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HomeMy WebLinkAboutAgreement - Gilroy Arts Alliance - 1st Amendment - Single Tenant Lease - Signed 2021-03-01 -1- 4844-6029-3076v4 SSCORDELIS\04706083 FIRST AMENDMENT TO SINGLE TENANT LEASE (Gilroy Arts Alliance Center for the Arts – Temporary Cultural and Performing Arts Center) This FIRST AMENDMENT TO SINGLE TENANT LEASE (“First Amendment”) is made and entered into as of March 1, 2021 (“Effective Date”), by and between THE CITY OF GILROY, a California municipal corporation (“Landlord”), and GILROY ARTS ALLIANCE CENTER FOR THE ARTS, a California non-profit corporation (“Tenant”). RECITALS A. Pursuant to that certain Single Tenant Lease, dated as of March 28, 2017, by and between Landlord and Tenant (“Lease”), Landlord leases to Tenant, and Tenant leases from Landlord, certain premises (“Original Premises”), consisting of a building commonly known as the “Old Salvation Army Building” (“Building”), the land on which the Building is located, and certain adjacent vacant properties, all located in Gilroy, California, and more particularly described as follows: Site Address Assessor’s Parcel No. 7341 Monterey (Building Site) 799-08-042 7331 Monterey 799-08-043 7301 Monterey 799-08-044 67 W. 7th 799-08-045 57 W. 7th 799-08-046 7310 Eigleberry 799-08-047 7320 Eigleberry 799-08-048 7330 Eigleberry 799-08-049 7350 Eigleberry 799-08-050 7360 Eigleberry 799-08-051 Eigleberry (no street address) 799-08-060 The foregoing sites are more particularly described in the Memorandum of Lease (attached to the Lease as Exhibit A). B Landlord and Tenant desire to amend the Lease to, among other things, memorialize Tenant’s obligation to (A) vacate and surrender the following sites: 67 W. 7th (799-08-045), 57 W. 7th (799-08-046), 7310 Eigleberry (799-08-047), 7320 Eigleberry (799-08-048), 7330 Eigleberry (799-08-049), 7350 Eigleberry (799-08-050), 7360 Eigleberry (799-08-051) and 799-08-060 (no street address), which sites are highlighted on Exhibit A attached hereto (“Relinquished Space”), but not the remaining portion of the Original Premises (such remaining portion being the “Retained Premises”), subject to the terms and conditions of the Lease, as amended by this First Amendment. The Retained Premises (which enclosed in a red border) and Relinquished Space (which are highlighted) are delineated on Exhibit A attached hereto. C. Capitalized terms used in this First Amendment shall have the meanings ascribed to such terms in the Lease, unless otherwise defined in this First Amendment. NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto amend, modify and supplement the Lease as follows: 1. Vacation and Surrender of Relinquished Space. Tenant hereby agrees and acknowledges that, on or before the Effective Date, Tenant shall, at Tenant’s sole cost and expense, vacate and surrender to Landlord the Relinquished Space free and clear of all tenancy and/or occupancy (including, without limitation, any and all subtenants, sub-subtenants and/or other entities and/or individuals occupying such Relinquished Space (or any DocuSign Envelope ID: F3D35D67-36D4-4C38-8831-5BE0D2F46A4D -2- 4844-6029-3076v4 SSCORDELIS\04706083 portion thereof)), and otherwise in accordance with, and subject to the terms and conditions of, the Lease. Notwithstanding the foregoing, Tenant shall not be obligated to remove the garden from the portion of the Relinquished Space known as the Demonstration Garden; provided, however, that the foregoing shall not be deemed or construed to release Tenant from any liability under the Lease with respect to Hazardous Materials (or otherwise). From and after the Effective Date, the Lease shall be deemed to have expired, but only as to the Relinquished Space, it being the intent of the parties that all rights and obligations of Landlord and Tenant under the Lease with respect to such Relinquished Space (and only such Relinquished Space) shall be deemed to have ceased as of Effective Date; provided, however, that the expiration of the Lease with respect to the Relinquished Space shall not release, waive or terminate (collectively, the “Continuing Obligations”): (A) any obligations of Tenant under the Lease relating to the Relinquished Space that expressly survive the expiration or termination of the Lease and/or (B) any obligations of Tenant under the Lease relating to the Relinquished Space which shall have accrued prior to the later of (i) the Effective Date, or (ii) such date that Tenant shall have vacated and surrendered the Relinquished Space in accordance with the terms and conditions of the Lease. Tenant hereby agrees and acknowledges that the Continuing Obligations shall survive the expiration of the Lease with respect to the Relinquished Space, and the execution of this First Amendment. From and after the Effective Date, (A) the “Premises” demised under the Lease shall consist of only the Retained Premises and (B) unless otherwise expressly set forth therein or herein, all references to the “Premises” in the Lease and this First Amendment shall be deemed to refer only to the Retained Premises. 2. Condition of Retained Premises. Tenant is in possession and occupancy of the Retained Premises (and Relinquished Space) as of the Effective Date. Tenant agrees and warrants that it has inspected the condition of the Retained Premises, and the suitability of the same for Tenant’s purposes, and Tenant does hereby waive and disclaim any objection to, cause of action based upon, or claim that its obligations hereunder and/or under the Lease should be reduced or limited because of the condition of such Retained Premises, the Relinquished Space and/or the Project, and/or the suitability of the same for Tenant’s purposes. Tenant further agrees and acknowledges that, (A) Landlord has no obligation to alter, improve or refurbish (and/or cause the alteration, improvement and/or refurbishment of) the Retained Premises and/or Relinquished Space for Tenant’s use or benefit, and/or provide an allowance for such purpose, and (B) the Retained Premises (and Relinquished Space) are accepted by Tenant in “as-is condition,” “with all faults,” and “without any representations or warranties.” Tenant acknowledges that neither Landlord, nor any agent nor any employee of Landlord, has made any representations or warranties with respect to the Retained Premises, Relinquished Space and/or the Project, or with respect to the suitability of the same for the conduct of Tenant’s business. Tenant’s continued occupancy and possession of the Retained Premises (and Relinquished Space) shall conclusively establish that the Retained Premises, Relinquished Space and the Project were at such time in satisfactory condition. 3. Retained Premises Extended Term. Notwithstanding anything to the contrary contained in the Lease, Landlord and Tenant hereby extend the term of the Lease (with respect to the Retained Premises for a period of twelve (12) calendar months, commencing on January 1, 2022 and expiring, unless sooner terminated, on December 31, 2022 (“Extended Term”). Tenant shall pay Rent (including, without limitation, any and all Real Property Taxes) during the Extended Term in accordance with the terms and conditions of the Lease. 4. License Area. Tenant shall be entitled to use, on a non-exclusive basis, the grass areas located on APNs 799-08-039, 799-08-040 and 799-08-041 (as shown on Exhibit A attached hereto) (“License Area”), solely for the purpose of customary Gilroy Arts Alliance activities, programs and special events; provided, however that Tenant must leave the License Area in its original condition after each use, and must conduct any use of the License Area in a neat and orderly manner. In connection therewith, Tenant may, subject to Landlord’s prior written approval (which approval may be granted or withheld in Landlord’s sole and absolute discretion) hold special events in the License Area. Tenant shall, at its sole cost and expense, be responsible for maintaining the cleanliness of the License Area in a first-class manner. Tenant’s use of the License Area shall be subject to (a) Tenant’s compliance with all applicable Laws (including, without limitation, zoning laws) and (b) Tenant first obtaining any required permit(s) and/or approval(s) from the City of Gilroy and/or County of Santa Clara (and/or any other governmental or quasi- DocuSign Envelope ID: F3D35D67-36D4-4C38-8831-5BE0D2F46A4D -3- 4844-6029-3076v4 SSCORDELIS\04706083 governmental entity of competent jurisdiction), and (c) all other the terms and conditions of the Lease (as amended). Notwithstanding anything to the contrary contained in this Lease, Tenant hereby agrees and acknowledges that (i) neither Landlord nor any agent nor any employee of Landlord has made any representations or warranties with respect to the compliance of the License Area with applicable laws and/or the availability and/or attainability of any permits and/or approvals relating to the License Area (and, if such permits are available and attainable, the time, cost and/or conditions associated with obtaining any such permits and/or approvals) and (ii) Tenant does hereby waive and disclaim any objection to, cause of action based upon, or claim that its obligations under the Lease (as amended) should be reduced or limited if the License Area is not in compliance with any applicable laws and/or if any such permits and/or approvals are not available and/or attainable (and/or, if such permits and approvals are available and/or attainable, as a result of the time, cost and/or conditions associated therewith). Tenant hereby agrees and acknowledges that, with respect to (and for the direct benefit of) Landlord, all of the indemnity, defense, hold harmless, exculpation and insurance obligations, on the part of the “Tenant” to be performed or observed under the Lease (as amended) shall apply with respect to the License Area. Tenant hereby agrees and acknowledges that, subject to Tenant’s right to hold special event in the License Area pursuant to the terms and conditions set forth in this Section 4, Tenant’s use of the License Area shall not interfere with Landlord’s use of the License Area and/or the general public’s use of the License Area. In the event Landlord desires to temporarily prohibit Tenant’s use of the License Area (e.g., during a Landlord-hosted special event), then Tenant will, upon receipt of such notification from Landlord, stop conducting its use of the License Area during the period specified in Landlord’s notice. 5. Brokers; Indemnification. Each party represents and warrants to the other party that it has not had dealings in any manner with any real estate broker, finder or other person with respect to the Extended Term and/or the negotiation and execution of this First Amendment. Tenant shall indemnify, defend and hold harmless Landlord from all damage, loss, liability and expense (including attorneys’ fees and related costs) arising out of or resulting from any claims for commissions or fees that may be or have been asserted against Landlord by any broker, finder or other person with whom Tenant has (or purportedly has) dealt in connection with the negotiation and execution of this First Amendment. Landlord and Tenant agree that Landlord shall not be obligated to pay any broker leasing commissions, consulting fees, finder fees or any other fees or commissions arising out of or relating to an extension of the term of the Lease, to any expansion or relocation of the Retained Premises at any time. All indemnification, defense and hold harmless obligations of Tenant set forth in the Lease (as amended by this First Amendment) shall survive the expiration or earlier termination of the Lease (as the same may have been amended). 6. Evidence of Authority. Concurrently with its execution of this First Amendment, Tenant shall provide Landlord written evidence reasonably satisfactory to Landlord, showing the authority of the individuals executing this First Amendment on behalf of Tenant to execute this First Amendment and bind Gilroy Arts Alliance Center for the Arts, a California non-profit corporation, with respect thereto. 7. Modified Provision. The last sentence of Section 6.2 of the Lease is hereby deemed deleted and replaced in its entirety with the following: “Tenant hereby waives and releases its rights pursuant to Sections 1932(1), 1941 and 1942 of the Civil Code of California and any similar or successor law(s) regarding Tenant’s right to terminate this Lease or to make repairs and deduct the expenses of such repairs from the rent due under this Lease. Tenant hereby waives any right of redemption or relief from forfeiture under the laws of the State of California, or under any other present or future law, including, without limitation, the provisions of Sections 1174 and 1179 of the California Code of Civil Procedure.” 8. Certified Access Specialist Inspection. 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 Retained Premises (and Relinquished Space) 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 DocuSign Envelope ID: F3D35D67-36D4-4C38-8831-5BE0D2F46A4D -4- 4844-6029-3076v4 SSCORDELIS\04706083 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 this First Amendment, 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) th e 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 acknowledges that: (i) Tenant assumes all risk of, and agrees that Landlord shall not be liable for, any and all loss, cost, damage, expense and liability (including, without limitation, court costs and reasonable attorneys' fees) sustained as a result of the Retained Premises (and/or Relinquished Space) 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 Retained Premises (and/or Relinquished Space) 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. 9. Effect of First Amendment. Except as modified herein, the terms and provisions of the Lease shall remain unmodified and continue in full force and effect. In the event of any conflict between the terms and provisions of this First Amendment and the terms and provisions of the Lease, the terms and provisions of this First Amendment shall prevail. DocuSign Envelope ID: F3D35D67-36D4-4C38-8831-5BE0D2F46A4D -5- 4844-6029-3076v4 SSCORDELIS\04706083 [Signatures Appear on Following Page] DocuSign Envelope ID: F3D35D67-36D4-4C38-8831-5BE0D2F46A4D -6- 4844-6029-3076v4 SSCORDELIS\04706083 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first set forth above. LANDLORD: CITY OF GILROY, a California municipal corporation By:__________________________ Its:__________________________ ATTEST: _______________________________ City Clerk APPROVED AS TO FORM: ________________________________ City Attorney TENANT: GILROY ARTS ALLIANCE CENTER FOR THE ARTS, a California nonprofit corporation By:________________________________________ Its:________________________________________ Printed Name:_______________________________ By:________________________________________ Its:________________________________________ Printed Name:_______________________________ DocuSign Envelope ID: F3D35D67-36D4-4C38-8831-5BE0D2F46A4D Marianne Eichenbaum Board President City Administrator -7- 4844-6029-3076v4 SSCORDELIS\04706083 EXHIBIT A DELINEATION OF RETAINED PREMISES AND RELINQUISHED SPACE DocuSign Envelope ID: F3D35D67-36D4-4C38-8831-5BE0D2F46A4D