Preview
Superior Court
of California F
County of Butte
YOUNG & LAZZARINI 2/23/2024
NICHOLAS LAZZARINI (SBN #259247)
KENRICK YOUNG (SBN #236032)
900 Howe Ave., Suite 250
Sacramento, California 95825
Py Clerk
Deputy
916.929.6865 (tel) Tech FILED
916.471.0377 (fax)
info@kenrickyoung.com
Attorneys for Plaintiff ECP/TPB1, LLC, a California limited liability company
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF BUTTE
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2 ECP/TPB1, LLC, a California limited liability ) Case No. 24CV 00605
company,
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) COMPLAINT
14 Plaintiff ) 1. FOR BREACH OF CONTRACT; and,
Vv. ) 2. FOR COMMON COUNTS.
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ALI TARIQ, an individual; and DOES 1-10,
16 inclusive, [UNLIMITED CIVIL ACTION]
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Defendants.
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Plaintiff ECP/TPB1, LLC, a California limited liability company (“Plaintiff”), complains
21 and alleges as follows:
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COMPLAINT FOR BREACH OF CONTRACT YOUNG & LAZZARINI
AND COMMON COUNTS -1- 900 HOWE AVE., SUITE 250
SACRAMENTO, CA 95825
916.929.6865
GENERAL ALLEGATIONS
1 Plaintiff is a California limited liability company with its principal place of business
in Sacramento, California.
2. Defendant ALI TARIQ is an individual and dba Boost Mobile (“TARIQ” or
“Defendant”). Plaintiff is informed and believes, and on that basis alleges, TARIQ resides in Yuba
City, California.
3 Plaintiff is ignorant of the true names of defendants DOES 1-10 (“DOE
Defendants”), inclusive, and has therefore sued them by the foregoing names which are fictitious
and is informed and believes and thereon alleges, in accordance with the Code of Civil Procedure
10 section 474, that each of the said DOE Defendants claims an interest or has claimed an interest in
ll the property hereinafter described and which is the subject of this action, or that the DOE
2 Defendants may be legally responsible in some manner for the occurrences herein alleged and
B legally and proximately caused damages to Plaintiff as hereafter alleged. Plaintiff will amend this
14 complaint when the DOE Defendants’ true names and capacities are ascertained.
15 4 Plaintiff is informed and believes, and on that basis alleges, that at all times relevant
16 herein TARIQ and the DOE Defendants (collectively, “Defendants”) were and are agents of each
17 of the remaining Defendants, and were, in performing the acts complained of herein, acting within
18 the scope of such agency.
19 5 On or about May 1, 2019, TARIQ entered into a CHICO MALL STANDARD
KIOSK LEASE commercial lease agreement and addendum with Plaintiff, memorialized in writing
21 and further evidenced by the parties’ course of conduct (collectively, the “LEASE”), for lease of|
certain commercial property commonly known as 1950 E. 20" Street, Space T5571, Chico, CA
95928 (the “PROPERTY”). A true and correct copy of the LEASE is annexed hereto as
24 Exhibit 1.
6 By operation of the LEASE, the LEASE commenced on July 1, 2019. Exhibit 1, J
1).
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COMPLAINT FOR BREACH OF CONTRACT YOUNG & LAZZARINI
AND COMMON COUNTS -2— 900 HOWE AVE., SUITE 250
SACRAMENTO, CA 95825
916.929.6865
7 On May 4, 2020 and January 23, 2021, Plaintiff and Defendants entered into the
First- and Second Amendments to LEASE, respectively, modifying the rental payments and
expiration date of the LEASE as well as providing certain credits for past due amounts. True and
correct copies of the First Amendment to Lease and Second Amendment to Lease are annexed
hereto as Exhibits 2 & 3, respectively.
8 In early 2023, Defendants missed several rent payments and temporarily vacated the
PROPERTY.
9. On or about May 16, 2023, Defendants executed the Third Amendment to LEASE
in order to resolve the existing delinquency and resumed occupancy of the PROPERTY effective
10 June 1, 2023 (the “THIRD AMENDMENT”). As of the date of the THIRD AMENDMENT,
ll Defendants owed a total, delinquent balance of $52,704.30. A true and correct copy of the THIRD
2 AMENDMENT is annexed hereto as Exhibit 4.
B 10. As part of the THIRD AMENDMENT, Defendants agreed to pay $20,000.00
14 towards the then-existing, delinquent balance. In return, Plaintiff agreed to amortize the remaining
15 $32,704.30 (the “AMORTIZED DEBT”) due over the balance of the amended LEASE term, or
16 $861.00 per month, in addition to the monthly rent.
17 ll. In the event Defendants failed to complete all terms of the THIRD AMENDMENT,
18 including payment of the AMORTIZED DEBT, all inducement provisions given by Plaintiff as
19 part of the THIRD AMENDMENT were deemed immediately void and ineffective.
12. Pursuant to the THIRD AMENDMENT, Defendants agreed to waive their early
21 termination rights under the LEASE and would no longer be entitled to terminate the LEASE prior
to July 31, 2026.
13. Pursuant to the LEASE, and the First, Second, and Third Amendments to the
24 LEASE (collectively, the “COMBINED LEASE”), Defendants agreed to pay base monthly rent of
$2,700.00 beginning August 1, 2019! and increasing to $3,571.00 through the end of the lease term
on July 31, 2026. Exhibit 1, 4] 1(L); Exhibit 4, 73.
' The LEASE commenced on July 1, 2019. Rental payments commenced on August 1, 2019 following an initial,
free-rent period.
COMPLAINT FOR BREACH OF CONTRACT YOUNG & LAZZARINI
AND COMMON COUNTS -3- 900 HOWE AVE., SUITE 250
SACRAMENTO, CA 95825
916.929.6865
14. Pursuant to the COMBINED LEASE, Defendants agreed to pay the amortized,
delinquent portion of the rent in the amount of $861.00 per month. Exhibit 4, {§] 2-3.
15. Pursuant to the COMBINED LEASE, Defendants agreed to pay a late fee of
$150.00 on any payment not made on the due date. Exhibit 1, § 9.
16. Pursuant to the COMBINED LEASE, Defendants agreed to pay interest of 1.5% per
month, or the maximum amount allowed by law, whichever is less, on all amounts past due.
Exhibit 1, 4 9.
17. Pursuant to the COMBINED LEASE, upon default by Defendants, Plaintiff is
entitled to recover all amounts due under the full term of the LEASE except for those amounts
10 Defendants prove could have been reasonably avoided. Exhibit 1, §] 23(C)(1)(i-iv).
ll 18. Pursuant to the COMBINED LEASE, the prevailing party may recover reasonable
2 costs and attorneys’ fees in any action involving the PROPERTY. Exhibit 1, § 43.
B 19. Pursuant to the COMBINED LEASE, Plaintiff may recover any amounts paid for
14 restoration of the PROPERTY following Defendants vacating the PROPERTY. Exhibit 1, §
15 23(C)(1)(iv).
16 20. According to Plaintiff's business records, a summary of which is annexed hereto as
17 Exhibit 5, Defendants owe a total, principal balance of $141,283.48 plus interest, costs, late
18 charges, and attorneys’ fees through the balance of the lease term (the “DEBT”):
19 . Rent and charges as of February 1, 2024 $19,050.48
. Rent and charges for remainder of COMBINED LEASE $124,933.00
21 Security Deposit ($2,700.00)
Late charges TBD
Interest TBD
24 Costs TBD
Attorneys’ Fees TBD
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COMPLAINT FOR BREACH OF CONTRACT YOUNG & LAZZARINI
AND COMMON COUNTS -4— 900 HOWE AVE., SUITE 250
SACRAMENTO, CA 95825
916.929.6865
21. Defendants have not cured nor repaid the DEBT of $141,283.48 plus interest, costs,
and attorneys’ fees provided under the COMBINED LEASE and law.
FIRST CAUSE OF ACTION
(Breach of Contract)
22. Plaintiff realleges and incorporates by reference each and every allegation of the
preceding paragraphs as iffully set forth herein.
23. Plaintiff performed all acts required of it under the COMBINED LEASE, except for
those excused by Defendants’ failure to perform.
10 24. Defendants breached the COMBINED LEASE by failing to pay Plaintiff the
ll amounts due and owing without cause and in violation of the terms of the COMBINED LEASE.
2 25. As a result of Defendants’ failure to perform under the COMBINED LEASE,
B Plaintiff has been damaged in a principal amount not less than $141,283.48 plus interest, late
14 charges, costs, and attorneys’ fees.
15 26. Plaintiff may incur additional expenses making restorations to the PROPERTY.
16 27. Plaintiff has retained counsel in order to protect its rights, and it has and will
17 continue to incur attorneys’ fees.
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19 SECOND CAUSE OF ACTION
(Common Counts for Services Rendered)
21 28. Plaintiff realleges and incorporates by reference each and every allegation of the
preceding paragraphs as iffully set forth herein.
29. On or about May 1, 2019, Defendants requested, by words or conduct, that Plaintiff]
24 provide a lease of commercial space for the benefit of Defendants.
30. Plaintiff provided the lease of commercial space as requested.
31. Defendants have not repaid Plaintiff and a principal balance of not less than
$141,283.48 plus costs remains unpaid.
COMPLAINT FOR BREACH OF CONTRACT YOUNG & LAZZARINI
AND COMMON COUNTS -5— 900 HOWE AVE., SUITE 250
SACRAMENTO, CA 95825
916.929.6865
PRAYER FOR RELIEF
For compensatory damages according to proof;
Interest at the maximum legal rate from the date said sums became due and
owing;
Reasonable attorneys’ fees and costs; and,
For such other and further relief as the Court may deem just and proper.
Date: February 22, 2024 YOUNG & LAZZARINI
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NICHOLAS LAZZARINI
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Attorney for Plaintiff
2 ECP/TPB1, LLC
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COMPLAINT FOR BREACH OF CONTRACT YOUNG & LAZZARINI
AND COMMON COUNTS -6— 900 HOWE AVE., SUITE 250
SACRAMENTO, CA 95825
916.929.6865
EXHIBIT 1
DocuSign Envelope ID: 1016F4D1-DABC-48B8-AD9D-526B0B885CBB
CHICO MALL STANDARD KIOSK LEASE
THIS LEASE made as of this Ast day of iy , 2019 LANDLORD, whose
full name and address is set forth below, and TENANT, whose full name and address is set forth below.
In consideration of the mutual covenants and conditions herein contained the parties hereby agree
as follows:
1 Basic Terms. The following terms shall have the following meanings throughout this
Lease
A LANDLORD: ECP/TPB1, LLC, a California limited liability company
B. ADDRESS FOR NOTICES TO LANDLORD: ECP/TPB1, LLC, a California limited
liability company, 1300 National Drive, Suite 100 Sacramento, CA 95834
ADDRESS FOR PAYMENT OF RENT: Ethan Conrad Properties, 1300 National
Drive, Suite 100 Sacramento, CA 95834
RENT PAYMENTS SHALL BE MADE PAYABLE TO: Ethan Conrad, or such other
entity as Landlord may designate to Tenant from time to time in writing
TENANT: Ali Tariq, an individual
TENANT’S ADDRESS: 905 Garden Hwy Ste B, Yuba City, CA 95991
TENANT’S TRADE NAME: Boost Mobile
SHOPPING CENTER: The Shopping Center commonly known as Chico Mall and
located at 1950 E. 20' Street, in the City of Chico, County of Butte, State of
California 95928.
PREMISES: The space at the Shopping Center consisting of a 10’ by 10’ typical
mall kiosk in space T5571, per the attached Exhibit A.
ANTICIPATED DELIVERY DATE: July 1, 201
TERM: The period commencing on July 1, 2019 (the “Commencement Date”) and
expiring on July 31, 2021 (the “Expiration Date”)
PERMITTED USE: Tenant may use the Premises for the retail display and sale of
Boost Mobile cellular phone plans and cellular phones and accessories. Tenant
shall not offer multichannel video services or comparable services for the delivery
of video programming (e.g. cable, satellite, or Internet-based video services) or
wired or wireless Internet access services.
MINIMUM RENT: Tenant shall pay Minimum Rent as follows
(a) July 1, 2019 - July31, 2019 Free
August 1, 2019 — July31, 2020 $2,700.00 per mo
a —
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August 1, 2020 — July 31, 2021 $2,850.00 per mo.
M. PERCENTAGE RENT: Tenant shall pay Percentage Rent as follows:
(a) Commencing August 1, 2019 and continuing through and including July 31
2020, Tenant shall pay to Landlord Percentage Rent equating to ten percent
(10%) over the monthly breakpoint amount of Twenty-Seven Thousand ani
00/100 Dollars, due and payable on the tenth (10'") of each month.
(b) Commencing August 1, 2020 and continuing through and including July 31
2021, Tenant shall pay to Landlord Percentage Rent equating to ten percent
10%) over the monthly breakpoint amount of Twenty-Eight Thousand Fiv
Hundred and 00/100, due and payable on the tenth (10') of each month.
N SECURITY DEPOSIT: Two Thousand Seven Hundred and 00/100 Dollars
$2,700.00).
° GUARANTOR: None
RADIUS RESTRICTION: None
MAJOR. Any store of any type with an excess of 25,000 square feet of rentable
area in or adjoining the Shopping Center.
LAW OR LAWS. All federal, state, county and local governmental and municipal
laws, statutes, ordinances, rules, regulations, codes, decrees, orders and other
such requirements, applicable equitable remedies and decisions by courts in cases
where such decisions are binding precedents in the state in which the Shopping
Center is located, and decisions of federal courts applying the Laws of such state,
at the time in question.
2 Premises and Term. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises for the Term for purposes of operating a kiosk, subject to the terms and conditions
of this Lease. Notwithstanding anything contained herein to the contrary, Landlord shall not be liable to
Tenant for any loss or damage of any kind suffered by Tenant on account of the inability of Landlord to
deliver possession of the Premises to Tenant on or before the Commencement Date provided, however, if
Landlord shall fail to deliver possession of the Premises on or before the Commencement Date and said
failure did not arise out of a breach of any term or provision of this Lease by Tenant, all rents due hereunder
shall abate until such date as Landlord delivers possession of the Premises to Tenant. If Tenant shall open
its business at the Premises prior to the Commencement Date (which Tenant shall not do without Landlord’s
advance written consent), the Term shall be deemed to begin on such date as Tenant shall have opened for
business but the Term shall still expire on the Expiration Date. If Landlord has not delivered the Premises to
Tenant within twelve months after the Commencement Date, either party may thereafter terminate this Lease
by notice to the other party.
3. Use. Tenant shall use the Premises only for the purposes set forth in the Permitted Use
Paragraph of Paragraph 1 (and Tenant shall use the Premises for all of such purposes). Pursuant to the
provisions of California Civil Code Section 1997.230, Tenant and Landlord hereby acknowledge and agree
that any change in use of the Premises to a use not expressly permitted in the immediately preceding
sentence is absolutely prohibited.
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AT
DocuSign Envelope ID: 1016F4D1-DABC-48B8-AD9D-526B0B885CBB
4 Trade Name. Tenant shall operate its business at the Premises under the trade name set
forth in Paragraph 1 and shall not change its trade name during the Term without the prior written consent
of Landlord which Landlord may withhold in its sole discretion.
5. Minimum Rent; Place and Time of Payment. Tenant shall pay Landlord the Minimum
Rent set forth in Paragraph 1, subject to increases as set forth in Paragraph 37, together with any rent tax
thereon and on any other rent and charges due under this Lease. Tenant shall pay all rents and charges due
under this Lease in advance on or before the first day of each calendar month during the Term provided that
the first month's Minimum Rent shall be paid by Tenant upon execution of this Lease. Tenant shall pay all
rents and charges to Landlord at the address for Landlord set forth in Paragraph 1C, and shall make all
payments payable to the entity set forth in Paragraph 1C. Minimum Rent and all other rents and charges
due under this Lease are hereinafter referred to as “Rent”. If Landlord determines that Tenant's kiosk at the
Premises has an area larger than the square footage set forth in Paragraph 1H, without limitation to
Landlord’s right to require Tenant to reduce the size of the kiosk to correspond with such square footage.
upon notice from Landlord all rents and charges shall be proportionately increased, retroactive to the
Commencement Date, based upon such excess square footage. Landlord may, at its election from time to
time, allocate a portion of the Minimum Rent to a charge with respect to common area expenses for the
Shopping Center or a charge with respect to real estate taxes on the Shopping Center.
6 Intentionally Deleted.
7 Intentionally Deleted.
8 No Set-Offs; Partial Months. All payments of Minimum Rent and all other charges and
rents due Landlord hereunder (all such rents and other charges hereinafter sometimes referred to collectively
as “Rent’), shall be made without set-off or counterclaim. Payment of Rent for partial months shall be
prorated accordingly. If pursuant to this Lease Landlord owes any sums to Tenant after the end of the Term.
Landlord may apply against such sums any amounts Tenant owes Landlord under this Lease.
9. Interest and Late Charge. If Tenant shall fail to make any payment of Rent to Landlord
when due, interest on said late payment shall accrue at the rate of one and one-half percent (1-1/2%) per
month, or the highest rate permitted by applicable Law, whichever is less (the “Default Interest Rate"), from
the date said payment was due, and said interest shall become due and payable on the first day of the month
following the month in which said payment was due. In addition to any interest charges due on account
thereof, if Tenant shall fail to make any payment of Rent to Landlord when due, Tenant shall pay Landlord a
late charge of One Hundred Fifty Dollars ($150.00), which late charge shall become immediately due and
payable. The aforesaid interest and late charges shall not limit Landlord’s other rights and remedies provided
for herein on account of Tenant's failure to make payment when due.
10. Intentionally Deleted.
11 The Kiosk.
A Tenant takes the Premises in an “as is’ condition. Tenant shall by the
Commencement Date, at its sole cost and expense, construct a kiosk at the Premises in accordance with all
provisions herein and consistent with the plans provided by the Tenant at Exhibit B. (The kiosk operated by
Tenant at the Premises is hereinafter referred to as the “Kiosk”.) Tenant shall be required to renovate,
upgrade and redecorate the Kiosk during the Term as may be reasonably necessary in order that the Kiosk
be kept in first-class condition. Tenant shall not commence construction of the Kiosk until Landlord has
consented in writing to Tenant’s plans and specifications for the Kiosk and to the name or names or the
contractors who will be constructing the Kiosk. Prior to commencing any construction, Tenant shall obtain
the insurance required pursuant to this Lease and Tenant’s contractor, if any, shall also obtain the same
insurance pursuant to the same requirements and terms as apply to Tenant’s insurance requirements.
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DocuSign Envelope ID: 1016F4D1-DABC-48B8-AD9D-526B0B885CBB
Tenant shall perform the construction work for the Kiosk only at such times as are approved in advance by
Landlord. If Tenant shall commence construction prior to the Commencement Date, all terms and provisions
of this Lease, except for payment of Rent, shall be in full force and effect commencing on the date Tenant
commences such construction provided, however, that Landlord may bill Tenant for reasonable amounts on
account of the electricity Tenant utilizes for the construction and reasonable amounts for trash collection.
During any period of construction, Tenant shall conduct all aspects of its construction activity, including, its
labor relations and its relations with its employees, in such a manner as to avoid all strikes, picketing and
boycotts of, on or about the Premises and the Shopping Center, and so as to avoid and minimize any
disturbance to the operation of the Shopping Center and to other tenants thereat. If, during any period of
construction any of the employees of Tenant or of Tenant's contractors or subcontractors strike, or if picket
lines or boycotts or other visible activities objectionable to Landlord shall occur on or about the Premises or
the Shopping Center, Tenant shall immediately close the Premises and remove or cause to be removed all
employees therefrom until the dispute giving rise to such strike, picket line, boycott or objectionable activity
has been settled to Landlord’s satisfaction.
B. Without limitation to any other criteria Landlord furnishes Tenant, and subject to
modifications as per other criteria Landlord may furnish Tenant, the following shall apply: (1) The Kiosk, if
located in an open floor area, shall not be anchored into the floor or other part of the structure. (2) Water
service, special HVAC systems, and fire sprinkler protection are not available to kiosk locations. Heating,
ventilating and fire protection systems will be that which is provided to common areas in the Shopping Center.
(3) Unless already existing, Tenant is not provided with underground telephone lines and Tenant must make
use of telephone remote should Tenant desire a telephone. All telephone work desired by Tenant shall be
performed by Tenant at Tenant’s sole expense. (4) Tenant shall submit preliminary plans indicating its
proposed concept, including proposed signage, size, finish materials and special equipment, for Landlord’s
review and approval prior to submission of final plans. Pictures of existing units, if available, should be
provided. Upon Landlord’s approval of Tenant's preliminary plans, Tenant shall submit final plans to Landlord
for review and approval. (5) Tenant shall prepare its plans and perform all work to comply with all Laws,
including insurance rating boards, and apply for and obtain all necessary permits. Landlord’s approval of
Tenant's plans does not relieve Tenant of its obligation to complete its work in accordance with the terms of
this Lease, nor does it relieve Tenant of the necessity of complying with all Laws. (6) Certificates of
occupancy and waivers of lien from Tenant's contractor, all subcontractors and material men shall be filed
with Landlord upon completion of the job. (7) Set up and tear down of the Kiosk must take place prior to the
opening and after the closing of the Shopping Center, unless Landlord has agreed otherwise in writing.
Tenant shall comply with such other reasonable rules and regulations pertaining to kiosk construction as
Landlord may furnish Tenant.
Cc. The Tenant shall at all times keep the kiosk in a good, attractive, and professional
condition as set forth per the rules as set forth in the Lease.
12. Utilities. Landlord shall make available to Tenant at the Premises electrical current for use
in Tenant's business and Landlord shall pay for said electrical service as set forth above provided that, in
such case, Tenant shall have typical electricity usage of the Kiosk, and Tenant shall remain responsible for
doing the necessary connection work with respect to bringing electricity into the Premises. Landlord shall
not furnish any other utilities directly to the Premises but Tenant shall have the benefit of the heating, air
conditioning and other utilities that may be furnished to the mall area in which the Premises are located.
Landlord shall not be liable to Tenant for any damages should the furnishing of any utilities by Landlord,
including the heating and air conditioning in the mall area, be interrupted and no such interruption shall be
deemed an eviction or disturbance of Tenant's use or possession of the Premises or any part thereof nor
shall any such interruption relieve Tenant from the performance of any of Tenant's covenants, conditions
and agreements under this Lease.
13. Alterations. Tenant shall not make any alterations, additions or improvements to the
Premises or the Kiosk without the prior written consent of Landlord and all alterations, additions, or
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improvements made by either Landlord or Tenant upon the Premises, except movable equipment and trade
fixtures which Tenant installs at its expense, shall become the property of Landlord and shall remain upon
and be surrendered with the Premises at the expiration of the Term. The parties agree that the Kiosk is and
shall remain the property of Landlord and shall not be removed by Tenant under any circumstances.
Notwithstanding the foregoing, if Landlord shall direct Tenant to remove the Kiosk or any alterations,
additions or improvements at the end of the Term, Tenant shall remove the items so designated by Landlord
at the end of the Term and promptly repair any damage caused thereby. Also, if Tenant itself furnished and
installed the Kiosk, the Kiosk shall remain Tenant’s property and Tenant may (or if Landlord directs, Tenant
shall) remove the Kiosk at the end of the Term and promptly repair any damage caused thereby.
14. Maintenance and Use of Premises. Tenant shall at all times observe the following rules
and regulations with respect to the Premises: (a) Tenant shall maintain the Premises in a clean, sanitary,
attractive and safe condition and in good repair; (b) Tenant shall keep the Premises and the mall area
adjacent to the Premises clean and free from rubbish and dirt; (c) Tenant shall not perform any act or carry
on any practice which may injure or be a menace to the Premises or any portion of the Shopping Center or
any person at the Shopping Center, or which constitutes a nuisance to persons at the Premises or the
Shopping Center or which Landlord shall otherwise determine to be offensive, or which omits an odor
discernable outside the Premises, or which tends to injure the reputation of the Shopping Center, or which
may void any of Landlord’s insurance on the Shopping Center or increase the premium rate therefor; (d)
Tenant shall store all trash and garbage at the location designated by Landlord and shall not burn any trash
or garbage in or about the Premises or anywhere else in the Shopping Center; (e) Tenant shall not keep or
display any merchandise in the mall area adjacent to the Premises or otherwise obstruct said area; (f) Tenant
shall not overload the floor of the Premises; (g) Tenant shall at all times comply with all Laws pertaining to
the Premises or the conduct of Tenant's business thereat; (h) Tenant shall not permit loudspeakers,
televisions, phonographs, radios, flashing lights or other devices to be used in a manner so as to be heard
or seen outside of the Premises; (i) Tenant shall perform all loading and unloading of goods only at such
times and in such areas as is designated by Landlord for such purpose; (j) Tenant shall not distribute any
handbills or other advertising material in the Shopping Center or on the automobiles parked in the parking
lots serving the Shopping Center; (k) Tenant and its employees shall park their cars only in such portions of
the parking lots serving the Shopping Center as Landlord shall designate to Tenant unless Landlord agrees
in writing otherwise; (1) Tenant shall not permit food or beverage to be consumed at the Premises; and (m)
Tenant shall not permit loitering at the Premises. Tenant shall comply with such other reasonable rules and
regulations as Landlord may from time to time adopt with respect to the Shopping Center. Tenant (for itself
and all others claiming through Tenant) hereby irrevocably waives and releases its rights to make repairs at
Landlord’s expense under Sections 1941 and 1942 of the California Civil Code (as the same may be
amended from time to time) and any successor statute and similar statute, law, and ordinance now or
hereafter in effect.
15. Signage and Advertising. No sign, advertisement, display or notice shall be inscribed,
painted or affixed on any part of the Premises, the Kiosk or Shopping Center, except as Landlord may
approve in advance in writing. Landlord shall have the right to prohibit any sign, advertisement, display or
notice of the Tenant wherever appearing which in the Landlord’s opinion tends to impair the reputation or
appearance of the Shopping Center or is otherwise offensive or improper, and upon written notice from the
Landlord, Tenant shall discontinue or remove such sign, advertisement, display or notice. Tenant shall not
use the name of the Shopping Center for any purpose other than as the address of the business conducted
by Tenant at the Premises.
16. Hours of Operation. Tenant shall be open for business at the Premises during the entire
Term during all hours and on such days and evenings of the week as may be determined by Landlord to be
in the interest of the Shopping Center as a whole. Tenant shall at all times maintain a fully stocked supply of
inventory, use a sufficient number of adequately trained personnel for efficient service and shall otherwise
diligently operate its business at the Premises so as to produce maximum gross sales. A vacation of
Premises or cessation of operations by any other tenant in the Shopping Center shall not in any way release
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Tenant from Tenant's obligations under this Lease. Tenant agrees that being open at the times and days
aforesaid goes to the essence of the parties’ agreement hereunder and that Landlord’s remedies hereunder
and at law on account of Tenant's violation thereof may not be adequate. Tenant therefor agrees that, with
respect to any day during the Term that Tenant shall fail to be open for the hours provided for above, the
Minimum Rent with respect to said day shall be increased to the sum of one hundred fifty percent (150%) of
the applicable rate for the day in which Tenant so fails to be open as set forth herein provided that, in no
event shall the Minimum Rent be increased by less than fifty dollars ($50.00) per day. The liquidated
damages provided in the previous sentence shall not be in lieu of Landlord’s other remedies hereunder or at
law, except damages, and acceptance by Landlord of such shall not be deemed an election of remedies or
preclude Landlord from seeking any other remedy permitted Landlord on account thereof.
17. Access to Premises. Landlord reserves the right to enter upon the Premises, including the
Kiosk, at all reasonable hours for the purpose of inspecting the same, or the use thereof by Tenant, or for
making emergency repairs. The exercise by Landlord of any of its rights herein shall not be deemed an
eviction or disturbance of Tenant’s use and possession of the Premises.
18. Insurance. Tenant shall maintain in full force and effect during the Term the following
insurance: (i) public liability and property damage insurance with respect to injury or damage occurring at
the Premises or arising out of Tenant's use of the Premises or otherwise arising out of any act or occurrence
at the Premises, said insurance to be in an amount of at least Two Million Dollars ($2,000,000) combined
single limit, (ii) all-risk property damage insurance insuring the Kiosk and its inventory, fixtures and other
personal property at the Premises covering damage by fire or other casualty to such property, said insurance
shall be in amounts not less than the full replacement cost of such property, (iii) Worker’s Compensation
insurance as required by statute, and (iv) employer's liability insurance of at least $500,000 per occurrence.
All the policies for the foregoing insurance shall name Landlord, Ethan Conrad Properties, and such other
parties as Landlord may designate, as additional insured. Prior to the Commencement Date and at such
times as the policies are to expire, Tenant shall furnish Landlord with certificates of insurance evidencing
that such insurance is in effect or has been renewed, as the case may be. Tenant hereby waives all
subrogation rights of its insurance carriers in favor of Landlord, its partners, officers, employees, and agents,
and shall obtain from its insurer a waiver of subrogation in favor of Landlord, Ethan Conrad Properties (or
such entity which is manager of the Shopping Center), and such other parties as Landlord has directed as
additional insureds with respect to all such insurance.
19. Waiver of Claims and Indemnity. To the extent not prohibited by law, Tenant shall
indemnify, defend and save harmless Landlord from and against any and all liability, claims, damages, costs
and expenses, including without limitation, attorneys’ fees, resulting from or in connection with Tenant's use
or occupancy of the Premises. It is understood that all persons and property brought, invited or permitted
upon the Premises by Tenant shall be thereon at the sole risk of Tenant, and Tenant shall save Landlord
harmless from any and all liability arising from or in connection therewith. To the extent not prohibited by law,
Tenant waives all claims against Landlord for injury to persons, damage to property or to any other interests
of Tenant sustained by Tenant or any person claiming through Tenant resulting from any occurrence in or
upon the Premises or the Shopping Center including, without limitation, any interruption in any utility services
or any alleged failure to provide adequate security services. For purposes of this Paragraph, the term
Landlord shall mean and include Landlord and its and their partners, officers, directors, employees, and
agents at the Shopping Center.
20. Assignment. Tenant shall not sell, assign, mortgage, pledge or in any manner transfer this
Lease or any interest herein, nor sublet or license all or any part of the Premises, by operation of law or
otherwise, without Landlord's prior written approval which approval Landlord may withhold in Landlord’s sole
discretion. If Tenant is a corporation or partnership, a change in control of Tenant or of Tenant's parent (or
of any entity effectively owning Tenant) shall be deemed an assignment hereunder. Notwithstanding any
transfer, Tenant and/or Guarantor shail at all times remain directly and primarily responsible and liable for
the payment of the Rent herein specified and for compliance with all other obligations under this Lease (and
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DocuSign Envelope ID: 1016F4D1-DABC-48B8-AD9D-526B0B885CBB
if after such transfer Tenant is deemed a surety, Tenant hereby waives all applicable surety defenses
including, without limitation, those contained in Sections 2787 to 2855, inclusive, of the California Civil Code).
21. Liens. Tenant shall promptly pay for any work done or material furnished by or on behalf of
Tenant in or about the Premises and shall not permit or suffer any lien to attach to the Premises or all or any
part of the Shopping Center and Tenant shall have no authority or power, express or implied, to create or
cause any lien, charge or encumbrance of any kind against the Premises or all or any part of the Shopping
Center. If any lien shall at any time be filed against the Premises or against any part of the Shopping Center
by reason of work, labor, services or materials alleged to have been performed or furnished by, for or to
Tenant or to anyone holding the Premises through or under Tenant, Tenant shall forthwith cause the same
to be discharged of record or bonded to the satisfaction of Landlord. If Tenant shall fail to cause such lien
forthwith to be so discharged or bonded after being notified of the filing thereof, then, in addition to any other
right or remedy of Landlord, Landlord may discharge the same by paying the amount claimed to be due, and
the amount so paid by Landlord and all costs and expenses, including reasonable attorneys’ fees incurred
by Landlord, in procuring the discharge of such lien, shall be due and payable by Tenant to Landlord as
additional rent on the first day of the next following month.
Preview
Superior Court of California F County of Butte YOUNG & LAZZARINI 2/23/2024 NICHOLAS LAZZARINI (SBN #259247) KENRICK YOUNG (SBN #236032) 900 Howe Ave., Suite 250 Sacramento, California 95825 Py Clerk Deputy 916.929.6865 (tel) Tech FILED 916.471.0377 (fax) info@kenrickyoung.com Attorneys for Plaintiff ECP/TPB1, LLC, a California limited liability company SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF BUTTE ll 2 ECP/TPB1, LLC, a California limited liability ) Case No. 24CV 00605 company, B ) COMPLAINT 14 Plaintiff ) 1. FOR BREACH OF CONTRACT; and, Vv. ) 2. FOR COMMON COUNTS. 15 ALI TARIQ, an individual; and DOES 1-10, 16 inclusive, [UNLIMITED CIVIL ACTION] 17 Defendants. 18 19 Plaintiff ECP/TPB1, LLC, a California limited liability company (“Plaintiff”), complains 21 and alleges as follows: // // 24 // // // // // COMPLAINT FOR BREACH OF CONTRACT YOUNG & LAZZARINI AND COMMON COUNTS -1- 900 HOWE AVE., SUITE 250 SACRAMENTO, CA 95825 916.929.6865 GENERAL ALLEGATIONS 1 Plaintiff is a California limited liability company with its principal place of business in Sacramento, California. 2. Defendant ALI TARIQ is an individual and dba Boost Mobile (“TARIQ” or “Defendant”). Plaintiff is informed and believes, and on that basis alleges, TARIQ resides in Yuba City, California. 3 Plaintiff is ignorant of the true names of defendants DOES 1-10 (“DOE Defendants”), inclusive, and has therefore sued them by the foregoing names which are fictitious and is informed and believes and thereon alleges, in accordance with the Code of Civil Procedure 10 section 474, that each of the said DOE Defendants claims an interest or has claimed an interest in ll the property hereinafter described and which is the subject of this action, or that the DOE 2 Defendants may be legally responsible in some manner for the occurrences herein alleged and B legally and proximately caused damages to Plaintiff as hereafter alleged. Plaintiff will amend this 14 complaint when the DOE Defendants’ true names and capacities are ascertained. 15 4 Plaintiff is informed and believes, and on that basis alleges, that at all times relevant 16 herein TARIQ and the DOE Defendants (collectively, “Defendants”) were and are agents of each 17 of the remaining Defendants, and were, in performing the acts complained of herein, acting within 18 the scope of such agency. 19 5 On or about May 1, 2019, TARIQ entered into a CHICO MALL STANDARD KIOSK LEASE commercial lease agreement and addendum with Plaintiff, memorialized in writing 21 and further evidenced by the parties’ course of conduct (collectively, the “LEASE”), for lease of| certain commercial property commonly known as 1950 E. 20" Street, Space T5571, Chico, CA 95928 (the “PROPERTY”). A true and correct copy of the LEASE is annexed hereto as 24 Exhibit 1. 6 By operation of the LEASE, the LEASE commenced on July 1, 2019. Exhibit 1, J 1). i i COMPLAINT FOR BREACH OF CONTRACT YOUNG & LAZZARINI AND COMMON COUNTS -2— 900 HOWE AVE., SUITE 250 SACRAMENTO, CA 95825 916.929.6865 7 On May 4, 2020 and January 23, 2021, Plaintiff and Defendants entered into the First- and Second Amendments to LEASE, respectively, modifying the rental payments and expiration date of the LEASE as well as providing certain credits for past due amounts. True and correct copies of the First Amendment to Lease and Second Amendment to Lease are annexed hereto as Exhibits 2 & 3, respectively. 8 In early 2023, Defendants missed several rent payments and temporarily vacated the PROPERTY. 9. On or about May 16, 2023, Defendants executed the Third Amendment to LEASE in order to resolve the existing delinquency and resumed occupancy of the PROPERTY effective 10 June 1, 2023 (the “THIRD AMENDMENT”). As of the date of the THIRD AMENDMENT, ll Defendants owed a total, delinquent balance of $52,704.30. A true and correct copy of the THIRD 2 AMENDMENT is annexed hereto as Exhibit 4. B 10. As part of the THIRD AMENDMENT, Defendants agreed to pay $20,000.00 14 towards the then-existing, delinquent balance. In return, Plaintiff agreed to amortize the remaining 15 $32,704.30 (the “AMORTIZED DEBT”) due over the balance of the amended LEASE term, or 16 $861.00 per month, in addition to the monthly rent. 17 ll. In the event Defendants failed to complete all terms of the THIRD AMENDMENT, 18 including payment of the AMORTIZED DEBT, all inducement provisions given by Plaintiff as 19 part of the THIRD AMENDMENT were deemed immediately void and ineffective. 12. Pursuant to the THIRD AMENDMENT, Defendants agreed to waive their early 21 termination rights under the LEASE and would no longer be entitled to terminate the LEASE prior to July 31, 2026. 13. Pursuant to the LEASE, and the First, Second, and Third Amendments to the 24 LEASE (collectively, the “COMBINED LEASE”), Defendants agreed to pay base monthly rent of $2,700.00 beginning August 1, 2019! and increasing to $3,571.00 through the end of the lease term on July 31, 2026. Exhibit 1, 4] 1(L); Exhibit 4, 73. ' The LEASE commenced on July 1, 2019. Rental payments commenced on August 1, 2019 following an initial, free-rent period. COMPLAINT FOR BREACH OF CONTRACT YOUNG & LAZZARINI AND COMMON COUNTS -3- 900 HOWE AVE., SUITE 250 SACRAMENTO, CA 95825 916.929.6865 14. Pursuant to the COMBINED LEASE, Defendants agreed to pay the amortized, delinquent portion of the rent in the amount of $861.00 per month. Exhibit 4, {§] 2-3. 15. Pursuant to the COMBINED LEASE, Defendants agreed to pay a late fee of $150.00 on any payment not made on the due date. Exhibit 1, § 9. 16. Pursuant to the COMBINED LEASE, Defendants agreed to pay interest of 1.5% per month, or the maximum amount allowed by law, whichever is less, on all amounts past due. Exhibit 1, 4 9. 17. Pursuant to the COMBINED LEASE, upon default by Defendants, Plaintiff is entitled to recover all amounts due under the full term of the LEASE except for those amounts 10 Defendants prove could have been reasonably avoided. Exhibit 1, §] 23(C)(1)(i-iv). ll 18. Pursuant to the COMBINED LEASE, the prevailing party may recover reasonable 2 costs and attorneys’ fees in any action involving the PROPERTY. Exhibit 1, § 43. B 19. Pursuant to the COMBINED LEASE, Plaintiff may recover any amounts paid for 14 restoration of the PROPERTY following Defendants vacating the PROPERTY. Exhibit 1, § 15 23(C)(1)(iv). 16 20. According to Plaintiff's business records, a summary of which is annexed hereto as 17 Exhibit 5, Defendants owe a total, principal balance of $141,283.48 plus interest, costs, late 18 charges, and attorneys’ fees through the balance of the lease term (the “DEBT”): 19 . Rent and charges as of February 1, 2024 $19,050.48 . Rent and charges for remainder of COMBINED LEASE $124,933.00 21 Security Deposit ($2,700.00) Late charges TBD Interest TBD 24 Costs TBD Attorneys’ Fees TBD i i i COMPLAINT FOR BREACH OF CONTRACT YOUNG & LAZZARINI AND COMMON COUNTS -4— 900 HOWE AVE., SUITE 250 SACRAMENTO, CA 95825 916.929.6865 21. Defendants have not cured nor repaid the DEBT of $141,283.48 plus interest, costs, and attorneys’ fees provided under the COMBINED LEASE and law. FIRST CAUSE OF ACTION (Breach of Contract) 22. Plaintiff realleges and incorporates by reference each and every allegation of the preceding paragraphs as iffully set forth herein. 23. Plaintiff performed all acts required of it under the COMBINED LEASE, except for those excused by Defendants’ failure to perform. 10 24. Defendants breached the COMBINED LEASE by failing to pay Plaintiff the ll amounts due and owing without cause and in violation of the terms of the COMBINED LEASE. 2 25. As a result of Defendants’ failure to perform under the COMBINED LEASE, B Plaintiff has been damaged in a principal amount not less than $141,283.48 plus interest, late 14 charges, costs, and attorneys’ fees. 15 26. Plaintiff may incur additional expenses making restorations to the PROPERTY. 16 27. Plaintiff has retained counsel in order to protect its rights, and it has and will 17 continue to incur attorneys’ fees. 18 19 SECOND CAUSE OF ACTION (Common Counts for Services Rendered) 21 28. Plaintiff realleges and incorporates by reference each and every allegation of the preceding paragraphs as iffully set forth herein. 29. On or about May 1, 2019, Defendants requested, by words or conduct, that Plaintiff] 24 provide a lease of commercial space for the benefit of Defendants. 30. Plaintiff provided the lease of commercial space as requested. 31. Defendants have not repaid Plaintiff and a principal balance of not less than $141,283.48 plus costs remains unpaid. COMPLAINT FOR BREACH OF CONTRACT YOUNG & LAZZARINI AND COMMON COUNTS -5— 900 HOWE AVE., SUITE 250 SACRAMENTO, CA 95825 916.929.6865 PRAYER FOR RELIEF For compensatory damages according to proof; Interest at the maximum legal rate from the date said sums became due and owing; Reasonable attorneys’ fees and costs; and, For such other and further relief as the Court may deem just and proper. Date: February 22, 2024 YOUNG & LAZZARINI 10 NICHOLAS LAZZARINI ll Attorney for Plaintiff 2 ECP/TPB1, LLC B 14 15 16 17 18 19 21 24 COMPLAINT FOR BREACH OF CONTRACT YOUNG & LAZZARINI AND COMMON COUNTS -6— 900 HOWE AVE., SUITE 250 SACRAMENTO, CA 95825 916.929.6865 EXHIBIT 1 DocuSign Envelope ID: 1016F4D1-DABC-48B8-AD9D-526B0B885CBB CHICO MALL STANDARD KIOSK LEASE THIS LEASE made as of this Ast day of iy , 2019 LANDLORD, whose full name and address is set forth below, and TENANT, whose full name and address is set forth below. In consideration of the mutual covenants and conditions herein contained the parties hereby agree as follows: 1 Basic Terms. The following terms shall have the following meanings throughout this Lease A LANDLORD: ECP/TPB1, LLC, a California limited liability company B. ADDRESS FOR NOTICES TO LANDLORD: ECP/TPB1, LLC, a California limited liability company, 1300 National Drive, Suite 100 Sacramento, CA 95834 ADDRESS FOR PAYMENT OF RENT: Ethan Conrad Properties, 1300 National Drive, Suite 100 Sacramento, CA 95834 RENT PAYMENTS SHALL BE MADE PAYABLE TO: Ethan Conrad, or such other entity as Landlord may designate to Tenant from time to time in writing TENANT: Ali Tariq, an individual TENANT’S ADDRESS: 905 Garden Hwy Ste B, Yuba City, CA 95991 TENANT’S TRADE NAME: Boost Mobile SHOPPING CENTER: The Shopping Center commonly known as Chico Mall and located at 1950 E. 20' Street, in the City of Chico, County of Butte, State of California 95928. PREMISES: The space at the Shopping Center consisting of a 10’ by 10’ typical mall kiosk in space T5571, per the attached Exhibit A. ANTICIPATED DELIVERY DATE: July 1, 201 TERM: The period commencing on July 1, 2019 (the “Commencement Date”) and expiring on July 31, 2021 (the “Expiration Date”) PERMITTED USE: Tenant may use the Premises for the retail display and sale of Boost Mobile cellular phone plans and cellular phones and accessories. Tenant shall not offer multichannel video services or comparable services for the delivery of video programming (e.g. cable, satellite, or Internet-based video services) or wired or wireless Internet access services. MINIMUM RENT: Tenant shall pay Minimum Rent as follows (a) July 1, 2019 - July31, 2019 Free August 1, 2019 — July31, 2020 $2,700.00 per mo a — INITIAL: (Ar DocuSign Envelope ID: 1016F4D1-DABC-48B8-AD9D-526B0B885CBB August 1, 2020 — July 31, 2021 $2,850.00 per mo. M. PERCENTAGE RENT: Tenant shall pay Percentage Rent as follows: (a) Commencing August 1, 2019 and continuing through and including July 31 2020, Tenant shall pay to Landlord Percentage Rent equating to ten percent (10%) over the monthly breakpoint amount of Twenty-Seven Thousand ani 00/100 Dollars, due and payable on the tenth (10'") of each month. (b) Commencing August 1, 2020 and continuing through and including July 31 2021, Tenant shall pay to Landlord Percentage Rent equating to ten percent 10%) over the monthly breakpoint amount of Twenty-Eight Thousand Fiv Hundred and 00/100, due and payable on the tenth (10') of each month. N SECURITY DEPOSIT: Two Thousand Seven Hundred and 00/100 Dollars $2,700.00). ° GUARANTOR: None RADIUS RESTRICTION: None MAJOR. Any store of any type with an excess of 25,000 square feet of rentable area in or adjoining the Shopping Center. LAW OR LAWS. All federal, state, county and local governmental and municipal laws, statutes, ordinances, rules, regulations, codes, decrees, orders and other such requirements, applicable equitable remedies and decisions by courts in cases where such decisions are binding precedents in the state in which the Shopping Center is located, and decisions of federal courts applying the Laws of such state, at the time in question. 2 Premises and Term. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises for the Term for purposes of operating a kiosk, subject to the terms and conditions of this Lease. Notwithstanding anything contained herein to the contrary, Landlord shall not be liable to Tenant for any loss or damage of any kind suffered by Tenant on account of the inability of Landlord to deliver possession of the Premises to Tenant on or before the Commencement Date provided, however, if Landlord shall fail to deliver possession of the Premises on or before the Commencement Date and said failure did not arise out of a breach of any term or provision of this Lease by Tenant, all rents due hereunder shall abate until such date as Landlord delivers possession of the Premises to Tenant. If Tenant shall open its business at the Premises prior to the Commencement Date (which Tenant shall not do without Landlord’s advance written consent), the Term shall be deemed to begin on such date as Tenant shall have opened for business but the Term shall still expire on the Expiration Date. If Landlord has not delivered the Premises to Tenant within twelve months after the Commencement Date, either party may thereafter terminate this Lease by notice to the other party. 3. Use. Tenant shall use the Premises only for the purposes set forth in the Permitted Use Paragraph of Paragraph 1 (and Tenant shall use the Premises for all of such purposes). Pursuant to the provisions of California Civil Code Section 1997.230, Tenant and Landlord hereby acknowledge and agree that any change in use of the Premises to a use not expressly permitted in the immediately preceding sentence is absolutely prohibited. INITIAL: ai —__ AT DocuSign Envelope ID: 1016F4D1-DABC-48B8-AD9D-526B0B885CBB 4 Trade Name. Tenant shall operate its business at the Premises under the trade name set forth in Paragraph 1 and shall not change its trade name during the Term without the prior written consent of Landlord which Landlord may withhold in its sole discretion. 5. Minimum Rent; Place and Time of Payment. Tenant shall pay Landlord the Minimum Rent set forth in Paragraph 1, subject to increases as set forth in Paragraph 37, together with any rent tax thereon and on any other rent and charges due under this Lease. Tenant shall pay all rents and charges due under this Lease in advance on or before the first day of each calendar month during the Term provided that the first month's Minimum Rent shall be paid by Tenant upon execution of this Lease. Tenant shall pay all rents and charges to Landlord at the address for Landlord set forth in Paragraph 1C, and shall make all payments payable to the entity set forth in Paragraph 1C. Minimum Rent and all other rents and charges due under this Lease are hereinafter referred to as “Rent”. If Landlord determines that Tenant's kiosk at the Premises has an area larger than the square footage set forth in Paragraph 1H, without limitation to Landlord’s right to require Tenant to reduce the size of the kiosk to correspond with such square footage. upon notice from Landlord all rents and charges shall be proportionately increased, retroactive to the Commencement Date, based upon such excess square footage. Landlord may, at its election from time to time, allocate a portion of the Minimum Rent to a charge with respect to common area expenses for the Shopping Center or a charge with respect to real estate taxes on the Shopping Center. 6 Intentionally Deleted. 7 Intentionally Deleted. 8 No Set-Offs; Partial Months. All payments of Minimum Rent and all other charges and rents due Landlord hereunder (all such rents and other charges hereinafter sometimes referred to collectively as “Rent’), shall be made without set-off or counterclaim. Payment of Rent for partial months shall be prorated accordingly. If pursuant to this Lease Landlord owes any sums to Tenant after the end of the Term. Landlord may apply against such sums any amounts Tenant owes Landlord under this Lease. 9. Interest and Late Charge. If Tenant shall fail to make any payment of Rent to Landlord when due, interest on said late payment shall accrue at the rate of one and one-half percent (1-1/2%) per month, or the highest rate permitted by applicable Law, whichever is less (the “Default Interest Rate"), from the date said payment was due, and said interest shall become due and payable on the first day of the month following the month in which said payment was due. In addition to any interest charges due on account thereof, if Tenant shall fail to make any payment of Rent to Landlord when due, Tenant shall pay Landlord a late charge of One Hundred Fifty Dollars ($150.00), which late charge shall become immediately due and payable. The aforesaid interest and late charges shall not limit Landlord’s other rights and remedies provided for herein on account of Tenant's failure to make payment when due. 10. Intentionally Deleted. 11 The Kiosk. A Tenant takes the Premises in an “as is’ condition. Tenant shall by the Commencement Date, at its sole cost and expense, construct a kiosk at the Premises in accordance with all provisions herein and consistent with the plans provided by the Tenant at Exhibit B. (The kiosk operated by Tenant at the Premises is hereinafter referred to as the “Kiosk”.) Tenant shall be required to renovate, upgrade and redecorate the Kiosk during the Term as may be reasonably necessary in order that the Kiosk be kept in first-class condition. Tenant shall not commence construction of the Kiosk until Landlord has consented in writing to Tenant’s plans and specifications for the Kiosk and to the name or names or the contractors who will be constructing the Kiosk. Prior to commencing any construction, Tenant shall obtain the insurance required pursuant to this Lease and Tenant’s contractor, if any, shall also obtain the same insurance pursuant to the same requirements and terms as apply to Tenant’s insurance requirements. INITIAL: DocuSign Envelope ID: 1016F4D1-DABC-48B8-AD9D-526B0B885CBB Tenant shall perform the construction work for the Kiosk only at such times as are approved in advance by Landlord. If Tenant shall commence construction prior to the Commencement Date, all terms and provisions of this Lease, except for payment of Rent, shall be in full force and effect commencing on the date Tenant commences such construction provided, however, that Landlord may bill Tenant for reasonable amounts on account of the electricity Tenant utilizes for the construction and reasonable amounts for trash collection. During any period of construction, Tenant shall conduct all aspects of its construction activity, including, its labor relations and its relations with its employees, in such a manner as to avoid all strikes, picketing and boycotts of, on or about the Premises and the Shopping Center, and so as to avoid and minimize any disturbance to the operation of the Shopping Center and to other tenants thereat. If, during any period of construction any of the employees of Tenant or of Tenant's contractors or subcontractors strike, or if picket lines or boycotts or other visible activities objectionable to Landlord shall occur on or about the Premises or the Shopping Center, Tenant shall immediately close the Premises and remove or cause to be removed all employees therefrom until the dispute giving rise to such strike, picket line, boycott or objectionable activity has been settled to Landlord’s satisfaction. B. Without limitation to any other criteria Landlord furnishes Tenant, and subject to modifications as per other criteria Landlord may furnish Tenant, the following shall apply: (1) The Kiosk, if located in an open floor area, shall not be anchored into the floor or other part of the structure. (2) Water service, special HVAC systems, and fire sprinkler protection are not available to kiosk locations. Heating, ventilating and fire protection systems will be that which is provided to common areas in the Shopping Center. (3) Unless already existing, Tenant is not provided with underground telephone lines and Tenant must make use of telephone remote should Tenant desire a telephone. All telephone work desired by Tenant shall be performed by Tenant at Tenant’s sole expense. (4) Tenant shall submit preliminary plans indicating its proposed concept, including proposed signage, size, finish materials and special equipment, for Landlord’s review and approval prior to submission of final plans. Pictures of existing units, if available, should be provided. Upon Landlord’s approval of Tenant's preliminary plans, Tenant shall submit final plans to Landlord for review and approval. (5) Tenant shall prepare its plans and perform all work to comply with all Laws, including insurance rating boards, and apply for and obtain all necessary permits. Landlord’s approval of Tenant's plans does not relieve Tenant of its obligation to complete its work in accordance with the terms of this Lease, nor does it relieve Tenant of the necessity of complying with all Laws. (6) Certificates of occupancy and waivers of lien from Tenant's contractor, all subcontractors and material men shall be filed with Landlord upon completion of the job. (7) Set up and tear down of the Kiosk must take place prior to the opening and after the closing of the Shopping Center, unless Landlord has agreed otherwise in writing. Tenant shall comply with such other reasonable rules and regulations pertaining to kiosk construction as Landlord may furnish Tenant. Cc. The Tenant shall at all times keep the kiosk in a good, attractive, and professional condition as set forth per the rules as set forth in the Lease. 12. Utilities. Landlord shall make available to Tenant at the Premises electrical current for use in Tenant's business and Landlord shall pay for said electrical service as set forth above provided that, in such case, Tenant shall have typical electricity usage of the Kiosk, and Tenant shall remain responsible for doing the necessary connection work with respect to bringing electricity into the Premises. Landlord shall not furnish any other utilities directly to the Premises but Tenant shall have the benefit of the heating, air conditioning and other utilities that may be furnished to the mall area in which the Premises are located. Landlord shall not be liable to Tenant for any damages should the furnishing of any utilities by Landlord, including the heating and air conditioning in the mall area, be interrupted and no such interruption shall be deemed an eviction or disturbance of Tenant's use or possession of the Premises or any part thereof nor shall any such interruption relieve Tenant from the performance of any of Tenant's covenants, conditions and agreements under this Lease. 13. Alterations. Tenant shall not make any alterations, additions or improvements to the Premises or the Kiosk without the prior written consent of Landlord and all alterations, additions, or INITIAL: (é [Ar DocuSign Envelope ID: 1016F4D1-DABC-48B8-AD9D-526B0B885CBB improvements made by either Landlord or Tenant upon the Premises, except movable equipment and trade fixtures which Tenant installs at its expense, shall become the property of Landlord and shall remain upon and be surrendered with the Premises at the expiration of the Term. The parties agree that the Kiosk is and shall remain the property of Landlord and shall not be removed by Tenant under any circumstances. Notwithstanding the foregoing, if Landlord shall direct Tenant to remove the Kiosk or any alterations, additions or improvements at the end of the Term, Tenant shall remove the items so designated by Landlord at the end of the Term and promptly repair any damage caused thereby. Also, if Tenant itself furnished and installed the Kiosk, the Kiosk shall remain Tenant’s property and Tenant may (or if Landlord directs, Tenant shall) remove the Kiosk at the end of the Term and promptly repair any damage caused thereby. 14. Maintenance and Use of Premises. Tenant shall at all times observe the following rules and regulations with respect to the Premises: (a) Tenant shall maintain the Premises in a clean, sanitary, attractive and safe condition and in good repair; (b) Tenant shall keep the Premises and the mall area adjacent to the Premises clean and free from rubbish and dirt; (c) Tenant shall not perform any act or carry on any practice which may injure or be a menace to the Premises or any portion of the Shopping Center or any person at the Shopping Center, or which constitutes a nuisance to persons at the Premises or the Shopping Center or which Landlord shall otherwise determine to be offensive, or which omits an odor discernable outside the Premises, or which tends to injure the reputation of the Shopping Center, or which may void any of Landlord’s insurance on the Shopping Center or increase the premium rate therefor; (d) Tenant shall store all trash and garbage at the location designated by Landlord and shall not burn any trash or garbage in or about the Premises or anywhere else in the Shopping Center; (e) Tenant shall not keep or display any merchandise in the mall area adjacent to the Premises or otherwise obstruct said area; (f) Tenant shall not overload the floor of the Premises; (g) Tenant shall at all times comply with all Laws pertaining to the Premises or the conduct of Tenant's business thereat; (h) Tenant shall not permit loudspeakers, televisions, phonographs, radios, flashing lights or other devices to be used in a manner so as to be heard or seen outside of the Premises; (i) Tenant shall perform all loading and unloading of goods only at such times and in such areas as is designated by Landlord for such purpose; (j) Tenant shall not distribute any handbills or other advertising material in the Shopping Center or on the automobiles parked in the parking lots serving the Shopping Center; (k) Tenant and its employees shall park their cars only in such portions of the parking lots serving the Shopping Center as Landlord shall designate to Tenant unless Landlord agrees in writing otherwise; (1) Tenant shall not permit food or beverage to be consumed at the Premises; and (m) Tenant shall not permit loitering at the Premises. Tenant shall comply with such other reasonable rules and regulations as Landlord may from time to time adopt with respect to the Shopping Center. Tenant (for itself and all others claiming through Tenant) hereby irrevocably waives and releases its rights to make repairs at Landlord’s expense under Sections 1941 and 1942 of the California Civil Code (as the same may be amended from time to time) and any successor statute and similar statute, law, and ordinance now or hereafter in effect. 15. Signage and Advertising. No sign, advertisement, display or notice shall be inscribed, painted or affixed on any part of the Premises, the Kiosk or Shopping Center, except as Landlord may approve in advance in writing. Landlord shall have the right to prohibit any sign, advertisement, display or notice of the Tenant wherever appearing which in the Landlord’s opinion tends to impair the reputation or appearance of the Shopping Center or is otherwise offensive or improper, and upon written notice from the Landlord, Tenant shall discontinue or remove such sign, advertisement, display or notice. Tenant shall not use the name of the Shopping Center for any purpose other than as the address of the business conducted by Tenant at the Premises. 16. Hours of Operation. Tenant shall be open for business at the Premises during the entire Term during all hours and on such days and evenings of the week as may be determined by Landlord to be in the interest of the Shopping Center as a whole. Tenant shall at all times maintain a fully stocked supply of inventory, use a sufficient number of adequately trained personnel for efficient service and shall otherwise diligently operate its business at the Premises so as to produce maximum gross sales. A vacation of Premises or cessation of operations by any other tenant in the Shopping Center shall not in any way release ai INITIAL: eT DocuSign Envelope ID: 1016F4D1-DABC-48B8-AD9D-526B0B885CBB Tenant from Tenant's obligations under this Lease. Tenant agrees that being open at the times and days aforesaid goes to the essence of the parties’ agreement hereunder and that Landlord’s remedies hereunder and at law on account of Tenant's violation thereof may not be adequate. Tenant therefor agrees that, with respect to any day during the Term that Tenant shall fail to be open for the hours provided for above, the Minimum Rent with respect to said day shall be increased to the sum of one hundred fifty percent (150%) of the applicable rate for the day in which Tenant so fails to be open as set forth herein provided that, in no event shall the Minimum Rent be increased by less than fifty dollars ($50.00) per day. The liquidated damages provided in the previous sentence shall not be in lieu of Landlord’s other remedies hereunder or at law, except damages, and acceptance by Landlord of such shall not be deemed an election of remedies or preclude Landlord from seeking any other remedy permitted Landlord on account thereof. 17. Access to Premises. Landlord reserves the right to enter upon the Premises, including the Kiosk, at all reasonable hours for the purpose of inspecting the same, or the use thereof by Tenant, or for making emergency repairs. The exercise by Landlord of any of its rights herein shall not be deemed an eviction or disturbance of Tenant’s use and possession of the Premises. 18. Insurance. Tenant shall maintain in full force and effect during the Term the following insurance: (i) public liability and property damage insurance with respect to injury or damage occurring at the Premises or arising out of Tenant's use of the Premises or otherwise arising out of any act or occurrence at the Premises, said insurance to be in an amount of at least Two Million Dollars ($2,000,000) combined single limit, (ii) all-risk property damage insurance insuring the Kiosk and its inventory, fixtures and other personal property at the Premises covering damage by fire or other casualty to such property, said insurance shall be in amounts not less than the full replacement cost of such property, (iii) Worker’s Compensation insurance as required by statute, and (iv) employer's liability insurance of at least $500,000 per occurrence. All the policies for the foregoing insurance shall name Landlord, Ethan Conrad Properties, and such other parties as Landlord may designate, as additional insured. Prior to the Commencement Date and at such times as the policies are to expire, Tenant shall furnish Landlord with certificates of insurance evidencing that such insurance is in effect or has been renewed, as the case may be. Tenant hereby waives all subrogation rights of its insurance carriers in favor of Landlord, its partners, officers, employees, and agents, and shall obtain from its insurer a waiver of subrogation in favor of Landlord, Ethan Conrad Properties (or such entity which is manager of the Shopping Center), and such other parties as Landlord has directed as additional insureds with respect to all such insurance. 19. Waiver of Claims and Indemnity. To the extent not prohibited by law, Tenant shall indemnify, defend and save harmless Landlord from and against any and all liability, claims, damages, costs and expenses, including without limitation, attorneys’ fees, resulting from or in connection with Tenant's use or occupancy of the Premises. It is understood that all persons and property brought, invited or permitted upon the Premises by Tenant shall be thereon at the sole risk of Tenant, and Tenant shall save Landlord harmless from any and all liability arising from or in connection therewith. To the extent not prohibited by law, Tenant waives all claims against Landlord for injury to persons, damage to property or to any other interests of Tenant sustained by Tenant or any person claiming through Tenant resulting from any occurrence in or upon the Premises or the Shopping Center including, without limitation, any interruption in any utility services or any alleged failure to provide adequate security services. For purposes of this Paragraph, the term Landlord shall mean and include Landlord and its and their partners, officers, directors, employees, and agents at the Shopping Center. 20. Assignment. Tenant shall not sell, assign, mortgage, pledge or in any manner transfer this Lease or any interest herein, nor sublet or license all or any part of the Premises, by operation of law or otherwise, without Landlord's prior written approval which approval Landlord may withhold in Landlord’s sole discretion. If Tenant is a corporation or partnership, a change in control of Tenant or of Tenant's parent (or of any entity effectively owning Tenant) shall be deemed an assignment hereunder. Notwithstanding any transfer, Tenant and/or Guarantor shail at all times remain directly and primarily responsible and liable for the payment of the Rent herein specified and for compliance with all other obligations under this Lease (and INITIAL: Ca —__ —__ DocuSign Envelope ID: 1016F4D1-DABC-48B8-AD9D-526B0B885CBB if after such transfer Tenant is deemed a surety, Tenant hereby waives all applicable surety defenses including, without limitation, those contained in Sections 2787 to 2855, inclusive, of the California Civil Code). 21. Liens. Tenant shall promptly pay for any work done or material furnished by or on behalf of Tenant in or about the Premises and shall not permit or suffer any lien to attach to the Premises or all or any part of the Shopping Center and Tenant shall have no authority or power, express or implied, to create or cause any lien, charge or encumbrance of any kind against the Premises or all or any part of the Shopping Center. If any lien shall at any time be filed against the Premises or against any part of the Shopping Center by reason of work, labor, services or materials alleged to have been performed or furnished by, for or to Tenant or to anyone holding the Premises through or under Tenant, Tenant shall forthwith cause the same to be discharged of record or bonded to the satisfaction of Landlord. If Tenant shall fail to cause such lien forthwith to be so discharged or bonded after being notified of the filing thereof, then, in addition to any other right or remedy of Landlord, Landlord may discharge the same by paying the amount claimed to be due, and the amount so paid by Landlord and all costs and expenses, including reasonable attorneys’ fees incurred by Landlord, in procuring the discharge of such lien, shall be due and payable by Tenant to Landlord as additional rent on the first day of the next following month.