HomeMy WebLinkAboutAgreement - Gilroy Gardens Family Theme Park - 10th Amendment - Single Tenant Lease - Signed 2022-03-081
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TENTH AMENDMENT TO SINGLE TENANT LEASE BETWEEN GILROY GARDENS
FAMILY THEME PARK AND THE CITY OF GILROY
This Tenth Amendment to Single Tenant Lease (“Tenth Amendment”) is made and entered
into as of February 28, 2021 (“Effective Date”), by and between GILROY GARDENS FAMILY
THEME PARK, a Delaware nonprofit corporation, formerly known as Bonfante Gardens, Inc.,
(“Tenant”) and the CITY OF GILROY, a California municipal corporation (“Landlord”).
Recitals
WHEREAS, Landlord and Tenant are parties to that certain Single Tenant Lease, dated as
of February 28, 2008, (“Original Lease”), as amended by that certain First Amendment to Single
Tenant Lease, dated as of July 21, 2008 (“First Amendment”), as amended by that certain Second
Amendment to Single Tenant Lease, dated as of July 28, 2009 (“Second Amendment”), as amended
by that certain Third Amendment to Single Tenant Lease, dated as of April 6, 2010 (“Third
Amendment”), as amended by that certain Fourth Amendment to Single Tenant Lease, dated as of
June 5, 2012 (“Fourth Amendment”), as amended by that certain Fifth Amendment to Single Tenant
Lease, dated as of November 4, 2014 (“Fifth Amendment”), as amended by that certain Sixth
Amendment to Single Tenant Lease, dated as of September 21, 2016 (“Sixth Amendment”), as
amended by that certain Seventh Amendment to Single Tenant Lease, having an effective date of
February 28, 2018 (“Seventh Amendment”), as amended by that certain Eighth Amendment to
Single Tenant Lease, dated as of February 28, 2019 (“Eighth Amendment”); as amended by that
certain Ninth Amendment to Single Tenant Lease, dated as of July 16, 2020, but having an effective
Date of February 29, 2020 (“Ninth Amendment”) and,
WHEREAS, The Original Lease, First Amendment, Second Amendment, Third
Amendment, Fourth Amendment, Fifth Amendment, Sixth Amendment, Seventh Amendment,
Eighth Amendment and Ninth Amendment shall sometimes hereinafter be collectively referred to as
the “Lease”. Pursuant to the terms and conditions of the Lease, 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; and,
WHEREAS, The Eighth Extension Term (as defined in Section 2 of the Ninth Amendment)
expires on February 28, 2021; and,
WHEREAS, Landlord and Tenant desire to extend the Term of the Lease for a one (1) year
period through and including February 28, 2022.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth
below and for other valuable consideration, the receipt and adequacy 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. Extension of Lease Term. The Term of the Lease is hereby extended for a period of one (1)
year, and shall expire on February 28, 2022 (“Ninth Extension Term”), unless sooner terminated in
accordance with the terms of the Lease.
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3. Counterparts; Facsimile Signatures. This Tenth Amendment may be executed in
counterparts, each of which shall be deemed an original and which together shall constitute one
instrument. The signatures of any party or parties on this Tenth Amendment transmitted by facsimile
or electronic mail shall be deemed the same as an original signature and shall be binding on the party
transmitting the same.
4. Lease Status. Tenant warrants, represents and certifies to Landlord that, to the best of
Tenant's actual knowledge, as of the date of this Tenth Amendment: (a) Landlord is not in default
under the Lease; and (b) Tenant does not have any defenses or offsets to payment of rent and
performance of its obligations under the Lease as and when same becomes due.
5. Certified Access Specialist Disclosure. Landlord hereby makes the certified access specialist
disclosure required under California Civil Code Section 1938, which disclosure is more particularly
set forth in Exhibit “A” attached hereto. Exhibit “A” is incorporated into this Tenth Amendment by
reference and made a part hereto.
6. 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 Tenth Amendment and the terms of the Lease the terms of this Tenth Amendment shall
control.
(signatures appear on following page)
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IN WITNESS WHEREOF, the parties have caused this Tenth Amendment to be executed as of
the dates set forth besides their signatures below.
LANDLORD: TENANT:
CITY OF GILROY GILROY GARDENS FAMILY THEME
PARK
By: ______________________ By: _________________________
City Administrator Board Chair
Date: _____________________ Date: _________________________
By: ______________________
City Clerk
Date: _____________________
Approved as to Form
By: ______________________
City Attorney
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3/8/2022
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Exhibit “A”
Certified Access Specialist Disclosure
For purposes of California Civil Code Section 1938, Landlord hereby discloses to Tenant
that, as of the Effective Date, to Landlord’s actual knowledge, the Premises have not undergone
inspection by a Certified Access Specialist (“CASp”). Pursuant to California Civil Code
Section 1938(e), Landlord hereby further discloses to Tenant the following: “A Certified Access
Specialist (CASp) can inspect the subject premises and determine whether the subject premises
comply with all of the applicable construction-related accessibility standards under state law.
Although state law does not require a CASp inspection of the subject premises, the commercial
property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of
the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by
the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner
of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any
repairs necessary to correct violations of construction-related accessibility standards within the
premises.” Notwithstanding the foregoing and/or anything to the contrary contained in the Lease (as
amended), Landlord and Tenant hereby agree and acknowledge that, in the event Tenant desires to
obtain a CASp inspection, then:
(x) Tenant shall provide Landlord with no less than twenty (20) business days’
prior written notice and, upon receipt of such notice, Landlord shall have the right to, among other
things, (i) select the date and time at which such inspection shall occur, and (ii) have one (1) or more
representatives present during such inspection.
(y) Tenant hereby agrees and acknowledges that it shall (x) provide Landlord
with a copy of any and all findings, reports and/or other materials (collectively, the “CASp Report”)
provided by the CASp immediately following Tenant’s receipt thereof, (y) at all times maintain (and
cause to be maintained) the CASp Report and its findings (and any and all other materials related
thereto) confidential and (z) pay for the CASp inspection and CASp Report at Tenant’s sole cost and
expense. If Tenant receives a disability access inspection certificate, as described in subdivision (e)
of California Civil Code Section 55.53, in connection with or following any CASp inspection
undertaken on behalf, or for the benefit, of Tenant, then Tenant shall cause such certificate to be
provided immediately to Landlord.
(z) If the CASp Report identifies any violation(s) of applicable construction-
related accessibility standards (“CASp Violation(s)”), Tenant shall immediately provide written
notice to Landlord of any and all such CASp Violation(s). In such event, Tenant shall, at Tenant’s
sole cost and expense, perform, or cause to be performed, any repairs, modifications and/or other
work necessary to correct such the CASp Violation(s) (any such repairs, modifications and/or other
work being collectively referred to herein as the “CASp Work”). Tenant shall commence (or cause
the commencement of) such CASp Work no later than fifteen (15) business days after Landlord’s
receipt of the CASp Report in accordance with the terms and conditions of the Lease (as amended).
Tenant shall diligently prosecute (or cause to be diligently prosecuted) to completion all such CASp
Work in a lien free, good and workmanlike manner, and, upon completion, obtain an updated CASp
Report showing that the Premises then comply with all applicable construction-related accessibility
standards. Any and all cost and expense associated with the CASp Work and/or the updated CASp
Report (which Tenant shall provide to Landlord immediately upon Tenant’s receipt thereof) shall be
at Tenant’s sole cost and expense.
Without limiting the generality of the foregoing, Tenant hereby agrees and acknowle dges
that: (i) Tenant assumes all risk of, and agrees that Landlord shall not be liable for, any and all loss,
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cost, damage, expense and liability (including, without limitation, court costs and reasonable
attorneys' fees) sustained as a result of the Premises not having been inspected by a Certified Access
Specialist (CASp); (ii) Tenant's indemnity obligations set forth in the Lease (as amended) shall
include any and all claims relating to or arising as a result of the Premises not having been inspected
by a Certified Access Specialist (CASp); and (iii) Landlord may require, as a condition to its consent
to any alterations, additions or improvements, that the same be inspected and certified by a Certified
Access Specialist (CASp) (following completion) as meeting all applicable construction-related
accessibility standards pursuant to California Civil Code Section 55.53.
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City of Gilroy
Agreement/Contract Tracking
Today’s Date:
July 13, 2020 Your Name: Bryce Atkins
Contract
Type:
Other (Non-Standard contracts
must be reviewed by the City
Administrator prior to initiating)
Phone Number: (408)846-0210
Contract Effective Date:
(Date contract goes into effect)
2/28/2021
Contract Expiration Date: 2/28/2022
Contractor / Consultant Name:
(if an individual’s name, format as
last name, first name)
Gilroy Gardens Family Theme Park
Contract Subject:
(no more than 100 characters)
Single Tenant Lease
Contract Amount:
(Total Amount of contract. If no
amount, leave blank)
By submitting this form, I confirm
this information is complete:
Date of Contract
Contractor/Consultant name and complete address
Terms of the agreement (start date, completion date or “until
project completion”, cap of compensation to be paid)
Scope of Services, Terms of Payment, Milestone Schedule and
exhibit(s) attached
Taxpayer ID or Social Security # and Contractors License # if
applicable
Contractor/Consultant signer’s name and title
City Administrator or Department Head Name, City Clerk
(Attest), City Attorney (Approved as to Form)
Routing Steps for Electronic Signature
Risk Manager
City Attorney Approval As to Form
City Administrator or Department Head
City Clerk Attestation
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