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HomeMy WebLinkAboutFiorio Farms - Agricultural Lease (2014) - Amendment No. 1AMENDMENT TO AGRICULTURAL LEASE This Amendment to Agricultural Lease ("Amendment") is made and entered into as of "r e,-. 1. Id, 2018, but made effective as of December 31, 2017 ("Effective Date"), by and between FIORIO FARMS, INC., a California corporation ("Tenant"), and the CITY OF GU ROY, a California municipal corporation ("Landlord"). Recitals A. Landlord and Tenant are parties to that certain Agricultural Lease, dated as of December 1, 2014, ("Lease"). Pursuant to the terms and conditions of the Lease, Landlord leases to Tenant, and Tenant leases from Landlord certain real property located in the County of Santa Clara, State of California (APNs 808-21-026, 808-21-028, and 808-21-030), and more particularly described in the Lease as the "Premises." B. The initial term of the Lease expired on December 31, 2017. C. Landlord and Tenant desire to, among other things, extend the term of the Lease for a three (3) year period through and including December 31, 2020. NOW THEREFORE, in consideration of the mutual covenants and agreements set forth below and for other valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows: 1. Defined Terms. All capitalized terms used herein, except as otherwise expressly provided herein, shall have the meanings ascribed to them in the Lease. 2. Extension of Lease Term. The term of the Lease is hereby extended for a period of three (3) years and shall expire on December 31, 2020 ("Extension Term"), unless sooner terminated in accordance with the terms of the Lease. 3. Rent. During the Extension Term (i.e., January 1, 2018 -December 31, 2020), Tenant shall pay annual rent: (i) from January 1, 2018 through December 31, 2018 in the amount of Fifteen Thousand Four Hundred Dollars ($15,400.00), (ii) from January 1, 2019 through December 31, 2019 in the amount of Fifteen Thousand Eight Hundred Sixty-two Dollars ($15,862.00) and (iii) from January 1, 2020 through December 31, 2020 in the amount of Sixteen Thousand Three Hundred Thirty-seven Dollars and Eighty-six Cents ($16,337.86). Each installment of annual rent described in the preceding sentence shall be payable at the times, in the manner and at the place as set forth in the Lease, as amended by this Amendment. 4. Comvliance with Laws. Tenant shall not use the Premises or permit anything to be done in or about the Premises or any part thereof, which will in any way conflict with any law, statute, ordinance, rule, regulation, requirement, directive, order, permit or approval of any governmental authority or quasi - governmental authority now in force or which may hereafter be enacted or promulgated ("Laws"). In furtherance of the foregoing, but without limiting the generality thereof, Tenant shall comply with the Laws at all times (and cooperate with the enforcement of such Laws as they relate to the Premises), including, without limitation, (A) storm water requirements and (B) any annexation approved by the Local Agency Formation Commission of Santa Clara County (and/or any governmental authority or quasi -governmental authority). 4833-8006-8983v3 SSCORDELIS104706083 Successors. All the terms, covenants, and conditions of the Lease (as amended) shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties hereto, provided that nothing set forth in this Section 5 shall be deemed to permit any assignment, subletting, occupancy or use of the Premises in violation of the provisions of Section 6 of the Lease. Landlord shall have the right to transfer and assign, in whole or in part, all of its rights and obligations under the Lease (as amended) and in the Premises. Upon such transfer, Landlord shall be released from any further obligations under the Lease (as amended) and Tenant agrees to look solely to the successor in interest of Landlord for the performance of such obligations, provided that, any successor pursuant to a voluntary, third party transfer (but not as part of an involuntary transfer resulting from a foreclosure or deed in lieu thereof) shall have assumed Landlord's obligations under the Lease (as amended) accruing from and after the effective date of the voluntary, third party transfer. 6. Certified Access Specialist. Landlord and Tenant acknowledge and agree that, to Landlord's actual knowledge (as of the Effective Date), the Premises have not been inspected by a Certified Access Specialist ("CASp") pursuant to Section 1938 of the Civil Code. The parties further agree as follows: (1) Pursuant to California Civil Code Section 1938(e), Landlord hereby further discloses to Tenant the following: "A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction - related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction -related accessibility standards within the premises." (2) Notwithstanding the foregoing and/or anything to the contrary contained in the Lease (as amended), Landlord and Tenant hereby agree and acknowledge that, in the event Tenant desires to obtain a CASp inspection, then: (x) Tenant shall provide Landlord with no less than twenty (20) business days' prior written notice and, upon receipt of such notice, Landlord shall have the right to, among other things, (i) select the date and time at which such inspection shall occur, and (ii) have one (1) or more representatives present during such inspection. (y) Tenant hereby agrees and acknowledges that it shall (x) provide Landlord with a copy of any and all findings, reports and/or other materials (collectively, the "CASp Report") provided by the CASp immediately following Tenant's receipt thereof, (y) at all times maintain (and cause to be maintained) the CASp Report and its findings (and any and all other materials related thereto) confidential and (z) pay for the CASp inspection and CASp Report at Tenant's sole cost and expense. If Tenant receives a disability access inspection certificate, as described in subdivision (e) of California Civil Code Section 55.53, in connection with or following any CASp inspection undertaken on behalf, or for the benefit, of Tenant, then Tenant shall cause such certificate to be provided immediately to Landlord. (z) If the CASp Report identifies any violation(s) of applicable construction -related accessibility standards ("CASp Violation(s)"), Tenant shall immediately provide written notice to Landlord of any and all such CASp Violation(s). In such event, Tenant 4833-8006-8983v3 2 SSCORDELIS104706083 shall, at Tenant's sole cost and expense, perform, or cause to be performed, any repairs, modifications and/or other work necessary to correct such the CASp Violation(s) (any such repairs, modifications and/or other work being collectively referred to herein as the "CASp Work"). Tenant shall commence (or cause the commencement of) such CASp Work no later than fifteen (15) business days after Landlord's receipt of the CASp Report in accordance with the terms and conditions of the Lease (as amended). Tenant shall diligently prosecute (or cause to be diligently prosecuted) to completion all such CASp Work in a lien free, good and workmanlike manner, and, upon completion, obtain an updated CASp Report showing that the Premises then comply with all applicable construction -related accessibility standards. Any and all cost and expense associated with the CASp Work and/or the updated CASp Report (which Tenant shall provide to Landlord immediately upon Tenant's receipt thereof) shall be at Tenant's sole cost and expense. Without limiting the generality of the foregoing, Tenant hereby agrees and acknowledges that: (i) Tenant assumes all risk of, and agrees that Landlord shall not be liable for, any and all loss, cost, damage, expense and liability (including, without limitation, court costs and reasonable attorneys' fees) sustained as a result of the Premises not having been inspected by a Certified Access Specialist (CASp); (ii) Tenant's indemnity obligations set forth in the Lease (as amended) shall include any and all claims relating to or arising as a result of the Premises not having been inspected by a Certified Access Specialist (CASp); and (iii) Landlord may require, as a condition to its consent to any alterations, additions or improvements, that the same be inspected and certified by a Certified Access Specialist (CASp) (following completion) as meeting all applicable construction -related accessibility standards pursuant to California Civil Code Section 55.53. 7. Counterparts; Facsimile Signatures. This Amendment may be executed in counterparts, each of which shall be deemed an original and which together shall constitute one instrument. The signatures of any party or parties on this Amendment transmitted by facsimile shall be deemed the same as an original signature and shall be binding on the party transmitting the same. 8. Lease Status. Tenant warrants, represents and certifies to Landlord that, to the best of Tenant's actual knowledge, as of the date of this Amendment: (a) Landlord is not in default under the Lease; and (b) Tenant does not have any defenses or offsets to payment of rent and performance of its obligations under the Lease as and when same becomes due. 9. Modification. Except as modified above the terms and conditions of the Lease shall remain unmodified and in full force and effect. In the event of any conflict or inconsistency between the terms of this Amendment and the terms of the Lease the terms of this Amendment shall control. (signatures appear on following page) 4833-8006-8983v3 SSCORDELIS104706083 IN WITNESS WHEREOF the parties hereto have executed this Amendment as of the date and year first written above. LANDLORD: CITY OF GILROY, a California municipal corporation By: Its: Date: �7atX f' A ST: Ci Clerks C lief APPR V TO FORM: City Attorney 4833-8006-8983v3 SSCORDELIS104706083 TENANT: FIORIO FARMS, INC., a California corpora on By: cy �` C& Its: C W �\Q V— Date: 3-to �C�