AMENDMENT NO. 4 TO SUBLEASE AGREEMENT
By and Between
CITY OF PACIFICA
a municipal corporation of the State of California
("Lessor")
and
ART GUILD OF PACIFICA
a California non-profit public benefit corporation
("Lessee")
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AMENDMENT NO. 4 TO SUBLEASE AGREEMENT
THIS AMENDMENT NO. 4 TO SUBLEASE AGREEMENT ("Amendment"), dated as f March 07, 2023, is entered by and between the City of Pacifica, a California municipa orporation ("Lessor"), and the Art Guild of Pacifica, a California nonprofit public benefi corporation ("Lessee").
Recitals
A. Lessor is the fee owner of that certain real property located at 1220 Linda Mar Boulevard, Pacifica, County of San Mateo, State of California, APN 023-281-130.
B. Lessor and Lessee have entered into that certain sublease agreement, dated as of as amended by that certain Amendment No. 3 to Sublease Agreement, dated December 14, 2009, by and between Lessor and Lessee (collectively, the "Original Lease") pursuant to which Lessor has agreed to lease to Lessee and Lessee has agreed to lease from Lessor an approximately 22,283 contiguous square foot portion of that certain approximately 31,091 square foot building located at 1220 Linda Mar Boulevard, Pacifica, California 94044 (the "Building"), as more particularly described in the Original Lease (the "Original Premises").
C. In addition to the Original Premises, Lessee desires to lease from Lessor and Lessor desires to lease to Lessee the former credit union space, consisting of approximately 770 rentable square feet located in the Building (the "Expansion Space") on the terms and conditions set forth herein. The Original Premises and the Expansion Space are collectively referred to herein as the "Premises." The Original Lease together with this Amendment are collectively referred to herein as the "Lease."
NOW THEREFORE, for good and valuable consideration the receipt and adequacy of which is hereby acknowledged, the parties agree as follows:
Section 1. Recitals
The recitals set forth above are true and correct, and incorporated herein by this reference.
Section 2. Premises
Section 1, "DESCRIPTION OF PREMISES," of the Original Lease is hereby replaced in its entirety by the following:
Lessor is the owner of certain property located at 1220 Linda Mar Boulevard, Pacifica, California 94044 as described on Exhibit A attached hereto ("Property"). The defined term "Property" includes the Building, the Commor Area, and the Premises. The building itself is referred to herein as the "Building:' Lessor hereby leases to Lessee, and Lessee leases from Lessor, an approximately 23,053 square foot portion of the Building ("Premises"). A legal description of the Property is attached hereto and incorporated by reference as Exhibit A. A drawing depicting the general location and layout of the Premises is attached IRV #4857-7061-7168 v3
hereto and incorporated by reference as Exhibit B. The Common Area defined in Section 1.2 below is not part of the Premises.
(b) Exhibit A of the Original Lease is hereby deleted in its entirety and replaced with Exhibit A attached hereto and incorporated herein by this reference.
Section 3. Term on Expansion Space
The term on the lease of the Expansion Space shall commence on the date of the termination of the Original Lease.
Section 4. Rent
Section 3, "RENT," of the Original Lease is hereby replaced in its entirety with the following:
"3. RENT; UTILITIES
(a) Rent.
(1) Base Rent; Rent. All Rent under this Lease shall commence as of the Commencement Date. Rent shall be paid as set forth in this Section 3 and as set forth in Exhibit C, attached hereto and incorporated herein by this reference.
Lessee shall pay to Lessor, at Lessor's Address designated in Section 21, or at such other address as Lessor may from time to time designate in writing to Lessee for the payment of Rent, the Base Rent shall be Two Thousand One Hundred Eighty-Six and 00/100 Dollars ($2,186.00), without notice, demand, offset or deduction, in advance, on the first day of each calendar month. Upon execution of this Lease, Lessee shall pay to Lessor the total sum of (a) the first month's Base Rent due, and (b) any prorated rent for a partial month if the Commencement Date falls on a date other than the first calendar day of a month. All sums othe han Base Rent which Lessee is obligated to pay under this Lease shall be deeme to be Additional Rent due on the same date as Base Rent unless otherwise specified hereunder or otherwise requested by Lessor whether or not such sums are designated as Additional Rent. Notwithstanding the foregoing, late charges under Section 3(a)(3) shall be due and payable immediately upon incurrence. The term "Rent" means the Base Rent and all Additional Rent payable hereunder. If Rent is due for a period of less than a full month, it shall be prorated for such partial month on the basis of a thirty (30) day month. Base Rent shall be adjusted as set forth in Section 3(a)(5), except that Rent upon each anniversary of the Commencement Date shall be increased as set forth in Section 3(a)(5) of this Lease.
(2) Application of Payments. All payments received by Lessor from Lessee shall be applied to the oldest obligation owed by Lessee to Lessor. No IRV #4857-7061-7168 v3
designation by Lessee, either in a separate writing, on a check or money order, or otherwise shall modify this clause or have any force or effect. (3) Late Charge and Interest. The late payment of any Rent will cause Lessor to incur additional costs, including administration and collection costs and processing and accounting expenses and increased debt service ("Delinquency Costs"). If Lessor has not received any installment of Rent within five (5) days after such amount is due, Lessee shall pay a late charge of ten percent (10%) of the delinquent amount immediately. The ten percent (10% late charge represents a reasonable estimate of the Delinquency Costs incurred by Lessor. In addition, all such delinquent amounts shall bear interest from the date such amount was due until paid in full at a rate per annum ("Applicable Interest Rate") equal to the lesser of (a) the maximum interest rate permitted by Law or (b) five percent (5%) above the rate publicly announced by Bank of America, N.A. (or if Bank of America, N.A. ceases to exist, the largest bank then headquartered in the State of California) ("Bank") at its "Reference Rate." If the use of the announced Reference Rate is discontinued by the Bank, then the term Reference Rate shall mean the announced rate charged by the Bank which is, from time to time, substituted for the Reference Rate. Lessor and Lessee recognize that the damage which Lessor shall suffer as a result of Lessee's failure to pay such amounts is difficult to ascertain and said late charge and interest are the best estimate of the damage which Lessor shall suffer in the event of late payment. Lessor's acceptance of late Rent, partial Rent and late charges does not equate with a waiver of Lessee's default with respect to the overdue amount, or prevent Lessor from exercising any rights and remedies available under this Lease and/or by operation of Law.
(4) Additional Rent. In addition to paying the Base Rent specified in Section 3(a)(1), and pursuant to any Addendum or Amendment to this Lease that Lessor and Lessee may execute, Lessee shall pay as Additional Rent Lessee's Share of Utilities as described in Section 3(b), not directly paid by Lessee to the utility company, the cost of Improvements and any other amounts of any kind that become due or payable by Lessee to Lessor under the terms of this Lease. Unless Lessor elects otherwise pursuant to this Lease, all amounts due under this Lease as Additional Rent are payable for the same periods and in the same manner, time and place, as the Base Rent. Lessee's obligation to pay Rent under this Lease survives the Term to the extent such obligation has not been fulfilled during the Term.
(5) Base Rent Adjustments. Commencing on the first annual anniversary of the commencement of the Term and on each subsequent annual anniversary of the commencement of the Term ("Adjustment Dates"), other extensions or renewals, the Base Rent for the ensuing twelve (12) month period ("Adjustment Period" shall be an amount equal to the Base Rent including any prior Base Rent Adjustments in effect immediately prior to the commencement of the applicable Adjustment Period and without regard to any temporary rent credit then or IRV #4857-7061-7168 v3
previously in effect pursuant to the provisions of this Lease ("Current Rent") multiplied by One Hundred and Two and One-Half Percent (102.5%). (b) Utilities.
(1) Utilities and Services. Lessee shall be solely responsible for contracting for, and shall promptly pay all charges for telephone, computers and cable lines, wiring, materials, security, and utilities consumed or provided in, furnished to or attributable to the Expansion Space at the rates charged by the supplying companies, except that Lessor shall contract for but not pay for the Services (defined below). Lessor shall be responsible for contracting for, and Lessee shall be responsible for paying for two and one-half percent (2.5%) ("Lessee's Share") of, heat and air conditioning (in Lessor's sole discretion), water, gas, sewer, electricity, refuse, sewage, garbage, and pest control services for the Premises (collectively, "Services"). Lessee shall not waste Services and shall cooperate fully with Lessor to ensure the most effective operation of the Building's heating and ait conditioning system, if any. Lessee shall not adjust any controls of that heating and air conditioning system. Lessor shall have the right to control and operate the Common Area and the heating and air-conditioning system in such manner as it deems appropriate for the general benefit of the Building Lessees. "Common Area" means those areas exterior to the Building designated by Lessor from time to time for the common use of Lessor and all Lessees of the Building, including but not limited to common corridors, hallways, restrooms, lobbies, telephone areas, utility or telephone rooms, parking, sidewalks and other public areas. Lessee shall not use any method of heating or air- conditioning, other than that supplied by Lessor, without Lessor's prior written consent. In no event shall Lessor be liable for any interruption or failure in the supply of any such Services to Lessee. Lessor in no way warrants the adequacy of any existing utility systems serving the Premises. Lessor reserves the right to charge Lessee for use of Services which exceed the amount required for use of the Expansion Space for general commercial purposes, the defined scope of the Services, or otherwise exceed any limits established in this Lease, and Lessee shall pay such sums to Lessor as a component of Additional Rent. (2) Lessee Utility Costs. Lessee shall pay Lessee's Share of Services associated with the Expansion Space. Lessor has the right (but not the obligation) to implement method(s) (which may or may not include installation of sub-meters or separate meters at Lessee's sole cost and expense) to determine Lessee's usage of any Services ("Usage Measures"). Lessee shall pay to Lessor upon demand the costs thereof at the rates charged by supplying companies, together with the cost of any Usage Measures (including implementation, installation, maintenance and repair thereof), and any costs incurred by Lessor in keeping account of or determining such Services; all such costs and charges shall be a component of Rents under the Original Lease. All allocations and other elections or determinations related to Services shall be made by Lessor in its sole discretion.
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(3) Exculpation of Liability. Lessor shall not be liable for any loss or damage suffered by Lessee or others, by reason of Lessor's failure to furnish any of the Services, or furnishing reduced Service, no such failure or reduction shall constitute or be construed as a constructive or other eviction of Lessee, nor shall Lessor be liable for loss of business or injury to property however occurring, through or in connection with or incidental to such failure to furnish or reduction of any of the Services. Should Lessor elect to provide a security patrol or system, Lessor shall not be responsible for any damage or injury to Lessee, Lessee's officers, agents, employees, independent contractors, invitees, customers, visitors, licensees, assignees or sublessees (individually and collectively, "Lessee's Parties"), or the Premises or property due to failure, action or inaction of such patrol or system. Lessor reserves the right to stop Services when necessary, by reason of accident or emergency or for inspection, repairs, alterations, decorations, additions or improvements which, in the judgment of Lessor, are desirable or necessary to be made, until same shall have been completed, and shall further have no responsibility or liability for failure to supply any Services in such instance. Lessor shall use reasonable efforts to minimize the inconvenience to Lessee from such disruptions or interruptions of Services and shall provide Lessee with reasonable notice of such disruptions or interruptions to the extent that Lessor is aware of or has been provided with advance notice of the disruptions or interruptions. The exculpation of liability under this Section 3(b)(3) shall not apply to the extent claims are caused by Lessor's sole or active negligence or willful misconduct.
(4) No Representation. Lessor makes no representation with respect to the adequacy or fitness of the heating, air conditioning or ventilation equipment in the Building to maintain temperatures which may be required for, or because of, any equipment of Lessee other than normal fractional horsepower office equipment, and Lessor shall have no liability for loss or damage suffered by Lessee or others in connection therewith.
(5) Conservation and Use Policies. In the event of imposition of federal, state, or local governmental controls, rules, regulations, or restrictions on the use or consumption of energy or other utilities during the Term, both Lessor and Lessee shall be bound thereby. In the event of a difference in interpretation by Lessor and Lessee of any such controls, the interpretation of Lessor shall prevail, and Lessor shall have the right to enforce compliance therewith, including the right of entry into the Premises to effect compliance." Section 5. Use of the Expansion Space
Section 5, "USE OF PREMISES," of the Original Lease is hereby amended by appending a new fourth paragraph thereto to read as follows:
"The approximately 770 square feet portion of the Premises formerly occupied by the San Francisco Fire Credit Union (the "Expansion Space") shall be used for community programming, including, but not limited to, art education, community IRV #4857-7061-7168 v3
:
neeting space, and small workshops, subject to any applicable or require pprovals from the City of Pacifica.
Section 6. Notices
A new Section 21 is hereby added to the Original Lease to read as follows:
"21. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to Lessor addressed as follows:
City of Pacifica
Attention: Director, Parks, Beaches & Recreation Department 540 Crespi Drive
Pacifica, CA 94044
And to Lessee addressed as follows:
Lessee's Notice Address:
Art Guild of Pacifica
Attention: President
1220-B Linda Mar Boulevard
Pacifica, CA 94044
Notices may be served upon Lessee in person or by first class mail or by certified mail to Lessee whether or not said mailing is accepted by Lessee. If notice is sent via facsimile, a signed, hard copy of the material shall also be mailed. The workday the facsimile was sent shall control the date notice was deemed given if there is a facsimile machine generated document on the date of transmission. A facsimile transmitted after 1:00 P.M. on a Friday shall be deemed to have been transmitted on the following Monday. These addresses shall be used for service of process."
Section 7. Alterations
The Expansion Space is being leased to Lessee in its current, existing, "as is" condition.
Any improvements or alterations constructed by Lessor or Lessee or on Lessee's behalf therein are referred to in this Amendment as "Improvements." Lessee is familiar with the existing condition of the Property, Premises, and any Improvements, and acknowledges that Lessor has made no representation or warranty regarding the condition of the Improvements, Premises, Property, or any portion thereof, except as specifically stated in this Amendment.
Section 7. Relocation Waiver
Lessee fully releases and discharges Lessor (in its capacity as Lessor and otherwise as a municipal corporation) from all and any manner of rights, demands, liabilities, obligations, IRV #4857-7061-7168 v3
claims, or cause of actions, in Law or equity, of whatever kind or nature, whether known or unknown, whether now existing or hereinafter arising, which arise from or relate in any manner to the sale of the Property, the Building, or the Premises; the full or partial termination or expiration of Lessee's leasehold interest as permitted under this Lease; or the relocation of Lessee's business operations or the relocation of any person or persons, business or businesses, or other occupant or occupants located on the Premises including, without limitation, the specific waiver and release of any right to any relocation benefits, assistance and/or payments under Government Code sections 7260 et seq. ("Relocation Assistance Law"), notwithstanding that such relocation assistance, benefits and/or payments may be otherwise required under the Relocation Assistance Law or other state or federal law. Lessee acknowledges and agrees that the release and waiver set forth in this Section 7 is material consideration for Lessor's lease of the Premises to Lessee on the terms set forth herein and that, but for this release and waiver, Lessor would not have leased the Premises to Lessee. It is hereby intended that the above release relates to both known and unknown claims that the Lessee may have, or claim to have, against the Lessor with respect to the subject matter contained herein or the events relating thereto. By releasing and forever discharging claims both known and unknown which are related to or which arise under or in connection with the items set out above, the Lessee expressly waives any rights under California Civil Code section 1542, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
Section 8. Brokers
Lessee warrants that it has had no contact, dealings or communications with any real estate brokerage firm or agent or other person who can claim a right to a commission or finder's fee in connection with the negotiation of this Amendment and that no real estate commissions or finder's fees are payable in connection herewith. Lessee shall indemnify, defend and hold Lessor harmless from all expenses, claims, damages (including a reasonable attorney's fee and costs) Section 9. Miscellaneous
Except as amended or modified herein, all the terms of the Original Lease shall remain in full force and effect and shall apply with the same force and effect to the Expansion Space as to the remainder of the Premises. Submission of this instrument for examination or signature by Lessee does not constitute an offer to lease or a reservation of or option to lease. Lessor shall not be bound by this Amendment until Lessor has executed and delivered this Amendment to Lessee, notwithstanding Lessee's execution and delivery of this Amendment to Lessor. Time is of the essence in this Amendment and the Lease and each and all of their respective provisions.
Subject to the provisions of the Lease as to assignment, the agreements, conditions and provisions herein contained shall apply to and bind the heirs, executors, administrators, successors and assigns of the parties hereto. If any provisions of this Amendment or the Lease shall be determined to be illegal or unenforceable, such determination shall not affect any other provision of the Lease and all such other provisions shall remain in full force and ettect. The language in all parts of the Lease shall be construed according to its normal and usual meaning and not strictly for or against either Lessor or Lessee. Neither this Amendment, nor the Original Lease, nor any notice nor memorandum regarding the terms hereof, shall be recorded by Lessee.
Any such unauthorized recording shall give Lessor the right to declare a breach of the Lease and pursue the remedies provided for the therein.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.
LESSOR:
CITY OF PACIFICA
By:
Name:
Its:
LESSEE:
ART GUILD OF PACIFICA
Name: Lingtro Morales
President
By:
Name: Misha Flores
Its: Secretary
[Attach exhibits A, B and C]
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EXHIBIT A
LEGAL DESCRIPTION
Real property in the City of Pacifica, County of San Mateo, State of California, described as follows:
Assessors Parcel No. 0232-811-30
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EXHIBIT B
PROPERTY AND PREMISES DEPICTION
PACIFICA CENTER FOR THE ARTS
Art Guild/Art Center
1220B Linda Mar Bid.
Area A
SUBASEA:
GUILD!
WEST WING GALLERY
GALLERY 1N
Not Leased to Art Guild
PACIFICA
PERFORMANCES
AREA B CONCERT
HALL
City of
S.J.P. Steve Pacifica
Storage
Johnson
Photo.
Steve Steve Credit
SJ.P. Union
Johnson Johnson
Photo. Photo.
AREA C
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EXHIBIT C
RENT SCHEDULE
(PACIFICA CENTER FOR THE ARTS AKA SANCHEZ ART CENTER)
Base Rent Adjustment Date Base Rent Expansion Space Rent Base + Expansion January 1, 2021 $2,007.00
January 1, 2022 $2,057.00
January 1, 2023 $2,109.00 $77.00 $2,186.00
January 1, 2024 $2,161.00 $79.00 $2,240.00
January 1, 2025 $2,215.00 $81.00 $2,296.00
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