FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN THE CITY OF PACIFICA AND
PACIFICA PERFORMANCES
THIS FIRST AMENDMENT TO LEASE (this “First Amendment”) is made and entered into as of November XX (the “Effective Date”), by and between the CITY OF PACIFICA, a municipal corporation of the State of California (“City” or “Landlord”), and PACIFICA PERFORMANCES, a California non-profit corporation (“Tenant”). The City and Tenant shall be collectively referred to as “Parties”.
RECITALS
A. City is the owner of certain property formerly known as the Sanchez Elementary School, located at 1220 Linda Mar Boulevard, Pacifica, California 94044, APN #:023-281-130 (“Property”).
B. Pursuant to that certain Lease Agreement entered into as of March 22, 2021 (the “Lease”), City currently leases to Tenant and Tenant leases from City a portion of the Property consisting of approximately 4,000 square feet, comprised of a multipurpose room, commonly referred to as a Concert Hall, a kitchen, restrooms and an administrative office hereinafter referred to as the “Premises,” as described in Exhibit A of the Lease.
C. The Term of the Lease expires on December 31, 2025.
D. The City and Tenant desire to amend the Lease to extend the Term of the Agreement for an additional one year term with four (4) one-year Renewal Terms.
E. The City and Tenant also desire to adjust the Lease terms to increase the Base Rent to $4,565 per year and to require payment of utilities, water and garbage at a fixed rate of $4,440 per year for a combined annual rate of $9,005 per year, with a 2.5% annual increase applied to Base Rent on and after January 1, 2027.
F. Tenant will continue to pay the City twenty-five (25%) of all Rents received by Tenant through the subleases.
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, the City and Tenant agree as follows:
1. Amendment to Lease. The Parties agree that the sections of the Lease Agreement identified below shall be amended as set forth herein.
a. Section 2-Term. Section 2, “Term” shall be amended to read as follows:
“A. The term shall commence on January 1, 2026 and shall be for a period of one (1) year (“Initial Term”), with four, one year options for renewal of the Initial Term (“Renewal Term”) expiring on December 31, 2030.
B. Tenant is given the option to extend the term on all provisions contained in this Agreement by giving written notice of Tenant’s exercise of the option for renewal (“Option Notice”) to City. For any Renewal Term, the Tenant shall provide the Option Notice at least six (6) months prior to the expiration of the Renewal Term in order to exercise its option for renewal. Provided that, if Tenant is in default on the date of giving the Option Notice, the Option Notice shall be totally ineffective and this Agreement shall
expire and not renew or if Tenant is in default on the date the Renewal Term is to commence, the Renewal Term shall not commence and this agreement shall expire at the end of the initial Term. If Tenant fails to give the Option Notice for any Renewal Term in a timely manner, Tenant shall lose the ability to exercise its option for renewal. The City Manager may, at his or her sole discretion, waive such failure to provide the Option Notice in a timely manner.”
b. Section 3-Rent and Reporting. Section 3, “Rent and Reporting” shall be amended to read as follows:
“A. Tenant shall pay to City Base Rent for the Premises at the rate of Four Thousand Five Hundred Sixty-Five Dollars ($4,565) (“Base Rent”) per year. Base Rent shall be paid in monthly installments of Three Hundred Eighty Dollars and 42 cents ($380.42) commencing on January 1, 2026 and on the first day of each calendar month thereafter. On January 1, 2027 (the “Adjustment Date”), and on each anniversary of the Adjustment Date, the Base Rent shall increase by two and one-half percent (2.50%).
B. On January 1, April 1, July 1 and October 1 of each calendar year, Tenant shall pay to City twenty five (25%) of all rents received by Tenant from sublessees for the preceding calendar quarter. For purposes of this provision, the term “rents” means money received by Tenant from sublessees for rental of the Premises. “Rents” does not include money received by Tenant for use of Tenant's personal property, including but not limited to, Tenant's sound system, piano, and sound engineer services. Tenant shall provide City with an accounting of each item of personal property for which Tenant received money for use of Tenant’s personal property and the amount received for the use of said personal property at the same time Tenant submits financial reports to the City pursuant to the requirements of section C.
C. Commencing upon January 1, 2026, Tenant shall submit semi-annual (six months) written financial reports by February 1 and August 1 of each calendar year to the City’s Finance Director in a format designated by the Finance Director. These reports shall include, at a minimum, a balance sheet and income statement, a separate accounting of ticket sales, income from sublessees, money received from sublessees for the use of Tenant’s personal property and costs and status reports of building maintenance expenditures incurred by Tenant and such other information as may be required by the Finance Director. City has the right to inspect, review and audit Tenant’s books and financial documents during City business hours.
D. Tenant shall provide annual written proof by December 31 of each calendar year to City of Tenant’s nonprofit status pursuant to Internal Revenue Code 26 U.S.C. Section 501(c)(3).
E. All payments due under this Agreement shall be made without demand, deduction or offset and shall be paid in cash, check or money order to the City of Pacifica, Attention: Finance Director, 170 Santa Maria Avenue, Pacifica, CA 94044.”
c. Section 4-Utilities. Section 4, “Utilities shall be amended to read as follows:
“Tenant agrees that Tenant shall be responsible for the payment, prior to delinquency, of electricity, water and sewer service utilities (“Utilities”) to the City. Tenant shall pay a fixed rate of Four Thousand Four Hundred Forty Dollars ($4,440) per year, in addition to the Base Rent (“Utility Payment”). The Utility Payment shall be paid in monthly installments of Three Commented [A1]: The monthly rent works out to 4 cents
more than 4,565.
Hundred Seventy Dollars ($370) commencing on January 1, 2026 and on the first day of each calendar month thereafter.
Tenant shall pay said Utility Payment at the same time and in the same manner as the Base Rent. All other utilities obtained directly by Tenant including but not limited to, internet, television cable, and telephone services, shall be Tenant's sole responsibility and shall be paid directly by Tenant to the utility provider.”
2. Miscellaneous.
2.1 The Lease and this First Amendment 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.
2.2 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 First 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 First Amendment.
2.3 Submission of this First Amendment by the City is not an offer to enter into this First Amendment but rather is a solicitation for such an offer by Tenant. The City shall not be bound by this First Amendment until Landlord has executed and delivered the same to Tenant.
2.4 Tenant hereby represents to the City that Tenant has dealt with no broker in connection with this First Amendment. Tenant agrees to indemnify and hold City and the City Entities harmless from all claims of any brokers claiming to have represented Tenant in connection with this First Amendment.
2.5 This First 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 First Amendment. All provisions of the Lease that are affected by this First Amendment shall be deemed amended regardless of whether or not specified in this First Amendment. In the case of any inconsistency between the provisions of the Lease and this First Amendment, the provisions of this First Amendment shall govern and control.
2.6 Each signatory of this First 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.
2.7 Pursuant to California Civil Code Section 1938, the City, as landlord, hereby notifies Tenant that as of the date of this First 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 Rents within ten (10) days following Landlord’s demand.
2.8 This First 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 First 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, the City and Tenant have entered into and executed this First Amendment as of the Effective Date.
CITY:
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:
PACIFICA PERFORMANCES, a California non-profit
corporation
By:
Its:
By:
Its: