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HomeMy WebLinkAboutD-2779— 2 �I ' , w L.� r I This page is part of your document - DO NOT DISCARD LV7 V7 uuol bb ♦� } � Recorded /Filed in Official Records Recorder's Office, Los Angeles County, California 08/05/10 AT 08:26AM FEES: TAXES: OTHER: Pages: 0016 60.00 0.00 0.00 PAID: IAII�IIIIIII�IIIII�IIIIVIIIVIIIVIII�YI�NIIIY�IIInVI�IIINVIIIIININNVII LEADSHEET . . . . . . . . . . . 00002763257 I�NNI�I!IVNINflI�I�I�N SEQ: 01 60.00 DAR meo��muiiiuiMail �( C opy) oi�iim - INII�IIV' INS' RVIIIIBnIIRIRIIVIYYVIIIIIIIYII�I - E 123753 RECORDING REQUESTED BY: CITY OF ARCADIA AND WHEN RECORDED MAIL TO: City Clerk City of Arcadia 240 West Huntington Dr. P.O. Box 60021 Arcadia, CA 91066 081al; 010 fit 2610108 166. COVENANT AND AGREEMENT TO MAINTAIN OFFSITE PARKING AND COMPLY WITH CITY OF ARCADIA PARKING REQUIREMENTS This Covenant and Agreement is entered into pursuant to Arcadia Municipal Code Section 9269.6, attached hereto as Exhibit "A" and incorporated herein by reference, in order to ensure that the use of the property located at 510 -512 East Live Oak Avenue, City of Arcadia, County of Los Angeles, State of California, as described below, meets applicable parking requirements established by the City of Arcadia. This Covenant and Agreement is also made with reference to that certain executed Lease Agreement, attached hereto as Exhibit `B" and incorporated herein by this reference ( "Lease "). Luc H. Ly and Grace S. Ly ( "Owners "), husband and wife and owners of that certain real property located at 600 -618 East Live Oak Avenue in the City of Arcadia as is more particularly described in Exhibit "C" attached hereto and incorporated herein by this reference ( "Burdened Property "), and Erwin Kochs and Anna Kochs, Trustees of the " Kochs Family Family Trust" ( "Lessees ") and owners of that certain real property located at 510 -512 East Live Oak Avenue in the City of Arcadia as is more particularly described in Exhibit "D" attached hereto and incorporated herein by this reference (` Benefitted Property ") (Owners and Lessees are collectively referred to as "Covenantors ") hereby declare that they are the Owner and Lessees, respectively, of the Burdened Property. FOR GOOD, VALUABLE AND ADEQUATE CONSIDERATION, receipt of which is hereby acknowledged, the Covenantors hereby agree and covenant with the City of Arcadia (hereinafter referred to as "Covenantee "), on behalf of and for the benefit of the of the Burdened Property and Benefitted Property, and on behalf of and for the benefit of the public streets and right's of way located within One Hundred (100) feet of Benefitted Property ( "Public Land "), as follows: 1. In consideration of Covenantee's grant of a Conditional Use Permit for the purpose of expanding the size of the restaurant located at 510 East Live Oak Avenue, and operating said property as a restaurant, and to provide assurances of adequate parking consistent with the standards set forth for "Restaurants /Bars" in Section 9269.5 of the Arcadia Municipal Code, and pursuant to Section 9269.6 of the Arcadia Municipal Code, Lessees hereby covenant and agree that the restaurant use on the Benefitted Property shall cease and terminate if, at any time, the then - current parking requirements established by the Arcadia Municipal Code or otherwise established by Covenantee are not satisfied by the Lease or by other agreement satisfactory to the Covenantee. This shall include any action pursuant to the Lease referred to herein as Exhibit "B" that causes parking provided by the Lease to diminish or be terminated so as to result in inadequate parking for the Benefitted Property pursuant to Arcadia Municipal Code requirements. 2. Each of the Covenantors agrees that each Covenantor shall notify Covenantee of the effective date of termination at least forty five (45) days prior to the termination of this Covenant and Agreement or termination of the Lease, whichever termination occurs first. Such notice shall be in writing and shall be personally delivered, sent by recognized overnight delivery service, or mailed by certified or registered mail, return receipt requested, postage prepaid, to the City of Arcadia at 240 West Huntington Drive, Post Office Box 60021, Arcadia, California 91066, Attn: Community Development Director. Covenantee shall not prohibit the termination of this Covenant and Agreement and shall provide either a re- conveyance or release of this Covenant and Agreement for such purposes, upon demand by either Covenantor, after which the provisions set forth in Section 6 hereafter shall be applicable. 3. The Lease which is written evidence of parking which meets the applicable parking requirements of Covenantee has been procured in final executed form and is attached hereto as Exhibit `B ". The Lease shall not satisfy the conditions of this Covenant and Agreement if the Lease will comprise or create a violation of applicable zoning regulations or any other statute, ordinance, or regulation. 4. This Covenant and Agreement is for the benefit of the Covenantee and its successors and assigns and shall inure to the benefit of all the Public Land and the heirs, successors and assigns of the owners of the Public Land, and this Covenant and Agreement shall run with the Benefitted Property and the Burdened Property and shall be binding upon the heirs, successors and assigns of the Covenantors, regardless of any merger of the leasehold and fee interests in the Benefitted Property or Burdened Property, unless and until the Covenant and Agreement is terminated as set forth in Section 2 hereinabove. 5. The City of Arcadia, in its capacity of Covenantee and in its capacity as the legal representative of the residents of Arcadia and the owners of the Public Land, is hereby authorized to enforce the provisions of this Covenant and Agreement. 6. This Covenant is also for the benefit of the Benefitted Property, and the restaurant operated on 510 -512 East Live Oak Avenue, by allowing the restaurant use on the Benefitted Property to comply with Covenantee's zoning requirements. Violation or termination of this Covenant and Agreement shall constitute proof that such zoning requirements are not complied with and any use of the Benefitted Property for operation of a restaurant shall thereupon not be a permitted use until compliance with Arcadia zoning and parking requirements is achieved. 7. If any section, subsection, sentence, clause, phrase or portion of this Covenant and Agreement is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, the portions of this Covenant and Agreement not declared invalid shall continue in full force and effect. 2 L( SIGNATURE PAGE TO COVENANT AND AGREEMENT IN WITNESS WHEREOF, Covenantors and Covenantee have executed this instrument on the date shown opposite their signatures. COVENANTORS OWNERS: Dated: 2 , 2010 uc H. L Dated: J r / , 2010 Grace S. Ly LESSEES: Dated: CS /� , 2010 Erwin Kochs, Trustee Dated: S' 2 7 /0 ,2010 Anna Kochs, Trustee COVENANTEE CITY OF ARCADIA Dated: �'w�+ e , 2010 Don Penman, City Manager ATTEST: f ity erk ' APPROVED AS TO FORM 6 Stephen P. Deitsch, City Attorney ONTARIO V LAMB\310085.4 EXHIBIT "A" Arcadia Municipal Code Section 9269.6 Required parking spaces shall be located either (a) on the same lot or sit, or (b) on a lot or site contiguous thereto or within one hundred (100) feet of the building or land use the parking spaces will serve, or (c) with respect to an adult business subject to Section 9279 et. seq. of the Arcadia Municipal Code within four hundred ninety -five (495) feet of the building that the parking spaces will serve. When required off - street parking spaces are provided on a separate lot from the building or land use, there shall be recorded in the office of the County Recorder against the lot on which such parking spaces are provided, a covenant in the form approved by the City Attorney that the owner of such lot will continue to maintain such parking spaces as long as the use in the building or the land use requiring such parking is maintained. M EXHIBIT "B" Executed Lease Agreement [Attached behind this page] CALIF 0 R I A V 4 �� ASSOC IAT'I:ON `,r OF REALTORS Date (For reference only): Septembe 21, 2005 C OMMERCIAL LEASE AGREEMENT (C.A.R. Form CL, Revised 10/01) i I. PROPERTY: Landlord rents to Tenant and Tenant z+rrsroar ( "Landlord ") and from Landlord, the real property and improvements described as: 600 _r. , i rvE AVE comprise approximately /o of the total sq footage of rentable space in th e e ntire ro ert . See exhibit ( "Premisesa which description of the Premises. P P Y for a further 2. TERM: The term begins on (date) October 1 2009 (Check A or B): ( "Commencement Date "), ❑ A. Lease: and shall terminate on (date) at ❑ AM ❑ PM. Any holding over after the term of this agreement expires, with Landlord's consent, shall create a month -to -month tenancy that either party may terminate as specified in paragraph 2B. Rent shall be at a rate equal to the rent for the immediately preceding month, payable in advance. All other terms and conditions of this agreement shall remain in full force and effect. M B. Month -to- month: and continues as a month- to}month tenancy. Either party may terminate the tenancy by giving written notice to the other at least 30 days prior to the intended termination date, subject to any applicable laws. Such notice may be given on any date. ❑ C. RENEWAL OR EXTENSION TERMS: See attached addendum 3. BASE RENT: A. Tenant agrees to pay Base Rent at the rate of (CHECK ONE ONLY:) ® (1) $ 200.00 per month, for the term of the agreement. ❑ ( $ per month, for the first 12 months of the agreement. Commencing with the 13th month, and upon expiration of each 12 months thereafter, rent shall be adjusted according to any increase in the U.S. Consumer Price Index of the Bureau of Labor Statistics of the Department of Labor for All Urban Consumers ( "CPI ") for (the city nearest the location of the Premises), based on the following formula: Base Rent will be multiplied by the most current CPI preceding the first calendar month during ;which the adjustment is to take effect, and divided by the most recent CPI preceding the Commencement Date. In no event shall aAy adjusted Base Rent be less than the Base Rent for the month immediately preceding the adjustment. If the CPI is no longer published, then the adjustment to Base Rent shall be based on an alternate index that most closely reflects the CPI. ❑ ( $ per month for the period commencing and ending and $ per month for the period commencing and ending and $ per month for the period commencing and ending ❑ (4) In accordance with the attached rent schedmle. ❑ (5) Other: B. Base Rent is payable in advance on the 1st or ( ❑ � .)day of each calendar month, and is delinquent on the next day. C. If the Commencement Date falls on any day other than the first day of the month, Base Rent for the first calendar month shall be prorated based on a 30-day period. If Tenant has paid one full month's Base Rent in advance of Commencement Date, Base Rent for the second calendar month shall be prorated based on a 30 -day period. 4. RENT: A. Definition: ( "Rent ") shall mean all monetary obligations of Tenant to Landlord under the terms of this agreement, B. Payment: Rent shall be paid to (Name) , except security deposit. (address) location specified by Landlord in writing to Tenant. or at any other C. Timing: Base Rent shall be paid as specified in paragraph 3. All other Rent shall be paid within 30 days after Tenant is billed by Landlord. S. EARLY POSSESSION: Tenant is entitled to possession of the Premises on If Tenant is in possession prior to the Commencement Date, during this time (1) Tenant is not obligated to pay Base Rent, and (ii) Tenant ❑ is ❑ is not obligated to pay Rent other than Base Renti Whether or not Tenant is obligated to pay Rent prior to Commencement Date, Tenant is obligated to comply with all other terms of this agreemennt. 6. SECURITY DEPOSIT: A. Tenant agrees to pay Landlord $ as a security deposit. Tenant agrees not to hold Broker responsible for its return. (IF CHECKED:) ❑ If Base Rent increases during t e term of this agreement, Tenant agrees to increase security deposit by the same proportion as the increase In Base Rent. B. All or any portion of the security deposit may be used, as reasonably necessary, to: (1) cure Tenant's default in payment of Rent, late charges, non - sufficient funds ( "NSF ") fees, or other sums due; (It) repair damage, excluding ordinary wear and tear, caused by Tenant or by a guest or licensee of Tenant; (iii) broom clean the Premises} if necessary, upon termination of tenancy; and (Iv) cover any other unfulfilled obligation of Tenant. SECURITY DEPOSIT SHALL NOT BE USED BY TENANT IN LIEU OF PAYMENT OF LAST MONTH'S RENT. If all or any portion of the security deposit is used during tenancy, Tenant agrees to reinstate the total security deposit within 5 days after written notice is delivered to Tenant. Within 30 days after Landlord receives possession of the Premises, Landlord shall: (1) furnish Tenant an itemized statement indicating the amount of any security deposit received and the Oasis for its disposition, and (ii) return any remaining portion of security deposit to Tenant. However, if the Landlord's only claim upon the security deposit is for unpaid Rent, then the remaining portion of the security deposit, after deduction of unpaid Rent, shall be returned within 14 days after the Landlord receives possession. C. No interest will be paid on security deposit, unless required by local ordinance. The copyright laws of the United States (Title 17 U.S. Code) forbid the unauthorized reproduction of this form, or any portion thOeof, by photocopy machine or any other means, including facsimile or conjputerized formats. Landlord's Initials Copyright © 1998 -2009, CALIFORNIA ASSOCIATION OF REALTORS®, INC. Tenant's Initials ( ( ) ALL RIGHTS RESERVED. EQUAL HOUSING Reviewed by Date OPPORTUNITY CL REVISED 10/01 (PAGE 1 of 6) COMMERCIAL LEASE AGREEMENT (CL PAGE 1 OF 6) Agent: Jim Lek Phone: (6 6) 285 - 8333 Fax: (626) 236 - 9200 Prepared using WINForms® software Broker: Ko Tai Realty 802 E Mission Rd, San!Gabriel , CA 91776 Premises: 600 E. LIVE OAK AVE. I WIA, CA' 91006• (PARKING LOT) t j Date September 21, 2009 7. PAYMENTS: A. Rent: From 1010112009 To Date Date PAYMENT TOTAL DUE RECEIVED $ 200.00 $ BALANCE DUE DUE DATE $ 200.00 10101109 S. Security Deposit .......................... $ $ $ C. Other: $ $ $ Category D. Other: $ $ $ Category E. Total: ............. $ 200.00 $ $ 200.00 8. PARKING: Tenant is entitled to 16 unreserved and reserved vehicle parking spaces. The right to parking ® is ❑ is not included in the Base Rent charged pursuant to paragraph 3. If not included in the Base Rent, the parking rental fee shall be an additional $ per month. Parking space(s) are to be used for parking operable motor vehicles, except for trailers, boats, campers, buses or trucks (other than pick -up trucks). Tenant shall park in assigned space(s) only. Parking space(s) are to be kept clean. Vehicles leaking oil, gas or other motor vehicle fluids shall not be parked in parking spaces or on the Premises. Mechanical work or storage of inoperable vehicles is not allowed in parking space(s) or elsewhere!on the Premises. No overnight parking is permitted. 9. ADDITIONAL STORAGE: Storage is permitted as follows: The right to additional storage space ❑ is ❑ is not included in the Base Rent charged pursuant to paragraph 3. If not included in Base Rent, storage space shall be an additional $ per month. Tenant shall store only personal property that Tenant owns, and shall not store property that is claimed by another, or in which another has any right, title, or interest. Tenant shall not store any improperly packaged food or perishable goods, flammable materials, explosives, or! other dangerous or hazardous material. Tenant shall pay for, and be responsible for, the clean -up of any contamination caused by Tenant's use of the storage area. 10. LATE CHARGE; INTEREST; NSF CHECKS: Tenant acknowledges that either late payment of Rent or issuance of a NSF check may cause Landlord to incur costs and expenses, the exact amount of which are extremely difficult and impractical to determine. These costs may include, but are not limited to, processing, enforcement and accounting expenses, and late charges imposed on Landlord. If any installment of Rent due from Tenant is not received by Landlord within 6 calendar days after date due, or if a check is returned NSF, Tenant shall pay to Landlord, respectively, $ 20.00 as late charge, plus 10% interbst per annum on the delinquent amount and $25.00 as a NSF fee, any of which shall be deemed additional Rent. Landlord and Tenant agree that these charges represent a fair and reasonable estimate of the costs Landlord may Incur by reason of Tenant's late or NSF payment. Any late charge, delinquent interest, or NSF fee due shall be paid with the current installment of Rent. Landlords acceptance of any late charge or NSF fee shall not constitute a waiver as to any default of Tenant. Landlord's right to collect a Late Charge or NSF fee shall not be deemed an extension of the diite Rent is due under paragraph 4, or prevent Landlord from exercising any other rights and remedies under this agreement, and as provided by law; 11. CONDITION OF PREMISES: Tenant has examined the Premises and acknowledges that Premise is clean and in operative condition, with the following exceptions: Items listed as exceptions shall be dealt with in the following manner: 12. ZONING AND LAND USE: Tenant accepts the Premises subject to all local, state and federal laws, regulations and ordinances ( "Laws "). Landlord makes no representation or warranty that Premises are now or in the future will be suitable for Tenant's use. Tenant has made its own investigation regarding all applicable Laws. 13. TENANT OPERATING EXPENSES: Tenant agrees to pay for all utilities and services directly billed to Tenant 14. PROPERTY OPERATING EXPENSES: A. Tenant agrees to pay its proportionate share of Landlord's estimated monthly property operating expenses, including but not limited to, common area maintenance, consolidated utility and service bills, insurance, and real estate taxes, based on the ratio of the square footage of the Premises to the total square footage of the rentable space in the entire property. OR B. ❑ (if checked) Paragraph 14 does not apply. 15. USE: The Premises are for the sole use as No other use is permitted without Landlord's prior written consent. If any use by Tenant causes an increase in the premium on Landlord's existing property insurance, Tenant shall pay for the increased cost. Tenant will comply with all Laws affecting its use of the Premises. 16. RULES /REGULATIONS: Tenant agrees to comply with all rules and regulations of Landlord (and, if applicable, Owner's Association) that are at any time posted on the Premises or delivered to Tenant. Tenant shall not, and shall ensure that guests and licensees of Tenant do not, disturb, annoy, endanger, or interfere with other tenants of the building or neighbors, or use the Premises for any unlawful purposes, including, but not limited to, using, manufacturing, selling, storing, or transporting Illicit drugs or other contraband, or violate any law or ordinance, or committing a waste or nuisance on or about the Premises. 17. MAINTENANCE: A. Tenant OR ❑ (If checked, Landlord) shall professionally maintain the Premises including heating, air conditioning, electrical, plumbing and water systems, if any, and keep glass, windows and doors in operable and safe condition. Unless Landlord is checked, if Tenant fails to maintain the Premises, Landlord may contract for or perform Such maintenance, and charge Tenant for Landlord's cost. B. Landlord OR❑ (If checked, Tenant) shall maintain the roof, foundation, exterior walls, common areas and Landlord's Initials ( ) ( ) Tenant's Initials ( �•r — ) ( ) Copyright C 1998 -2009, CALIFORNIA ASSOCIATION OF REALTORSO, INC. Reviewed by Date EQU HOUSING OPPORTUNITY CL REVISED 10/01 (PAGE 2 of 6) COMMERG LEASE AGREEMENT (CL PAGE 2 OF 6) FUSION 600 E. LIVE OAK AVE'. ARIA; CA, 91006, (PARKING LOT) (r ; Premises: ' Date September 21 2009 18. ALTERATIONS: Tenant shall not make any alterations in or about the Premises, including installation of trade fixtures and signs, without Landlord's prior written consent, which shall not be unreasonably! withheld. Any alterations to-the Premises shall be done according to Law and with required permits, Tenant shall give Landlord advance notice of the commencement date of any planned alteration, so that Landlord, at its option, may post a Notice of Non - Responsibility to prevent potential Iient against Landlord's interest in they Premises. Landlord may also require Tenant to provide Landlord with lien releases from any contractor performing work on the Premises. 19. GOVERNMENT IMPOSED ALTERATIONS: Any alterations required by Law as a result of Tenant's use shall be Tenant's responsibility. Landlord shall be responsible for any other alterations required b� Law. 20, ENTRY: Tenant shall make Premises available to Landlord or Landlord's agent for the purpose of entering to make inspections, necessary or agreed repairs, alterations, or improvements, or to supply necessary or agreed services, or to show Premises to prospective or actual purchasers, tenants, mortgagees, lenders, appraisers, or contractors. Landlord and Tenant agree that 24 hours notice (oral or written) shall be reasonable and sufficient notice. In an emergency, Landlord or Landlord's representative may enter Premises at any time without prior notice. 21. SIGNS: Tenant authorizes Landlord to place a FOR SALE sign on the Premises at any time, and a FOR LEASE sign on the Premises within the 90 (or ❑ ) day period preceding the termination of the agreement. 22. SUBLETTING /ASSIGNMENT: Tenant shall not sublet 6r encumber all or any part of Premises, or assign or transfer this agreement or any interest in it, without the prior written consent of Landlord, which shall not be unreasonably withheld. Unless such consent is obtained, any subletting, assignment, transfer, or encumbrance of the Premises, agreement, or tenancy, by voluntary act of Tenant, operation of law, or otherwise, shall be null and void, and, at the option of Landlord, terminate thins agreement. Any proposed sublessee, assignee, or transferee shall submit to Landlord an application and credit information for Landlord's appro %al, and, if approved, sign a separate written agreement with Landlord and Tenant. Landlord's consent to any one sublease, assignment, or transfer, shall not be construed as consent to any subsequent sublease, assignment, or transfer, and does not release Tenant of Tenant's obligation under this agreement. 23. POSSESSION: If Landlord is unable to deliver possession of Premises on Commencement Date, such date shall be extended to the date on which possession Is made available to Tenant. However, the. expiration date shall remain the same as specified in paragraph 2. If Landlord is unable to deliver possession within 60 (or❑ ) calendar days after the agreed Commencement Date, Tenant may terminate this agreement by giving written notice to Landlord, and shall be refunded all Rent and security deposit paid. 24. TENANT'S OBLIGATIONS UPON VACATING PREMI�ES: Upon termination of agreement, Tenant shall: (1) give Landlord all copies of all keys or opening devices to Premises, including any common areas; (ii) vacate Premises and surrender it to Landlord empty of all persons and personal property; (iii) vacate all parking and storage spaces; IN) deliver Premises to Landlord In the same condition as referenced in paragraph 11; (v) clean Premises; (vi) give written notice to Landlord of Tenant's forwarding address; and (vii) All improvements installed by Tenant, with or witho t Landlord's consent, become the property of Landlord upon termination. Landlord may nevertheless require Tenant to remove any such Improvement that did not exist at the time possession was made available to Tenant. 25. BREACH OF CONTRACT /EARLY TERMINATION: In event Tenant, prior to expiration of this agreement, breaches any obligation in this agreement, abandons the premises, or gives notice of tenant's inteht to terminate this tenancy prior to its expiration, in addition to any obligations established by paragraph 24, Tenant shall also be responsible for lost rent, rental commissions, advertising expenses, and painting costs necessary to ready Premises for re- rental. Landlord may also recover from tenant: (1) the worth, at the time of award, of the unpaid Rent that had been earned at the time of termination; (ii) the worth, at the time of award, of the; amount by which the unpaid Rent that would have been earned after expiration until the time of award exceeds the amount of such rental loss the Tee,'�ant proves could have been reasonably avoided; and (iii) 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 such rental loss that Tenant proves could be reasonably avoided. Landlord may elect to continue the tenancy in effect for so long as Landlord does not terminate Tenant's right to possession, by either written notice of termination of possession or by relenting the Premises to another who takes possession, and Landlord may enforce all Landlord's rights and remedies under this agreement, including the right to recover the Rent as it becomes due. 26. DAMAGE TO PREMISES: If, by no fault of Tenant, Piemises are totally or partially damaged or destroyed by fire, earthquake, accident or other casualty, Landlord shall have the right to restore the Premises by repair or rebuilding. If Landlord elects to repair or rebuild, and is able to complete such restoration within 90 days from the date of damag4, subject to the terms of this paragraph, this agreement shall remain in full force and effect. If Landlord is unable to restore the Premises within this time, or if Landlord elects not to restore, then either Landlord or Tenant may terminate this agreement by giving the other written notice. Rent shall! be abated as of the date of damage. The abated amount shall be the current monthly Base Rent prorated on a 30-day basis. If this agreement is not terminated, and the damage is not repaired, then Rent shall be reduced based on the extent to which the damage interferes with Tenant's reasonabl¢ use of Premises. If damage occurs as a result of an act of Tenant or Tenant's guests, only Landlord shall have the right of termination, and no reduction in Rent shall be made. 27. HAZARDOUS MATERIALS: Tenant shall not use, store#, generate, release or dispose of any hazardous material on the Premises or the property of which the Premises are part. However, Tenant is permitted to make use of such materials that are required to be used in the normal course of Tenant's business provided that Tenant complies with all applicable Laws related to the hazardous materials. Tenant is responsible for the cost of removal and remediation, or any clean -up of any contamination caused by Tenant. 28. CONDEMNATION: If all or part of the Premises is condemned for public use, either party may terminate this agreement as of the date possession is given to the condemner. All condemnation proceeds, e�clusive of those allocated by the condemner to Tenant's relocation costs and trade fixtures, belong to Landlord. 29. INSURANCE: Tenant's personal property, fixtures, equif}ment, inventory and vehicles are not insured by Landlord against loss or damage due to fire, theft, vandalism, rain, water, criminal or negligent acts 6f others, or any other cause. Tenant is to carry Tenant's own property insurance to protect Tenant from any such loss. In addition, Tenant shall cam liability insurance in an amount of not less than $ Tenant's liability insurance shall name Landlord and Landlord's agent as; additional insured. Tenant, upon Landlord's request, shall provide Landlord with a certificate of insurance establishing Tenant's compliance. Landlord shall maintain liability insurance insuring Landlord, but not Tenant, in an amount of at least $ , plus property insurance in an :amount sufficient to cover the replacement cost of the property. Tenant is advised to carry business interruption insurance in an amount at least su�flcient to cover Tenant's complete rental obligation to Landlord. Landlord is advised to obtain a policy of rental loss insurance. Both Landlord and Tenalnt release each other, and waive their respective rights to subrogation against each other, for loss or damage covered by insurance. Landlord's Initials (o`--' ) ( ) Tenant's Initials () ( ) Copyright ®1998 -2009, CALIFORNIA ASSOCIATION OF REALTORS ®, INC. CL REVISED 10/01 (PAGE 3 of 6) Reviewed by Date I EQUAL NMNG OPPORTUNITY COMMERCIAL LEASE AGREEMENT (CL PAGE 3 OF 6) FUSION Premises: 600 E. LIVE OAK AVE. Al. ;CA 91006 (PARKING LOT) Date Sertember 2I 2009 30. TENANCY STATEMENT (ESTOPPEL CERTIFICATE):i Tenant shall execute and return a tenancy statement (estoppel certificate), delivered to Tenant by Landlord or Landlord's agent, within 3 days after its receipt. The tenancy statement shall acknowledge that this agreement is unmodified and in full force, or In full force as modified, and state the modifications. Failure to comply with this requirement: (I) shall be deemed Tenant's acknowledgment that the tenancy statement is true and Forrect, and may be relied upon ;a prospective lender or purchaser; and (Ii) may be treated by Landlord as a material breach of this agreement. Tenant shall also prepare, execute, and deliver to Landlord any financial statement (which will be held in confidence) reasonably requested by a prospective lender or buyer. 31. LANDLORD'S TRANSFER: Tenant agrees that the transferee of Landlord's interest shall be substituted as Landlord under this agreement. Landlord will be released of any further obligation to Tenant regaraing -the security deposit, only if the security deposit is to Tenant upon such transfer, or If the security deposit is actually transferred to the transferee. For all other obligations under this agreement, Landlord is released of any further liability to Tenant, upon Landlord's transfer. 32. SUBORDINATION: This agreement shall be subordinsite to all existing liens and, at Landlord's option, the lien of any first deed of trust or first mortgage subsequently placed upon the real property of which the Premises are a part, and to any advances made on the security of the Premises, and to all renewals, modifications, consolidations, replacements, and extensions. However, as to the lien of any deed of trust or mortgage entered into after execution of this agreement, Tenant's right to quiet: possession of the Premises shall not be disturbed if Tenant is not in default and so long as Tenant pays the Rent and observes and performs all of the provisions of this agreement, unless this agreement is otherwise terminated pursuant to its terms. If any mortgagee, trustee, or ground lessor elect] to have this agreement placed in a security position prior to the lien of a mortgage, deed of trust, or ground lease, and gives written notice to Tenant:, this agreement shall be deemed prior to that mortgage, deed of trust, or ground lease, or the date of recording. 33. TENANT REPRESENTATIONS; CREDIT: Tenant warrants that all statements in Tenant's financial documents and rental application are accurate. Tenant authorizes Landlord and Broker(s) to obtain Tenant's credit report at time of application and periodically during tenancy in connection with approval, modification, or enforcement of this agreement. Landlord may cancel this agreement: (1) before occupancy begins, upon disapproval of the credit report(s); or (II) at any time, upon discovering thbt information In Tenant's application is false. A negative credit report reflecting on Tenant's record may be submitted to a credit reporting agency, if Tenant fails to pay Rent or comply with any other obligation under this agreement. 34. DISPUTE RESOLUTION: A. MEDIATION: Tenant and Landlord agree to mediate !any dispute or claim arising between them out of this agreement, or any resulting transaction, before resorting to arbitration or court action, subjecE to paragraph 34B(2) below. Paragraphs 34B(2) and (3) apply whether or not the arbitration provision is initialed. Mediation fees, if any, shall be Oivided equally among the parties involved. If for any dispute or claim to which this paragraph applies, any party commences an action without first! attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to re over attorney fees, even if they would otherwise be available to that party in any such action. THIS MEDIATION PROVISION APPLIES WHETHER OR NOT THE ARBITRATION PROVISION IS INITIALED. B. ARBITRATION OF DISPUTES: (1) Tenant and Landlord agree that any dispute or claim In Law or equity arising between them out of this agreement or any resulting transaction, which; Is not settled through mediation, shall be decided by neutral, binding arbitration, inctudtng and subject to paragraphs 34B(2) and 0) below. The arbitrator shall be a retired judge or justice, or an attorney with at least 5 years of real estate transactional law experience„ unless the parties mutually agree to a different arbitrator, who shall render an award in accordance with substantive California Law. In al) other respects, the arbitration shall be conducted in accordance with Part III, Title 9 of the California Code of Civil Procedure. Judgmen ' upon the award of the arbitrator(s) may be entered in any court having jurisdiction. The parties shall have the right to discovery in accordance with Code of Civil Procedure §1283.05. (2) EXCLUSIONS FROM MEDIATION AND ARBITRATION: The following matters -are excluded from Mediation and Arbitration hereunder: (1) a judicial or non - judicial foreclosure or other action or 6roceeding to enforce a deed of trust, mortgage, or installment land sale contract as defined in Civil Code §2985; (11) an unlawful detainer action; (Ill) the filing or enforcement of a mechanic's lien; (iv) any matter that is within the jurisdiction of a probate, small claims, or bankruptcy court; and (v) an action for bodily injury or wrongful death, or for latent or patent defects to which Code of Civil Procedure §337.1 or §337.15 applies. The filing/) of a court action to enable the recording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies, shall not constitute a violation of the mediation and arbitration provisions. (3) BROKERS: Tenant and Landlord agree to mediate and arbitrate disputes or claims involving either or both Brokers, provided either or both Brokers shall have agreed to such mediation or arbitration, prior to, or within a reasonable time after the dispute or claim is presented to Brokers. Any election by either or both Brokers to participate in mediation or arbitration shall not result in Brokers being deemed parties to the agreement. "NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN tHE'ARBITRATION OF DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR i JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY." "WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION." Landlord's Initials / Tenant's Initials 41,iKI / Landlord's Initials Tenant's Initials ( ) ( ) Copyright © 1998 -2009, CALIFORNIA ASSOCIATION OF REALTORS®, INC. Reviewed by Date rOUAL HOUSING OPPORTUNITY CL REVISED 10/01 (PAGE 4 of 6) 1 COMMER61AL LEASE AGREEMENT (CL PAGE 4 OF 6) FUSION Premises: Date September 21, 2009 35. JOINT AND INDIVIDUAL OBLIGATIONS: If there is more than one Tenant, each one shall be individually and completely responsible for the performance of all obligations of Tenant under this agre ment, jointly with every otb r Tenant, and individually, whether or not in possession. 36. NOTICE: Notices may be served by mail, facsimile, or courier at the following address or location, or at any other location subsequently designated: Landlord: Tenant' Notice is deemed effective upon the earliest of the fol (iii) 5 days after mailing notice to such location by first 37. WAIVER: The waiver of any breach shall not be constr 38. INDEMNIFICATION: Tenant shall indemnify, defend arising out of Tenant's use of the Premises. 39. OTHER TERMS AND CONDITIONS /SUPPLEMENTS: l: (1) personal receipt by either party or their agent; (ii) written acknowledgement of notice; or mail, postage pre -paid. as a continuing waiver of the same breach or a waiver of any subsequent breach. hold Landlord harmless from all claims, disputes, litigation, judgments and attorney fees The following ATTACHED supplements /exhibits lare incorporated in this agreement: ❑ Option Agreement (C.A.R. Form ON 40. ATTORNEY FEES: In any action or proceeding arlsingl out of this agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs from the non - prevail I ng Landlord or Tenant, except as provided in paragraph 34A. 41. ENTIRE CONTRACT: Time is of the essence. All pi constitutes the entire contract. It is intended as a final agreement or contemporaneous oral agreement. The pz terms, and that no extrinsic evidence whatsoever may b of this agreement that is held to be invalid shall not affe be binding upon, and inure to the benefit of, the heirs, a: 42. BROKERAGE: Landlord and Tenant shall each pay t Landlord has utilized the services of, or for any other finder, or other entity, other than as named in this ac inquiries, introductions, consultations, and negotiations harmless the other, and the Brokers specified herein, a inconsistent with the warranty and representation in this 43. AGENCY CONFIRMATION: The following agency relati Listing Agent: (check one): ❑ the Landlord exclusively; or ❑ both the Tenant and t Selling Agent: (check one): ❑ the Tenant exclusively; or ❑ the Landl Real Estate Brokers are not parties to the agreement be Copyright 0 1998 -2009, CALIFORNIA ASSOCIATION OF CL REVISED 10/01 (PAGE 5 of 6) 600 E. LIVE OAK AVE. A I.DIA,1 CA 91006 , (PARKING LOT) or agreements between Landlord and Tenant are incorporated in this agreement, which expression of the parties' agreement, and may not be contradicted by evidence of any prior ties further intend that this agreement constitutes the complete and exclusive statement of its introduced in any judicial or other proceeding, if any, involving this agreement. Any provision :t the validity or enforceability of any other provision in this agreement. This agreement shall signees and successors to the parties. Broker(s) the fee agreed to, if any, in a separate written agreement. Neither Tenant not mson owes compensation to, a licensed real estate broker (individual or corporate), agent, eement, in connection with any act relating to the Premises, including, but not limited to, leading to this agreement. Tenant and Landlord each agree to indemnify, defend and hold A their agents, from and against any costs, expenses, or liability for compensation claimed 3aragraph 42. inships are hereby confirmed for this transaction: (Print Firm Name) is the agent of lord. (Print Firm Name) (if not same as Listing Agent) is the agent of exclusively; or ❑ both the Tenant and Landlord. en Tenant and Landlord. Landlord's Initials V Tenant's Initials () ( ) .TORSO, INC. Reviewed by Date LEASE AGREEMENT (CL PAGE 6 OF 6) FUSION 121 EOUM NOUSMC OPPORTUNITY IL 600 E. LIVE OAK AVE. ARCADIA,'CA 91006 (PARKING LOT) Date September 21, 2009 Premises: Landlord and Tenant acknowledge and agree th l or at Brokers: (1) do not guarantee the condition of the Premises; (ii) cannot verify representations made by others; (iii) will hot verify zoning and land -use restrictions; (iv) cannot provide lega tax advice; (v) will not provide other advice or information that exceeds the knowledge, education or experience required to obtain a real estate license. Furthermore, if Brokers are not also acting as Landlord in this agreement, Brokers: (vi) do not length or other decide what ncy. Landlord and agree that they will seeklegall, tax, d decide i Insurance, and other desired terms of tena assistance from ncy. appropriate professionals. Tenant Date September 2I 2009 CAFE FUSION (Print Name) City ARCADIA State CA Zip 91754 Address 510 LIVE OAK AVE Date Tenant (Print Name) City State Zip Address Date (4 ?6'r or agent with authority to enter into this agreement) State CA Zip 91006 Address 600E LIVE OAK AVE,(J City ARCADIA Date Landlord (owner or agent with authority to enter into this agreement) State Zip Cit — Address Y Agency relationships are confirmed as above. Real estate brokers who are not also Landlord in this agreement are not a party to the agreement between Landlord and Tenant. Real Estate Broker (Leasing Firm) By (Agent) Address Telephone DRE Lic. # Date State Zip DRE Lic. # Real Estate Broker (Listing Firm) By (Agent) DRE Lic. # Date Address City State Zip i Telephone Fax i E -mail i TY OR- THIS FORM HAS ANY PROVISION ED Y ANY SPECIFIC ITRANSACITIONNA OF REAL E BROfCER THE PERSON TO ON REAL E ADEQUACY O TRANSACTIONS. IF YOU DESIRE LEGAL OR TAX ADVICE, CONSULT AN APPROPRIATE PROFESSIONAL. This form is available for use by the entire real estate industry. It iA not intended to identify the user as a REALTOR& REALTOR® is a registered collective membership mark which may be used only by members of the NATIONAL ASSOCIATON OF REALTORS® who subscribe to its Code of Ethics. U Published and Distributed by: f2l REAL ESTATE BUSINESS SERVICES, INC. a subsidiary of the California Association of REALTORS® Date OPPO TUNI , o 525 South Virgil Avenue, Los Angeles, Califomia 90020 Reviewed by CL REVISED 101011 (PAGE 6 OF 6) COMMERCIAL LEASE AGREEMENT (CL PAGE 6 OF 6) FUSION Fax DRE Lic. # City E -mail EXHIBIT "C" Legal Description of 600 -618 East Live Oak Avenue LOTS 3, 4, 5 AND 6 OF TRACT NO. 14233, IN THE CITY OF ARCADIA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP REPORDED IN BOOK 332, PAGES 29 AND 30 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY r EXHIBIT "D" Legal Description of 510 -512 East Live Oak Avenue LOT 1 OF TRACT NO 15233, IN THE CITY OF ARCADIA, AS PER MAP RECORDED IN BOOK 332 PAGE 29 AND 30 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. 7 CALIFORNIA ALL - PURPOSE ACKNOWLEDG State of California County of G C> _-5 On I - �2 5!� - /U before me, ! /iG4 /E V /a�F, A) 7-A4 AA e_1 Q Date Here Insert#NaFne and Title of the Office personally appeared E,eC-v ------- 0 0 - - 0 0 LIE J. TONE CMMIMNo� 111i0li16' Los • am" � 1 4 WILLIE J. TUNE Commission # 1869685 Notary Public - California Los Angeles County Comm. Ex Tres Au 16, 2012 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to UV the person(s) whose name(s)yd /are subscribed to the within instrument and acknowledged to me that *efaM /they executed the same in 44ie/�/their authorized capacity(ies), and that by Ws4ki heir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my h and official seal. Signature Signature of ary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached D ocument Title or Type of Document: O�iBit�^1�c7T `��c�w� e�.c�? — �i /E.«i G-- Document Date: '- __j y – / Number of Pages: Signer(s) Other Than Named Above: e) Aj L,; Capacity(ies) C by Signer(s) Signer's Name: 4 4,p u 4 Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact • ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: /� �oCN > + dividual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: OF SIGNER of 0 02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313 -2402 • www.NationalNotaryorg Item #5907 Reorder: Call Toll -Free 1- 800 - 876 -6827 4 �• �• �LtrJ State of California County of JA N n% t' N J On .af- - before me, Date \ Here er Nam iTle of the Officer personally appeared � kAo_ \ - 1�►x( \ 0, fir • _ e°r!NNce + S4 AN, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ii�/are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his�h r /their authorized capacity(ies), and that by his /her /their signature(s) on the 'MA SIMONIAN instrument the person(s), or the entity upon behalf of Comma• . * 1736031 which the person(s) acted, executed the instrument. Notary Pubac . COWOMla Los An9eN4 County I certify under PENALTY OF PERJURY under the laws r B r• M 9 11 of the State of California that the foregoing paragraph is true and correct. WITNESS my; nd and officia s al. Place Notary Seal Above Signature Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: r. �r Document Date: 1(N Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s): _ ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER 02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313 -2402 • www.NationaiNotary.org Item #5907 Reorder: Call Toll -Free 1 -800- 876 -6827