THIRD AMENDMENT TO LEASE
THIS THIRD AMENDMENT TO LEASE (this “Third Amendment”) is made and entered into as of December 9, 2024 (the “Effective Date”), by and between the CITY OF PACIFICA, a municipal corporation of the State of California (“Landlord” or “City”), and PACIFICA SPINDRIFT PLAYERS, a California non-profit corporation (“Tenant”).
RECITALS
A. Landlord is the owner of certain property located at 1050 Crespi Drive, Pacifica, California 94044 (“Property”). Pursuant to that certain Lease Agreement entered into as of January 1, 2015 (the “Lease”), Landlord currently leases to Tenant and Tenant leases from Landlord the building located on the Property (“Building”), an approximately 7,463 contiguous square foot building commonly known as the Pacifica Spindrift Theater, together with Improvements (if any) as described in Section 9.1 of the Lease (collectively, the “Premises”).
B. On October 12, 2020, the Landlord approved the First Amendment to the Lease via Resolution 63- 2020, to amend the terms of the Lease to allow a series of outdoor theatrical readings in the parking lot on the Premises, to be held over eight (8) weekends in August, September and October, 2020.
C. On April 26, 2021, the Landlord approved a Second Amendment to the Lease to allow outdoor theatrical performances (“Outdoor Activity”) in a portion of the parking lot on the Property, as depicted on Exhibit B, attached hereto (the “Temporary Use Area”) during the Covid 19 pandemic.
D. The term of the Lease is set to expire on December 31, 2024, after an initial five-year term and a subsequent five-year extension.
E. The parties desire to amend the Lease to extend the term for an additional five years, with the option of a mutual five-year extension. If exercised, the extension would allow the lease to continue through December 31, 2034.
F. The parties also desire to establish a monthly Base Rent of $1,600, which would include garbage collection services.
G. The Base Rent will increase by 2% annually, as of January 1st of each year commencing on January 1, 2026 until termination of the Lease on December 31, 2030, unless the parties exercise their opt to extend the Lease term.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
1. Termination of Outdoor Activity and Use of Temporary Use Area. As of the Effective Date of this Third Amendment the Outdoor Activity and Tenant’s use of Temporary Use Area shall terminate. All use of the Premises shall be indoors, consistent with the use contemplated in the original Lease Agreement.
2. Term of Lease. The Term of the Lease identified in Section 5 of the Basic Terms of the Lease and Section 2.1 of the Lease Agreement shall be amended from twenty (20) years to twenty-five (25) years commencing as of January 1, 2005
2. Option to Extend. The Term of the Lease may be extended for an additional five (5) years as set forth in Section 2.2 of the Lease.
4. Base Rent Amendments. The Base Rent identified in Section 6 of the Basic Terms and Section of the Lease Agreement shall be increased to $1,600 per month as of January 1, 2025. This increased Base Rent shall include the cost of garbage services. The Base Rent will increase by 2% annually, as of January 1st of each year commencing on January 1, 2026 until termination of the Lease on December 31, 2030, unless the parties exercise their opt to extend the Lease term.
5. Miscellaneous.
5.1 The Lease, First, Second and Third Amendment and any outdoor activity agreement(s) entered into between the parties set forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements. Under no circumstances shall Tenant be entitled to any rent abatement, improvement allowance, leasehold improvements, or other work to the Premises, or any similar economic incentives that may have been provided Tenant in connection with entering into the Lease, unless specifically set forth in this Amendment.
5.2 Except as herein modified or amended, the provisions, conditions and terms of the Lease shall remain unchanged and in full force and effect. The capitalized terms used in this Third Amendment shall have the same definitions as set forth in the Lease, to the extent that such capitalized terms are defined therein and not redefined in this Third Amendment.
5.3 Submission of this Third Amendment by Landlord is not an offer to enter into this Third Amendment but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this Third Amendment until Landlord has executed and delivered the same to Tenant.
5.4 Tenant hereby represents to Landlord that Tenant has dealt with no broker in connection with this Third Amendment. Tenant agrees to indemnify and hold Landlord and the Landlord Entities harmless from all claims of any brokers claiming to have represented Tenant in connection with this Third Amendment.
5.5 This Third Amendment and the Lease shall be construed as a whole in order to effectuate the intent of the parties to amend the Lease in the manner specified in this Third Amendment. All provisions of the Lease that are affected by this Third Amendment shall be deemed amended regardless of whether or not specified in this Third Amendment. In the case of any inconsistency between the provisions of the Lease and this Third Amendment, the provisions of this Third Amendment shall govern and control.
5.6 Each signatory of this Third Amendment represents hereby that he or she has the authority to execute and deliver the same on behalf of the party hereto for which such signatory is acting. Tenant hereby represents and warrants that neither Tenant, nor any persons or entities holding any legal or beneficial interest whatsoever in Tenant, are (i) the target of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S.
Department of the Treasury (“OFAC”); (ii) designated by the President or OFAC pursuant to the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or (iii) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons.” If the foregoing representation is untrue at any time during the Term of the Lease, an Event of Default under the Lease will be deemed to have occurred, without the necessity of notice to Tenant.
5.7 Pursuant to California Civil Code Section 1938, Landlord hereby notifies Tenant that as of the date of this Third Amendment, the Premises have not undergone inspection by a “Certified Access Specialist” (“CASp”) to determine whether the Premises meet all applicable construction-related accessibility standards under California Civil Code Section 55.53. Landlord hereby discloses pursuant to California Civil Code Section 1938 as follows: “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.” Landlord and Tenant hereby acknowledge and agree that in the event that Tenant elects to perform a CASp inspection of the Premises hereunder (the “Inspection”), such Inspection shall be (a) performed at Tenant’s sole cost and expense, (b) limited to the Premises and (c) performed by a CASp who has been approved or designated by Landlord prior to the Inspection. Any Inspection must be performed in a manner which minimizes the disruption of business activities on the Property, and at a time reasonably approved by Landlord. Landlord reserves the right to be present during the Inspection. Tenant agrees to: (i) promptly provide to Landlord a copy of the report or certification prepared by the CASp inspector upon request (the “Report”), (ii) keep the information contained in the Report confidential, except to the extent required by Law, or to the extent disclosure is needed in order to complete any necessary modifications or improvements required to comply with all applicable accessibility standards under state or federal Law, as well as any other repairs, upgrades, improvements, modifications or alterations required by the Report or that may be otherwise required to comply with applicable Laws or accessibility requirements (the “Access Improvements”). Tenant shall be solely responsible for the cost of Access Improvements to the Premises or the Building necessary to correct any such violations of construction-related accessibility standards identified by such Inspection as required by Law, which Access Improvements may, at Landlord’s option, be performed in whole or in part by Landlord at Tenant’s expense, payable as Additional Rent within ten (10) days following Landlord’s demand.
5.8 This Third Amendment may be executed in counterparts, which when taken together shall constitute one and the same instrument. The parties contemplate that they may be executing counterparts of this Third Amendment and transmitting the signatures by facsimile or email. The parties agree and intend that a signature communicated by facsimile or email shall bind the party so signing with the same effect as though the signature were an original signature. [Signatures on following page]
IN WITNESS WHEREOF, Landlord and Tenant have entered into and executed this Third Amendment as of the Effective Date.
LANDLORD:
CITY OF PACIFICA, a municipal corporation of
California
By:
Kevin Woodhouse, City Manager
Approved as to Form
By:
Michelle Marchetta Kenyon, City Attorney
Attest
By:
Sarah Coffey, City Clerk
TENANT:
SPINDRIFT PLAYERS, a California non-profit
corporation
By:
Its:
By:
Its:
EXHIBIT A
APPLICATION AND APPENDIX 1: Proposed Outdoor Activities
EXHIBIT B
TEMPORARY USE AREA
EXHIBIT C
OUTDOOR ACTIVITY AGREEMENT (Sample Form)