FIRST AMENDMENT TO TENANT LEASE
By and Between
CITY OF PACIFICA
a municipal corporation of the State of California
(“Landlord”)
And
STEPHEN JOHNSON PHOTOGRAPHY
a sole proprietorship
(“Tenant”)
Dated: November 1, 2021
This First Amendment to Tenant Lease (this “First Amendment”) is made and entered into effective as of November 1, 2021 (“Effective Date”) by and between the City of Pacifica, a municipal corporation of the State of California (“Landlord”) and Stephen Johnson Photography, a sole proprietorship wholly owned by Stephen Johnson, an individual (“Tenant”).
Section 1. Subsection 3.2 of that certain Lease Agreement, dated as of November 1, 2019 (“Lease Agreement”), by and between Landlord and Tenant, is amended to read as follows:
“3.2 Base Rent; Rent. The monthly Base Rent for the Initial Term shall be Two thousand seventy nine dollars and 35/100 cents ($2,079.35), for a total of Twenty four thousand nine hundred fifty two dollars and 20/100 cents ($24,952.20) per year
3.2.1 Base Rent Adjustment for Photographic Services Rendered. During the Initial Term and each Extended Term, a portion of the Base Rent shall be adjusted based on professional photographic services rendered by Tenant to Landlord reducing the Base Rent by a total amount of twelve thousand dollars ($12,000) per year (“Base Rent Adjustment”).
(i) The Tenant shall render the photographic services based on the hourly rates and Terms of Use identified in Exhibit C, attached hereto and hereinafter incorporated by reference (“Photographic Services”). Landlord shall request specific Photographic Services from time to time either through a written or verbal request to Tenant and Tenant shall provide those Photographic Services to Landlord in the manner and timeframe requested by Landlord. (ii) Tenant shall perform the requested Photographic Services in a timely and professional manner and Tenant shall, at Landlord’s request, provide an accounting of Photographic Services rendered to determine the amount of Photographic Services rendered for the period requested.
(iii) Tenant shall at all times provide the Photographic Services as an independent contractor and shall at no time be considered an employee, volunteer or agent of the Landlord.
(iv) Except to the extent caused by Landlord's sole or active negligence, Tenant shall indemnify, defend and hold Landlord harmless from any claims, causes of action, liabilities, losses, damages, injunctions, suits, fines, penalties, costs or expenses (including attorneys' fees and expenses) caused or alleged to have been caused by Tenant’s Photographic Services, including, without limitation, any personal injury, death, property damage, caused or alleged to have been caused by Tenant’s Photographic Services, whether such claims, causes of action or liabilities are first asserted during the Term or thereafter, and including without limitation, claims made against Landlord with respect to personal injury, death or property damage sustained by third parties caused or alleged to have been caused by Tenant's obligations under this Lease to provide Photographic Services. Tenant's obligations under this Section 3.2 shall survive the expiration or earlier termination of this Lease.”
3.2.2 Intentionally omitted.
3.2.3 Intentionally omitted.
3.2.4 Landlord may terminate the Base Rent Adjustment during the Initial Term or any Extended Term, if the Landlord, in its sole discretion, determines that the Photographic Services are unsatisfactory or unnecessary, and may terminate the Base Rent Adjustment upon providing thirty (30) days written notice to Tenant. If Landlord terminates the Base Rent Adjustment pursuant to this provision Tenant shall receive a Base Rent Adjustment for those photographic services rendered up to the written notice date and commence paying the full Base Rent on the first day of the month following said written notice unless otherwise identified. Tenant shall also have the option to terminate the Agreement pursuant to Section
19.1 upon written notice from Landlord of termination of the Base Rent Adjustment.
Section 2. Subsection 3.4 of the Lease Agreement is amended to read as follows:
“3.4 Base Rent Annual Increase. Beginning on the commencement of the Extended Terms, if any, the Base Rent for the ensuing twelve (12) month period shall be as follows:
3.4.1 First Extended Term: $2,120.93 per month for a total of $25,451.24 per year.
3.4.2 Second Extended Term: $2,143.35 per month for a total of $25,720.20 per year.
Section 3. Exhibit C to the Lease Agreement shall be replaced in its entirety with the Exhibit C attached hereto.
Section 4. Except as otherwise amended herein, all terms and conditions of the Lease Agreement, including Exhibits attached thereto shall remain in full force and effect. [Signatures are set forth on following page.]
IN WITNESS WHEREOF, the parties have executed this First Amendment to Tenant Lease as of January 10, 2022.
LANDLORD:
CITY OF PACIFICA, a municipal
corporation of the State of California
ATTEST: By:
Kevin Woodhouse, City Manager
By:
Sarah Coffey, City Clerk
APPROVED AS TO FORM:
By:
Michelle Marchetta Kenyon, City Attorney
TENANT
STEPHEN JOHNSON PHOTOGRAPHY
By:
Stephen Johnson, Owner
Revised as of January 10, 2022
Exhibit C
PHOTOGRAPHIC SERVICES
In accordance with
1) Create and organize a portfolio of photographs (all photographs provided in digital format) 2) Create new aerial photograph* of the City of Pacifica 3) Aerial photographs of shopping districts (Approximately 11-12 shopping districts) 4) Various Photographs depicting various scenes occurring within the City of Pacifica:
o Events/crowds in City of Pacifica
o Various recreational activities in City of Pacifica
o Dining/relaxing in City of Pacifica
o Shopping in City of Pacifica
o Photographs of essence/highlights of various neighborhoods (Fairmont East and West, Manor, Sharp Park, Fairway East and West, Rockaway, Vallemar, Linda Mar, Park Pacifica, Pedro Point, etc.
o Photographs of different coastal areas (Cliffs at north end of City, bluffs along Esplanade, Sharp Park sea walls, Sharp Park levee, Mori Point, Rockaway, Linda Mar beach) (possibly taken from a boat**)
o Photographs of City Facilities
o Photographs of City services in action such as Parks, Beaches and Recreation, Public Works, Police, Fire, etc.
o Pictures of Palmetto revitalization
o Photographs as requested by City staff
5) From time to time Tenant may provide a selection of photographs and City staff may select individual photographs for City Driven Use, subject to Terms of Use of Photographs at the “per photograph” Rate identified below, which amount shall be credited against the Base Rent Adjustment for Photographic Services Rendered as described in Section 3.2.1. 6) Photography Workshops to City Staff
Rates
Photography Services- $125/hour
Workshop Services-$1,250/day
Per Photograph-$100
Terms of Use of Photographs
1) Tenant grants to Landlord a perpetual, non-exclusive license to use the photographs taken and provided to Landlord pursuant to the Agreement and this Exhibit C for any “City Driven Use.” “City Driven Use” shall mean any use which is determined by the Landlord, in its sole discretion, to be for appropriate City purposes. Revocation of said license and termination of the Landlord’s Revised as of January 10, 2022
use of the photographs shall only occur if the photographs are utilized for something other than a City Driven Use.
2) Landlord may not intentionally manipulate the content of any photographs provided as part of the Photographic Services.
3) Landlord will make efforts to give photo credit to Tenant when possible and practicable. 4) Landlord will make efforts to preserve the metadata contained within the photographs provided to City as part of the Photographic Services.
5) Landlord shall not be liable for any failure of a third party to comply with these Terms of Use and any failure of a third party to comply with these Terms of Use shall not result in a revocation of the Landlord’s license to use of the photographs.
6) Landlord shall not sell any photographs provided as part of the Photographic Services to any third party for a profit.
*Aerial photographs shall be billed at hourly rate and costs relating to rental of an airplane or helicopter shall be additional and negotiated with the City of Pacifica in advance. **Photographs taken by a boat shall be billed at the hourly rate and costs relating to rental of a boat shall be additional and negotiated with the City of Pacifica in advance.