23-128 Lease Agreement Hungry Jacks Corp. Blue Pheasant1
LEASE AGREEMENT BETWEEN
THE CITY OF CUPERTINO AND HUNGRY JACKS CORPORATION
FOR PROPERTY LOCATED AT 22100 STEVENS CREEK BOULEVARD
This lease agreement is made on November 7, 2023, by and between the City of
Cupertino ("Landlord"), a municipal corporation of the State of California, and Hungry Jack’s
Restaurant Corporation, a California Corporation whose address for purposes of this Lease is
22100 Stevens Creek Boulevard, Cupertino, California 95014 ("Tenant"). The building to be
leased under the Agreement (“Building”) consists of 6,800 square feet and is commonly known
as "The Blue Pheasant Restaurant" and is more particularly described as 22100 Stevens Creek
Boulevard, City of Cupertino, County of Santa Clara, State of California. Landlord and Tenant
shall each be a “Party” and shall be collectively referred to as the “Parties.”
RECITALS
A. On April 7, 2004 Tenant assumed a lease for the Building for the purpose of
operating the Blue Pheasant Restaurant.
B. On April 1, 2009, the Parties agreed to extend the lease through March 31, 2013.
C. On July 3, 2013, the Parties agreed to a new lease for the term June 30, 2013
through June 30, 2018.
D. On June 27, 2018, in the First Amendment to Lease Agreement, the Parties agreed
to extend the lease term through June 30, 2021.
E. On September 29, 2020, in the Second Amendment to Lease Agreement, the
Parties agreed to adjust the rent for the Building in consideration of restrictions on indoor dining
as a result of the COVID-19 pandemic.
F. The lease expired on June 30, 2021, but City and Tenant have continued Tenant’s
leasing operations on a month-to-month basis under the terms and provisions of the Lease, with
monthly rent at first following the provisions of the Second Amendment to the Lease Agreement,
and then at a rate consistent with the Base Rent, without the one and one-half increase in the
Base Rent.
G. Tenant and Landlord wish to enter into a new lease for the continued use of the
Building as a restaurant and bar. The new lease (“Lease”) shall replace and supersede all prior
leases for the Building between the Parties. On the effective date of this Lease, all prior leases
shall be terminated and of no further force or effect.
NOW THEREFORE, in consideration of the terms, covenants, and conditions set forth
below, the Parties agree as follows:
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1. DESCRIPTION OF THE PREMISES TO BE LEASED
Landlord leases to Tenant and Tenant leases from Landlord a portion of the Building
designated for use as a restaurant commonly known as the "Blue Pheasant," including the
kitchen, bar, banquet room, the furniture, fixtures, and equipment (“FF&E”) attached to the
Building listed in Exhibit A, and the non-exclusive use of ninety two (92) parking spaces in the
City’s parking lot adjacent to the Building (collectively, the “Premises”) as depicted in Exhibit
B. The Premises excludes Landlord’s real property consisting of the Blackberry Farm Golf
Course and the area of the Building designated and used by Landlord as a golf professional shop
and restroom.
2. LEASE TERMS
a. Initial Term. This Lease shall commence on December 1, 2023 and end on
November 30, 2025, unless otherwise terminated under the provisions of this Lease (“Initial
Term”).
b. Extension Periods. Upon agreement of Landlord and Tenant, the term of this
Lease may be extended for up to three periods of one (1) year each (each an “Extension Term”)
on the same terms, covenants, and conditions as this Lease, excluding only the COVID-19 Rent
Adjustment as defined in Section 3.a. To extend the Lease term for an Extension Term, Tenant
shall give Landlord written notice of its request for an extension (“Extension Notice”) at least
ninety (90) days but not more than one hundred eighty (180) days before the expiration of the
previous term. If Tenant is in default under this Lease at the time of the Extension Notice or on
the date of commencement of the Extension Term, Landlord, in its sole and absolute discretion,
may declare the Extension Notice void, decline to extend the Lease for the Extension Term, and
terminate the Lease. If Landlord terminates the Lease, Tenant shall immediately surrender
possession of the Premises to Landlord. Landlord’s approval of the Extension Term shall be in
Landlord’s sole and absolute discretion. Landlord shall review the Extension Notice and approve
or deny the request for the Extension Term within sixty (60) days after receipt of the Extension
Notice. During any Extension Term, either Party, in its sole and absolute discretion, may
terminate the Lease by providing six (6) months written notice to the other Party. The Initial
Term and any Extension Terms shall each be a “Term” of this Lease and shall be collectively
referred to as the “Terms.”
3. RENT
In consideration for the lease of the Premises, Tenant shall pay Landlord as follows:
a. Base Rent. Tenant shall pay to Landlord a monthly base rent, without deduction
or setoff, in the amount of six thousand seven hundred fifteen dollars ($6,715.00) commencing
December 1, 2023 (“Base Rent”). The Base Rent has been reduced by $160 per month to off-set
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charges from public utilities Tenant pays each month attributable to the Blackberry Farm Golf
Course restroom located in the Building under Section 7.b of this Lease, as referenced in the
Release of Claims between Tenant and Landlord dated June 12, 2019. As consideration for the
offset in Base Rent, Tenant shall continue to pay all utility charges for the Building under
Section 7.b and agrees to discharge Landlord, its agents, employees, successors, and assigns
from any and all bills, claims, demands, lien, or other expenses arising from utility charges for
the Blackberry Farm Golf Course restroom during the Terms. Base Rent shall be payable in
advance on or before the first day of each month without notice or demand of any kind by
Landlord. If Base Rent is not paid within ten (10) days after the due date, Base Rent is deemed
late and delinquent and Landlord shall assess a late charge of $250 plus interest at the legal rate
on the delinquent amount as additional rent.
b. Percentage of Gross Sales. In addition to Base Rent, Tenant shall pay to Landlord
not later than April 30 of each year an amount equal to six percent (6%) of the amount of
Tenant's gross receipts from sales (“Gross Sales”), as defined below, made in, out, through, or
from the Premises during each prior calendar year commencing January 1, 2023 during each
month of the Terms of this Lease (“Percentage Rent”). Tenant shall submit a copy of its annual
tax return to Landlord with Tenant’s annual Percentage Rent payment. If Tenant’s annual tax
return has not been filed by April 30 of any year, Tenant shall pay Landlord the Percentage Rent
for the prior year on April 30 based on Tenant’s computation of its Gross Sales from Tenant’s
available books and records. Tenant and Landlord shall make any adjustments to the Percentage
Rent payment after Tenant files its tax return. Tenant shall pay Landlord the Percentage Rent for
any portion of the calendar year in which a Term expires or is terminated not later than sixty (60)
days after the Lease term expires or is terminated based on Tenant’s computation of its Gross
Sales from Tenant’s available books and records. The Parties shall make any adjustments to the
Percentage Rent payment after Tenant files its tax return for the tax year in which the Term
expires or is terminated. Tenant may elect to pay Percentage Rent monthly.
"Gross Sales" as used in this lease agreement means the sales price of all food, sundry
food items, nonalcoholic and alcoholic beverages, and other commercial items sold and the
charges made for all services performed in which a charge is made by Tenant or its subtenants in
or upon any part of the Premises, whether for cash or on credit, whether paid or unpaid, collected
or uncollected, less all credits for returned merchandise, exchanges, refunds, and allowances.
The amount of sales tax or excise tax based on sales imposed by any governmental taxing
authority shall be excluded from gross sales.
Landlord’s acceptance of any Percentage Rent payment from Tenant shall not be an
admission of the accuracy or sufficiency of the amount of the payment, and Landlord shall be
entitled at any time within five (5) years after the receipt of any Percentage Rent to question the
sufficiency of the amount of the payment or the accuracy of any statement or statements
furnished by Tenant to justify the amount or amounts paid.
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c. Books and Records. Tenant shall keep complete and proper books, records, and
accounts of Gross Sales both for cash and on credit of each separate department and concession
at any time operated on the Premises, including all federal, state, and local tax returns relating to
the determination of gross receipts. Tenant shall keep such books, records, and accounts on the
Premises or at its principal office for a period of not less than seven (7) years following the end
of each lease year. Landlord and Landlord's authorized representatives shall have the right to
examine Tenant's records during regular business hours.
Landlord may, once in any calendar year, cause an audit of Tenant’s business to be made
by a certified public accountant selected by Landlord. If the statements of Gross Sales previously
made by Tenant to Landlord are found to be less than the amount of Tenant's Gross Sales as
shown by the audit, Tenant shall immediately pay the cost of the audit as well as the additional
Percentage Rent shown in and by the audit to be due Landlord; otherwise, the cost of the audit
shall be paid by Landlord. If Tenant shall at any time cause an audit of Tenant's business to be
made by a certified public accountant, Tenant shall furnish Landlord with a copy of the audit
without any cost to Landlord.
d. Address for Payments. All payments of Base and Percentage Rent shall be
submitted to the City of Cupertino, Attention Finance Department, 10300 Torre Avenue,
Cupertino, California 95014.
e. Guaranty Agreement. Tenant’s principle Michael Tsachres shall execute the
Guaranty Agreement attached as Exhibit C personally guaranteeing payment of all sums due
Landlord under the Lease. Tenant shall deliver the executed Guaranty Agreement to Landlord
prior to the start of the Initial Term.
f. Survival of Rent Obligations. Tenant’s obligations to pay Landlord Base and
Percentage Rent and additional rent provided herein shall survive the expiration or termination of
the Lease.
4. HOLDING OVER
If Tenant remains in possession of the Premises with Landlord’s consent after the
expiration of a Term, such possession by Tenant shall be construed to be a tenancy from month
to month, terminable on thirty (30) days’ notice given at any time by either Party. The same
terms and conditions contained in this Lease shall apply to any month-to-month tenancy,
provided that the new Base Rent shall be one and one-half times the Base Rent as defined in
Paragraph 3.a of this Lease.
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5. USE OF THE PREMISES; OPERATION
a. Use. Tenant shall continuously use and occupy the Premises exclusively as a
restaurant and bar with parking which shall be open to the general public. Tenant shall not use or
permit the use of the whole or any part of the Premises for any other purpose without the
Landlord’s prior written consent.
b. Compliance with zoning regulations. Tenant’s use of the Premises shall be
consistent with the rules and regulations of Landlord's PR (“Public Recreation”) zoning district
as set forth in Cupertino Municipal Code Sections 19.84 and 19.92.
c. Operating Hours. Tenant shall ensure compliance with the following requirements
for operating hours:
(1) Doors to the restaurant and bar shall close at eleven o’clock in the evening (11 p.m.)
and no persons shall be allowed into the Premises after that time.
(2) No alcohol shall be served after eleven thirty in the evening (11:30 p.m.).
(3) All music shall stop no later than twelve midnight (12 a.m.).
(4) The parking lot on the Premises shall be cleared of restaurant patron vehicles no later
than twelve-thirty in the evening (12:30 a.m.). Restaurant staff and security may park vehicles in
the parking lot after 12:30 am if working on the Premises.
d. Penalties for Failure to Enforce Operating Hours. If Landlord, Landlord’s
representatives, or Deputy County Sheriffs observe Tenant’s violation of the limits on operating
hours in Section 5.c, Landlord shall give written notice to Tenant of the date, time, and manner
of the violation. Within fifteen (15) days after Landlord’s notice of violation, Tenant shall pay to
Landlord the following penalties:
(1) First violation in a twelve-month period: two hundred dollars ($200.00);
(2) Second violation in a twelve-month period: four hundred dollars ($400.00); and
(3) Third and subsequent violations in a twelve-month period: one thousand dollars
($1000.00) for each violation.
e. Post Notice of Operating Hours. Tenant shall post its hours of operation at the
main entrance to the Premises in a manner that will give reasonable notice of its operating hours
to prospective customers.
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f. Security during operating hours. Tenant shall provide one security guard to patrol
the Premises during all operating hours and ensure that trash and litter is removed from the
Premises parking lot upon closure each day.
g. Shared Use of Parking Lot. Tenant acknowledges that it does not have exclusive
use of the parking lot adjacent to the Building and that all spaces in the lot shall be available to
all persons on a first-come, first-served basis. Landlord shall not be liable in any manner for any
inconvenience, disturbance, loss of business, other damage arising out of availability of the first-
come, first-served parking spaces.
6. LANDLORD'S OBLIGATIONS
Landlord shall, at its sole expense, keep, maintain, and repair the exterior walls and roof
of the Building and the parking lot (“Exterior”). Landlord may commence any such maintenance
or repair by giving Tenant five days’ written notice. Should Landlord’s maintenance or repair of
the Exterior temporarily prevent Tenant from operating its restaurant and bar, one hundred
percent (100%) of the Base Rent shall be abated during that temporary period.
7. TENANT'S OBLIGATIONS
a. Renovations and Improvements. Tenant shall not undertake any construction on
the Premises without Landlord’s consent. All alterations, improvements, or additions that are
now or in the future attached permanently to the Premises shall be the property of Landlord and
remain with the Premises at the termination of this Lease, except that Landlord may require
Tenant, at Tenant’s cost, to remove any alterations, improvements, or additions Tenant has made
to the Premises.
b. Utility payments. Tenant shall pay, as they become due, all charges for water,
heat, electric, gas, garbage, and all other utilities furnished to, or consumed on the Premises for
the maintenance, use, and operation of the Premises during a Term (including any holding-over),
including utility charges for the Blackberry Farm Golf Course restrooms, as referenced in
Section 3.a. Tenant shall retain all receipts for payment of utility charges for three (3) years after
payment. Upon request of the Landlord, Tenant shall produce receipts showing the payment of
said utilities. Tenant’s obligation to retain receipts for utility charges shall survive the expiration
or termination of this Lease.
c. Refuse collection. Tenant shall arrange for refuse collection services by the City
of Cupertino and shall reserve a parking space for pick-up of refuse on collection days scheduled
by the City's refuse collection franchise.
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d. Actions Affecting Insurance Rates. Tenant shall not do or permit anything to be
done in or about the Premises, nor store anything therein, which would in any way increase the
rate of fire insurance on the Premises.
e. Property Taxes and Assessments. Tenant shall pay, when due, all possessory
interest Property taxes and special assessments imposed on the Premises by any public entity
during a Term.
f. Premises Maintenance. Tenant shall, at its own expense, maintain and keep in
good repair all interior portions of the Premises in a clean, safe, and sanitary condition,
including, without limitation, all fixtures, interior walls, floors, painting, ceilings, plumbing, air
conditioning and heating equipment, elevator for disabled persons, freezers, ventilation ducts,
kitchen equipment and appliances, garbage disposal equipment, grease traps, stairs separating the
first and second floors, restroom facilities. rodent control, glass, water lines, electric service, and
sewage facilities servicing the Premises (collectively, “Interior”), and shall keep the Interior and
Exterior reasonably free and clean of all debris, trash, and rubble. Tenant’s responsibility for
maintenance of the Premises includes the following specific tasks:
(1) Clean on a daily basis the grease deposit units located under the canopy and outlet
flues above all grill installations.
(2) Contract with a licensed commercial cleaning service to clean the hood and
ventilation ducts and equipment above all grills, at least once every six month.;
(3) Service the automatic fire extinguisher located above all grills and provide for the
maintenance and inspection of all fire extinguishers on the Premises in compliance with the Fire
Code and other applicable local ordinances and regulations.
Landlord retains and reserves the right to inspect the Premises to insure that Tenant’s
maintenance and repairs of the Premises are satisfactory. All repairs of and improvements to the
Premises are subject to prior written approval by Landlord.
g. Repairs on Demand by Landlord. Tenant shall make all required repairs of the
Interior upon written demand by Landlord based on Landlord’s inspection. Failure to make such
repairs within thirty (30) days after Landlord’s written demand shall constitute a default by
Tenant.
h. Compliance with Laws. Tenant shall, at its sole expense, remain in compliance
with all local, state, and federal laws and ordinances concerning the Premises, the occupancy and
use thereof, and the business conducted therein. Should Tenant violate any laws and ordinances,
Landlord may, but shall not be obligated to, correct the violation. In any case where Landlord
corrects the violation, Landlord’s expenses to correct the violation, plus all interest and any
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penalties incurred by Landlord due to the violation of law, shall be added to the installment of
Base Rent next becoming due and shall be collectible as additional rent in the same manner and
with the same remedies as if it had been originally reserved as Base Rent.
i. Payment of Fees and Charges. Tenant shall pay, before delinquency, any and all
taxes, assessments, license fees, and public charges levied, assessed, or imposed, and which
become payable during a Term (including holdovers) upon Tenant's FF&E and personal property
installed or located on the Premises.
8. INDEMNITY AND WAIVER
To the fullest extent allowed by law, Tenant, its officers, employees, agents, and
subcontractors (collectively, “Tenant”) agrees to and shall indemnify, defend, and hold harmless
Landlord, its Council, boards and commissions, officers, officials, employees, agents, servants,
and volunteers (collectively “Indemnitees”), from and against any and all liability, loss, damage
(including consequential damages), costs and expenses, claims and actions, regardless of nature
or type (“Liabilities”), arising out of or in connection with Tenant’s use of the Premises,
performance under this Lease, business operations, work on the Premises, and failure to comply
with any of its obligations in connection with this Lease, except for loss or damage caused by the
sole and active negligence or willful misconduct of Landlord.
Liabilities for which Tenant agrees to indemnify, defend, and hold harmless Indemnitees
include without limitation, damage to the Premises and any FF&E or personal property in or on
the Premises and injury or death occurring in or about the Premises, including the parking lot,
caused by Tenant or Tenant’s guests or invitees, or resulting from Tenant’s failure to keep the
Premises in good condition and repair, or from any act or omission by Tenant, its agents,
contractors, invitees, or employees. Tenant also agrees to indemnify, defend, and hold harmless
Indemnitees from all damages, liability, fines, penalties, and any other consequences arising
from the noncompliance of the Premise with or violation of any laws, ordinances, codes, or
regulations, including but not limited to the Occupational Safety and Health Act and the
Americans with Disabilities Act, including, without limitation, litigation costs and expenses,
reasonable costs of legal counsel of Landlord’s choice, expert fees, and all other costs and fees
incurred in investigating, defending, or prosecuting litigation or similar proceedings and the
threat thereof.
Tenant’s obligation to defend Indemnitees shall accrue immediately upon the filing of
any litigation against any Indemnitee and shall not be contingent on a final determination in the
litigation that the Indemnitee is liable for the claims brought in the litigation.
Tenant hereby expressly waives all claims against Landlord for damages to goods, wares,
and merchandise in, on, or about the Premises, and for injuries to persons in, on, or about the
Premises, from any cause arising at any time during the Terms.
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The indemnities and waivers provided herein shall survive the expiration or termination
of the Lease.
9. INSURANCE
For the duration of the Terms, Tenant shall procure and maintain insurance against claims
for injuries to persons or damages to property which may arise from or in connection with
Tenant’s operation, use of, and work on the Premises. Tenant shall bear the cost of such
insurance.
a. Minimum Scope and Limit of Insurance. Insurance coverage shall be at least as
broad as:
(1) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01
covering CGL on an “occurrence” basis, including but not limited to products and completed
operations, property damage, bodily injury and personal and advertising injury, with limits no
less than $10,000,000 per occurrence. If a general aggregate limit applies, either the general
aggregate limit shall apply separately to the Premises (ISO CG 25 03 or 25 04) or the general
aggregate limit shall be twice the required occurrence limit. The CGL policy must include
Liquor Liability.
(2) Property insurance against all risks of loss to the Premises, tenant improvements
or betterments, and Tenant’s FF&E at full replacement cost with no coinsurance penalty
provision.
(3) Automobile Liability: Insurance Services Office Form Number CA 0001
covering any auto (Code 1), or if Tenant has no owned autos, hired (Code 8) and non-owned
(Code 9) autos, with limit no less than $10,000,000 per accident for bodily injury and property
damage.
(4) Workers’ Compensation insurance as required by the State of California, with
Statutory Limits, and Employer’s Liability Insurance with limits of no less than $1,000,000 per
accident for bodily injury or disease.
If Tenant maintains broader coverage and/or higher limits than the minimums shown
above, Landlord requires and shall be entitled to the broader coverage and/or higher limits
maintained. Any available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to Landlord.
b. Other Insurance Provisions. The insurance policies are to contain, or be endorsed
to contain, the following provisions:
(1) Additional Insured Status. Landlord, its officers, officials, employees, and volunteers
are to be covered as additional insureds on the CGL policy with respect to liability arising from
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Tenant’s use of the Premises or the Lease or from work or operations performed on the
Premises by or on behalf of Tenant, including materials, parts, or equipment furnished in
connection with such operations or work. General liability coverage can be provided in the
form of an endorsement to Tenant’s insurance (at least as broad as ISO Form CG 20 10.)
(2) Primary Coverage. For any claims related to this contract, Tenant’s insurance
coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as
respects Landlord, its officers, officials, employees, and volunteers. Any insurance or self-
insurance maintained by Landlord, its officers, officials, employees, or volunteers shall be
excess of Tenant’s insurance and shall not contribute with it.
(3) Notice of Cancellation. Each insurance policy required above shall provide that
coverage shall not be canceled, except with thirty (30) days’ notice to Landlord.
(4) Waiver of Subrogation. Tenant hereby grants to Landlord a waiver of any right to
subrogation which any insurer of Tenant may acquire against Landlord by virtue of the payment
of any loss under such insurance. Tenant agrees to obtain endorsements necessary to effect this
waiver of subrogation, but this provision applies regardless of whether or not Landlord has
received a waiver of subrogation endorsement from the insurer.
(5) Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M.
Best’s rating of no less than A: VII, unless approved in writing by Landlord.
(6) Self-Insured Retentions. Self-insured retentions must be declared and approved by
Landlord. At Landlord’s sole and absolute discretion, Tenant shall either obtain coverage to
reduce or eliminate such self-insured retentions as respects Landlord, its officers, officials,
employees, and volunteers, or provide a financial guarantee satisfactory to Landlord
guaranteeing payment of losses and related investigations, claim administration, and defense
expenses. The policy language shall provide, or be endorsed to provide, that the self-insured
retention may be satisfied by either by Tenant or the financial guarantor approved by Landlord.
(7) Verification of Coverage. Tenant shall furnish Landlord with original certificates
and amendatory endorsements or copies of the applicable policy language providing the
insurance coverage required above. All certificates and endorsements are to be received and
approved by Landlord before Tenant’s use of the Premises or any work by or on behalf of
Tenant commences. However, failure to obtain the required documents prior to the
commencement of any such work shall not waive Tenant’s obligation to provide the certificates
and endorsement. Landlord reserves the right to require complete, certified copies of all
required insurance policies, including endorsements, required by these specifications, at any
time.
(8) Special Risks or Circumstances. Landlord reserves the right to modify these
requirements at any time, including limits, based on the nature of the risk, prior experience,
insurer, coverage, or other special circumstances
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c. Survival of Insurance Obligations. The requirements for insurance provided
herein shall survive the expiration or termination of the Lease.
10. MECHANICS LIENS
Tenant shall keep the Premises free and clear from all liens which may be filed as the
result of any improvements made on the Premises by any mechanic, laborer, material man, or
general contractor. If Tenant, in violation of the foregoing condition, fails to pay and retire the
amount for which such a lien is security, Landlord may, at its option, terminate this Lease upon
giving written notice of such intention; or Landlord may, at its option, pay the amount necessary
to release said lien, in which case all costs, interest, and penalties connected therewith shall be
added to the installment of Base Rent next becoming due and shall be collectible in the same
manner and with the same remedies as if it had been originally reserved as Base Rent. Landlord
shall have the right to post and maintain on the Premises such notices of non-responsibility as are
provided under California law governing mechanic's liens. Landlord’s remedies under this
Section 10 shall survive expiration or termination of the Lease.
11. ASSIGNMENT AND SUBLETTING
Tenant shall not assign, sublet, license, mortgage, or transfer its interest in this Lease or
in all or any portion of the Premises, nor shall Tenant allow any other person to use or occupy
the Premises, or any part thereof, without the express written consent of Landlord. The consent
to one assignment, sublet, license, mortgage, transfer, use, or occupancy shall not be construed to
be a consent to any subsequent assignment, sublet, license, mortgage, transfer, use, or
occupancy. Landlord shall have the sole discretion to require a deposit equal to the first and last
two months’ rent, and to require written guarantees in exchange for its consent to any assignment
or sublease. Any assignment, encumbrance, or sublease without Landlord’s consent shall be
voidable and, at Landlord’s election, shall constitute a default. The surrender of this Lease by
Tenant, voluntarily or otherwise, or a mutual termination of the Lease, shall cause the
termination of any existing subleases or sub-tenancies to which Landlord consented, or may, in
the Landlord's sole and absolute discretion, operate as an assignment to Landlord of any or all
such subleases or sub-tenancies.
12. SALE OF THE PREMISES
Any sale or conveyance by Landlord of the Premises shall be made subject to this Lease
and shall operate to release Landlord from any further or future liability under any of the terms,
covenants, and conditions of the Lease, whether express or implied, and from and after the date
of Landlord’s sale or conveyance of the Premises, Tenant shall look solely to the successor in
interest of Landlord for performance of the terms, covenants, and conditions of this Lease.
13. DEFAULTS AND REMEDIES
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a. Immediate Defaults. The occurrence of any of the following shall constitute an
immediate default by Tenant as to which Tenant shall have no right to cure:
(1) Tenant’s failure to pay rent when due, if the failure continues for ten (10) days after
Landlord gives notice to Tenant.
(2) Tenant’s abandonment and vacation of the Premises before the end of a Term.
Tenant’s failure to occupy and operate the Premises for twenty (20) consecutive days unless
excused by Landlord shall be deemed an abandonment and vacation.
(3) Tenant’s general assignment or general arrangement for the benefit of creditors; the
filing by or against Tenant of a petition to have Tenant adjudged bankrupt or Tenant’s filing of a
petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the
case of a petition filed against Tenant, the same is dismissed within sixty (60) days); the
appointment of a trustee or receiver to take possession of substantially all of Tenant’s assets,
where possession is not restored to Tenant within forty-five (45) days; or the attachment,
execution, or other judicial seizure of substantially all of Tenant’s assets, where such seizure is
not discharged within thirty (30) days.
(4) Tenant’s failure to pay any penalties assessed under Section 5.d of this Lease, or if
Landlord, its designated representatives, or the County Sheriff observe more than three violations
of Section 5.c(1) (Operating Hours - no patrons after 11 p.m.) in any twelve-month period.
(5) Tenant’s assignment, sublet, license, mortgage of the Premises or any part of the
Premises, whether voluntary or involuntary, without written consent by Landlord.
Landlord’s notice of default to Tenant under this Section 13.a shall specify Tenant’s default and
the Lease provision violated by Tenant. If Tenant defaults under this Section 13.a, Landlord, in
its sole and absolute discretion, may either declare the Lease terminated and demand that Tenant
immediately surrender possession of the Premises to Landlord or specify a period of time for
Tenant to cure the default. If Tenant fails to cure the default within the time specified in
Landlord’s notice, Landlord, in its sole and absolute discretion, may either declare the Lease
terminated and demand that Tenant immediately surrender possession of the Premises to
Landlord, or specify a further period of time for Tenant to cure the default.
b. Defaults Subject to Cure. Tenant’s violation of any provision of this Lease not
specified in Section 13.a, if the violation is not cured within the time stated in Landlord’s notice
of violation to Tenant, shall constitute a default. If the violation cannot reasonably be cured
within the period specified in the notice, Tenant shall not be in default of this Lease if Tenant
commences to cure the violation within the period and diligently and in good faith continues to
cure the violation. Tenant’s failure to cure its violation of the Lease within the time permitted
under this Section 13.b shall constitute an immediate default by Tenant as to which Tenant shall
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have no further right to cure and Tenant shall immediately surrender possession of the Premises
to Landlord. Notices given under this Section 21.b shall specify Tenant’s default and the Lease
provision violated by Tenant, and shall demand that Tenant correct the violation within the
period of time specified in the notice, or immediately surrender possession of the Premises to
Landlord.
c. Landlord’s Remedies for Tenant’s Default.
The following Landlord remedies for Tenant’s default are not exclusive and are in
addition to any remedies now or later allowed by law.
(1) Termination of Lease. If Tenant defaults and Landlord terminates the Lease,
Landlord, in its sole and absolute discretion, may bring legal action to recover from Tenant
possession of the Premises and:
(A) The worth at the time of judgment or award of the unpaid rent which had been
earned at the time of termination;
(B) The worth at the time of judgment or award of the amount by which the
unpaid rent which would have been earned after termination until the time of judgment or award
exceeds the amount of the rental loss that Landlord proves could have been reasonably avoided;
(C) The worth at the time of judgment or award of the amount by which the
unpaid rent for the balance of the Term after the time of judgment or award exceeds the amount
of the rental loss that Landlord proves could have been reasonably avoided; and
(D) Any other amount necessary to compensate Landlord for the detriment
proximately caused by Tenant's failure to perform the obligations under this Lease or which in
the ordinary course of business would be likely to result therefrom.
"Worth at the time of judgment or award" of the amount referred to in Section 13.c(1)(A) and
(B) shall be computed by allowing interest at the rate of ten (10%) percent per annum; the "worth
at the time of judgment or award" of the amount referred to in section 13.c(1)(C) shall be
computed by discounting such amount at the discount rate of the Federal Reserve Board of San
Francisco at the time of award plus one (1%) percent.
(2) Continuation of Lease. If Tenant defaults and Landlord elects not to terminate the
Lease, Landlord shall have the right to collect rent when due. During the period Tenant is in
default, Landlord can enter the Premises to prepare the Premises for reletting to a third party and
if Landlord regains possession of the Premises, relet the Premises, or any part of it, to third
parties for Tenant’s account. Reletting can be for a period shorter or longer than the Term.
Tenant shall pay to Landlord the Base and Percentage Rent due under this lease on the dates the
rent is due, less the rent Landlord receives from any reletting. No act by Landlord allowed by
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this Section 13.c(2) shall terminate the Lease unless Landlord notifies Tenant that Landlord
elects to terminate the Lease. After Tenant’s default and for so long as Landlord does not
terminate Tenant’s right to possession of the Premises, Tenant may assign or sublet its interest in
the Lease if Tenant obtains Landlord’s written consent, but Tenant shall not be released from
liability for any term, covenant, or condition of the Lease.
If Landlord elects to relet the Premises as provided in this Section 13.c(2), rent that
Landlord receives shall be applied to the payment of: first, any indebtedness from Tenant to
Landlord other than Base or Percentage Rent due from Tenant; second, all costs, including
maintenance costs, incurred by Landlord in reletting; third, Base and Percentage Rent due and
unpaid. After deducting the payments referred to in this paragraph, any sum remaining from the
rent Landlord receives for reletting shall be held by Landlord and applied in payment of future
Base and Percentage Rent as rent becomes due from Tenant. Tenant shall not be entitled to any
excess rent received by Landlord. If, on the date Base or Percentage Rent is due under this lease,
the rent received from the reletting is less than the Base or Percentage Rent due on that date,
Tenant shall pay to Landlord, in addition to the remaining Base or Percentage Rent due, all costs
Landlord incurred in reletting, including for maintenance, that remain after applying the rent
received from the reletting.
(3) Appointment of Receiver. If Tenant is in default, Landlord shall have the right, in
its sole and absolute discretion, to have a receiver appointed to collect rent and conduct Tenant’s
business. Neither the filing of a petition for appointment of a receiver nor the appointment itself
shall constitute an election by Landlord to terminate this Lease.
(4) Landlord’s Right to Cure. At any time after Tenant’s default, Landlord, in its sole
and absolute discretion, may cure the default at Tenant’s cost. If Landlord pays any sum or does
any act that requires payment of any sum to cure Tenant’s default, the sum paid by Landlord
shall be due immediately from Tenant at the time Landlord pays the sum, and if Tenant pays at a
later date, the sum shall bear interest at the maximum rate an individual is permitted by law to
charge from the date the sum is paid by Landlord until Tenant reimburses Landlord. The sum,
together with all interest, shall be added to the installment of Base Rent next becoming due and
shall be collectible as additional rent in the same manner and with the same remedies as if it had
been originally reserved as Base Rent.
d. Waiver. No delay or failure to exercise any right or remedy of Landlord on any
default by Tenant shall impair such a right or remedy or be construed as a waiver. Additionally,
the receipt and acceptance of either Base or Percentage Rent by Landlord following a Tenant
default shall not be deemed to be a waiver of any preceding violation by Tenant of any term,
covenant, or condition of this Lease, other than the failure of Tenant to pay the rent so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such
15
rent. Any waiver by Landlord of any default must be in writing and shall not be a waiver of any
other default concerning the same or any other term, covenant, or condition of this Lease.
e. Remedies Cumulative. The remedies provided herein shall be cumulative. The
exercise of any one remedy shall not be to the exclusion of any other remedy.
f. Remedies Survive Termination. The remedies provided herein shall survive the
expiration or termination of the Lease.
14. CONDITION OF PREMISES; SURRENDER
a. Tenant accepts the Premises as being in good and sanitary order, condition, and repair,
and agrees to surrender the Premises in as good condition as received, except for normal wear
and tear, and to remove Tenant's signs and other property that is not permanently attachment to
the Premises, or that is owned and was installed by Tenant during the Terms.
b. If upon expiration or termination of any Term Tenant fails to remove any personal
property belonging to Tenant from the Premises, such property shall at Landlord’s option at any
time after thirty (30) days after the date of expiration or termination be deemed to have been
transferred to Landlord, and Landlord shall have the right to remove and dispose of such
property without liability to Tenant.
15. ENTRY AND INSPECTION
Landlord and its authorized representatives shall have the right to enter the Premises at all
reasonable times to: (1) inspect the Premises and determine whether the Premises is in good
condition and whether Tenant is complying with its obligations under this Lease; (2) do any acts
that may be necessary to protect Landlord’s interest in the Premises; or (3) perform any of
Landlord’s duties under this lease, including making any necessary or agreed on repairs or
alterations. Landlord shall have the right to enter and show the Premises to persons considering
purchase, rental, or lease of the Premises and to display the usual notices and signs, "For Sale,"
"For Lease," or "For Let," on the Premises for sixty (60) days prior to the expiration of any
Term. Such signs shall be allowed without diminution of rent or hindrance by Tenant. Landlord
shall not be liable in any manner for any inconvenience, disturbance, loss of business, nuisance,
or other damage resulting from the entry of the Premises by Landlord or its representatives under
this Section 15.
16. PREMISES UNINHABITABLE; REMEDIES
If the Premises is wholly or partially destroyed by fire, earthquake, or any other cause
rendering the Premises totally or partially inaccessible or unusable, or if, by any cause (i) the
Premises is damaged necessitating an expenditure of more than forty (40%) percent of the fair
market value of the Building to repair and restore it, (ii) more than forty percent (40%) of the
16
floor area of the Building, measured in square feet, is destroyed, or (iii) the Premises is rendered
uninhabitable, Landlord may, in its sole and absolute discretion, elect to terminate this Lease by
giving notice to Tenant within sixty (60) days after the date of the destruction or injury. If
Landlord does not terminate the Lease, Tenant’s rent shall be abated from the date of destruction
until restoration is completed in an amount proportionate to the extent to which destruction
interferes with Tenant’s use of the premises. In no event shall Landlord be under an obligation or
duty to restore the Premises.
a. If Landlord elects to restore the Premises, it shall proceed with reasonable
diligence, but shall not be liable for any delay, other than an abatement of rent during the time
that the Premises remains uninhabitable. The words "restore" and "restoration" shall not include
or apply to any FF&E or additions of any kind, or any personal property placed in or upon the
Premises by Tenant or anyone acting on Tenant’s behalf. In restoring the Premises, Landlord
may use similar and/or changed workmanship and/or architecture. For purposes of this Lease, the
Premises shall be deemed "uninhabitable" if it cannot be operated as a restaurant and bar or if
any public agency deems the Premises unsafe or unhealthy for human habitation or use as a
restaurant and bar.
b. If Landlord does not elect to terminate the Lease and does not commence
restoration of the Premises within one hundred twenty (120) days after the date of destruction or
damage, Tenant may, in its sole and absolute discretion, terminate this Lease upon written notice
to Landlord.
17. EMINENT DOMAIN
a. Total Condemnation. In the event of a total condemnation of the Premises during
a Term, this Lease shall terminate as of the date the condemnor takes physical possession of the
Premises. All compensation and damages awarded for such total condemnation, including, but
not limited to, leasehold bonus value and FF&E, shall belong to, and be the sole property of
Landlord, Tenant shall have no claim thereto, and Tenant irrevocably assigns and transfers to
Landlord any right to compensation or damages to which Tenant may become entitled; provided,
however, that Tenant shall be entitled to receive any award that may be made for the taking of or
damage to Tenant's trade fixtures and any improvements made by Tenant to the Premises which
Tenant would have had the right to remove upon expiration or termination of this Lease but for
the condemnation and for lost goodwill of Tenant’s business.
b. Rent Due on Total Condemnation. On termination of this Lease by a total
condemnation of the Premises, all Base Rent and other charges payable by Tenant to Landlord
under this Lease shall be paid up to the date on which the condemnor takes physical possession
of the Premises, all Percentage Rent due for the prior calendar year and the calendar year in
which actual physical possession of the Premises is taken shall be due to Landlord within sixty
17
(60) days after physical possession, and the Parties shall thereafter be released from all further
liability or obligations under the Lease.
c. Partial Condemnation. In the event of a partial condemnation of the Premises
during a Term, this Lease shall terminate as to the portion of the Premises so taken on the date
when the condemnor takes physical possession of the portion, and each Party shall have the
option to terminate this Lease by giving written notice to the other Party within thirty (30) days
after the condemnor takes physical possession of the portion is taken by the condemnor. If
neither Party terminates this Lease as herein provided, then this Lease shall continue in full force
and effect as to the remainder of the Premises not condemned; provided, however, that the Base
Rent payable by Tenant for the balance of the Lease term shall be abated in the ratio that the
square footage of enclosed floor space of the Premises bears to the total floor space of the
Premises upon such condemnation. Percentage Rent shall not be abated by a partial
condemnation of the Premises. Upon partial condemnation, all compensation and damages
awarded for such condemnation shall belong to and be the sole property of Landlord, and Tenant
shall have no claim thereto and hereby irrevocably assigns and transfers any right Tenant may
have had to share in the award to Landlord; provided, however, that Tenant shall be entitled to
receive any award made for the taking of, or damage to, Tenants' trade fixtures, any
improvements made by Tenant to the Premises which Tenant would have had, but for the
condemnation, the right to remove upon expiration or termination of this Lease, and Tenant’s
lost business goodwill, but excluding any consideration of leasehold bonus value from the
valuation of lost business goodwill.
d. Rent on Partial Condemnation. Upon termination of this Lease in part as provided
in Section 17.c, all Base Rent and other charges payable by Tenant to or on behalf of Landlord
under the Lease shall be paid up to the date on which the condemnor takes physical possession of
that part of the Premises being condemned, and Tenant shall thereafter be liable only for that
portion of Base Rent for the part of the Premises remaining for the balance of the Term.
18. SIGNAGE
The Parties shall continue to prominently display existing signs on the Premises
identifying the Blackberry Farm Golf Course and signs informing Landlord’s patrons that the
Golf Course is "Open to the Public." Tenant shall not install or letter any signs on the Premises
without Landlord’s prior written consent. Any additional signs installed by Tenant shall comply
with Landlord's sign ordinances and regulations.
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19. SECURITY
If any security is given by Tenant to secure the faithful performance of any or all of the
covenants of this Lease on the part of Tenant, Landlord may transfer and/or deliver such security
to the purchaser of the Premises, in the event that the Premises is sold; and Landlord shall then
be discharged from further liability for the security provided by Tenant.
20. LEASE SUBORDINATE
a. This Lease shall be subordinate to any mortgages, trust deeds, or bond indentures
that are now or may hereafter be placed on the Premises, to any and all advances made or to be
made thereunder, to the interest thereon, and to all renewals, replacements, and extensions
thereof, provided that the mortgagee or beneficiary named in the mortgages, trust deeds, or bond
indentures agrees to recognize and be subject to Tenant's Lease in the event of foreclosure if
Tenant is not in default. If any mortgagee or beneficiary elects to have their mortgage, trust deed,
or bond indenture subordinated to this Lease, then this Lease shall be deemed superior to the lien
of any such mortgage, trust deed, or bond indenture whether this Lease is dated or recorded
before or after said mortgage or trust deed.
b. On not less than ten (10) days prior written request by the Landlord, Tenant shall
execute, acknowledge, and deliver to Landlord a written statement certifying that this Lease is
unmodified and in full force and effect, or that there have been modifications and this Lease is in
full force and effect as modified, and stating the modifications, and the dates to which the rent
and other charges have been paid in advance, if any. The intent is that any prospective purchaser,
mortgagee, or assignee of any mortgagee of the Premises may rely on the statement.
21. NONDISCRIMINATION
Tenant and its employees shall not discriminate against any person or employee because of race,
color, religion, ancestry, age, sex, national origin, disability, sexual preference, housing status,
marital status, familial status, or other protected classifications. If Tenant is found to be in
violation of the State of California Fair Employment and Housing Act or any similar provision of
state or federal law in the conduct of Tenant’s activities under this Lease, it shall be found in
default under this Lease and such default shall constitute a material breach of the Lease, entitling
Landlord to all available remedies under this Lease or by law.
22. GENERAL PROVISIONS
a. Notices. Any notices to be given by either Party under this Lease shall be made in
writing and may be delivered personally, by certified or registered mail with postage prepaid, or
email addressed as follows:
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TO TENANT: The Blue Pheasant Restaurant c/o Mike Tsachres
22100 Stevens Creek Blvd.
Cupertino, CA 95014
Email: bluepheasantrestaurant@yahoo.com
TO THE LANDLORD: City Manager’s Office
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Email: chadm@cupertino.org
b. Entire Agreement. This Lease comprises the entire and integrated agreement of
the Parties concerning the lease of the Premises and supersedes all prior negotiations,
representations, or agreements, either written or oral. Any amendments to this Lease shall be
effective only if in writing and signed by Landlord and Tenant.
c. Attorneys' Fees. If legal action is commenced to enforce or to declare the effect of
any provision of this Lease, the prevailing party shall be awarded reasonable attorneys' fees and
costs incurred by such party in the action.
d. Severability. If any term, provision, covenant, or condition of this Lease is held
by a court to be invalid, void, or unenforceable, the rest of this Lease shall remain in full force
and effect and shall in no way be affected, impaired, or invalidated.
e. Time. Time is of the essence of this Lease.
f. Binding on Heirs; Joint and Several Liability. All terms, covenants, and
conditions of this Lease shall apply to and bind the heirs, successors, executors, administrators,
and assigns of the Parties.
g. Governing law. The laws of the state of California shall govern this Lease.
h. Recordation. Neither Tenant nor Landlord shall record this Lease.
i. Authority. The individuals signing this Lease on behalf of the Parties have the
authority to sign on behalf of their respective entities.
[signatures next page]
20
IN WITNESS WHEREOF, the Parties have executed this Lease Agreement on
November 7, 2023.
LANDLORD TENANT
City of Cupertino Hungry Jack’s Corporation
__________________________ __________________________
Pamela Wu, City Manager Michael Tsachres, President
Date: ______________________ Date: ______________________
ATTEST
__________________________
Kirsten Squarcia, City Clerk
Approved as to Form:
__________________________
Chris Jensen, City Attorney
Mike Tsachres
Nov 26, 2023
Christopher D. Jensen
Nov 27, 2023
EXHIBIT A
Furniture, Fixtures & Equipment
Front and Back Bar
Built-in Waitress Station in banquet room
Swamp Cooler on roof
Air Conditioning Unit
Furnaces
Built-in Speakers
Water Heaters
Light Fixtures
Safe
Refrigerated Waitress Station in front of kitchen
Hood and Ventilation System (including automatic fire extinguishing system)
Steam Table and Built-in Freezer in downstairs banquet room kitchen
Walk-in Box with Compressor
Exhibit B
Depiction of Premises
Premises
Blue Pheasant
Restaurant
Stevens Creek Blvd
Blackberry Farm
Golf Course
1
EXHIBIT C
GUARANTY AGREEMENT
This guaranty (“Agreement”) is given by Michael Tsachres, an individual (''Guarantor")
to CITY OF CUPERTINO ("Obligee") to induce Obligee to enter into a lease (“Lease”) with
Hungry Jacks Corporation, a California Corporation (“Obligor”), for the lease of the building
and adjoining parking located at 22100 Stevens Creek Boulevard, City of Cupertino, State of
California (“Premises”).
1. Obligation Guaranteed. For valuable consideration, the undersigned Guarantor jointly
and severally unconditionally guarantees to Obligee the following obligations of Obligor:
Performance of all terms, covenants, and conditions of the Lease and any extension thereof,
including the payment of any and all indebtedness of Obligor to Obligee. The word
"indebtedness" is used in its most comprehensive sense and includes any and all rent, debts,
obligations, and liabilities of Obligor, whenever made, incurred, or created, regardless of
whether voluntary or involuntary and however arising, whether due or not due, absolute or
contingent, liquidated or unliquidated, determined or undetermined, and whether Obligor may be
liable individually or jointly with others, or whether recovery may be or become barred by any
statute of limitations or otherwise become unenforceable.
2. Insolvency or Bankruptcy. Guarantor jointly and severally unconditionally guarantees
the performance of all terms, covenants, and conditions of the Lease and any and all
indebtedness of Obligor to Obligee, whether or not due or payable by Obligor, on (a) the
dissolution, insolvency, or business failure of, or any assignment for the benefit of creditors by,
or commencement of any bankruptcy, reorganization, arrangement, moratorium, or other debtor
relief proceedings by or against, Obligor or Guarantors, or (b) the appointment of a receiver for,
or the attachment, restraint of, or making or levying of any court order or legal process affecting,
the Premises of Obligor or Guarantors, and jointly and severally unconditionally promise to pay
this indebtedness to Obligee or Obligee’s designee, on demand, in lawful money of the United
States.
3. Extent of Liability. The liability of Guarantor under this agreement is exclusive and
independent of any security for or other guarantee of the indebtedness of Obligor, whether
executed by Guarantor or any other party, and the liability of Guarantor under this Agreement is
not affected or impaired by any of the following:
a. Any indebtedness exceeding Guarantor’s liability;
b. Any direction of application by Obligor or any other party;
2
c. Any other continuing or other guaranty, undertaking, or maximum liability of
Guarantor or of any other party as to the indebtedness of Obligor;
d. Any payment on or in reduction of any other guaranty or undertaking;
e. Any dissolution, termination, or increase, decrease, or changes of personnel of
Guarantor; or
f. Any payment made to the Obligee on the indebtedness that Obligee repays to
Obligor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium, or
other debtor relief proceeding. Guarantor waives any right to the deferral or modification of
Guarantor's obligations by virtue of any such proceeding.
4. Joinder of Parties. The obligations of guarantors are joint and several, and independent
of the obligations of Obligor. Obligee may bring and prosecute a separate action or actions
against Guarantor, whether it brings an action against Obligor or joins Obligor in any action or
actions commenced. Guarantor waives, to the fullest extent permitted by law, the benefit of any
statute of limitations affecting its liability under this agreement or the enforcement of this
agreement. Any payment by Obligor or other circumstance that operates to toll any statute of
limitations as to Obligor shall also operate to toll the statute of limitations as to Guarantor. If
Guarantor is a married person, Guarantor agrees that recourse may be had against his or her
separate property for his or her obligations under this Agreement.
5. Change of Obligation.
a. Guarantor authorizes Obligee, (whether or not after revocation or termination of
this Agreement) without notice or demand (except any notice or demand that is required by
statute and cannot be waived) and without affecting or impairing their liability, from time to time
to do any of the following:
(1) Renew, compromise, extend, accelerate, or otherwise change the time for
performance of, or otherwise change the terms of the obligation;
(2) Take and hold security for the performance of this Agreement or the
obligation guaranteed, and exchange, enforce, waive, and release any security;
(3) Apply security and direct the order or manner of sale of security as Obligee in
its discretion may determine; and
(4) Release or substitute the Guarantor.
b. Obligee may without notice assign this Agreement in whole or in part.
3
6. Capacity and Authority. If Obligor is a corporation, partnership, or other entity,
Obligee need not inquire into or verify the powers of Obligor or the authority of those acting or
purporting to act on behalf of Obligor, and this Agreement shall be enforceable with respect to
any indebtedness Obligee grants or extends to Obligor in reliance on the purported exercise of
those powers or authority.
7. Subordination. Any indebtedness of Obligor now or later held by Guarantor is
subordinated to the indebtedness of Obligor to Obligee, and all indebtedness of Obligor to
Guarantor, if Obligee so requests, shall be collected, enforced, and received by Guarantor as
trustee for Obligee and be paid over to Obligee on account of the indebtedness of Obligor to
Obligee, without affecting or impairing in any manner the liability of Guarantor under the other
provisions of this Agreement.
8. Waiver of Defenses.
(a) Guarantor waives any right to require Obligee to (1) proceed against Obligor, (2)
proceed against or exhaust any security held from Obligor; or (3) pursue any other remedy in
Obligee's power.
(b) Guarantor waives any defense based on or arising out of any defense of Obligor other
than payment in full of the indebtedness, including without limitation any defense based on or
arising out of the disability of Obligor, the unenforceability of the indebtedness from any cause,
or the cessation from any cause of the liability of Obligor other than payment in full of the
indebtedness.
(c) Obligee, at its election, may foreclose on any security held by Obligee by one or more
judicial sales, whether or not every aspect of any sale is commercially reasonable, or exercise
any other right or remedy Obligee may have against Obligor, or any security, without affecting
or impairing in any way the liability of Guarantor under this agreement, except to the extent that
the indebtedness has been paid.
(d) Guarantor waives all rights and defenses arising out of an election of remedies by
Obligee, even though that election of remedies, such as nonjudicial foreclosure with respect to
security for a guaranteed obligation, has destroyed Guarantor's rights of subrogation and
reimbursement against the principal by operation of Code of Civil Procedure Section 580d or
otherwise.
(e) Until all indebtedness of Obligor to Obligee is paid in full, even though that
indebtedness is in excess of Guarantor’s liability under this agreement, Guarantor shall have no
right of subrogation, shall waive any right to enforce any remedy that Obligee now has or may
later have against Obligor, and shall waive any benefit of, and any right to, participation in any
security now or later held by Obligor. Guarantor waives all presentments, demands for
4
performance, notices of protest, notices of dishonor, notices of acceptances of this Agreement,
and notices of the existence, creation, or incurring of new or additional indebtedness.
(f) Guarantor assumes all responsibility for keeping itself informed of Obligor's financial
condition and assets, and all other circumstances bearing on the risk of nonpayment of the
indebtedness and the nature, scope, and extent of the risks that Guarantor assumes and incurs
under this Agreement, and agrees that Obligee shall have no duty to advise Guarantor of
information known to Obligee regarding those circumstances or risks.
9. Attorneys' Fees and Costs. In addition to the amounts guaranteed under this
Agreement, Guarantor agrees to pay reasonable attorneys' fees and all other costs and expenses
incurred by Obligee in enforcing this Agreement in any action or proceeding arising out of, or
relating to, this Agreement.
10. Liens and Setoffs. In addition to all liens on, and rights of setoff against, the money,
securities, or other property of Guarantor given to Obligee by law, Obligee shall have a lien on
and a right of setoff against all money, securities, and other property of Guarantor now or later
in the possession of Obligee, whether held in a general or special account or for safekeeping or
otherwise; and every lien and right of setoff may be exercised without demand on or notice to
Guarantor.
11. Nonwaiver of Rights of Obligee. No right or power of Obligee under this Agreement
shall be deemed to have been waived by any act or conduct on the part of Obligee, or by any
neglect to exercise that right or power, or by any delay in so doing; and every right or power
shall continue in full force and effect until specifically waived or released by an instrument in
writing executed by Obligee.
12. Singular and Plural. In all cases when there is but a single Obligor or a single
Guarantor, all words used in the plural shall be deemed to have been used in the singular if the
context and construction so require; and when there is more than one Obligor, or when this
Agreement is executed by more than one Guarantor, the word "Obligor" and the word
"Guarantor" respectively shall mean all and any one or more of them.
13. Effect on Heirs and Assigns. This Agreement and the liability and obligations of
Guarantor under this agreement are binding on Guarantor and its respective heirs, executors, and
assigns, and inure to the benefit of and are enforceable by Obligor and its successors, transferees,
and assigns.
14. Notices. Any notice given by any party under this Agreement shall be personally
delivered or sent by United States mail, postage prepaid, and addressed to Obligee or Guarantor
at their respective addresses for notices indicated below. Guarantor and Obligee may change the
5
place to which notices, requests, and other communications are to be sent to them by giving
written notice of that change to the other.
15. Governing Law and Modification. This Agreement shall be deemed to be made
under, and shall be governed by, the laws of the State of California in all respects, including
matters of construction, validity, performance, and enforcement, and its terms and provisions
may not be waived, altered, modified, or amended except in writing duly signed by an authorized
officer of Obligee and by Guarantor.
16. Invalidity. If any provision of this Agreement contravenes or is held invalid under the
laws of any jurisdiction, this Agreement shall be construed as though it did not contain that
provision, and the rights and liabilities of the parties to this Agreement shall be construed and
enforced accordingly.
17. Headings. Headings in this Agreement are for convenience only and shall not be used
to interpret or construe its provisions.
18. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have executed this Guaranty on _______________,
2023.
[signatures on next page]
November 26,
6
GUARANTOR – Michael Tsachres
By_______________________________
Print Name________________________
Date_____________________________
OBLIGOR – Hungry Jacks Corporation
By________________________________
Print Name_________________________
Its________________________________
Date______________________________
OBLIGEE – City of Cupertino
By________________________________
Print Name: Pamela Wu
Its: City Manager
Date______________________________
Approved as to Form:
__________________________________
Christopher Jensen, City Attorney
Mike Tsachres
Mike Tsachres
Mike Tsachres
Mike Tsachres
President
Nov 26, 2023
Nov 26, 2023
Christopher D. Jensen
Nov 27, 2023
Blue Pheasant Lease
Final Audit Report 2023-11-28
Created:2023-11-16
By:Julia Kinst (juliak@cupertino.org)
Status:Signed
Transaction ID:CBJCHBCAABAAVq7AWDw4WgpQBmLHwjHShxN1_iJe9eE3
"Blue Pheasant Lease" History
Document created by Julia Kinst (juliak@cupertino.org)
2023-11-16 - 11:11:30 PM GMT- IP address: 216.198.111.214
Document emailed to bluepheasantrestaurant@yahoo.com for signature
2023-11-16 - 11:15:59 PM GMT
Email viewed by bluepheasantrestaurant@yahoo.com
2023-11-17 - 3:52:21 AM GMT- IP address: 104.28.111.134
Email viewed by bluepheasantrestaurant@yahoo.com
2023-11-23 - 4:30:30 AM GMT- IP address: 172.226.3.168
Email viewed by bluepheasantrestaurant@yahoo.com
2023-11-24 - 2:56:56 AM GMT- IP address: 104.28.123.112
Email viewed by bluepheasantrestaurant@yahoo.com
2023-11-25 - 7:51:06 AM GMT- IP address: 104.28.111.135
Email viewed by bluepheasantrestaurant@yahoo.com
2023-11-26 - 1:52:32 AM GMT- IP address: 146.75.154.0
Signer bluepheasantrestaurant@yahoo.com entered name at signing as Mike Tsachres
2023-11-26 - 11:58:36 PM GMT- IP address: 73.92.165.113
Document e-signed by Mike Tsachres (bluepheasantrestaurant@yahoo.com)
Signature Date: 2023-11-26 - 11:58:38 PM GMT - Time Source: server- IP address: 73.92.165.113
Document emailed to christopherj@cupertino.org for signature
2023-11-26 - 11:58:40 PM GMT
Email viewed by christopherj@cupertino.org
2023-11-27 - 0:01:38 AM GMT- IP address: 104.47.73.254
Signer christopherj@cupertino.org entered name at signing as Christopher D. Jensen
2023-11-27 - 0:02:09 AM GMT- IP address: 136.24.22.194
Document e-signed by Christopher D. Jensen (christopherj@cupertino.org)
Signature Date: 2023-11-27 - 0:02:11 AM GMT - Time Source: server- IP address: 136.24.22.194
Document emailed to Pamela Wu (pamelaw@cupertino.org) for signature
2023-11-27 - 0:02:12 AM GMT
Email viewed by Pamela Wu (pamelaw@cupertino.org)
2023-11-27 - 4:29:55 PM GMT- IP address: 104.28.111.135
Document e-signed by Pamela Wu (pamelaw@cupertino.org)
Signature Date: 2023-11-27 - 4:37:34 PM GMT - Time Source: server- IP address: 64.165.34.3
Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature
2023-11-27 - 4:37:36 PM GMT
Email viewed by Kirsten Squarcia (kirstens@cupertino.org)
2023-11-28 - 1:31:20 AM GMT- IP address: 172.226.212.25
Document e-signed by Kirsten Squarcia (kirstens@cupertino.org)
Signature Date: 2023-11-28 - 5:30:14 PM GMT - Time Source: server- IP address: 64.165.34.3
Agreement completed.
2023-11-28 - 5:30:14 PM GMT