HomeMy WebLinkAboutGilroy Gardens - Lease Agreement - Amendment No. 1
FIRST AMENDMENT TO SINGLE TENANT LEASE
[Gilroy Gardens Property, Gilroy, California]
This First Amendment to Single Tenant Lease ("Amendment") is dated for reference
pwposes only as of the 21st day of July, 2008, 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
A. Landlord and Tenant are parties to that certain Single Tenant Lease dated
February 28, 2008 (the "Lease"), pursuant to which Landlord leases to Tenant, and Tenant leases
from Landlord, certain real property located in Gilroy, California, which is improved with a
horticultural education and theme park known as "Gilroy Gardens," which was developed and
constructed by Tenant and is more particularly described in the Lease.
B. Article 7 of the Lease provides for Tenant to maintain property insurance
covering the Gilroy Gardens Property, providing coverage at least as broad as the existing
"Property Choice (Business Property), Hartford Fire Insurance Company, Policy No. 57 UUM
TM5946" policy maintained by Tenant ("Direct Property Insurance Policy").
C. Tenant has requested that Landlord procure property insurance in substitution for
Tenant's Direct Property Insurance.
D. As an accommodation to Tenant, Landlord and Tenant now desire to modify,
amend, and supplement portions of the Lease to provide for Landlord at Landlord's election to
maintain property insurance covering the improvements located at the Gilroy Gardens Premises
(together with certain personal property owned by Landlord) in substitution for Tenant's Direct
Property Insurance Policy, subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth
below, and for other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1 Defined Terms. All capitalized terms used herein, except as otherwise
expressly provided herein, shall have the meanings ascribed to them in the Lease.
2. Modification Of Property Insurance Provisions. Article 7 of the Lease IS
modified by the addition of a new Paragraph 7.6, which reads as follows:
7.6 Landlord's Property Insurance. In Landlord's sole discretion, Landlord may elect
upon notice to Tenant to maintain in effect insurance on the improvements located at the
Premises, insuring against "special form" perils (to the extent such coverages are available), with
responsible insurers (which may be a public pool or other arrangement utilized by
municipalities), insuring such improvements ("Landlord's Property Insurance"). Landlord
may also, but shall not be obligated to, carry insurance against additional perils andlor in greater
amounts. In the event that Landlord elects to maintain such Landlord's Property Insurance,
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\ TMORELL\ 765393.4 121208-04706118
Tenant's obligation to maintain in effect the Direct Property Insurance shall be suspended during
the period of time the improvements are insured under Landlord's Property Insurance. Landlord
shall maintain the Direct Property Insurance for the protection of Landlord's insurable interest in
the improvements located at the Premises, and the personal property owned by Landlord, but
used by Tenant in the operation of the Premises. Tenant acknowledges and agrees that
Landlord's Property Insurance may not provide coverage that is identical to the coverage
provided under Tenant's Direct Property Insurance, and will not cover Tenant's personal
property. For this reason, Tenant shall at all times, at a minimum, maintain in effect with respect
to Tenant's personal property, commercial property insurance for "special form" perils,
providing coverage to the extent of the full replacement cost of the covered property. Landlord
may provide Landlord's Property Insurance hereunder by endorsement to a blanket policy of
insurance. In such event, Landlord shall make an equitable allocation of the costs to be allocated
to the Premises. Landlord's good faith determination shall be binding on Tenant. Any proceeds
of Landlord's Property Insurance shall be paid in the manner set forth in Paragraph 8.1 of this
Lease. Landlord's procurement of Landlord's Property Insurance is contemplated to be a benefit
to Tenant, and Tenant shall bear all of the costs associated with such insurance. Concurrently
with the payment of premium costs for Landlord's Property Insurance, Landlord shall deliver an
invoice for the insurance cost determined by Landlord, and Tenant shall pay Landlord such
amount within ten (10) days after the date of invoice. Such payment obligations shall be deemed
to be "Rentals" pursuant to Paragraph 3.2 of this Lease.
3. Counterparts: Facsimile Signatures. This Amendment may be executed in
counterparts, each of which shall be deemed an original and which together shall constitute one
instrument. The signature(s) of any party or parties on this Amendment transmitted by facsimile
shall be deemed the same as an original signature and shall be binding on the party transmitting
the same.
4. Modification. Except as modified above, the terms and conditions of the Lease
shall remain unmodified and in full force and effect. In the event of any conflict or inconsistency
between the terms of this Amendment and the terms of the Lease, the terms of this Amendment
shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date and year first written above.
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\TMORELL \765393.4
121208-04706118
LANDLORD:
CITY OF GILROY
a municipal corporation
BV~
Its: . N1O-VTl V
".....--~/-.-~-~---------
ity Clerk l ShaWYWv Pr-i.el3
APPROVED AS TO FORM:
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City Attorney l L (V\/lO,)!.atl {)'Y1
ITMORELL\7653934
121200-04700118
TENANT:
GILROY GARDENS F AMIL Y TIIEME
PARK.
a De1a\\ are nonprofit
corporation formerly
Gardens. Inc."
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