04-105 Coffee Society lease agrmt.
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LEASE AGREEMENT
This Lease Agreement ("Lease") is entered into as of the 21 st day of June, 2004, by and between the City
of Cupertino, a municipal corporation, 10300 Torre Avenue, Cupertino, CA 95014 ("Landlord"), and
Coffee Society at the Cupertino Library, LLC, 21265 Stevens Creek Boulevard, CA 95014 ("Tenant").
WHEREAS, Landlord is the owner of certain real property commonly described as being located at
10300 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.
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 consIstmg 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 described in Exhibit B Leased Premises,
attached hereto, together with the nonexclusive right to use the common and parking areas of Landlord's
Property.
2. TERM AND OPTION.
2.1 Term.
The term of this Lease shall be for a period of five (5) years commencing on approximately November 1,
2004 ("Commencement Date") and ending October 31, 2009.
2.2 Option.
Tenant is granted the option to extend the initial term of this Lease for one (1) additional period of five (5)
years provided Tenant is not in default ("Extended Term"). To exercise the option to extend, Tenant shall
give written notice thereof to Landlord at least six (6) months prior to the expiration of the initial 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 24.
a. From November 1, 2004 to January 31, 2005 will be rent free.
b. From February 1,2005 to October 31, 2005, the monthly sum of$1,125.00.
b. From November 1,2005 to October 31,2006, the monthly sum of$1,153.l3.
c. From November 1,2006 to October 31, 2007, the monthly sum of$1,181.95.
d. From November 1,2007 to October 31,2008, the monthly sum of$I,2l1.50.
e. From November 1,2008 to October 31, 2009, the monthly sum of$1,241.79.
In the event the option term is exercised, the rent shall be as follows:
a. From November 1, 2009 to October 31,2010 the monthly sum of$1,272.83.
b. From November 1, 2010 to October 31, 2011, the monthly sum of$1,304.66.
c. From November 1,2011 to October 31,2012, the monthly sum of$1,337.27.
d. From November 1,2012 to October 31, 2013, the monthly sum of$1,370.70.
e. From November 1,2013 to October 31,2014, the monthly sum of$1,404.97.
3.2 Late Charges.
Any installment of rent or any other sum due by Tenant and not received by Landlord within five (5) days
after such amount shall be due, without any requirement for notice to Tenant, shall be subject to a late
charge equal to six percent (6%) of such overdue amount.
4. TAXES.
4.1 Real Estate Taxes.
F or 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, 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.
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Tenant shall not use nor permit the use of the Leased Premises in any manner that will tend to create
waste or nuisance or 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 his 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. In the event Tenant's use of the Premises, for public cafe uses, results in a rate increase
for the building of which the Premises are a part, Tenant shall pay a pro-rata share annually on the
anniversary date of this Lease, as additional rent, a sum equal to that of the additional premium
occasioned by said rate increase.
6. AL TERA TIONS AND FIXTURES; WORK LETTER.
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. 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. Landlord agrees to build at its sole cost and expense, a partition wall
to separate the cafe from the library.
6.3 Work Letter
The design and construction of the Premises shall be done in compliance with provisions of Exhibit C
Work Letter.
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 not, however, be obligated to maintain the interior or exterior surface of exterior
walls, windows, doors or plate glass. 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 or to terminate this Lease because of Landlord's
failure to keep the Premises in good order, condition and repair.
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7.2 Tenant's Obligations.
(a) Tenant, at Tenant'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, trade
fixtures, interior walls and interior surface of exterior walls, ceilings, windows, doors, and glass, located
within the Premises. 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 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 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.
(c) On the last day of the term hereof, or on any sooner termination, Tenant shall surrender
the Premises to Landlord in the same condition as received, 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, 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.
Tenant shall maintain plate glass insurance with a provision requiring the insurer to give Landlord at least
ten (10) days written notice before any decrease in coverage, cancellation, or other material change, is
effective and naming Landlord as the additional insured, and shall provide Landlord with a copy of the
policy or a Certificate ofInsurance within fifteen (15) days after the Commencement Date. 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.
9. INDEMNIFICATION OF LANDLORD - LIABILITY INSURANCE BY TENANT.
9.1 Indemnification.
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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 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 any sidewalks directly adjacent to the Premises. The
limitation of liability of such insurance shall be not less than One Million dollars ($1,000,000.00) in
respect to anyone 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 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.
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, 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
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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 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 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. ASSIGNMENT AND SUBLETTING.
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 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
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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 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 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)
termination;
The worth at the time of award of the unpaid rent, which had been earned at the time of
(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 ward 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
(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 damages 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.
Page 7 of 16
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 rights of Tenant shall hereunder expire and
terminate, but Tenant 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 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.
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 contemporaneously with the execution of this Lease, 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
Page 8 of 16
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 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 (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 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 15 on assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of all the parties hereto.
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:
Ralph Flynn
President
Coffee Society at the Cupertino Library, LLC
21265 Stevens Creek Blvd.
Cupertino, CA 95014
Phone: (408) 725-8091
Page 9 of 16
LANDLORD:
Director of Public Works
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3255
Phone: (408)777-3354
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.
Landlord: CITY OF CUPERTINO
ByjkJe::, Lily"
c:."'L, J.A.,.. 7 "-
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Title
Tenant: COFFEE SOCIETY AT THE CUPERTINO LIBRARY, LLC
By ~/.4;~/
Title /?14qQ~PY f1?",P?&t"'Y
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Page 10 of 16
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Page 12 of 16
Exhibit C Work Letter
1. Space Plan.
(a) Space Plan. Tenant has delivered to Landlord a space plan depicting improvements to be installed in
the Premises, which plans were prepared by Tenant and dated March 22, 2004 (the "Space Plan"). The
Space Plan is attached hereto as Exhibit C -1.
3. Working Drawings.
(a) Preparation and Delivery. On or before the date which is 30 days following the date on which this
Lease is fully executed by both Landlord and Tenant, Tenant shall cause to be prepared final working
drawings of all improvements to be installed in the Premises and deliver the same to Landlord for its
review and approval (which approval shall not be unreasonably withheld, delayed or conditioned).
(b) Approval Process. Landlord shall notify Tenant whether it approves of the submitted working
drawings within five business days after Tenant's submission thereof. If Landlord disapproves of such
working drawings, then Landlord shall notify Tenant thereof specifying in reasonable detail the reasons
for such disapproval, in which case Tenant shall, within five business days after such notice, revise such
working drawings in accordance with Landlord's objections and submit the revised working drawings to
Landlord for its review and approval. Landlord shall notify Tenant in writing whether it approves of the
resubmitted working drawings within one business day after its receipt thereof. This process shall be
repeated until the working drawings have been finally approved by Landlord and Tenant. If Landlord fails
to notify Tenant that it disapproves of the initial working drawings within five business days (or, in the
case of resubmitted working drawings, within one business day) after the submission thereof, then
Landlord shall be deemed to have approved the working drawings in question. Any delay caused by
Landlord's unreasonable withholding of its consent or delay in giving its written approval as to such
working drawings shall constitute a Landlord Delay Day (defined below). If the working drawings are not
fully approved (or deemed approved) by both Landlord and Tenant by the 15th business day after the
delivery of the initial draft thereof to Landlord, then each day after such time period that such working
drawings are not fully approved (or deemed approved) by both Landlord and Tenant shall constitute a
Landlord Delay Day.
(c) Landlord's Approval; Performance of Work. If any of Tenant's proposed construction work will affect
the Building's Structure or the Building's Systems, then the working drawings pertaining thereto must be
approved by the Building's architect or engineer of record. Landlord's approval of such working drawings
shall not be unreasonably withheld, provided that (1) they comply with all Laws, (2) the improvements
depicted thereon do not adversely affect (in the reasonable discretion of Landlord) the Building's
Structure or the Building's Systems, the exterior appearance of the Building, or the appearance of the
Building's common areas, (3) such working drawings are sufficiently detailed to allow construction of the
improvements in a good and workmanlike manner, and (4) the improvements depicted thereon conform to
the rules and regulations promulgated from time to time by Landlord for the construction of tenant
improvements. As used herein, "Working Drawings" shall mean the final working drawings approved by
Landlord, as amended from time to time by any approved changes thereto, and "Work" shall mean all
improvements to be constructed by Tenant in accordance with and as indicated on the Working Drawings.
Landlord's approval of the Working Drawings shall not be a representation or warranty of Landlord that
such drawings are adequate for any use or comply with any Law, but shall merely be the consent of
Page 13 of 16
Landlord thereto. Tenant and Landlord shall each sign the Working Drawings to evidence their mutual
review and approval thereof. After the Working Drawings have been approved, Tenant shall cause the
Work to be performed in substantial accordance with the Working Drawings, using contractors and
subcontractors approved by Landlord.
4. Change Orders. Tenant may initiate changes in the Work. Each such change must receive the prior
written approval of Landlord, such approval not to be unreasonably withheld or delayed; however, (a) if
such requested change would adversely affect (in the reasonable discretion of Landlord) (1) the Building's
Structure or the Building's Systems, (2) the exterior appearance of the Building, or (3) the appearance of
the Building's common areas, or (b) if any such requested change might delay the Commencement Date,
Landlord may withhold its consent in its sole and absolute discretion. Tenant shall, upon completion of
the Work, furnish Landlord with an accurate architectural "as-built" plan of the Work as constructed.
5. Definitions. As used herein, a "Landlord Delay Day" means each day of delay in the performance of
the Work that occurs
(a) because of Landlord's failure to timely deliver or approve any required documentation such as the
Working Drawings,
(b) because Landlord fails to attend any meeting with Tenant, the architect, any design professional, or
any contractor, or their respective employees or representatives, as may be required or scheduled
hereunder or otherwise necessary in connection with the preparation or completion of any construction
documents, such as the Working Drawings, or in connection with the performance of the Work. Each
Landlord Delay Day shall entitle Tenant to receive one additional day of abated rent.
As used herein, a "Tenant Delay Day" means each day of delay in the performance of the Work that
occurs
(i) because Tenant fails to timely furnish any information or deliver or approve any required documents
such as the Working Drawings (whether preliminary, interim revisions or final), and the like,
(ii) because of any change by Tenant to the Space Plans or Working Drawings,
(iii) because Tenant fails to attend any meeting with Landlord, the architect, any design professional, or
any contractor, or their respective employees or representatives, as may be required or scheduled
hereunder or otherwise necessary in connection with the preparation or completion of any construction
documents, such as the Working Drawings (whether preliminary, interim revisions or final), and the like,
(iv) because a Tenant otherwise delays completion of the Work. As used herein, " Substantial
Completion," "Substantially Completed" and any derivations thereof mean the Work in the Premises is
substantially completed (as reasonably determined by Landlord) in substantial accordance with the
Working Drawings. Substantial Completion shall have occurred even though minor details of
construction, fixturing, and mechanical adjustments remain to be completed by Tenant. Each Tenant
Delay Day shall entitle Tenant to lose one additional day of abated rent.
6. Walk-Through; Punchlist. When Landlord considers the Work in the Premises to be Substantially
Completed, Landlord will notify Tenant and within three business days thereafter, Landlord's
representative and Tenant's representative shall conduct a walk-through of the Premises and identify any
necessary touch-up work, repairs and minor completion items. Neither Landlord's representative nor
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Tenant's representative shall unreasonably withhold his or her agreement on punchlist items. Tenant shall
use reasonable efforts to cause the contractor performing the Work to complete all punchlist items within
30 days after agreement thereon; however, Tenant shall not be obligated to engage overtime labor in order
to complete such items.
7. Costs. Tenant shall bear the entire cost of designing, permitting, and performing the Work depicted on
the Working Drawings approved by Landlord.
8. Construction Representatives. Landlord's and Tenant's representatives for coordination of construction
and approval of change orders will be as follows, provided that either party may change its representative
upon written notice to the other:
Landlord's Representative:
Terry Greene
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3255
Phone: (408) 777-3354
Tenant's Representative:
Ralph Flynn
Coffee Society at the Cupertino Library, LLC
21265 Stevens Creek Blvd.
Cupertino, CA 95014
(408) 725-8091
9. Miscellaneous. To the extent not inconsistent with this Exhibit, Sections 8(a) and 21 of this Lease shall
govern the performance of the Work and Landlord's and Tenant's respective rights and obligations
regarding the improvements installed pursuant thereto.
Page 15 of 16
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