407834.4
ATTACHMENT 1
FIRST AMENDMENT
TO
SENIOR CENTER LEASE
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Barstow
Attn: Barstow City Clerk
220 East Mountain View Street, Suite A
Barstow CA 92311
RECORDING FEE EXEMPT
PURSUANT TO GOVERNMENT CODE
SECTION 27383
(Space Above Line For Recorder’s Use)
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the “Amendment”) to that certain Lease Agreement (the “Lease”) effective January 23, 2023 and recorded by the San Bernardino Assessor-Recorder-County Clerk as DOC #2023-0027579, is made as of __________, 2026 (the “Effective Date”), between the CITY OF BARSTOW (“City” or “Lessor”), a California Municipal Corporation, and the Barstow Senior Citizen Center, a California Nonprofit Corporation, having its principal place of business at 555 Melissa Avenue, Barstow, CA 92311(“Lessee”) (with the “Lessor” and “Lessee” constituting the “Parties” and each, “Party”).
RECITALS
A. WHEREAS, the Parties entered into that certain Lease Agreement effective January 23, 2023 and recorded by the San Bernardino Assessor-Recorder-County Clerk as DOC #2023-0027579 for the lease of the property located at 555 Melissa Avenue, Barstow, California (the “Premises”), as more particularly described in the Lease.
B. WHEREAS, the Parties desire to amend the Lease to allow alcohol to be served and consumed under certain conditions and related changes; and DRAFT – NOT FINAL UNTIL APPROVED BY SENIOR CENTER & CITY 401717.8 2 of 8
C. WHEREAS, the Parties also desire to amend the Lease to reflect that as of the Effective Date, Leasor will pay a portion of the utilities, subject to certain conditions.
AGREEMENT
1. AMENDMENTS. For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee agree to amend the Lease as follows:
A. Section 3 (“Term”) shall be amended and restated to read as follows:
3. TERM. The term of this Lease shall be ten (10) years commencing on November 17, 2022 hereinafter called the Date of Commencement, and ending on November 16, 2032; provided, however, Lessee shall have the right to terminate this Lease at any time for any or no reason by first giving sixty (60) days prior written notice to City. City shall also have the right to terminate said Lease any time for any or no reason by first giving sixty (60) days prior written notice to the Lessee.
B. Section 7 (“Building Maintenance and Repair Charges”) shall be amended and restated to read as follows:
7. BUILDING MAINTENANCE AND REPAIR CHARGES. City shall
be responsible for all repairs and modifications to the Premises. Lessee is prohibited from modifying the Premises in any way, unless approved in writing by the City. Lessee may, at its sole cost and expense, make minor improvements to the Premises, with City’s prior written consent. Minor modifications are limited to:
a. Interior painting and wall coverings;
b. Installation of removable fixtures, shelving, or displays; c. Installation of signage in compliance with building standards; and d. Floor coverings (carpet, vinyl, etc.) that do not require structural modifications.
All Minor Modifications must comply with all applicable federal, state, and local laws, codes, ordinances, and regulations; performed by licensed contractors where required by law; and not affect the structural integrity of the building or building systems DRAFT – NOT FINAL UNTIL APPROVED BY SENIOR CENTER & CITY 401717.8 3 of 8
(HVAC, plumbing, electrical distribution, fire and life safety).
Lessee shall pay for the City to repair any damage or injury to the Premises caused by neglect or misuse by Lessee, Lessee’s employees, agents, visitors, invitees, volunteers or licensees. Lessee agrees to take good care of the Premises and of all improvements, alterations, fixtures, and appurtenances thereon and thereto, and to give prompt notice to the Lease Administrator of any damage to same.
Lessee will promptly notify the City of any damage, or of any situation that may significantly interfere with the normal use of the Premises.
Lessee will comply with standards of health, sanitation, fire, housing, and safety as required by law. Lessee shall maintain Premises in a safe and clean condition, free from waste or nuisance.
Lessee will not keep or have on the premises any article or thing of a dangerous, flammable, or explosive character that might unreasonably increase the danger of fire.
C. Section 8 (“Insurance”) shall be amended and restated to read as follows:
8. INSURANCE. Lessee shall, during the term of this Lease, keep or cause to be kept policies of insurance which will fully protect the Premises. Lessee shall submit to the City's Risk Manager on or before the Date of Commencement, Certificates of Insurance evidencing that Lessee has obtained the required insurance from generally recognized responsible insurers in the following forms of coverage and minimum amount specified:
a. Commercial General Liability Insurance. The policy must be written on an "occurrence basis" and in an amount of not less than $2,000,000 each occurrence. The insurer issuing the insurance policy must be admitted to do business in California.
b. Fire and Extended Coverage. The policy is to provide coverage against loss or damage to the Premises resulting from fire, lightning, vandalism, malicious mischief and such perils ordinarily defined as "extended coverage" including DRAFT – NOT FINAL UNTIL APPROVED BY SENIOR CENTER & CITY 401717.8 4 of 8
flood but not earthquake. Such insurance shall be maintained in an amount of not less than 90% of the full replacement value subject to a deductible clause not to exceed $1,000.00.
The required Commercial General Liability policy shall name City as an "additional insured".
The required Fire and Extended Coverage policy shall name City as "loss payee".
Each policy of insurance shall contain the following clause:
"It is agreed that this policy shall not be cancelled nor the coverage reduced until thirty (30) days after City's Lease Administrator or his/her designee shall have received written notice of such cancellation or reduction. The notice shall be deemed effective on the date delivered to said Lease Administrator or his/her designee as evidenced by properly validated return receipt." City shall retain the right at any time to review the coverage, form and amount of insurance required herein, and may require Lessee to obtain insurance sufficient in coverage, form and amount to provide adequate protection against the kind and extent of risk which exist at the time a change in insurance is required.
City requirements shall be reasonable.
c. Liquor Liability Insurance. Lessee must submit proof of liquor liability insurance to the City Manager or designee if alcohol will be served and consumed on the Premises in an amount to be determined by the City Manager or designee.
D. Section 9 (“Use”) shall be amended and restated as follows:
9. USE. Except as otherwise allowed by Section 10, Lessee shall use and occupy the Premises solely as a facility for senior citizen programs and services and other operations directly incidental to Lessee’s business and the management of its operations, including preparation and serving of meals for senior citizens, and recreation, education activities and related services for senior citizens.
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E. Section 10 (“Occupancy”) shall be amended and restated as follows:
10. OCCUPANCY.
a. Except as otherwise allowed herein, the Premises shall be occupied by no one other than the entity listed above and referred to as “Lessee” without prior written consent of the Lease Administrator having first been obtained. b. Lessee may hold special events where alcohol is consumed and served at the Premises if the Lessee obtains a temporary use permits for the event at their own costs in accordance with the Barstow Municipal Code, as amended from time to time, prior to the event. Lessee shall obtain any permits or licensing required by state law to serve alcohol at the Premises, or contract with a vendor who has such permits or licensing and shall provide proof of such permits and licensing with the temporary use permit application. Lessee shall be required to pay the City for the costs of event security provided by the City as a condition of its temporary use permit. c. Lessee may rent or otherwise allow third-party use of the Premises for special events, including where alcohol is consumed and served, only if those third parties obtain a temporary use permit for the special event at their own costs in accordance with the Barstow Municipal Code, as amended from time to time, prior to the event. The Lessee shall confirm that a valid temporary use permit has been issued to such third party prior to allowing the event to occur. i. As used in this subsection, a “special event” means any organized gathering of people on the Premises for a common purpose. A “special event” includes any occasion where the Lessee rents the Premises to a third party.
Examples of “special events” include, but are not limited to: quinceañeras, weddings, retirement parties, birthday parties, concerts, fairs, festivals, community events, and any event where alcohol is served and consumed.
ii. Any damage to the Premises due to special events held onsite by third parties or by Lessee shall be the responsibility of the Lessee to repair and/or replace in accordance with Section 13.
d. Failure to comply with the terms of this section shall be a breach of the Lease.
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F. Section 12 (“Utilities Charge/Utilities”) shall be amended and restated to read as follows:
12. UTILITIES CHARGE/UTILITIES. Lessee shall be responsible for paying all utility services, including sewer, water, gas, telephone and electric service necessary for its use and enjoyment of the Premises and shall pay all services, service charges and installation charges in connection therewith and associated with the entire facility; provided, however, that Lessor shall reimburse Lessee for fifty-seven percent (57%) of utility costs for sewer, water, gas, and electric. Notwithstanding the foregoing, Lessor’s reimbursement obligation shall not exceed $42,000.00 per Lease Year, which amount shall be increased annually by 3%, compounded on each anniversary of the Date of Commencement. For purposes of this section, the first Lease Year shall begin on the Effective Date and end on the following November 16, 2026. Each Lease Year thereafter shall begin on the anniversary of the Date of Commencement and end on the following November 16.
Lessor's reimbursement obligation for the first Lease Year shall be calculated at $3,500 per month from the Effective Date through November 16, 2026 Because the first Lease Year is expected to be approximately nine months, Lessor’s reimbursement obligation for the first Lease Year shall not exceed $31,500, which represents the prorated amount of the $42,000 annual reimbursement cap. Lessee shall submit an invoice inclusive of complete copies of utility bills for which reimbursement is sought on a monthly basis. Lessor reserves the right to challenge any utility bill at any time.
G. Section 18 (“Right of Inspections”) shall be amended and restated to read as follows:
18. RIGHT OF INSPECTIONS.
a. At Any Reasonable Time. City reserves the right for its agents or employees to enter upon and inspect the Premises at any reasonable time to ascertain if the provisions of this Lease are being complied with by Lessee.
b. Annual Inspections. City shall annually inspect the Premises, including by the City Manager, Community Development Director, and Fire Marshal, or their designee(s), for the purposes of:
i. Examining the condition of the Premises and any approved Minor Modifications;
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ii. Verifying compliance with lease terms and applicable laws; iii. Assessing maintenance and repair needs;
iv. Documenting the condition of City’s property; and
v. Ensuring proper use of the Premises in accordance with this Lease.
H. Section 19 (“Indemnification”) shall be amended and restated as follows:
19. INDEMNIFICATION. Lessee shall defend, indemnify, and save harmless the City, its officers, agents, and employees from and against any and all claims, demands, and liabilities for loss of any kind or nature which the City, its officers, agents, or employees may sustain or incur or which may be imposed upon them or any of them for injury to or death of persons or damage to Premises as a result of, arising out of, or in any manner connected with this Lease or with the occupancy and use of the Premises by Lessee, its guests, invitees, visitors, or any other person whatsoever, including, but not limited to any special events held by third parties or any event where alcohol is served and consumed. Lessee further agrees to pay any and all costs and expenses, including but not limited to, court costs and reasonable attorney’s fees incurred by the City on account of any such claims, demands or liabilities.
Lessor shall not be liable to Lessee for any damage to Lessee or the Premises from any cause. Lessee waives all claims against Lessor for damage to persons or the Premises arising for any reason other than the intentional torts or gross negligence of Lessor or its authorized representatives. Lessee, as a material part of the consideration to Lessor, hereby assumes all risk of damage to the Premises or injury to persons in, upon, about, or arising from any cause, including special events held by third parties and the service and consumption of alcohol on the Premises, and Lessee hereby waives all claims in respect thereof against Lessor.
2. NO EXISTING DEFAULTS. Lessor and Lessee represent that there are currently no defaults by either party under the Lease.
3. COUNTERPARTS. This Amendment may be executed in two or more identical counterparts and delivered by facsimile or by .pdf or other comparable electronic format, with the same force and effect as if all required signatures were contained in a single, original instrument.
4. RATIFICATION. All of the terms of the Lease, as amended hereby, are hereby ratified and confirmed.
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5. DEFINED TERMS. Unless otherwise stated, all capitalized words in this Amendment that are not normally capitalized shall have the meaning ascribed in the Lease. As of the Effective Date of this Amendment, all references to the “Lease” shall refer to the Lease as amended by this Amendment.
6. NO OTHER CHANGES. Except as expressly modified by this Amendment, all other terms and conditions of the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties hereto have executed this First Amendment to the Lease as of the day and year first above written.
LESSOR
CITY OF BARSTOW, a municipal corporation
By:
Name:
Its:
LESSEE
By:
Name:
Its:
APPROVED AS TO FORM:
_____________________________
Matthew T. Summers, City Attorney
ATTEST:
_________________________
Andrea Flores, City Clerk