20-167 Lease and Caretaker Agreement entered into July 1, 2020 by and between the City of Cupertino and Friends of the Stevens Creek Trail1
LEASE AND CARETAKER AGREEMENT BETWEEN
THE CITY OF CUPERTINO
AND
FRIENDS OF STEVENS CREEK TRAIL
FOR THE McCLELLAN RANCH HOUSE
This Lease and Caretaker Agreement (“Lease”), is entered into as of July 1, 2020
(“Effective Date”), by and between the City of Cupertino (“City”) and the Friends of the
Stevens Creek Trail, a California nonprofit corporation (“Lessee”). City and Lessee are
each a “party” and are collectively the “parties.”
RECITALS
A. City is the owner of certain real property commonly known as the “McClellan
Ranch House” located 22221 McClellan Road, McClellan Ranch Park, City of Cupertino,
County of Santa Clara, State of California (the “Property”).
B. Lessee is a 501(c)(3) nonprofit organization that offers educational and
informational programs to the community that promote the Stevens Creek Trail.
C. City and Lessee desire to enter an agreement to lease a portion of the Property
that includes approximately 109 square feet of space within the ranch house (81 square
feet office and 28 square feet storage), together with the non-exclusive use of hallways,
restrooms, and outside parking facilities (the “Premises”).
D. City and Lessee entered a Lease and Caretaker Agreement Between the City
of Cupertino and the Friends of the Stevens Creek Trail for the McClellan Ranch House
effective July 1, 2018 whereby Lessee leased the Premises from City for the period July 1,
2018 to June 30, 2019 (“2018 Lease”). City and Lessee entered into a First Amendment to
Lease and Caretaker Agreement Between the City of Cupertino and the Friends of the
Stevens Creek Trail for the McClellan Ranch House effective July 1, 2019 extending the
term of the 2018 Lease for one-year from July 1, 2019 to June 30, 2020 (“First
Amendment”).
E. The parties desire to enter this new Lease for the Premises. This lease will
become effective July 1, 2020, following the expiration of the 2018 Lease and First
Amendment.
NOW, THEREFORE, in consideration of the promises, covenants, and conditions
contained in this Agreement and for other good and valuable consideration, the parties
agree as follows.
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1. PURPOSE OF LEASE.
Lessee and City enter this Lease with two goals: enhancing the quality of
environmental programs for City’s community and providing a natural area for the
conduct of some of Lessee’s ongoing activities. As such, both the City and Lessee agree
to work together throughout the term of this Lease to develop a program of activities
mutually beneficial to City and Lessee. In consideration for City allowing Lessee to use
the Premises, Lessee agrees to conduct the activities/programs/events and/or provide the
services, as provided in the Scope of Work, attached hereto and incorporated by this
reference as Exhibit A.
2. DESCRIPTION OF PREMISES TO BE LEASED.
The Premises is a portion of the Property consisting of 109 square feet within the
ranch house together with the non-exclusive use of hallways, restrooms, and outside
parking facilities (the “Premises”).
3. LEASE TERM.
a. Initial Term. The Initial Term of this Lease shall be for a period of five (5)
years commencing on July 1, 2020 (“Effective Date”) and ending June 30, 2025.
b. Option to Renew. Upon mutual agreement of City and Lessee, the term of this
Lease may be extended for up to five (5) one-year terms (each a “Renewal Term”) on the
same terms, covenants, and conditions of this Lease, except for the Rent, which shall
increase by three percent (3%) per year during the Initial Term and each Renewal Term,
where the next year’s rent shall be three percent (3%) of the prior year’s rent. To request
a Renewal Term, Lessee must give written notice of its interest in extending the term to
the City Manager (“Renewal Request”) at least two (2) months but not more than four
(4) months before the expiration of the prior term, and Lessee must not be in default
under this Lease, either on the date of the Renewal Request or at the time the Renewal
Term commences. The City Manager shall review a timely Renewal Request and
approve or deny the Request, in her sole and absolute discretion, at least one (1) month
prior to expiration of the previous Lease term. If the City Manager denies the Renewal
Request or fails to act on the Renewal Request, this Lease shall expire at the end of the
term. Lessee shall have no rights to extend any term of the Lease beyond the rights set
forth in this Subsection.
4. RENT.
In consideration for the lease of the Premises, Lessee shall pay City as follows:
a. Rent. Lessee shall pay monthly rent to the City, without deduction or setoff,
based upon the rate of one hundred and nineteen dollars and fifty cents ($119.50) per
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month subject to an annual increase of three percent (3%) as provided in Section 3.b of
this Lease. Rent shall be payable on or before the first (1st) day of each calendar month
without notice or demand of any kind by City. All payments shall be submitted to City of
Cupertino, Attn: Director of Finance, 10300 Torre Avenue, Cupertino, CA 95014.
b. Late Charges. In the event that any installment of rent or any other sum due by
Lessee is not received by City within ten (10) days after the due date, rent is deemed late
and delinquent and a late charge equal to $20.00 plus interest at the rate of 10% per annum
of the overdue amount shall be assessed as additional rent. Lessee further agrees to pay
$20.00 for each dishonored bank check.
5. HOLDING OVER.
If Lessee remains in possession of the Premises with City’s consent after the
expiration of the term of this lease, such possession by City shall be construed to be a
tenancy from month to month, terminable upon thirty (30) days written 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 (1½) times the monthly rent payable immediately preceding the termination
date of this Lease.
6. SECURITY DEPOSIT.
A security deposit of $100.00, not applicable toward the last month’s rent payment,
has been paid by Lessee.
7. UTILITIES.
City shall be responsible for the payment of all utility bills applicable to the
Premises, including water, electrical services, garbage, and janitorial services for the
Premises. Lessee shall be responsible for its own telephone, internet, and similar service
and shall provide its own office equipment and furnishings.
8. TAXES.
Lessee shall be responsible for payment of any and all possessory interest property
taxes.
9. LESSEE’S USE OF THE PREMISES.
a. Allowed and Required Uses. Lessee shall continuously use and occupy the
Premises as office space for educational and informational programs for the community
that promote the goal of promoting the Stevens Creek Trail as set forth in Exhibit A. Lessee
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shall not use the Premises for any other purpose without the written consent of City,
which consent may be withheld in City's sole and absolute discretion. Lessee, at Lessee'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 Lessee’s use of the Premises. Lessee's use of the Premises is subject to the
following restrictions and requirements:
1. Hours of Operation. Lessee shall maintain an office facility during
normal hours of operation. Lessee shall determine its own hours of operation,
provided that said hours are between 8:00 a.m. and 10:00 p.m.
2. Security. Lessee shall be responsible for securing the facility and setting
the burglar alarm at the end of each day.
3. Common Areas. Lessee may use the hallways and restrooms of the
ranch house and the adjacent parking facilities without additional rent, provided,
however, that if Lessee wishes to utilize other areas of McClellan Park for which
City normally charges a user fee, Lessee shall be responsible for payment of the
fee. Common areas include conference room, hallways, kitchen and restrooms.
City shall be entitled to utilize all common areas for program activities upon
giving Lessee one (1) days advance written notice.
4. Parking. City retains the right to designate exclusive parking for Lessee,
or any other user or lessee of the Premises, in the event that City, in its sole
discretion, determines that the parking lot is over-utilized. It is estimated that
Lessee’s need for parking shall not exceed 12 spaces. Lessee understands and
agrees that Lessee’s use of the parking area includes the right to use that Area
jointly with the City and acknowledges that Lessee does not have exclusive use of
the Area. City shall not be liable in any manner for any inconvenience, disturbance,
losses, personal injury, or other damage arising out of Lessee’s shared use of the
parking lot for parking or any other City use.
5. Animals. No animals shall reside in or on the Premises without prior
written consent of City.
6. Compliance with Law. Lessee shall comply with all Cupertino
Municipal Ordinances and all State and Federal Statutes now in force or which
may hereafter be in force pertaining to the use of the Premises.
b. Caretaker Responsibilities. Lessee shall complete the following caretaker
responsibilities:
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1. Ensure that Lessee’s employees who regularly operate at the Premises
are trained by the City’s Naturalist and become familiar with the McClellan Park
Rules and Title 13 of the Cupertino Municipal Code which governs the use of
City’s parks and buildings.
2. Report to City’s code enforcement any violations of the above referenced
regulations found by Lessee.
3. Notify the City’s Recreation and Community Services office prior to any
absence from the Premises for any extended period beyond two weeks.
4. Promptly report incidents, such as park misuse and vandalism, and any
emergencies, such as burglaries, to the McClellan Ranch Staff, or if the Staff is
unavailable, to the County Sheriff. If the Sheriff’s office is involved, Lessee shall
report the incident to the Director of Recreation and Community Services. (City
shall furnish Lessee with a list of contact numbers.)
c. Prohibited Uses. Lessee shall not use nor permit the use of the Premises in any
manner that will tend to create waste or nuisance or disturb other lessees and members of
the public. No use shall be made or permitted to be made of the Premises, nor acts done,
which will increase the existing rate of insurance upon the building in which the 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 Lessee sell or permit to be kept, used
or sold in or about the Premises, any article which may be prohibited by a standard form
of fire insurance policies. Lessee shall, at his sole cost, comply with any and all
requirements, pertaining to the use of the Premises, of any insurance organization or
company necessary for the maintenance of reasonable fire and public liability insurance,
covering said building and appurtenances.
10. MAINTENANCE, ALTERATIONS AND FIXTURES.
a. Alterations by Lessee. Lessee shall not paint, paper, or make any other
alterations of the Premises, or any part thereof, without the prior written consent of City.
Any additions to, or alterations of, the Premises, except movable furniture and equipment,
shall become at once a part of the realty and belong to City. Any such alterations shall be
in conformance with the requirements of all municipal, state, and federal authorities. All
fixtures that Lessee attaches to the Premises shall become at once a part of the realty and
belong to City on expiration or sooner termination of this Lease.
b. Alterations by City. City has the right, in its sole discretion to modify,
reconfigure and renovate the Premises at any time. City shall provide signage as it deems
appropriate designating the Premises and organizations utilizing the Property.
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c. Repairs. Except for damage caused by any negligent or intentional act or
omission of Lessee or Lessee's agents, employees, invitees, or guests, City, at City's
expense, shall keep in good order, condition, and repair the foundations, exterior walls
and exterior roof of the Property, including all plumbing and electrical equipment located
between the exterior and interior walls of the Property. City shall not, however, be
obligated to maintain the interior walls, ceilings, windows, doors or plate glass of the
Premises. City shall have no obligation to make repairs under this Section until a
reasonable time after receipt of written notice from Lessee of the need for such repairs.
Lessee expressly waives the benefits of any statute now or hereafter in effect which would
otherwise afford Lessee the right to make repairs at City's expense or to terminate this
Lease because of City's failure to keep the Property in good order, condition, and repair.
d. Lessee’s Maintenance Obligations. Other than those obligations of City
described in this Section, Lessee, at Lessee's expense, shall keep in good order, condition,
and repair the Premises and every part thereof including, without limiting the generality
of the foregoing, all plumbing, electrical and lighting facilities, equipment, interior walls,
ceilings, windows, doors, and glass located within the Premises. Lessee shall be
responsible for damages to the Premises or the Property caused by the negligence or
intentional acts of its agents, employees, invitees, or guests.
e. Failure to perform Lessee’s Obligations. If Lessee fails to perform Lessee's
obligations under this Section or under any other section of this Lease, City may at City's
option enter upon the Premises after ten (10) days' prior written notice to Lessee (except
in case of emergency, in which case no notice shall be required), perform such obligations
on Lessee'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 City together with Lessee’s next rental installment.
11. CONDITION OF PREMISES; SURRENDER.
a. Premises As Is. Lessee accepts the Premises and the leased fixtures and
equipment as being in good and sanitary order, condition, and repair, and agrees to
surrender the Premises in as good condition as received, except for normal wear and tear,
clean and free of debris. At the expiration or termination of the Lease, Lessee further
agrees immediately to remove all of Lessee’s property that is not a fixture of or permanent
attachment to the Premises, or that is owned and was installed by Lessee during the term
of this Lease. Lessee shall repair any damage to the Premises occasioned by the installation
or removal of its furnishings and equipment.
b. Failure to Remove Property. If upon expiration or termination of this Lease,
Lessee fails to remove any personal property belonging to Lessee from the premises, such
property shall at City’s option at any time after thirty (30) days from the date of expiration
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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.
12. ABANDONMENT OF PERSONAL PROPERTY.
Lessee shall not vacate or abandon the Premises at any time during the term of this
Lease. If Lessee shall abandon, vacate, or surrender the Premises or be dispossessed by
process of law, or otherwise, any personal property belonging to Lessee and left on the
Premises shall be deemed to be abandoned, at the option of City.
13. ENTRY AND INSPECTION.
The City and its authorized representatives shall have the right to enter the
Premises at all reasonable times with reasonable notice for any of the following purposes:
(1) to inspect the Premises and determine whether the Premises 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 Premises; or (3) to perform any of City’s
duties under this lease, including making any necessary or agreed on repairs or
alterations. Such acts by City may include the erection and maintenance of scaffolding,
canopy, fences, and similar props as may be required, or for the purpose of posting notices
of non-liability for alterations, additions or repairs. City shall be permitted to do any of
the above without any rebate of rent and without any liability to Lessee for any loss of
occupation or quiet enjoyment of the Premises thereby occasioned. Further, the City
retains the right to enter upon and show the Premises to persons considering purchase,
rental, or lease of the Premises and to display the usual notices and signs, "For Sale," "For
Lease," or "For Let," upon the Premises 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 City or its
authorized representatives under this Section.
14. INSURANCE.
a. Lessee to Maintain Insurance. Lessee shall, at its own expense, maintain in full
force and effect during the term of this Lease, and during any hold-over, insurance in
amounts not less than the amounts specified in Exhibit B.
b. Certificate of Insurance. Lessee shall furnish to the City Certificates of
Insurance evidencing the insurance coverage set forth above, the name and policy number
of each carrier and policy, and that the insurance is in force and will not be cancelled or
modified without thirty (30) days written notice to City. If Lessee does not maintain the
above-required insurance, 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
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collectible, as additional rent in the same manner and with the same remedies as if it had
been originally reserved. Because the City retains sole occupancy and control of that
certain portion of the Property designated as a gift shop, appropriate exclusionary
endorsements may be provided to remove said designated area from the insurance
maintained by Lessee.
15. INDEMNIFICATION.
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 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), litigation costs and
expenses, claims, and actions, regardless of nature or type (“Claims”), 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. Lessee’s
obligation to defend Indemnitees from Claims shall accrue immediately upon the filing of
any litigation against Indemnitees and shall not be contingent on a final determination in
the litigation that Indemnitees are liable for the Claims.
Claims for which Lessee agrees to indemnify, defend, and hold harmless
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 Premises 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,
City’s litigation costs and expenses, and any other consequences arising from Lessee’s
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.
Lessee hereby expressly waives all claims against City for damages to goods,
wares and merchandise in, upon, or about the Premises, and for injuries to persons in,
upon, or about the Premises, from any cause arising at any time during the Lease term.
16. PREMISES UNINHABITABLE; REMEDY.
If the Premises is wholly or partially destroyed by fire, earthquake or any other
cause whatsoever, rendering the Premises totally or partially inaccessible or unusable, or
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if the Premises is damaged by any cause which necessitates an expenditure of more than
forty percent (40%) of its fair market value to repair and restore it, or if more than forty
percent (40%) of the floor area, measured in square feet, is destroyed, City may, at its
option, terminate this Lease by giving notice to Lessee within sixty (60) days after the date
of the destruction or damage. If the City does not terminate the Lease, Lessee’s rent shall
be abated from the date of destruction or damage until restoration is completed, in an
amount proportionate to the extent to which destruction or damage interferes with
Lessee’s use of the Premises. In no event shall City be under an obligation or duty to
restore the Premises. If the City elects to restore the Premises, it shall proceed with
reasonable diligence, but shall not be liable for any delay, other than an abatement of rent
during the time that the Premises remains uninhabitable. The words "restore" and
"restoration" shall not include or apply to any fixture, equipment, or additions of any kind,
or any property whatever placed in or upon the Premises by Lessee or anyone acting on
its behalf. In making restorations, City may use similar and/or changed workmanship
and/or architecture. Immediately upon completion of repairs, the full amount of rent
hereunder reserved shall be due and payable. For the purposes of this Lease, the Premises
shall be deemed "uninhabitable" if it cannot be used as an office facility or if any public
agency deems it unsafe or unhealthy for human habitation or use as an office facility.
If City does not elect to terminate the Lease and does not commence restoration of
the Premises within one hundred twenty (120) days after the date of destruction or injury,
Lessee may, at its option, terminate this Lease upon written notice to City.
17. EMINENT DOMAIN.
a. Total Condemnation. In the event of a total condemnation of the Premises
during the Lease term, this Lease shall terminate as of the date actual physical possession
of the Premises is taken by the condemner. All compensation and damages awarded for
such total condemnation, including but not limited to any leasehold bonus value, shall
belong to, and be the sole property of City, and Lessee shall have no claim thereto, and
hereby irrevocably assigns and transfers to City any right to compensation or damages to
which it may become entitled; provided, however, that Lessee shall be entitled to receive
any award that may be made for the taking of or damage to Lessee's trade fixtures and
any improvements made by Lessee to the property which, but for the condemnation,
Lessee would have had the right to remove upon expiration or termination of this Lease.
b. Rent Due on Total Condemnation. On termination of this Lease due to a total
condemnation of the Premises, all rent and other charges payable by Lessee to or on behalf
of City pursuant to this Lease shall be paid up to the date on which actual physical
possession of the Premises is taken by the condemner, and the parties hereto shall
thereafter be released from all further liability under this Lease.
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c. Partial Condemnation. In the event of a partial condemnation of the Premises
during the Lease term, this Lease shall terminate as to the portion of the Premises so taken
on the date when actual physical possession of said portion is taken by the condemner;
and the parties hereto shall each have the option to terminate this Lease by giving written
notice to the other within thirty (30) days after actual physical possession of said portion
is taken by the condemner. If neither party terminates this Lease as herein provided, then
this Lease shall continue in full force and effect as to the remainder of the Premises not
condemned; provided, however, that the rent payable by Lessee for the balance of the
Lease term shall be abated in the ratio that the square footage of the condemned portion
of the Premises bears to the enclosed floor space of the Premises. Upon partial
condemnation, all compensation and damages awarded for such condemnation,
including but not limited to any leasehold bonus value, shall belong to and be the sole
property of City and Lessee shall have no claim thereto; 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, but for the
condemnation, Lessee would have had the right to remove upon expiration or termination
of this Lease.
d. Rent on Partial Condemnation. Upon termination of this Lease in part, as
herein provided, all rent and other charges payable by Lessee to or on behalf of City
pursuant to this Lease shall be paid up to the date on which actual physical possession is
taken by the condemner of that part of the Premises 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. DEFAULT.
a. Events of Default. The occurrence of any of the following shall constitute a
default by Lessee:
1. Failure to pay rent when due, if the failure continues for ten (10) days
after the due date.
2. Abandonment and vacation of the premises. Failure to occupy and
operate the premises for twenty (20) consecutive days unless excused by City shall
be deemed an abandonment and vacation.
3. The making by Lessee of any general assignment or general
arrangement for the benefit of creditors; the filing by or against Lessee of a petition
to have Lessee adjudged bankrupt or 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
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Lessee’s assets, where possession is not restored to Lessee within forty-five (45)
days; or the attachment, execution, or other judicial seizure of substantially all of
Lessee’s assets where such seizure is not discharged within thirty (30) days.
4. Failure to perform any other provision of this Lease if the failure to
perform is not cured within fifteen (15) days or 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. Notice of Default. Notices 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 is in 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.
19. CITY’S REMEDIES IN THE EVENT OF DEFAULT.
City shall have the following remedies if Lessee defaults. These remedies are not
exclusive; they are cumulative of any remedies now or later allowed by law.
a. Lessee’s Right to Possession Not Terminated. If Lessee defaults, City can
continue this lease in full force and effect, and the lease will continue in effect as long as
City does not terminate Lessee’s right to possession, and City shall have the right to collect
rent when due. City can relet the Premises, 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 Lessee’s right to
possession of the Premises, Lessee shall have the right to assign or sublet its interest in
this Lease if Lessee obtains City’s consent, which shall be at City’s sole discretion, but
Lessee shall not be released from liability.
If City elects to relet the Premises as provided in this Subsection, 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
by City in reletting; 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 reletting shall be held by City and applied in payment of future rent as rent becomes
due under this lease. In no event shall Lessee be entitled to any rent received by City in
excess of the rent due under this Lease. If on the date the rent is due under this Lease, the
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rent received from the reletting is less than the rent due on that date, Lessee shall pay to
City, in addition to the remaining rent due, all costs, including for maintenance, City
incurred in reletting that remain after applying the rent received from the reletting as
provided in this Subsection.
b. Termination of Lessee’s right to possession. If Lessee defaults, City can
terminate Lessee’s right to possession of the Premises at any time. No act by City other
than giving notice to Lessee shall terminate this Lease. City’s maintenance of the Premises,
efforts to relet the Premises, or the appointment of a receiver on City’s initiative to protect
City’s interest in the Premises 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 of 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 to compensate City for all
detriment proximately caused by Lessee’s default.
c. Appointment of Receiver. If Lessee defaults, City shall have the right to have a
receiver appointed to collect rent and conduct Lessee’s business. Neither the filing of a
petition for appointment of a receiver nor the appointment itself shall constitute an
election by City to terminate this Lease, nor shall such petition or appointment as initiated
by City be construed as default of this Lease by Lessee.
d. City’s Right to Cure. At any time after Lessee defaults, City can cure the default
at Lessee’s cost. If City pays any sum to cure Lessee’s default or does any act that requires
payment of any sum, the sum paid by City shall be due immediately from Lessee at the
time the sum is paid, and if paid at a later date shall bear interest at the maximum rate an
individual is permitted by law to charge from the date the sum is paid by City until Lessee
reimburses City. The sum, together with all interest on it, shall be the additional rent
20. ASSIGNMENT AND SUBLETTING.
Lease Agreement Friends of Stevens Creek Trail 13 of 15
Lessee shall not sublet the Premises or any part thereof or assign this Lease without
City's prior written consent, which consent may be withheld in City's sole and absolute
discretion.
21. RETURN OF KEYS.
Upon termination of this Lease, the keys to the Premises, including all duplicated
sets, are to be hand delivered to the City Manager or an authorized representative.
22. NONDISCRIMINATION.
Lessee 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 classification. If Lessee is found to
be in violation of the State of California Fair Employment and Housing Act or any similar
provision of state or federal law in the conduct of Lessee’s activities under this Lease, it
shall be in default under this Lease, entitling the City to all available remedies in this Lease
or by law.
23. BINDING EFFECT.
The provisions of this Lease shall apply to and bind the heirs, successors,
executors, administrators, and assigns of all parties hereto. The parties shall be jointly and
severally liable under this Lease.
24. NOTICES.
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:
LESSEE: Friends of the Stevens Creek Trail
Attention: Executive Director
22221 McClellan Road
Cupertino, CA 95014
CITY: City of Cupertino
Attn: City Manager’s Office
10300 Torre Avenue
Cupertino, CA 95014
25. GENERAL PROVISIONS.
Lease Agreement Friends of Stevens Creek Trail 14 of 15
a. Entire Agreement. This document comprises the entire and integrated
agreement of the parties concerning the Lease of the Premises and supersedes all prior
negotiations, representations, or agreements, either written or oral. Any amendments to
this Lease shall be effective only if in writing and signed by the City and Lessee.
b. Attorneys' Fees. If legal action is commenced to enforce or to declare the effect
of any provision of this Lease, the prevailing party shall be awarded attorneys' fees and
costs incurred by such party in the action. Service mailed to the address of Lessee set forth
herein shall be adequate service for such litigation. City shall be entitled to recover all
collection costs including reasonable attorney's fees incurred by it as a result of Lessee's
default as herein provided.
c. Severability. If any term, provision, covenant, or condition of this Lease is held
by a court to be invalid, void or unenforceable, the rest of this Lease shall remain in full
force and effect and shall in no way be affected, impaired, or invalidated.
d. Time. Time is of the essence of this Lease.
e. Waiver. No delay or failure to exercise any right or remedy of City on any
default by Lessee shall impair such a right or remedy or be construed as a waiver. The
receipt and acceptance of rent by 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 by a representative of City authorized to make such waiver and
shall not be a waiver of any other default concerning the same or any other provision of
this Lease.
f. Remedies Cumulative. The remedies provided in this Lease shall be cumulative.
The exercise of any one remedy shall not be to the exclusion of any other remedy.
g. Governing law. The laws of the state of California shall govern this Lease. In
the event any legal action is commenced regarding this Lease, venue shall be in Santa
Clara County.
h. Recordation. Neither Lessee nor City shall record this Lease.
Lease Agreement Friends of Stevens Creek Trail 15 of 15
i. Authority. The individuals signing this Lease on behalf of the parties have the
authority to sign on behalf of their respective entities.
IN WITNESS WHEREOF, the parties have caused this AGREEMENT to be executed.
LESSEE
Friends of Stevens Creek Trail
By ________________________
Name______________________
Title ______________________
Date_______________________
Tax I.D. No.: ________________
CITY OF CUPERTINO
A Municipal Corporation
By ________________________
Name______________________
Title ______________________
Date_______________________
APPROVED AS TO FORM: ATTEST:
________________
Heather Minner City Clerk
Cupertino City Attorney
Attachments
Exhibit A: Services to the Community
Exhibit B: Insurance Requirements
Rajiv Mathur
Executive Director
77-0334262
Deb Feng
City Manager
Date
Rajiv Mathur
Jun 22, 2020
Heather M. Minner
Deborah L. Feng
Jun 22, 2020
Jun 22, 2020
Friends of the Stevens Creek Trail Lease with
the City of Cupertino
Final Audit Report 2020-06-22
Created:2020-06-18
By:Julia Kinst (juliak@cupertino.org)
Status:Signed
Transaction ID:CBJCHBCAABAAUxbmjboyB5k1J06Eb-m8w_4uTir5vDQt
"Friends of the Stevens Creek Trail Lease with the City of Cupert
ino" History
Document created by Julia Kinst (juliak@cupertino.org)
2020-06-18 - 5:17:36 PM GMT- IP address: 64.178.242.15
Document emailed to Araceli Alejandre (aracelia@cupertino.org) for approval
2020-06-18 - 5:19:35 PM GMT
Document approved by Araceli Alejandre (aracelia@cupertino.org)
Approval Date: 2020-06-18 - 5:23:14 PM GMT - Time Source: server- IP address: 24.23.184.82
Document emailed to Rajiv Mathur (rajiv_mathur@stevenscreektrail.org) for signature
2020-06-18 - 5:23:18 PM GMT
Email viewed by Rajiv Mathur (rajiv_mathur@stevenscreektrail.org)
2020-06-18 - 5:54:30 PM GMT- IP address: 66.249.84.222
Document e-signed by Rajiv Mathur (rajiv_mathur@stevenscreektrail.org)
Signature Date: 2020-06-22 - 6:25:09 PM GMT - Time Source: server- IP address: 73.71.21.83
Document emailed to Heather M. Minner (minner@smwlaw.com) for signature
2020-06-22 - 6:25:11 PM GMT
Email viewed by Heather M. Minner (minner@smwlaw.com)
2020-06-22 - 6:38:50 PM GMT- IP address: 45.41.142.87
Document e-signed by Heather M. Minner (minner@smwlaw.com)
Signature Date: 2020-06-22 - 6:39:18 PM GMT - Time Source: server- IP address: 52.39.49.65
Document emailed to Deborah L. Feng (debf@cupertino.org) for signature
2020-06-22 - 6:39:20 PM GMT
Email viewed by Deborah L. Feng (debf@cupertino.org)
2020-06-22 - 6:40:31 PM GMT- IP address: 104.47.46.254
Document e-signed by Deborah L. Feng (debf@cupertino.org)
Signature Date: 2020-06-22 - 6:40:53 PM GMT - Time Source: server- IP address: 24.6.12.22
Document emailed to Kirsten Squarcia (kirstens@cupertino.org) for signature
2020-06-22 - 6:40:55 PM GMT
Email viewed by Kirsten Squarcia (kirstens@cupertino.org)
2020-06-22 - 6:48:14 PM GMT- IP address: 104.47.45.254
Document e-signed by Kirsten Squarcia (kirstens@cupertino.org)
Signature Date: 2020-06-22 - 6:48:25 PM GMT - Time Source: server- IP address: 148.64.105.190
Signed document emailed to Kirsten Squarcia (kirstens@cupertino.org), Rajiv Mathur
(rajiv_mathur@stevenscreektrail.org), Heather M. Minner (minner@smwlaw.com), Araceli Alejandre
(aracelia@cupertino.org), and 2 more
2020-06-22 - 6:48:25 PM GMT