HomeMy WebLinkAbout04-0978BIAGIO IANNUZZI, IN THE COURT OF COMMON PLEAS OF
KIMBERLY IANNUZZI, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. NO. 2004- 91 CIVIL TERM
XING JU DONG
CIVIL ACTION-LAW
Defendant
NOTICE
You have been sued in court. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this complaint
and notice are served, by entering a written appearance personally or by an attorney
and filing in writing with the court, your defenses or objections to the claims set forth
against you. You are warned that if you fail to do so, the case may proceed without you
and a judgment may be entered against you by the court without further notice for any
money claimed in the complaint or for any other claim or relief requested by the plaintiff.
You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN
GET LEGAL HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
(717) 249-3166
....... ?I Gt4VI I My a [cub.
INTENT TO LEASE
The undersigned parties agree that as of the date of execution of this document
that they intend to enter into a lease agreement according to the terms set forth in the
attached Commercial Lease. This is conditioned upon the completion of the building
project and the issuance of appropropriate occupancy permits by the state and local
authorities.
This agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective heirs, legal representatives, successors and assigns.
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EXECUTED BY Landlord this day of?%?`?- , 2002.
Biagi lauz'
Ki berly 1 4 uzzi
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EXECUTED BY Tenant this day of cz U t t , 2002.
Xing Ju Dong
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COMMERCIAL LEASE
THIS LEASE entered into this day of , 2002, by and
between Biagio and Kimberly lanuzzi of 920 Armstrong Road, Carlisle, Cumberland
County, PA (Landlord) and Xing Ju Dong of 266 West Ridge Street, Carlisle
Pennsylvania, trading and doing business as Greater Wall (Tenant).
WITNESSETH: Landlord hereby leases to Tenant and Tenant leases
from Landlord, for the term and upon the terms and conditions hereinafter set forth, the
premises described below, together with the building and other improvements
constructed thereon as hereinafter provided, and together with the right to use all
adjoining parking areas, driveways, sidewalks and means of ingress and egress.
SAID lease shall contain the following terms, conditions and restrictions:
1. SHOPPING CENTER. The leased premises shall include a portion of
the strip mall building (Shopping Center), amounting to 1500 square feet, currently
planned for construction and located on Cavalry Road, Carlisle, Pennsylvania. The
Tenant shall have the exclusive right to operate a Chinese restaurant at the Shopping
Center.
2. TERM. This lease shall extend for a term of five (5) years. Tenant, at
the end of said term shall have the option to extend the lease term for an additional five
(5) year extension, followed by a second five year extension, each of which shall be
exercised by written notice thereof delivered to Landlord, no later than one hundred
eighty (180) days prior to the termination of the preceding lease term. At the
completion of the constuction of the unit by the Landlord, to include demising walls,
vanilla box with 200 amperes of electrical service (3 phase power), 5 ton rooftop HVAC
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unit with duct work, dropped ceiling, one ADA compliant rest room and connection to
the public sewer and water services, the Tenant shall have Sixty (60) days of
occupancy without rental being charged in order to complete the installation of Tenant's
restaurant.
3. RENTAL. The rental for the initial five (5) year term hereof shall be
Eighty-Four Thousand Dollars and 00/100 ($84,000.00) Dollars, payable in monthly
installments of One Thousand Four Hundred and 00/100 ($1,400.00) Dollars, first
payment due on or before the the occupancy date, with the sixty days of free
occupancy occuring subsequent to the payment, and payments due thereafter on the
monthly anniversary of occupancy date. The rental for the subsequent five (5) year
term hereof shall be Ninety-Six Thousand Dollars and 00/100 ($96,000.00) Dollars,
payable in monthly installments of One Thousand Six Hundred 00/100 ($1,600.00)
Dollars, first payment due on or before the commencement date and payments due
thereafter on the monthly anniversary of such commencement date. The rental for the
second subsequent five (5) year term hereof shall be One Hundred-Eight Thousand
Dollars and 00/100 ($108,000.00) Dollars, payable in monthly installments of One
Thousand Six Hundred 00/100 ($1,800.00) Dollars, first payment due on or before the
commencement date and payments due thereafter on the monthly anniversary of such
commencement date. All other terms and conditions of this lease applicable to the
original term of this lease shall apply to any renewal hereof.
4. USE. The premises shall be used for the conduct of a restaurant
business. With the written consent of Landlord, which shall not be unreasonably
withheld, the premises may be used for any other lawful purpose not in conflict with
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other business' operating in the strip mall, municipal zoning regulations or which will
make void or voidable any insurance on the leased premises.
5. PREMISES.
(a) Leased Premises. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord, Fifteen Hundred Square Feet (1,500) located in
Shopping Center ("Shopping Center"), which is located at Cavalry
Road, Carlisle, Pennsylvania and is more fully described on the site plan attached
hereto as Exhibit A and made a part hereof. The Tenant's area is identified in the floor
plan attached hereto as Exhibit B.
(b) Shopping Center. Landlord and Tenant acknowledge that the
gross leasable area in the Shopping Center is Square Feet ("Gross
Leasable Area" or "GLA"). The GLA shall be used hereinafter for purposes of
computing Tenant's Proportionate Share (as defined below) of certain expenses
payable to Landlord as Additional Rent (as defined below). Landlord reserves the right
to modify the GLA of the Shopping Center from time to time during the Lease Term as a
result of construction of new improvements, the demolition of existing improvements, or
inclusion of improvements not within the current boundaries of the Shopping Center.
(c) Tenant's Proportionate Share. Tenant's Proportionate Share of
certain expenses hereinafter made payable to Landlord's as Additional Rent (as defined
in Section 5 (d) hereof) is based upon the ratio of the sum of the total area of floor
space in the Tenant's Leased Premises to the GLA of the Shopping Center. Tenant's
Proportionate Share shall be modified during the Lease Term in the event that the GLA
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of the Shopping center is modified as described in paragraph (b) above. Tenant's
Proportionate Share is currently %.
(d) Additional Rent.
(i) General. Whenever it is provided by the terms of this Lease
that Tenant is required to make any payment to Landlord other than of Annual Rent or
Monthly Rent, such payment shall be deemed to be additional rent ("Additional Rent").
Unless otherwise expressly specified herein, Additional Rent shall be paid by Tenant
with the installment of Basic Monthly Rent thereafter falling due. Additional Rent shall
include, but not be limited to:
(ii) Sewer and Water Costs and Real Property Taxes. Tenant
agrees to pay to Landlord throughout the Lease Term, as Additional Rent, its
Proportionate Share of all real property taxes, assessments, and levies assessed
against the Shopping Center collectively, as well as the sewer and water assessments
that are not separately metered to Tenant's portion of the premises.
(iii) Common Area Costs. Additional Rent shall include any
monies due Landlord from Tenant resulting from costs and expenses incurred by
Landlord in operating, maintaining repairing and replacing the Common Areas of the
Shopping Center, including but not limited to, snow removal and electricity for lighting of
the common areas.
(iv) Insurance. Tenant agrees to pay to the Landlord throughout
the term of this lease, as additional rent, its proportionate share of all premiums for
insurance, if any, maintained by Landlord, including without limitation: liability insurance
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for bodily injury, death and property damage; "All Risk" casualty insurance on the
Shopping Center (including the Common Areas) at least equal to the current
replacement cost of the property; sprinkler coverage; workmen's compensation; and
loss of rent insurance for up to a twelve (12) month period. Tenants proportionate
share of Insurance shall be determined by multiplying the total insurance costs by the
Tenant's Proportionate Share.
(v) Landlord's Enforcement Costs. Additional Rent shall include
any and all reasonable expenses incurred by Landlord, including attorneys' fees in the
amount of twenty-five percent (25%) of the amount due, for the collection of monies due
from Tenant and the enforcement of Tenant's obligations under the provisions of this
Lease. In the event Minimum Annual Rent, Percentage Rent (if applicable) or
Additional Rent is not paid within fifteen (15) days of its due date, Landlord, at its sole
option, may assess a late charge equal to five percent (5%) of the amount due, or One
Hundred Dollars ($100.00), whichever is greater, as liquidated damages for the
additional administrative charges incurred by Landlord as a result of such late payment.
6. UTILITIES. Tenant shall arrange for and pay all utility charges including but
not limited to heat, air conditioning, light, sewer and water.
7. INSURANCE. Tenant shall, at all times during the term of this lease and any
extensions hereof, purchase and maintain Public Liability Insurance, including bodily
injury and property damage coverage of not less than $500,000.00 per occurrence.
Landlord shall be included as an additional insured, as it's interest may
appear, on all such insurance coverages. Orrstown Bank shall be included as
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mortgagee on the fire and extended coverage.
Proof of all insurances as required hereunder shall be delivered to
Landlord and Orrstown Bank as requested by either from time to time.
8. SIGNS. Tenant shall have the right to place such signs as are usual
and incidental to Tenant's business. Provided, however, such external signs must
conform with all applicable zoning or sign regulations of the local municipality.
9. MAINTENANCE. Landlord agrees to be responsible for all exterior
maintenance of the building and surface of the parking areas, sidewalks and driveways,
as well as the structural soundness of the building, and all underground gas, water and
sewer pipes. Tenant shall be responsible for all interior maintenance and shall return
the premises to Landlord at the expiration of the term hereof in the same condition as at
the commencement of the lease term, ordinary wear and tear alone excepted. Tenant
shall be responsible for all repairs and replacement, as necessary for all mechanical
elements including heating, air conditioning, lighting and plumbing. All repairs and
replacements shall, upon termination of the lease, become the sole property of Sellers.
10. ALTERATIONS AND TRADE AND OTHER FIXTURES. Tenant shall
not make any alterations involving structural changes without securing Landlord's
written consent. Tenant may install or cause to be installed such equipment and trade
and other fixtures as are reasonable, necessary for the operation of its business. Such
equipment and trade fixtures shall remain personal property, and title thereto shall
continue in the owner thereof, regardless of the manner in which same may be
attached or affixed to the demised premises. Approved structural changes shall
become the property of Landlord upon expiration or termination of this lease. Tenant
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shall repair any damage to the leased premises by the installation or removal of such
alterations, equipment and fixtures.
11. CASUALTY DAMAGE. If the demised premises shall be partially
damaged by fire or other cause without the fault or neglect of Tenant, Tenant's
servants, employees, agents, customers in the store, the damages shall be repaired by
and at the expense of Landlord and the base rent until such repairs shall be made shall
be apportioned according to the part of the demised premises which is usable by
Tenant. But if such partial damage is due to the fault or neglect of Tenant, Tenant's
servants, employees, agents, customers in the store, the damages shall be repaired by
Landlord but there shall be no apportionment or abatement of rent. No penalty shall
accrue for reasonable delay which may arise by reason of adjustment of insurance on
the part of Landlord and/or Tenant, or any other cause beyond Landlord's control.
If the demised premises or the building of which they are a part are so
damaged that Landlord shall decide to demolish it and/or rebuild it, Landlord may,
within ninety (90) days after such fire or other cause, give Tenant a notice in writing of
such decision, and thereupon the term of this lease shall expire by lapse of time upon
the third day after such notice is given, and Tenant shall vacate the demised premises
and surrender the same to Landlord.
This lease shall not be deemed terminated by reason of total or partial
destruction except as herein provided and Tenant hereby expressly waives any
statutory provisions concerning such rights, if any.
12. COMPLIANCE WITH LAWS. Tenant will promptly comply with all
applicable and valid laws, ordinances and regulations of Federal, State, County,
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Municipal or other lawful authority pertaining to the use and occupancy of the leased
premises.
13. ASSIGNMENT AND SUBLETTING. Tenant shall not have the right
to assign or sublease the whole or any part of the demised premises without the prior
written consent of Landlord, which consent shall not be unreasonably withheld.
14. BANKRUPTCY. Should Tenant make an assignment for benefit of
creditors, or be adjudicated bankrupt, such action shall constitute a breach of this lease
for which Landlord, at its opinion, may terminate all rights of Tenant or its successors in
interest under this lease.
15. EMINENT DOMAIN. If all of the leased premises and common areas
is taken under the power of eminent domain or conveyed under threat of condemnation
proceedings, or if only a part of such premises or common areas is so taken or
conveyed and Tenant shall determine that the remainder is inadequate or
unsatisfactory for its purposes, which determination shall not be arbitrarily or
capriciously made, then, in either event, this lease shall terminate effective as of the
date Tenant is required to give up the right to occupy or use any part of the leased
premises or common areas. The termination of this lease as above provided shall not
operate to deprive Tenant of the right to make claim against the condemning authority
for any damages suffered by Tenant, but Tenant shall have no right to make any claim
against Landlord because of such termination. If this lease is not terminated as above
provided, Landlord and Tenant shall agree upon an equitable reduction of the rental. If
the parties fail to agree upon such reduction within 60 days from the date of the final
award or payment for the part of the leased premises so taken or conveyed, Landlord
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and Tenant shall each choose one arbitrator and the two arbitrators so chosen shall
choose a third arbitrator. The decision of any two of the arbitrators as to the rental
reduction, if any, shall be binding on Tenant and Landlord and any expense of the
arbitration shall be divided equally between Tenant and Landlord.
17. ATTORNEY'S FEES. If suit is brought by Landlord to enforce any covenant
of this lease or for the breach of any covenant or condition herein contained, the parties
hereto agree that Tenant shall pay to the Landlord a reasonable attorney's fee, which
the parties agree shall be 25% of any money judgment or as determined by the Court if
remedies and Court Orders direct other actions, and court costs.
17. DEFAULT.
a) In the event of any of the following occurrences of "enforceable
default", Landlord shall be entitled to pursue one or more of the remedies set forth in
Paragraph 17b hereof:
1. Non-payment of rent for a period of ten (10) days following the
due date, provided Landlord shall have given Tenant written notice of said non-payment
and an additional fifteen (15) days opportunity to cure said default in payment.
2. Breach of any of the other covenants of this lease provided that
Landlord shall have given Tenant written notice of such breach and a period of thirty
(30) days within which to cure same.
3. The filing of a petition in bankruptcy, whether voluntary or
involuntary, against Tenant or Tenant's adjudication as bankrupt or insolvent in any
court.
4. The appointment of a receiver or trustee in bankruptcy for
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Tenant.
5. The making of any assignment by Tenant for the benefit of
creditors.
b) Landlord's remedies in the event of an "enforceable default" shall
be as follows:
1. Tenant hereby empowers any Prothonotary or Attorney of
any Court of Record to appear for Tenant in any and all actions which may be
brought to recover the rent due for the remainder of the term; and/or to sign for
Tenant an agreement for entering in any competent court an Amicable Action or
Actions for the recovery of such rent, and in said suits or in said Amicable Action
or Actions to Confess Judgment against Tenant for the rent due, and for the rent
for the remainder of the term, and for interest and costs, together with reasonable
attorney's fees; and Tenant hereby expressly waives and releases all errors and
defects in entering such judgment and further waives and releases all relief from
any and all appraisement, stay or exemption laws, now in force or hereafter to be
passed, and also waives the right of inquisition on any real estate that may be
levied upon to collect such rental.
2. Any Attorney of any Court of Record of the County of
Cumberland may, at the request of Landlord, and, as the agent or the attorney of
Tenant, sign an agreement for entry in a competent court an Amicable Action of
Ejectment and confess Judgment in Ejectment thereon for the said premises to
any term, past or present, against Tenant, and all persons claiming under Tenant,
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without stay of execution, or appeal, and, for so doing, this shall be a sufficient
Warrant; and, thereupon, a Writ of Possession or such other writ as may then be
appropriate may immediately issue on said Judgment, all errors and defects in
entering such Action and Judgment, or in the issuing of such Writ, or in any
proceeding thereon, or concerning the same, being hereby expressly waived by
Tenant, and by any person or persons whatsoever claiming through, by or under
Tenant, and a copy of this Lease, with any modifications thereof, being filed in the
said Action, it shall not be necessary to file the original as a Warrant of Attorney,
any law or Rule of Court to the contrary notwithstanding.
3. At the option of Landlord, this Lease shall determine, and
become null and void, and Landlord may re-enter upon, and repossess, the
herein demised premises.
c) The exercise of any remedy or remedies provided herein, by
Landlord, shall not preclude Landlord's exercising, concurrently or successively,
one or more other remedies provided herein, or authorized by law.
18. LANDLORD'S COVENANTS. Landlord covenants that he has good
and marketable title to the demised premises in fee simple absolute and that the same
is subject to no leases, tenancies, agreements, encumbrances, liens, restrictions or
defects in title affecting the demised premises or the rights granted Tenant in this lease;
that there are no restrictive covenants, zoning or other ordinances or regulations
applicable to the demised premises which will prevent Tenant from conducting its usual
business.
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19. QUIET ENJOYMENT. Tenant upon paying the rent and performing
the covenants and agreements of this lease shall quietly have, hold and enjoy the
demised premises and all rights granted Tenant in this lease during the term thereof
and extensions thereto, if any.
20. SUBORDINATION. Tenant hereby agrees that its leasehold interest
hereunder is subordinate to any mortgages now on, or hereafter to be placed on, the
premises leased hereunder; provided, as a condition precedent to such subordination,
each such mortgage shall expressly covenant or each such mortgage shall expressly
provide that so long as the Tenant is not in default under said Lease Agreement, the
Tenant's quiet possession of the portion of the premises leased hereunder shall remain
undisturbed, on the terms and conditions stated herein, whether or not the mortgage is
in default and notwithstanding any foreclosure or other action brought by the holder of
the mortgage in connection therewith.
This Subordination Agreement shall be self-operative and no further
instrument or certificate of subordination shall be required from Tenant.
21. NOTICES. Any notices required or permitted hereunder shall be in
writing and delivered either in person to the other party or the other party's authorized
agent, or by United States Certified Mail, Return Receipt Requested, postage fully
prepaid, to the addresses set forth hereinafter, or to such other address as either party
may designate in writing and deliver as herein provided.
Landlord: 920 Armstrong Road
Carlisle, PA 17013
Tenant: 266 West Ridge Street
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Carlisle, PA 17013
22. RECORDING. This lease agreement shall not be filed for public
record by any parry hereto.
23. COMPLETE AGREEMENT. This lease contains a complete
expression of the agreement between the parties and there are no promises,
representations or inducements except such as are herein provided.
24. NOTICE OF VIOLATIONS. Landlord represents and warrants that is
has received no notices that the premises are in violations of any laws, ordinances,
and/or regulations relating to the structure thereof and the use of the premises for retail
sales or establishment, or of any violations of building codes or other laws, ordinances
and/or regulations.
This lease agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, legal representatives, successors and assigns.
EXECUTED BY Landlord this _? -day of 2002.
Biagio nuzzi
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Ki berly I? uu
EXECUTED BY Tenant this<? 74-day of 2002.
Xing Ju Dong
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SHERIFF'S RETURN - REGULAR
CASE NO: 2004-00978 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
IANNUZZI BIAGIO ET AL
VS
DONG XING JU
JASON VIORAL
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
DONG XING JU
the
DEFENDANT , at 2001:00 HOURS, on the 10th day of March 2004
at THE GREAT WALL 1225 RITNER HIGHWAY
CARLISLE, PA 17013 by handing to
WEI DONG, SON
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 3.45
Affidavit .00
Surcharge 10.00
.00
31.45
Sworn and Subscribed to before
me this /5"- day of
?LL?U7l7?? A.D.
rothonotary
So Answers:
R. Thomas Kline
03/11/2004
OBRIEN BARIC SCHERER
By:
D Ity Sheriff
Curtis R. Long
Prothonotary
office of the Protbonotarp
Cumberlanb Countp
Renee K. Simpson
Deputy Prothonotary
John E. Slike
Solicitor
OY 9 78 CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 5TH DAY OF NOVEMBER 2007 AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA
R C P 230.2.
BY THE COURT,
CURTIS R. LONG
PROTHONOTARY
One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573