11-013 Lease Agreement, Streeter and Sons dba Coffee SocietyASSIGNMENT AND ASSUMPTION
OF LEASE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT (the
"Assignment ") is made and entered into effective as of July 19, 2011 (the "Effective
Date "), by and between STREETER AND SONS[, INC.] DBA COFFEE SOCIETY,
operating a business located at 10800 Torre Avenue, Cupertino, California 95014,
( "Assignor") and 1EE SUNG LEE ( "Assignee: "). In consideration of the terms and
conditions contained herein, the Assignor and Assignee agree as follows:
1. INTRODUCTORY STATEMENT
l .1. Location of Premises
The City of Cupertino ("Landlord") owns certain real property
located at 10800 Torre Avenue, Cupertino, California 95014, (the
"Premises "), and more particularly described in the Lease Agreement
(hereinafter defined).
1.2. The Lease Agreement
By virtue of a Lease dated as of March 1, 2011 (the "Lease
Agreement" or "Lease ") between Landlord and Assignor, Landlord
]eased to Assignor the Premises more particularly described in
Exhibit A to the Lease Agreement. A copy of the Lease Agreement is
attached as Exhibit I to this Assignment.
1.3. Receipt of Lease Agrgemen( by Assignee
Assignee has received a duplicate original of the Lease Agreement.
1.4. Transfer of Assignor's Interest to Assignee
Assignor desires to transfer and assign to Assignee all of Assignor's
interest in and to the Lease Agreement and the Premises, including:
all permits, variances, and approvals relating to the operation of a
store on the Premises to the extent the same are assignable; the
benefit accorded to the tenant under the Lease pursuant to any
nondisturbance agreements and any other similar agreements
affecting tenant's interest under the Lease Agreement; and any keys,
codes, manuals, plans, specifications and similar matters relating to
the Premises (collectively sometimes referred to as the "Property").
Assignee desires to accept such transfer and assignment from
Assignor of all of Assignor's interest in and to the Lease and
Premises, and the remainder of the Property, upon, subject to, and in
accordance with the terms and Drovisions of this Assignment.
1.5. Maintenance of Business
As required by the Lease A €Teement, Assignee agrees to offer the
same name, level, and type of service currently offered by Assignor.
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1.6. Release from Liabilitv of ASS! %Lor
Pursuant to Section 14 of the: Lease Agreement, upon assignment,
Assignor is released from all liability under the Lease Agreement.
NOW, THEREFORE, for and in consideration of the above Introductory Statement,
which is deemed a material and substantive part of this Assignment, and other good
and valuable consideration, Assignor and Assignee agree as follows:
2. ASSIGNMENT
Assignor, for and in consideration of the payment of rent and the performance
of all of the Lease Agreement covenants by Assignee as successor tenant
under the Lease Agreement, does hereby grant, assign, and convey to Assignee
all of Assignor's right, title, and interest in and to the Lease Agreement, the
Premises, and the remainder of the Property, for the residue of the term of the
Lease Agreement, including any options or renewal periods, at the rent and
other charges set forth in the Lease and subject to the covenants by Assignor
and the conditions contained in the Lease Agreement and henceforth to be
performed and observed by Assignee.
3. PERFORMANCE OF LEASE COVENANTS AND CONDITIONS;
ASSUMPTION
For the benefit of Assignor and Landlord, Assignee hereby assumes the
obligation of the tenant under the Lease Agreement, and Assignee hereby
covenants and agrees to perform all of 1:he duties of the Lease Agreement from
and after the Effective Date of this Assignment as if Assignee were the
original tenant thereunder. Pursuant to Section 14 of the Lease Agreement,
Assignee shall operate a business with the same name, type and level of
service as currently offered. Assignee shall make all payments of rent,
additional rent, and other sums due under the Lease Agreement from the tenant
thereunder, for the period from and after the Effective Date of this
Assignment, when due and payable strictly in accordance with the terms,
covenants, and conditions of the Lease Agreement.
4. REPRESENTATIONS OF ASSIGNOR
4.1. The copy of the Lease Agreement attached hereto as Exhibit I is a
true, correct, and complete copy of the Lease Agreement and has not
been modified, amended, supplemented, extended, or renewed.
4.2. Assignor is the tenant under the Lease Agreement. Assignor has not
previously transferred or conveyed any interest in and to the Property
to any other party or assigned the Lease or sublet the Premises, in
whole or in part.
4.3. fo the best of Assignor's knowledge, there exist no defaults under the
Lease on the part of either Landlord or Assignor.
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4.4. Assignor has the full power and authority to execute and deliver this
Assignment without the consern: of any other person or entity.
4.5. To the best of Assignor's laiowledge, Assignor has not received
written notice of any action, suit, proceeding, or investigation that
would foreclose Assignee's rights under the Lease Agreement or any
portion thereof or which would affect the validity or enforceability of
this Assignment, nor is Assignor subject to any bankruptcy or
insolvency actions or proceedings.
4.6. To the best of Assignor's knowledge, Assignor has not received
written notice of any action, litigation, or proceeding by any
organization, person, individual, or govemmenW agency (including
governmental actions under condemnation authority or proceedings
similar thereto) relating to the Premises, the Lease, or any portion of
the Property.
4.7. Assignor has not subordinated its interest in the Lease to, or entered
into, any easements, covenants, restrictions, conditions, or other
matters affecting the Premises other than as set forth herein or as may
be disclosed by a search of the land records of the jurisdiction in
which the Premises is located.
5. POSSESSION
Assignor hereby tenders, and Assignee hereby accepts, possession of the
Premises in its "AS 1S," "WHERE IS," AND "WITH ALL FAULTS"
condition. Assignor makes no representations or warranties with respect to the
physical condition of the Premises or th-. suitability thereof for Assignee's use.
6. TITLE EXCEPTIONS
This Assignment is subject to:
6.1. Zoning and applicable laws and regulations;
6.2. Any matter which an accurate survey or personal inspection of the
Premises would disclose; and
6.3. Any easements, covenants, restrictions, conditions, or other matters of
record as of the Effective Date.
7. RELEASE FROM LIABILITY OF LS SIGNOR
Upon execution of this Assignment, Assignor is released from all liability
under the Lease Agreement. Distribution of rights and obligations arising
under the Lease Agreement, including, but not limited to, any defaults under
the Lease Agreement, bankruptcy of tnr assignee, noticts f om the Landlord,
default under the Lease Agreement by the Landlord, terms of further
assignment, subleasing rights, and insurance for the Premises are subject to the
terms of the Lease Agreement or any amendments or modifications to the
Lease Agreement made exclusively between Landlord and Assignee.
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8. APPLICABLE LAW
This Assignment shall be interpreted and construed in accordance with the
laws of the State of California.
9. DEFINED TERMS: CAPTIONS
Any formal capitalized term, word, or phrase not defined in this Assignment
shall have the meaning set forth for sueh term in the Lease Agreement.
Captions appearing in this Assignment are provided only as a matter of
convenience and do not define, limit, construe, or proscribe the scope or intent
of the seetions or subsections of this Assignment, nor in any way affect this
Assignment.
lb. NOTICES
Upon and after the Effective Date of this Assignment, all notices required or
desired to be given to Assignee hereunder or under the Lease Agreement shall
be addressed to Assignee at the business address set forth above.
11. SUCCESSORS AND ASSIGNS
This Assigunent shall be binding upon and inure to the benefit of the parties
hereto, and their legal and personal represenlatives, successors, and assigns.
12. COUNTERPART EXECUTION
This Assignment may be executed in counterparts and all counterparts shall
collectively constitute a single agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date first above written.
ASSIGNOR: S "FREETER AND SONS[, INC.] DBA
COFFEE SOCIETY
By:RJ�\�4
f Jackie StreeV, Owner
'/
Date: —I t i T r 1
ASSIGNEE: JE]? SUNG LEE
Jee Sung Lee
Date: q % .j ct / -11
M-M
LEASE AGREEMENT
Streeter and Sons doing business as COFFEE SOCIETY
This Lease Agreement ("Lease") is entered into as of the I st day of March 1, 2011. by and between the
City of Cupertino, a municipal corporation, 10300 Torre Avenue, Cupertino. CA 95014 ( "Landlord"). and
Streeter and Sons dba Coffee Society, 10800 Torre Avenue, Cupertino, CA 95014 ("Tenant").
WHEREAS, Landlord is the owner of certain real property commonly described as being located at 10800
Torre Avenue in the City of Cupertino, County of Santa Clara, California and more particularly described
in Exhibit "A" attached hereto ( "Landlord's Property "); and
WHEREAS, Landlord operates on Landlord's Property a public library, and desires to have Tenant operate
a cafe on the Property; and
WHEREAS, Tenant desires to lease from Landlord the cafe portion of Landlord`s Property (the "Leased
Premises ") to operate an independently owned cafe business.
NOW THEREFORE, in consideration of the promises and covenants contained herein and for other good
and valuable consideration, the parties hereby agree as follows:
I. LEASE OF PREMISES.
Landlord leases to Tenant and Tenant leases from Landlord the Leased Premises consisting of
approximately 500 square feet of interior space within the public library along with the non - exclusive right
to use, exterior public plaza space and more particularly depicted in Exhibit A. attached hereto, together
with the nonexclusive right to use the common areas and parking areas of Landlord's Property.
2. TERM AND OPTION.
2.1 Initial Term.
The initial term of this Lease shall be for the period commencing on March 1, 2011 ( "Commencement
Date ") and ending February 29, 2012.
2.2 Option.
Tenant is granted the option to extend the initial term of this lease for my (2) additional periods of one (1)
year provided Tenant is not in default ( "Extended Term "). The option to extend the term will be exercised
automatically unless Tenant provides written notice of termination to Landlord at least sixty (60) days prior
to the end of a term.
�VVIWV VI
3.1 Base Rent.
Tenant agrees to pay Landlord as rent for the Premises commencing upon the Commencement Date the
sums shown below in lawful money of the United States payable on or before the first day of each calendar
morith to the Landlord at the address shown in Section 21.
a. From March 1, 2011 through February 29, 2012, the monthly sum of 51,000.00
b. From March 1, 2012 throuoll February 28, 2013, the monthly sum of 51,030.00
c. From March 1, 2013 through February 28, 2014 , the monthly sum of $1.100.00
Corfu Socieny t.eut
Rizrch 1.2011— Februuy 29. M 2
kla
3.2 Late Charges.
Any installment of rent or any other sum due by Tenant and not received by Landlord within ten (10) days
after such amount shall be due, without any requirement for notice to Tenant_ shall be subject to a late.
charge equal to five percent (5a /o) of such overdue amount.
4. TAXES.
4.1 Real Estate Taxes.
For the term of this !..ease, Landlord shall pay all real estate taxes and assessments levied upon Landlord's
Property, if any.
4.2. Persona]'Property Taxes.
During the term hereof, Tenant shall pay, prior to delinquency, all taxes assessed against and levied upon
fixtures, furnishings, equipment and all other personal property of Tenant contained in the Leased
Premises, and when possible Tenant shall cause said fixtures, furnishings, equipment and other personal
property to be assessed and billed separately from the real property of Landlord. In the event any or all of
the Tenant's fixtures, furnishings, equipment and other personal property shall be assessed and taxed with
Landlord's real property, the Tenant shall pay to Landlord its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the amount of the taxes applicable to
the Tenant's property.
5. USE.
5.1 Tenant's Use.
Tenant shall use the Premises to operate a Cafe which intends to serve beverages, coffee, tea, pastry, light
lunch, dessert, and snack type items to the general public including City of Cupertino employees. Tenant
shall not use the Leased Premises for any other purpose without the written consent of Landlord, which
consent may be withheld in Landlord's sole and absolute discretion. Tenant, at Tenant's sole cost and
expense, shall comply with all applicable municipal, state and federal statutes, ordinances, rules and
regulations in effect during the term of this Lease regulating the use by Tenant of the Premises.
5.2. Uses Prohibited.
Tenant shall not use nor permit the use of the Leased Premises in any manner that will tend to create waste
or nuisance or unreasonably disturb other tenants and operators on Landlord's Property. No use shall be
made or permitted to be made of said Premises, nor acts done, which will increase the existing rate of
insurance upon the building in which said Premises may be located once said rate is established or cause a
cancellation of any insurance policy covering said building or any part thereof, nor shall Tenant sell or
permit to be kept, used or sold in or about said Premises, any article which may be prohibited by a standard
form of fire insurance policies. Tenant shall, at its sole cost, comply with any and all requirements,
pertaining to the use of said Premises, of any insurance organization or company necessary for the
maintenance of reasonable fire and public liability insurance, covering said building and appurten?nces.
Cofrce Society• lease
March 1.3011— rebruary 29.2012
6. ALTERATIONS AND FIXTURES.
6.1 Tenant's Rights.
Tenant shall not make any alterations of the Leased Premises, or any part thereof, without the prior written
consent of Landlord. Tenant shall repaint the interior walls of the Premises at Tenant's expense provided
that Landlord has approved the paint color selections. Any additions to, or alterations of, said Premises,
except movable furniture and trade fixtures, shall become at once a part of the realty and belong to
Landlord. Any such alterations shall be in conformance with the requirements of all municipal, state and
federal authorities. All fixtures, excluding trade fixtures, that are attached to the Premises shall become at
once a pan of the realty and belong to Landlord on expiration or sooner termination of this Lease.
6.2 Landlord's Rights.
Landlord has the right, in its sole discretion to modify. reconfigure and renovate the public library of which
the Leased Premises are pan; provided, however. that if the exercise of such right interferes with Tenant's
quite enjoyment of use of the Leased Premises, Tenant may terminate this lease.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1 Landlord's Obligations.
Except for damage caused by any negligent or intentional act or omission of Tenant. Tenant's agents.
employees, or invitees in which event Tenant shall repair the damage, Landlord, at Landlord's expense,
shall keep in good order, condition and repair the foundations, exterior walls and the exterior roof of the
Premises. Landlord shall have no obligation to make repairs under this Section 7.1 until a reasonable time
after receipt of written notice of the need for sueh repairs. Tenant expressly waives the benefits of any
statute now or hereafter in effect which would otherwise afford Tenant the right to make repairs at
Landlord's expense because of Landlord's failure to keep the Premises in good order, condition and repair.
Landlord, at Landlord's expense, shall keep in good order, condition and repair the Premises and every part
thereof (whether or not the damaged portion of the Premises or the means of repairing the same are
reasonably or readily accessible to Tenant) including, without limiting the generality of the foregoing, all
plumbing, electricaf and lighting facilities and equipment within the Premises, excluding trade fixtures,
interior walls and interior surface of exterior walls, ceilings, windows, doors: and glass, located within the
Premises. if a regulatory agency finds that there are alterations required to make the premises compliant
with the Americans with Disabilities Act, Landlord shall, at Landlord's expense, make the necessary
alterations to the premises.
7.2 Tenant's Obligations.
(a) Tenant agrees that it will manage its operation at the highest standards of cleanliness in
order to deliver an image that will appropriately blend) with Premises. Tenant shall be obligated for the
day - today maintenance and cleaning of the interior and exterior surface of windows and plate glass.
Tenant agrees that it will only employ people who create a clean, well - groomed, friendly, and positive
image of its business. Tenant further agrees that it will require its employees to wear a standard logo top
and similar matching pants in order to present a uniform staff appearance.
(b) if Tenant fails to perform Tenant's obligations under this Section or under any other
section of this Lease, Landlord may at Landlord's option enter upon the Premises after ten (10) days' prior
.mitten notice to Tenant (except in case of emergency, in which case no notice shall be required), perform
such obligations on Tenant's behalf and put the Premises in good order, condition and repair, and the cost
thereof together with interest thereon at the maximum rate then allowable by law shall be due and payable
as additional rent to Landlord together with Tenant's next rental installment.
Cols Socien• Lease
Marsh 1.2011- Fcbruuv 39. 201 ?
W On the last day of the term hereof, or on any sooner termination, Tenant shall surrender the
Premises to Landlord in good condition , ordinary wear and tear excepted, clean and free of debris
including the removal of Tenant's trade fixtures. Tenant shall repair any damage to the Premises
occasioned by the installation or removal of its trade &xtures, furnishings and equipment.
8. INSURANCE.
Landlord shall either self - insure or maintain fire and extended coverage insurance throughout the term of
this Lease in an amount equal to at least ninety (90 %) percent of the value of the building which includes
the Premises, together with such other insurance, including not limited to, loss of rents, flood insurance, all
liability insurance, plate glass insurance, and such other insurance as Landlord deems necessary or that may
be required by any governmental agency. Tenant hereby waives any right of recovery from Landlord, its
officers and employees, and Landlord hereby waives any right of recovery from Tenant, its officers or
employees, for any loss or damage (including consequential loss) resulting from any of the perils insured
against in the standard form fire insurance policy with extended coverage endorsement.
9. INDEMNIFICATION OF LANDLORD - LIABILITY INSURANCE BY TENANT.
9.1 Indemnification.
Tenant, as a material part of the consideration to be rendered to Landlord under this Lease, hereby waives
all claims against Landlord for damage to goods, wares and merchandise, in, upon or about said Premises
and for injuries to persons in or about said Premises, from any cause resulting from Tenant's use and
occupation on the Premise arising at any time; and Tenant will indemnify and hold Landlord and the
property of Landlord exempt and harmless from any and all claims, liabilities, loss, expenses, damage or
injury resulting from Tenant's use and occupation of the Premises, including, but not limited to, any claim,
liability, loss, or damage arising by reason of death or injury of any person, the damage to or destruction of
any property of any person, and any work performed on said Premises or materials furnished to said
Premises at the instance or request of Tenant or its ageiats or employees.
9.2 Tenant's Insurance.
During the entire term of this Lease, the Tenant shall, at the Tenant's sole cost and expense, but for the
mutual benefit of Landlord and Tenant, maintain general public liability and property damage insurance
including contractual liability insurance against claims for personal injury, death, or property damage
occurring in, upon or about the Premises and on the exterior public plaza space, more particularly depicted
in Exhibit A. The limitation of liability of such insurance shall be not less than One Million dollars
($1,000,000.00) in respect to any one occurrence, and to the limit of not less that One Million Dollars
($1,000,000.00) in respect to Property Damage. Landlord is to be named additional insured. All such
policies of insurance shall be issued in the name of Tenant and Landlord and for the mutual and joint
benefit and protection of the parties, and such policies of insurance shall include a provision requiring that
the insurer give Landlord at least ten (10) days written notice before any cancellation, decrease in coverage
or other material change is effective. Copied of the policy or a Certificate of insurance thereof shall be
delivered to the Landlord within fifteen (1 S) days after the Commencement Date stated. If Tenant fails to
deliver adequate proof that it has obtained and kept in force and effect the insurance required by this
Section, Landlord shall have the right, at its option and after notice to Tenant, to effect such insurance and
charge the cost of the premiums to Tenant's account.
10. ABANDONMENT OF PERSONAL PROPERTY.
Coffee Soeiay Lease
March 1. 2011 — February 29.2012
f00, /6*1
Tenant shall not vacate or abandon the Premises at ally time during the term of this Lease; and if Tenant
shall abandon, vacate or surrender the Premises or b1: dispossessed by process of law, or otherMse, any
personal property belonging to Tenant and left on the Premises shall be deemed to be abandoned, at the
option of Landlord, except such property as may be mortgaged to Landlord.
11. UTILITIES.
Tenant shall pay for telephone service, janitorial service including interior and exterior window washing
and all other services used in, upon, or about the Premises by Tenant with the exception of water, sewer,
trash removal from receptacles and electricity which Landlord shall pay.
12. ENTRY AND INSPECTION.
Tenant shall permit Landlord and his agents to enter into and upon the Premises at all reasonable times
after notice, except in case of an emergency, for the purpose of inspecting the same or for the purpose of
maintaining the building in which said Premises are situated, or for the purpose of making repairs,
alterations or additions to any other portion of said building, including the erection and maintenance of
such scaffolding, canopy, fences and props as may be required, or for the purpose of posting notices of non -
liability for alterations. additions or repairs. Landlord shall be permitted to do any of the above without any
rebate of rent and without any liability to Tenant for any loss of occupation or quiet enjoyment of the
Premises thereby occasioned. Tenant shall permit Landlord, at any time within ninety (90) days prior to the
expiration of this lease, to place upon said Premises any usual or ordinary "For Lease" signs and during
such ninety (90) day period Landlord or his agents nosy, during normal business hours, enter upon said
Premises and exhibit same to prospective tenants.
13. DAMAGE AND DESTRUCTION OF PREMISES.
In the event of (a) partial destruction of said Premise!; or the building containing same during the term of
this Lease or any extensions thereof, which requires repairs to either said Premises or said building, or (b)
said Premises or said building being declared unsaf: or unfit for occupancy by any authorized public
authority for any reason other than Tenant's act_ use or occupation, which declaration requires repairs to
either said Premises or said building, Landlord shall fDrthwith make said repairs provided Tenant gives to
Landlord thirty (30) days written notice of the necessity therefore. No such partial destruction (including
any destruction necessary in order to make repairs required by any declaration made by any public
authority) shall in any way annul or void this Lease except that Tenant shall be entitled to a proportionate
reduction of minimum guaranteed rent while such repairs are being made, such proporrionate reduction to
be based upon the extent to which the making of such repairs shall interfere with the business carried on by
Tenant in said Premises. However, if during the last one year of the term of this Lease the building is
damaged as a result of fire or any other insured casualty to an foundation), Landlord may, within thirty (30)
days following the date such damage occurs, terminate- this Lease by written notice to Tenant. If Landlord,
however, elects to make said repairs, and provided Landlord uses due diligence in making said repairs, this
Lease shall continue in full force and effect and the minimum guaranteed rent shall be proportionately
reduced as provided above, If Landlord elects to terminate this Lease all runts shall be prorated between
Landlord and Tenant as of the date of such destruction. The foregoing to the contrary notwithstanding, if
the building is damaged or destroyed at any time during the term hereof to an extent of more than twenty-
... five =(25 %) percent of -its then replacement cost (excluding foundation) as a resn t of a casualty not insured..•- -
against; Landlord may within thirty (30) days following the date of such destruction terminate this Lease
upon written notice to Tenant. If Landlord does not elect to so terminate because of said uninsured casualty.
Landlord shall promptly rebuild and repair said Premises and Tenant's rental obligation shall be'
proportionately reduced as provided above. In respect to any partial destruction (including any destruction
necessary in order to make repairs required by any authorized public authority) which Landlord is obligated .
Cofree Society Lent
March 1.2011 .- Fcbt uy 29.2012
to repair and may elect to repair under the terms of this Article, Tenant waives any statutory right it may
have to cancel this Lease as a result of such destruction.
14. SAYE OF BUSINESS, ASSIGNMENT AND SUBLETTING.
Tenant shall not be permitted for any reason to assign or sublet the Lease during the first twenty-four (24)
months of this Lease, except as provided below. During the last twelve (12) months of this lease, Tenant
shall not, without Landlord's prior written consent, which consent may be withheld in Landlord's sole and
absolute discretion, sublet the Premises or any part then:of or assign the Lease.
Notwithstanding the foregoing, Tenant is permitted to sell the "Coffee Society" and assign the Lease
provided the purchaser or assignee provides the same name, type and level of service as currently offered.
In the.event of a sale of the business Tenant will be released from all liability under this Lease.
15. EMMENT DOMAIN.
If all or any part of the Premises is taken for public or quasi- public use by a governmental authority under
the power of eminent domain or is conveyed to a gove:mmental authority in lieu of such taking, and if the
taking or conveyance causes the mmaining.part of the Premises to be untenantable and inadequate for use
by Tenant for the purpose for which they were leased, dun Tenant, at its option and by giving notice.within
fifteen (15) days after the taking, may terminate this Lease as of the date Tenant is required to surrender
possession of the Premises. If a part of the Premises is taken or conveyed but the remaining part is
tenantable and adequate for Tenant's use, then this 'Lease shall be terminated as to the part taken or
conveyed as of the date Tenant surrenders possession;, Landlord shall make such repairs, alterations and
improvements as may be necessary to render the part rot taken or conveyed tenantable; and the rent shall
be reduced in proportion to the part of the Premises taken or conveyed. All compensation awarded for the
taking or conveyance shall be the property of Landlord without any deduction therefrom for any estate of
Tenant, and Tenant hereby assigns to Landlord all its right, title and interest in and to the award. Tenant
shall have the right, however, to recover from the governmental authority, but not from Landlord, such
compensation as may be awarded to Tenant on account of the interruption of Tenant's business, moving
and relocation expenses and removal of Tenant's trade fixtures and personal property.
16. DEFAULT.
If Tenant fails to make any payment required by the provisions of this Lease, after ten (10) days of the due
date, or fails within fifteen (15) days after written notice thereof to correct any breach or default of the
other covenants, terms or conditions of this Lease, or if Tenant breaches this Lease and abandons the
property before the end of the term, such acts shall constitute a default under this Lease and Landlord shall
have the right at any time thercafter to elect to terminate said Lease and Tenant's right to possession
thereunder. Upon such termination, Landlord shall have the right to recover against Tenant:
(a) The worth at the time of award of the unpaid rent, which had been eamed at the time of
termination;
(b) The worth at the time of award of the amount by which the unpaid rent which would have
been earned after termination until the time of award exceeds the amount of such rental loss that the Tenant
proves could have been reasonably avoided; .
(c) The worth at the time of award of the amount by which the unpaid rent for the balance of
the term after the time of award exceeds the amount of such rental loss that the Tenant proves could be
reasonably avoided; and
Coffee Society Lease
Much 1.2011 — February 29. 2012
i"` eol1
(d) Any other amount necessary to compensate the Landlord for all the detriment proximately
caused by Tenant's failure to perform its oblicrations under the Lease or which in the ordinary course of
things would be likely to result therefore.
The "worth at the time of award" of the amounts referred to in subsections a. and b. above shall be
computed by allowing interest at ten (10 %) percent per annum or the maximum rate permitted by law. The
worth at the time of award of the amount referred to in subsection c. shall be computed by discounting the
amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one
(I%) percent.
Such efforts as Landlord may make to mitigate the darr.ages caused by Tenant's breach of this Lease do not
constitute a waiver of Landlord's right to recover damages against Tenant hereunder. nor shall anything
contained herein affect Landlord's right to indemnification against Tenant for any liability arising prior to
termination of this Lease for personal injuries or property damage, and Tenant hereby agrees to indemnify
and hold Landlord harmless from any such injuries and damages, including all attorney's fees and costs
incurred by Landlord in defending any action brought against Landlord for any recovery thereof, and in
enforcing the terms and provisions of this indemnification provision against Tenant.
If Landlord clects to terminate this Lease and gives Tenant notice of such termination. upon the giving of
such notice, the term of this Lease and the estate hereby granted shall expire and terminate on the effective
date of the notice as fully and completely and with the same effect as if such date were the date herein fixed
for the expiration of the term of this Lease and all rights of Tenant shall hereunder expire and terminate, but
Tcnant shall remain liable as here before provided.
In the event Tenant abandons the Premises, this Lease shall terminate if the Landlord gives written notice
of his belief of abandonment pursuant to Civil Code Sections 1951.2 and 1951.3.
Notwithstanding any of the following, the breach of this Lease by Tenant, or an abandonment of the
Premises by Tenant, shall not constitute a termination of this Lease, or of Tenant's right of possession
hereunder, unless and until Landlord elects to do so, and until such time Landlord shall have the right to
enforce all of its rights and remedies under this Lease, including the right to recover rent, and all other
payments to be made by Tenant hereunder, as it becomes due; provided, however, that until such time as
Landlord elects to terminate this Lease, and Tenant's right of possession hereunder, to collect said rents,
issues and profits as the become due and payable. Upon any such breach or default, Landlord shall have
the right at any time thereafter, without notice except a:; provided for above, either in person, by agent or by
a receiver to be appointed by a court, to enter and take: possession of said Premises and collect such rents,
issues and profits, including those past due and unpaid, and apply the same less costs and expenses of
operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and
in such order as Landlord may determine.
The parties hereto agree that acts of maintenance or preservation or efforts to re -lease the Premises. or the
appointment of a receiver upon the initiativc of the Landlord to protect its interests under this Lease shall
not constitute a termination of Tenant's right of possession for the purposes of this Article unless
accompanied by a written notice from Landlord to Tenant of Landlord's election to so terminate. Nothing
contained in this Article shall in any way diminish or be construed as waiving any of the Landlord's other
remedies as provided elsewhere in this Lease or by law or in equity.
17. ATTORNEY'S FEES.
If Landlord is involuntarily made a parry defendant to any litigation concerning this Lease or the Premises
by reason of any act or omission of Tenant, then, Tenant shall hold harmless Landlord from all liabilities by
reason thereof, including reasonable attorneys' fees and all costs incurred by Landlord in such litigation.
Coffee Society Lease
Mamh 1. 2011 — February 9.2012
t61N /"MN
Landlord shall be entitled to recover all collection costs including reasonable attorney's fees incurred by it
as a result of Tenant's default as herein provided. if either Landlord or Tenant shall commence any legal
proceedings against the other with respect to any of the terms and conditions of this Lease, the non -
prevailing parry therein shall pay to the other all expenses of said litigation, including a reasonable
attorneys' fees as may be fixed by the court having jurisdiction for litigation of any matters relating to this
Lease and service mailed to the address of tenants s +:t forth herein shall be adequate service for such
litigation.
18. SECURITY DEPOSIT.
Tenant has deposited with Landlord the sum of Five Thousand Dollars ($5.000,00), receipt of which is
hereby acknowledged by Landlord, said deposit being given to secure the faithful performance by the
Tenant of all of the terms, covenants, and conditions of this Lease by the Tenant to be kept and performed
during the term hereof. Tenant agrees that if the Tenant shall fail to pay the rent herein reserved promptly
when due, said deposit may, at the option of the Landlord (but Landlord shall not be required to) be applied
to any rent due and unpaid, and if the Tenant violates any of the other terms, covenants, and conditions of
this Lease, said deposit shall be applied to any damages suffered by Landlord as a result of Tenant's default
to the extent of the amount of the damages suffered. Landlord shall not be required to keep such deposit
separate from its general accounts.
Nothing contained in this Article shall in any way diminish or be construed as waiving any of the
Landlord's other remedies as provided herein, or by lavr or in equity. Should the entire security deposit, or
any portion thereof, be appropriated and applied by Landlord for the payment of overdue rent or other sums
due and payable to Landlord by Tenant hereunder, then Tenant shall, on the written demand of Landlord,
forthwith remit to Landlord a sufficient amount in cash to restore said security deposit to its original
amount, and Tenant's failure to do so within fifteen (15) days after receipt of such demand, shall constitute
a breach of this Lease. Should Tenant comply with all of the terms, covenants, and conditions of this Lease
and promptly pay all of the rental herein provided for as it falls due, and all other sums payable by Tenant
to Landlord hereunder, said security deposit shall be returned in full to Tenant at the end of the term of this
Lease, or upon the earlier termination of this Lease, except in the event the Premises are sold as a result of
the exercise of any power of sale under any mortgage or deed of trust, in which event this Lease shall be
automatically amended to delete any reference to this Section, and Tenant shall be entitled to immediate
reimbursement of its security deposit from the parry then holding said deposit. This Lease does not create a
trust relationship between Landlord and Tenant with respect to such security deposit; and Landlord shall be
entitled to treat such security deposit as Landlord's own property.
19. HOLDING OVER
Any holding over after the expiration of the term of this Lease, with the consent of Landlord, shall be
construed to be a tenancy from month to month, cancellable upon thirty (30) days written notice, and upon
terms and conditions as existed during the last year of the term hereof except that the rent payable shall be
one hundred and fifty percent (150°/x) of the rent payable immediately preceding the termination date of
this Lease.
20. BINDING EFFECT.
The provisions of this Lease shall, subject to Section 14 on assignment, apply to and bind the heirs.
successors, executors, administrators and assigns of all the parties hereto.
Coffee Sotittr Lease
March 1.2011— Febnun•29.2012
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21. NOTICE.
All notices must be in writing and shall be delivered by hand, by nationally recognized overnight express
delivery service or by U.S. registered or certified mail, to the addresses set forth below:
TENANT: Jackie Streeter
Streeter and Sons dba Coffee Society
10800 Torre Avenue
Cupertino, CA 95014 -3255
Phone: (408) 425 -3660
LANDLORD: David W. Knapp
City Manager
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014 -3255
Phone: (408) 777 -320:2
22. PARTIAL INVALEDM.
If any term, covenant, condition or provision of this Lease is held by a court of competent jurisdiction to be
invalid, void or enforceable, the remainder of the provisions hereof shall remain in full force and effect and
shall in no way be affected, impaired or invalidated thereof.
23. ENTIRE AGREEMENT.
This Lease sets forth the entire agreement between the parties. No amendment or modification of this
lease shall be binding or valid except by written instrument and signed by the parties.
Executed as of the date first written above.
Lan rd: CITY OF CUPERTINO
David W. Knapp
City Manager
Ten : STREETER AND SONS dba COFFEE SOCIETY
By 22 col r
Jackie eter
Owne
APPROVED AS TO FORM:
Carol Korade
City Attorney
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LEASE AGREEMENT
Streeter and Sons doing business as COFFEE SOCIETY
This Lease Agreement (`Lease ") is entered into as of the 1 st day of March l , 2011. by and between the
City of Cupertino, a municipal corporation, 10300 Torre Avenue, Cupertino. CA 95014 ( "Landlord"), and
Streeter and Sons dba Coffee Society, 10800 Torre Avenue, Cupertino, CA 95014 (`Tenant").
WHEREAS, Landlord is the owner of certain real property commonly described as being located at 10800
Torre Avenue in the City of Cupertino, County of Santa Clara, California and more particularly described
in Exhibit "A" attached hereto (`Landlord's Property-): and
WHEREAS. Landlord operates on Landlord's Property a public library. and desires to have Tenant operate
a cafe on the Property: and
WHEREAS, Tenant desires to lease from Landlord the cafe portion of Landlord's Property (the "Leased
Premises ") to operate an independently owned cafe business.
NOW THEREFORE, in consideration of the promises and covenants contained herein and for other good
and valuable consideration, the parties hereby agree as follows:
1. LEASE OF PREMISES.
Landlord leases to Tenant and Tenant leases from Landlord the Leased Premises consisting of
approximately 500 square feet of interior space within the public library along with the non - exclusive right
to use exterior public plaza space and more particularly depicted in Exhibit A. attached hereto, together
with the nonexclusive right to use the common areas and parking areas of Landlord's Property.
2. TERM AND OPTION.
2.1 Initial Term.
The initial term of this Lease shall be for the period commencing on March 1, 2011 ("Commencement
Date ") and ending February 29, 2012.
2.2 Option.
Tenant is granted the option to extend the initial term of this lease for two (2) additional periods of one (1)
year provided Tenant is not in default ( "Extended Term''). The option to extend the term will be exercised
automatically unless Tenant provides written notice of termination to Landlord at least sixty (60) days prior
to the end of a term.
3. RENT.
3.1 Base Rent.
Tenant agrees to pay Landlord as rent for the Premises commencing upon the Commencement Date the
sums shown below in lawful money of the United States payable on or before the first day of each calendar
month to the Landlord at the address shown in Section 21.
a. From March 1. 2011 through February 29. 2012, the monthly sum of $1,000.00
b. From March 1, 2012 through February 28. 2013, the monthly sum of $1,050.00
c. From March 1, 2013 through February 28. 2014 , the monthly sum of $1,100.00
Coffee SocietN Lease
March 1. 201 1 — Februan 29 . 2012
3.2 Late Charges.
Any installment of rent or any other sum due by Tena,it and not received by Landlord within ten (10) days
after such amount shall be due, without any requirement for notice to Tenant, shall be sub_lect to a late
charge equal to five percent (5 %) of such overdue amount.
4. TAXES.
4.1 Real Estate Taxes.
For the term of this Lease, Landlord shall pay all real estate taxes and assessments levied upon Landlord's
Property, if any.
4.2. Personal Property Taxes.
During the term hereof, Tenant shall pay, prior to delinquency, all taxes assessed against and levied upon
fixtures, furnishings. equipment and all other personal property of Tenant contained in the Leased
Premises, and when possible Tenant shall cause said fixtures, furnishings, equipment and other personal
property to be assessed and billed separately from the real property of Landlord. In the event any or all of
the Tenant's fixtures, furnishings, equipment and other personal property shall be assessed and taxed with
Landlord's real property, the Tenant shall pay to Landlord its share of such taxes within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the amount of the taxes applicable to
the Tenant's property.
5. USE.
5.1 Tenant's Use.
Tenant shall use the Premises to operate a cafe which intends to serve beverages, coffee, tea, pastry, light
lunch, dessert, and snack type items to the general public including City of Cupertino employees. Tenant
shall not use the Leased Premises for any other purpose without the written consent of Landlord, which
consent may be withheld in Landlord's sole and absolute discretion. Tenant, at Tenant's sole cost and
expense, shall comply with all applicable mtmicipal, state and federal statutes, ordinances, rules and
regulations in effect during the tern of this Lease regulating the use by Tenant of the Premises.
5.2. Uses Prohibited.
Tenant shall not use nor permit the use of the Leased Premises in any manner that will tend to create waste
or nuisance or unreasonably disturb other tenants and operators on Landlord's Property. No use shall be
made or permitted to be made of said Premises, nor acts done, which will increase the existing rate of
insurance upon the building in which said Premises may be located once said rate is established or cause a
cancellation of any insurance policy covering said building or any part thereof, nor shall Tenant sell or
permit to be kept, used or sold in or about said Premises, any article which may be prohibited by a standard
form of fire insurance policies. Tenant shall, at its sole cost, comply with any and all requirements.
pertaining to the use of said Premises. of any insurance organization or company necessary for the
maintenance of reasonable fire and public liability insurance. covering said building and appurtenances.
Coffee Societe Lease
March I. 2011 — Febaiary 29 . 2012
6. ALTERATIONS AND FIXTURES.
6.1 Tenant's Rights.
Tenant shall not make any alterations of the Leased Premises, or any part thereof. without the prior written
consent of Landlord. Tenant shall repaint the interior walls of the Premises at Tenant's expense provided
that Landlord has approved the paint color selections. Any additions to, or alterations of, said Premises,
except movable furniture and trade fixtures, shall become at once a part of the realty and belong to
Landlord. Any such alterations shall be in conformance with the requirements of all municipal, state and
federal authorities. All fixtures, excluding trade fixtures, that are attached to the Premises shall become at
once a part of the realty and belong to Landlord on expiration or sooner termination of this Lease.
6.2 Landlord's Rights.
Landlord has the right, in its sole discretion to modify. reconfigure and renovate the public library of which
the Leased Premises are part, provided, however, that if the exercise of such right interferes with Tenant's
quite enjoyment of use of the Leased Premises, Tenant may terminate this lease..
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1 Landlord's Obligations.
Except for damage caused by any negligent or intentional act or omission of Tenant, Tenant's agents,
employees, or invitees in which event Tenant shall repair the damage. Landlord, at Landlord's expense,
shall keep in good order, condition and repair the foundations, exterior walls and the exterior roof of the
Premises. Landlord shall have no obligation to make repairs under this Section 7.1 until a reasonable time
after receipt of written notice of the need for such repairs. Tenant expressly waives the benefits of any
statute now or hereafter in effect which would otherwise afford Tenant the right to make repairs at
Landlord's expense because of Landlord's failure to keep the Premises in good order" condition and repair.
Landlord" at Landlord's expense, shall keep in good order, condition and repair the Premises and every part
thereof (whether or not the damaged portion of the Premises or the means of repairing the same are
reasonably or readily accessible to Tenant) including. without limiting the generality of the foregoing. all
plumbing. electrical and lighting facilities and equipment within the Premises, excluding trade fixtures,
interior walls and interior surface of exterior walls, ceilings, windows, doors" and glass, located within the
Premises. If a regulatory agency finds that there are alterations required to make the premises compliant
with the Americans with Disabilities Act, Landlord shall, at Landlord "s expense, make the necessary
alterations to the premises.
7.2 Tenant's Obligations.
(a) Tenant agrees that it will manage its operation at the highest standards of cleanliness in
order to deliver an image that will appropriately blend with Premises. Tenant shall be obligated for the
day -to -day maintenance and cleaning of the interior and exterior surface of windows and plate glass.
Tenant agrees that it will only employ people who create a clean, well- groomed, fi-iendly, and positive
image of its business. Tenant further agrees that it will require its employees to wear a standard logo top
and similar matching pants in order to present a uniform staff appearance.
(b) If Tenant fails to perform Tenant's obligations under this Section or under any other
section of this Lease, Landlord may at Landlord's option enter upon the Premises after ten (10) days" prior
written notice to Tenant (except in case of emergency, in which case no notice shall be required), perform
such obligations on Tenant's behalf and put the Premises in good order, condition and repair, and the cost
thereof together with interest thereon at the maximum rate then allowable by law shall be due and payable
as additional rent to Landlord together with Tenant "s next rental installment.
Coffee socict_v Lcase
March I. 201 1 — Fcbruar\ 29 . 2012
(c) On the last day of the term hereof, or on any sooner termination, Tenant shall surrender the
Premises to Landlord in good condition , ordinary wear and tear excepted, clean and free of debris
including the removal of Tenant's trade fixtures. Tenant shall repair any damage to the Premises
occasioned by the installation or removal of its trade fixtures, furnishings and equipment.
8. INSURANCE.
Landlord shall either self - insure or maintain fire and extended coverage insurance throughout the term of
this Lease in an amount equal to at least ninety (90 %) percent of the value of the building which includes
the Premises, together with such other insurance, including not limited to, loss of rents, flood insurance, all
liability insurance, plate glass insurance, and such other insurance as Landlord deems necessary or that may
be required by any governmental agency. Tenant hereby waives any right of recovery from Landlord, its
officers and employees, and Landlord hereby waives any right of recovery from Tenant, its officers or
employees, for any loss or damage (including consequential loss) resulting from any of the perils insured
against in the standard form fire insurance policy with extended coverage endorsement.
9. INDEMNIFICATION OF LANDLORD - LIABILITY INSURANCE BY TENANT.
9.1 Indemnification.
Tenant, as a material part of the consideration to be rendered to Landlord under this Lease, hereby waives
all claims against Landlord for damage to goods, war: s and merchandise, in, upon or about said Premises
and for injuries to persons in or about said Premises, from any cause resulting from Tenant's use and
occupation on the Premise arising at any time; and Tenant will indemnify and hold Landlord and the
property of Landlord exempt and harmless from any and all claims, liabilities, loss, expenses, damage or
injury resulting from Tenant's use and occupation of the Premises, including, but not limited to, any claim,
liability, loss, or damage arising by reason of death or injury of any person, the damage to or destruction of
any property of any person, and any work performed on said Premises or materials furnished to said
Premises at the instance or request of Tenant or its agents or employees.
9.2 Tenant's Insurance.
During the entire term of this Lease, the Tenant shall, at the Tenant's sole cost and expense, but for the
mutual benefit of Landlord and Tenant, maintain general public liability and property damage insurance
including contractual liability insurance against claims for personal injury, death, or property damage
occurring in, upon or about the Premises and on the exterior public plaza space, more particularly depicted
in Exhibit A. The limitation of liability of such insurance shall be not less than One Million dollars
($1,000,000.00) in respect to any one occurrence, and to the limit of not less that One Million Dollars
($1,000,000.00) in respect to Property Damage. Landlord is to be named additional insured. All such
policies of insurance shall be issued in the name of Tenant and Landlord and for the mutual and joint
benefit and protection of the parties, and such policies of insurance shall include a provision requiring that
the insurer give Landlord at least ten (10) days written notice before any cancellation, decrease in coverage
or other material change is effective. Copies of the policy or a Certificate of Insurance thereof shall be
delivered to the Landlord within fifteen (15) days after the Commencement Date stated. If Tenant fails to
deliver adequate proof that it has obtained and kepi in force and effect the insurance required by this
Section, Landlord shall have the right, at its option and after notice to Tenant, to effect such insurance and
charge the cost of the premiums to Tenant's account.
10. ABANDONMENT OF PERSONAL PROF'ERTY.
Coffee Societri Lease
March 1. 2011 — February 29. 2012
Tenant shall not vacate or abandon the Premises at any time during the term of this Lease. and if Tenant
shall abandon, vacate or surrender the Premises or be dispossessed by process of law, or otherwise, any
personal property belonging to Tenant and left on the Premises shall be deemed to be abandoned, at the
option of Landlord. except such property as may be mortgaged to Landlord.
11. UTILITIES.
Tenant shall pay for telephone service, janitorial service including interior and exterior window washing
and all other services used in, upon, or about the Premises by Tenant with the exception of water, sewer,
trash removal from receptacles and electricity which Landlord shall pay.
12. ENTRY AND INSPECTION.
Tenant shall permit Landlord and his agents to enter into and upon the Premises at all reasonable times
after notice, except in case of an emergency, for the purpose of inspecting the same or for the purpose of
maintaining the buildino in which said Premises a °e situated. or for the purpose of making repairs,
alterations or additions to any other portion of said building, including the erection and maintenance of
such scaffolding, canopy, fences and props as may be required, or for the purpose of posting notices of non -
liability for alterations, additions or repairs. Landlord shall be permitted to do any of the above without anv
rebate of rent and without any liability to Tenant for any loss of occupation or quiet enjoyment of the
Premises thereby occasioned. Tenant shall permit Landlord, at any time within ninety (90) days prior to the
expiration of this Lease, to place upon said Premises any usual or ordinary "For Lease" signs and during
such ninety (90) day period Landlord or his agents may, during normal business hours, enter upon said
Premises and exhibit same to prospective tenants.
13. DAMAGE AND DESTRUCTION OF PREMISES.
In the event of (a) partial destruction of said Premises or the building containing same during the term of
this Lease or any extensions thereof, which requires repairs to either said Premises or said building. or (b)
said Premises or said building being declared unsafe or unfit for occupancy by any authorized public
authority for any reason other than Tenant's act. use or occupation. which declaration requires repairs to
either said Premises or said building, Landlord shall forthwith make said repairs provided Tenant gives to
Landlord thirty (30) days written notice of the necessity therefore. No such partial destruction (including
any destruction necessary in order to make repairs required by any declaration made by any public
authority) shall in any way annul or void this Lease except that Tenant shall be entitled to a proportionate
reduction of minimum guaranteed rent while such repairs are being made, such proportionate reduction to
be based upon the extent to which the making of such repairs shall interfere with the business carried on by
Tenant in said Premises. However, if during the last one year of the term of this Lease the building is
damaged as a result of fire or any other insured casualty to an foundation), Landlord may. within thirty (30)
days following the date such damage occurs, terminate this Lease by written notice to Tenant. If Landlord,
however, elects to make said repairs, and provided Landlord uses due diligence in making said repairs, this
Lease shall continue in full force and effect and the minimum guaranteed rent shall be proportionately
reduced as provided above. If Landlord elects to terminate this Lease all rents shall be prorated between
Landlord and Tenant as of the date of such destruction. The foregoing to the contrary notwithstanding, if
the building is damaged or destroyed at any time during the term hereof to an extent of more than twenty -
five (25 %) percent of its then replacement cost (excluding foundation) as a result of a casualty not insured
against, Landlord may within thirty (30) days following the date of such destruction terminate this Lease
upon written notice to Tenant. If Landlord does not elect to so terminate because of said uninsured casualty.
Landlord shall promptly rebuild and repair said Premises and Tenant's rental obligation shall be
proportionately reduced as provided above. In respect to any partial destruction (including any destruction
necessary in order to make repairs required by any authorized public authority) which Landlord is obligated
Coffee Society Lease
March I. 2011 — E ebaiary 29 . 2012
to repair and may elect to repair under the terms of this Article, Tenant waives any statutory right it may
have to cancel this Lease as a result of such destruction.
14. SALE OF BUSINESS, ASSIGNMENT AND SUBLETTING.
Tenant shall not be permitted for any reason to assign or sublet the Lease during the first twenty-four (24)
months of this Lease, except as provided below. During the last twelve (12) months of this lease, Tenant
shall not, without Landlord's prior written consent, which consent may be withheld in Landlord's sole and
absolute discretion, sublet the Premises or any part thereof or assign the Lease.
Notwithstanding the foregoing, Tenant is permitted to sell the "Coffee Society" and assign the Lease
provided the purchaser or assignee provides the same name, type and level of service as currently offered.
In the event of a sale of the business Tenant will be released from all liability under this Lease.
15. EMINENT DOMAIN.
If all or any part of the Premises is taken for public or quasi - public use by a governmental authority under
the power of eminent domain or is conveyed to a governmental authority in lieu of such taking, and if the
taking or conveyance causes the remaining part of the Premises to be untenantable and inadequate for use
by Tenant for the purpose for which they were leased, then Tenant, at its option and by giving notice within
fifteen (15) days after the taking, may terminate this Lease as of the date Tenant is required to surrender
possession of the Premises. If a part of the Premises is taken or conveyed but the remaining part is
tenantable and adequate for Tenant's use, then this Lease shall be terminated as to the part taken or
conveyed as of the date Tenant surrenders possession; Landlord shall make such repairs, alterations and
improvements as may be necessary to render the part not taken or conveyed tenantable; and the rent shall
be reduced in proportion to the part of the Premises taken or conveyed. All compensation awarded for the
taking or conveyance shall be the property of Landlord without any deduction therefrom for any estate of
Tenant, and Tenant hereby assigns to Landlord all its right, title and interest in and to the award. Tenant
shall have the right, however. to recover from the governmental authority. but not from Landlord, such
compensation as may be awarded to Tenant on account of the interruption of Tenant's business, moving
and relocation expenses and removal of Tenant's trade fixtures and personal property.
16. DEFAULT.
If Tenant fails to make any payment required by the p -ovisions of this Lease, after ten (10) days of the due
date, or fails within fifteen (15) days after written notice thereof to correct any breach or default of the
other covenants, terms or conditions of this Lease, or if Tenant breaches this Lease and abandons the
property before the end of the term, such acts shall constitute a default under this Lease and Landlord shall
have the right at any time thereafter to elect to terminate said Lease and Tenant's right to possession
thereunder. Upon such termination, Landlord shall have the right to recover against Tenant:
(a) The worth at the time of award of the unpaid rent, which had been earned at the time of
termination;
(b) The worth at the time of award of the arnount by which the unpaid rent which would have
been earned after termination until the time of award exceeds the amount of such rental loss that the Tenant
proves could have been reasonably avoided;
(c) The worth at the time of award of the amount by which the unpaid rent for the balance of
the term after the time of award exceeds the amount of such rental loss that the Tenant proves could be
reasonably avoided; and
Coffee Society Lease
March I. 2011 — February 29. 2012
(d) Any other amount necessary to compensate the Landlord for all the detriment proximately
caused by Tenant's failure to perform its obligations under the Lease or which in the ordinary course of
things would be likely to result therefore.
The "worth at the time of award" of the amounts referred to in subsections a. and b. above shall be
computed by allowing interest at ten (10 %) percent per annum or the maximum rate permitted by law. The
worth at the time of award of the amount referred to in subsection c. shall be computed by discounting the
amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one
(1 %) percent.
Such efforts as Landlord may make to mitigate the darnages caused by Tenant's breach of this Lease do not
constitute a waiver of Landlord's right to recover damages against Tenant hereunder, nor shall anything
contained herein affect Landlord's right to indemnification against Tenant for any liability arising prior to
termination of this Lease for personal injuries or property damage, and Tenant hereby agrees to indemnify
and hold Landlord harmless from any such injuries and damages, including all attorney's fees and costs
incurred by Landlord in defending any action brougl►t against Landlord for any recovery thereof, and in
enforcing the terms and provisions of this indemnification provision against Tenant.
If Landlord elects to terminate this Lease and gives Tenant notice of such termination" upon the giving of
such notice, the term of this Lease and the estate hereby granted shall expire and terminate on the effective
date of the notice as fully and completely and with the same effect as if such date were the date herein fixed
for the expiration of the term of this Lease and all righ-:s of Tenant shall hereunder expire and terminate. but
Tenant shall remain liable as here before provided.
In the event Tenant abandons the Premises, this Least: shall terminate if the Landlord gives written notice
of his belief of abandonment pursuant to Civil Code Sections 1951 2 and 1951.3.
Notwithstanding any of the following, the breach of this Lease by Tenant, or an abandonment of the
Premises by Tenant, shall not constitute a termination of this Lease, or of Tenant "s right of possession
hereunder, unless and until Landlord elects to do so, and until such time Landlord shall have the right to
enforce all of its rights and remedies under this Lease, including the right to recover rent, and all other
payments to be made by Tenant hereunder, as it becomes due, provided, however, that until such time as
Landlord elects to terminate this Lease, and Tenant's right of possession hereunder, to collect said rents,
issues and profits as the become due and payable. Upon any such breach or default, Landlord shall have
the right at any time thereafter, without notice except as provided for above, either in person, by agent or by
a receiver to be appointed by a court, to enter and take possession of said Premises and collect such rents,
issues and profits, including those past due and unpaid, and apply the same less costs and expenses of
operation and collection" including reasonable attorney "s fees, upon any indebtedness secured hereby, and
in such order as Landlord may determine.
The parties hereto agree that acts of maintenance or preservation or efforts to re -lease the Premises, or the
appointment of a receiver upon the initiative of the Landlord to protect its interests under this Lease shall
not constitute a termination of Tenant's right of possession for the purposes of this Article unless
accompanied by a written notice from Landlord to Tenant of Landlord's election to so terminate. Nothing
contained in this Article shall in any way diminish or be construed as waiving any of the Landlord's other
remedies as provided elsewhere in this Lease or by law or in equity.
17. ATTORNEY'S FEES.
If Landlord is involuntarily made a party defendant to any litigation concerning this Lease or the Premises
by reason of any act or omission of Tenant, then, Tenant shall hold harmless Landlord from all liabilities by
reason thereof, including reasonable attorneys' fees and all costs incurred by Landlord in such litigation.
Conee society Lease
March I. 201 1 — February 29. 2012
Landlord shall be entitled to recover all collection costs including reasonable attorney's fees incurred by it
as a result of Tenant's default as herein provided. If either Landlord or Tenant shall commence any legal
proceedings against the other with respect to any of the terms and conditions of this Lease, the non -
prevailing party therein shall pay to the other all expenses of said litigation, including a reasonable
attorneys' fees as may be fixed by the court having jurisdiction for litigation of any matters relating to this
Lease and service mailed to the address of tenants set forth herein shall be adequate service for such
litigation.
18. SECURITY DEPOSIT.
Tenant has deposited with Landlord the sum of Five Thousand Dollars ($5,000.00), receipt of which is
hereby ackno-,vledged by Landlord, said deposit being given to secure the faithful performance by the
Tenant of all of the terms, covenants, and conditions of this Lease by the Tenant to be kept and performed
during the tern hereof. Tenant agrees that if the Teni.nt shall fail to pay the rent herein reserved promptly
when due, said deposit may, at the option of the Landlord (but Landlord shall not be required to) be applied
to any rent due and unpaid, and if the Tenant violates any of the other terns, covenants, and conditions of
this Lease, said deposit shall be applied to any damages suffered by Landlord as a result of Tenant's default
to the extent of the amount of the damages suffered. Landlord shall not be required to keep such deposit
separate from its general accounts.
Nothing contained in this Article shall in any way diminish or be construed as waiving any of the
Landlord's other remedies as provided herein, or by law or in equity. Should the entire security deposit, or
any portion thereof, be appropriated and applied by Landlord for the payment of overdue rent or other sums
due and payable to Landlord by Tenant hereunder, then Tenant shall, on the written demand of Landlord.
forthwith remit to Landlord a sufficient amount in cash to restore said security deposit to its original
amount, and Tenant's failure to do so within fifteen (l5) days after receipt of such demand, shall constitute
a breach of this Lease. Should Tenant comply with all of the terms, covenants. and conditions of this Lease
and promptly pay all of the rental herein provided for as it falls due. and all other sums payable by Tenant
to Landlord hereunder. said security deposit shall be returned in full to Tenant at the end of the term of this
Lease, or upon the earlier termination of this Lease, except in the event the Premises are sold as a result of
the exercise of any power of sale under any mortgage or deed of trust, in which event this Lease shall be
automatically amended to delete any reference to this Section, and Tenant shall be entitled to immediate
reimbursement of its security deposit from the party then holding said deposit. This Lease does not create a
trust relationship between Landlord and Tenant with respect to such security deposit, and Landlord shall be
entitled to treat such security deposit as Landlord's own property.
19. HOLDING OVER.
Any holding over after the expiration of the term of this Lease, with the consent of Landlord, shall be
construed to be a tenancy from month to month, cancelable upon thirty (30) days written notice, and upon
terms and conditions as existed during the last year of the term hereof except that the rent payable shall be
one hundred and fifty percent (150 %) of the rent payable immediately preceding the termination date of
this Lease.
20. BINDING EFFECT.
The provisions of this Lease shall, subject to Section 14 on assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of all the parties hereto.
Coffee Societe Lease
March 1. 2011 — February 29. 2012
21. NOTICE.
All notices must be in writing and shall be delivered by hand, by nationally recognized overnight express
delivery service or by U.S. registered or certified mail, to the addresses set forth below:
TENANT: Jackie Streeter
Streeter and Sons dba Coffee Societv
10800 Torre Avenue
Cupertino, CA 95014 -3255
Phone: (408)425-')6,50
LANDLORD: David W. Knapp
City Manager
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014 -3255
Phone: (408) 777 -3202
22. PARTIAL INVALIDITY.
If any term, covenant, condition or provision of this Lease is held by a court of competent jurisdiction to be
invalid, void or enforceable, the remainder of the provisions hereof shall remain in full force and effect and
shall in no way be affected, impaired or invalidated thereof.
23. ENTIRE AGREEMENT.
This Lease sets forth the entire agreement between the parties. No amendment or modification of this
Lease shall be binding or valid except by written instrument and signed by the parties.
Executed as of the date first written above.
Lan Ord: CITY OF CUPERTINO
I
David W. Knapp
City Manager
Ten : STREETER AND SONS dba COFFEE SOCIETY
By 22/2,01 t
Jackie tr eter
Owne
APPROVED AS TO FORM:
Carol Korade
City Attorney
Coffee Society Lease
March L 2011 — Febaian 29. 2012
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ASSIGNMENT AND ASSUMPTION
OF LEASE AGREEMENT
THIS I I E T AND ASSUMPTION OF LEASE AGREEMENT (the
"Assignment") is made and entered into effective as of July 19, 2011 (the "Effective
Date"), by and between STREETER AND SONS[, INC.] IBA COFFEE SOCIETY,
operating a business located at 10800 Torre Avenue, Cupertino, California 95014,
("Assignor") and JEE SUNG LEE "Assignee "). In consideration of the terms and
conditions contained herein, the Assignor and Assignee agree as follows:
1. II 'TRODU T RY T TEME T
1.1. Location of Premises
The City of Cupertino ("Landlord") owns certain real property
located at 10800 Torre Avenue, Cupertino, California 95014, (the
"Premises""), and more particularly described in the Lease Agreement
(hereinafter defined).
1.. The Lease A wee m e rt
By virtue of a Lome dated as of March 1. 2011 (the "Lease
Agreement"" or "Lease"') between Landlord and Assignor, Landlord
leased to Assignor the Premises more particularly described i
Exhibit A to the Lease Agreement. A copy of the Lease Agreement is
attached as ExWbit 1 Eo this Assignment.
1.3. receipt of Lome A preem ent by Assignee
Assignee has received a duplicate original of the Lease Agfeement.
1.4. Transfer of Assiancr's Interest to Assismee
Assignor desires to transfer and assign to Assignee all of Assignor's
interest in and to the Lease Agfeem ent and the Premises, including:
all perm i ts, variances, and approvals relating to (he operation of a
store on the Premises to the extent the same are assignable; the
benefit accorded to the tenant under the Luse pursuant lc any
nond istu rbance agfeements and any other similar agreements
affecting tenant's interest under the Lease Agreement; and any keys,
codes, manuals, plans, specifications and similar matters relating to
the Premises (collectively sometimes referred to as the €`Pro perV' ).
Assignee desires to accept such transfer and assignment from
Assignor of all of Assignor's interest in and to the Lease and
Premises, and the remainder of the Prcperry, upon, subject to, and in
accordance with the, terms and r)rovisi ons of this Assignment.
1.5. Maintenance of Business
As required by Ehe Lease Agreement, Assignee agrees to offer the
same name, level, and type o service currently offered b y Assignor.
-I -
1.. lie lease from L iabi lity of Assigner
Pursuant io Section 14 of the Lease Agreement, upon assignment,
Assignor is relied from all filabiliry liability under the Lease Agreement.
NOW, THEREFORE, for and in consi deraiion of the above In trod uctory Statement,
which is deemed a material and substantive part of this Ass igri. ent, and other good - and valuable consideration, Assignor and Assignee agree as follows:
2. ASSIGNMIENT
Assignor, for and in consideration of the paym cnt of rent and the performance
of all of the Lease Agreement covenants by Assignee as SUCCCS50r tenant
under the Lease Agrecm ent, does hereby grant, a, sip, and convey to Assignee
all of Assignor's right, title, and interest in and to the Lie Agreement, the
Premises, and the remainder of the Property, for the residue of the term of the
Lease Agreement, including any options or renewal periods, at the rent and
other charges set forth in the Lease and subject to Ehe covenants by Assignor
and the conditions contained in the Lease Agreement and henceforth to be
performed and observed by Assignee.
3. PERFORMANCE OF LEASE COVENANTS AND CONDITIO ;
A t T Vr l "1
For the benefit of Assignor and Landlord, Assignee hereby assumes the
obligation of the tenant under the Lease Agreement, and Assignee hereby
versants and agrees to perform all of the duties of the Lease Agreement from
and after the Effective Date of this Assignment as if Assignee were the
original tenant thcreu nd er. Pursuant to Section 14 of the Lease Agreement,
Assignee shall operate a business with the same name, type and level of
service as currently offercd. A sigrice shall make all payments of rent,
additional rent, and other sums due under the Lease Agreement from the tenant
thereunder, for the period from and after the Effective Date of this
Assignment, when due and payable MiCtly in accordance with the terms,
covenants, and conditions of the Lease Agreement.
4. REPRESENTATIONS OF ASSIGNOR
4.1. The copy of the Lease Agreement attached hereto as Exhibit I is a
true, correct, and complete copy of the Leese Agrcem ent and has not
been modified, amended, supplemented, extended, or rcne ed .
4.. Assignor is the tenant under Ehe Lease Agreement. Assignor has not
previously transferred or conveyed any interest in and to the Property
to any other party or assigned the Lease or sublet the Premises, in
whole or In part.
4.. To I Ise best of Assignor's knowledge, there exist no detau lts under the
Lease on the part of either Landlord or Assignor.
4,4, Assignor has the full power and authority to execute and deliver this
Assignment without the consent of any other person or entity.
4.5. To the hest of Assignor's knowledge, Assignor has not received
written notice of any action, suit, proceeding, or investigation that
would foreclose Assignee's rights under the Lease Agreement or any
portion thereof or which would affect the validity or enforceability of
this Assignment, nor is Assignor subject to any bankruptcy or
insolvency actions or proceedings.
4.6. To the best of Assignor's knowledge, Assignor has not received
written notice of any action, litigation, or proceeding by any
organization, person, individual, or governmental agency including
governmental actions under condemnalion authority or proceedings
similar thereto) relating to the Premises, the Lease, or any portion of
the Property,
4.7. Assignor has not subordinated its interest in the Lease to, or entered
into, any easements, covenants, restrictions, conditions, or other
matters affecting the Premises other than as set forth herein or as may
he disclosed by a search of the land records of the ju risd ietion in
which the Premises is located,
5. POSSESSION
Assignor hereby tenders, and Assignee hereby accepts, possession of the
Premises in its "AS IS." 44W RE IS," AND "WITH ALL FAULTS"
condition, Assignor males no representations or warranties with respect to the
physical condition of the Premises or the suitability thereof for Assignee's use.
6. TITLE EXCEPTIONS
This Assignment is subject to:
6. Zoning and applicable laws and regulations;
6.2. Any matter which an accurate surrey or personal inspection of the
Premises would disclose; and
6.3. A ny easements, covenants, restrictions, conditions,, or other matters of
record as of the Effective Date.
7. RELEASE FROM LIABI-LITY OF ASSIGNOR
Upon execution of this Assignment, Assignor is released from all liability
under the Lease Agreement. D isi ribution of rights and obligations arising
under the Lease Agreement, including, but not limited to, any defaults under
the Lease Agreement, banit-uptcy of t mN Assignee, notiecs horn thy: Landlord,
default under the Lease Agreement by the Landlord, terms of further
assignment, subleasing rights, and insurance for the Premises are subject to the
terms of the Lease Agreement or any amendments or modifications to the
Lease Agreement made exclusively between Landlord and Assignee.
- 3 -
8. APPLICABLE LAW
This Assignment shall be interpreted and construed in accordance with the
lags of the State of California.
9. DEFINED TERMS; CAPTIONS
Any formal capitalized term, word, or phrase not defined i n this Assignment
shall have the meaning set forth for such term in the Lease Agreement.
Captions appeai ng in this Assig=ent are provided only as a matter of
convenience and do not define, limit, construe} or proscribe the scope or intent
of the sections or subsections of this Assignment, nor in any way affect t this
Assignment.
10. NOTICES
[upon and after the Effective tiv Date of this Assignment, all notices required or
desired to be given to Assignee hereunder or under the Lease Agreement shall
be addressed to Assignee at the business address set forth above.
SUCCESSORS AND ASSIGNS
This Assignment shall be binding upon and inure to the benefit of the parties
hereto, and their legal and personal representatives, successors, and assigns,
12. COUNTERPART EXECUTION
This Assrgnrrment may be executed in counterparts and all counterparts shall
collectivelyconstiEUte a single agreement,
IN WITNESS WHEREOF, the parties have executed thi Agreement as of the
Effective Date first above written.
ASSIGNOR.- TI BTE AND BOMB[, TI C J IBA
COFFEE SOCIETY
ti }
Jackie Street , Owner
_f
Date; `
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ASSIGNEE: JB SUNG LEE
Jee Sung Lee
Date: � /I Ct / '+ 1
4
EXHIBIT 1: LEASE AGREEMENT
(90N .
LEASE AGREEMENT
Streeter and Sans doing business as COFFEE SOCIETY
This Lease Agreement ( "Lease") is entered into as of the I si day of March 1, 2011. by and berAleen the
City of Cupertino, a municipal corporation, 10.'300 Torre Avenue, Cupertino. CA 95014 ("Landlord'). and
Streeter and Sons dba Coffee Society, 10800 Torre Avenue, Cupertino, CA 95014 "Tenane).
WHEREAS, Lard lord is the owner of certain real property commonly d eseri bed as being lowed at 10800
Torre Avers ue i n th a City of Cupertino, County of Santa lw-&, Cal iforn is an d more particularly descri bad
in Exbib it "A" attached hereto (`{La-ndlord rs Property"); and
H ERA S, Land Iord operates ors Land I ord's Property a pub 1 is l i brary, an d desires to have Tenant operate
a caf6 on the Property; and .
WHEREAS. Tenant desires to lease from Landlord the cafe portion of Land I ord "s Property (rhe - 'Leased
Premises" to operate an independently owned cafe business.
NOW THEREFORF, in consideration of the promises and covenants contained herein and for other good
and valuable consideration, the parties hereby agree as follows.-
1. LEASE of PREMISES.
Landlord leases to Tenant and Tenant leases - from Landlord the Lased Premises consisting- of
approximately 5.00 square feet of interior ,space with i n the publ ie l ibrary al ong with the non-exclusive right
to use exterior public plate space and more particularly depicted in Exhibit A. attached hereto, togerher
with the nonexelus ive right to use the common areas and parkin arm of Land lord's Property.
2. TERM AND OPTION,
,
2.1 Initial Term.
The initial term of this Lease shall be for the period eommenc i ng on March 1: 2 011 ("Commencement
Date") and ending February 29, 2012. -
2.2 option.
Tenant is panted tl)e option to extend the initial term of tli is lease for m10 ( ) aid iti onal periods of one (1)
year provided Tenant is not in default ( "Extended Term"). The opti on to extend the term Sri I l be exercised
automatically unless Tenant provl*des written notice of termination to Landlord at least sixes (0 ) days prior
to the end of term.
3. RENT6.
3.1 Base Reny.
Tenant agues to pay Landlord as rent for the Premises commencing upon the Commencement Date the
,sums shown below in_ laivfu l money of the United States payable on or before the first day of each calendar
moryth to the Land I ord at the address sly omm in Section 21 . - .
a. From March 1. ? o l 1 through February 29, 2012, the monthly .sum of S1,000.00
b. From (arch l * �� 1? throu0 Februar�R �, 2013, the rnorlthl =sum of 1,05 0.00
c. From March 1, 2013 through February 28, 2014: The monthly sum of S 1. 100-00
Coffee Soci cry 1. eme
Me h 1.2011— Februuv 29. ?01?
3.2 Late Charges'.
Any instaliment of rent or any other sum due by Tenant and not received by Lan d lord within ten 10 days
after such amount stall be due, without any requirement for notice to Tenant. shall be subject to a late.
charge equol to five percent O6) of such overdue amount~
4. T O
4.1 Real Estate Taxes*
For the terra of this Lem, Landlord small pay all real estate tapes and assessments levied upon Landlord's
Property, if any,
4.. Personal'Property Taxes.
During the term hereof, Tenant shall pay, prior to delinquency, ail mixes assessed against and levied upon
fixtures, fumishin equipment and all other personal property of Tenant contained in the Leased
Premises, and when possible Tenant shall cause said fix -tares, fumishinc s, equipment and other personal
property to be assessed and billed separately from the real property of Landlord. in the event any or all of
the Tenant "s fixtures, furnishings, equipment and other personal property shall be assessed and taxed with
l idlord's real property, the Tenant shali pay to Landlord its share of such taxes within ten ] 0 days after
delivery to Tenant by Landlord of a statement in writing setting forth the a.rriount of the taxes applicable to
the Tenant #s property.
5. USE*
5.1 Tenant's Use.
Tenant stall use the Premises to operate a cafe which intends to serve beverages, coffee, tee pastry, light
lunch, dessert, and snack type items to the ,general public including, City of Cupertino employees. Tenant
shall not use the leased Premises for any other purpose without the written consent of Landlord, which
consent may be withheld in Landlord's sole and absoiute discretion. Terrain, at Tenants sore cost and
expense, shall comply with all applicable municipal, state and federal statutes, ordinances, rules and
regulations in effect during the term of this Lease regulating the use by Tenant of the Premises.
5.2. Uses Prohibited.
Tenant shall not use nor permit the use of the Leased premises in any manner that will tend to create waste
or nuisance or unreasonabiy disturb other tenants and operators on Landlord's property. No use shall be
made or permitted to be made of said Premises., nor acts done, which will increase the existing rate of
insurance upon the building in which said Premises may be located once said rate is established or cause a
cancellation of any insurance policy covering said building or any part thereof, nor shall Tenant sell or
permit to be kep4 used or sold in or about said Premises, any article which may be prod ibited by a standard
form of fire insurance policies. Tenant small, at its sole cost, comply with any and ail requirements,
pertaining to the use of said Premises* of any insurance organization or company necessary for the
maintenance of reasonable fire and public liability insurance, covering said building and ippurte %nces.
Coff`ce society Lea
March 1 . 2 0 ] ] — Nab ruary 9. 2012
("N (90�
6. ALTERkTIONS AND FDCTLTRES.
6.1 Tenant's icrhts.
Tenant steal l not make any alteration s of the Leased Prem ises* or any part thereof, without th a prior written
consent of Landlord. Tenant shall repaint the interior walls of the Pr n ises at Tenant's expense provided
that Landlord has approved the paint color selections. Any add it on s to, or alterations of, said Premises,
except movable furniture and trade fixtures, shall berme at once a part of the realty and belong to
Land lord. Any such alterations shall be in conformance with the requirements of all municipal, state and
federal authorities. AI I fixtures, excluding trade fixtures, that are attached to the Premises shall become at
once a part of the realty and belong to Landlord on expiration or sooner termination of this Lease.
6.2 Iandlord's lights.
Land lord has th a ri ght, i n its sole d iscretion to mod i . Teconfi ire and renovate the public 1 ibrary of wh ich
the Leased Premises are part: provided, however. that if the exercise of such right interferes with Tenant's
quite enjoyment of use of the Leased Premises, Tenant may terminate this lease.
?. MAINTENANCE, REPS AND ALTERATIONS.
7.1 Landlord's Obligations.
Except for damage caused by any negligent or intentional act or omission of Tenant, Te nant"s agents.
employees, or invitees in which event Tenant shall repair the damage, Landlord, at Lard iord ~s expense*
shall keep in good order, condition and repair the foundations, exterior walls and the exterior roof of the
Premises. Landlord shall have no obligation to make repairs under this Section 7.1 until a re asonab f e time
after receipt of written notice of the need for sueh repairs. Tenant expressly waives the benefits of any
statute no ", or hereafter 'in effect which would otherwise afford Tenant the right to make repai rs at
Landlord's expense because of Land lord`s failure to keep the Premises in good order, condition and repair.
Land lord, at Land lord's expense, steal l keep in good order, cond ition and repair the Prem i ses and every part
thereof (whether or not the damaged portion of the Premiss or the means of repairing the same are
reasonably or readily accessible to Tenant)' including, without limiting the generality of the foregoing, all
plumbing, electrical and lighting facilities and equipment within the Premises, excluding trade fixtures,
interior walls and ulterior surface of exterior walls, ceilings, windows, doors, and glass., located within the
Premises. If a regulatory agency finds that there are alterations required to make the premises compliant
with the Americans with Disabilities Act, Landlord shall, at Land lad }s expense, make the necessary
alteration s to the preen i ses.
7.2 Tenant's bligations.
(a) Tenant agrees that it will manage its operation at the highest standards of cleanliness in
order to deliver an imau that will appropriately blend with premises. Tenant shall be obligated for the
day - today maintenance and cleaning of the interior and exterior surface of windows and plate glass.
Tenant ages that it will only employ people who create a cis, well-groomed, friendly, and positive
image of its business. Tenant further a ees that it wi 1 i require its employees to wear a standard logo top
and similar matching pants in order to present a uniform staff appearance.
If Tenant fails to perform Tenant's obligations under this Section or under any other
section of this Lease: Landlord may at Landlord's option enter upon the Premises after ten (1 0) days' prior
wfitten notice to Tenant (except in case of emergence. in which case no notice shall be required), perform
such obl i tions on Tenant's behalf and put the Premises in good order. condition and repair, and the cost
thereof together with interest thereon at the maximum rate then allowable by law shall be due and payable
as additional rent to Landlord teeth er %v ith Tenant's next rental installment.
Goer Socier- Lena
amh 1- 2011 - Fcbruarv?4. 2011
110IN
c) On the last day of the term hereof, or on any sooner termination, Tenant shall surrender the
Premises to Landlord in good condition , ordinary wear and tear excepted, ciean and free of debris
including the removal of Tenant's trade fixtures. Tenant shall repair any damage to the Premises
occasioned by the installation or removal of its trade fixtures, furnishings and equipment.
s* INSURANCE.
Landlord shall either self - insure or maintain fire and extended coverage insurance throughout the terra of
th is Lase in an amou nt equal to at least n inety (9011/6) percent of the value of the bu i Id i ng wig i ch inc ludes
the premises, together with such other insurance, including not limited to, loss of rents, flood insurance, al[
liability insurance, plate glass insuran cx, and such other insurance as Landlord deems necessary or that may
be required by any governmental agency. Tenant hereby waives any right of recovery from Landlord, its
officers and empioye.es, and Landlord hereby waives any right of recovery from Tenant, its officers or
employees, for any loss or damage including consequential loss) resulting from any of the perils insured
against i n the stagy lard form fire ins u rand po I icy with extended coverage endorsement.
9. INDEMNMICATION OF LANDLORD - LM.BaJTY INSURANCE BY TENANT.
9.1 Indernnfficatfon*
Tenant, as a material part of the consideration to be rendered to Landlord under this Luse, hereby waives
all claims against Landlord for damage to gds, wares and merchandise, in, upon or about said Premise,
and for injuri
Tenant sha I I n of vacate or abandon the Prem ises at any time duri n g the term of th is Lease; and if Tenant
shall abandon, vacate or ,surrender the Premises or be dispossessed b y process of Maw, of other i seti any
personal properry belonging. to Tennant and left on the Premises ,shall be deemed to be abandoned, at the
opti on of Land l ord. except such property as may be mortgaged to Land l ord.
11. UTIILFMS*
Tenant ,shall pay for telephone service, janitorial service including interior and exterior window washing
and all other services used in, upon, or about the Premises by Tenant with the exception of water., sewer,
trash removal from receptacles and electricity which Lard lord shall pay.
i
12. ENTRY AND PECTI N.
Tenant shall permit Landlord and his agents to enter into and upon the Premises at all reasonable times
after notice, except in case of an emergency, for the purpose of inspecting the same or for the purpose of
maintaining the building in which said Premises are situated, or for the purpose of making repairs,
alterations or additions to any other portion of said building, including the erection and maintenance of
such scaffo Id incr can opy, fences and props as may be requ i red, or for the purpose of posting n otices of non-
liability for alterations. add iti ores or repairs. Landlord shall be permitted to do any of the above without any
rebate of rent and without any liability to Tennant for any loss of occupation or quiet enjoyment of the
Premises thereby occasioned. Tenant shall permit Landlord, at any time within ninety (0 ) days prior to the
expiration of this Lease, to place upon, said Premises arty usual or ordinary "For Lease's signs and during
such ninety 0 day period Landlord or his agents may, during normal business hours, enter upon said
Premises and exhibit same to prospective tenants.
13. DAMkGE AND DESTRUCTION OF PREWSESP
In the event of (a ) partial d esmcti ors of said Premises or the building containing ,same during the term of
this Lease or any extensions Thereof, which requires repairs to either said Premises or said building, or b)
said Premises or said building being declared u n safe or unfit for occupancy by any authorized public
authority for any reason other than Tenant's aCt_ use or occupation, which declaration requires repairs to
either said Premises or said bu i Id in& Landlord ,shall forthiyith make said repairs provided Tenant gives to
Landlord thirty (3 0) days written, notice of the necessity therefore. No such Wial destruction (including
any destruction necessary in order to make repairs required by any declaration glade by any public
authority) steal i in any way an nu i or pro id th is Lease except that Tenant sha I I be emit led to a proportionate
reduction of min imum guaranteed rent wh i le such repairs are be irrg made, such proporrionate reduction to
be based upon th a extent to wh i ch the ma i ng of such repairs sh a f I f nterfere with the busin ess carried on by
Tenant in said Premises. However,, if during the last one year of the tear of this Lease the bu i ld incr is
damaged as a result of fire or any other insured casualty to are fou nd at'on), Landlord may, w th in thirty (3 0)
days fo I lowing the date such d amage occu rs, term i nate this I za se by written notice to Tenant. If Land lord,
hoive. ter., elects to make said repairs, and provided Lard lord uses d u e d i licence ire maki ng said repa irs+ th i s
1 za e shall continue in fu I I force and effect and the min r mu m guaranteed rent shall be proportionately
reduced as provided above. If Landlord elects to terminate this Lease all rents shall be prorated between
Land lord and Tenant as of the date of such destruction. The foregoing to the contras rotwith st.arrd ing, if
the building is dammed or destroyed at any time during the term Hereof to an extent of more than twenty-
. fire - %" percent of the r: replacement cost (excl ud irc fou ndation) .a rev 1 It of a casu alty. not
agai n st7 Landlord may within th i r ( .30) days following the date of such destruction terminate this Lease
upon written notice to Tenant_ If Landlord does not elect to so terminate because of said uninsured casualty-
Landlord shat f promptly rebuild and repair said Premises and Tenant's renia l obligation shall -
proportionately reduced as provided above. In respect to any partial destruction including any destruction
necessary in order to make repairs required by any authorized public authority) %Yh i ch Landlord is obligated
Coif-cc Socien- Lem
March 1. 2 011 — Feb niuy 29. 201 02
eol�l
to repair and may elect to repair under the terms of this Article, Tenant waives any statutory right it may
have to cancei this Lie as a result of such destruction.
14. SALE F BUSWESS, ASSIGNTARNT AND SUBLETTINGS
Tenant shall not be permitted for any reason to assign or sublet the Lease during the first twenty -four 4)
months of this Lie, except as provided below. During the last twelve 1 months of this lease, Tenant
shall not, without Landlord's prior written consent, which consent may be withheld ire L nd iord's sole and
absoIute disc retion, s blet the Prerni se or any part th ereof or assign the Lie.
Notwithstanding the foregoin& Tenant is permitted to sell the "Coffee Society"' and assign the Lase
provided the purchaser or assignee provides the same name, type and level of service as currently offered.
In the.event of sale of the business Tenant will be rei ed from a I I IiabiIity under this Lease.
15. EMM T DOMAIN.
If all or any part of the Premises is taken for public or quasi-public use by a governmental authority under
the poorer of eminent domain or is conveyed to a governmental authority in lieu of such taming, and if the
taking or conveyance causes the remainin .part of the Premises to be untenantahle and inadequate for use
by Tenant for the pu rpose for which they were leased., then Te nant, at its option and by giving notice.with i n
fifteen 1 days after the taking, may terminate this Cie as of the date Tenant is required to surrender
possession of the Premises. if a part of the Premises is taken or conveyed but the remaining part is
tenantable and adequate for Tenant's use, then this Lzase shall be terminated as to the part taken or
conveyed as of the date Tenant surrenders possession; Landlord shall make such repairs, alterations and
improvements as may be necessary to render the part not taken or conveyed tenantable; and the rent shall
be reduced in proportion to the part of the Premises taken or conveyed. All compensation awarded for the
taking or conveyance shall be the property of Landlord without any deduction therefrom for any estate of
Tenant, and Tenant hereby assi s to Landlord all its right, title and interest in and to the award. Tenant
IF
shall have the right; however, to recover from the governmental authority, but not from Landlord, such
compensation as may be awarded to Tenant on account of the interruption of Tenants business, moving
and relocation expenses and removal of Tenant "s trade fixtures and personal property.
16. DEFAULT,
If Tenant fails to make any payment requi d by the provisions of this Lease, after ten (1 0) days of the due
date, or fails within fifteen (1 days after written motive thereof to correct any breach or default of the
other covenants, terms or conditions of this Lase, or if Tenant breaches this Lease and abandons the
property before the end of the term, such acts shall constitute a default under this Lease and Landlord shall
have the right at any time thercaf ter to elect to terminate said Lease and Tenant's right to possession
thereunder. Upon such termination, Landlord shall have the right to recover against Tenant:
a) The worth at the time of award of the unpaid rent; which had been earned at the time of
termination;
b The worth at the time of award of the amount by which the unpaid rent which would have
been earned after er termi nation until the time of award exceeds the amount of such rental loss that the Tenant
'proves could have been reasonably avoided}
(c) The worth at the time of award of the amount by which the unpaid rent for the balance of
the term after the time of award exceeds the amount of such rental loss that the Tenant proses could be
reasonably ayvided; and
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d) Any other amount necessary to compensate the Landlord for all the detriment proximately
caused by Tenant's failure to perform its obligations under the Lease or which in the ordinary course of
things would be likely to result therefore.
The "worth at the time of award'' of the amounts referred to in subsections a. and b. above shall be
computed by al louring interest at ten ( 10%) percent per annum or the maxim um rate perm itted by 1 aw. The
worth at the time of award of the amount referred to in subsection c. shall be computed by discounting the
amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one
(I%) percent.
Such ef1''orts as Lard lord may make to m itigate the damages caused by Tenant" s breach of th is Lase do not
constitute a waiver of Land lord rs right to recover damages against Tenant hereunder. nor shall anteing
contained herein of sect .and 1 ord's right to i ndem n i fi cation aga inst Ten art for any I i abi 1 ity ari sing prior to
termination of this Erase for personal injuries or property damage, and Tenant hereby agrees to 'Indemnify
and hold Landlord harmless from any such injuries and damages* Including a I 1 attomey" s fees and costs
incurred by Landlord in defending any action brought against Landlord for any recovery Thereof, and in
enforcing the terms and provisions of this indemnification provision against Tenant.
If Landlord elects to terminate this Lease and gives Tenant notice of such termination., upon the giving of
such notice, the terra of this Lease and the estate hereby granted shall expire and terminate on the effective
date of the notice as fu l ly and com pl etely and with the same effect as if such date were the date here i n Fixed
for th a expiration of the term of th is Lease and al I rights of Tenant sha l I hereunder expire and term i nate, but
Tcn ar t shall remain liable as here before provided.
In the event Tenant abandons the Premises. this Lease shall terminate if the Landlord gives written notice
of his belief of abandonment pursuant to Civil Code Sections 1951.2 and 1951.3.
Notwithstandin k any of di a fo I to 'i na the br dh of this .aye bar Tenant, or an abandonment of the
Premises by Tenant, shall not constitute a termination of this lease, or of Tenant-s right of possession
hereunder, unless and until Landlord elects to do so, and until such time Landlord shall have the right to
enforce all of its rights and remedies under this lease, including the right to recover rent, and all other
payments to be made by Tenant hereunder, as it becomes due; provided, however, that until such time as
Landlord elects to terminate this Lease, and Tenant's right of possession hereunder, to collect said rents*
issues and profits as the become due and parable. Upon any such breach or default, Landlord shall have
the right at any time thereafter, without notice except as provided for above, either it person, by agent or by
a receiver to be appointed by a court, to enter and take possession of skid Premises and collect such rents,
issues and profits, including those past due and unpaid, and apply the same less costs and expenses of
operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and
in such order as Landlord may determine.
The parties hereto agree that acts of maintenance or preservation or efforts to re -leme the Premises. or the
appointment of a receiver upon the i n itiati c of the Landlord to protect its interests under this Lease shall
not constitute a termination of Tenant's right of possession for the purposes of this Article unless
accompanied by a written notice from Landlord to Tenant of Landlord's election to so terminate. Nothing
contai ned in this Article shal I i n any way d im in is h or be con strued as waivi rig any of the Lund lord's other
remedies as provided elsewhere in this Lease or by law or in equity*
17. ATTORNEY'S FEES.
If Land lord is i n o I u ntari ly mad e a party defendant to any I itigation conceni ing th is Lase or the Prem ises
by reason of any act or om 1 ss ion of Tenant, t hen, Tenant steal I hold ha nn n less Landlord from al l I i ab it !ties by
reason thereof, i ncl ud ing reasonable attorneys ` fees and al 1 costs incurred bar Land lord in such I iti gation.
Coffee Sari ery Luse
March t. 2 11 — Feb rvary 29. 2012
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Landlord shall be entitled to recover all col lection costs inelud ing reasonable attorney's fees incurred by it
as a result of Tenant's default as herein provided. if either Landlord or Tenant shall commence any legal
proceedings against the other with respect to any of the terms and conditions of this tease, the non -
prevailin party therein shall pay to the other all expenses of said litigation, including a reasonable
attorneys" fees as may be fixed by the court having Ju ri sd icti on for litigation of any matters relating to this
Lease and service mailed to the address of tenants set forth herein shall be adequate service for such
litigation.
Y. SECURITY DEPOSIT.
Tenant has deposited with Landlord the sure of Fire Thousand Dollars .000.00), receipt of which is
hereby acknowledged by Landlord, said deposit being given to secure the faidifu l performance by the
Tenant of all of the terms, covenants, and conditions of this Lie by the Tenant to be kept and performed
during the terms hereof. Tenant agrees that if the Tenant sbal l fail to pay the rent herein reserved promptly
when due, said deposit may, at the option of the Landlord (but Landlord shall not be required to ) be applied
to any rent due and unpaid, and if the Tenant violates any of the other terms, covenants, and conditions of
this Lease* said deposit shall be applied to any damages suffered by Landlord as a result of Tenant's default
to the extent of the amount of the damages suffered. landlord shall not be required to keep such deposit
separate from its general accounts.
Nothing contained in this Article shall in any way diminish or be construed as waiving any of the
Landlord's other remedies as provided herein, or by law or in equity. Should the entire security deposit, or
any portion thereof, be appropriated and applied by Landlord for the payment of overdue rent or other sums
due and payable to landlord by Tenant hereunder, them Tenant shall, on the written demand of Landlord,
forthwith remit to Landlord a sufficient amount in cash to restore said security deposit to its original
$meant, and Tenant "s failure to do so within fifteen (1 days after receipt of such demand, shall constitute
a breach of this tease. Should Tenant comply with all of the terms, covenants, and conditions of this Lease
and promptly pay all of the rental herein provided for as it falls due, and all other sums payable by Tenant
to Land lord here unde r, said security depos it steal I be returned in fu I I to Tenant at the en d of the to rm of th is
Lease, or upon the earlier termination of this Lease, except in the event the Premises are sold as a result of
the exercise of any poorer of sale render any mortgage or deed of trust, 'in which evert this Lease shall be
automatically amegded to delete any reference to this Section, and Tenant shall be entitled to immediate
reimbursement of its security deposit from the parry then holding said deposit. This tease does not create e
trust relationship between Landlord and Tenant with respect to such security deposit, and Landlord shall be
entitled to treat such security deposit as Landlord's own property.
19. HOLDING o.
Any holding over after the expiration of the terry, of this Lease, with the consent of landlord, shall be
construed to be a tenancy ffom month to month, cancelable upon thirty 30 days written notice, and upon
terms and conditions as existed during the last year of the terra hereof except that the rent payable shall be
one hundred and fifty percent (150%) of the rent payable immediately preceding the termination date of
this Lie.
0. BEING EFFECT.
The provisions of this tease shall, .subject to Section 14 on assignmenL apply to and bind die heirs.
successors., executors. administrators and assigns of all the parties hereto.
COME SMitly Lease
N4arch 1. 20 1 1 — Feb ruam 29. 2 0i 2
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I. NOTICE.
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All notices must be ire writing and shall be delivered by Fund, by nationally recognized ovem i ht ex-press
delivery service or by . . registered or certified nail, to the addresses set forth below:
TENANT: Jackie Streeter
Streeter and Sons dba Coffee Society
10800 Tom Avenue
Cupertino, CA 95014 -3255
Phone: (408) 425 -3660
LANDLORD: David W. Knapp
City Manager
er
City of Cupertino
10300 Torre Avenue
Cupertino, CA 9501 4-3255
Phone: (408) 777 -3202
22. PARTIAL SAL M.
If any to an, covenant, cond ition or provision of'th is Lease i s held by a court of competent j urisd ictlon to be
inval'i'd, pro id or enforceable, the remaa nder of the provis'lons hereof shall remain in full force and effect and
shaII in no way be affected, impaired or inval idated thereof.
23. ENTIRE AGREEMEFNT.
This Lease sets forth the entire agreement bet%yeen the parties. No amendment or modification of this
Lease se shal I be bind i ng or oral id except by written instrument and signed by the parties.
Executed as of the date first wrirten above.
Sri rd: I Y F UPERTI I
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I av id W. Knapp
City 1 an ner
Ten : STREETER AND SONS dba COFFEE SOCIETY
By
Jackie eter
0 w ne
APPROVED AS TO FORM:
Carol Korade
City Attorney
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