04-025, Blue Pheasant Lease
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LEASE AGREEMENT BETWEEN THE CITY OF CUPERTINO
AND THE BLUE PHEASANT RESTAURANT, a California Corporation
This Lease is entered into by the City of Cupertino (the "City"), a municipal
corporation of the State of California, and The Blue Pheasant Restaurant, a
California Corporation whose address for these purposes is 22100 Stevens
Creek Boulevard, Cupertino, California 95014 (the "Lessee") The building to be
leased by the Agreement is commonly known as "The Blue Pheasant" and more
particularly described as 22100 Stevens Creek Boulevard, City of Cupertino,
County of Santa Clara, State of California (the "Property")
WIT N E SSE T H:
WHEREAS, on May 31, 1983, Blackberry Farm Recreation Center, a
California corporation and at that time the owner of the Property, and Lessees
Ole Peter Rasmussen and Birthe Lisa Rasmussen entered into a lease for the
use of the Property for a restaurant and bar. The term of said lease expires on
March 31,2004; and
WHEREAS, Lessee, a Corporation owned solely by Ole Peter
Rasmussen and Birthe Lisa Rasmussen, wishes to enter into a new Lease with
the present owner, City of Cupertino, for the continued use of the Property for a
restaurant and bar.
NOW THEREFORE, in consideration of the covenants and conditions
hereinafter set forth, the parties agree as follows:
1. DESCRIPTION OF THE PROPERTY TO BE LEASED
The "Property" includes a building of approximately 6,800 square feet
located at 22100 Stevens Creek Boulevard, City of Cupertino, commonly known
as the "Blue Pheasant" including the kitchen, bar, banquet room, the non-
exclusive use of 92 parking spaces, and the fixtures attached to the real Property
described in Exhibit "A" which is incorporated herein by reference. The Property
does not include that certain real Property consisting of the Blackberry Farm Golf
Course, nor that area of said building designated and used by the City as a golf
professional shop.
2. LEASE TERM
The lease of the Property shall commence on April 1 , 2004 and end on
March 31,2009, unless otherwise terminated under the provisions of this Lease.
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3. OPTION TO RENEW
Lessee is given the option to extend the term on all provisions contained
in this Lease, except for the Base Rent (and any adjustments thereto) for a five
(5) year period (Extended Term), following the expiration of the term, by giving
notice of exercise of the option (Option Notice) to the City at least six (6) months
but not more than one (1) year before the expiration of the term, provided that, if
Lessee is in default on the date of giving the Option Notice, the Option Notice
shall be totally ineffective, or if Lessee is in default on the date the Extended
Term, the Extended Term shall not commence and this Lease shall expire at the
end of the Term.
The parties shall have sixty (60) days after the City receives the Option
Notice to agree on a Base Rent (together with adjustments) which shall
approximate fair market value. If the parties agree on the Base Rent and any
other provisions for the Extended Term during that sixty (60) day period, they
shall immediately execute an amendment to this Lease stating the Base Rent
(together with adjustments) and other related terms. If the parties are unable to
agree with respect to the Base Rent or any adjustments thereto within that
period, the Option Notice shall be of no effect and this Lease shall expire at the
end of the Term. Neither party to this Lease shall have the right to have a court
or other third party set the Base Rent or adjustment thereto, or enforce
agreement of the parties with respect to any particular rent provision.
Lessee shall have no other rights to extend the term beyond the Extended
Term.
4. BASE RENT
a) Lessee shall pay to the City a monthly base rent, without deduction or
setoff, in the amount of $6,779 commencing April 1 , 2004, subject to the
following adjustments:
Commencing April 1 , 2005
Commencing April 1, 2006
Commencing April 1 , 2007
Commencing April 1, 2008
$6,982 per month
$7,192 per month
$7,407 per month
$7,630 per month
b) Rent shall be payable in advance on or before the first day of each
month without notice or demand of any kind by the City. In the event that this
rent is not paid within ten (10) days after the due date, rent is deemed late and
delinquent and a late charge of $250 plus interest at the legal rate on the
delinquent amount shall be assessed as additional rent.
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c) Payments shall be submitted to the City, Attention Finance Department
at 10300 Torre Avenue, Cupertino, California 95014.
d) Should Lessee default in the payment of any monthly installment of
rent during the lease term, the unpaid balance of the rent for the entire term of
this lease shall be due and payable at the City's option subject to the provisions
of Paragraph 15 of this Lease. When a default in the payment of rent has
continued for ten (10 ) days after delivery of a written notice to Lessee of such
default, no further notice or demand of any kind shall be necessary prior to the
City's exercise of it's option to accelerate said rent and terminate this Lease.
5. ADDITIONAL RENT/ARREARAGE
The parties agree that the sum of $58,926 is owed to the City by former
Lessees Peter Rasmussen and Birthe Lisa Rasmussen for rent of the Property
during the previous lease term. Lessee agrees to pay this arrearage as
additional rent, payable at the rate of $1 ,077 per month (which includes the
principle amount described above, plus interest at the rate of 40/0 per annum) for
the entire five-year term of this lease. Said additional rent shall be paid at the
same time and under the same conditions as is the base rent described in
Paragraph 4 above.
6. HOLDING OVER
At the expiration of the term of this Lease, Lessee may continue to occupy
the premises on a month to month basis under the same terms and conditions
contained in this Lease, provided that the monthly base rent shall be one and
one-half times the last monthly rent as described in Paragraph 4 of this Lease.
7. USE OF THE PROPERTY
a) Lessee shall use and occupy the Property exclusively as a restaurant
and bar which shall be open to the general public.
b) The use of the Property shall be consistent with the rules and
regulations of the City's PR zoning district, which includes a nightly closing time
of 11 :00 p.m.
c) Lessee shall cause to be posted at the main entrance to the Property
its hours of operation in a manner which will give reasonable notice of its
business hours to prospective customers.
d) The parking spaces included in the Property shall be jointly used by
Lessee and the City.
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8. LESSOR'S OBLIGATIONS
a) The City shall, at its sole expense, keep, maintain and repair the
exterior walls and roof of the Property. Should any such maintenance and repair
cause the Lessee not to be able to operate the Property as a restaurant and bar
for a temporary period, then Lessee's base rent shall be abated during that
temporary period. The City may commence any such maintenance or repair by
giving Lessee five days written notice.
b) The City shall, at its sole expense keep, maintain, and repair the joint
use parking spaces described in Paragraph 7 (d). However, the indemnity
provisions contained in Paragraph 14 of this Lease extend to the use of the
parking spaces by Lessee's customers and employees.
9. LESSEE'S OBLIGATIONS
a) Lessee shall pay, as they become due, all charges for water, heat,
electric, gas, garbage, and all other utilities furnished to, or consumed on the
Property for the maintenance, use, and operation of the Property during the term
of the Lease (including any holding-over.) Upon request of the City, Lessee shall
produce receipts showing the payment of said utilities.
b) Lessee shall reserve a parking space for pick-up of refuse material on
collection days scheduled by the City's garbage collection franchise.
c) Lessee shall not do, or permit anything to be done in or about the
Property, nor store anything therein, which would in any way increase the rate of
fire insurance on the Property.
d) Lessee shall pay, when due, all possessory interest Property taxes,
and special assessments imposed on the Property by any public entity during the
lease term.
e) Lessee shall maintain the Property in a clean and sanitary condition,
and in this regard do the following, all at Lessee's expense:
i) Clean on a daily basis the grease deposit units located under the
canopy and outlet flues above all grill installations;
ii) Enter into a contract with a licensed commercial cleaning service
to clean the hood and ventilation ducts and equipment above all grills, at least
once every six months;
iii) Service the automatic fire extinguisher located above all grills
and provide for the maintenance and inspection of all fire extinguishers on the
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Property in accord with the Fire Code and other applicable local ordinances and
regulations.
f) Lessee shall, at their sole expense, remain in compliance with all local,
state and federal laws and ordinances concerning the Property, the occupancy
and use thereof, and the business conducted therein. Should Lessee fail to
comply with any such laws and ordinances, the City may, but shall not be
obligated to, comply therewith, in which case the amount paid by the City in order
to comply, together with all costs, expenses, interest, penalties incurred, shall be
added to Lessee's next rent payment and shall be collectible as additional rent in
the same manner and with the same remedies as if it had been originally
reserved.
g) Insurance. Lessee shall, at its own expense, maintain in full force and
effect during the term of this Lease, and during any hold-over, the following
insurance in amounts not less than the amounts specified, and issued by an
insurance company admitted in California and having a Best Guide Rating of A-
Class VII or better:
i) Comprehensive public liability, including a dram shop
endorsement and provisions for personal injury and Property
damage coverages, in an amount not less than One Million
($1,000,000) Dollars for anyone person injured or killed, not less
than Two Million ($2,000,000) Dollars for anyone accident or
occurrence, and not less than Two Hundred Thousand ($200,000)
Dollars Property damage for each accident or occurrence. The
City, its officers and employees shall be named as additional
insured in all of Lessees' insurance policies meeting the above
stated requirements.
ii) Statutory workers compensation insurance and employer's
liability insurance for all of Lessee's employees; and
iii) Statutory fire insurance on the Property.
Lessee shall furnish to the City Certificates of Insurance evidencing
the insurance coverages set forth above, the name and policy number of each
carrier and policy, and that the insurance is in force and will not be cancelled or
modified without thirty (30) days written notice to the City. If Lessee does not
maintain the above-required insurance, the City may, at its option, pay for the
necessary insurance, and the repayment thereof shall be added to any
subsequent installment of rent, and shall be collectible as additional rent in the
same manner, and with the same remedies as if it had been originally reserved.
Based on the fact that the City retains sole occupancy and control
of that certain portion of the Property designated as a golf professional shop,
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appropriate exclusionary endorsements may be provided to remove said
designated area from the insurance maintained by Lessee.
h) Lessee shall, at its own expense, maintain the Property in good and
safe condition and repair. The City retains and reserves the right to inspect the
Property to insure said maintenance is satisfactory. All repairs, charges and
improvements are subject to prior written approval of the City. Lessee's duty to
maintain the Property in good repair shall include, but not be limited to,
maintaining air conditioning and heating equipment, elevator for disabled
persons, freezers, ventilation ducts, kitchen equipment and appliances, garbage
disposal equipment, grease traps, the stairs separating the first and second
floors, and restroom facilities.
i) Lessee shall pay, before delinquency, any and all taxes, assessments,
license fees and public charges levied, assessed, or imposed, and which
become payable during the lease term (including holdovers) upon Lessee's
fixtures, furniture, appliances and personal Property installed or located on the
Property.
10. MECHANICS LIENS
Lessee shall keep the Property free and clear from all liens which may be
filed as the result of any improvements made on the Property by any mechanic,
laborer, materialman or general contractor. If Lessee, in violation of the
foregoing condition, fails to pay and retire the amount for which such a lien is
security, the City may, at its option, terminate this Lease upon giving written
notice of such intention; or the City may, at its option, pay the amount necessary
to release said lien, in which case all costs, interest and penalties connected
therewith shall be added to the installment of rent next becoming due and shall
be collectible as additional rent in the same manner and with the same remedies
as if it had been originally reserved as rent. The City shall have the right to post
and maintain on the Property such notices of nonresponsibility as are provided
under California law governing mechanic's liens.
11. ASSIGNMENT
Lessee shall not assign, sublet, license, mortgage or transfer any portion
of this Lease, nor shall Lessee allow any other person to use or occupy the
Property, or any part thereof, without the express written consent of the City.
The consent to one assignment, sublet, license, mortgage, transfer, use or
occupancy shall not be construed to be a consent to use any subsequent
assignment, sublet, license, mortgage, transfer, use or occupancy. The City
shall have the sole discretion to require a deposit equal to the first and last two
months rent, and to require written guarantees in exchange for its consent to any
assignment or sublease to a corporation.
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12. TERMINATION
a) Any assignment, sublet, license, mortgage, transfer, use or occupancy
by Lessee, whether voluntary or involuntary, without written consent by the City
shall be void and shall, at the option of the City, terminate this Lease upon written
notice to Lessee.
b) Should Lessee default in the payment of any installment of rent, or in
the performance of any covenant contained in this Lease, or if any interest held
by Lessee in this Lease is affected due to attachment, execution, judgment,
insolvency or bankruptcy, whether voluntary or involuntary, the City may
terminate this Lease as provided herein in Section 4(d).
13. SALE OF THE PROPERTY
In the event of any sale or conveyance by the City of the Property, said
sale or conveyance shall be made subject to this Lease and shall operate to
release the City from any further or future liability under any of the terms,
covenants, and conditions contained herein, whether express or implied, and
Lessee shall look solely to the responsibility of the successor in interest of the
City in and to this Lease.
14. INDEMNITY
Lessee hereby expressly waive all claims against the City for damages to
goods, wares and merchandise in, upon or about the Property, and for injuries to
persons in, upon or about the Property, from any cause arising at any time during
the Lease term. Lessee shall indemnify the City, its officers and employees, from
and against any and all liability, loss or expenses in connection with any claim,
demand or action asserted against the City, its officers or employees, because of
injury to or death of any person, or for loss of or damage to Property of any
person when such injury, death, loss or damage, however caused, results from,
occurs in connection with, or arises from the use of the Property by Lessee or
from the failure of Lessee to keep the Property in good condition and repair, or
which results from any acts, omissions or negligence by Lessee, its agents or
employees.
15. BREACH; LEGAL ACTION; DAMAGES
Upon Lessee's breach of any provision of this Lease, abandonment of the
Lease before the end of the term, or if Lessee's right to possession is terminated
by the City because of a breach of the Lease, the City, at its sole option may
bring legal action to recover from Lessee:
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a) The worth at the time of judgment or award of the unpaid rent which
had been earned at the time of termination;
b) The worth at the time of judgment or award of the amount by which the
unpaid rent which would have been earned after termination until the time of
judgment or award exceeds the amount of the rental loss that the City proves
could have been reasonably avoided;
c) The worth at the time of judgment or award of the amount by which the
unpaid rent for the balance of the term after the time of judgment or award
exceeds the amount of the rental loss that the City proves could have been
reasonably avoided; and
d) Any other amount necessary to compensate the City for all of the
detriment proximately caused by Lessee's failure to perform the obligations
under this Lease or which in the ordinary course of business would be likely to
result therefrom.
e) "Worth at the time of judgment or award" of the amount referred to in
Paragraphs 15 a and b is computed by allowing interest at the rate often (10%)
percent per annum; the "worth at the time of judgment or award" of the amount
referred to in Paragraph 15 c herein is computed by discounting such amount at
the discount rate of the Federal Reserve Board of San Francisco at the time of
award plus one (10/0) percent.
16. CONDITION OF PROPERTY; SURRENDER
Lessee accepts the Property and the leased fixtures and equipment as
being in good and sanitary order, condition and repair, and agrees to surrender
the Property in as good condition as received, except for normal wear and tear,
and to remove all of Lessee's signs from the Property.
17. GROUNDS FOR REPOSSESSION OF THE PROPERTY
Should Lessee fail to pay rent at the times and in the manner herein
provided, without deduction, default or delay, or in the event of a breach by
Lessee of any of the provisions herein, the City shall have the right to re-enter
the Property to remove all persons and Property therefrom, and to repossess and
enjoy the Property, notwithstanding anything stated herein to the contrary. The
City may, at its option, relet the Property, or any portion thereof, for such rent and
upon such terms as it may see fit to satisfy the rent herein reserved. Lessee
shall satisfy and pay any deficiency in the rent and pay the expenses of such
reletting and collecting. If the obligations of the Lessee are that of guarantor or
surety, Lessee agrees that no change or modification of the relations or
obligations between the City and the party or parties primarily liable, by reason of
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such reletting, nor any change in the Property, nor any delay shall release or
exonerate Lessee.
18. ENTRY AND INSPECTION
The City shall have the right to enter the Property at all reasonable times
to inspect, or to make necessary or agreed on repairs or alterations. Further, the
City retains the right to enter upon and show the Property to persons considering
purchase, rental or lease of the Property and to display the usual notices and
signs, "For Sale," "For Lease," or "For Let," upon the Property for sixty (60) days
prior to the expiration of the Lease term. Such signs shall be allowed without
diminution of rent or hindrance by Lessee.
19. PROPERTY UNINHABITABLE; REMEDY
If the Property is wholly destroyed by fire, earthquake or any other cause
whatsoever, or if the Property is injured by any cause which necessitates an
expenditure of more than forty (400/0) percent of its fair market value to repair and
restore it, or if more than forty percent (400/0) of the floor area, measured in
square feet, is destroyed, the City may, at its option, elect to terminate this
Lease. In which event, the City shall within sixty (60) days from the date of the
destruction or injury, give notice to Lessee that it has elected to terminate this
Lease. If the Lease is not terminated, Lessee shall not be obligated to pay the
rent herein reserved during the time that the Property is wholly uninhabitable.
If the City does not terminate the Lease as herein provided, and does not
commence restoration of the Property within sixty (60) days from the date of
destruction or injury, Lessee may, at its option, terminate this Lease upon written
notice to the City; provided, however, that the City shall in no event be under an
obligation or duty to restore the Property. If the City elects to restore the
Property, it shall proceed with reasonable diligence, but shall not be liable for any
delay, other than an abatement of rent during the time that the Property remains
uninhabitable. Where the Property is uninhabitable in part only, then such rent
abatement shall be proportioned accordingly. The words "restore" and
"restoration" as used herein, shall not include or apply to any fixture, equipment
or additions of any kind, or any Property whatever placed in or upon the Property
by Lessee or anyone acting on their behalf. In making restorations, the City may
use similar and/or changed workmanship and/or architecture. Immediately upon
completion of repairs, the full amount of rent hereunder reserved shall be due
and payable. For the purposes of this Lease, the Property shall be deemed
"uninhabitable" if it is nonoperative as a restaurant and bar business, or if any
public agency deems it unsafe or unhealthy for human habitation or use as a
restaurant and bar business.
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20. EMINENT DOMAIN
(a) In the event of a total condemnation of the Property during the Lease
term, this Lease shall terminate as of the date actual physical possession of the
Property is taken by the condemnor. All compensation and damages awarded for
such total condemnation shall belong to, and be the sole Property of the City,
and Lessee shall have no claim thereto, and hereby irrevocably assign and
transfer to the City any right to compensation or damages they may become
entitled, provided however, the Lessee shall be entitled to receive any award that
may be made for the taking of or damage to Lessee' trade fixtures and any
improvements made by Lessee to the Property which Lessee would have had,
but for the condemnation, the right to remove upon expiration or termination of
this Lease.
(b) On termination of this Lease by a total condemnation of the Property,
all rent and other charges payable by Lessee to or on behalf of the City pursuant
to this Lease shall be paid up to the date on which actual physical possession of
the Property is taken by the condemnor, and the parties hereto shall thereafter
be released from all further liability under this Lease.
(c) In the event of a partial condemnation of the Property during the Lease
term, this Lease shall terminate as to the portion of the Property so taken on the
date when actual physical possession of said portion is taken by the condemnor;
and the parties hereto shall each have the option to terminate this Lease by
giving written notice to the other, within thirty (30) days after actual physical
possession of said portion is taken by the condemnor. If neither party terminates
this Lease as herein provided, then this Lease shall continue in full force and
effect as to the remainder of the Property not condemned; provided, however,
that the rent payable by Lessee for the balance of the Lease term shall be abated
in the ratio that the square footage enclosed floor space of the Property bears to
the total floor space of the Property upon such condemnation.
(d) Upon partial condemnation, all compensation and damages awarded
for such condemnation shall belong to and be the sole Property of the City; and
Lessee shall have no claim thereto and hereby irrevocably assign and transfer
any right they may have had to share in the award to the City; provided, however,
that Lessee shall be entitled to receive any, award made for the taking of, or
damage to, Lessees' trade fixtures and any improvements made by Lessee to
the Property which Lessee would have had, but for the condemnation, the right to
remove upon expiration or termination of this Lease. (e) Upon termination of this
Lease in part, as herein provided, all rent and other charges payable by Lessee
to or on behalf of the City pursuant to this Lease, shall be paid up to the date on
which actual physical possession is taken by the condemnor of that part of the
Property being condemned; and Lessee shall thereafter be liable only for that
portion of rent required for the balance of the Lease term as herein provided.
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21. SIGNAGE
The existing signs which identify the Blackberry Farm Golf Course will
continue to be prominently displayed along with necessary "Open to the Public"
signs for the information of the City's patrons. The installation of additional signs
by Lessee concerning their business shall be in accordance with the City's sign
ordinances and regulations.
22. SECURITY
If any security is given by Lessee to secure the faithful performance of any
or all of the covenants of this Lease on the part of Lessee, the City may transfer
and/or deliver such security to the purchaser of the reversion, in the event that
the reversion is sold; and the City shall then be discharged from further liability in
reference thereto.
23. LEASE SUBORDINATE.
(a) This Lease shall be subordinate to any mortgages, trust deeds, or
bond indentures that are now or may hereafter be placed upon the Property, to
any and all advances made or to be made thereunder, to the interest thereon,
and to all renewals, replacements and extensions thereof, provided the
mortgagee or beneficiary named in the mortgages, trust deeds or bond
indentures agrees to recognize Lessee's Lease in the event of foreclosure if
Lessee are not in default. If any mortgagee or beneficiary elects to have this
Lease superior to its mortgage, trust deed or bond indenture by notice to Lessee,
then this Lease shall be deemed superior to the lien of any such mortgage, trust
deed, or bond indenture whether this Lease is dated or recorded before or after
said mortgage or trust deed.
(b) Lessee shall, upon not less than ten (10) days prior written request by
the City, execute, acknowledge and deliver to the City a written statement
certifying that this Lease is unmodified and in full force and effect, or that there
have been modifications and this Lease is in full force and effect as modified, and
stating the modifications, and the dates to which the rent and other charges have
been paid in advance, if any. The intent is that the statement provided pursuant
to this subsection, may be relied upon by any prospective purchaser, mortgagee
or assignee of any mortgagee of the Property.
(c) The voluntary or other surrender of this Lease by Lessee, or a mutual
cancellation thereof, shall not cause a merger and shall, at the City's option,
terminate all or any existing subleases or subtenancies consented to pursuant to
this section, or may, at the City's option, operate as an assignment to the City of
any or all such subleases or subtenancies.
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24. GENERAL PROVISIONS
(a) Notices. Any notices to be given by either party under the terms of this
Lease shall be made in writing and may be delivered either personally or by
certified or registered mail with postage prepaid, addressed as follows:
TO LESSEE:
The Blue Pheasant Restaurant
c/o Lona Means
22100 Stevens Creek Blvd.
Cupertino, CA 95014
TO THE CITY:
Director of Parks and Recreation
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
(b) Entire Agreement. This document comprises the entire and integrated
agreement of the parties concerning the lease of the Property and supersedes all
prior negotiations, representations, or agreements, either written or oral. Any
amendments to this document shall be effective only if in writing and signed by
the City and Lessee.
(c) Attorneys' Fees. If legal action is commenced to enforce or to declare
the effect of any provision of this Lease, the prevailing party shall be awarded
attorneys' fees and costs incurred by such party in the action.
(d) Severability. If any term, provision, covenant or condition of this Lease
is held by a court to be invalid, void or unenforceable, the rest of this Lease shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
(e) Time. Time is of the essence of this Lease.
(f) Waiver. The failure of the City to exercise any right under this
Lease shall not constitute a waiver of such right. Additionally, the subsequent
acceptance of rent by the City shall not be deemed to be a waiver of any
preceding breach by Lessee of any term, covenant or condition of this Lease,
other than the failure of Lessee to pay the particular rent so accepted, regardless
of the City's knowledge of such preceding breach at the time of acceptance of
such rent.
(g) Remedies Cumulative. The remedies provided herein shall be
cumulative, therefore, the exercise of anyone remedy shall not be to the
exclusion of any other remedy.
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(h) Binding on Heirs; Joint and Several Liability. The covenants and
conditions provided herein shall apply to and bind the heirs, successors,
executors, administrators and assigns of the parties hereto; and the parties
hereto shall be jointly and severally liable hereunder.
IN WITNESS WHEREOF, the parties have executed this Lease
Agreement on 4,' , 2004.
THE CITY:
Date:
LESSEE:
The Blue Pheasant Restaurant
B:
DAVID KNAP
BY:~ . ,{J~~~._
[ PETER RASMUSSEN*
President
Date: b - Z s- C) it
ATTESTED BY:
Date:
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BIRTHE LISA RASMUSSEN*
Date 0CR/:kAA~ %.s-~ y
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Charles T. Kilian, City Attorney
Attachment: Exhibit A - List of Fixtures
*NOTARY ACKNOWLEDGEMENT REQUIRED
H:\DOCS\City\Blue Pheasant lease corp lessee.doc
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EXHIBIT A
CITY'S FIXTURES LIST ATTACHED HERETO AND INCORPRATED INTO
REAL PROPERTY BEING LEASED
Front and Back Bar
Built-in Waitress Station in banquet room
Swampt Cooler on roof
Air Conditioning Unit
Furnaces
Built-in Speakers
Water Heaters
Light Fixtures
Safe
Refrigerated Waitress Station in front of kitchen
Hood and Ventilation System (including automatic fire extinguishing system)
Steam Table and Built-in Freezer in downstairs banquet room kitchen
Walk-in Box with Compressor
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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County of
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State of California
On 3.j~-04
Date
, before me,
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Name and Title of Officer (e.g., "Jane Doe, Notary Public")
Pet-if (.J. fA S ilU,- '5 SO u....-
Name(s) of Signer(s)
personally appeared
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D personally known to me
rx( proved to me on the basis of satisfactory
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to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
fj..... LINDA L. DAVIS
o ....j::...~ COMM. # 1282586
i ~_. NOTARY PUBLIC. CALIFORNIA
. SANTA CLARA COUNTY ...
Comm. Exp. OCT. 31,2004
Place Notary Seal Above
WITNESS my hand and official seal.
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Signature of Notary Public
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o Attorney in Fact
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o Other:
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@ 1997 National Notary Association' 9350 De Soto Ave., P.O. Box 2402' Chatsworth, CA 91313-2402
Prod. No. 5907
:;x
Reorder: Call Toll-Free 1-800-876-6827
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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State of California
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Name(s) of Signer(s)
, before me,
personally appeared
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evidence
to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
~...:. LINDA L. DAVIS
U ;'.j;I" COMM. # 1282586
i ~< NOTARY PUBLIC. CALIFORNIA
. SANTA CLARA COUNTY ....
Comm. Exp. OCT. 31,2004
Place Notary Seal Above
WIT~ESS my. hand and officia/~eal.
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D Attorney in Fact
D Trustee
D Guardian or Conservator
D Other:
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Signer Is Representing:
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,~
@ 1997 National Notary Association' 9350 De Soto Ave., PO. Box 2402 . Chatsworth, CA 91313-2402
Prod. No. 5907
0.
Reorder: Call Toll-Free 1-800-876-6827
GUARANTY AGREEMENT
This guaranty is given by OLE PETER RASMUSSEN and BIRTHE LISA
RASMUSSEN ("Guarantors") to CITY OF CUPERTINO ("Obligee") to induce Obligee
to enter into a lease with The Blue Pheasant Restaurant, a California Corporation date
3- 2 S- - 0 ~ , 2004, for the lease of property located at 22100 Stevens Creek
Boulevard, City of Cupertino, State of California.
1. Obligation Guaranteed. For valuable consideration, the undersigned
Guarantors jointly and severally unconditionally guarantee to Obligee the following
obligations of Obligor: Performance of all terms, provisions, and conditions of said lease
above-described and any extension thereof, including the payment of any and all
indebtedness of Obligor to Obligee. The word "indebtedness" is used in its most
comprehensive sense and includes any and all rent, debts, obligations and liabilities of
Obligor, whenever made, incurred, or created, whether voluntary or involuntary and
however arising, whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, and whether Obligor may be liable
individually or jointly with others, or whether recovery may be or become barred by any
statute of limitations or otherwise become unenforceable.
2. Insolvency or Bankruptcy. Guarantors jointly and severally unconditionally
guarantee the performance of all terms, provisions, and conditions of said lease and any
and all indebtedness of Obligor to Obligee, whether or not due or payable by Obligor, on
(a) the dissolution, insolvency, or business failure of, or any assignment for the benefit of
creditors by, or commencement of any bankruptcy, reorganization, arrangement,
moratorium, or other debtor relief proceedings by or against, Obligor or Guarantors, or
(b) the appointment of a receiver for, or the attachment, restraint of, or making or levying
of any court order or legal process affecting, the property of Obligor or Guarantors, and
jointly and severally unconditionally promise to pay this indebtedness to Obligee or
order, on demand, in lawful money of the United States.
3. Extent of Liability. The liability of Guarantors under this agreement is
exclusive and independent of any security for or other guarantee of the indebtedness of
Obligor, whether executed by Guarantors or any other party, and the liability of
Guarantors under this Agreement is not affected or impaired by any of the following:
a) Any indebtedness exceeding Guarantors' liability;
b) Any direction of application by Obligor or any other party;
c) Any other continuing or other guaranty, undertaking, or maximum liability
of Guarantors or of any other party as to the indebtedness of Obligor;
d) Any payment on or in reduction of any other guaranty or undertaking;
e) Any dissolution, termination, or increase, decrease, or changes of
personnel of any of the Guarantors; or
f) Any payment made to the Obligee on the indebtedness that Obligee repays
to Obligor pursuant to court order in any bankruptcy, reorganization,
arrangement, moratorium, or other debtor relief proceeding. Guarantors waive
any right to the deferral or modification of Guarantor's obligations by virtue of
any such proceeding.
4. Joinder of Parties. The obligations of guarantors are joint and several, and
independent of the obligations of Obligor. Obligee who may bring and prosecute a
separate action or actions against Guarantors, whether it brings an action against Obligor
or joins Obligor in any action or actions commenced. Guarantors waive, to the fullest
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extent permitted by law, the benefit of any statute of limitations affecting their liability
under this agreement or the enforcement of this agreement. Any payment by Obligor or
other circumstance that operates to toll any statute of limitations as to Obligor shall also
operate to toll the statute of limitations as to Guarantors. Any Guarantor who is a
married person agrees that recourse may be had against his or her separate property for
his or her obligations under this agreement.
5. Change of Obligation. (a) Guarantors authorize Obligee, (whether or not
after revocation or termination of this guaranty) without notice or demand (except any
notice or demand that is required by statute and cannot be waived) and without affecting
or impairing their liability, from time to time to do any of the following:
(1) Renew, compromise, extend, accelerate, or otherwise change the
time for performance of, or otherwise change the terms of the
obligation;
(2) Take and hold security for the performance of this guaranty or the
obligation guaranteed, and exchange, enforce, waive and release
any security;
(3) Apply security and direct the order or manner of sale of security as
Obligee in its discretion may determine; and
(4) Release or substitute anyone or more of the Guarantors.
(b) Obligee may without notice assign this guarantee in whole or in part.
6. Capacity and Authority. If Obligor is a corporation, partnership or other
entity, Obligee need not inquire into or verify the powers of Obligor or the authority of
those acting or purporting to act on behalf of Obligor, and this Guaranty shall be
enforceable with respect to any indebtedness Obligee grants or extends to Obligor in
reliance on the purported exercise of those powers or authority.
7. Subordination. Any indebtedness of Obligor now or later held by
Guarantors is subordinated to the indebtedness of Obligor to Obligee, and all
indebtedness of Obligor to Guarantors, if Obligee so requests, shall be collected,
enforced, and received by Guarantors as trustees for Obligee and be paid over to Obligee
on account of the indebtedness of Obligor to Obligee, without affecting or impairing in
any manner the liability of Guarantors under the other provisions of this guaranty.
8. Waiver of Defenses. (a) Guarantors waive any right to require Obligee
to (1) proceed against Obligor/ (2) proceed against or exhaust any security held from
Obligor; or (3) pursue any other remedy in Obligee's power whatsoever.
(b) Guarantors waive any defense based on or arising out of any defense of
Obligor other than payment in full of the indebtedness, including without limitation any
defense based on or arising out of the disability of Obligor, the unenforceability of the
indebtedness from any cause, or the cessation from any cause of the liability of Obligor
other than payment in full of the indebtedness.
(c) Obligee, at its election, may foreclose on any security held by Obligee by one
or more judicial sales, whether or not every aspect of any sale is commercially
reasonable, or exercise any other right or remedy Obligee may have against Obligor, or
any security, without affecting or impairing in any way the liability of Guarantors under
this agreement, except to the extent that the indebtedness has been paid.
(d) Guarantor waives all rights and defenses arising out of an election of
remedies by Obligee, even though that election of remedies, such as nonjudicial
foreclosure with respect to security for a guaranteed obligation, has destroyed
Guarantor's rights of subrogation and reimbursement against the principal by operation
of Code of Civil Procedure Section 580d or otherwise
(e) Until all indebtedness of Obligor to Obligee is paid in full, even though that
indebtedness is in excess of Guarantors' liability under this agreement, Guarantors shall
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have no right of subrogation, shall waive any right to enforce any remedy that Obligee
now has or may later have against Obligor, and shall waive any benefit of, and any right
to, participation in any security now or later held by Obligor. Guarantors waive all
presentments, demands for performance, notices of protest, notices of dishonor, notices
of acceptances of this guaranty, and notices of the existence, creation, or incurring of new
or additional indebtedness.
(f) Guarantors assume all responsibility for keeping themselves informed of
Obligor's financial condition and assets, and all other circumstances bearing on the risk
of nonpayment of the indebtedness and the nature, scope and extent of the risks that
Guarantors assume and incur under this agreement, and agree that Obligee shall have no
duty to advise Guarantors of information known to it regarding those circumstances or
risks.
9. Attorneys' Fees and Costs. In addition to the amounts guaranteed under
this agreement, Guarantors jointly and severally agree to pay reasonable attorneys' fees
and all other costs and expenses incurred by Obligee in enforcing this guaranty in any
action or proceeding arising out of, or relating to, this guaranty.
10. Liens and Setoffs. In addition to all liens on, and rights of setoff against
the money, securities or other property of Guarantors given to Obligee by law, Obligee
shall have a lien on and a right of setoff against all money, securities and other property
of Guarantors now or later in the possession of Obligee, whether held in a general or
special account or for safekeeping or otherwise; and every lien and right of setoff may be
exercised without demand on or notice to Guarantors.
11. Nonwaiver of Rights of Obligee. No right or power of Obligee under
this agreement shall be deemed to have been waived by any act or conduct on the part of
Obligee, or by any neglect to exercise that right or power, or by any delay in so doing;
and every right or power shall continue in full force and effect until specifically waived
or released by an instrument in writing executed by Obligee.
12. Singular and Plural. In all cases when there is but a single Obligor or a
single Guarantor, all words used in the plural shall be deemed to have been used in the
singular if the context and construction so require; and when there is more than one
Obligor, or when this guaranty is executed by more than one Guarantor, the word
"Obligor" and the word "Guarantor" respectively shall mean all and anyone or more of
them.
13. Effect on Heirs and Assigns. This guaranty and the liability and
obligations of Guarantors under this agreement are binding on Guarantors and their
respective heirs, executors, and assigns, and inure to the benefit of and are enforceable by
Obligor and its successors, transferees, and assigns.
14. Notices. Any notice given by any party under this guaranty shall be
personally delivered or sent by United States mail, postage prepaid, and addressed to
Obligee or Guarantor at their respective addresses for notices indicated below. Guarantor
and Obligee may change the place to which notices, requests, and other communications
are to be sent to them by giving written notice of that change to the other.
15. Governing Law and Modification. This guaranty shall be deemed to be
made under, and shall be governed by, the laws of the State of California in all respects,
including matters of construction, validity, performance, and enforcement, and its terms
and provisions may not be waived, altered, modified, or amended except in writing duly
signed by an authorized officer of Obligee and by Guarantors.
16. Invalidity. If any provision of this guaranty contravenes or is held invalid
under the laws of any jurisdiction, this guaranty shall be construed as though it did not
contain that provision, and the rights and liabilities of the parties to this agreement shall
be construed and enforced accordingly.
17. Headings. Headings in this agreement are for convenience only and shall
not be used to interpret or construe its provisions. .~
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18. Counterparts. This agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Guaranty on
~- 26"'-" If ,2004.
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o e Peter Rasmussen
@~~fflo;]J~
Birthe Lisa Rasmussen
Address for Notices to Guarantor:
Ole Peter Rasmussen and
Birthe Lisa Rasmussen
22100 Stevens Creek Boulevard
Cupertino, CA 95014
OBLIGOR
The Blue Pheasant Restaurant
By:~d~~.
Ole Peter Rasmussen, President
Address for Notices to Obligor:
Ole Peter Rasmussen and
Birthe Lisa Rasmussen
22100 Stevens Creek Boulevard
Cupertino, CA 95014
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B:
David Knapp, City
Address for Notices to Obligee:
Cupertino City Hall
AUn:
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10300 Torre Avenue
Cupertino, CA 95014-3255
Attest:
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City C1~ ~
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ASSIGNMENT OF LEASE
The following definitions and designations shall apply in Assignment, without regard to number or gender:
BUSINESS: The Blue Pheasant Restaurant
PREMISES: 22100 Stevens Creek Blvd., Cupertino, CA 95014
ASSIGNOR (Seller): Ole Peter Rasmussen, Birthe Lisa Rasmussen
ASSIGNEE (Buyer): Hungry Jack's Restaurant Corporation
LESSOR: The City of Cupertino
LEASE DEPOSIT: $2,300
CLOSING: Close of escrow for transfer of the Business from Assignor to Assignee.
LEASE: Lease Agreement from Lessor to Assignor for above Premises occupied by Business and
dated 04-0 1-04 .
Assignor hereby assigns to Assignee all of his rights in the Lease including the Lease Deposit. Assignee hereby
agrees to comply with all the terms and obligations of the Lease, and to hold Assignor harmless from any liability
on it arising after Closing.
Lessor consents to the above Assignment but no future assignments. Lessor does not release Assignor from any
liability under the Lease.
Assignor shall have a right of re-entry as reasonably necessary to exercise any rights held under any security
agreement on the Business assets or leasehold.
This assignment is only effective upon the close of escrow on the sale of The Blue Pheasant to Hungry Jack's
Restaurant Corporation. Each party warrants that he has carefully read and fully understands the provisions of
the Lease.
~~D~__ ~
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Ole Peter Rasmussen, Assignor
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David Knapp, City Manager, Les or
gry Jack's Rest. orporation, Assignee
by Mike Tsachres, President