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13-098 Hungry Jack's Corporation, Lease Agreement, 22100 Stevens Creek Boulevard (Blue Pheasant); First Amendment dated 07/01/2018 FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND HUNGRY JACK'S CORPORATION FOR PROPERTY LOCATED AT 22100 STEVENS CREEK BOULEVARD This First Amendment to Lease Agreement between the City of Cupertino and Hungry Jack's Corporation, for reference dated 7/1/2018, is by and between the CITY OF CUPERTINO, a municipal corporation(hereinafter "City") and Hungry Jack's Corporation, a California Corporation ("Lessee") whose address for the purposes of this lease is 22100 Stevens Creek Boulevard, and is made with reference to the following: RECITALS: A. On 7/3/2013, an agreement was entered into by and between City and Lessee (hereinafter "Agreement") for Lease of the property commonly known as "The Blue Pheasant Restaurant"located at 22100 Stevens Creek Boulevard, City of Cupertino, County of Santa Clara, State of California. The agreement will expire on 6/30/2018. B. On 5/17/2018, City and Lessee agreed to the First Amendment for Lease of the Property Known as The Blue Pheasant. C. The Agreement and the First Amendment are collectively referred to as the "Agreement"unless otherwise indicated. D. City and Lessee desire to modify the Agreement on the terms and conditions set forth herein. NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows: 1. TERM Paragraph 2 of the Agreement is modified to read as follows: The lease of the property shall commence on July 1, 2018 and end on June 30, 2021, unless otherwise terminated under the provisions of this Agreement. 2. LESSEE'S OBLIGATIONS Paragraph 7, Section i of the Agreement is modified to read as follows: i. Insurance A. General Provisions Lessee shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the Lessee's operation and use of the leased premises. The cost of such insurance shall be borne by the Lessee. Lessee shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees, or subcontractors. With respect to General Liability,Errors & Omissions, Contractors Pollution Liability, and/or Asbestos Pollution Liability, coverage should be maintained for a minimum of five (5) years after contract completion. Lessee shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Lessee, its agents, representatives, or employees. B. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: (1) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an"occurrence"basis, including products and completed operations, property damage,bodily injury and personal& advertising injury with limits no less than $10,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location(ISO CG 25 03 or 25 04)or the general aggregate limit shall be twice the required occurrence limit. CGL policy must include Liquor Liability. (2) Property insurance against all risks of loss to any tenant improvements or betterments, at full replacement cost with no coinsurance penalty provision. (3) Automobile Liability: Insurance Services Office Form Number CA 0001 covering any auto (Code 1), or if Contractor has no owned autos,hired(Code 8) and non-owned(Code 9) autos, with limit no less than $10,000,000 per accident for bodily injury and property damage. (4) Workers' Compensation insurance as required by the State of California,with Statutory Limits, and Employer's Liability Insurance with limits of no less than$1,000,000 per accident for bodily injury or disease. If the Lessee maintains broader coverage and/or higher limits than the minimums shown above, the Entity requires and shall be entitled to the broader coverage and/or higher limits maintained. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Entity. C. Other Insurance Provisions: The insurance policies are to contain, or be endorsed to contain,the following provisions: (1)Additional Insured Status. The Entity, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Lessee including materials,parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Lessee's insurance(at least as broad as ISO Form CG 20 10.) (2) Primary Coverage. For any claims related to this contract, the Lessee's insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 0104 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self- insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Lessee's insurance and shall not contribute with it. (3) Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the Entity. (4) Waiver of Subrogation. Lessee hereby grants to Entity a waiver of any right to subrogation which any insurer of said Lessee may acquire against the Entity by virtue of the payment of any loss under such insurance. Lessee agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Entity has received a waiver of subrogation endorsement from the insurer. -(5) Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A: VII, unless otherwise acceptable to the Entity. (6) Self-Insured Retentions. Self-insured retentions must be declared to and approved by the Entity. At the option of the Entity, either: the Lessee shall obtain coverage to reduce or eliminate such self-insured retentions as respects the Entity, its officers,officials, employees, and volunteers' or the Lessee shall provide a financial guarantee satisfactory to the Entity guaranteeing payment of losses and related investigations, claim administration,and defense expenses.The policy language shall provide,or be endorsed to provide,that the self-insured retention may be satisfied by either the named insured or Entity. (7) Verification of Coverage. Lessee shall furnish the Entity with original certificates and amendatory endorsements or copies of the applicable policy language providing the insurance coverage required above. All certificates and endorsements are to be received and approved by the Entity before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Lessee's obligation to provide them. The Entity reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time. (8) Waiver of Subrogation.Lessee hereby grants to Entity a waiver of any right to subrogation which any insurer of said Lessee may acquire against the Entity by virtue of the payment of any loss under such insurance. This provision applies regardless of whether or not the Entity has received a waiver of subrogation endorsement from the insurer. (9) Special Risks or Circumstances. Entity reserves the right to modify these requirements at any time, including limits,based on the nature of the risk,prior experience, insurer, coverage, or other special circumstances. 3. INDEMNITY Paragraph 12 of the Agreement is modified to read as follows: To the fullest extent allowed by law,Lessee, its officers,employees, agents and subcontractors(collectively, "Lessee") agrees to and shall indemnify,defend, and hold harmless the City, its City Council,boards and commissions,officers,officials, employees, agents, servants and volunteers (collectively"Indemnitees"),from and against any and all liability,loss, damage(including consequential damages), costs and expenses,claims and actions, regardless of nature or type ("Liabilities"), arising out of or in connection with Lessee's performance under this Lease, its business operations, and its failure to comply with any of its obligations in connection with this Lease, except for loss or damage caused by the sole negligence or willful misconduct of the City. Liabilities for which Lessee agrees to indemnify,defend and hold harmless the City/Indemnitees include without limitation,property damage,injury, or death occurring in or about the premises or related to the use of the parking lot by Lessee or Lessee's guests or invitees, resulting from Lessee's failure to keep the Property in good condition and repair, or from any act or omission by Lessee,its agents,contractors, invitees, or employees. Lessee shall also be responsible for all damages, liability, fines,penalties and any other consequences arising from any noncompliance or violation of any laws, ordinances, codes, or regulations, including but not limited to the Occupational Safety and Health Act and the Americans with Disabilities Act. Litigation costs and expenses include without limitation,reasonable attorneys' fees,the costs of legal counsel of the City's choice, expert fees, and all other costs and fees incurred in investigating,defending, or prosecuting litigation or similar proceedings and the threat thereof. • S r Lessee hereby expressly waives all claims against the City for damages to goods,w«xes 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. 4. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall remain the same and shall be in full force and effect. IN WI SS EREOF,the parties hereto have caused this modification of Agreement to exec ed. LE E CIT F C ER Of � B By L- Titl Title RECO MENDED FOR APP VAL APPRO AS TO�ORM City Atto ey ATTEST: - City Clerk REVENUE DISTRIBUTION Original $;720, 000 l 00 (P 3 (P 12 400 49 Amendment 41: $ 720, 000 100 (y3 lCl2 y 00 435 Total: I pn 0 ul l y00 455 It I ,HH01 000 MPLOYER,i� f Workers' Compensation and Employers Liability I� � � - Insurance Policy EMPLOYERS PREFERRED INS. CO. Policy Number From olicy Period To A Stock Company EIG 1245624 07 1 10/01/2017 10/01/2018 12,01 A.M.Standard Time at the address of the Insured as stated herein Transaction AMENDED DECLARATIONS Effective: 02/20/2018 NCCI Carrier# 31283 WCIRB CARRIER# 00920 PRIOR POLICY NUMBER EIG124562406 1. Named Insured and Address Agent HUNGRY JACKS INC GRANITE PRO INS BRKS INC 3036000 DBA BLUE PHEASANT RESTAURANT ECOMP A DIV OF GRANITE INS 22100 STEVENS CREEK BLVD 6600 KOLL CENTER PKWY STE 100 CUPERTINO CA 95014-1037 PLEASANTON, CA 94566 Telephone: 8884932667 Customer# Carrier# FEIN # Risk ID # Entity of Insured 31283 330559277 761489 CORPORATION Additional Locations: 2. The Policy Period is from 10/01/2017 to 10/01/2018 12:01 a.m. Standard Time at the Insured's mailing address. 3. A. Workers Compensation Insurance: Part ONE of the policy applies to the Workers Compensation Law of the states listed here: CA B. Employers Liability Insurance: Part TWO of the policy applies to work in each state listed in Item 3A. The limits of our liability under Part TWO are: Bodily Injury by Accident $ 1,000,000 each accident Bodily Injury by Disease $ 1,000,000 policy limit Bodily Injury by Disease $ 1,000,000 each employee C. Other States Insurance: Part THREE of the policy applies to the states, if any, listed here: All states except AK, DE, HI, ME, ND, NH, OH, RI, SD, VT, WA, WV, WY and states listed in item 3.A. D. This policy includes these endorsements and schedules: See attached schedule. 4. The premium for this policy will be determined by our Manuals of Rules, Classifications, Rates, and Rating Plans. All information required below is subject to verification and change by audit. SEE EXTENSION OF INFORMATION PAGE Minimum Premium $ 750 Expense Constant $ 220 Premium Discount $ Assessments and Taxes $ Total Estimated AnnualPremium $ 5,144 H ❑ This is a Three Year Fixed Rate Policy Premium Adjustment Period: ® Annual; ❑ Semiannual; ❑ Quarterly; ❑ Monthly Countersigned this Day of j Issued Date: 02/21/2018 Authorized Representative o 0 0 Issuing Office EMPLOYERS PREFERRED INS. CO. 2550 PASEO VERDE PARKWAY, SUITE 100 HENDERSON, nib/ 89074-7117 0 Issued Date 02/21/2018 INSURED COPY WC990630 (5/98 Ed.) Page 1 of 2 1=MPLOVERI America's small business insurance specialist.' CA Waiver of Workers' Compensation Coverage Named Insured: miketsachms Polls No./Quote No. I EIG 124562407 CORPORATE OFFICERS OR MEMBERS OF A BOARD OF DIRECTORS Pursuant to California Labor Code section 3352(p), I hereby certify, under penalty of perjury, that I am an officer or member of the board of directors of the above-named insured, which is a quasi-public or private corporation, and that I own at least 15 percent (15%) of the issued and outstanding stock of the above-named insured corporation. As a qualifying officer or member of the board of directors, I elect to be excluded from the corporation's workers' compensation insurance policy with the above- referenced insurer. I understand and agree that this written waiver will be effective upon the date of receipt and acceptance by the corporation's insurer and it shall remain in effect until I provide the insurer with a written withdrawal of this waiver. I understand and agree that by signing this waiver, I will not be entitled to coverage under the insured's workers' compensation policy with the above-referenced insurer if an employment-related injury occurs. mike tsachres president PRINT OFFICER'S/ TITLE MEMBER OF BOARD OF DIRECTOR'S FULL NAME 2/18/18 OFFICER'S/MEMBER OF BOARD OF DIRECTOR'S DATE SIGNATURE ACCEPTED: [Insurance Company] DATE NOTE TO EMPLOYER: The exclusion will be endorsed to the policy upon our receipt and acceptance of a signed and properly completed form. The person electing exclusion must sign this form. Company representatives may not sign on behalf of the individual. One exclusion per form. If policy contains multiple Named Insureds, an individual will need to submit a waiver for each Named Insured for which they are eligible. Submit additional forms if needed. Submit completed forms to: E-mail: westunderwriting@employers.com Mail: EMPLOYERS, PO Box 539003, Henderson, NV 89053-9003 Signature: lfflwe lrolh`ef Email: bluepheasantreastaurant@yahoo.com AB 2883 compliant In California,workers'compensation insurance and services may be offered through Employers Compensation Insurance Company,Employers Preferred Insurance Company and Employers Assurance Company.EIG Services,Inc.(in California,dba EIG Insurance Services)is an affiliated agency and adjuster.Not all insurers do business in all jurisdictions. U W_PH_0024_CA Rev.10/2016 AC"RO DATE(MM/DD/YYYY) CERTIFICATE OF LIABILITY INSURANCE 06/01/201e THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER,THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING)NSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT:If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must have ADDITIONAL INSURED provisions or be endorsed.if SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement.A statement on this certificate does not confer rights to the certificate holder in lieu or such endorsement(s). PRODUCER I CONTACT -- I NAME: j Jose Manabat(.966025E) PHONE FAX 1620 Oakland Rd Ste D107 (A/C,NO,EXT):408-437-5456 (Are,No}:408 437-9117 E-MAIL — ------ San Jose CA 95131-2447 ADDRESS: jmanabat@farmersagent.com INSURER(S)AFFORDING COVERAGE NAIC INSURED INsURERA: Truck Insurance Exchange 21709 i —INSURERS: Farmers Insurance Exchange 21652 HUNGRY JACK'S RESTAURANT INC INSURERC:—Mid Century Insurance Company 21687 22100 STEVENS CREEK BLVD - INSURERD: CUPERTINO CA 95014 -- INSURERF: —! INSURERF: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURES NAME ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT;TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RFSPFCT TO WHICH THIS CERTIFICATE MAY BF ISSUED OR MAY PF Rt"AIN,THE INSURANCE AFFORDFD BY TI IF POLICIES DESCRIBED HEREIN IS SURJECTTO ALL THE TERMS,EXCL USIONSAND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INSR ADDTL SUER POLICY EFF ! POLICY EXP TYPE OF INSURANCE i POLICYNUMBER 1 LIMITS LTR INSO WVD (MM/DD/YYYY) i (MM/DD/YYYY) COMMERCIAL GENERAL LIABILITY I —EACHOCCURRENCE ,S 21DD0,C04 DAMAGE TO RENTED CLAIMS-MADE X' OCCUR i S ii PREMISES 250,000 t — l ------.—.— ----— I —i -- i ( MED[XP(Any one person) $ 5,00a Y Y �603023313 08/13/2017 ' 08/13/2018 PC:.RSONAL&AD',/IN)URY $ 2,000,000 C i -- —� i GEN'tAGGREGATELIMITAPFLIESPER: II GENERAL AGGREGATE 1$ 4,000,00a i O[.ILY PROJECT LOC PRODUCTS-COMPY7PAiCi iS 4.000,000. OTHER: --- ItIMiT AUTOMOBILE LIABILITY ! j COMBINEi3SINGLE. $ l ? (Ea accident) i ANY AUTO ! i BODILY INJURY(Per oerscn) $ j OWNEDAUTOS SCHEDULED ONLY AUTOS i BODILY INJURY(Peraccid_ent)$ r - - HIREDAUTOS NON-OWNED € � ( � PROPERTY DAMAGE ONLY AUTOS ONLY I (Peraccldeni) $ j ........_... _._..._._..__._.-.. I I I S UMBRELLA LIAB X OCCUR i EACH OCCURRENCE $ 8,000,00d. C 'r- EXCESSLIA8 CLAIMS-MADE Y Y 606626323 06/01/2018 08/13/2018 rAGGREGATE � $ DEED) RETENTION$ 1 1 WORKERS COMPENSATION OT:HF.R $ AND EMPLOYERS'LIABILITY { ; ST\rU'tIc ANY PROPRIETOR/PARTNER/ Y/N I ( E-L.EACH ACCIDENT $— EXECUTIVE OFFICER/MEMBER (" N/A { J I — EXCLUDED?(Mandatoryin NH) i I E.L DISEASE-EAEMPLOYEEE Ityes,describe under DESCRIPTION Or l OPE..RATIONSbelowISEASE-PQLICYLIMIT $ _ i DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(ACORD 101,Additional Remarks Schedule,may be attached if more space is required) 22100 STEVENS CREEK BLVD,CUPERTINO,CA 95014 Additional Insured:City of Cupertino,its officers,officials,employees,and volunteer CERTIFICATE HOLDER CANCELLATION -7CrNDT-CUPEITIN0 SHOULD ANY OF THE ABOVE DESCRIBED POU' BEC ELLED BEFORE THE EXPIRATION 10300 TORRE AVE DATE THEREOF NOTICE WILL BE DEL.IVFRFO THE POLICY PROVISIONS. ....................... —_..�— ._....___. AUTHORIZED REPRESENTATIVE ___ ..__......-----.--.--CUPERTINO__ __ - ------- ___.._..--- CA-9501A ACORD 25(2016/03) 'S1988 2 15 ACORD CORPORATION.AN Rights Reserved 31-1769 11-15 The ACORD name and loco are registered marks of ACORD Kevin Khuu To: Jenny Koverman Cc: Christine Hanel; Mariah Dabel Subject: RE:Insurance Coverage Questions From:Joseph Costamagna [mailto:icostamagna@bickmore.net] Sent: Monday,June 11, 2018 1:05 PM To:Jenny Koverman <JennyK@cupertino.org> Cc: Rob Kramer<rkramer@bickmore.net>; Martinez,Yahaira <ymartinez@bickmore.net> Subject: Re: Insurance Coverage Questions HI Jenny, I'm sorry you were having trouble getting a response from us. I checked but could not find any inquiries in my Inbox from you. When you have a moment, please let me know where those inquiries were sent and we'll try to figure out what happened. In the meantime, I responded to your questions below. Thank you for your patience. Joe YOUR QUESTIONS: Regarding #1 - Their insurance agent says that there is no policy that gives you 10 million per occurrence to have 20 million aggregate. He said that it is standard 2 million per occurrence and 4 million aggregate. So the only way they can get to the 20 million, is to do the remaining 8 million under umbrella liability per occurrence. Will this work? I'm not sure what we are supposed to do otherwise. The aggregate of $20 million would only potentially come into play if they can NOT provide a "per location" aggregate via the common and easy-to-get CG 25 04 endorsement. It provides a separate aggregate limit for the location of the restaurant only (the restaurant becomes the "designated location"), which reduces the likelihood of the restaurant's aggregate limit being depleted by other parties it is adding as an insured. THAT SAID....This endorsement is advantageous when working with companies (such as construction) that have projects or activity at other locations. However, with a static business such as a restaurant, there is less value to the "per location" endorsement. It is preferred, but not essential. So, I think you are in good shape to just accept the $10,000,000 per occurrence along with whatever they provide as an aggregate. For instance, if they have a $2,000,000 per occurrence/$4,000,000 aggregate General Liability (GL) policy with an $8,000,000 Umbrella, that brings us to $10,000,000 per occurrence/$12,000,000 aggregate in limits. That is a good position for the City and is acceptable from a risk management perspective. Regarding #3 - We don't understand the need for 10 million per accident for non-owned autos or no owned autos. Why does he need this? He already has liquor liability. I agree. With the inclusion of Liquor Liability coverage on the GL, as long as the limit remains at $10,000,000 (sometimes there is a lower sub-limit, so be sure to check), you are in good shape. The reason we typically match Auto Liability limits with the GL limits is that auto claims are excluded in a standard General Liability policy and we want to make sure auto claims are properly covered. The Liquor Liability coverage does not exclude auto; in fact, a primary purpose of it is to protect the policy holder and its insureds from accidents caused by drunk drivers leaving the establishment. The Auto Liability limit requirement can be dropped to $2,000,000 per accident, in my opinion, as long at that Liquor Liability limit is in line with the GL at $10,000,000. Please let me know if you have any other questions or would like to discuss. Thanks again. Joe 1 Joe Costamagna, ARM Litigation Management Risk Control Services Bickmore 415.407.4157 cell Notes and suggestions contained in this coimnunication are made by Bickmore staff for the purpose of recommending best risk management practices and enhancing the risk management decisions made by Bickmore clients and member agencies.NOTHING CONTAINED IN THIS EMAIL IS INTENDED TO BE,NOR SHOULD BE CONSTRUED AS,LEGAL ADVICE.Bickmore clients and member agencies are encouraged to seek appropriate counsel with legal professionals to address legal questions. 2 / LEASE AGREEMENT BETWEEN THE CITY OFCUPERDNU AND HUNGRY JACKS CORPORATION FOR PROPERTY LOCATED AT221UOSTEVENS CREEK BOULEVARD This lease agreement ("Lease")|grOad 2O13, by and between the City ofCupertino (the"City"), a municipal corporation of the State nf California,and Hungry Jack's Restaurant Corporation, a California Corporation whose address for the purposes of this Lease is 22100 Stevens Creek Boulevard,Cupertino, California 95O14(the "Leasea"). The building tnbe leased bythe Agreement is commonly known as"The Blue Pheasant Restaurant" and more particularly described as 22100 Stevens Creek Boulevard,City of Cupertino,County of Santa Clara, State of California (the "Property"). RECITALS A. (}n April 7^ 2UO4 Lessee assumed a lease for the Property; and B. On April 1, 2009,thg Parties agreed to extend the lease through March31, 2013; and C. Lessee and City wish tq enter into a new Lease for the continued use of the Property aso restaurant and bar. NOW THEREFORE, in consideration of the covenants and conditions hereinafter set forth,the parties agree asfollows: -` DESCRIPTION OF THE PROPERTY TO BE LEASED City leases to Lessee and Lessee leases from Tenant the Property,which is that portion of an approximately 6,800 square feet building located at 22100 Stevens Creek Boulevard, City of Cupertino, and designated for restaurant use commonly known as the "Blue Pheasant," including the kitchen, bar, banquet room, as well as the non-exclusive use of 92 parking spaces,and the fixtures attached to the Property described in Exhibit "A," attached to and made a part of this lease. The Property excludes that certain real Property consisting of the Blackberry Farm Golf Course, and the area of the building designated and used bv the City asa golf professional shop. 2' LEASE TERM a. Initial Term.The lease of the Property shall commence on June 30,2013 and end on June 30, 2018, unless otherwise terminated under the provisions of this Lease. b.Option to Renew. Upon mutual agreement of City and Lessee,the initial term of this lease may be extended for up to five years (the"extension period") on the same terms, covenants, and conditions of this lease,except for the Base Rent(and any adjustments thereto).To exercise the extension period, Lessee must give written notice (the "Option Notice")of its interest in extending the term tothe City at least six(6) months but not more than one (1)year before the expiration of the initial 1 term,and Lessee must not be in default under this lease,either on the date of the Option Notice or at the time the extension period commences. City shall review the Option Notice and approve or deny the request within sixty(60) days. The parties shall then have ninety(90)days after the City receives the Option Notice to agree on a rental amount(together with adjustments)which shall approximate fair market value. If the parties agree on a rental and any other provisions for the Extended Term during that sixty(60)day period,they shall execute an amendment to this Lease stating the rental amount (together with adjustments)and other related terms, |f the parties are unable to agree with respect to the rental amount or any adjustments thereto within that period, the Option Notice shall be ofnoeffect and this Lease shall expire at the end of the initial term. Neither party 10 this Lease shall have the right to have a court or other third party set the Base Rent or make adjustments thereto,nrenforce agreement of the parties with respect to any particular rent provision, Lessee shall have no other rights to extend the term beyond the Extension Period. 3. RENT In consideration for the lease of the property described in this agreement, Lessee shall pay City as follows: e. Base 1Rent. Lessee shall pay to the City a monthly base rent, without deduction nr setoff, 7nthe amount of six thousand eight hundredmeventyfivedV||ars($G,875.00) romrnendngK4anch31,2D13 (the "Base Rent"). Base 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. |n the event that this rent |s not paid within ten /1O\ days after the due date, rent is deemed late and delinquent and a late charge of$250 plus interest at the legal rate Vnthe delinquent amount shall be assessed os additional rent. b..Percentage of Gross Sales. |n addition to the Base Rent, Lessee shall pay to City not later than April 30 of each year, an additional payment in an amount equal to six percent (6%)of the amount of Lessee's gross receipts from sales("Gross Sales"), as Gross Sales are defined in this lease agreement, made in, out, through,or from the Property during each calendar year commencing January 1, 2013 during each month of the term of this lease. Lessee shall submit a copy of its annual tax return to City with the annual Gross Sales payment. For the portion of the calendar years in which the lease ends, the Gross Sales shall be the sales for that portion of each of the years during which lease is operative, and Lessee will compute gross sales and pay to City the additional amount to which City is entitled not later than June 30, 2O18, Lessee may make payment monthly that would be applied to the annual percentage of Gross Sales owed. "Gross sales"as used in this lease agreement means the sales price of all food,sundry food items, nonalcoholic and alcoholic beverages, and other commercial items sold and the charges made for all services performed in which a charge is made by Lessee or its sublessees in or upon any part of the Property, whether for cash or on credit,whether paid or unpaid, collected or uncollected, less all credits for returned merchandise, exchanges, refunds,and allowances.The amount of sales tax or excise tax based on sales imposed by any governmental taxing authority shall be excluded from gross sales. 2 ! ` ' Citv's acceptance of any Gross Sales payment from Lessee shall not be an admission of the accuracy or sufficiency of the amount of the payment,and lessor shall be entitled at any time within five (5)years after the receipt of any such additional rental payment to question the sufficiency of the amount of the payment or the accuracy of any statement or statements furnished by Lessee to justify the amount or amounts paid. c..Books and Records. Lessee shall keep complete and proper books, records,and accounts of the Gross Sales both for cash and on credit of each separate department and concession at any time operated on the Property, including all federal, state,and local tax returns relating Lothe determination of gross receipts. Lessee shall keep such books, records, and accounts Vn the Property orat its principal office for a period of not less than seven(7)years following the end of each lease year. City and City's authorized representatives shall have the right to examine Lessee's records during regular business hours. City may, once iD any calendar year,cause an audit of Lessee's business tobe made bya certified public accountant selected by City. |f the statements 0fgross sales previously made byLessee to City are found to be less than the amount of Lessee's gross sales as shown by the audit, Lessee shall immediately pay the cost of the audit as well as the additional rental shown in and by the audit to City; otherwise, the cost of the audit shall be paid by City. If Lessee shall at any time cause an audit of Lessee's own business to be made by a certified public accountant, Lessee shall furnish City with a copy of the audit without any cost toCity. d. Address for Payment . All payments shall be submitted to the City,Attention Finance Department at1O3OO Torre Avenue,Cupertino,California 95U14. 4, HOLDING OVER If Lessee remains in possession of the Property with City's consent after the expiration of the term of this lease, such possession by Lessee shall be construed to be a tenancy from month to month, terminable on thirty(30) days' notice given at any time by either party.The same terms and conditions contained in this Lease shall apply to any month-to-month tenancy, provided that the monthly base rent shall be one and one-half times the last monthly rent as described in Paragraph 4 of this Lease. S. USE OF THE PROPERTY; OPERATION a. Use. Lessee shall continuously use and occupy the Property exclusively as a restaurant and bar which shall he open to the general public. Lessee shall not use or permit the use of the whole or any part of the Property for any other purpose without the City's prior written consent. b. Compliance with zoning regulations, Lessee's use of the Property shall bo consistent with the rules and regulations Vf the City'a PR zoning district. c..Operating Hours. Lessee shall ensure compliance with the following requirements for operating hours: 3 ! i (1) Doors to restaurant and bar shall close at eleven o'clock in the evening (11 p.m.)and no persons shall be allowed into the Property after that time; (2) No alcohol shall be served beyond eleven thirty in the evening(11:30 p.m.); /3\All music shall stop no later than twelve midnight(12 a.m.); and (4)The parking lot on the Property shall becleared of restaurant patron vehicles no later than twelve-thirty(12:3Da.mn.). d,.Penalties for Failure to Enforce Operating hours. Lessee shall pay io City within 15 days of notice the following penalties if City or its designated representatives, including the Sheriff's office, observe violation of the operating requirement described in section 5(c)(1): (1) First violation within a twelve-month period:two hundred dollars ($200,00); (2) Second violation within a twelve-month period:four hundred dollars ($400.00); and . (3)Thind violation vvhh|n etxvelve'month period: one thousand dollars /$1000/X0 . e. Lessee to Post Notice of Operating Hours. Lessee shall post at the main entrance tothe Property its hours of operation in a manner which will give reasonable notice of its operating hours to prospective customers. f, Security during ope.rating hours. Lessee shall provide one security guard to patrol the Property during all operating hours and ensure that trash and litter is removed from the Property parking lot and adjoining area upon closure each day. g. Shared Use of Parking Lot. Lessee's use of the Property shall include the right 10 use the parking lot jointly with the City, Lessee acknowledges that it does not have exclusive use of the parking lot and that spaces are available on a first-come, first-served basis. City shall not be liable in any manner for any inconvenience, disturbance, loss of business, other damage arising out of availability of the first- come, first-served parking spaces. 6. CITY'S OBLIGATIONS a. Exterior repairs,TheCityahaU, atitoso|eexpense, keep, ma|ntaiOandrepairtheexteriorwm||x and roof of the Property, Should any such maintenance and repair cause the Lessee not tobe 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. Parking lot maintenance.The City shall, mt its sole expense keep, maintain, and repair the joint use parking spaces described in Paragraph (d). However, the indemnity provisions contained in Paragraph 14 of this Lease apply to the use of the parking spaces by Lessee's customers and employees, / ) | ' c Exterior Property maintenance.On or before June 30, 2014, City shall paint the exterior of the building, install new landscaping, and install o sign in the parking lot stating that the lot closes at22:3O a.m. City shall coordinate such work with Lessee, and Lessee shall cooperate with City in scheduling such work. 7. LESSEE'S a. Renovations and Improvements. Onor before June 3(l2O14, Lessee shall paint all interior walls of the restaurant space and install new carpet at Lessee's sole expense, Lessee shall not undertake any other construction on the Property without City's consent.All alterations, improvements, or additions that are now or in the future attached permanently to the Property shall be the property of City and remain with the Property at the termination of this Lease, except that City can require Lessee, at Lessee's cost, to remove any alterations, improvements, or additions Lessee has made tothe Property. b. Utility payments, LesseeshaU9ay, astheybecorDedue, a||chargesforwater, heat,e|ectric, 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 hg|diOg-VYec) Upon request of the City, Lessee shall produce receipts showing the payment of said utilities. c. Refuse collection. Lessee shall arrange for refuse collection services bw the City ofCupertino and shall reserve aparhing space for pick-up of refuse material on collection days scheduled by the City's garbage collection franchise. d. Actions Affecting Insurance Rates. Lessee shall not do,or permit anything tobe done inor about the Property, nor store anything therein,which would in any way increase the rate of fire insurance on the Property. e,.Property Taxes and Assessments. 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. f. P operty Maintenance. Lessee shall maintain all portions of the Property ina clean and sanitary condition, including,without limitation, all fixtures, interior walls, floors, painting, ceilings, plumbing, rodent control,g|ass, water lines, electric service, heading, ventilating and sewage facilities servicing the Property, and shall keep the Property reasonably free and clean of all debris, trash and rubble, Lessee's responsibility for specific maintenance includes but is not limited to the following: (1) Clean on a daily basis the grease deposit units located under the canopy and outlet flues above all grill installations; (J) Enter into 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; ' _ ! ( L]\Service the automatic fire extinguisher located above all grills and provide for the maintenance and inspection of all fire extinguishers on the Property in accord with the Fire Code and other applicable local ordinances and regulations. g. Repairs on Demand by City. Lessee shall make all required repairs upon written demand by City based onCity'sinspection. Failure to make such repairs within thirty (3U) days VfC1h/swritten demand shall constitute default by Lessee. h. Compliance with Laws. Lessee shall,a1 their sole expense, remain in compliance with all local, state and federal laws arid ordinances concerning the Property,the occupancy and use thereof, and the business conducted therein. Should Lessee fail bo comply with any such laws and ordinances,the City may, but shall not he obligated to, comply therewith, in which case the amount paid bv the City inorder to comply, together with all costs, expenses, interest, penalties incurred,shall be added to Lessee's next rent payment and shall becollectible as additional rent in the same manner and with the same remedies as|f1t had been originally reserved. L Insurance. Lessee shall,at its own expense, maintain in full force and effect during the term of this Lease,and during aDyh0|d'over,thefo||ovvinginsuranceinamountsnot |essthantheanmounts specified, and issued byaDinsurance company admitted in California and having a Best Guide Rating of A,Class VUorbetter: (1) 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/)OO,DO0\ Dollars for any one person injured orkiUed, not|eaathanTveoMiUion /$2,ODO,ODQ\ Dollars for any one accident or occurrence, and not less than Two Hundred Thousand ($200,000) Dollars Property damage for each accident oroccurrence. The City, its officers and employees shall be named as additional insured in all of Lessees' insurance policies meeting the above stated requirements. (2) Statutory workers compensation insurance and employer's liability insurance for all uf Lessee's employees; and (3) 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(3O)days written notice tothe 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 oo||eu±ib|e.ax additional rent in the same manner, and with the same remedies asifit 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, appropriate exclusionary endorsements may be provided to remove said designated area from the insurance maintained by Lessee. 0 ' | j.Obligation to Maintain in Good Condition. Lessee shall,at its own expense, maintain the Property|O good and safe condition and repair. The City retains and reserves the right tuinspertthg Property to insure said maintenance issatisfactory. 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. k. Payment of Fees and Charge . 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. 8. 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, material man 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 tnrelease said lien, |O 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 asrent. The City shall have the right topost and maintain on the Property such notices of non-responsibility as are provided under California law governing mechanic's liens. 9' ASSIGNMENT Lessee shall not assign, sublet, license, mortgage or transfer its interest in this Lease or in all or any portion ofthe Property, 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&o one assignment, sublet, license, mortgage,transfer, use or occupancy shall not be construed to be a consent to any subsequent assignment, sublet, license, mortgage,transfer, use or occupancy. 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.Any assignment, encumbrance, or sublease without City's consent shall be voidable and, at City's election,shall constitute adefault. 10. 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. 7 i ! 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 Vr bankruptcy, whether voluntary o[involuntary,the City may terminate this Lease as provided herein. 11. 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 nf the terms,covenants, and conditions contained herein,whether express or implied, and Lessee shall look solely to the responsibility ofthe successor |D interest of the City in and tn this Lease. 12. INDEMNITY Lessee hereby expressly waives all claims against the City for damages to goods,wares and merchandise in, upon or about the Property,and for injuries topen;onsin, uponoraboUttheP[Vpe[ty, from any cause arising a1 any time during the Lease term. Lessee shall indemnify, defend and hold the City, its officers, agents, employees and volunteers harmless,from and against /1\any and all claims of liability, loss or expenses in connection with any claim, demand or action asserted against the City, for any damage to property or injury ordeathtoanypeoonoccurr|ng |norabouttheprern|yes,orre|eted to the use of the parking lot by Lessee or Lessee's guests or invitees; (2)any and all claims of liability, loss or expenses in connection with any claim,demand or action asserted against the City,arising out of Lessee's failure to perform any provision of this lease or Lessee's failure to keep the Property in good condition and repair, or any act or omission by Lessee, its agents,contractors, invitees, or employees; and (3) all damages, liability, fines,penalties and any other consequences arising from any noncompliance or violation of any laws, ordinances, codes,or regulations, including but not limited to the Occupational Safety and Health Act and the Americans with Disabilities Act. Except, however,that City shall hold Lessee harmless from all claims of liability for damage resulting from the acts or omissions of City or its authorized representatives. 13. 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: a. The worth at the time of judgment or award of the unpaid rent which had been earned atthe time uftermination; b.The worth ot the time mfjudgment or award of the amount bywhich 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; Q / ' c.The worth at the time of judgment uraward of the amount by which the unpaid rent for the balance Vf the term after the time of judgment or award exceeds the amount Vf 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 |n 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 is computed by allowing interest at the rate of ten (10%) percent per annum; the "worth at the time of judgment or award" ofthe amount referred tninParagraph 15C herein |s computed by discounting such amount at the discount rate of the Federal Reserve Board of San Francisco at the time ofaward plus one(1Y6) percent. 14. CONDITION OF PROPERTY;,SURRENDER a. 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|Das good condition as received, except for normal wear and tear,and to remove all of Lessee's signs and other property that is not fixture oforpermanent attachment to the Property,mr that is owned and was installed bvLessee during the term of this Lease. b. If upon expiration or termination of this Lease Lessee fails to remove any personal property belonging tn Lessee from the premises, such property shall atCUvs option ad any time after thirty(3[) days from the date of expiration or termination be deemed to have been transferred to City, and City shall have the right to remove and dispose of such property without liability to Lessee. 15' ENTRY AND INSPECTION The City and its authorized representatives shall have the right to enter the Property at all reasonable times for any of the following purposes: (1)to inspect the Property and determine whether the Property is in good condition and whether Lessee is complying with its obligations under this Lease; (2) to do any acts that may be necessary to protect City's interest in the Property;or(3)to perform any ofCitv's duties under this lease, including making any necessary or agreed on repairs oralterations. Further, the City retains the right to enter upon and show the Property to persons considering purchase, rental Vrlease 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. City shall not be liable in any manner for any inconvenience, disturbance, loss of business, nuisance,or other damage resulting from the acts or omissions of Landlord orits authorized representatives. 16, PROPERTY UNINHABITABLE; REMEDY If the Property bwholly or partially destroyed by fire,earthquake or any other cause whatsoever, renting the Property totally or partially inaccessible or unusable,or if the Property is injured by any cause which necessitates an expenditure of more than forty (40%) percent of its fair market value tV repair and restore it, or if more than forty percent (40%) of the floor area, measured in square feet, is destroyed,the City may, at its option, elect to terminate this Lease by giving notice to Lessee within sixty /6U\ days from the date of the destruction Vr injury. |ftheCitydoesnotternn|natetheLease, Lessee's rent shall be abated,from the date of destruction until restoration is completed, in an amount proportionate to the extent to which destruction interferes with Lessee's use of the premises. In no event shall City bg under an obligation or duty to restore the Property. |f 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.The words "restore" and "restnretinn", shall not include or apply tV any fixture, equipment or additions of any kind,orany Property whatever placed inor upon the Property byLessee 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 bedue and payable. For the purposes of this Lease, the Property shall be deemed "uninhabitable" if it is non-operative as a restaurant and bar business, orif any public agency deems it unsafe or unhealthy for human habitation o[ use esa restaurant and bar business, |f the City does not elect Ln terminate the Lease, and does not commence restoration ofthe Property within one hundred twenty(120) days from the date of destruction or injury, Lessee may,at its option,terminate this Lease upon written notice tnthe City. 17. EMINENT DOMAIN a.Total Condemnation. |n the event ofe 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'Bent Due on Total Condemnation, On termination of this Lease bya 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..Partial Condemnation. |n the event ofa 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 10 � physical possessionof said portion btaken 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 possessionof said portion btaken by the condemnor. If neither party terminates this Lease as herein provided,then this Lease shall continue in full force and effect a;tn the remainder of the Property not condemned; provided, however,that the rent payable b« Lessee for the balance ofthe Lease term shall be abated in the ratio that the square footage of enclosed floor space of the Property bears to the total floor space of the Property upon such condemnation. 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 ur termination Vf this Lease, d. Condemnation.Rent on Partial Upon termination 0f this Lease in part, as herein provided, all rent and othercharges payable by Lessee tooron behalf uf the City pursuant tV this Lease,shall hepaid 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. 18. SIGN4JGE 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, Lessee shall not install or letter any signs on the Property without the prior written consent of City,and any installation of additional signs by Lessee shall bein accordance with the OLy'ssign ordinances and regulations. 19. 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 issold; and the City shall then bedischarged from further liability in reference thereto. 20. D]FAl8]' a.The occurrence of any of the following shall constitute a default byTenant: (1) Failure to pay rent when due, if the failure continues for ten (1O) days after notice has been given toLessee. 11 | | /2\Abandonment and vacation of the premises(failure tn occupy and operate the premises for twenty(20) consecutive days unless excused by the City shall be deemed an abandonment and vacation. (3)The making bv Lessee of any general assignment or general arrangement for the benefit oF creditors;the filing byV[against Lessee ofa petition 10 have Lessee adjudged bankrupt or a of a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Lessee the same is dismissed within sixty(60)days);the apportionment of a trustee or receiver to take possession of substantially all of tenant's assets, where possession is not restored to Lessee within forty-five (45)days;or the attachment, execution, or otherjudicial seizure of substantially all of Lessee's assets,where such seizure is not discharged within thirty(3O) days. (4) Failure to pay any penalties assessed pursuant to sectinn5(d) Vf this Lease ofthis lease, orif the City or its designated representatives observe more than three violations of section 5(c)/1\ (Operating Hours-no patrons after 11 p.m.) in any twelve-month period. /5\ Failure to perform any other provision 0fthis Lease if the failure to perform isnot cured within the time stated in City's notice to Lessee, If the default cannot reasonably be cured within the period specified in the notice, Lessee shall not be in default of this Lease if Lessee commences to cure the default within the period and diligently and in good faith continues to cure the default, b. Notines given under this section shall specify the alleged default and the applicable Lease provisions, and shall demand that Lessee perform the provision of this lease or pay the rent or other payment that isin arrears,as the case may be, within the applicable period of time,or quit the premises. No such notice shall be deemed a forfeiture or a termination of this lease unless City so elects in the notice. 21. CITY'S REMEDIES IN THE EVENT OF DEFAULT City shall have the following remedies if Lessee commits a default.These remedies are not exclusive; they are cumulative in addition to any remedies now or later allowed by law. a. 's Right to Possession Not Terminated, City can continue this lease in full force and effect, and the lease will continue in effect aslong as City does not terminate Lessee's right to possession, and Lessee shall have the right to collect rent when due. During the period Lessee is in default, City can enter the Property and relet it,or any part of it,to third parties for Lessee's account. Reletting can be for a period shorter or longer than the remaining term of this Lease. Lessee shall pay to City the rent due under this lease on the dates the rent is due, less the rent City receives from any reletting. No act by City allowed by this paragraph shall terminate the Lease unless City notifies Lessee that City elects to terminate the Lease,After Lessee's default and for so long as City does not terminate 12 [ Lessee's right to possession of the Property, Lessee shall have the right to assign or sublet its interest in this Lease if Lessee obtains Citvs consent, but Lessee shall not he released from liability. If City elects to relet the Property as provided in this section, rent that City receives shall be applied to the payment of: First, any indebtedness from Lessee to City other than rent due from Lessee; second, all costs, including maintenance costs, incurred bvCity in re|etLing;third, rent due and unpaid under this lease.After deducting the payments referred to in this paragraph,any sum remaining from the rent City receives for na|ettingaha|| be held by City and applied in payment offuture rent as rent becomes due under this lease. In no event shall Lessee be entitled to any excess rent received by City. if, on the date the rent is due under this lease, the rent received from the reletting is less than the rent due on that date, Lessee shall pay to City, in addition tothe remaining rent due, all costs, including for maintenance, Landlord incurred in reletting that remain after applying the rent received from the re|etting as provided in this paragraph. b.Termination possession. City can terminate Lessee's right to possession of the Property at any time. No act by City other than giving notice to Lessee shall terminate this lease. Acts of maintenance,efforts to relet the Property, or the appointment of a receiver on City's initiative to protect City's interest under this Lease shall not constitute a termination of Lessee's right to possession, On termination, City has the right to recover the following from Lessee: (1)the worth, at the time of award,of the unpaid rent that had been earned at the time of termination of this lease; (2)the worth, at the time of award, of the amount by which the unpaid rent that would have been earned after the date of termination of this Lease until the time of award exceeds the amount of loss Vf rent that Lessee proves could have reasonably been avoided; (3) 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 the loss of rent that Lessee proves could have reasonably been avoided;and /4\any other amount, and court costs necessary twcompensate City for all detriment proximately caused by Lessee's default. o.Appointment of Receiver. |f Lessee isindefault of this Lease City shall have the right to have a receiver appointed tV collect rent and conduct Lessee's business, Neither the filing ofa petition for appointment of a receiver nor the appointment itself shall constitute and election by City to terminate this Lease, nor shall such petition or appointment as initiated by City be construed as default of this lease bvLessee. d, Right Cure.City,ot any time after Lessee commits a default, can cure the default at Lessee's cost. If City at anytime, by reason of Lessee's default, pays any sum or does any act that requires payment nf any sum, the sum paid by City shall be due immediately from Lessee at the time the 13 sum bpaid,and if paid ata later date shall bear interest at the maximum rate an individual ispermitted by law to charge from the date the sum is paid by City until Lessee reimburses City.The sum,together with all interest VO it,shall bethe additional rent, 22, 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 ifLessee are not|D default. |f any mortgagee or beneficiary elects to have this Lease superior tV 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 sub- tenancies consented to pursuant to this section, nr may, ai the Oty's option, operate asanassignment to the City of any or all such subleases orsub-tenandes. 23. NONDISCRIMINATION Lessee and its employees shall not discriminate against any person or employee because of race,color, religion, ancestry, age,sex, national origin, disability,sexual preference, housing status, marital status, familial status, or other protected classifications. If Lessee is found to be in violation of the State of California Fair Employment and Housing Act o[any similar provision of state orfederal law inthe conduct of Lessee's activities under this Lease, it shall be found in default under this Lease and such default shall constitute a material breach of the Lease, entitling the City to all available remedies in this Lease orbylaw. 24. GENERAL PROVISIONS a. Notices.Any notices tobe 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 aafollows: TO LESSEE: The Blue Pheasant Restaurant c/o MikeTuachrea 14 / 32IOO Stevens Creek Blvd. Cupertino, CA95O14 T0 THE CITY: Director of Parks and Recreation City nfCupertino 18]0O Torre Avenue Cupertino, C495O14 b. Entire Agreement. This document comprises the entire and integrated agreement Vfthe parties concerning the lease of the Property and supersedes all prior negotiations, representations,Vr agreements, either written Vr oral.Any amendments to this document shall be effective only ifin writing and signed by the City and Lessee. c. ' Fees. |f legal action |s commenced to enforce ortn declare the effect nfany provision of this Lease,the prevailing party shall be awarded attorneys'fees and costs incurred by such party in the action. d. Severability. |fanytermlp[ovisiom,covenantorcond|tionofthisLegse |she|dbyacourttobe invalid,void or unenforceable, the rest of this Lease shall remain in full force and effect and shall in no way be affected, impaired nrinvalidated. e.Time.Time isof the essence of this Lease. f.Waiver. No delay or failure to exercise any right or remedy of City on any default byLessee shall impair such a right or remedy orba construed oyawaiver, Additionally,the subsequent receipt and 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.Any waiver by City of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Lease, g. Remedies Cumulative.The remedies provided herein shall be cumulative,therefore, the exercise of any one remedy shall not be to the exclusion of any other remedy. h. .All of the terms,covenants and conditions nfthis Lease 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. i. Governing law.The laws of the state ofCalifornia shall govern this Lease. �H 15 � iRecordation. Neither Lessee nor City shall record this Lease. k. Authority.The individuals signing this Lease on behalf of the Parties have the authority tosign nn behalf nf their respective entities. TLJ�� |N WITNESS WHEREOF,the parties have executed this Lease Agreement on ^a 2013. CITY LESSEE Hun rpqaratio zz David BraOd� City ��anoger K�ic��sa�hre� PresideOt �ATTEST cn�& City Clerk -- ' - Approved astoForm: *NOTARY ACKNOWLEDGEMENT REQUIRED Exhibits: "A°; List ofFixtures 16 i EXHIBIT A *otmnee Front and Back Bar Built-in Waitress Station in banquet room Swamp Cooler on roof Air Conditioning Unit Furnaces Built-in Speakers Water Heaters Light Fixtures Safe Refrigerated Waitress Station |O front ofkitchen 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 17 / | | GUARANTY AGREEMENT This guaranty is given by Michael Tsachres, an individual, ("Guarantor") to CITY OF CUPERTINO ("[)b||gee")tn induce Obligee to enter into a lease with Hungry Jacks Corporation, aCalifornia Corporation ("Obligor"),for the lease of property located at 22100 Stevens Creek Boulevard,City of Cupertino, State VfCalifornia. 1. Obligation Guaranteed. For valuable consideration, the undersigned Guarantor jointly and severally unconditionally guarantees to Obligee the following obligations ofObligor: Performance ofall 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 VfObligor, whenever made, incurred, or created,whether voluntary or involuntary and however arising, whether due or not due, absolute or contingent, liquidated or unliquiclated, determined or undetermined, and whether Obligor may be liable individually orjointly with others,or whether recovery may be or become barred by any statute of limitations or otherwise become unenforceable. 2..Insolvency or Bankruptcy. Guarantor jointly and severally unconditionally guarantees the performance of all terms, provisions,and conditions nf said lease and any and all indebtedness of Obligor to Obligee,whether 0r 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 nfa 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. . The liability of Guarantor under this agreement is exclusive and independent of any security for or other guarantee of the indebtedness of Obligor,whether executed by Guarantors or any other party,and the liability of Guarantors under this Agreement is not affected or impaired by any of the following: e.Any indebtedness exceeding Guarantors' liability; b. Any direction of application by Obligor nr any other party; c.Any other continuing or other guaranty, undertaking, or maximum liability of Guarantors or of any other party asto the indebtedness nfObligor; d.Any payment Vnorin reduction of any other guaranty orundertaking; e.Any dissolution, termination,or increase, decrease,or changes of personnel of any of the Guarantors; or 18 t Any payment made to the Obligee on the indebtedness that Obligee repays toObligor pursuant to court order|n any bankruptcy, reorganization, arrangement, moratorium,or other debtor relief proceeding. Guarantors waive any right to the deferral nr modification mf 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 n[actions against Guarantors,whether it brings an action against Obligor or joins Obligor in any action or actions commenced. Guarantors waive,to the fullest extent permitted by law,the benefit of any statute of limitations affecting their Ii ability under this agreement or the enforcement of this agreement. Any payment by Obligor or other circumstance that operates to toll any statute of limitations astoObligor shall also operate to toll the statute of limitations asto Guarantors. Any Guarantor who isamarried 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. e, Guarantor authorizes Obligee, (vvhethermrnotafterrevocati0Dortermina1ionofthis guaranty) without notice or demand (except any notice or demand that is required by statute and cannot be waived)and without affecting nr impairing their liability,from time bz time tVdo any ofthe following: (1) Renevv compromise,extend, accelerate, orotherwise change the time for performance of,nr 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 any one or more of the Guarantors. b. Obligee may without notice assign this guarantee in whole orinpart. 6. Capacity and Authority, |f Obligor isa corporation, partnership nr 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 19 over tn Obligee Vn account of the indebtedness of obligor 1oOb|' without affecting or impairing in any manner the liability of Guarantors under the other provisions of this guaranty. 8.Waiver of Defenses. (a)Guarantor waives any right to require Obligee tn[1) proceed against Obligor, (2) proceed against or exhaust any security held from Obligor; or(3) pursue any other remedy in Obligee'spVVvgr whatsoever. (b)GUaraOtU,s waive any defense based onor arising out of any defense nf 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 nf obligor otherthanpayment|nfu|| Vfthe |Odebtedness. (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 inany 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 ofan election nfremedies byUb|1gee, even though that election of remedies,such asnonjudicia|foreclosure with respect to security fora guaranteed obligation, has destroyed Guarantor's rights of subrogation and reimbursement against the principal by operati on 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 have no right of subrogation,shall waive any right to enforce any remedy that Obligee now has o[may later have against Obligor,and shall waive any benefit of,and any right to, participation in any security now or later held byObligor. 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) Guarantor assumes 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 nV duty to advise Guarantors ofinformation known tuit regarding those circumstances orrisks. 9. ' Fees and Costs. |n 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 inenforcing this guaranty in any action or proceeding arising out of,or relating to,this guaranty. 20 10. Liens and Setoffs. |n addition to all liens on,and rights ofsetoff against the money, securities orother property Vf Guarantors given to Obligee bv law, obligee shaUhave a lien on and a right of setoff against all money, securities and other property of Guarantors now or later in the possession VfObligee, whether held ina general orspecial account nr for safekeeping or otherwise; and every lien and right of setoff may beexercised without demand on or notice to Guarantors. 11. Nonwaiver of Rights of Obligee. No right or power of Obligee underthis agreement shall be deemed to have been waived bv any act orconduct on the part ofObligee, orb«any neglect to exercise that right or power, orbyany delay iDsVdoing;and every right orpovver shall continue infull force and effect until specifically waived or released by an instrument in writing executed by Obligee. 12.Singular and Plural. |n all cases when there is but a single Obligor ormsingle Guarantor, all words used iD the plural shall bedeemed to have been used in the singular ifthe context and construction aorequire; and when there is more than one Obligor, or when this guaranty 1aexecuted by more than one Guarantor,the word "Obligor" and the word "Guarantor" respectively shall mean all and any one or more ofthem. 13. Effect on Heirs and Assigns. This guaranty and the liability and obligations VfGuarantors under this agreement are binding Vn Guarantors and their respective heirs, executors, and assigns,and inure to the benefit of and are enforceable byObligor and its successors,transferees, and assigns. 14. N1djces. 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 ottheir respective addresses for notices indicated below. Guarantor and Obligee may change the place to which not!ces, requests, and other communications are tnbe sent to them bvgiving written notice of that change to the other. 15, Governing Law and Modification. This guaranty shall bedeemed tobe 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 bewaived, altered, modified,oramended except in writing duly signed byan authorized officer of Obligee and by Guarantors. 16. Invalidity. |faOypnovisionofthisguarantycontravenesorixhe|dinxa|iduOderthe |awsof any jurisdiction, this guaranty shall beconstrued as though it did not contain that provision, and the rights and |i abilities nf the parties t0 this agreement shall be construed and enforced accordingly. '' '' '' 22 / 27. Headings. Headings in this agreement are for convenience only and shall not te used to interpret or construe its provisions. 18. Counterparts.ThisagreementrUaybeSxecubedin1xvmormorecounterparts, gachofvvhhzh shall be deemed an original but all of which together shall constitute one and the same instrument. \. | ' |N WITNESS WHEREOF,the undersigned have executed this Guaranty on 2013. GUA TO Miohae|Tsachres OBLIGOR By � w Hungry Jacks Corporation Jacks OBLIGEE | 22 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODA 189 State of California County of -5 ,Rt,4n C(cLv-i On I I before me, k i rr 4c_n ketne-e- 14 %/n_rce'-R (,,c , Date Here Insert Name and Title of In&Officer personally appeared 4x—V I,- + Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person( whose nameIX66 subscribed to the within instrument and acknowledged me that he/they executed the same in h!lher/their Pueh/crized capacity08j, and that by h her/their signature(zr on the instrument the personK, or the entity upon behalf of which the person fzf acted, executed the instrument. KIRSTEN RENEE SQUARCIA I certify under PENALTY OF PERJURY under the Commission#1906098 laws of the State of California that the foregoing Notary Public-California paragraph is true and correct. Santa Clara County QAy Comm.Egires Oct 4,2014 -- - - - - - - - - - - I WITNESS my hand and official seal. Signature: Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document; 4,,,-a r-e A-i ea e.�+ 2-2- o o S-�e V"5 Cv-e-e 0 k , (vd. Document©ate: ___W22 l Number of Pages: Signer(s)Other Than Named Above: m- 7 Capacity(ies) Cialmed by Signer(s) Signer's Name: Signer's Name: El Corporate Officer—Tftle(s): El Corporate Officer—Title(s): 0 Individual n Individual 0=01 illplilsr 01 ju; 0 Partner—El Limited El General Top of thumb here El Partner—El Limited El General Top of thumb here El Attorney in Fact El Attorney in Fact D Trustee El Trustee 11 Guardian or Conservator D Guardian or Conservator El Other: El Other: Signer Is Representing: Signer Is Representing: 0 2010 National Notary Association-Nationa[Notary.org•1-800-US NOTARY(1-80o-876-6827) Item#5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 1E State of California County of 'A-l`,JTA CA-A-9-A On -3 C)I-? S; before me, _L<taSr1---1Qyz-C-:tjV_�S'aokP-CiA P07A-e-V PUSLtd 2 Date Here Insert Name and Title of the fDfficer personally appeared M LC-H A 15L -F!SA C_.j A-r--5; Name(s)of Signer(s) who proved to me on the basis of satisfactory evidence to be the personK whose nameA i are subscribed to the within instrument and acknowledged to me that De she/they executed the same in h* er/their authorized capacity(;108�1 and that y Rhi t/their signature ] on the instrument the person,W, or the entity upon behalf of which the persogkd) acted, executed the instrument, KIRSTEN RENEE SDUARCA I certify under PENALTY OF PERJURY under the Commission 111 1906898 laws of the State of California that the foregoing Notary Public-California paragraph is true and correct. Santa Clara County My Comm,Expires Oct 4,2014 WITNESS my hand and official sea]. Signature: Place Notary Seat Above OPTIONAL Signature of Notary Public Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: t_G44Sgz A 6-P- m leavu-r, z-ij o a 5-r c,/c-,�js C_IeJz� L VD, Document Date: �yv(_� 3 01-0 ia- Number of Pages: 2-Z Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: Cl Corporate Officer—Title(s): El Corporate Officer—Title(s): 11 Individual El Individual 0 Partner—El Limited El General Top of thumb here Lj Partner—El Limited ED]General Top of thumb here 0 Attorney in Fact El Attorney in Fact D Trustee 0 Trustee El Guardian or Conservator El Guardian or Conservator El Other: El Other: Signer Is Representing: Signer Is Representing: ................ - -- ----- .... . 02010 National Notary Association Nationallotary.org=1-800-US NOTARY(1-800-876-6827) Item U5907 RELEASE OF CLAIMS This Release of Claims (hereinafter referred to as the "Release") is entered into as of the date set forth below by Mike Tsachres, as an individual, and by Hungry Jack's Corporation, a California corporation("Lessee"), lessee of the Property commonly known as "The Blue Pheasant Restaurant,"located at 22100 Stevens Creek Boulevard, City of Cupertino, California. Recitals A. On July 3, 2013, an agreement was entered into by and between the City of Cupertino, a municipal corporation ("City"), and Lessee (hereinafter"Agreement") for lease of the property commonly known as "The Blue Pheasant Restaurant,"located at 22100 Stevens Creek Boulevard, City of Cupertino, California("Property"). B. On July 1,2015,the City and Lessee agreed to the First Amendment to the Agreement for lease of the Property. In the First Amendment,the City and Lessee I� agreed to extend the term of the lease, which is now set to expire on June 30, 2021. C. The Agreement and the First Amendment to the Agreement are collectively referred to as the"Agreement"unless otherwise indicated. D. Section 1 of the Agreement dated July 3,2013, describes the Property as"that portion of. . . [the] building located at 22100 Stevens Creek Boulevard, City of Cupertino, and designated for restaurant use[,]" and excludes from the Property"that certain real [p]roperty consisting of the Blackberry Farm Golf Course, and the area of the building designated and used by the City as a golf professional shop." Section 7(b) of the Agreement dated July 3, 2013, states that Lessee is responsible for paying the charges for water and electricity"furnished to, or consumed on the Property for the 1 maintenance,use, and operation of the Property[.]" E. On April 25, 2019, Mike Tsachres submitted a claim to the City for i "Reimbursement of utilities"at 22100 Stevens Creek Boulevard, Cupertino. 1 i F. The Property and a portion of the building excluded from the Property j consisting of the Blackberry Farm Golf Course restroom do not have separate water and/or electric meters. The City has calculated the share of the monthly utility charges attributable to the Blackberry Farm Golf Course restroom,which is $156.27 per month. The City has further calculated that Lessee's past utility payments related to the Blackberry Farm Golf Course restroom and certain payments made related to repairs of that restroom equal$9,246.46. G. The City will pay Lessee a lump sum payment of$9,246.46 to cover the past payments for repairs and utility charges attributable to the Blackberry Farm Golf Course restroom. Further, in keeping with the terms of the Agreement, and to address the utility charges for the Blackberry Farm Golf Course restroom,the City will accept 1 a credit against Lessee's monthly rental payments for the remainder of the term of the Agreement referenced above for the estimated amount of the utility charges attributable to the Blackberry Farm Golf Course restroom(i.e.,Lessee's monthly rental payments to the City will be reduced by$156.27 per month through June 30, 2021). H. Mike Tsachres, as an individual, and the Hungry Jack's Corporation, now seek to release the City from any and all claims related to the utility charges for the Blackberry Farm Golf Course restroom. Release In consideration of delivery of a check made payable to Mike Tsachres in the sum of $9,246.46, and in acknowledgment of the City's acceptance of monthly rental payments reduced by$156.27 per month for the remainder of the term of the lease of the Property as a credit against future utility charges for the Blackberry Farm Golf Course restroom, I,Mike Tsachres, on behalf of myself, my heirs, executors, administrators, successors and assigns, and as President of and on behalf of the Hungry Jack's Corporation, hereby release, relinquish, and forever discharge the City of Cupertino, its agents, employees, successors, and assigns from any and all rights, actions, causes of action, claims, liens, demands, damages, costs, loss of services, expenses,and/or compensation, on account of, or in any way arising out of any and all known and unknown injuries or damages arising from the repairs of and utility charges for the Blackberry Farm Golf Course restroom located at 22100 Stevens Creek Boulevard, Cupertino, including any and all future claims as to the calculated amount of the credits against future utility charges for the Blackberry Farm Golf Course restroom. I agree to fully defend, indemnify, and hold the City of Cupertino, its agents, and employees harmless from any and all bills, liens, insurance claims, or other expenses arising from third party claims relating to matters that are the subject of this release and settlement. It is understood and agreed that I hereby expressly waive all rights under Section 1542 of the Civil Code of California, which provides as follows: CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her,would have materially affected his or her settlement with the debtor or released party. In making this release and agreement it is understood and agreed that I am relying wholly upon my own judgment,belief, and knowledge of the nature, extent, and duration of said injuries and damages. I have not been influenced to any extent by any representations or statements regarding said injuries and damages in making this release. I have not been influenced by the persons, firms, or corporations who are hereby released, or by any person or persons representing the City of Cupertino or any employee thereof. It is further understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that any payment is not to be construed as an admission of liability on 2 the part of the City of Cupertino, its agents, and employees, by whom liability is expressly denied. I warrant and represent that in executing this release, I have relied upon legal advice from an attorney licensed to practice in the State of California, who is the attorney of my choice, and that the terms of this release, and its consequences, have been completely read and explained to me by my attorney, or that I have decided not to retain the services of an attorney, but in either event, that I fully understand the terms of this release. This release contains the ENTIRE AGREEMENT between the parties hereto, and the terms of this release are contractual and not a mere recital. I have carefully read the foregoing release and know the contents thereof, and have signed the same as my own free act. Date ike Tsachres nt) Date Hungry Jack's Corporation Mike Tsachres, President Claim No: ABGV26488A2 1123845.4 3