HomeMy WebLinkAboutGilroy Gardens - Lease Agreement - Copy Version with All Exhibits SINGLE TENANT LEASE
(Gilroy Gardens Property, Gilroy, California)
THIS SINGLE TENANT LEASE ("Lease"), dated " 2 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 of this 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:
I. 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 Term. 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 of this 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
immediate) prior owner of the Property and is highly familiar with and satisfied with the
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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 I through the end of the following February) during the Term,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 I 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 term "EBITDA" shall mean: the net income (but not loss) of Tenant for
Tenant's fiscal year as set forth above, determined 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 determined in accordance with GAAP. For such purpose,
Net Income (and accordingly EBITDA as that term 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 Term, 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, deferment, 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 Term (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 Tenant
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 ("Cade"), or corresponding provisions of prior law, (ii) exempt from
federal income taxes under Section 501(a) of the Code (except for unrelated business income j
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 form 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 Tenant 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 Term 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.
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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 conformity 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 term 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 termination 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 U.S.C. § 9601 et seq., and the Resource Conservation and
Recovery Act, 42 U.S.C. § 6901 et seq., 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 formaldehyde 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 Tenant's agents,
employees, officers, contractors, subtenants, assignees, licensees, transferees and
representatives.
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
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deliver to Landlord prior to delivery to any governmental authority, or promptly after receipt
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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 improperlyHandled b Tenant or Tenant's Representatives. Tenant shall remove at its
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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
Paragra hp 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 of this Lease.
6. MAINTENANCE,REPAIRS,AND ALTERATIONS.
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 Paraeranh 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 Termination, 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 Termination, all of Tenant's rights with respect to the Premises and Licensed Property
shall terminate.
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 Paraeranh
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 j
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 Term, commercial general liability insurance
providing coverage on an occurrence form basis with limits of not less than Five Million and
No/100ths Dollars ($5,000,000.00) each occurrence for bodily injury and property damage
combined, Five Million and No/100ths Dollars ($5,000,000.00) annual general aggregate, and
Five Million and No/100ths 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 Tenant'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 of the waiver by Tenant's insurance carriers of any right
of subrogation against Landlord.
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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 Termination.
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) permit 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 permitted 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-term 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 of this 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 information 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 perform 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 of the
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.
10.4 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. j
12.1 Defaults. The occurrence of any one 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 perform any of the
express or implied covenants or provisions of this 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 performed by it hereunder unless and until it has failed to
perform 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 if the
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 of them, 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), performing 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) terminating 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 (101/o), provided that in no event shall such rate exceed
the highest rate permissible 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
If to 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, 7"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 of the 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
parry'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
harmless 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 17.10 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 j
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
of nonresponsibility 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 terms 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 confirm 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 dr 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 of the Property.
17.13 Landlord's Right to Perform Tenant's Covenants. If Tenant fails to make
any payment or perform any other act on its part to be made or performed under this Lease,
Landlord may, but shall not be obligated to and without waivingor releasing Tenant from an
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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 of their 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 of California.
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 of this Assignment and the transactions contemplated hereunder.
17.21 Recordin . On or promptly following the Commencement Date Landlord
e p p Y g ,
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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title, with signatures notarized for recording in the Official Records. Tenant's obligation
pursuant to this Paragraph 17.21 shall survive Lease Termination.
[Signatures on nextpage]
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THIS LEASE is effective as of the Commencement Date set forth above.
TENANT:
GILROY GARDENS FAMILY THEME PARK,
a Delaware nonprofit public benefit corporation
formerly known as `Bonfante Gardens,Inc."
By:
Its:
Robert Krae eside t
B
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LANDLORD:
CITY OF LROY,
a municip 1 c rporati0
By:
Anna Jatczak
Its: Interim rir3, lnist
)ator
ATTEST:
- i
r
kFreels
APPROVED AS TO FORM:
City Attorney
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I
-21-
%0744417.12
022508-04706118
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EXHIBIT A
LEGAL DESCRIPTION
[To Be Attached]
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4-
WM744417.12
022508-04706118
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Escrow No.; 07-98702516-1W
Locate No,: CACTI7743-7743-2987.0098702516
Title No.: 07-98702516-KV
EXHIBIT "Alf
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CI F CITY 0 GILROY, COUNTY OF SANTA CLARA, STATE OF
CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
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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 al, 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;
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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)
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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 tobe 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 Parcel 1 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 IT 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 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. S 0 deg. 03' 40" W 418.87 feet
6. S 0 deg. 13' 40" W 4094.58 feet
7. East 1254.00 feet
B. 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, It' 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(exhiblt)(08-07)
to the Easternmost corner of those lands conveyed to the State of California by J627 of Official Records at page 1271, Santa
alongClara County; thence e Southerly line of
last said
1585 Foot radius curve totheright, from tangent be lands aringN 82 deg, 52'34'" W., said curve n having Northwesterly Interior angle lofi 8
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 00°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 3001T W 412.10
feet more or less to a point on the Northeasterly line of said Parcel Four;thence S 6702T 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(exhlbit)(08-07)
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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
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to the point of beginning.
APN 810-17-014, 015, 021, 024 AND 025
PARCEL FIVE:
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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' S0"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 Parcel 1, 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 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.
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Excepting therefrom all that portion thereof lying within the above described Parcels Three and Four.
Exhibit Page- Legal(exhibit)(08-07)
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PARCEL SEVEN:
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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 27°0T 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 S16°29'52'"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 180
37 52 for a distance of 148,68 feet to station F • 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 "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 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 15148' 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 309 V for a distance of 129.42 feet to station "N';thence S 14043' E 4S6.60 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, (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 69143'49" 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.
PARCELTEN:
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 15148' 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(exhlblt)(08-07)
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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 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:
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. 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 262,00feet
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' S7"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 517 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)
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Excepting therefrom the the following described parcel of land:
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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,
CI o nty,Ca o rna, 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
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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(exhlbit)(08-07)
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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 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.) S 840 51' 07" W, a distance of 357,84 feet; thence
15.) S 76° 21' 10" W, a distance of 402.59 feet; thence
16.) N 88° 1T 32" W, a distance of 194.26 feet; thence
17.) N 630 29' 09" W, a distance of 72.82 feet; thence
18.) S 21° 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.) S 02° 29' 27" W, a distance of 36.13 feet; thence
22.) S 04° 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 8, 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
PARCELTHIRTEEN:
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)
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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, 89deg._52' 17" E.60.00 feet; thence Northerly360.00 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,
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III
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Exhibit Page- Legal(exhibit)(08.07) I'
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EXHIBIT B
[Intentionally Omitted]
III
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EXHIBIT C
Form of Insurance 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
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3. Commercial General Liability,ACE American Insurance Company, Policy No. G2 17 62
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 of Insurance 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
N01 142951001
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 FAMILY 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 of the 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 FAMILY 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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UM744417.12
022508-04706118
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STATE OF CALIFORNIA l
} 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
l
} SS.
COUNTY OF )))
On before me, Notary Public, personally ICI
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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1KKS1744417.12 '..
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