Agreement.
The Sellers and the Buyer hereby agree as follows:
1. Purchase and Sale of 2000 Bonds. The Buyer hereby agrees to purchase
from the Sellers, and the Sellers hereby agree to sell to the Buyer, in accordance with the
tenns and conditions ofthis Agreement, 2000 Bonds in the aggregate principal amount of
$6,525,000 (the "Subject 2000 Bonds"). The Subject 2000 Bonds bear interest at 8% per
annum and mature on November 1, 2025 (CUSIP 376058AB9). The purchase price for
the Subject 2000 Bonds shall be par plus accrued interest to, but not including, the
settlement date. Settlement will be through delivery of the Subject 2000 Bonds through
the book-entry system against payment of the purchase price in immediately available
funds. Settlement will occur on February 26,2008, or on such later date (but not later
than March 14, 2008) as the Buyer shall identify to the Sellers by written notice to the
address ofthe Sellers appearing in the signature pages of this Agreement not later than
five business days prior to such altemative purchase date. As the Subject 2000 Bonds are
book-entry bonds registered in the name of the nominee of The Depository Trust
Company, the parties will arrange for the purchase and sale through their respective
custodians and, if applicable, other intennediaries. Each party will be responsible for the
fees and expenses of its own custodian, other intermediaries and legal counsel and other
out-of-pocket expenses incurred by it in connection herewith. As used in this
Agreement, the term "party" means on the one hand the Sellers collectively and on the
other hand the Buyer.
10868397 _5.DOC
2. Terms. The agreement of the parties to purchase and sell the Subject 2000
Bonds will expire on March 14, 2008 if such purchase and sale (sometimes hereinafter
referred to as the "Transaction") shall not have taken place by the close of business on
that date. In the event that the Transaction does not take place on or before that date
because ofthe failure to meet any tenn or condition ofthis Agreement or because the
parties fail to arrange a mutually satisfactory method of transfer, then neither party shall
have any further obligation or liability to the other on account of the failure of the
Transaction to be consummated.
3. Conditions. The obligation of each party to purchase or sell the Subject
2000 Bonds shall be subject to the additional condition that the Buyer shall have made
arrangements reasonably satisfactory to the Sellers to achieve not later than three
business days following the consummation of the Transaction (a) the surrender and
cancellation of the Subject 2000 Bonds and (b) the defeasance of all of the outstanding
2000 Bonds other than the Subject 2000 Bonds in accordance with Article X of the
Senior Lien Bond Trust Indenture dated as of December 1, 2000 between the Buyer, as
issuer of the 2000 Bonds, and U.S. Bank National Association, as successor indenture
trustee (the "Trustee"). In addition, the obligation of the Sellers under this Agreement to
sell the Subject 2000 Bonds shall be subject to receipt of a confinnation from the Trustee
satisfactory in fonn and substance to the Sellers that, upon the cancellation of the Subject
2000 Bonds and the defeasance of the remaining 2000 Bonds as contemplated by this
Agreement, the indemnity obligation of the Sellers to the Trustee under the letter
agreement dated May 3,2005 between the Sellers and the Trustee shall terminate in the
manner and to the extent provided in Section 3 of such letter agreement. The Sellers
acknowledge that the Buyer has agreed to purchase the Subject 2000 Bonds in order to
accomplish the Borrower Sale Transaction and that, should the Buyer determine in the
Buyer's sole discretion not to proceed with the Borrower Sale Transaction, the Buyer will
not be obligated under this Agreement to purchase the Subject 2000 Bonds. In the event
that either the Sellers or the Buyer shall detennine not to proceed with the purchase and
sale of the Subject 2000 Bonds on account of the failure of any condition referred to in
this paragraph to be met, then, as provided in Section 2, such party shall not thereby incur
any obligation or liability to the other party.
4. Representations of Sellers. The Sellers represent and warrant that they are
the beneficial owners of the Subject 2000 Bonds, that the Subject 2000 Bonds are not
subject to any ownership or security rights of any third party that prohibit or restrict the
sale of the Subject 2000 Bonds and that the Sellers have the power and authority to enter
into this Agreement and to sell the Subject 2000 Bonds as provided herein. Other than as
provided in the preceding sentence, the Sellers make no representations or warranties
with respect to the Transaction or the Subject 2000 Bonds and the sale under this
Agreement ofthe Subject 2000 Bonds shall be without recourse or warranty.
5. Representations of Buyer. The Buyer represents and warrants that it has
the power and authority to enter into this Agreement, to purchase the Subject 2000 Bonds
and to carry out the other actions contemplated by this Agreement, that it is purchasing
the Subject 2000 Bonds as principal, with the intention of surrendering the Subject 2000
Bonds to the Trustee for cancellation in order to facilitate the Borrower Sale Transaction,
-2-
and that its purchase ofthe Subject 2000 Bonds is funded from legally available funds of
the Buyer and not from funds received from or borrowed on the credit of the Borrower.
6. Non-Public Information. Each of the Sellers and the Buyer acknowledges
that each party may possess material, non-public infonnation concerning the 2000 Bonds
and/or the Borrower, its financial condition, results of operations, properties, assets,
liabilities, management, projections, plans, or prospects (collectively, "Non-Public
Infonnation") that is not known to the other party hereto. Each of the parties
acknowledges that Non-Public Infonnation not known to it and possessed by the other
party may be material to a determination of a fair value for the Subject 2000 Bonds and
that value may be substantially different from the purchase price reflected in the
Transaction. Each of the parties understands the disadvantage that may result from
selling or purchasing the Subject 2000 Bonds without knowledge of all of the Non-Public
Infonnation. Each of the parties believes, by reason of its business or financial
experience or its own independent investigations that it is capable of evaluating the
merits and risks of the Transaction and of protecting its own interest in connection with
the Transaction. The Sellers expressly release the Buyer, and the Buyer expressly
releases the Sellers, from any and all liabilities arising from the inability or failure of the
Sellers or the Buyers, respectively, to review Non-Public Information held by the Buyer
or the Sellers, respectively. Each ofthe Seller and the Buyer agrees to make no claim
against the Buyer or the Sellers, respectively, any of their affiliates or any of their
respective officers, employees, agents and controlling persons in respect of the
Transaction based on failure to disclose Non-Public Information.
7. Governing Laws: Jurisdiction. This Agreement and any issue arising out
of or relating to the Transaction shall be governed by, and construed in accordance with,
the laws of the State of New York, without regard to principles of conflicts oflaw. Each
party hereto consents specifically to the exclusive jurisdiction of the federal courts of the
United States sitting in the Southern District of New York, or if such federal court
declines to exercise jurisdiction over any action filed pursuant to this Agreement, the
courts of the State of New York sitting in the County of New York, and any court to
which an appeal may be taken in connection with any action filed pursuant to this
Agreement, for the purposes of all legal proceedings arising out of or relating to this
Agreement. In connection with the foregoing consent, each party irrevocably waives, to
the fullest extent pennitted by law, any objection which it may now or hereafter have to
the court's exercise of personal jurisdiction over each party to this Agreement or the
laying of venue of any such proceeding brought in such a court has been brought in an
inconvenient forum. Each party further irrevocably waives its right to a trial by jury and
consents that service of process may be effected in any manner permitted under the laws
of the State of New York.
8. Severability. In the event any of the terms or provisions of this Agreement
shall be held to be unenforceable, the remaining tenns and provisions shall be unimpaired
and the unenforceable term or provision shall be replaced by such enforceable tenn or
provision as comes closest to the intention underlying the unenforceable term or
prOVISIOn.
-3-
9. Third Party Beneficiaries: Successors and Assigns. The Buyer
understands that each affiliate of the Sellers is an intended third party beneficiary of this
Agreement and is entitled to rely hereon. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of each of the Sellers; provided that the
right ofthe Buyer to purchase the Subject 2000 Bonds hereunder may not be assigned to
any third party.
10. CounteIparts. This Agreement may be executed in counterparts, which
shall together form one and the same instrument.
11. Personal Liability. Certain of the Sellers are Massachusetts business trusts
or portfolios specifically allocated to a series of shares of a registered investment
company (a "series company") as contemplated by Rule 18F-2(a) promulgated under the
Investment Company Act of 1940, as amended. Copies of the Declarations of Trust of
such parties, or copies of the Articles of Incorporation of such parties' series companies
are on file with the Secretary of State of The Commonwealth of Massachusetts. This
Agreement is executed on behalf of the trustees of the Sellers, and the obligations of this
Agreement are not binding upon any ofthe Sellers' respective trustees, officers, or
shareholders but are binding only upon the respective assets and property of the Sellers.
The Buyer agrees that the liability of the Sellers under this Agreement shall be limited to
the assets specifically allocated to the Sellers under their charter documents and not to
any assets specifically allocated to another series of shares of their series companies or to
any other assets of their series companies.
12. Nature of Obligation. The obligations of the Sellers under this Agreement
are several and not joint and several.
-4-
IN WITNESS WHEREOF, the Sellers and the Buyer have caused this Agreement
to be executed in their respective names as of the date first above written.
PUTNAM HIGH YIELD MUNICIPAL
TRUST
By ~~
. Name: 'lh.W'- Oi'lM"'"')
Title: fv(J
PUTNAM MUNICIPAL OPPORTUNITIES
TRUST f -y
By: Name: [JAA ~
Title: ;vf
PUTNAM TAX FREE HIGH YIELD FUND
BY.Namef~l~
Title: 5v(J
PUTNAM INVESTMENT GRADE
MUNlCIP AL INCOME TRUST
BY:N3ffif ;:_~
Title: ~(J
-5-
PUTNAM MANAGED MUNICIPAL
INCOME TRUST
By: ~J ~
Name: ~ ~()
Title: fV'(/
c/o Putnam Investment Management, Inc.
One Post Office Square
Boston, Massachusetts 02109
Attn: Stephen P. O'Connell
Senior Vice President
Tel: (617) 760-1419
Fax: (617) 760-8728
Email: Stephen_O.Connell@putnam.com
CITY OF GILROY, CALIFORNIA
By:
Name: Anna Jatczak
Title: Interim City Administrator
7351 Rosanna Street
Gilroy, California 95020-6197
Tel: (408) 846-0212
Fax: (408) 846-0500
Email: anna.iatczak@ci.gilroy.ca.us
-6-
EXHIBIT E
PRICE ALLOCATION
NOTE: The parties acknowledge that the Purchase Price for the Property has not been
determined by a professional appraiser or any other empirical method other than the
parties' determination of an amount equal to a sum which is sufficient to (i) cause the
defeasance of all Senior Lien Bonds outstanding as of November 1,2007, excluding Senior
Lien Bonds (if any) which have been purchased by the City and tendered to the Bond
Trustee for retirement on or before the date set forth in Section 2.7.1, as required to enable
the execution, delivery and recordation of a Deed of Reconveyance of the Senior Bond Deed
of Trust; and (ii) pay all costs and expenses incurred to effectuate the defeasance of the
Senior Lien Bonds, including without limitation all escrow and other fees and costs charged
by the Bond Trustee, bond counsel, verification agent and f'mancial advisor, as described in
Section 2.3.1 of the Agreement. Accordingly, for all purposes, the parties hereby agree to
dispense with any allocation of the Purchase Price pursuant to Section 2.5.
ITMOAELL\734864.15
011708-04706118
-1-
EXHmIT F
BILL OF SALE
(See attached pages.)
\TMORELL\734864.15
011708-04706118
-1-
BILL OF SALE
GILROY GARDENS FAMILY THEME PARK, INC., a Delaware nonprofit corporation
formerly known as "Bonfante Gardens, Inc." ("Seller"), for good and valuable consideration
heretofore paid by CITY OF GILROY, a charter city and municipal corporation organized under
the Constitution and laws of the State of California ("Purchaser"), the receipt and sufficiency of
which are hereby acknowledged, hereby sells, transfers, grants, bargains, conveys, assigns, and
delivers to Buyer, its successors and assigns free and clear of all liens and encumbrances the
following:
All right, title and interest in and to all of the electrical generating equipment and printing
equipment utilized by Seller at the real property described in Exhibit A attached hereto
(together, the "Personal Property"). Seller shall warrant and defend title to the Property
against any claim by any person or entity claiming by, through, or under Seller.
It is understood and agreed that this transfer is made subject to the representations and
warranties contained in that certain Agreement of Purchase and Sale between Seller and Buyer
dated January 22, 2007, as the same may have been amended (as amended, "Agreement"), and
without any other warranties and representations by Seller, express or implied.
This Bill of Sale is governed by the laws of the State of California, shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors, heirs, administrators
and assigns, and shall be effective upon the delivery thereof by Seller to Buyer. . _ /
~/ IN WITNESS WHEREOF, Seller has executed this Bill of Sale this .,;;/y day of
'"tt . , 2008.
[signature on following page]
ITMORELLI750128.1
011708-04706118
SELLER:
GILROY GARDENS F AMIL Y THEME
PARK, INC., a Delaware nonprofit
corporation
..,
! (7/.J
/). <<~
By: .. _'/
Name: Rcib~tAraemer
::Ie ~preSident.
Name: "'-.~
TItle: . - "
ITMORELLI750128.1
011708-04706118
ITMORELLI750128.1
011708-04706118
EXHIBIT A TO BILL OF SALE
DESCRIPTION OF PROPERTY
[Attach legal description of Gilroy Gardens real property]
Escrow No.: 07-98702516-JW
Locate No.: CACTI7743-7743-2987-0098702516
Title No.: 07-98702516-KV
EXHIBIT "A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF GILROY, COUNTY OF SANTA CLARA, STATE OF
CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Highway, as said line was established by Parcel
One in the Deed from the De Bell Corporation, a Corporation, to the State of California, dated June 12, 1957, recorded July
30, 1957 in Book 3855 Official Records, Page 512, Santa Clara County Records, with the Easterly line of that certain 24.07 acre
tract of land described in the Deed from Jack De Bell et ux, to Louis A. Filice, et ux, dated September 15, 1954 recorded
October 19, 1954 in Book 2986 Official Records, Page 527, Santa Clara County Records; thence from said Point of Beginning
South 60 deg 42' 34" East along said Northeasterly line of Hecker Pass Highway for a distance of 599.78 feet; thence
Southeasterly continuing along said last mentioned line along an arc of a curve to the left, tangent to the preceding course,
with a radius of 1450.00 feet, through a central angle of 14 deg 52' 00", for an arc distance of 376.24 feet to the point of
intersection thereof with the Southeasterly prolongation of a Westerly line of that certain 3.728 acre tract of land described in
that certain final order of condemnation entered on November 3, 1958 in the Superior Court of the State of California, in and
for the County of Santa Clara in that certain action entitled, "The People of the State of California, Acting By and Through the
Department of Public Works, Plaintiff, vs. Louis A. Felice et ai, Defendants Case No. 103483," a certified copy of which order
was filed for record in the Office of the Recorder of the County of Santa Clara, State of California, on November 3, 1958 in
Book 4219 Official Records, Page 701, Santa Clara County Records (shown as South 33 deg 16' 39" East 246.03 feet; thence
North 33 deg 16' 30" West along said prolongation and the said Westerly line of the 3.728 acre tract for a distance of 376.66
feet to the Northwesterly corner of said 3.728 acre tract, said point also being the Southwesterly corner of that certain 1.567
acre tract of land described as Parcel Two in the Deed to said State of California above referred to; thence North 24 deg 18'
19" West along the Westerly line of said 1.567 acre tract for a distance of 94.17 feet, thence North 37 deg 18' 07" East
continuing along said Westerly line of the 1.567 acre tract and its Northeasterly prolongation for a distance of 254.41 feet to
the Northeasterly corner of that certain tract of land described in the Deed from the State of California, to the De Bell
Corporation, a California Corporation, dated August 30, 1957, recorded September 27, 1957 in Book 3900 Official Records,
Page 632, Santa Clara County Records; thence North 88 deg 39' 04" West along the Northerly line of land so described in the
Deed to said De Bell Corporation for a distance of 433.45 feet to the Northwesterly corner thereof; thence South 1 deg 47'
West along the Westerly line of land so described in the Deed to said De Bell Corporation for a distance of 64.46 feet to the
Southwesterly corner thereof in the Northerly line of that certain 160.91 acre tract of land described as Parcel Three in the
Deed from Jack De Bell et ux, to the De Bell Corporation, a California Corporation, dated October 26, 1956, recorded April 29,
1957 in Book 3786 Official Records Page 463, Santa Clara County Records; thence North 88 deg 13' West along said Northerly
line of the 160.91 acre tract for a distance of 291.56 feet to the Northeasterly corner of the said 24.07 acre tract above
referred to; thence South 23 deg 11' West along the Easterly line of said 24.07 acre tract for a distance of 130 feet more or
less to the Point of Beginning.
Excepting from the above described Parcel One, the following described parcel of land:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Road, as said line was established by Parcell in
the Deed from De Bell Corporation, a Corporation, to the State of California, dated June 12, 1957, recorded July 30, 1957 in
Book 3855 Official Records, Page 512, Santa Clara County Records, with the Northwesterly line of that certain 160.91 acre
tract of land described as Parcel Three in the Deed from Jack De Bell et ux, to the De Bell Corporation, a California
Corporation, dated October 26, 1956, recorded April 29, 1957 in Book 3736 Official Records, Page 463, Santa Clara County
Records; thence from said Point of Beginning South 60 deg 42' 34" East along said Northeasterly line of Hecker Pass Road, for
a distance of 80.00 feet, thence leaving said last mentioned line and running North 29 deg 17' 26" East 170 feet, more or less,
Exhibit Page - Legal( exhibit)(08-07)
to the point of intersection thereof with the Southwesterly line of the Old Hecker Pass road; thence South 66 deg 15' East
along said Southwesterly line of the Old Hecker Pass Road for a distance of 270.00 feet; thence leaving said last mentioned
line and running North 23 deg 00' East 99.6 feet to the True Point of Beginning of the tract of land to be described; thence
from said True Point of Beginning North 67 deg 00' West 10.00 feet; thence at right angles North 23 deg 00' East 20.00 feet;
thence at right angles South 67 deg 00' East 20.00 feet; thence at right angles South 23 deg 00' West 20.00 feet; thence at
right angles North 67 deg 00' West 10.00 feet to the True Point of Beginning.
APN 783-05-011 AND 013
PARCEL TWO:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Road, as said line was established by Parcell in
the Deed from the De Bell Corporation, a Corporation, to the State of California, dated June 21, 1957, recorded July 30, 1957
in Book 3855 Official Records, Page 512, Santa Clara County Records, with the Northwesterly line of that certain 160.91 acre
tract of land described as Parcel Three in the Deed from Jack De Bell, et UX, to the De Bell Corporation, a California
Corporation, dated October 26, 1956, recorded April 29, 1957 in Book 3736 Official Records, Page 463, Santa Clara County
Records; thence from said Point of Beginning South 60 deg 42' 34" East along said Southeasterly line of Hecker Pass Road for
a distance of 80.00 feet, thence leaving said last mentioned line and running North 29 deg 17' 26" East 170 feet, more or less,
to the point of intersection thereof with the Southwesterly line of the Old Hecker Pass Road; thence South 66 deg 15' East
along said Southwesterly line of the Old Hecker Pass Road for a distance of 270.00 feet; thence leaving said last mentioned
line and running North 23 deg 00' East 99.6 feet to the True Point of Beginning of the tract of land to be described; thence
from said True Point of Beginning North 67 deg 00' West 10.00 feet; thence at right angles North 23 deg 00' East 20.00 feet;
thence at right angles South 67 deg 00' East 20.00 feet; thence at right angles South 23 deg 00' West 20.00 feet; thence at
right angles North 67 deg 00' West 10.00 feet to the True Point of Beginning.
APN 783-05-012
PARCEL THREE:
A Portion of Parcels One and Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County,
and a Portion of Lands of Blocher, I 361 O.R. 202, Santa Clara County Records, described as follows:
Beginning at a Point on the West Line of said Parcel four, said Point also being at the Northeastern most corner of Parcel
Three as shown on said Parcel Map said Point also lying on the West line of Lands of Nob Hill General Store, Inc., a California
Corporation, as described in that Deed recorded in K805 of Official Records at page 1589, Santa Clara County, and proceeding
along the Westerly, Southerly, Easterly and Northerly lines of said Parcel four and said lands of Nob Hill the following courses:
1. SO deg. 03' 40" W 778.37 feet
2. East 70.00 feet
3. S 17 deg. 45' 49" E 294.02 feet
4. West 160.00 feet
5. SO deg. 03' 40" W 418.87 feet
6. S 0 deg. 13' 40" W 4094.58 feet
7. East 1254.00 feet
8. N 0 deg. 14' E 4527.60 feet
9. N 0 deg. 02' W 1672.30 feet
10. N 67 deg. 23' W 262.00 feet
11. N 49 deg. 20' 30" W 98.97 feet
12. N 31 deg. 26' W 154.34 feet
13. S 37 deg. 18' 09 W 85.48 feet
14. N 42 deg. 54' 55" W 294.28 feet
15. N 38 deg. 11' 51" W 55.00 feet
16. N 72 deg. 45' 58" W 83.84 feet
17. S 66 deg. 33' 05" W 57.31 feet
18. N 69 deg. 23' 35" W 301.68 feet
Exhibit Page - Legal( exhibit)(08-07)
to the Easternmost corner of those lands conveyed to the State of California by J627 of Official Records at page 1271, Santa
Clara County; thence along the Southerly line of last said lands S 83 deg. 53' 57" W 44.13 feet; thence Northwesterly along a
1585 Foot radius curve to the right, from a tangent bearing N 82 deg. 52' 34" W., said curve having an interior angle of 18
deg. 50' 48", and a length of 521.36 feet to a point lying 91.84 feet Southerly along the said 1585 Foot radius curve from an
angle point in last said Southerly line; thence S 0 deg. 09' W 419.62 feet; thence S 17 deg. 14' 00" E 810.00 feet; thence S 20
deg. 16' 11" W 194.80 feet to a point on the Northeasterly line of said Parcel Three, last said point being N 69 deg. 43' 49" W
288.41 feet from the Northeasterly corner of said Parcel Three; thence S 69 deg. 43' 49" E. 288.41 feet to the Point of
Beginning.
Excepting therefrom the following described parcel of land:
Beginning at the Northeastern most corner of said Parcel Four and proceeding S 00 deg. 09' 33" E along the East line of said
Parcel Four, 269.81 feet to the Westerly terminus of the Northeast line of a Pedestrian/Equestrian Easement as shown on
Parcel One on that Parcel Map recorded in Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30
deg. 15' W 412.10 feet more or less to a point on the Northeasterly line of said Parcel Four; thence S 67 deg. 23' E 224.09
feet along last said line to the Point of Beginning.
Also excepting therefrom "Parcel C" as described in that certain Certificate of Compliance recorded April 14, 1998 as
Instrument No. 14139227, Official Records of Santa Clara County, and being more particularly described as follows:
A portion of real property located in the County of Santa Clara, State of California, described as follows:
All of Parcel Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County Records,
Except therefrom the following:
Beginning at the Northeasternmost corner of said Parcel Four and proceeding S 00009'33" E along the East line of said Parcel
Four, 269.81 feet to the Westerly terminus of the Northeast line of a Pedestrian/Equestrian Easement as shown on Parcel One
on that Parcel Map recorded in Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30015' W 412.10
feet more or less to a point on the Northeasterly line of said Parcel Four; thence S 67023' E. 224.09 feet along last said line to
the point of beginning.
APN 810-17-026, 810-17-029
PARCEL FOUR:
A portion of Parcels Two and Three as shown on that Parcel Map recorded in Book 494 of Maps, at page 43, Santa Clara
County Records, lying in Santa Clara County, California, described as follows:
Beginning at a point on the South line of said Parcel Two, said point lying S 89 deg. 35' 00" W 145.44 feet from the
Southeasterly angle point in said Parcel Two, last said angle point being produced by the courses S 17 deg. 40' 40" W 105.66
feet and S 89 deg. 35' 00" W 428.05 feet as shown on said Map; thence along the following courses:
COURSE NO.
1. N 19 deg. 21' 40" E 417.99 feet
2. N 76 deg. 19' 19" W 13.90 feet
3. N 17 deg. 40' 40" E 1089.46 feet
4. N 64 deg. 27' 00" E 208.60 feet
to a point on the Northeasterly line of said Parcel Two, said point lying N 69 deg. 43' 49" W 9.45 feet from the Northeastern
corner of said Parcel Two; thence along the Northestern Line of said Parcels Two and Three and along the Easterly and
Southerly line s of said Parcel Three the following courses:
Exhibit Page - Legal(exhibit)(08-07)
COURSE NO.
5. S 69 deg. 43' 49" E 689.53 feet
6. S. 0 deg. 03' 40" W 778.37 feet
7. East 70.00 feet
8. S 17 deg. 45' 49" W 294.02 feet
9. West 160.00 feet
10. SO deg. 03' 40" W 350.00 feet
11. N. 78 deg. 40' 00" W 1134.00 feet
12. S 17 deg. 40' 40" W 105.66 feet, and
13. S 89 deg. 35' 00" W 145.44 feet
to the point of beginning.
APN 810-17-014, 015, 021, 024 AND 025
PARCEL FIVE:
A non-exclusive easement for Ingress and Egress and for the installation and maintenance of public utilities, appurtenant to
the above described parcels, over a strip of land 60.00 feet in width, lying 10.00 feet Westerly of and 50.00 feet Easterly of
the following described line:
Beginning at a point in the Southwesterly line of the State Highway IV-SCI-32D-1957, distant thereon South 60 deg 14' 20"
East 232.40 feet from a concrete monument at Station 325 57.01 E. C. of said Highway and running thence South 57 deg 45'
40" West 161.79 feet; South 41 deg 31' 40" West 262.30 feet; South 31 deg 44' 40" West 311.70 feet; South 3 deg 19' 10"
West 344.34 feet; South 23 deg 29' 50" East 166.48 feet; thence Southwesterly 150 feet, more or less, to a point which bears
South 71 deg 14' 02" East 94.02 feet and North 19 deg 29' 13" East 110.0 feet from the most Easterly corner of Parcell, as
said Parcel is shown upon that certain Map entitled, "Record of Survey being a portion of the solis Rancho", which Map was
filed for record in the Office of the Recorder of the County of Santa Clara, State of California on December 7, 1967 in Book 231
of Maps, at Page 22; thence South 19 deg 29' 13" West 110.00 feet and the terminus of said easement, said easement is
appurtenant to and for the Benefit of Parcels Three, Four, Seven and Twelve.
PARCEL SIX:
A non-exclusive easement for Ingress and Egress and for the installation and maintenance of public utilities and for water pipe
lines, appurtenant to the above described parcels, over an existing roadway 60.00 feet in width, the center line of which is
described as follows:
Beginning at the point of intersection of the Easterly line of that certain 160.91 acre tract of land described as Parcel Three in
the Deed from Jack De Bell, et ux, to the De Bell Corporation, dated October 26, 1956, recorded April 29, 1957 in Book 3786
Official Records, page 463, Santa Clara County Records, with the Southwesterly line of Hecker Pass Road, as said line was
established by Parcel One in the Deed from the De Bell Corporation, to the State of California dated June 12, 1957, recorded
July 30, 1957 in Book 3655 Official Records, page 512, Santa Clara County Records; thence from said point of beginning South
o deg 05' 19" West along said Easterly line of the 160.91 acre tract for a distance of 1370.09 feet to the True Point of
Beginning of the easement to be described; thence from said True Point of Beginning North 69 deg. 43' 49" West 1460.17 feet
to the terminus of said easement, said easement is appurtenant to and for the Benefit of Parcels Three, Four and Twelve.
Excepting therefrom all that portion thereof lying within the above described Parcels Three and Four.
Exhibit Page - Legal(exhibit)(08-07)
PARCEL SEVEN:
All of Parcel Two, as shown upon that certain Map entitled, "Parcel Map, being a portion of the Las Animas Rancho", which
Map was filed for record in the Office of the Recorder of the County of Santa Clara, State of California on October 12, 1993 in
Book 650 of Maps, at Page 49.
APN 810-18-010 and 011
PARCEL EIGHT:
An easement 40 feet in width for ingress and egress and public utilities the centerline of said easement described as follows:
Commencing at a point in the centerline of that 60 foot wide easement recorded in Book 7981 of Official Records at Page 56,
Santa Clara County Records, said point being the northeast terminius of that course shown as No. 16 on that Parcel Map
recorded in Book 494 of Maps, at Page 43, Santa Clara County Records and proceeding S 20016'11" W 30.00 feet to a point on
the southwesterly line of said easement to the Point of Beginning; thence from said Point of Beginning S 27003' W 28.19 feet
to station "A"; thence along a curve to the right with a radius of 40 feet at an angle of 60.00 feet for a distance of 41.89 feet
to station "B";
thence S 87003' W 28.00 feet to station C; thence along a curve to the left with a radius of 85.47 feet at an angle of 70033'08"
for a distance of 105.24 feet to station "D"; thence S 16029'52"W for a distance of 224.83 feet to station "E"; thence on a
curve to the left with a radius of 457.22 feet at an angle of 18037'52" for a distance of 148.68 feet to station "F"; thence 5
2008' E for a distance of 32.29 feet to station "G"; thence on a curve to the right with a radius of 196.58 feet at an angle of
41046' for a distance of 143.30 feet to station "H"; thence S 39038' W for a distance of 151. 72 feet to station "I"; thence on a
curve to the left with a radius of 250.00 feet at an angle of 45.000 for a distance of 196.34 feet to station "J"; thence 5 5022' E
110.00 feet to station "K"; thence on a curve to the right with a radius of 414.00 feet at an angle of 21010' for a distance of
152.94 feet to station "L"; thence S 15048' W 93.00 feet to station "M"; thence on a curve to the left with a radius of 243.00
feet at an angle of 30031' for a distance of 129.42 feet to station "N"; thence S 14043' E 456.60 feet more or less to a point on
the south line of parcel two of said parcel map, last said point being 152.52 feet westerly from the southerly terminus of that
course, (50025'00" E 89.33 feet), as shown on said parcel map, to station "0", said easement is appurtenant to and for the
Benefit of Parcel Seven.
PARCEL NINE:
An easement for ingress and egress described as follows:
Beginning at the point of beginning of the above described 40 foot wide easement and running 5 69043'49" E 20.00 feet to
the easterly line of said 40.00 foot wide easement being the true point of beginning; thence 5 69043'49" E along the
southwesterly line of the 60.00 foot easement (7981-or-56) 30 feet; thence 80 feet more or less southwesterly to the mid
point (on the southeast line of above described 40 foot easement) of the 40.00 foot radius (centerline) curve; thence
northeasterly along the southeasterly line of said 40.00' foot wide easement above described 60 feet more or less to true point
of beginning, said easement is appurtenant to and for the Benefit of Parcel Seven.
PARCEL TEN:
A 10 foot wide easement for ingress and egress. The easterly line of said easement described as follows:
Commencing at above station "L" and running 5 15048'W 40.00 feet and N 74012' W 20.00 feet to the True Point of
Beginning; thence S 15048' W 53.00 feet; thence southerly along a 263.00 foot radius curve to the left, having an interior
angle of 17025'42" a distance of 80.00 feet to the terminus of said easement, said easement is appurtenant to and for the
Exhibit Page - Legal(exhibit)(08-07)
Jenefit of Parcel Seven.
PARCEL ELEVEN:
An easement for ingress-egress said easement described as follows:
Commencing at said station "0", and proceeding S 89035' W along the Southerly line of Parcel Two as shown on Parcel Map
recorded in Book 494 of Maps at Page 43, Santa Clara County Records 20.64 feet to the True Point of Beginning; thence
continuing S 89035' W 25.00 feet; thence N 37026'15" E 30.68 feet to a point on the Southwesterly line of the 40 foot wide
easement above described; thence S 14043' E 25.00 feet to the Point of Beginning, said easement is appurtenant to and for
the Benefit of Parcel Seven.
PARCEL TWELVE:
A Portion of Parcels One and Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County,
and a Portion of Lands of Blocher, 1361 O.R. 202, Santa Clara County Records, described as follows:
Beginning at a Point on the West Line of said Parcel four, said Point also being at the Northeastern most corner of Parcel
Three as shown on said Parcel Map said Point also lying on the West line of Lands of Nab Hill General Store, Inc., a California
Corporation, as described in that Deed recorded in K805 of Official Records at page 1589, Santa Clara County, and proceeding
along the Westerly, Southerly, Easterly and Northerly lines of said Parcel four and said lands of Nab Hill the following courses:
COURSE NO.
1. S 0 deg. 03' 40" W 778.37 feet
2. East 70.00 feet
3. S 17 deg. 45' 49" E 294.02 feet
4. West 160.00 feet
5. SO deg. 03' 40" W 418.87 feet
6. S 0 deg. 13' 40" W 4094.58 feet
7. East 1254.00 feet
8. NO deg. 14' E 4527.60 feet
9. N 0 deg. 02' W 1672.30 feet
10. N 67 deg. 23' W 262.00 feet
11. N 49 deg. 20' 30" W 98.97 feet
12. N 31 deg. 26' W 154.34 feet
13. S 37 deg. 18' 09 W 85.48 feet
14. N 42 deg. 54' 55" W 294.28 feet
15. N 38 deg. 11' 51" W 55.00 feet
16. N 72 deg. 45' 58" W 83.84 feet
17. S 66 deg. 33' 05" W 57.31 feet
18. N 69 deg. 23' 35" W 301.68 feet
to the Easternmost corner of those lands conveyed to the State of California by J627 of Official Records at page 1271, Santa
Clara County; thence along the Southerly line of last said lands S 83 deg. 53' 57" W 44.13 feet; thence Northwesterly along a
1585 Foot radius curve to the right, from a tangent bearing N 82 deg. 52' 34" W., said curve having an interior angle of 18
deg. 50' 48", and a length of 521.36 feet to a point lying 91.84 feet Southerly along the said 1585 Foot radius curve from an
angle point in last said Southerly line; thence S 0 deg. 09' W 419.62 feet; thence S 17 deg. 14' 00" E 810.00 feet; thence S 20
deg. 16' 11" W 194.80 feet to a point on the Northeasterly line of said Parcel Three, last said point being N 69 deg. 43' 49" W
288.41 feet from the Northeasterly corner of said Parcel Three; thence S 69 deg. 43' 49" E. 288.41 feet to the Point of
Beginning.
Exhibit Page - Legal(exhibit)(08-07)
Excepting therefrom the the following described parcel of land:
Beginning at the Northeastern most corner of said Parcel Four and proceeding S 00 deg. 09' 33" E along the East line of said
Parcel Four, 269.81 feet to the Westerly terminus of the Northeast line of a Pedestrian/Equestrian Easement as shown on
Parcel One on that Parcel Map recorded in Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30
deg. 15' W 412.10 feet more or less to a point on the Northeasterly line of said Parcel Four; thence S 67 deg. 23' E 224.09
feet along last said line to the Point of Beginning.
Excepting therefrom all that portion lying Westerly of the Westerly line of said Parcel 4
And, in addition thereto, the following parcel of land designated as "Transfer Parcel" on the accompanying plat entitled
"Exhibit B", being more particularly described as follows:
A portion of Parcel B, as said Parcel is described in that certain Certificate of Compliance for Lot Line Adjustment filed for
record as Document Number 14139227, Official Records of Santa Clara County, California, being more particularly described as
follows:
BEGINNING at southwesterly corner of said Parcel B, said point also being the southerly terminus of the course designated as
S 00 02" E 1672.30 feet on that certain Lot Line Adjustment Parcel Map filed for record in Book 494 of Maps, at Page 43,
Records of Santa Clara County, California, and the northwest corner of Lot 61, as said Lot 61 is shown on the map of Tract
9365, Eagle Ridge, filed for record in Book 748 of Maps, at Page 20, Records of Santa Clara County, California; thence running
along the common line of said Parcel B and Parcel C
1.) N 000 09' 33" W, a distance of 1,402.67 feet to the northwesterly corner of said Parcel B; thence leaving said common line
and running along the northerly line of said Parcel B
2.) S 310 08' 00" E, a distance of 282.40 feet to the beginning of a curve to the left having a radius of 193.00 feet; thence
continuing along said northerly line
3.) Southeasterly along said curve, through a central angle of 490 07' 00", a distance of 165.45 feet to the beginning of a
compound curve to the left having a radius of 632.00 feet; thence continuing along said northerly line
4.) Easterly along said curve, through a central angle of 230 25' 00", a distance of 258.30 feet; thence continuing along said
northerly line
5.) N 76020' 00" E, a distance of 499.27 feet to the beginning of a curve to the right having a radius of 1,360.00 feet; thence
continuing along said northerly line
6.) Easterly along said curve, through a central angle of 130 40' 00"; a distance of 324.40 feet; thence continuing along said
northerly line
7.) East, a distance of 88.59 feet to the beginning of a curve to the left having a radius of 65.00 feet; thence continuing along
said northerly line
8.) Easterly along said curve, through a central angle of 040 37' 09"; a distance of 5.24 feet; thence continuing along said
northerly line
9.) S 000 36' 00" E, a distance of 0.34 feet; thence continuing along said northerly line
Exhibit Page - Legal( exhibit)(08-07)
10.) S 890 59' 56" E, a distance of 240.84 feet to the northeasterly corner of said Parcel B; thence leaving said northerly line
and running along the easterly line of said Parcel B
11.) S 00008' 00" E, a distance of 304.39 feet; thence leaving said easterly line
12.) S 87059' 43" W, a distance of 330.76 feet; thence
13.) N 890 02' 02" W, a distance of 222.92 feet; thence
14.) S 840 51' 07" W, a distance of 357.84 feet; thence
15.) S 760 21' 10" W, a distance of 402.59 feet; thence
16.) N 880 13' 32" W, a distance of 194.26 feet; thence
17.) N 630 29' 09" W, a distance of 72.82 feet; thence
18.) S 21041' 39" W, a distance of 190.51 feet; thence
19.) S 000 46' 42" E, a distance of 146.48 feet; thence
20.) S 090 19' 49" E, a distance of 120.58 feet; thence
21.) S 020 29' 27" W, a distance of 36.13 feet; thence
22.) S 040 18' 56" W, a distance of 178.81 feet; thence
23.) S 000 07' 43" W, a distance of 178.08 feet to the southerly line of said Parcel B, also being the northerly line of said Lot
61 of Tract 9365; thence running along said southerly line of Parcel B and northerly line of Lot 61
24.) N 89" 52' 17" W, a distance of 48.11 feet to the POINT OF BEGINNING.
Being Parcel C as described in the Certificate of Compliance Recorded May 2, 2005 as Instrument No. 18348300.
APN 810-18-002; 810-19-005, 007, 010, 011, and 014
PARCEL THIRTEEN:
An Easement for the purposes of Ingress and Egress and Utilities, as conveyed to Bonfante Gardens, Inc., a Delaware Non-
Profit corporation by Grant Deed recorded April 28, 1999 as Instrument No. 14780039, and being more particularly described
as follows:
Beginning at a point on the East line of Parcel Four as shown upon that Parcel Map recorded in Book 494 of Maps at Page 43,
Exhibit Page - Legal(exhibit)(OB-07)
Santa Clara County Records, said point being the Southwest corner of Parcel One as shown upon that Parcel Map recorded in
Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence Southerly alond said East line of Parcel Four,
360.00 feet; thence S. 89 deg. 52' 17" E. 60.00 feet; thence Northerly 360.00 feet to a point on the South line of said Parcel
One, last said point lying S. 89 deg. 52' 17" E. 60.00 feet from the point of beginning; thence N. 89 deg. 52' 17" W. 60.00 feet
to the point of beginning.
Exhibit Page - Legal( exhibit)(08-07)
EXHIBIT G
GRANT DEED
(See attached pages.)
\TMORELL \734B64.15
01170B-0470611 B
-1-
RECORDING REQUESTED BY:
Chicago Title Company
t ,.
WHEN RECORDED MAIL DOCUMENT
AND TAX SfAnMENT TO:
City Administrator
C/O City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
Escrow No.: 07-98702516-JW
Locate No.: CACTI7743-7743-2987-0098702S16
Title No.: 07.9a702516-KV
DOCUMENT: 19761542
Illllj ~IIIIII 1/.11 ~ 11111111111
Fees.
Taxes
Copies
AMT PAlO
Pages' 14
. No Fees
REGINA ALCOMENORAS
SANTA CLARA COUNTY RECORDER
Recorded at the request of
Chicago Title
ROE It e II
2/29/2008
I; 30 PM
SPACE ABOVE THIS UNE FOR RECORDER'S USE
Gra nt Deed
MAIL TAX STATEMENTS AS DIRECTED ABOVE
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
(Additional recording fee applies)
(recoversc)(02-Q6)
INSURED G
- CHICAGO T'
OTC
E~
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Gilroy
7351 Rosanna St.
Gilroy, CA 95020
Attention: City Administrator
RECORD WITHOUT FEE UNDER SECTION 27383
GOVERNMENT CODE OF STATE OF
CALIFORNIA
SPACE ABOVE TInS LINE fOR RECORDER'S USE
Mail Tax Statements to:
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
Attn. City Clerk
APNs: 783-05-011, -013 and -012, 810-17-026 and -029, 810-17-014, -015, -021, -024 and -025,
810-18-0 to , -011 and -002, 810-19-005, -007, -0 to, -011 and -014
GRANT DEED
GILROY GARDENS FAMILY THEME PARK, INC., a Delaware nonprofit corporation
formerly known as "Bonfante Gardens, Inc." ("Grantor"), does hereby GRANT, in fee simple
absolute to the CITY OF GILROY, a municipal corporation of the State of California, all that
real property situate in the County of Santa Clara, State of California, described as follows:
Dated; o? - alf' - ;JtJ:J r
SEE EXHIBIT "A"
"'- M~-
--
Printed Name: Robert Kraemer
r . . . . .' J~NET'K. W~~~~~E~l
@-"'COMM"1092532m
~ . HO\atY pUl)lIo.c:alllom1a ~
~.. ""'tA CLARA GOUIlT\'
1... ~ .'~ . . . ~. e.~~..I~p~ ~u~ ~3~ ~~ J
Its: PTP-sident
Mail Tax Statements as Shown Above
\TMORELLI750200 2
0226lJ8.C4706118
State of California
County of Santa Clara
)
)
On February 28, 2008
Janet K. Wallace
personally appeared Robert Kraemer,
who 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~/her/their authorized capadly(les), and that
bYJlW/her/their signature(s} on the Instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
before me,
. Notary Public (here Insert name and title of the officer),
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and
correct.
(Seal)
) "@" JAM';',".. :':."J...c: 'I
~ .....-. COMM. tlI1092532 m
en,,; . Nowy Publlc.c.tIIomla !e
UJ IAlfTAC~~OUHTY -"
t ~ . . T . . ~~ :~~ ~~~ :u~ :3: :~. f
(notary)(12-07)
)
CERTIFICATE OF ACCEPTANCE
(Government Code Section 27281)
Certificate of Acceptance of Conveyance to the
City of Gilroy
by
Gilrory Gardens Family Theme Park, Inc.
THIS IS TO CERTIFY that the interest in real property conveyed by the Grant Deed dated
~ -dl K" , 2008, from GILROY GARDENS FAMILY THEME PARK, INC., a Delaware
nonprofit corporation formerly known as "Bonfante Gardens, Inc." to the City of Gilroy, a municipal
corporation of the State of California is hereby accepted by the undersigned officer on behalf of the
City of Gilroy pursuant to authority conferred by Resolution No. 2004-20 of the city of Gilroy adopted
March 15, 2004, a certified copy of which resolution is on record in the office of the County Recorder
of the County of Santa Clara, State of California, document # 17703402, dated April 6, 2004, and the
grantee consents to recordation thereof by its duly authorized officer.
In witness whereof, I have hereunto set my hand on c:J - 02r ,2008.
Anna Jatczak, Int
of the City ofGilr
By:
ITMORELL\750200.2
O~706118
State of california
County of Santa Clara
)
)
On Februarv 28. 2008
Janet K. Wallace
personally appeared Anna Jatczak
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)ware 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/Jler/thelr slgnature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the Instrument.
before me,
. Notary Public (here Insert name and title of the officer),
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and
correct.
WITNESS my
Signature
(notary)( 12-07)
EXHIBIT A
Le2al Desription of Real Property
[to be attached]
\TMORELL\7S0200 2
022608-04706118
Escrow No.: 07-98702516-JW
Locate No.: CACT17743'7743-2987-0098702516
Title No.: 07-9S702516-KV
I "
EXHIBIT "A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE em OF GILROY, COUNTY OF SANTA CLARA, STATE OF
CALIFORNIA, AND IS DESCRIBED AS FOllOWS:
PARCEL ONE:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Highway, as said line was established by Parcel
One in the Deed from the De Bell Corporation, a Corporation, to the State of California, dated June 12, 1957, recorded July 30,
1957 in Book 3855 Official Records, Page 512, Santa Clara County Records, with the Easterly line of that certain 24.07 acre
tract of land described in the Deed from Jack De Bell et ux, to Louis A. Filice, et ux, dated September 15, 1954 recorded
October 19, 1954 in Book 2986 OffICial Records, Page 527, Santa Oara County Records; thence from said Point of Beginning
South 60 deg 42' 34" East along said Northeasterly line of Hecker Pass Highway for a distance of 599.78 feet; thence
Southeasterly continuing along said last mentioned line along an arc of a curve to the left, tangent to the preceding course,
with a radius of 1450.00 feet, through a central angle of 14 deg 52' 00", for an arc distance of 376.24 feet to the point of
intersection thereof with the Southeasterly prolongation of a Westerly line of that certain 3.728 acre tract of land described in
that certain final order of condemnation entered on November 3, 1958 in the Superior Court of the State of California, In and
for the County of Santa Clara In that certain action entitled, "The People of the State of California, Acting By and Through the
Department of Public Works, Plaintiff, vs. louis A. Felice et ai, Defendants Case No. 103483," a certified copy of which order
was filed for record in the Office of the Recorder of the County of Santa Clara, State of Ca lifom la, on November 3,1958 in Book
4219 Official Records, Page 701, Santa Clara County Records (shown as South 33 deg 16' 39" East 246.03 feet; thence North
33 deg 16' 30" West along said prolongation and the said Westerly line of the 3.728 acre tract for a distance of 376.66 feet to
the Northwesterly comer of said 3.728 acre tract. said point also being the Southwesterly corner of that certain 1.567 acre tract
of land described as Parcel Two in the Deed to said State of California above referred to; thence North 24 deg 18' 19" West
along the Westerly line of said 1.567 acre tract for a distance of 94.17 feet, thence North 37 deg 18' 07' East contlnuing along
said Westerly line of the 1.567 acre tract and its Northeasterly prolongation for a distance of 254.41 feet to the Northeasterly
comer of that certain tract of land described in the Deed from the State of California, to the De Bell Corporation, a California
Corporation, dated August 30, 1957, recorded September 27, 1957 in Book 3900 Official Records, Page 632, Santa Clara County
Records; thence North 88 deg 39' 04" West along the Northerly line of land so described in the Deed to said De Bell
Corporation for a distance of 433.45 feet to the Northwesterly comer thereof; thence South 1 deg 47' West along the Westerly
line of land so described In the Deed to said De Bell Corporation for a distance of 64.46 feet to the Southwesterly comer
thereof in the Northerly line of that certain 160.91 acre tract of land described as Parcel Three in the Deed from Jack De Bell et
ux, to the De Bell Corporation, a California Corporation, dated October 26, 1956, recorded April 29, 1957 in Book 3786 OffICial
Records Page 463, Santa Clara County Records; thence North 88 deg 13' West along said Northerly line of the 160.91 aae tract
for a distance of 291.56 feet to the Northeasterly comer of the said 24.07 acre tract above referred to; thence South 23 deg
11' West along the Easterly line of said 24.07 acre tract for a distance of 130 feet more or less to the Point of Beginning. -
Excepting from the above described Parcel One, the following desoibed parcel of land:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Road, as said line was established by Parcell in
the Deed from De Bell Corporation, a Corporation, to the State of California, dated June 12, 1957, recorded July 30, 1957 in
Book 3855 OffICial Records, Page 512, Santa Clara County Records, with the Northwesterly line of that certain 160.91 acre tract
of land described as Parcel Three In the Deed from Jack De Bell et ux, to the De Bell Corporation, a California Corporation,
dated October 26, 1956, recorded April 29, 1957 In Book 3736 OffICial Records, Page 463, Santa Clara County Records; thence
from said Point of Beginning South 60 deg 42' 34" East along said Northeasterly line of Hecker Pass Road, for a distance of
80.00 feet, thence leaving said last mentioned line and running North 29 deg 17' 26" East 170 feet, more or less, to the point of
intersection thereof with the Southwesterly line of the Old Hecker Pass road; thence South 66 deg 15' East along said
Southwesterly line of the Old Hecker Pass Road for a distance of 270.00 feet; thence leaving said last mentioned line and
Exhibit Page. l.egal(exhlblt)(08-07)
running North 23 deg 00' East 99.6 feet to the True Point of Beginning of the tract of land to be described: thence from said
True Point of Beginning North 67 deg 00' West 10.00 feet; thence at right angles North 23 deg 00' East 20.00 feet; thence at
right angles South 67 dE!g 00' Eclst 20.00 feet; thence at right angles South 23 deg 00' West 20.00 feet; thence at right angles
North 67 deg 00' West 10.00 feet to the True Point of Beginning.
APN 783-05-011 AND 013
PARCEL TWO:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Road, as said line was established by Parcell in
the Deed from the De Bell Corporation, a Corporation, to the State of Califomia, dated June 21, 1957, recorded July 30,1957 in
Book 3855 Official Records, Page 512, Santa Clara County Records, with the Northwesterfy line of that certain 160.91 acre tract
of land described as Parcel Three in the Deed from Jack De Bell, et ux, to the De Bell Corporation, a Califomia Corporation,
dated October 26, 1956, recorded April 29, 1957 in Book 3736 OffICial Records, Page 463, Santa Clara County Records; thence
from said Point of Beginning South 60 deg 42' 34" East along said Southeasterly line of Hecker Pass Road for a distance of
80.00 feet, thence leaving said last mentioned line and running North 29 deg 17' 26" East 170 feet, more or less, to the point of
intersection thereof with the Southwesterfy line of the Old Hecker Pass Road; thence South 66 deg 15' East along said
Southwesterly line of the Old Hecker Pass Road for a distance of 270.00 feet; thence leaving said last mentioned line and
running North 23 deg DO' East 99.6 feet to the True Point of Beginning of the tract of land to be described; thence from said
True Point of Beginning North 67 deg 00' West 10.00 feet; thence at right angles North 23 deg 00' East 20.00 feet; thence at
right angles South 67 deg DO' East 20.00 feet; thence at right angles South 23 deg 00' West 20.00 feet; thence at right angles
North 67 deg 00' West 10.00 feet to the True Point of Beginning.
APN 783-05-012
PARCEL THREE:
A Portion of Parcels One and Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County,
and a Portion of Lands of Blocher, I 361 O.R. 202, Santa Clara County Records, described as follows:
Beginning at a Point on the West line of said Parcel four, said Point also being at the Northeastern most comer of Parcel Three
as shown on said Parcel Map said Point also lying on the West line of Lands of Nob Hill General Store, Inc., a Califomia
Corporation, as described in that Deed recorded in K80S of Official Records at page 1589, Santa Clara County, and proceeding
along the Westerly, Southerly, Easterly and Northerly lines of said Parcel four and said lands of Nab Hill the following courses:
1. S 0 deg. 03' 40" W 778.37 feet
2. East 70.00 feet
3. S 17 deg. 45' 49" E 294.02 feet
4. West 160.00 feet
5. 5 0 deg. 03' 40" W 418.87 feet
6. 5 0 deg. 13' 40" W 4094.58 feet
7. East 1254.00 feet
8. NO deg. 14' E 4527.60 feet
9. N 0 deg. 02' W 1672.30 feet
10. N 67 deg. 23' W 262.00 feet
11. N 49 deg. 20' 30" W 98.97 feet
12. N 31 deg. 26' W 154.34 feet
13. 5 37 deg. 18' 09 W 85.48 feet
14. N 42 deg. 54' 55" W 294.28 feet
15. N 38 deg. 11' 51" W 55.00 feet
16. N 72 deg. 45' 58" W 83.84 feet
17. S 66 deg. 33' 05" W 57.31 feet
18. N 69 deg. 23' 35" W 301.68 feet
to the Easternmost comer of those lands conveyed to the State of California by J627 of OffICial Records at page 1271, Santa
Oara County; thence along the Southerly line of last said lands 5 83 deg. 53' 57" W 44.13 feet; thence Northwesterly along a
Exhibit Page - Legal(exhlbit)(08-07)
1585 Foot radius curve to the right, from a tangent bearing N 82 deg. 52' 34" W., said curve having an interior angle of 18 deg.
SO' 48", and a length of 521.36 feet to a point lying 91.84 feet Southerly along the said 1585 Foot radius curve from an angle
point in last said Southerly line~'thence 5 0 deg. 09' W 419.62 feet; thence 5 17 deg. 14' 00" E 810.00 feet; thence S 20 deg.
16' 11" W 194.80 feet to a point on the Northeasterly line of said Parcel Three, last said point being N 69 deg. 43' 49" W 288.41
feet from the Northeasterly corner of said Parcel Three; thence S 69 deg. 43' 49" E. 288.41 feet to the Point of Beginning.
Excepting therefrom the following described parcel of land:
Beginning at the Northeastern most corner of said Parcel Four and proceeding S 00 deg. 09' 33" E along the East line of said
Parcel Four, 269.81 feet to the Westerly tenninus of the Northeast line of a Pedestrian/Equestrian Easement as shown on
Parcel One on that Parcel Map recorded In Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30
deg. 15' W 412.10 feet more or less to a point on the Northeasterly line of said Parcel Four; thence 5 67 deg. 23' E 224.09 feet
along last said line to the Point of Beginning.
Also excepting therefrom "Parcel C' as described in that certain Certificate of Compliance recorded April 14, 1998 as Insbument
No. 14139227, Official Records of Santa Clara County, and being more particularly described as follows:
A portion of real property located in the County of Santa Clara, State of California, described as follows:
All of Parcel Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County Records,
Except therefrom the following:
Beginning at the Northeasternmost corner of said Parcel Four and proceeding S 00009'33" E along the East line of said Parcel
Four, 269.81 feet to the Westerly tenninus of the Northeast line of a Pedestrian/Equestrian Easement as shown on Parcel One
on that Parcel Map recorded in Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30015' W 412.10
feet more or less to a point on the Northeasterly line of said Parcel Four; thence 5 67023' E. 224.09 feet along last said line to
the point of beginning.
APN 810-17-026, 810-17-029
PARCEL FOUR:
A portion of Parcels Two and Three as shown on that Parcel Map recorded in Book 494 of Maps, at page 43, Santa Clara
County Records, lying In Santa Clara County, California, described as follows:
Beginning at a point on the South line of said Parcel Two, said point lying S 89 deg. 35' 00" W 145.44 feet from the
Southeasterly angle pOint in said Parcel Two, last said angle point being produced by the courses S 17 deg. 40' 40" W 105.66
feet and S 89 deg. 35' 00" W 428.05 feet as shown on said Map; thence along the following courses:
COURSE NO.
1. N 19 deg. 21' 40" E 417.99 feet
2. N 76 deg. 19' 19" W 13.90 feet
3. N 17 deg. 40' 40" E 1089.46 feet
4. N 64 deg. 27' 00" E 208.60 feet
to a point on the Northeasterly line of said Parcel Two, said point lying N 69 deg. 43' 49" W 9.45 feet from the Northeastern
corner of said Parcel Two; thence along the Northestem Une of said Parcels Two and Three and along the Easterly and
Southerly line s of said Parcel Three the following courses:
COURSE NO.
Exhibit Page. Legal(exhlbit)(08-07)
5, S 69 deg. 43' 49" E 689.53 feet
6. S. 0 deg. 03' 40" W 778.37 feet
7. East 70.00 feet I
8.517 deg. 45' 49" W 294.02 feet
9. West 160,00 feet
10. S 0 deg. 03' 40" W 350.00 feet
11. N. 78 deg. 40' 00" W 1134.00 feet
12. S 17 deg. 40' 40" W 105.66 feet, and
13. S 89 deg. 35' 00" W 145.44 feet
to the pOint of beginning.
APN 810-17-014, 015, 021, 024 AND 025
PARCEL FIVE:
A non-exclusive easement for Ingress and Egress and for the installation and maintenance of public utilities, appurtenant tD the
above described parcels, over a strip of land 60.00 feet in width, lying 10.00 feet Westerly of and 50.00 feet Easterly of the
following described line:
Beginning at a point in the Southwesterly line of the State Highway lV-SCI-32D-1957, distant thereon South 60 deg 14' 20"
East 232.40 feet from a concrete monument at Station 325 57.01 E. C. of said Highway and running thence South 57 deg 45'
40" West 161.79 feet; South 41 deg 31' 40" West 262.30 feet; South 31 deg 44' 40" West 311.70 feet; South 3 deg 19' 10"
West 344.34 feet; South 23 deg 29' 50" East 166.48 feet; thence Southwesterly 150 feet, more or less, to a point which bears
South 71 deg 14' 02" East 94.02 feet and North 19 deg 29' 13" East 110.0 feet from the most Easterly comer of Parcell, as
said Parcel is shown upon that certain Map entitled, "Record of Survey being a portion of the solis Rancho", which Map was
filed for record in the Office of the Recorder of the County of Santa Clara, State of California on December 7, 1967 in Book 231
of Maps, at Page 22; thence South 19 deg 29' 13" West 110.00 feet and the terminus of said easement, said easement is
appurtenant to and for the Benefit of Parcels Three, Four, Seven and Twelve.
PARCEL SIX:
A non-exclusive easement for Ingress and Egress and for the installation a nd maintenance of publiC utilities and for water pipe
lines, appurtenant to the above described parcels, over an existing roadway 60.00 feet in width, the center line of which is
described as follows:
Beginning at the point of intersection of the Easterly line of that certain 160.91 acre tract of land described as Parcel Three in
the Deed from Jack De Bell, et ux, to the De Bell Corporatlon, dated October 26, 1956, recorded April 29, 1957 in Book 3786
Official Records, page 463, Santa Clara County Records, with the Southwesterly line of Hecker Pass Road, as said line was
established by Parcel One in the Deed from the De Bell Corporation, to the State of California dated June 12, 1957, recorded
July 30, 1957 In Book 3655 Official Records, page 512, Santa Clara County Records; thence from said point of beginning South
o deg OS' 19" West along said Easterly line of the 160.91 acre tract for a distance of 1370.09 feet to the True Point of Beginning
of the easement to be described; thence from said True Point of Beginning North 69 deg. 43' 49" West 1460.17 feet to the
terminus of said easement, said easement is appurtenant to and for the Benefit of Parcels Three, Four and Twelve.
Excepting therefrom all that portion thereof lying within the above described Parcels Three and Four.
PARCEL SEVEN:
All of Parcel Two, as shown upon that certain Map entitled, "Parcel Map, being a portion of the Las Animas Rancho", which Map
was filed for record in the Office of the Recorder of the County of Santa Clara, State of California on October 12, 1993 in Book
Exhibit Page -legal(exhiblt)(08-07)
650 of Maps, at Page 49.
APN 810-18-010 and 011
PARCEL EIGHT:
An easement 40 feet In width for Ingress and egress and public utilities the centerline of said easement described as follows:
Commencing at a point in the centerline of that 60 foot wide easement recorded in Book 7981 of Official Records at Page 56,
Santa Clara County Records, said point being the northeast tenninius of that course shown as No. 16 on that Parcel Map
recorded in Book 494 of Maps, at Page 43, Santa Cia ra Cou nty Records and proceeding S 20016'11" W 30.00 feet to a point on
the southwesterly line of said easement to the Point of Beginning; thence from said Point of Beginning S 27003' W 28.19 feet to
station "A"; thence along a curve to the right with a radius of 40 feet at an angle of 60.00 feet for a distance of 41.89 feet to
station "B";
thence S 87003' W 28.00 feet to station C; thence along a curve to the left with a radius of 85.47 feet at an angle of 70033'08"
for a distance of 105.24 feet to station "0"; thence S 16029'S2'W for a distance of 224.83 feet to station "E"; thence on a curve
to the left with a radius of 457.22 feet at an angle of 18037'52" for a distance of 148.68 feet to station "P'; thence S 2008' E for
a distance of 32.29 feet to station "G"; thence on a curve to the right with a radius of 196.58 feet at an angle of 41046' for a
distance of 143.30 feet to station "H"; thence S 39038' W for a distance of 151.72 feet to station "f'; thence on a curve to the
left with a radius of 250.00 feet at an angle of 45.000 for a distance of 196.34 feet to station "J"; thence S 5022' E 110.00 feet
to station ilK"; thence on a curve to the right with a radius of 414.00 feet at an angle of 21010' for a distance of 152.94 feet to
station "l"; thence 5 15048' W 93.00 feet to station "M"; thence on a curve to the left with a radius of 243.00 feet at an angle
of 30031' for a distance of 129.42 feet to station "N"; thence S 14043' E 456.60 feet more or less to a point on the south line of
parcel two of said parcel map, last said point being 152.52 feet westerly from the southerly tenninus of that oourse, (S 0025'00"
E 89.33 feet), as shown on said parcel map, to station "0", said easement is appurtenant to and for the Benefit of Parcel
Seven.
PARCEL NINE:
An easement for ingress and egress described as follows:
Beginning at the point of beginning of the above described 40 foot wide easement and running S 69043'49" E 20.00 feet to the
easterty line of said 40.00 foot wide easement being the true point of beginning; thence S 69043'49" E along the southwesterly
line of the 60.00 foot easement (7981-or-56) 30 feet; thence 80 feet more or less southwesterly to the mid point (on the
southeast line of above described 40 foot easement) of the 40.00 foot radius (centerline) curve; thence northeasterly along the
southeasterly line of said 40.00' foot wide easement above described 60 feet more or less to true point of beginning, said
easement is appurtenant to and for the Benefit of Parcel Seven. .
PARCEL TEN:
A 10 foot wide easement for Ingress and egress. The easterly line of said easement described as follows:
Commencing at above station "l" and running S 15048'W 40.00 feet and N 74012' W 20.00 feet to the True Point of Beginning;
thence S 15048' W 53.00 feet; thence southerly along a 263.00 foot radius curve to the left, having an interior angle of
17025'4211 a distance of 80.00 feet to the tenninus of said easement, said easement is appurtenant to and for the Benefit of
Parcel Seven.
PARCEL ELEVEN:
An easement for Ingress-egress said easement described as follows:
exhibit Page - Legal(exhlblt)(08-07)
Commencing at said station 1I0"~ and proceeding S 89035' W along the Southerly line of Parcel Two as shown on Parcel Map
recorded in Book 494 of Maps at Page 43, Santa Clara County Records 20.64 feet to the True Point of Beginning; thence
continuing S 89035' W 25.00 feet; thence N 37026'15" E 30.68 feet to a paint on the Southwesterly line of the 40 foot wide
easement above described; thence S 14043' E 25.00 feet to the Point of Beginning, said easement is appurtenant to and for the
Benefit of Parcel Seven.
PAR.CEL TWELVE:
A Portion of Parcels One and Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Oara County,
and a Portion of Lands of Blocher, 1361 O.R. 202, Santa Clara County Records, described as follows:
Beginning ata Point on the West Une of said Parcel four, said Point also being at the Northeastern most comer of Parcel Three
as shown on said Parcel Map said Point also lying on the West line of Lands of Nab Hill General Store, Inc., a California
Corporation, as described in that Deed recorded in K805 of Offidal Records at page 1589, Santa Oara County, and proceeding
along the Westerty, Southerty, Easterty and Northerty lines of said Parcel four and said lands of Nab Hill the following courses:
COURSE NO.
1. S 0 deg. 03' 40" W 778.37 feet
2. East 70.00 feet
3. S 17 deg. 45' 4911 E 294.02 feet
4. West 160.00 feet
5. S 0 deg. 03' 40" W 418.87 feet
6. SO deg. 13' 40" W 4094.58 feet
7. East 1254.00 feet
8. N 0 deg. 14' E 4527.60 feet
9. N 0 deg. 02' W 1672.30 feet
10. N 67 deg. 23' W 262.00 feet
11. N 49 deg. 20' 3011 W 98.97 feet
12. N 31 deg. 26' W 154.34 feet
13. S 37 deg. 18' 09 W 85.48 feet
14. N 42 deg. 54' 55" W 294.28 feet
15. N 38 deg. 11' 51" W 55.00 feet
16. N 72 deg. 45' 58" W 83.84 feet
17.566 deg. 33' 05" W 57.31 feet
18, N 69 deg. 23' 35" W 301.68 feet
to the Easternmost corner of those lands conveyed to the State of California by J627 of Official Records at page 1271, Santa
Clara County; thence along the Southerty line of last saicllands S 83 deg. 53' 57" W 44.13 feet; thence Northwesterly along a
1585 Foot radius curve to the right, from a tangent bearing N 82 deg. 52' 34" W., said curve having an interior angle of 18 deg.
50' 48", and a length of 521.36 feet to a point lying 91.84 feet Southerty along the saicl1585 Foot radius curve from an angle
pOint in last said Southerty line; thence S 0 deg. 09' W 419.62 feet; thence S 17 deg. 14' 00" E 810.00 feet; thence S 20 deg.
16' 11" W 194.80 feet to a point on the Northeasterly line of said Parcel Three, last said point being N 69 deg. 43' 49" W 288.41
feet from the Northeasterly comer of said Parcel Three; thence S 69 deg. 43' 49" E. 288.41 feet to the Point of Beginning.
Excepting therefrom the the following described parcel of land:
Beginning at the Northeastern most corner of said Parcel Four and proceeding 5 00 deg. 09' 33" E along the East line of said
Parcel Four, 269.81 feet to the Westerly terminus of the Northeast line of a Pedestrian/Equestrian Easement as shown on
Parcel One on that Parcel Map recorded In Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30
deg. 15' W 412.10 feet more or less to a point on the Northeasterly line of said Parcel Four; thence S 67 deg. 23' E 224.09 feet
along last said line to the Point of Beginning.
Exhibit Page. Legal(exhlblt)(08-07}
Excepting therefrom all that portion lying Westerly of the Westerly line of said Parcel 4
1
And, in addition thereto, the following parcel of land designated as ''Transfer Parcel" on the accompanying plat entitled "Exhibit
B", being more particularly described as follows:
A portion of Parcel B, as said Parcel is described In that certain Certificate of Compliance for lot line Adjustment filed for record
as Document Number 14139227, Official Records of Santa Clara County, California, being more partlcularlydescribed as follows:
BEGINNING at southwesterly comer of said Parcel B, said point also being the southerly terminus of the course designated as S
0002" E 1672.30 feet on that certain Lot Line Adjustment Parcel Map filed for record in Book 494 of Maps, at Page 43, Records
of Santa Clara County, California, and the northwest comer of Lot 61, as said lot 61 is shown on the map of Tract 9365, Eagle
Ridge, filed for record in Book 748 of Maps, at Page 20, Records of Santa Oara County, California; thence running along the
common line of said Parcel B and Parcel C
1.) N 000 09' 33" W, a distance of 1,402.67 feet to the northwesterly comer of said Parcel B; thence leaving said common line
and running along the northerly line of said Parcel B
2.) S 310 08' 00" E, a distance of 282.40 feet to the beginning of a curve to the left having a radius of 193.00 feet; thence
continuing along said northerly line
3.) Southeasterly along said curve, through a central angle of 490 or 00", a distance of 165.45 feet to the beginning of a
compound curve to the left having a radius of 632.00 feet; thence continuing along said northerly line
4.) Easterly along said curve, through a central angle of 230 25' 00", a distance of 258.30 feet; thence continuing along said
northerly line
5.) N 76020' 00" E, a distance of 499.27 feet to the beginning of a curve to the right having a radius of 1,360.00 feet; thence
continuing along said northerly line
6.) Easterly along said curve, through a central angle of 13040' OO"i a distance of 324.40 feet; thence continuing along said
northerly line
7.) East, a distance of 88.59 feet to the beginning of a curve to the left: having a radius of 65.00 feet; thence continuing along
said northerly line
8.) Easterly along said curve, through a central angle of 040 37' 09"; a distance of 5.24 feet; thence continuing along said
northerly line
9.) S 00036' 00" E, a distance of 0.34 feet; thence continuing along said northerly line
10.) 5890 59' 56" E, a distance of 240.84 feet to the northeasterly comer of said Parcel B; thence leaVing said northerly line
and running along the easterly line of said Parcel B
11.) S OooOS' 00" E, a distance of 304.39 feet; thence leaving said easterly line
12.) S 870 59' 43" W, a distance of 330.76 feet; thence
exhibit Page. L.ega/(exhlbit)(08-07)
13.) N 890 02' 02" W, a distance of 222.92 feet; thence
14.) 5 840 51' 07" W, a distance of 357.84 feet; thence
15.) 5760 21' 10" W, a distance of 402.59 feet; thence
16.) N 880 13' 32" W, a distance of 194.26 feet; thence
17.) N 630 29' 09" W, a distance of 72.82 feet; thence
18.) 5 210 41' 39" W, a distance of 190.51 feet; thence
19.) 5 000 46' 42" E, a distance of 146.48 feet; thence
20.) 5 090 19' 49" E, a distance of 120.58 feet; thence
21.) 5 020 29' 27" W, a distance of 36.13 feet; thence
22.) 5 040 18' 56" W, a distance of 178.81 feet; thence
23.) S 000 07' 43" W, a distance of 178.08 feet to the southerly line of said Parcel B, also being the northerly line of said lot 61
of Tract 9365; thence running along said southerly line of Parcel B and northerly line of lot 61
24.) N 89" 52' 17" W, a distance of 48.11 feet to the POINT OF BEGINNING.
Being Parcel C as described in the Certificate of Compliance Recorded May 2, 2005 as Instrument No. 18348300.
APN 810-18-002; 810-19-005, 007, 010, 011, and 014
PARCEL THIRTEEN:
An Easement for the purposes of Ingress and Egress and Utilities, as conveyed to Bonfante Gardens, Inc., a Delaware Non-
Profit corporation by Grant Deed recorded April 28, 1999 as Instrument No. 14780039, and being more particularly described as
follows:
Beginning at a point on the East line of Parcel Four as shown upon that Parcel Map recorded In Book 494 of Maps at Page 43,
Santa Clara County Records, said point being the Southwest comer of Parcel One as shown upon that Parcel Map recorded in
Book 663 of Maps at Pages 13 and 14, Santa Oara County Records; thence Southerly along said East line of Parcel Four, 360.00
feet; thence S. 89 deg. 52' 17" E. 60.00 feet; thence Northerly 360.00 feet to a point on the South line of said Parcel One, last
said point lying S. 89 deg. 52' 17" E. 60.00 feet from the point of beginning; thence N. 89 deg. 52' 17" W. 60.00 feet to the
point of beginning.
Exhibit Page - legal(exhlblt)(08.07)
RECORDING REQUESTED BY:
Chicago Title Company
WHEN RECORDED MAIL DOCUMENT
AND TAX STATEMENT TO:
City Clerk
C/O City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
Escrow No.: 07-98702516-JW
Locate No.: CACTI7743-7743-2987-0098702516
Tilte No.: 07'98702516-KV
DOCUMENT: 19761543
11m I~ II1II1I11 mill III
Fees.
Taxes
Copies
AHT PAID
Pages: \5
. No Fees
ROE It 0 I 1
2/29/2008
1'30 PM
REGINA ALCOHENORAS
SANTA CLARA COUNTY RECORDER
Recorded at the request of
Chicago Title
SPACE ABOVE THIS UNE FOR RECORDER'S USE
Memorandum
MAIL TAX STATEMENTS AS DIRECTED ABOVE
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
(Additional recording fee applies)
(recoversc)(02-Q6)
I'
'f
INSURED
CHICAGO Tl
MEMORANDUM
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Gilroy
7351 Rosanna Street
Gilroy, California 95020
Attn; City Clerk
RECORDING REQUESTED PURSUANT TO
GOVERNMENT CODE SECTIONS 6103 AND
27383.
SPACE ABOVE THIS LINE FOR RECORDER'S USE
MEMORANDUM
THIS MEMORANDUM is entered into as of c:l- ~ , 2008, by and
between the CITY OF GILROY, a municipal corporation ("Landlord") and GILROY
GARDENS F AMIL Y THEME PARK, a Delaware nonprofit corporation formerly known as
"Bonfante Gardens, Inc." ("Tenant"), with respect that certain unrecorded Lease dated as of the
date hereof by and between Landlord and Tenant.
Pursuant to said Lease, Landlord leases to Tenant, and Tenant leases from Landlord,
certain real property located in the City of Gilroy, County of Santa Clara, State of California, as
more particularly described in Exhibit A attached hereto, together with the buildings and other
improvements thereon, upon the terms and conditions of the Lease. The term of the Lease shall
be for approximately two (2) years commencing on the date hereof and expiring at midnight on
February 28,2010, subject to sooner termination as set forth in the Lease.
This Memorandum shall incorporate all ofthe provisions of the Lease as though fully set
forth herein. This Memorandum is entered by the parties for purposes of recordation and shall
not be deemed to modify, amend, alter, limit or otherwise change any of the provisions of the
Lease. In the event of any conflict or ambiguity between the terms of this Memorandum and the
terms of the Lease, the terms of the Lease shall prevail.
,.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Memorandum
as of the dates set forth below.
GILROY GARDENS FAMILY THEME PARK,
INC., a Delaware nonprofit public benefit
corporation formerly known as "Bonfante Gardens,
Inc." j/J.. ~ }_
By: /~ ~
Rob(r~ l'..r~m~r
Its:
By:
Its:
By:
r
CITY OF GI
a municipal c
Its:
Attest:
By:
Approved as to form:
By: ~~~
City Attorney
2
State of California
County of Santa Clara
)
)
On February 28. 2008
Janet K. Wallace
personally appeared Joel Goldsmith
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) isjare subscribed to the within
Instrument and acknowledged to me that ~she/they executed the same in his/her/their au'ffiorlzed capaclty(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.
before me,
. Notary Public (here Insert name and title of the officer),
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and
correct.
..............................1
ra . a . . . . ~~ET K. WALLACE
. .-.... COMMa #1 $92532 rn
.... : . NoW)' publlc:.callfornla :t
fii . ,; SANTA ClAAA COUHTY
UI comm. Iir.p. JIlIy 13, aoo9
Signatur
(notaryX12.07)
. ,
State of California
County of Santa Clara
)
)
On February 28.2008
Janet K. Wallace
personally appeared Anna Jatczak
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)~/are subscribed to the within
instrument and acknowledged to me that he/~ey executed the same In his/her/their authorized capacity{les), and that
by his/her/their slgnature(s) on the instrument the person(s), or the entity upon behalf of which the person{s) acted,
executec.rffi'e Instrument.
before me,
. Notary Public (here insert name and title of the officer),
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and
correct.
Signature
~ (Seal)
r@' j.;,;.:,. 'K~ ...Acu.'c'it
i '. .. COMM. #1$92532 m
W 0 Hotary Publlc.(;aUfornll en
SANTA Cl.AAA COUNTY :0:
1... . . .. ~~ COlll",..I~~. ~U~ !'~ !~'j
(notary)( 12-07)
.
. .
State of CalifornIa
County of Santa Clara
)
)
On February 28. 2008
Janet K. Wallace
personally appeared Robert Kraemer.
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)~are subscribed to the within
Instrument and acknowledged to me that.pe.lshe/they executed the same in his/her/their authorized capadty(les), 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.
before me,
, Notary Public (here insert name and title of the officer),
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and
correct.
Signature
(Seal)
)' . '.. ..: . . ~~~E~.K~ ~~~~~~E. . (
_@"-"'COMM'#1592532m
c;; . G Notary Publlc.(;.lIfornla !:!!
W SANTA ClARA COUNTY ....
J... . . _. ~~~~._~~~II'~~'~.l
(notary)(12-07)
EXHIBIT A TO MEMORANDUM
(Legal Description to be Attached]
4
Escrow No.: 07.9S702516-JW
Locate No.: CAcn7743-7743-2987-D098702516
Title No.: 07-98702516-Ky
EXHIBIT "A"
THE LAND REFERRED TO HEREIN BElOW IS SITUATED IN THE CITY OF GILROY, COUNTY OF SANTA CLARA, STATE OF
CAUFORNIA, AND IS DESCRIBED AS FOllOWS:
PARCEL ONE:
Beginning at the point of Intersection of the Northeasterly line of Hecker Pass Highway, as said line was established by Parcel
One in the Deed from the De Bell Corporation, a Corporation, to the State of Califomia, dated June 12,1957, recorded July 30,
1957 in Book 3855 Official Records, Page 512, Santa Clara County Records, with the Easterly line of that certain 24.07 acre
tract of land described in the Deed from Jack De Bell et ux, to Louis A. Filice, et ux, dated September 15, 1954 recorded
October 19, 1954 in Book 2986 Official Records, Page 527, Santa Clara County Records; thence from said Point of Beginning
South 60 deg 42' 34" East along said Northeasterly line of Hecker Pass Highway for a distance of 599.78 feet; thence
Southeasterly continuing along said last mentioned line along an arc of a curve to the left, tangent to the preceding course,
with a radius of 1450.00 feet, through a central angle of 14 deg 52' 00", for an arc distance of 376.24 feet to the point of
intersection thereof with the Southeasterly prolongation of a Westerly line of that certain 3.728 acre tract of land described in
that certain final order of condemnation entered on November 3, 1958 in the Superior Court of the State of California, in and
for the County of Santa Clara In that certain action entitled, 'The People of the State of California, Actlng By and Through the
Department of Public Works, Plaintiff, vs. louis A. Felice et ai, Defendants Case No. 103483," a certified copy of which order
was filed for record in the Office of the Recorder of the County of Santa Clara, State of California, on November 3, 1958 in Book
4219 Official Records, Page 701, Santa Clara County Records (shown as South 33 deg 16' 39" East 246.03 feet; thence North
33 deg 16' 30" West along said prolongation and the said Westerly line of the 3.728 acre tract for a distance of 376.66 feet to
the Northwesterly comer of said 3.728 acre tract said point also being the Southwesterly comer of that certain 1567 acre tract
of land described as Parcel Two in the Deed to said State of California above referred to; thence North 24 deg 18' 19" West
along the Westerly line of said 1.567 acre tract for a distance of 94.17 feet, thence North 37 deg 18' 07" East continuing along
said Westerly line of the 1.567 acre tract and its Northeasterly prolongation for a distance of 254.41 feet to the Northeasterly
comer of that certain tract of land described in the Deed from the State of California, to the De Bell Corporation, a California
Corporation, dated August 30, 1957, recorded September 27, 1957 in Book 3900 OffICial Records, Page 632, Santa Oara County
Records; thence North 88 deg 39' 04" West along the Northerly line of land so described in the Deed to said De Bell
Corporation for a distance of 433.45 feet to the Northwesterly corner thereof; thence South 1 deg 47' West along the Westerly
line of land so described in the Deed to said De Bell Corporation for a distance of 64.46 feet to the Southwesterly comer
thereof in the Northerly line of that certain 160.91 acre tract of land described as Parcel Three in the Deed from Jack De Bell et
ux, to the De Bell Corporation, a California Corporation, dated October 26, 1956, recorded April 29, 1957 in Book 3786 Official
Records Page 463, Santa Clara County Records; thence North 88 deg 13' West along said Northerly line of the 160.91 acre tract
for a distance of 291.56 feet to the Northeasterly comer of the said 24.07 acre tract above referred to; thence South 23 deg
11' West along the Easterly line of said 24.07 acre tract for a distance of 130 feet more or less to the Point of Beginning.
Excepting from the above described Parcel One, the following described parcel of land:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Road, as said line was established by Parcell in
the Deed from De Bell Corporation, a Corporation, to the State of California, dated June 12, 1957, recorded July 30, 1957 in
Book 3855 Official Records, Page 512, Santa Clara County Records, with the Northwesterly line of that certain 160.91 acre tract
of land described as Parcel Three in the Deed from Jack De Bell et ux, to the De Bell Corporation, a California Corporation,
dated October 26, 1956, recorded April 29, 1957 In Book 3736 Official Records, Page 463, Santa Clara County Records; thence
from said Point of Beginning South 60 deg 42' 34" East along said Northeasterly line of Hecker Pass Road, for a distance of
80.00 feet, thence leaving said last mentioned line and running North 29 deg 17' 26" East 170 feet, more or less, to the point of
intersection thereof with the Southwesterly line of the Old Hecker Pass road; thence South 66 deg 15' East along said
Southwesterly line of the Old Hecker Pass Road for a distance of 270.00 feet; thence leaving said last mentioned line and
exhibit Page - Legal(exhiblt)(08-07)
running North 23 deg 00' East 99.6 feet to the True Point of Beginning of the tract of land to be described; thence from said
True Point of Beginning North 67 deg 00' West 10.00 feet; thence at right angles North 23 deg 00' East 20.00 feeti thence at
right angles South 67 deg 00' East 20.00 feet; thence at right angles South 23 deg 00' West 20.00 feet; thence at right angles
North 67 deg DO' West 10.00 feet to the True Point of Beginning.
APN 783-05-011 AND 013
PARCEL TWO:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Road, as said line was established by Parcell in
the Deed from the De Bell Corporation, a Corporation, to the State of California, dated June 21, 1957, recorded July 30, 1957 in
Book 3855 Official Records, Page 512, Santa Clara County Records, with the Northwesterly line of that certain 160.91 aaetract
of land described as Parcel Three in the Deed from Jack De Bell, et ux, to the De Bell Corporation, a California Corporation,
dated October 26, 1956, recorded April 29, 1957 in Book 3736 Official Records, Page 463, Santa Clara County Recordsi thence
from said Point of Beginning South 60 deg 42' 34" East along said Southeasterly line of Hecker Pass Road for a distance of
80.00 feet, thence leaving said last mentioned line and running North 29 deg 17' 26" East 170 feet, more or less, to the point of
intersection thereof with the Southwesterly line of the Old Hecker Pass Road; thence South 66 deg 15' East along said
Southwesterly line of the Old Hecker Pass Road for a distance of 270.00 feet; thence leaving said last mentioned line and
running North 23 deg 00' East 99.6 feet to the True Point of Beginning of the tract of land to be described; thence from said
True Point of Beginning North 67 deg 00' West 10.00 feet; thence at right angles North 23 deg 00' East 20.00 feet; thence at
right angles South 67 deg 00' East 20.00 feet; thence at right angles South 23 deg 00' West 20.00 feet; thence at right angles
North 67 deg 00' West. 10.00 feet to the True Point of Beginning.
APN 783-05-012
PARCEL THREE:
A Portion of Parcels One and Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County,
and a Portion of lands of Blocher, 1361 O.R. 202, Santa Clara County Records, described as follows:
Beginning ata Point on the West Une of said Parcel four, said Point also being at the Northeastern most corner of Parcel Three
as shown on said Parcel Map said Point also lying on the West line of lands of Nob Hill General Store, Inc., a California
Corporation, as described In that Deed recorded in 1<805 of Official Records at page 1589, Santa Clara County, and proceeding
along the Westerly, Southerly, Easterly and Northerly lines of said Parcel four and said lands of Nob Hill the following courses:
1. S 0 deg. 03' 40" W n8.37 feet
2. East 70.00 feet
3. S 17 deg. 45' 49" E 294.02 feet
4. West 160.00 feet
5. S 0 deg. 03' 40" W 418.87 feet
6. S 0 deg. 13' 40" W 4094.58 feet
7. East 1254.00 feet
8. N 0 deg. 14' E 4527.60 feet
9. N 0 deg. 02' W 1672.30 feet
10. N 67 deg. 23' W 262.00 feet
11. N 49 deg. 20' 30" W 98.97 feet
12. N 31 deg. 26' W 154.34 feet
13. S 37 deg. 18' 09 W 85.48 feet
14. N 42 deg. 54' 55" W 294.28 feet
15. N 38 deg. 11' 51" W 55.00 feet
16. N 72 deg. 45' 58" W 83.84 feet
17. 5 66 deg. 33' 05" W 57.31 feet
18. N 69 deg. 23' 35" W 301.68 feet
to the Easternmost corner of those lands conveyed to the State of California by J627 of Official Records at page 1271, Santa
Clara County; thence along the Southerly line of last said lands S 83 deg. 53' 57" W 44.13 feet; thence Northwesterly along a
exhibit Page. legal(exhibit)(Oa-07)
1585 Foot radius curve to the right, from a tangent bearing N 82 deg. 52' 34" W., said curve having an Interior angle of 18 deg.
50' 48", and a length of 521.36 feet to a point lying 91.84 feet Southerly along the said 1585 Foot radius curve from an angle
point in last said Southerly line; thence 5 0 deg. 09' W 419.62 feet; thence S 17 deg. 14' DO" E 810.00 feet; thence S 20 deg.
16' 11" W 194.80 feet to a point on the Northeasterly line of said Parcel Three, last said point being N 69 deg. 43' 49" W 288.41
feet from the Northeasterly corner of said Parcel Three; thence 5 69 deg. 43' 49" E. 288.41 feet to the Point of Beginning.
Excepting therefrom the following described parcel of land:
Beginning at the Northeastern most comer of said Parcel Four and proceeding S 00 deg. 09' 33" E along the East line of said
Parcel Four, 269.81 feet to the Westerly terminus of the Northeast line of a Pedestrian/Equestrian Easement as shown on
Parcel One on that Parcel Map recorded in Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30
deg. 15' W 412.10 feet more or less to a point on the Northeasterly line of said Parcel four; thence 5 67 deg. 23' E 224.09 feet
along last said line to the Point of Beginning.
Also excepting therefrom "Parcel C' as described in that certain Certificate of Compliance recorded April 14, 1998 as Instrument
No. 14139227, Official Records of Santa Clara County, and being more particularly described as follows:
A portion of real property located in the County of Santa Clara, State of California, described as follows:
All of Parcel Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County Records,
Except therefrom the following:
Beginning at the Northeasternmost corner of said Parcel Four and proceeding S 00009'33" E along the East line of said Parcel
Four, 269.81 feet to the Westerly terminus of the Northeast line of a Pedestrian/Equestrian Easement as shown on Parcel One
on that Parcel Map recorded in Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30015' W 412.10
feet more or less to a point on the Northeasterly line of said Parcel four; thence S 67023' E. 224.09 feet along last said line to
the point of beginning. -
APN 810-17-026,810-17-029
PARCEL FOUR:
A portion of Parcels Two and Three as shown on that Parcel Map recorded in Book 494 of Maps, at page 43, Santa Clara
County Records, lying in Santa Clara County, California, described as follows:
Beginning at a point on the South line of said Parcel Two, said point lying S 89 deg. 35' 00" W 145.44 feet from the
Southeasterly angle point /n said Parcel Two, last said angle point being produced by the courses S 17 deg. 40' 40" W 105.66
feet and S 89 deg. 35' DO" W 428.05 feet as shown on said Map; thence along the following courses:
COURSE NO.
1. N 19 deg. 21' 40" E 417.99 feet
2. N 76 deg. 19' 19" W 13.90 feet
3. N 17 deg. 40' 40" E 1089.46 feet
4. N 64 deg. 27' DO" E 208.60 feet
to a point on the Northeasterly line of said Parcel Two, said point lying N 69 deg. 43' 49" W 9.45 feet from the Northeastern
comer of said Parcel Two; thence along the Northestern Une of said Parcels Two and Three and along the Easterly and
Southerly line s of said Parcel Three the fo/Iowing courses:
COURSE NO.
exhibit Page - L.egal(exhlbit)(08-07)
5. S 69 deg. 43' 49" E 689.53 feet
6. S. 0 deg. 03' 40" W 778.37 feet
7, East 70.00 feet
8.517 deg. 45' 49" W 294.02 feet
9. West 160.00 feet
10. SO deg. 03' 40" W 350.00 feet
11. N. 78 deg. 40' 00" W 1134.00 feet
12. S 17 deg. 40' 40" W 105.66 feet, and
13. S 89 deg. 35' 00" W 145.44 feet
to the point of beginning.
APN 810-17-014,015,021,024 AND 025
PARCEL FIVE:
A non-exclusive easement for Ingress a nd Egress and for the installation and maintenance of public utilities, appurtenant to the
above described parcels, over a strip of land 60.00 feet in width, lying 10.00 feet Westerly of and 50.00 feet Easterly of the
following described line:
Beginning at a point in the Southwesterly line of the State Highway IV-SCI-32D-1957, distant thereon South 60 deg 14' 20"
East 232.40 feet from a concrete monument at Station 325 57.01 E. C. of said Highway and running thence South 57 deg 45'
40" West 161.79 feet; South 41 deg 31' 40" West 262.30 feet; South 31 deg 44' 40" West 311.70 feet; South 3 deg 19' 10"
West 344.34 feetj South 23 deg 29' SO" East 166.48 feet; thence Southwesterly 150 feet, more or less, to a point which bears
South 71 deg 14' 02" East 94.02 feet and North 19 deg 29' 13" East 110.0 feet from the most Easterly corner of Parcell, as
said Parcel is shown upon that certain Map entitled, "Record of Survey being a portion of the solis Rancho", which Map was
filed for record in the Office of the Recorder of the County of Santa Clara, State of California on December 7, 1967 In Book 231
of Maps, at Page 22; thence South 19 deg 29' 13" West 110.00 feet and the terminus of said easement, said easement is
appurtenant to and for the Benefit: of Parcels Three, Four, Seven and Twelve.
PARCEL SIX:
A non-exclusive easement for Ingress and Egress and for the installation and maintenance of public utilities and for water pipe
lines, appurtenant to the above described parcels, over an existing roadway 60.00 feet in width, the center line of which is
described as follows:
Beginning at the point of intersection of the Easterly line of that certain 160.91 acre tract of land described as Parcel Three in
the Deed from Jack De Bell, et ux, to the De Bell Corporation, dated October 26, 1956, recorded April 29, 1957 in Book 3786
Official Records, page 463, Santa Clara County Records, with the Southwesterly line of Hecker Pass Road, as said line was
established by Parcel One in the Deed from the De Bell Corporation, to the State of California dated June 12, 1957, recorded
July 30, 1957 in Book 3655 OffICial Records, page 512, Santa Oara County Records; thence from said point of beginning South
o deg 05' 19" West along said Easterly line of the 160.91 acre tract for a distance of 1370.09 feet to the True POint of Beginning
of the easement to be described; thence from said True Point of Beginning North 69 deg. 43' 49" West 1460.17 feet to the
terminus of said easement, said easement is appurtenant to and for the Benefit of Parcels Three, Four and Twelve.
Excepting therefrom all that portion thereof lying within the above described Parcels Three and Four.
PARCEL SEVEN:
All of Parcel Two, as shown upon that certain Map entitled, "Parcel Map, being a portion of the Las Animas Rancho", which Map
was filed for record in the Office of the Recorder of the County of Santa Clara, State of California on October 12, 1993 in Book
ExhIbit Page - Legal(exhlbit)(OS-07)
650 of Maps, at Page 49.
APN 8UrlS-OlO and 011
PARCEL EIGHT:
An easement 40 feet in width for ingress and egress and public utilities the centerline of said easement described as follows:
Commencing at a point In the centerline of that 60 foot wide easement recorded in Book 7981 of OffICial Records at Page 56,
Santa Clara County Records, said point being the northeast terminius of that course shown as No. 16 on that Parcel Map
recorded in Book 494 of Maps, at Page 43, Santa Clara County Records and proceeding 5 20016'11" W 30.00 feet to a point on
the southwesterly line of said easement to the Point of Beginning; thence from said Point of Beginning 5 27003' W 28.19 feet to
station "A"; thence along a curve to the right with a radius of 40 feet at an angle of 60.00 feet for a distance of 41.89 feet to
station "B";
thence 5 87003' W 28.00 feet to station C; thence along a curve to the left with a radius of 85.47 feet at an angle of 70033'08"
for a distance of 105.24 feet to station "0"; thence S 16029'52"W for a distance of 224.83 feet to station "E"; thence on a curve
to the left with a radius of 457.22 feet at an angle of 1803752" for a distance of 148.68 feet to station "F"; thence 5 2008' E for
a distance of 32.29 feet to station "G"; thence on a curve to the right with a radius of 196.58 feet at an angle of 41046' for a
distance of 143.30 feet to station "H"; thence 5 39038' W for a distance of 151.72 feet to station 'T'; thence on a curve to the
left with a radius of 250.00 feet at an angle of 45.000 for a distance of 196.34 feet to station "J"; thence 5 5022' E 110.00 feet
to station "K"; thence on a curve to the right with a radius of 414.00 feet at an angle of 21010' for a distance of 152.94 feetto
station "L"; thence 5 15048' W 93.00 feet to station "M"; thence on a curve to the left with a radius of 243.00 feet at an angle
of 30031' for a distance of 129.42 feet to station "N"; thence 5 14043' E 456.60 feet more or less to a point on the south line of
parcel two of said parcel map, last said point being 152.52 feet westerly from the southerly terminus of that course, (5 0025'00"
E 89.33 feet), as shown on said parcel map, to station "0", said easement is appurtenant to and for the Benefit of Parcel
Seven.
PARCEL NINE:
An easement for ingress and egress described as follows:
Beginning at the point of beginning of the above described 40 foot wide easement and running S 69043'49" E 20.00 feet to the
easterly line of said 40.00 foot wide easement being the true point of beginning; thence S 69043'49" E along the southwesterly
line of the 60.00 foot easement (7981-or-56) 30 feet; thence 80 feet more or less southwesterly to the mid point (on the
southeast line of above descrlbed 40 foot easement) of the 40.00 foot radius (centerline) curve; thence northeasterly along the
southeasterly line of said 40.00' foot wide easement above described 60 feet more or less to true point of beginning, said
easement is appurtenant to and for the Benefit of Parcel Seven.
PARCEL TEN:
A 10 foot wide easement for ingress and egress. The easterly line of said easement described as follows:
Commencing at above station "L" and running S 15048'W 40.00 feet and N 74012' W 20.00 feet to the True Point of Beginning;
thence S 15048' W 53.00 feet; thence southerly along a 263.00 foot radius curve to the left, having an interior angle of
17025'42" a distance of 80.00 feet to the terminus of said easement, said easement is appurtenant to and for the Benefit of
Parcel Seven.
PARCEL ELEVEN:
An easement for ingress-egress said easement described as follows:
Exhibit Page. Legal(exhiblt)(OS-07)
Commencing at said station "O"~ and proceeding S 89035' W along the Southerly line of Parcel Two as shown on Parcel Map
recorded in Book 494 of Maps at Page 43, Santa Oara County Records 20.64 feet to the True Point of Beginning; thence
continuing S 89035' W 25.00 feet; thence N 37026' 15" E 30.68 feet to a point on the Southwesterly line of the 40 foot wide
easement above described; thence S 14043' E 25.00 feet to the Point of Beginning, said easement is a ppurtenant to and for the
Benefit of Parcel Seven.
PARCEL TWELVE:
A Portion of Parcels One and Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Oara County,
and a Portion of lands of Blocher, 1361 O.R. 202, Santa Clara County Records, described as follows:
Beginning at a Point on the West Une of said Parcel four, said Point also being at the Northeastern most corner of Parcel Three
as shown on said Parcel Map said Point also lying on the West line of lands of Nab Hill General Store, Inc., a California
Corporation, as described in that Deed recorded in K805 of Official Records at page 1589, Santa Clara County, and proceeding
along the Westerly, Southerly, Easterly and Northerly lines of said Parcel four and said lands of Nob Hill the following courses:
COURSE NO.
1. S 0 deg. 03' 40" W 778.37 feet
2. East 70.00 feet
3. S 17 deg. 45' 49" E 294.02 feet
4. West 160.00 feet
5.50 deg, 03' 40" W 418.87 feet
6. S 0 deg. 13' 40" W 4094.58 feet
7. East 1254.00 feet
8. N 0 deg. 14' E 4527.60 feet
9. N 0 deg. 02' W 1672.30 feet
10. N 67 deg. 23' W 262.00 feet
11. N 49 deg. 20' 30" W 98.97 feet
12. N 31 deg. 26' W 154.34 feet
13. S 37 deg. 18' 09 W 85.48 feet
14. N 42 deg. 54' 55" W 294.28 feet
15. N 38 deg. 11' 51" W 55.00 feet
16. N 72 deg. 45' 58" W 83.84 feet
17. S 66 deg. 33' OS" W 57.31 feet
18. N 69 deg. 23' 35" W 301.68 feet
to the Easternmost corner of those lands conveyed to the State of California by J627 of Official Records at page 1271, Santa
Clara County; thence along the Southerly line of last said lands S 83 deg. 53' 57" W 44.13 feet; thence Northwesterly along a
1585 Foot radius curve to the right, from a tangent bearing N 82 deg. 52' 34" W., said curve having an interior angle of 18 deg.
50' 48", and a length of 521.36 feet to a point lying 91.84 feet Southerly along the said 1585 Foot radius curve from an angle
point in last said Southerly line; thence 5 0 deg. 09' W 419.62 feet; thence S 17 deg. 14' 00" E 810.00 feet; thence 520 deg.
16' 11" W 194.80 feet to a point on the Northeasterly line of said Parcel Three, last said point being N 69 deg. 43' 49" W 288.41
feet from the Northeasterly comer of said Parcel Three; thence S 69 deg. 43' 49" E. 288.41 feet to the Point of Beginning.
Excepting therefrom the the following described parcel of land:
Beginning at the Northeastern most corner of said Parcel Four and proceeding 500 deg. 09' 33" E along the East line of said
Parcel four, 269.81 feet to the Westerly terminus of the Northeast line of a Pedestrian/Equestrian Easement as shown on
Parcel One on that Parcel Map recorded in Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30
deg. 15' W 412.10 feet more or less to a point on the Northeasterly line of said Parcel Four; thence S 67 deg. 23' E 224.09 feet
along last said line to the Point of Beginning.
exhibit Page - L.egal(exhJblt)(os-on
Excepting therefrom all that portion lying Westerly of the Westerly line of said Parcel 4
, .
And, in addition thereto; the following parcel of land designated as 'Transfer Parcellt on the accompanying plat entitled "Exhibit
B", being more particularly described as follows:
A portion of Parcel B, as said Parcel is described in that certain Certificate of Compliance for lot Line Adjustment filed for record
as Document Number 14139227, Official Records of Santa Clara County, California, being more particularly described as follows:
BEGINNING at southwesterly corner of said Parcel B, said point also being the southerly terminus of the course designated as S
00 02" E 1672.30 feet on that certain Lot Line Adjustment Parcel Map filed for record in Book 494 of Maps, at Page 43, Records
of Santa Clara County, California, and the northwest corner of Lot 61, as said Lot 61 is shown on the map of Tract 9365, Eagle
Ridge, filed for record in Book 748 of Maps, at Page 20, Records of Santa Clara County, California; thence running along the
common line of said Parcel B and Parcel C
1.) N 000 09' 33" W, a distance of 1,402.67 feet to the northwesterly corner of said Parcel B; thence leaving said common line
and running along the northerly line of said Parcel B
2.) 5 310 08' DO" E, a distance of 282.40 feet to the beginning of a curve to the left having a radius of 193.00 feet; thence
continuing along said northerly line
3.) Southeasterly along said curve, through a central angle of 490 07' DO", a distance of 165.45 feet to the beginning of a
compound curve to the left having a radius of 632.00 feet; thence continuing along said northerly line
4.) Easterly along said curve, through a central angle of 230 25' 00", a distance of 258.30 feet; thence continuing along said
northerly line
5.) N 76020' 00" E, a distance of 499.27 feet to the beginning of a curve to the right having a radius of 1,360.00 feet; thence
continuing along said northerly line
6.) Easterly along said curve, through a central angle of 130 40' 00"; a distance of 324.40 feet; thence continuing along said
northerly line
7.) East, a distance of 88.59 feet to the beginning of a curve to the left having a radius of 65.00 feet; thence continuing along
said northerly line
8.) Easterly along said curve, through a central angle of 040 37' 09"; a distance of 5.24 feet; thence continuing along said
northerly line
9.) S 000 36' 00" E, a distance of 0.34 feet; thence continuing along said northerly line
10.) S 890 59' 56" E, a distance of 240.84 feet to the northeasterly comer of said Parcel B; thence leaving said northerly line
and running along the easterly line of said Parcel B
11.) 5 00008' 00" E, a distance of 304.39 feet; thence leaving said easterly line
12.) S 870 59' 43" W, a distance of 330.76 feet; thence
Exhibit Page - Legal(exhlblt)(08-07)
. .
13.) N 890 02' 02" W, a distance of 222.92 feet; thence
; I
14.) S 840 51' 07" W, a distance of 357.84 feet; thence
15.) 5 760 21' 10" W, a distance of 402.59 feet; thence
16.) N 880 13' 32" W, a distance of 194.26 feeti thence
17.) N 630 29' 09" W, a distance of 72.82 feet; thence
18.) 5 210 41' 39" W, a distance of 190.51 feet; thence
19.) S 000 46' 42" E, a distance of 146.48 feet; thence
20.) S 090 19' 49" E, a distance of 120.58 feet; thence
21.) 5 020 29' 27" W, a distance of 36.13 feet; thence
22.) S 040 18' 56" W, a distance of 178.81 feet; thence
23.) S 000 07' 43" W, a distance of 178.08 feet to the southerly line of said Parcel B, also being the northerly line of said Lot 61
of Tract 9365; thence running along said southerly line of Parcel B and northerly line of Lot 61
24.) N 89" 52' 17" W, a distance of 48.11 feet to the POINT OF BEGINNING.
Being Parcel C as described In the Certificate of Compliance Recorded May 2, 2005 as Instrument No. 18348300.
APN 810-18-002; 810-19-005, 007,010,011, and 014
PARCEL THIRTEEN:
An Easement for the purposes of Ingress and Egress and Utilities, as conveyed to Bonfante Gardens, Inc., a Delaware Non-
Profit corporation by Grant Deed recorded April 28, 1999 as Instrument No. 14780039, and being more particularly described as
follows:
Beginning at a point on the East line of Parcel Four as shown upon that Parcel Map recorded in Book 494 of Maps at Page 43,
Santa Oara County Records, said point being the Southwest comer of Parcel One as shown upon that Parcel Map recorded in
Book 663 of Maps at Pages 13 and 14, Santa Oara County Records; thence Southerly along said East line of Parcel Four, 360.00
feet; thence S. 89 deg. 52' 17" E. 60.00 feet; thence Northerly 360.00 feet to a point on the South line of said Parcel One, last
said point lying S. 89 deg. 52' 17" E. 60.00 feet from the point of beginning; thence N. 89 deg. 52' 17" W. 60.00 feet to the
point of beginning.
Exhlbit Page -legal(exhlbit)(08-07)
RECORDING REQUESTED BY:
Chicago Title Company .
Escrow No.: 08-98702850-JW
Locate No.: CAC1l7743-7743-2987-009B702850
Title No.: 08-98702850-KV
When Recorded Mail Document To:
Intermin City Administrator
City of Gilroy
7351 Rosanna Street
Gilroy, Califomal 95020
DOCUMENT: 19761544
~lIlill ~I ~ 111\1 nil II II
Pages:
Fees
Taxes
Copies.
AMT PAID
11.013
I 1 0e
REGINA ALCOMENDRAS
SANTA CLARA COUNTY RECORDER
Recorded at the request of
Chicago Title
ROE 1* e 11
2/29/21308
I :30 PM
APN: 783-05-011,012,013,810-17-014,015,021,024,025,026,029,810-18-
002,0
SPACE ABOVE THIS LINE FOR RECORDER'S USE
FULL RECONVEYANCE
Chicago Title Company
as present trustee under that certain Deed of Trust dated December 1, 2000
executed by
Bonfante Gardens, Inc. a Delaware Non-Profit Corporation
as Trustor(s), and
recorded as instrument no. 15523372 on January 11, 2001, Official Records, in the Office of the County Recorder
of Santa Clara county, California, $
having been requested in writing by the holder of the obligations secured by said Deed of Trust to reconvey the estate
granted to Trustee under said Deed of Trust, DOES HEREBY RECONVEY to the person or persons legally entitled thereto,
without warranty, all the estate, title, and Interest acquired by Trustee under . eed of Trust.
State of California
County of Santa Clara
)
)
net K. Wallace
~sst. Vice President
Chicago Title Company
DATED: February 27,2008
On February 28, 2008 before me,
Sheri Davidson , Notary Public
(here Insert name and title of the officer), personally appeared
Janet K. Wallace
.
who 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.
SHERI DAVIDSON ~
co MM. # 1762880 G)
. NOTARY PUBLIC. CALIFORNIA (')
SANTA CLARA COUNTY
COMM. EXPIRES AUG. 21, 2011 -4
I certify under PENALTY OF PERJURY under the laws of the State of
California that the for go; paragraph is true and correct.
I
y han
Signatur
{Seal}
FULLRECONVEYANCE~
FD-236 (Rev 12/07)
(fullrecn){12-07)
EXHIBIT H
INTANGIBLES ASSIGNMENT
(See attached pages.)
\TMORELL\734B64.15
011708-0470611 B
-1-
ASSIGNMENT OF INTANGIBLE PROPERTY
This ?:GNMENT OF INTANGIBLE PROPERTY (this "Assignment") is executed as of
A --,;l. , 2008 (the "Effective Date"), by GILROY GARDENS F AMIL Y THEME PARK,
INC., a Delaware nonprofit corporation formerly known as "Bonfante Gardens, Inc."
("Assignor") for the benefit of CITY OF GILROY, a charter city and municipal corporation
organized under the Constitution and laws of the State of California ("Purchaser").
WIT N E SSE T H:
WHEREAS, Assignor is the owner of those certain tracts or parcels of real property located
in the County of Santa Clara, State of California (the "Property") described on the attached
Exhibit A.
WHEREAS, Assignor, as "Seller," and Assignee, as "Purchaser" have previously entered
into that certain Purchase and Sale Agreement dated as of January 22, 2007, as the same may
have been amended (as amended, the "Purchase Agreement") providing for the sale of the
Property to Assignee, subject to and on the terms thereof.
WHEREAS, Assignor desires to assign to Assignee the below-referenced rights, title and
interest of Assignor in and to tangible and intangible personal property related to the Property in
accordance with the terms of this Assignment.
NOW, THEREFORE, in consideration of the mutual covenants set forth in the Purchase
Agreement and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, Assignor hereby sells,
assigns, and transfers to Assignee all of Assignor's right, title and interest in and to all of the
following intangible assets and rights of Seller relating directly to the Gilroy Gardens Park: all
indemnities, claims, third-party guaranties and warranties, all reports, test results, appraisals,
maps and surveys relating to the Property, trademarks, trade names, trade dress, and domain
names.
IN WITNESS WHEREOF, the parties have executed this Assignment to be effective as of
the Effective Date above.
[signatures on following pages]
\TMORELL\750129.1
011708-04706118
SELLER:
By:
By
PURCHASER:
CITY OF GI~~~ ::l;f~ia
By: \jJ ~\J~\\J-
Name:
Title:
Anna 'Jat~
Interim "t A
ATTEST:
By:
APPROVED AS TO FORM:
By:
/~'7 '. "" 6Le7
/7" L d' ~
L ,
Title: City Attorney
ITMORELL\750129.1
011708-04706118
2
Exhibit A
[Legal Description Attached]
ITMORELL\750129.1
011708-04706118
Escrow No.: 07-98702516-JW
Locate No.: CACTI7743-7743-2987-0098702516
Title No.: 07-98702516-KV
EXHIBIT "An
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF GILROY, COUNTY OF SANTA CLARA, STATE OF
CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Highway, as said line was established by Parcel
One in the Deed from the De Bell Corporation, a Corporation, to the State of California, dated June 12, 1957, recorded July
30,1957 in Book 3855 Official Records, Page 512, Santa Clara County Records, with the Easterly line of that certain 24.07 acre
tract of land described in the Deed from Jack De Bell et ux, to Louis A. Filice, et ux, dated September 15, 1954 recorded
October 19, 1954 in Book 2986 Official Records, Page 527, Santa Clara County Records; thence from said Point of Beginning
South 60 deg 42' 34" East along said Northeasterly line of Hecker Pass Highway for a distance of 599.78 feet; thence
Southeasterly continuing along said last mentioned line along an arc of a curve to the left, tangent to the preceding course,
with a radius of 1450.00 feet, through a central angle of 14 deg 52' 00", for an arc distance of 376.24 feet to the point of
intersection thereof with the Southeasterly prolongation of a Westerly line of that certain 3.728 acre tract of land described in
that certain final order of condemnation entered on November 3, 1958 in the Superior Court of the State of California, in and
for the County of Santa Clara in that certain action entitled, "The People of the State of California, Acting By and Through the
Department of Public Works, Plaintiff, vs. Louis A. Felice et ai, Defendants Case No. 103483," a certified copy of which order
was filed for record in the Office of the Recorder of the County of Santa Clara, State of California, on November 3, 1958 in
Book 4219 Official Records, Page 701, Santa Clara County Records (shown as South 33 deg 16' 39" East 246.03 feet; thence
North 33 deg 16' 30" West along said prolongation and the said Westerly line of the 3.728 acre tract for a distance of 376.66
feet to the Northwesterly corner of said 3.728 acre tract, said point also being the Southwesterly corner of that certain 1.567
acre tract of land described as Parcel Two in the Deed to said State of California above referred to; thence North 24 deg 18'
19" West along the Westerly line of said 1.567 acre tract for a distance of 94,17 feet, thence North 37 deg 18' 07" East
continuing along said Westerly line of the 1.567 acre tract and its Northeasterly prolongation for a distance of 254,41 feet to
the Northeasterly corner of that certain tract of land described in the Deed from the State of California, to the De Bell
Corporation, a California Corporation, dated August 30, 1957, recorded September 27, 1957 in Book 3900 Official Records,
Page 632, Santa Clara County Records; thence North 88 deg 39' 04" West along the Northerly line of land so described in the
Deed to said De Bell Corporation for a distance of 433.45 feet to the Northwesterly corner thereof; thence South 1 deg 47'
West along the Westerly line of land so described in the Deed to said De Bell Corporation for a distance of 64.46 feet to the
Southwesterly corner thereof in the Northerly line of that certain 160.91 acre tract of land described as Parcel Three in the
Deed from Jack De Bell et ux, to the De Bell Corporation, a California Corporation, dated October 26,1956, recorded April 29,
1957 in Book 3786 Official Records Page 463, Santa Clara County Records; thence North 88 deg 13' West along said Northerly
line of the 160.91 acre tract for a distance of 291.56 feet to the Northeasterly corner of the said 24.07 acre tract above
referred to; thence South 23 deg 11' West along the Easterly line of said 24.07 acre tract for a distance of 130 feet more or
less to the Point of Beginning.
Excepting from the above described Parcel One, the following described parcel of land:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Road, as said line was established by Parcel 1 In
the Deed from De Bell Corporation, a Corporation, to the State of California, dated June 12, 1957, recorded July 30, 1957 in
Book 3855 Official Records, Page 512, Santa Clara County Records, with the Northwesterly line of that certain 160.91 acre
tract of land described as Parcel Three in the Deed from Jack De Bell et ux, to the De Bell Corporation, a California
Corporation, dated October 26, 1956, recorded April 29, 1957 in Book 3736 Official Records, Page 463, Santa Clara County
Records; thence from said Point of Beginning South 60 deg 42' 34" East along said Northeasterly line of Hecker Pass Road, for
a distance of 80.00 feet, thence leaving said last mentioned line and running North 29 deg 17' 26" East 170 feet, more or less,
Exhibit Page - Legal( exhibit)(08-07)
to the point of intersection thereof with the Southwesterly line of the Old Hecker Pass road; thence South 66 deg 15' East
along said Southwesterly line of the Old Hecker Pass Road for a distance of 270.00 feet; thence leaving said last mentioned
line and running North 23 deg 00' East 99.6 feet to the True Point of Beginning of the tract of land to be described; thence
from said True Point of Beginning North 67 deg 00' West 10.00 feet; thence at right angles North 23 deg 00' East 20.00 feet;
thence at right angles South 67 deg 00' East 20.00 feet; thence at right angles South 23 deg 00' West 20.00 feet; thence at
right angles North 67 deg 00' West 10.00 feet to the True Point of Beginning.
APN 783-05-011 AND 013
PARCEL TWO:
Beginning at the point of intersection of the Northeasterly line of Hecker Pass Road, as said line was established by Parcell in
the Deed from the De Bell Corporation, a Corporation, to the State of California, dated June 21, 1957, recorded July 30, 1957
in Book 3855 Official Records, Page 512, Santa Clara County Records, with the Northwesterly line of that certain 160.91 acre
tract of land described as Parcel Three in the Deed from Jack De Bell, et UX, to the De Bell Corporation, a California
Corporation, dated October 26, 1956, recorded April 29, 1957 in Book 3736 Official Records, Page 463, Santa Clara County
Records; thence from said Point of Beginning South 60 deg 42' 34" East along said Southeasterly line of Hecker Pass Road for
a distance of 80.00 feet, thence leaving said last mentioned line and running North 29 deg 17' 26" East 170 feet, more or less,
to the point of intersection thereof with the Southwesterly line of the Old Hecker Pass Road; thence South 66 deg 15' East
along said Southwesterly line of the Old Hecker Pass Road for a distance of 270.00 feet; thence leaving said last mentioned
line and running North 23 deg 00' East 99.6 feet to the True Point of Beginning of the tract of land to be described; thence
from said True Point of Beginning North 67 deg 00' West 10.00 feet; thence at right angles North 23 deg 00' East 20.00 feet;
thence at right angles South 67 deg 00' East 20.00 feet; thence at right angles South 23 deg 00' West 20.00 feet; thence at
right angles North 67 deg 00' West 10.00 feet to the True Point of Beginning.
APN 783-05-012
PARCEL THREE:
A Portion of Parcels One and Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County,
and a Portion of Lands of Blocher, I 361 O.R. 202, Santa Clara County Records, described as follows:
Beginning at a Point on the West Line of said Parcel four, said Point also being at the Northeastern most corner of Parcel
Three as shown on said Parcel Map said Point also lying on the West line of Lands of Nab Hill General Store, Inc., a California
Corporation, as described in that Deed recorded in K805 of Official Records at page 1589, Santa Clara County, and proceeding
along the Westerly, Southerly, Easterly and Northerly lines of said Parcel four and said lands of Nab Hill the following courses:
1. S 0 deg. 03' 40" W 778.37 feet
2. East 70.00 feet
3. S 17 deg. 45' 49" E 294.02 feet
4. West 160.00 feet
5. SO deg. 03' 40" W 418.87 feet
6. S 0 deg. 13' 40" W 4094.58 feet
7. East 1254.00 feet
8. NO deg. 14' E 4527.60 feet
9. N 0 deg. 02' W 1672.30 feet
10. N 67 deg. 23' W 262.00 feet
11. N 49 deg. 20' 30" W 98.97 feet
12. N 31 deg. 26' W 154.34 feet
13. S 37 deg. 18' 09 W 85.48 feet
14. N 42 deg. 54' 55" W 294.28 feet
15. N 38 deg. 11' 51" W 55.00 feet
16. N 72 deg. 45' 58" W 83.84 feet
17. S 66 deg. 33' OS" W 57.31 feet
18. N 69 deg. 23' 35" W 301.68 feet
Exhibit Page - Legal( exhibit)(08-07)
to the Easternmost corner of those lands conveyed to the State of California by J627 of Official Records at page 1271, Santa
Clara County; thence along the Southerly line of last said lands S 83 deg. 53' 57" W 44.13 feet; thence Northwesterly along a
1585 Foot radius curve to the right, from a tangent bearing N 82 deg. 52' 34" W., said curve having an interior angle of 18
deg. 50' 48", and a length of 521.36 feet to a point lying 91.84 feet Southerly along the said 1585 Foot radius curve from an
angle point in last said Southerly line; thence S 0 deg. 09' W 419.62 feet; thence S 17 deg. 14' 00" E 810.00 feet; thence S 20
deg. 16' 11" W 194.80 feet to a point on the Northeasterly line of said Parcel Three, last said point being N 69 deg. 43' 49" W
288.41 feet from the Northeasterly corner of said Parcel Three; thence S 69 deg. 43' 49" E. 288.41 feet to the Point of
Beginning.
Excepting therefrom the following described parcel of land:
Beginning at the Northeastern most corner of said Parcel Four and proceeding S 00 deg. 09' 33" E along the East line of said
Parcel Four, 269.81 feet to the Westerly terminus of the Northeast line of a Pedestrian/Equestrian Easement as shown on
Parcel One on that Parcel Map recorded in Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30
deg. 15' W 412.10 feet more or less to a point on the Northeasterly line of said Parcel Four; thence S 67 deg. 23' E 224.09
feet along last said line to the Point of Beginning.
Also excepting therefrom "Parcel C" as described in that certain Certificate of Compliance recorded April 14, 1998 as
Instrument No. 14139227, Official Records of Santa Clara County, and being more particularly described as follows:
A portion of real property located in the County of Santa Clara, State of California, described as follows:
All of Parcel Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County Records,
Except therefrom the following:
Beginning at the Northeasternmost corner of said Parcel Four and proceeding S 00009'33" E along the East line of said Parcel
Four, 269.81 feet to the Westerly terminus of the Northeast line of a Pedestrian/Equestrian Easement as shown on Parcel One
on that Parcel Map recorded in Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30015' W 412.10
feet more or less to a point on the Northeasterly line of said Parcel Four; thence S 67023' E. 224.09 feet along last said line to
the point of beginning.
APN 810-17-026, 810-17-029
PARCEL FOUR:
A portion of Parcels Two and Three as shown on that Parcel Map recorded in Book 494 of Maps, at page 43, Santa Clara
County Records, lying in Santa Clara County, California, described as follows:
Beginning at a point on the South line of said Parcel Two, said point lying S 89 deg. 35' 00" W 145.44 feet from the
Southeasterly angle point in said Parcel Two, last said angle point being produced by the courses S 17 deg. 40' 40" W 105.66
feet and S 89 deg. 35' 00" W 428.05 feet as shown on said Map; thence along the following courses:
COURSE NO.
1. N 19 deg. 21' 40" E 417.99 feet
2. N 76 deg. 19' 19" W 13.90 feet
3. N 17 deg. 40' 40" E 1089.46 feet
4. N 64 deg. 27' 00" E 208.60 feet
to a point on the Northeasterly line of said Parcel Two, said pOint lying N 69 deg. 43' 49" W 9.45 feet from the Northeastern
corner of said Parcel Two; thence along the Northestern Line of said Parcels Two and Three and along the Easterly and
Southerly line s of said Parcel Three the following courses:
Exhibit Page - Legal( exhibit)(08-07)
COURSE NO.
5. S 69 deg. 43' 49" E 689.53 feet
6. S. 0 deg. 03' 40" W 778.37 feet
7. East 70.00 feet
8. S 17 deg. 45' 49" W 294.02 feet
9. West 160.00 feet
10. S 0 deg. 03' 40" W 350.00 feet
11. N. 78 deg. 40' 00" W 1134.00 feet
12. S 17 deg. 40' 40" W 105.66 feet, and
13. S 89 deg. 35' 00" W 145.44 feet
to the point of beginning.
APN 810-17-014, 015, 021, 024 AND 025
PARCEL FIVE:
A non-exclusive easement for Ingress and Egress and for the installation and maintenance of public utilities, appurtenant to
the above described parcels, over a strip of land 60.00 feet in width, lying 10.00 feet Westerly of and 50.00 feet Easterly of
the following described line:
Beginning at a point in the Southwesterly line of the State Highway IV-SCI-32D-1957, distant thereon South 60 deg 14' 20"
East 232.40 feet from a concrete monument at Station 325 57.01 E. C. of said Highway and running thence South 57 deg 45'
40" West 161.79 feet; South 41 deg 31' 40" West 262.30 feet; South 31 deg 44' 40" West 311.70 feet; South 3 deg 19' 10"
West 344.34 feet; South 23 deg 29' 50" East 166.48 feet; thence Southwesterly 150 feet, more or less, to a point which bears
South 71 deg 14' 02" East 94.02 feet and North 19 deg 29' 13" East 110.0 feet from the most Easterly corner of Parcell, as
said Parcel is shown upon that certain Map entitled, "Record of Survey being a portion of the solis Rancho", which Map was
filed for record in the Office of the Recorder of the County of Santa Clara, State of California on December 7, 1967 in Book 231
of Maps, at Page 22; thence South 19 deg 29' 13" West 110.00 feet and the terminus of said easement, said easement is
appurtenant to and for the Benefit of Parcels Three, Four, Seven and Twelve.
PARCEL SIX:
A non-exclusive easement for Ingress and Egress and for the installation and maintenance of public utilities and for water pipe
lines, appurtenant to the above described parcels, over an existing roadway 60.00 feet in width, the center line of which is
described as follows:
Beginning at the point of intersection of the Easterly line of that certain 160.91 acre tract of land described as Parcel Three in
the Deed from Jack De Bell, et ux, to the De Bell Corporation, dated October 26, 1956, recorded April 29, 1957 in Book 3786
Official Records, page 463, Santa Clara County Records, with the Southwesterly line of Hecker Pass Road, as said line was
established by Parcel One in the Deed from the De Bell Corporation, to the State of California dated June 12, 1957, recorded
July 30, 1957 in Book 3655 Official Records, page 512, Santa Clara County Records; thence from said point of beginning South
o deg OS' 19" West along said Easterly line of the 160.91 acre tract for a distance of 1370.09 feet to the True Point of
Beginning of the easement to be described; thence from said True Point of Beginning North 69 deg. 43' 49" West 1460.17 feet
to the terminus of said easement, said easement is appurtenant to and for the Benefit of Parcels Three, Four and Twelve.
Excepting therefrom all that portion thereof lying within the above described Parcels Three and Four.
Exhibit Page - Legal( exhibit)(08-07)
PARCEL SEVEN:
All of Parcel Two, as shown upon that certain Map entitled, "Parcel Map, being a portion of the Las Animas Rancho", which
Map was filed for record in the Office of the Recorder of the County of Santa Clara, State of California on October 12, 1993 in
Book 650 of Maps, at Page 49.
APN 810-18-010 and 011
PARCEL EIGHT:
An easement 40 feet in width for ingress and egress and public utilities the centerline of said easement described as follows:
Commencing at a point in the centerline of that 60 foot wide easement recorded in Book 7981 of Official Records at Page 56,
Santa Clara County Records, said point being the northeast terminius of that course shown as No. 16 on that Parcel Map
recorded in Book 494 of Maps, at Page 43, Santa Clara County Records and proceeding 520016'11" W 30.00 feet to a point on
the southwesterly line of said easement to the Point of Beginning; thence from said Point of Beginning 5 27003' W 28.19 feet
to station "A"; thence along a curve to the right with a radius of 40 feet at an angle of 60.00 feet for a distance of 41.89 feet
to station "B";
thence 5 87003' W 28.00 feet to station C; thence along a curve to the left with a radius of 85.47 feet at an angle of 70033'08"
for a distance of 105.24 feet to station "D"; thence 5 16029'52"W for a distance of 224.83 feet to station "E"; thence on a
curve to the left with a radius of 457.22 feet at an angle of 18037'52" for a distance of 148.68 feet to station "F"; thence 5
2008' E for a distance of 32.29 feet to station "G"; thence on a curve to the right with a radius of 196.58 feet at an angle of
41046' for a distance of 143.30 feet to station "H"; thence 5 39038' W for a distance of 151.72 feet to station "I"; thence on a
curve to the left with a radius of 250.00 feet at an angle of 45.000 for a distance of 196.34 feet to station "J"; thence 5 5022' E
110.00 feet to station "K"; thence on a curve to the right with a radius of 414.00 feet at an angle of 21010' for a distance of
152.94 feet to station "L"; thence 5 15048' W 93.00 feet to station "M"; thence on a curve to the left with a radius of 243.00
feet at an angle of 30031' for a distance of 129.42 feet to station "N"; thence 5 14043' E 456.60 feet more or less to a point on
the south line of parcel two of said parcel map, last said point being 152.52 feet westerly from the southerly terminus of that
course, (50025'00" E 89.33 feet), as shown on said parcel map, to station "0", said easement is appurtenant to and for the
Benefit of Parcel Seven.
PARCEL NINE:
An easement for ingress and egress described as follows:
Beginning at the point of beginning of the above described 40 foot wide easement and running 5 69043'49" E 20.00 feet to
the easterly line of said 40.00 foot wide easement being the true point of beginning; thence 5 69043'49" E along the
southwesterly line of the 60.00 foot easement (7981-or-56) 30 feet; thence 80 feet more or less southwesterly to the mid
point (on the southeast line of above described 40 foot easement) of the 40.00 foot radius (centerline) curve; thence
northeasterly along the southeasterly line of said 40.00' foot wide easement above described 60 feet more or less to true point
of beginning, said easement is appurtenant to and for the Benefit of Parcel Seven.
PARCEL TEN:
A 10 foot wide easement for ingress and egress. The easterly line of said easement described as follows:
Commencing at above station "L" and running 5 15048'W 40.00 feet and N 74012' W 20.00 feet to the True Point of
Beginning; thence 5 15048' W 53.00 feet; thence southerly along a 263.00 foot radius curve to the left, having an interior
angle of 17025'42" a distance of 80.00 feet to the terminus of said easement, said easement is appurtenant to and for the
Exhibit Page - Legal( exhibit)(OB-07)
.Jenefit of Parcel Seven.
PARCEL ELEVEN:
An easement for ingress-egress said easement described as follows:
Commencing at said station "0", and proceeding S 89035' W along the Southerly line of Parcel Two as shown on Parcel Map
recorded in Book 494 of Maps at Page 43, Santa Clara County Records 20.64 feet to the True Point of Beginning; thence
continuing S 89035' W 25.00 feet; thence N 37026'15" E 30.68 feet to a point on the Southwesterly line of the 40 foot wide
easement above described; thence S 14043' E 25.00 feet to the Point of Beginning, said easement is appurtenant to and for
the Benefit of Parcel Seven.
PARCEL TWELVE:
A Portion of Parcels One and Four as shown on that Parcel Map recorded in Book 494 of Maps at Page 43, Santa Clara County,
and a Portion of Lands of Blocher, 1361 O.R. 202, Santa Clara County Records, described as follows:
Beginning at a Point on the West Line of said Parcel four, said Point also being at the Northeastern most corner of Parcel
Three as shown on said Parcel Map said Point also lying on the West line of Lands of Nab Hill General Store, Inc., a California
Corporation, as described in that Deed recorded in K805 of Official Records at page 1589, Santa Clara County, and proceeding
along the Westerly, Southerly, Easterly and Northerly lines of said Parcel four and said lands of Nob Hill the following courses:
COURSE NO.
1. S 0 deg. 03' 40" W 778.37 feet
2. East 70.00 feet
3. S 17 deg. 45' 49" E 294.02 feet
4. West 160.00 feet
5. SO deg. 03' 40" W 418.87 feet
6. S 0 deg. 13' 40" W 4094.58 feet
7. East 1254.00 feet
8. N 0 deg. 14' E 4527.60 feet
9. N 0 deg. 02' W 1672.30 feet
10. N 67 deg. 23' W 262.00 feet
11. N 49 deg. 20' 30" W 98.97 feet
12. N 31 deg. 26' W 154.34 feet
13. S 37 deg. 18' 09 W 85.48 feet
14. N 42 deg. 54' 55" W 294.28 feet
15. N 38 deg. 11' 51" W 55.00 feet
16. N 72 deg. 45' 58" W 83.84 feet
17. S 66 deg. 33' 05" W 57.31 feet
18. N 69 deg. 23' 35" W 301.68 feet
to the Easternmost corner of those lands conveyed to the State of California by J627 of Official Records at page 1271, Santa
Clara County; thence along the Southerly line of last said lands S 83 deg. 53' 57" W 44.13 feet; thence Northwesterly along a
1585 Foot radius curve to the right, from a tangent bearing N 82 deg. 52' 34" W., said curve having an interior angle of 18
deg. 50' 48", and a length of 521.36 feet to a point lying 91.84 feet Southerly along the said 1585 Foot radius curve from an
angle point in last said Southerly line; thence S 0 deg. 09' W 419.62 feet; thence S 17 deg. 14' 00" E 810.00 feet; thence S 20
deg. 16' 11" W 194.80 feet to a point on the Northeasterly line of said Parcel Three, last said point being N 69 deg. 43' 49" W
288.41 feet from the Northeasterly corner of said Parcel Three; thence S 69 deg. 43' 49" E. 288.41 feet to the Point of
Beginning.
Exhibit Page - Legal(exhibit)(08-07)
Excepting therefrom the the following described parcel of land:
Beginning at the Northeastern most corner of said Parcel Four and proceeding S 00 deg. 09' 33" E along the East line of said
Parcel Four, 269.81 feet to the Westerly terminus of the Northeast line of a Pedestrian/Equestrian Easement as shown on
Parcel One on that Parcel Map recorded in Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence N 30
deg. 15' W 412.10 feet more or less to a point on the Northeasterly line of said Parcel Four; thence S 67 deg. 23' E 224.09
feet along last said line to the Point of Beginning.
Excepting therefrom all that portion lying Westerly of the Westerly line of said Parcel 4
And, in addition thereto, the following parcel of land designated as "Transfer Parcel" on the accompanying plat entitled
"Exhibit B", being more particularly described as follows:
A portion of Parcel S, as said Parcel is described in that certain Certificate of Compliance for Lot Line Adjustment filed for
record as Document Number 14139227, Official Records of Santa Clara County, California, being more particularly described as
follows:
BEGINNING at southwesterly corner of said Parcel S, said point also being the southerly terminus of the course designated as
S 00 02" E 1672.30 feet on that certain Lot Line Adjustment Parcel Map filed for record in Book 494 of Maps, at Page 43,
Records of Santa Clara County, California, and the northwest corner of Lot 61, as said Lot 61 is shown on the map of Tract
9365, Eagle Ridge, filed for record in Book 748 of Maps, at Page 20, Records of Santa Clara County, California; thence running
along the common line of said Parcel B and Parcel C
1.) N 000 09' 33" W, a distance of 1,402.67 feet to the northwesterly corner of said Parcel B; thence leaving said common line
and running along the northerly line of said Parcel B
2.) S 31008' 00" E, a distance of 282.40 feet to the beginning of a curve to the left having a radius of 193.00 feet; thence
continuing along said northerly line
3.) Southeasterly along said curve, through a central angle of 49007' 00", a distance of 165.45 feet to the beginning of a
compound curve to the left having a radius of 632.00 feet; thence continuing along said northerly line
4.) Easterly along said curve, through a central angle of 23025' 00", a distance of 258.30 feet; thence continuing along said
northerly line
5.) N 76020' 00" E, a distance of 499.27 feet to the beginning of a curve to the right having a radius of 1,360.00 feet; thence
continuing along said northerly line
6.) Easterly along said curve, through a central angle of 130 40' 00"; a distance of 324.40 feet; thence continuing along said
northerly line
7.) East, a distance of 88.59 feet to the beginning of a curve to the left having a radius of 65.00 feet; thence continuing along
said northerly line
8.) Easterly along said curve, through a central angle of 040 37' 09"; a distance of 5.24 feet; thence continuing along said
northerly line
9.) S 000 36' 00" E, a distance of 0.34 feet; thence continuing along said northerly line
Exhibit Page - Legal(exhibit)(08-07)
10.) 5890 59' 56" E, a distance of 240.84 feet to the northeasterly corner of said Parcel B; thence leaving said northerly line
and running along the easterly line of said Parcel B
11.) 500008' 00" E, a distance of 304.39 feet; thence leaving said easterly line
12.) 5 870 59' 43" W, a distance of 330.76 feet; thence
13.) N 890 02' 02" W, a distance of 222.92 feet; thence
14.) 5 840 51' 07" W, a distance of 357.84 feet; thence
15.) 576021' 10" W, a distance of 402.59 feet; thence
16.) N 880 13' 32" W, a distance of 194.26 feet; thence
17.) N 630 29' 09" W, a distance of 72.82 feet; thence
18.) 5 210 41' 39" W, a distance of 190.51 feet; thence
19.) 5 000 46' 42" E, a distance of 146.48 feet; thence
20.) 5090 19' 49" E, a distance of 120.58 feet; thence
21.) 5 02029' 27" W, a distance of 36.13 feet; thence
22.) 5040 18' 56" W, a distance of 178.81 feet; thence
23.) 5 000 01' 43" W, a distance of 178.08 feet to the southerly line of said Parcel B, also being the northerly line of said Lot
61 of Tract 9365; thence running along said southerly line of Parcel B and northerly line of Lot 61
24.) N 89" 52' 17" W, a distance of 48.11 feet to the POINT OF BEGINNING.
Being Parcel C as described in the Certificate of Compliance Recorded May 2, 2005 as Instrument No. 18348300.
APN 810-18-002; 810-19-005,007,010,011, and 014
PARCEL THIRTEEN:
An Easement for the purposes of Ingress and Egress and Utilities, as conveyed to Bonfante Gardens, Inc., a Delaware Non-
Profit corporation by Grant Deed recorded April 28, 1999 as Instrument No. 14780039, and being more particularly described
as follows:
Beginning at a point on the East line of Parcel Four as shown upon that Parcel Map recorded in Book 494 of Maps at Page 43,
Exhibit Page - Legal(exhibit)(08-07)
Santa Clara County Records, said point being the Southwest corner of Parcel One as shown upon that Parcel Map recorded in
Book 663 of Maps at Pages 13 and 14, Santa Clara County Records; thence Southerly alond said East line of Parcel Four,
360.00 feet; thence S. 89 deg. 52' 17" E. 60.00 feet; thence Northerly 360.00 feet to a point on the South line of said Parcel
One, last said point lying S. 89 deg. 52' 17" E. 60.00 feet from the point of beginning; thence N. 89 deg. 52' 17" W. 60.00 feet
to the point of beginning.
Exhibit Page - Legal(exhibit)(08-07)
EXHIBIT I
AMENDED BYLAWS
(See attached pages.)
\ TMORELL\734864.15
011708-0470611 B
-1-
AMENDED BYLAWS
OF
GILROY GARDENS FAMILY THEME PARK, INC.
(a Delaware Nonprofit Public Benefit Corporation)
ARTICLE I
PRINCIPAL OFFICE
Section 1. Principal Office. The principal office for the transaction of the
activities and affairs of the corporation ("principal office") shall be located in Santa Clara
County, California. The board or directors (the "Board") may change the principal office
from one location to another.
Section 2. Other Offices. The Board may at any time establish branch or
subordinate offices at any place or places where the corporation is qualified to conduct its
activities.
ARTICLE II
MEMBERSHIP
This corporation shall have no members.
ARTICLE III
PURPOSES AND LIMITATIONS
Section 1. General Purposes. This corporation is organized exclusively for
charitable, scientific and educational purposes within the meaning of Section 501 (c )(3) of
the Internal Revenue Code of 1986 (the "Code") or the corresponding provision of any
future United States internal revenue law. Notwithstanding any other provision of these
articles, this corporation shall not, except to an insubstantial degree, engage in any
activities or exercise any powers that are not in furtherance of the purposes of this
corporation, and the corporation shall not carryon any other activities not permitted to be
carried on (a) by a corporation exempt from federal income tax under Section 501(c)(3)
of the Code or the corresponding provision of any future United States internal revenue
law, or (b) by a corporation, contributions to which are deductible under Section
170( c )(2) of the Code or the corresponding provision of any future United States internal
revenue law. This corporation is a nonprofit public benefit corporation and is not
organized for the private gain of any person. It is organized under the General
Corporation Law of the State of Delaware for charitable purposes.
No substantial part of the activities of this corporation shall consist of lobbying or
propaganda, or otherwise attempting to influence legislation, except as provided in
section 501(h) of the Code, and this corporation shall not participate in or intervene in
(including publishing or distributing statements) any political campaign on behalf of or in
opposition to any candidate for public office.
Section 2. Specific Purposes. Within the context of the general purposes
stated above, this corporation shall support the City of Gilroy located in the State of
California, which is a domestic municipal government entity and thus an exempt
organization under Section 509(a)(I) of the Code as described in Section 170(b)(l)(A)(v)
of the Code. In support of the parks and recreational activities of the City of Gilroy and
for the benefit of such City and members of its community, the primary mission and
purpose of the Corporation is to create, maintain, and operate for charitable purposes a
park, where families can share in educational and recreational activities that will foster a
greater appreciation of the natural world and man's ability to shape it.
Section 3. Limitations. There are no limitations other than those appearing in
the articles of incorporation.
ARTICLE IV
BOARD OF DIRECTORS
Section 1.
Powers.
A. General Powers. This corporation shall have powers to the full extent
allowed by law. All powers and activities of this corporation shall be exercised and
managed by the Board of this corporation directly or, if delegated, under the ultimate
direction of the Board. The Board of Directors of the Corporation shall, through the
President, supervise, manage and control all the affairs, business activities and policies of
the Corporation.
B. Specific Powers. Without prejudice to the general powers set forth
in Article IV, Section 1.A of these Bylaws, but subject to the same limitations, the
directors shall have the power to:
(i) Appoint and remove, at the pleasure of the Board, all the
corporation's officers, agents, and employees; prescribe powers and duties for them that
are consistent with law, with the articles of incorporation, and with these bylaws; and fix
their compensation and require from them security for faithful performance of their
duties.
(ii) Change the principal office or the principal business office
in California from one location to another; cause the corporation to be qualified to
conduct its activities in any other state, territory, dependency, or country and conduct its
activities within or outside California; and designate any place within or outside
California for holding any meeting of members.
(iii) Adopt and use a corporate seal;
2.
(iv) Borrow money and incur indebtedness on behalf of the
corporation and cause to be executed and delivered for the corporation's purposes, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges,
hypothecations and other evidences of debt and securities.
Section 2. Number of Directors. The number of directors shall be not less
than seven (7) nor more than fifteen (15), with the exact number of authorized directors
to be fixed from time to time by unanimous resolution of the Board; provided, however,
that the initial number of directors shall be seven (7).
Section 3. Class and Qualification of Directors. There shall be two (2)
classes of directors of this corporation, known as (i) the Gilroy City Council Class (the
"Council Director"), and (ii) the Community Class (the "Community Directors"),
respectively.
A. The Council Director.
1. Appointments by the City Council. The Council Director
shall be a member of the Gilroy City Council as designated by the Gilroy City Council,
so long as it is exempt from taxation under the Code and is classified as a governmental
unit and thus an exempt organization under Section 509(a)(1) of the Code as described in
Section I70(b)(I)(A)(v) of the Code. Initially, there shall be one (1) Council Director.
2. Successor Appointees. Each City Council Director shall
serve at the pleasure of the members of the Gilroy City Council. Upon completion of the
term of office or upon the death, resignation, or removal of a Council Director, the Gilroy
City Council shall appoint a successor director by notifying the Secretary of this
Corporation in writing.
B. The Community Directors.
1. Authorized Number and Qualification. Initially, there shall
be six (6) Community Directors.
2. Term. Each Community Director shall serve for a term of
two (2) years, or until his or her successor is designated. It is intended that the term of
office of three (3) of the six (6) Community Directors shall expire each year.
3. Removal. Any Community Director may be removed, with
or without cause, by 2/3 vote of the members of the entire Board at a special meeting
called for that purpose, or at a regular meeting, provided notice of that meeting and of the
removal questions are given as provided in Section 11 hereof.
4. Appointment of Community Directors
(i) 90 days prior to the expiration of their term,
any director wishing re-appointment shall notify the board of such intent.
3.
(ii) On or before December 15, the board members
whose terms are not expiring shall vote on whether or not to reconfirm interested board
members.
(iii) For any open board positions, the President
shall appoint a committee of no less than 2 members whose job it shall be to publicize
and recruit candidates for the open board positions.
(iv)
board no later than February 15.
A slate of candidates shall be presented to the
(v) Final appointment will be by majority vote of
the board members with unexpired terms.
Section 4. Term of Office of Directors. Except as otherwise provided herein,
each director shall serve for a term of two (2) years, or until his or her successor is
designated.
Section 5. Vacancies. A vacancy shall be deemed to exist on the Board in the
event that the actual number of directors is less than the authorized number for any
reason. A vacancy of the Council Director may be filled by, and only by, the Gilroy City
Council for the unexpired portion of the term. Vacancies for the Community Directors
shall be filled by election of 2/3 vote of the remaining Directors.
Section 6. Resignation and Removal. Resignations shall be effective upon
receipt in writing by the Secretary of this corporation, unless a later effective date is
specified in the resignation. Only the Gilroy City Council may remove a Council
Director. A Community Director may be removed in accordance with the provisions of
Article IV, Section 3.B.3 above.
Section 7. Annual Meetings. A meeting of the Board shall be held at least
once a year. Annual meetings shall be called by the President (or Chairman of the Board)
or any two directors, and noticed in accordance with Section 11.
Section 8. Special Meetings. Special meetings of the Board may be called by
the President (or Chairman of the Board), or any two directors, or singularly by the
Council Director, and noticed in accordance with Section 11.
Section 9. Notice. Notice of the annual meeting and any special meetings of
the Board shall be given to each director at least five (5) business days before any such
meeting if given by first-class mail or two (2) business days before any such meeting if
given personally or by telephone, telegraph, facsimile transmission, or other usual and
customary communication, and shall state the date, place, and time of the meeting.
Section 10. Waiver of Notice. The transactions of any meeting of the Board,
however called and noticed and wherever held, shall be valid as though taken at a
meeting duly held after proper call and notice, if a quorum is present, and if, either before
or after the meeting, each of the directors not present signs a written waiver of notice, a
consent to holding the meeting, or an approval of the minutes. The waiver of notice or
4.
consent need not specify the purpose of the meeting. All waivers, consents and approvals
shall be filed with the corporate records or made a part of the minutes of the meeting.
Notice of a meeting shall also be deemed given to any director who attends the meeting
without protesting the lack of adequate notice before the meeting or at its
commencement.
Section 11. Quorum. Except to adjourn, a majority of the authorized number
of directors shall constitute a quorum for the transaction of business. Every action taken
or decision made by a majority of the directors present at a duly held meeting at which a
quorum is present shall be the act of the Board, except as otherwise provided in these
Bylaws and the California Nonprofit Public Benefit Corporation Law. A meeting at
which a quorum is initially present may continue to transact business, despite the
withdrawal of directors, if any action taken or decision made is approved by at least a
majority of the required quorum for that meeting.
Section 12. Action Without a Meeting. Any action required or permitted to be
taken by the Board may be taken without a meeting if all members of the Board shall
individually or collectively consent to such action. Such written consents shall be filed
with the minutes of the proceedings of the Board. Such written consents shall have the
same force and effect as the unanimous vote of such directors.
Section 13. Telephone Meetings. Directors may participate in a meeting
through use of conference telephones or similar communications equipment so long as all
directors participating in such meeting can hear one another. Participation in a meeting
pursuant to this Section constitutes presence in person at such meeting.
Section 14. Confidentiality. No director may, without the express written
consent of the President (or the Chairman of the Board) divulge to others any information
not already known to the public pertinent to the services, clients, customers or operations
of the corporation, whether before or after the corporation's dissolution, provided that the
Council Director may divulge such information to the City of Gilroy in connection with
his or her duties and obligations as a City Council member under applicable law or
otherwise and, in that event, the treatment of the information by the City Council shall be
governed by the standards applicable to the City Council, and not pursuant to any
limitation or covenant of these Bylaws. The foregoing sentence shall not apply to any
director during such time as he or she is acting as President or Chairman of the Board.
Section 15.
Standard of Care.
A. General. A director shall perform the duties of a director,
including duties as a member of any Board Committee on which the director may serve,
in good faith, in a manner such director believes to be in the best interest of this
corporation and with such care, including reasonable inquiry, as an ordinarily prudent
person in a like situation would use under similar circumstances.
In performing the duties of a director, a director shall be entitled to rely on
information, opinions, reports, or statements, including financial statements and other
financial data, in each case prepared or presented by:
5.
(i) one or more officers or employees of this corporation
whom the director believes to be reliable and competent as to the matters presented;
(ii) counsel, independent accountants, or other persons as to
matters which the director believes to be within such person's professional or expert
competence; or
(iii) a Board Committee upon which the director does not serve,
as to matters within its designated authority, provided that the director believes such
Committee merits confidence;
so long as in any such case, the director acts in good faith after reasonable inquiry when
the need therefor is indicated by the circumstances and without knowledge that would
cause such reliance to be unwarranted.
A person who performs the duties of a director in accordance with this
Section shall have no liability based upon any failure or alleged failure to discharge that
person's obligations as a director, including, without limiting the generality of the
foregoing, any actions or omissions which exceed or defeat a public or charitable purpose
to which a corporation, or assets held by it, are dedicated.
B. Investments. Except with respect to assets held for use or used
directly in carrying out this corporation's charitable activities, in investing, reinvesting,
purchasing or acquiring, exchanging, selling, and managing this corporation's
investments, the Board shall avoid speculation, looking instead to the permanent
disposition of the funds, considering the probable income of such investments as well as
the probable safety of this corporation's capital. No investment violates this Section
where it conforms to provisions authorizing such investment contained in an instrument
or agreement pursuant to which the assets were contributed to this corporation.
Section 16. Inspection. Every director shall have the absolute right at any
reasonable time to inspect and copy all books, records, and documents, and to inspect the
physical properties of this corporation.
Section 17. Compensation and Reimbursement. Directors and members of
Committees shall not be compensated for their services as directors or officers.
However, directors shall be entitled to any out-of-pocket expenses reasonably incurred in
connection with their duties as a director, as the Board may determine by resolution to be
just and reasonable.
ARTICLE V
COMMITTEES
Section 1. Board Committees. The Board may, by resolution adopted by a
majority of the directors then in office, create any number of Board Committees, each
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consisting of two or more directors, to serve at the pleasure of the Board. Appointments
to any Board Committee shall be made by any method determined by a majority vote of
the directors then in office. Board Committees may be given all the authority of the
Board, except for the powers to:
(a) set the number of directors within a range specified in these Bylaws;
(b) elect directors or remove directors without cause;
( c) fill vacancies on the Board or on any Board Committee;
(d) fix compensation of directors for serving on the Board or Board Committee;
(e) amend or repeal these Bylaws or adopt new Bylaws;
(f) adopt amendments to the Certificate oflncorporation of this corporation;
(g) amend or repeal any resolution of the Board which by its express terms is not
so amendable or repealable;
(h) create any other Board Committees or appoint the members of any Board
Committees; or
(i) approve any merger, reorganization, voluntary dissolution, or disposition of
substantially all of the assets of this corporation.
Where it is not reasonably practicable to obtain approval of the Board before
entering into a self-dealing transaction, a Board Committee may approve such transaction
in a manner consistent with the requirements of Section 3 of Article VII of these Bylaws
and at its next meeting, the full Board shall be apprised of the approval of a self-dealing
transaction by a committee and of the procedure the committee followed.
Section 2. Advisory Committees. The Board may establish one or more
Advisory Committees to the Board. The members of any Advisory Committee may
consist of directors or non-directors and may be appointed as the Board determines.
Section 3.
Meetings.
A. Of Board Committees. Meetings and actions of Board Committees
shall be governed by and held and taken in accordance with the provisions of Article IV
of these Bylaws concerning meetings and actions of the Board, with such changes in the
content of those Bylaws as are necessary to substitute the Board and its members.
Minutes shall be kept of each meeting of any Board Committee and shall be filed with
the corporate records.
B. Of Advisorv Committees. Advisory Committees shall determine
their own meeting rules and whether minutes shall be kept.
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The Board may adopt rules for the governance of any Board or Advisory
Committee not inconsistent with the provisions of these Bylaws.
ARTICLE VI
OFFICERS
Section 1. Officers. The officers of the corporation shall be a President, a
Secretary, and a Treasurer. The corporation may also have, at the discretion of the
directors, a Chairman of the Board, and such other officers as may be appointed in
accordance with these Bylaws. Any number of offices may be held by the same person,
except that neither the Secretary nor the Treasurer may serve concurrently as either the
President or the Chairman of the Board, if any.
Section 2. Election of Officers. The officers of the corporation shall be
chosen annually by the Board and shall serve at the pleasure of the Board, subject to the
rights, if any, of any officer under any contract of employment.
Section 3. Other Officers. The Board may appoint and may authorize the
Chairman of the Board, the President, or other officer, to appoint any other officers that
the corporation may require. Each officer so appointed shall have the title, hold office
for the period, have the authority, and perform the duties specified in the Bylaws or
determined by the Board.
Section 4. Removal of Officers. Without prejudice to any rights of an officer
under any contract of employment, any officer may be removed with or without cause by
the Board and also, if the officer was not chosen by the Board, by any officer on whom
the Board may confer that power of removal.
Section 5. Resignation of Officers. Any officer may resign at any time by
giving written notice to the corporation. The resignation shall take effect as of the date
the notice is received or at any later time specified in the notice and, with the approval of
the President, unless otherwise specified in the notice, the resignation need not be
accepted to be effective. Any resignation shall be without prejudice to the rights, if any,
of the corporation under any contract to which the officer is a party.
Section 6. Vacancies in Office. A vacancy in any office because of death,
resignation, removal, disqualification, or any other cause shall be filled in the manner
prescribed in these Bylaws for regular appointments to that office, provided, however,
that vacancies need not be filled on an annual basis.
Section 7.
Responsibilities of Officers.
A. Chairman of the Board. If a Chairman of the Board is elected, he
or she shall preside at meetings of the Board and shall exercise and perform such other
powers and duties as the Board may assign from time to time. If there is no President,
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the Chairman of the Board shall also be the chief executive officer and shall have the
powers and duties of the President of the corporation prescribed by these Bylaws.
B. President. In the absence of the Chairman of the Board, or if there
is none, the President shall preside at all Board meetings. The President shall have such
other powers and duties as the Board or the Bylaws may prescribe.
C. Secretary.
I. Book of Minutes. The Secretary shall keep or cause to be
kept, at the corporation's principal office or such other place as the Board may direct, a
book of minutes of all meetings, proceedings, and actions of the Board, of committees of
the Board. The minutes of meetings shall include the time and place that the meeting was
held, whether the meeting was annual, regular, or special, and, if special, how authorized,
the notice given, the names of those present at Board and committee meetings, and the
number of members present or represented at members' meetings. The Secretary shall
keep or cause to be kept, at the principal office in California, a copy of the Certificate of
Incorporation and Bylaws, as amended to date.
2. Notices, Seal, and Other Duties. The Secretary shall give,
or cause to be given, notice of all meetings of the Board and of Committees required by
these Bylaws to be given. The Secretary shall keep the corporate seal in safe custody and
shall have such other powers and perform such other duties as the Board or the By laws
may prescribe.
D. Treasurer
I. Books of Account. The Treasurer shall keep and maintain,
or cause to be kept and maintained, adequate and correct books and accounts of the
corporation's properties and transactions. The Treasurer shall send or cause to be given
to the directors such financial statements and reports as are required to be given by law,
by these Bylaws, or by the Board. The books of account shall be open to inspection by
any director at all reasonable times.
2. Deposit and Disbursement of Money and Valuables. The
Treasurer shall deposit, or cause to be deposited, all money and other valuables in the
name and to the credit of the corporation with such depositories as the Board may
designate, shall disburse the corporation's funds as the Board may order, shall render to
the President, Chairman of the Board, if any, and the Board, when requested, an account
of all transactions as Treasurer and of the financial condition of the corporation, and shall
have such other powers and perform such other duties as the Board or the Bylaws may
prescribe.
3. Bond. If required by the Board, the Treasurer shall give the
corporation a bond in the amount and with the surety or sureties specified by the Board
for faithful performance of the duties of the office and for restoration to the corporation
of all of its books, papers, vouchers, money, and other property of every kind in the
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possession or under the control of the Treasurer on his or her death, resignation,
retirement, or removal from office.
ARTICLE VII
PROHIBITED TRANSACTIONS
Section 1. Loans. Without the approval of the Attorney General of
California, this corporation shall not make any loan of money or property to, or guarantee
the obligation of, any director or officer; provided, however, that this corporation may
advance money to a director or officer of this corporation or any subsidiary for expenses
reasonably anticipated to be incurred in performance of the duties of such director or
officer so long as such individual would be entitled to be reimbursed for such expenses
absent that advance.
Section 2. Self-Dealing Transactions. Except as provided in Section 3 below,
the Board shall not approve, or permit the corporation to engage in, any self-dealing
transaction. A self-dealing transaction is a transaction to which this corporation is a party
and in which one or more of its directors or any Disqualified Person as defined in
S4958(f) of the Code, has a material financial interest.
Section 3. Approval. This corporation may engage in a self-dealing
transaction if the transaction is approved by a court or by the Attorney General. This
corporation may also engage in a self-dealing transaction if the Board determines, before
the transaction, that (a) this corporation is entering into the transaction for its own
benefit; (b) the transaction is fair and reasonable to this corporation at the time; and (c)
after reasonable investigation, the Board determines that it could not have obtained a
more advantageous arrangement with reasonable effort under the circumstances. Such
determinations must be made by the Board in good faith, with knowledge of the material
facts concerning the transaction and the director's interest in the transaction, and by a
vote of a majority of the directors then in office, without counting the vote of the
interested director or directors. Any interested director shall be required to recuse
himself or herself from the deliberations of the Board, except to the extent necessary to
answer any questions posed by the Board.
ARTICLE VIII
INDEMNIFICATION AND INSURANCE
Section 1. Right ofIndemnity. To the fullest extent allowed by the Delaware
General Corporation Law, Section 5238 of the California Nonprofit Public Benefit
Corporation Law and Section 4958 of the Code, this corporation shall indemnify and
advance expenses to its agents, in connection with any proceeding, and in accordance
with Section 5238. For purposes of this Article, "agent" shall have the same meaning as
in Section 5238(a), including directors, officers, employees, other agents, and persons
formerly occupying such positions; "proceeding" shall have the same meaning as in
Section 5238(a), including any threatened action or investigation under Section 5233 or
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brought by the Attorney General; and "expenses" shall have the same meaning as in
Section 5238(a), including reasonable attorneys' fees.
Section 2. Approval of Indemnity. On written request to the Board in each
specific case by any agent seeking indemnification, to the extent that the agent has been
successful on the merits, the Board shall promptly authorize indemnification in
accordance with Section 5238( d). Otherwise the Board shall promptly determine, by a
majority vote of a quorum consisting of directors who are not parties to the proceeding,
whether, in the specific case, the agent has met the applicable standard of conduct stated
in Section 5238(b) or Section 5238(c), and, ifso, shall authorize indemnification.
Section 3. Advancing Expenses. To the fullest extent allowed by the
Delaware General Corporation Law and Section 5238 of the California Nonprofit Public
Benefit Corporation Law, and except as otherwise determined by the Board in specific
instances, the Board shall authorize the advance of expenses incurred by or on behalf of
an agent of this corporation in defending any proceeding prior to final disposition, if the
Board finds that:
(a) the requested advances are reasonable in amount under the circumstances;
and
(b) before any advance is made, the agent will submit a written undertaking
satisfactory to the Board to repay the advance unless it is ultimately
determined that the agent is entitled to indemnification for the expenses
under this Article.
Unless the Board finds compelling reasons to do otherwise, the undertaking shall
be unsecured, and no interest shall be charged on the obligation created thereby.
Section 4. Insurance. The Board may adopt a resolution authorizing the
purchase of insurance on behalf of any agent against any liability asserted against or
incurred by the agent in such capacity or arising out of the agent's status as such, and
such insurance may provide for coverage against liabilities beyond this corporation's
power to indemnify the agent under law.
ARTICLE IX
GRANTS ADMINISTRATION
Section 1. Purpose of Grants. This corporation shall have the power to make
grants and contributions and to render other financial assistance for the purposes
expressed in this corporation's Certificate of Incorporation. In making grants to or for the
benefit of the City of Gilroy, the corporation shall select one or more specific programs
on which to focus its support in order to meet all of the criteria necessary to qualify as an
organization "operating in connection with" the City of Gilroy, including without
limitation, the requirements of the Responsiveness Test and the Integral Part Test as
provided in Reg. Ss1.509(a)-4(i)(l).
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Section 2. Exclusive Power in the Board. The Board shall have exclusive
control over grants, contributions, and other financial assistance provided by this
corporation. The Board shall review any requests for funds and shall require that such
requests specify with particularity the use to which the funds will be put. If the Board
approves a request for funds, the Board shall authorize payment of such funds to the City
of Gilroy only if such grant will conform to the requirements of the preceding Section.
Section 3. Refusal: Withdrawal. The Board, in its absolute discretion, shall
have the right to refuse to make any grants or contributions, or to render other financial
assistance, for any or all of the purposes for which the funds are requested. In addition,
the Board, in its absolute discretion, shall have the right to withdraw its approval of any
grant at any time and use the funds for other purposes within the scope of the purposes
expressed in this corporation's Certificate ofIncorporation and this Article IX.
ARTICLE X
DISSOLUTION
Section 1. Election to Dissolve. This corporation may be dissolved upon: (i)
a majority vote of the Board of Directors to liquidate and dissolve; or (ii) the single vote
of the Council Director to liquidate and dissolve the corporation, if such vote is made
following and pursuant to a duly adopted resolution by the City Council of the City of
Gilroy resolving to direct its Council Director to vote for the dissolution of the
corporation.
Section 2. Distribution of Assets on Dissolution. No part of the earnings,
properties or assets of this corporation, on dissolution or otherwise, shall inure to the
benefit of any private person or individual or any director, or officer of this corporation,
and on liquidation or dissolution all properties and assets of this corporation remaining
after paying or providing for all debts and obligations shall be distributed and paid over
to the City of Gilroy.
ARTICLE XI
MISCELLANEOUS
Section 1. Fiscal Year. The fiscal year of this corporation shall end each year
on the last day of February.
Section 2. Contracts, Notes, and Checks. All contracts entered into on behalf
of this corporation must be authorized by the Board or any person or persons on whom
such power may be conferred by the Board, and, except as otherwise provided by law,
every check, draft, promissory note, money order, or other evidence of indebtedness of
this corporation shall be signed by any person or persons on whom such power may be
conferred by the Board.
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Section 3. Annual Reports to Directors. Within 120 days after the end of this
corporation's fiscal year, the President shall furnish a written report to all directors of this
corporation containing the following information
(a) the assets and liabilities, including the trust funds of this corporation, as of
the end of the fiscal year;
(b) the principal changes in assets and liabilities, including trust funds, during
the fiscal year;
(c) the revenue or receipts of this corporation, both unrestricted and restricted
for particular purposes, for the fiscal year;
(d) the expenses or disbursements of this corporation, for both general and
restricted purposes, for the fiscal year; and
(e) any transaction during the previous fiscal year involving $100,000.00 or
more between this corporation (or its parent or subsidiaries, if any) and
any of its directors or officers (or the directors or officers of its parent or
subsidiaries, if any) or any holder of more than ten percent of the voting
power of this corporation or its parent or subsidiaries, if any, and the
amount and circumstances of any indemnifications or advances
aggregating more than $10,000.00 paid during the fiscal year to any
director or officer of this corporation. For each transaction, the report
must disclose the names of the interested persons involved in such
transaction, stating such person's relationship to this corporation, the
nature of such person's interest in the transaction and, where practicable,
the value of such interest.
The foregoing report shall be accompanied by any report thereon of independent
accountants or, if there is no such report, the certificate of an authorized pfficer of this
corporation that such statements were prepared without an audit from the books and
records of this corporation.
Section 4. Amendments. Proposed amendments to these Bylaws shall be
submitted in writing to the directors at least ten (10) days in advance of the Board
meeting at which they will be considered for adoption.
A. Council Director. Notwithstanding any other provision of these
Bylaws to the contrary, the provisions of Article IV, Section 3.A, Section 5 and Section
6; Article X, Section 1 and Section 2; Article XI, Section 4; and any other provisions
relating to the Council Director or rights or benefits afforded the City of Gilroy may be
adopted, amended or repealed only by approval of the Council Director, if such approval
is given following and pursuant to a duly adopted resolution by the City Council of the
City of Gilroy resolving to direct the Council Director to so adopt, amend or repeal such
provision( s).
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B. High Vote Requirement. Unless otherwise specifically provided in
these By laws, a 2/3 consent and approval of the Board shall be required to adopt, amend
or repeal any other provisions of this corporation's Bylaws.
Section 5. Governing Law: Interpretation. In all matters not specified in
these Bylaws, or in the event these Bylaws shall not comply with applicable law, the
Delaware General Corporation Law as then in effect shall apply, subject to the following.
If any provision of these Bylaws shall be held illegal, invalid or unenforceable, in whole
or in part, it is this corporation's stated desire that such provision be modified in
accordance with Section 4 of this Article XI to render it legal, valid and enforceable
while to the fullest extent possible preserving the business and corporate intent and
impact of the original provision, and that the legality, and the validity and enforceability
of all other provisions of these Bylaws not be affected. This corporation shall not enter
into any contract, lease, agreement or similar instrument, obligation or commitment
(collectively, "Contracts") which conflicts with the provisions of this corporation's
Bylaws, including, without limitation, any Contract which conflicts with the rights of the
Council Director and the City of Gilroy under Articles X and XI hereof. Should any
provision of any such Contract conflict with any provision of these Bylaws, it is this
corporation's stated desire that the provisions of these Bylaws shall be controlling.
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CERTIFICATE OF SECRETARY
I, the undersigned, certify that I am presently the duly elected and acting
Secretary of Gilroy Gardens Family Theme Park, Inc., a Delaware nonprofit public
benefit corporation, and that the above Bylaws, consisting of fifteen (15) pages, are the
Bylaws of this corporation as adopted by the unanimous consent of the Board of
Directors on , 2008.
Dated:
2008
Patti Harmon, Secretary
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