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Case Number: CACE-15-016079 Division: 14
Filing # 31734228 E-Filed 09/04/2015 01:43:51 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
CASE NO.:
IVC CORAL PALM, LLC,
a Delaware Limited Liability Company,
Plaintiff,
v.
ROSEDALE RESTAURANT OF
CORAL SPRINGS, LLC, a Florida
Limited Liability Company, d/b/a
ROSEDALE BRICK OVEN PIZZERIA;
JOSEPH ARATO, Individually;
KARYN ARATO, Individually;
JOSEPH GONNELLY, Individually;
and JOAN GONNELLY, Individually,
Defendants.
/
COMPLAINT FOR DAMAGES
Plaintiff, IWC CORAL PALM, LLC, a Delaware Limited Liability Company, sues
Defendants, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, a Florida Limited
Liability Company, d/b/a ROSEDALE BRICK OVEN PIZZERIA; JOSEPH ARATO,
Individually (‘GUARANTOR’); KARYN ARATO, Individually (‘GUARANTOR’); JOSEPH
GONNELLY, Individually (“GUARANTOR”); and JOAN GONNELLY, Individually
(‘GUARANTOR’), and alleges:
COUNT | — BREACH OF CONTRACT
ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC
1. This is an action for damages based upon breach of contract against the
Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, a Florida Limited
Sotowsky & ALLEN, P.L.
915 MIAMI CENTER - 201 S. BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 TEL (305) 371-2223
** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 9/4/2015 1:43:50 PM.****CASE NO.:
Liability Company, d/b/a ROSEDALE BRICK OVEN PIZZERIA (“ROSEDALE
RESTAURANT OF CORAL SPRINGS, LLC’), which exceeds $15,000.00 exclusive of
interest, costs and attorneys’ fees, and which is within the jurisdiction of this Court.
2. Plaintiff, IWC CORAL PALM, LLC, a Delaware Limited Liability Company
(‘Plaintiff’), owns the following described real property in Broward County, Florida (the
“Leased Premises”):
Coral Palm Plaza
2049 N. University Drive
Room #2049
Coral Springs, Florida 33071
3. On January 15, 2013, Defendant, CORAL SPRINGS PHYSICIANS
ASSOCIATES, INC., took possession of the Leased Premises under that certain written
Shopping Center Lease Agreement entered into with Plaintiff for the above-described
Leased Premises (the “Lease”). (A true and correct copy of the Lease is attached
hereto and made a part hereof as Plaintiff's Exhibit “A’).
4, Pursuant to the Lease, Defendant, ROSEDALE RESTAURANT OF
CORAL SPRINGS, LLC, was obligated to pay to Plaintiff certain rent, together with
other charges and sales tax thereon.
5. Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC,
notwithstanding its obligations under the Lease, has failed to pay rent and other charges
due and owing through and including the month of August, 2015.
6. Rent will continue to accrue during the pendency of this action.
7. On July 14, 2015, Plaintiff served Defendant, ROSEDALE RESTAURANT
OF CORAL SPRINGS, LLC, with a Notice of Default. (A copy of said Notice of Default
is attached hereto and made a part hereof as Plaintiff's Exhibit “B”).
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Soowsky & ALLEN, P.L.
‘915 MIAMI CENTER - 201 S. BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 TEL (305) 371-2223CASE NO.:
8. Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, has
failed and refused to pay Plaintiff all the rent, late charges, adjustments and interest due
under the Lease.
9. In August, 2015, Defendant, ROSEDALE RESTAURANT OF CORAL
SPRINGS, LLC, further defaulted under the Lease by vacating and ceasing to do
business in the Leased Premises, as set forth in Article 9(e) of the Lease.
10. On August 19, 2015, Plaintiff served Defendant, ROSEDALE
RESTAURANT OF CORAL SPRINGS, LLC, with a Notice of Default for vacating and
ceasing to do business in the Premises in violation of Article 9(e) of the Lease. (A copy
of said Notice of Default is attached hereto and made a part hereof as Plaintiff's
Exhibit “C’).
11. Article 23 of the Lease provides that in the event that Defendant,
ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, defaults under the Lease,
Plaintiff may declare all Minimum Rent and other sums payable under this Lease for the
entire unexpired Term to be immediately due and payable. Plaintiff hereby declares
such amount due and payable.
12. Plaintiff has engaged the undersigned attorneys to bring this action and is
obligated to pay them a fee for their services.
13. Article 25 of the Lease provides for payment of reasonable attorneys’ fees
and all expenses of suit.
14. Venue is proper in Broward County, Florida.
15. All conditions precedent to this action have been performed, satisfied,
waived or excused.
Sotowsky & ALLEN, P.L.
915 MIAMI CENTER - 201 S. BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 TEL (305) 371-2223CASE NO.:
16. Plaintiff has been damaged as a result of Defendant, ROSEDALE
RESTAURANT OF CORAL SPRINGS, LLC’s breach of the Lease.
WHEREFORE, Plaintiff, IWC CORAL PALM, LLC, a Delaware Limited Liability
Company, demands judgment against Defendant, ROSEDALE RESTAURANT OF
CORAL SPRINGS, LLC, a Florida Limited Liability Company, d/b/a ROSEDALE BRICK
OVEN PIZZERIA, for damages, together with interest, attorneys’ fees, court costs, and
such other and further relief as is proper.
COUNT Il - BREACH OF GUARANTY
JOSEPH ARATO, KARYN ARATO, JOSEPH GONNELLY, AND JOAN GONNELLY
17. This is an action for damages based upon breach of Guaranty against
Defendants, JOSEPH ARATO, KARYN ARATO, JOSEPH GONNELLY, and JOAN
GONNELLY, which exceeds $15,000.00 exclusive of interest and costs.
18. Plaintiff repeats and realleges paragraphs 2 through 16 above as though
copied herein in full.
19. On or about January 9, 2013, Defendants, JOSEPH ARATO, KARYN
ARATO, JOSEPH GONNELLY, and JOAN GONNELLY, executed a Guaranty
Agreement guaranteeing absolutely and unconditionally the obligations of tenant under
the Lease including but not limited to guaranteeing prompt payment of rent and other
charges. (A true and correct copy of the Guaranty Agreement is attached to the Lease
which is Plaintiffs Exhibit “A” hereto).
20. Defendants, JOSEPH ARATO, KARYN ARATO, JOSEPH GONNELLY,
and JOAN GONNELLY, breached the Guaranty Agreement by failing to pay to Plaintiff
all sums due Plaintiff as a result of the breach of the Lease by Defendant, ROSEDALE
RESTAURANT OF CORAL SPRINGS, LLC.
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Sovowsky & ALLEN, P.L.
915 MIAMI CENTER - 201 S, BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 TEL (305) 371-2223CASE NO.:
21. Plaintiff has been damaged as a result of Defendants’, JOSEPH ARATO,
KARYN ARATO, JOSEPH GONNELLY, and JOAN GONNELLY, breach of the
Guaranty Agreement.
22. The Guaranty Agreement provides for Defendants’ payment of all
attorneys’ fees and disbursements incurred by Plaintiff in connection with any breach or
default by Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, and for
the enforcement of the Guaranty Agreement.
WHEREFORE, Plaintiff, IVC CORAL PALM, LLC, a Delaware Limited Liability
Company, demands judgment against Defendants, JOSEPH ARATO, KARYN ARATO,
JOSEPH GONNELLY, and JOAN GONNELLY, jointly and severally, for damages,
together with interest, attorneys’ fees, court costs, and such other and further relief as is
proper.
Respectfully submitted,
SoLowsky & ALLEN, P.L.
Attorneys for Plaintiff,
IVC CORAL PALM, LLC
915 Miami Center
201 S. Biscayne Boulevard
Miami, Florida 33131
Telephone No. (305) 371-2223
Facsimile No. (305) 373-2073
Primary: rallen@salawmiami.com
2"? One: mlopez@salawmiami.com
2™ Tw6: bleadings@salawmiami.com
Wi
RICHARD L. ALLEN
lorida Bar No. 295485
By:
i:\main\gumberg\coral palm plaza\rosedale\damages\pleadings\complaint for damages.docx
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Sotowsky & ALLEN, P.L.
915 MIAMI CENTER - 201 S. BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 TEL (305) 371-2223,Table of Contents of Standard Shopping Center Lease
Between
IVC CORAL PALM, LLC, A DELAWARE LIMITED LIABILITY COMPANY
AND
ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC
ARTICLE
INTRODUCTORY PROVISIONS
1 ~ DEMISE OF PREMISES
2. - TERM EXPIRATION; BUILDOUT PERIOD
3 - MINIMUM RENT
4 - REPORTING GROSS SALES
5. - OPERATING EXPENSES; COMMON AREA
6. -SALESANDOTHERTAX
1. - DESCRIPTION AND CONDITIONS OF ANY LANDLORD'S WORK IN THE PREMISES
8 - DESCRIPTION AND CONDITIONS OF ANY TENANT'S WORK IN THE PREMISES
9. - USE OF THE PREMISES
10. - MARKETING FUND OR MERCHANTS' ASSOCIATION
1. - ALTERATIONS
12, ~ MAINTENANCE AND REPAIRS
13. - INDEMNITY; INSURANCE REQUIREMENTS; HAZARDOUS MATERIALS
4 ~ MECHANICS LIENS
15, - DESTRUCTION AND RESTORATION
16. - PROPERTY IN THE PREMISES
7. - ACCESS TO THE PREMISES, ETC.
38. - SURRENDER OF THE PREMISES
19. - UTILITIES
20. ~ ASSIGNMENT, SUBLETTING, ETC.
21. - '§ ADDITIONAL AGREEMENTS
2. ~ EMINENT DOMAIN
B. - DEFAULT BY TENANT
24. - DEFAULT BY LANDLORD
25. ~ PREVAILING PARTY
26. - ESTOPPEL CERTIFICATE, ATTORNMENT AND SUBORDINATION
21. - HOLDING OVER :
28. - QUIET ENJOYMENT
29. - SECURITY AGREEMENT
30. ~ LANDLORD'S RIGHT TO PERFORM FOR TENANTS ACCOUNT
31. - WAIVER
32, -NO ACCORD AND SATISFACTION
33. - NOTICES
34, - FORCE MAJEURE
35. ~ DEFINITION OF TERMS
36, - SECURITY DEPOSIT
37. - ADDITIONAL PROVISIONS
38. - NO RIGHT OF COUNTERCLAIM OR JURY TRIAL
39. - LIMITED LIABILITY
40. ~ LEASE VALIDITY AND TENANT'S OFFER,
AL. - COMPETITION
42. TRASH REMOVAL
43, - RELOCATION OF TENANT
a4, - OFFICE OF FOREIGN ASSETS CONTROL CERTIFICATION
4. - WAIVER OF SUBROGATION
EXHIBIT A - SITE PLAN
EXHIBIT B - SIGN CRITERIA.
EXHIBIT C - TENANT'S "COMING SOON" SIGN
EXHIBIT D - MATERIALS AND FINISHES FOR CERTAIN ITEMS IN THE PREMISES
RADON DISCLOSURE RIDER
LANDLORD'S WORK RIDER
ABATEMENT RIDER,
OPTIONS TO EXTEND LEASE TERM RIDER
EXCLUSIVE USE RIDER
PYLON RIDER
STANDARD RESTAURANT PROVISIONS RIDER
TENANT IMPROVEMENTS RULES AND REGULATIONS
EXHIBIT
Hae[ ‘STANDARD SHOPPING CENTER LEASE ]
INTRODUCTORY PROVISIONS FORMING A PART OF THUS LEASE
LEASE DATE: 2013.
NAME AND MAILING ADDRESS OF "LANDLORD": IVC CORAL PALM , LLC, A DELAWARE LIMITED
LIABILITY COMPANY, c/o Gumberg Asset Management Corp., 3200 N. Federal Highway, Ft. Lauderdale, FL 33306
(Attn: Legal Dept.), AU payments to be made to Landlord are to be sent to IVC Coral Palm, LLC, P.O. Box 535505,
Atlanta, GA 30353-5505, and must include Tenant’s Unit/Reference No. “465-2049-CU” on the remittance.
NAME AND MAILING ADDRESS OF "TENANT": ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC,
1427 Pine Ridge Road, #105, Naples, FL 34109, with a copy of any default notice to Rosedale Restaurant of Coral
Springs, LLC, 2049 N. University Drive, Coral Springs, FL 33071.
NAME OF "CENTER": CORAL PALM PLAZA, located in the City of Coral Springs, State of Florida.
"PREMISES" (Article 1): ROOM #2049 in the Center, having as its address 2049 N. University Drive, Coral Springs,
FL 33071. For the purposes of this Lease, the parties agree that the Premises contain 3,000 square feet of “Floor Area,”
as defined in Article 35,
"PERMITTED USE" (Article 9: A brick oven pizzeria restaurant serving traditional Italian menu items for on-
Premises and off-Premises consumption. Notwithstanding anything to the contrary herein, (a) upon obtaining the
applicable license (the “License”), Tenant may sell beer and wine to its patrons (but in no event beverages containing
distilied alcohol) at the Premises, and (b) beer and wine sold for off-Premises consumption shall be soid only in sealed
containers and Tenant shall strictly enforce these restrictions.
Without limiting any other provisions of this Lease, a default by Tenant hereunder shall occur if Tenant does not do one
cor more of the following with respect to the License (cach, a “License Default”): comply with any requirements of law
respecting the License; maintain the License in good standing; file for all renewals of the License when due,
Immediately upon the occurence of a default under this Lease resulting in a termination of Tenant's tight to possession
of the Premises, or immediately upon the expiration or sooner termination of this Lease, Tenant, at its expense, shall
transfer the License to Landlord or its designee. If for any reason Tenant fails to do so, Landlord is hereby authorized
(but not obligated) to effect such transfer pursuant to the power of attorney set forth below.
Landlord is hereby appointed the true and lawful attorney-in-fact of Tenant, in its name and stead, to execute and deliver
all documents, instruments and writings that Landlord deems necessary or advisable in connection with the preservation
and/or transfer of the License, including obtaining renewals of the License, responding to or participating in any
investigation or administrative or judicial proceeding involving the License, and placing the License in safekeeping, all at
the sole and exclusive election of Landlor. Tenant shall be responsible for all costs, fees and expenses, including
reasonable attorneys” fees, associated with any such action by Landlord. The foregoing power of attomey is imevocable
and coupled with an interest.
“TENANT'S TRADE NAME" (Article 9): ROSEDALE BRICK OVEN PIZZERIA.
"TERM" OF LEASE (Article 2): 10 years, commencing on the date (the “Commencement Date”) that is first to ocour
of the date that all or any part of the Premises opens for business with the public or the 150th day after the date that
Landlord tenders delivery of possession of the Premises to Tenant with “Landlord's Work,” as defined in the attached
“Landlord’s Work Rider,” substantially completed (the “Delivery Date”).
“MINIMUM RENT” (Article 3; "Lease Year" is defined in Article 35):
PER YEAR PER MONTH BEGINNING THROUGH
$63,000.00 $5,250.00 On the Commencement Date ‘Lease Year 5
$69,300.00 $5,775.00 Lease Year 6 ‘Remainder of the Term
"SECURITY DEPOSIT" (Article 36): $8,000.00.
NUMBER. OF DAYS ALLOWED TO TENANT TO OPEN THE PREMISES FOR BUSINESS WITH THE
PUBLIC (Article 9): 150 days after the Delivery Date.
PROCURING BROKER(S) (Article 37): Rotella Group, 3300 N. Federal Highway, Suite 200, Ft. Lauderdale, FL
33306, and Guuiberg Asset Management Corp., 3200 N Federal Highway, Ft. Lauderdale, FL 33306.
DAYS PER WEEK THE PREMISES MUST BE OPEN FOR BUSINESS (Article 9): Monday through
Sunday, except as otherwise set forth in Article 9(¢) hereof.MINIMUM HOURS THE PREMISES MUST BE OPEN EACH BUSINESS DAY (Article 9): Noon to 9:00 P.M.
‘Mondays through Saturdays and noon to 5:00 P.M. Sundays, except as otherwise set forth in Article 9(e) hereof.
REQUIRED AMOUNT OF LIABILITY (PLUS, IF APPLICABLE, SEPARATE LIQUOR LIABILITY)
INSURANCE (Article 13): $1,000,000 per occurrence’$2,000,000 general ageregate.
CONDITION OF PREMISES ON POSSESSION BY TENANT (Article 7): See the Landlord’s Work Rider.
aa* * + * * * * * * * * * ® *
1. DEMISE OF PREMISES: Landlord leases to Tenant, and Tenant rents from Landlord, the Premises, The
Premises’ approximate boundaries are shown on the site plan attached as Exhibit "A" solely for the purpose of illustrating the
general location of the Premises in the Center. Tenant has no right to use for any purpose any part of the roof and/or the exterior
walls of the Premises, except as may be otherwise specifically provided in this Lease.
2. TERM EXPIRATION; BUILDOUT PERIOD: Notwithstanding anything herein, if, by reason of
Introductory Provision H, the Term would otherwise expire prior to the last day of a month, the Term will be automatically
extended to expire on the last day of the month. As used herein, the "Buildout Period” means the period between the Delivery
Date and the Commencement Date, Except for Tenant's obligation to pay Minimum Rent and the monthly additional rent called
for by Article 5 (which obligation will not begin to accrue until the Commencement Date), cach and all of the terms and conditions
of this Lease will apply throughout the Buildout Period.
3. MINIMUM RENT: ‘Tenant agrees to pay Mininium Rent in advance on the first day of each calendar month,
at the address specified in Introductory Provision B or such other place as Landlord may designate from time to tine, without
prior notice or demand and (except as may be otherwise specifically provided herein) without any deduction, set-off or abatement,
‘Minimum Rent will be appropriately prorated for any partial calendar mouth occurring at the beginning of the Tema. If any
installment of Minimum Rent or any additional rent becomes overdue for more than 5 days, a “Late Charge” of 10 cents per each
overdue dollar shall be paid by Tenant on request; if the Late Charge is not paid on request, the entire unpaid amount of the
arrearage and the Late Charge will accrae interest at the rate of 15% per annum ftorn the due date until fll payment is received by
Landlord. However, if, more than twice in any 12-month period, any installment of Mininaum Rent or any additional rent becomes
overdue for more than 5 days, thereupon the Late Charge will be increased automatically and without notice to 15 cents per each
overdue dollar, to be paid by Tenant on request; ifthe Late Charge is not paid on request, the entire amount of the arrearage and
tho Late Charge will accrue interest at the rate of 18% per annum from the due date until full payment is received by Landlord.
‘The Late Charge and interest thereon do not constitute a penalty and are acknowledged by Tenant to be fair and reasonable and
shall be in addition to, and will not preclude Landlord from, any other remedy at law, in equity and/or under this Lease. In this
regard, without limiting the foregoing and notwithstanding anything to the contrary in this Lease, if, more than 3 times in any 12
month period, any installment of Minimum Rent or any additional rent becomes overdue for more than $ days, stich fact will
_ Constitute a default under this Lease beyond any applicable grace period and without the requirement of notice from Landlord,
entitling Landlord to exercise all available default rights and remedies, including termination of this Lease and eviction of Tenant.
4. REPORTING GROSS SALES: On or before the 60th day after the end of each Lease Year (Including the
‘Lease Year in which the expiration of the Term occurs) Tenant will furnish Landlord with a statement of "Gross Sales," as defined
below, for the preceding Lease Year or partial Lease Year. Each such statement must be certified as complete and cormect by
‘Tenant (if Tenant is one or more individuals) or by an officer, managing membet or partner of Tenant (if Tenant is an entity), as
the case may be, Tenant will require its subtenants, concessionaires and licensees to simultaneously furnish similar statements to
Landlord. All statements of Gross Sales must be in form satisfactory to Landlord and must be accompanied by a copy of the Sales
and Use Tax Retum (“Return”) filed by Tenant with the Florida Department of Revenue for each month in the applicable Lease
‘Year. If any statement of Gross Sales and/or Return copy is not timely furnished to Landlord, upon request Tenant will pay to
Landlord as additional rent 2 fine of $100.00 for each such overdue statement and/or Return copy. "Gross Sales" means the gross
receipts of Tenant, and of all licensees, concessionaires and subtenants of Tenant, from all activities generated, originating or
conducted in, at, on or from any part of the Premises (including sales by means of any computer or mechanical or vending device),
and encompasses all charges for cash or credit. A service, sale or rental will be deemed made in the Premises if the order is
placed, secured or received in the Premises, in-person or pursuant to mail, telegram, telephone, computer or other means, whether
(or not it is filled in the-Premises; and, for the purposes hereof, a sale generated from any Intemet “Web site” or other computer
link siow or hereafter established for the Premises will be deemed placed at the Premises. Upon not fewer than 10 days? prior
written notice to Tenant, Landlord, at its expense, may audit Tenant’s books aad records respecting Gross Sales. Nothing herein
constitutes a consent by Landlord to occupancy of all or any part of the Premises by a subtenant, licensee or concessionaire, of to
the use of any mechanical or other vending device, ia violation of the provisions of this Lease.
> Xiu5. OPERATING EXPENSES; COMMON AREA: (a) Tenant agrees to pay to Landlord, as additional rent,
‘Tenant's “Proportionate Share” (defined below) of certain expenses Landlord may incur in operating the Center (collectively,
“Operating Expenses”). Initially, Tenant’s Proportionate Share of Operating Expenses shall be as set forth in Introductory
Provision L. Operating Expenses inclnde without limitation those generally related to: operating, managing, insuring, equipping,
lighting, repaiting, replacing and maintaining the Center and the “Common Area” (defined in Article 35); providing security
protection and fire protection for the Center (if and to the extent Landlord determines the same to be necessary); maintaining,
repairing and replacing the exterior walls, foundations, roofs, building mechanical systems, electrical systems, sprinkler systems,
plumbing systems, gutters, downspouts, awnings, canopies and similar elements of ell buildings in the Center, including building
reconstruction required by changes in applicable codes and ordinances; insuring all of the Center buildings and other
improvements in the Center; and all real estate taxes, personal property taxes and other governmental and quasi-goveramental
charges levied or assessed against all or any part of the Center, all assessments for public improvements benefiting all or any part
of the Center and any amounts Landlord may spend comesting the same, up to the amount of any reductions obtained. Any
‘expenses for capital improvements that are included in Operating Expenses shall be amortized on a straight-line basis over a
period of 5 years; Tenant shall be responsible only for those amortized payments that are due and payable during the original
‘Term of this Lease as the same may be extended pursuant to “Options to Extend Lease Term Rider” attached to this Lease,
‘Examples of some (but not necessarily all) of the costs which will be included in Operating Expenses are those Landlord
incurs for the following: general maintenance, repairs, cleaning, painting, refurbishing, and decorating; cleaning and repair of the
sidewalks, windows, walls, mullions, curbs, elevated walkways, hallways, elevators and stairways; maintenance, restriping,
resurfacing and repair (including replacement) of driveways arid parking areas; Christmas and/or other holiday decorations on the
buildings of the Center or in the Common Area; maintenance and replacement of the landscaped areas, trash receptacles, bench¢s,
signs, directories, and other property and facilities in the Common Area, including the lighting systems in the Common Area;
janitorial services in the Common Area; removal of garbage, trash, rubbish and other refuse within the Center; fire protection and
security systems (if any), maintenance of storm drainage, sanitary sewer, trash disposal and other utility systems; non-ad valorem.
assessments, fees and charges; water/sewer service to the Center; electricity for lighting and other equipment in the Common Area;
wages and related payroll costs of personnel Landlord employs to iinplement those services; insurance premiums for Landlord’s
public Hability, property damage, windstomm, flood (if applicable), business interruption, fire and extended coverage insurance for
ail buildings and other improvements in the Center and such other insurance as Landlotd deems appropriate, and insurance
deductible amounts; fees for required inspections, licenses and permits; environmental audits; supplies; straight-line depreciation
‘on machinery and equipment purchased for the purpose of maintaining and operating the Center, or rental paid for such machinery
and equipment if rented; fees for management of the Center; legal and accounting expenses relating to collection of and
administration of Operating Expenses; and an administrative charge of 15% of all of the above expenses excluding real estate
taxes and personal property taxes.
{b) The following categories of expenses will not be included in Operating Expenses: depreciation on any buildings or
other improvements; interest or principal payments on mortgages covering the Center; federal or state income taxes attributable to
Landlord’s ownership of the Center, and penalties for delinquent payment of real estate taxes.
(© Tenant's “Proportionste Share” of Operating Expenses will be the percentage obtained by dividing the Floor Area of
the Premises by the total Floor Area of all leased and occupied space located within the Center. (For this purpose, Floor Area will
not include any space in the Center which is leased by a “Major Tenant” (defined in Article 35({) hereof) who is not required to
fully share in the payment of Operating Expenses, and will not include outparcel buildings, if any. To the extent that any such
Major Tenant or outparcel building does contribute toward Operating Expenses, that contribution will be applied to reduce the
total amount of Operating Expenses payable by Tenant.)
(@) Payments of Tenant’s Proportionate Share of Operating Expenses are due monthly, on the first day of each mouth,
together with payments of Minimum Rent, and are based on estimates of expenses for each upcoming cslendar year. For each
calendar year, Landlord will fiamish Tenaut with an estimate of Operating Expenses for the new calendar year, along with a
statement of Tenant's Proportionate Share of the same (including any deficiency for any applicable months of the new calendar
yeat). Until Tenant receives the new estimate for each yeat, Tenant will continue to pay Tenant's Proportionate Share based on
the previous calendar year’s estimate, Thereafter, Tenant will pay to Landlord, with each monthly payment of Minimum Rent,additional rent equal to 1/12 of Tenant's annual Proportionate Share of the estimated Operating Expenses for that calendar year.
‘Tenant's Proportionate Share of the actual Operating Expenses for the full calendar year will be adjusted upward or downward on
or about the following March 31%, and, as applicable, Tenant will pay any shortfall within 10 days after billing or (provided no
defaalt on Tenant's part exists under this Lease) be credited with any excess with respect to the next due payment(s) from Tenant
‘on account of Operating Expenses.
{e) Tenant waives any right it may have by statute or otherwise to protest with the taxing authorities all or any part of the
real estate taxes and personal property taxes assessed against the Center.
(® Ifa taxing authority includes in the computation of real estate taxes and/or personal property taxes assessed against the
Center any leasehold improvements made by or for Tenant and/or any other property or assets of Tenant, then at Landlord's
election Tenant shall also pay the entire amount of such taxes for those items; if all or any portion of such amount is paid by
Landlord, the same shall be reimbursed by Tenant to Landlord, as additional rent, within 10 days after billing.
(@ Landlord grants to Tenant during the Term a non-exclusive license to use the Common Area as constituted from time
to time, in common with Landlord, other tenants and occupants of the Center and their respective employees, agents, licensees,
contractors, customers and offer invitees. The Common Area shall be subject to Landlord's exclusive contro! and management.
(h) Landlord shall have the unrestricted right at any time(s) to: close any or all of the Common Area to such extent as
may be legally sufficient to prevent a dedication thereof or the accrual of any rights to any person or to the public therein;
temporarily close all or any of the parking areas to discourage non-customer parking; and make changes, additions, deletions,
alterations and/or improvements in and to any or all of the Common Area, inchiding changes as in appearance, layout, shape, size
and location, erecting thereon store buildings or other structures or improvements of any kind and adding extensions to the same;
in performing any such work, Landlord will use reasonable efforts not to materially affect Tenant's business (but this does not
‘require the use of overtime belp).
@ Landlord agrees to maintain the Common Area in reasonably good repair and reasonably clear of debris, lighted when
necessary and open during each business day.
@ Landlord reserves the right, from time to time, to utilize portions of the Common Area (including any common mall
area) for camival type shows, rides and entertainment, outdoor shows, displays, automobile and other product shows, business
promotions, the leasing of pushcatts, wallshops, Kiosks or sales space, or other uses which in Landlord's judgment tend to attract
the publio; in connection with any such utilization Landlord will use reasonable efforts not to materially affect Tenant's business.
Further, Landlord reserves the right to utilize the lighting standards and other areas in the parking lot and any common mall area
for advertising purposes and to designate one or more parking areas for employee parking, and Tenant shall cause ts employees to
park only in the designated area(s) of, if none shall be designated, then only in the outer areas of the parking lot. Within 10 days
after each request by Landlord, Tenant will deliver to Landlord a list of the motor vehicles that Tenant and its employees drive to
the Center when working at the Premises (the "Vehicle List"). The Vehicle List will set forth in reasonable detail the name(s) of
the registered owner(s) and Griver(s) of each such vehicle, and the’ vehicle's make, model, color(s), license plate number and state
of issuance. From time to time Tenant will give prompt written notice to Landlord of any change, addition and/or deletion that
should be made to the Vehicle List. Lf any vehicle that appears (or should appear) on the Vehicle List violates this provision by
paring anywhere in the Center other than the pennitted area(s) referred to above, and if prior notice has been given to Tenant (or
to the manager of the Premises) that the same vehicle had previously parked in violation of this provision, then on request Tenant
will pay to Landlord $15.00 per day, for each such vehicle, for each full or partial day that the new violation exists. In addition, if
any vehicle that appears (or should appear) on the Vehicle List violates this provision, Tenant, for itself and on behalf of each of
its present and future employees, authorizes Landlord and its property manager, at any time(s) and at Tenants expense (payable on
request), to remove such vehicle or cause it to be removed from the Center and/or to attach violation stickers or notices to such
vehicle, Tenant agrees to and hereby does indemnify, protect, defend and hold Landlord, its property manager and mortgagee(s)
harmless against all Habilities, costs and expenses résulting from or.in any way connected with any such acts.
(&) Notwithstanding anything to the contrary herein, initially, and continuing through December 31, 2013, Tenant's
monthly payments on account of Operating Expenses will be as specified in Introductory Provision L and the year-end adjustment
procedure contemplated by “(d)” of this Article will apply with respect to calendar year 2013. Commencing January 1, 2014, and
RA
von the first day of each subsequent Jenuary, the amount payable by Tenant on account of Operating Expenses, except and
excluding “Non-Controllable Operating Expenses” (defined below), for each calendar year automatically shall be increased by 3%
over the amount payable on account of the same in the immediately preceding calendar year, provided, however, that this
limitation will not apply to, and there is no limitation on, real estate taxes, special assessments, personal property taxes, insurance
preminms, removal of trash (which term also includes rubbish, refuse and garbage), security (if any), and utilities (collectively,
“Non-Controllable Operating Expenses”), and at all times in the Term Tenant will be required to pay Tenant's Proportionate Share
of Non-Controltable Operating Expenses as and when payments from Tenant are required by this Article (it being understood that
the 15% administrative charge called for by “(a)” of this Article will be included in computing Tenant’s Proportionate Share of
‘Non-Controliable Operating Expenses). For the purposes of computing the amount payable by Tenant on account of Operating
Expenses for calendar year 2013, such amount will be deemed to be $21,270.09.
With regard to the immediately preceding paragraph, by way of illustration and not limitation (as used herein,
“Controllable Operating Expenses” means Operating Expenses less and except Non-Controllable Operating Expenses): ())
assuming that for calender year 2013 Tenant pays $21,270.00 on account of Operating Expenses and of that amount Controllable
Operating Expenses are $9,000.00 and Non-Controllable Operating Expenses are $12,270.00, then for calendar year 2014
‘Tenant’s payment toward Controllable Operating Expenses will be $9,270.00 (i.e., an increase of 3% over the $9,000.00) and
Tenant’s payment for Non-Controllable Operating Expenses will be an amount equal to Tenant’s Proportionate Share thereof,
including the 15% administrative fee called for by “(a)” of this Article; and (ii) assuming that Tenant’s payment toward
Controllable Operating Expenses for calendar year 2014 is $9,270.00, then for calendar year 2015 Tenant's payment toward
Controllable Operating Expenses will be $9,548.10 (ie., an increase of 3% over the $9,270.00) and Tenant’s payment for Non-
Controllable Operating Expenses will be an amount equal to Tenant’s Proportionate Share thereof, including the 15%
administrative fee called for by “(a)” of this Article.
(@ Notwithstanding anything to the contrary in “(k)” above, if any special assessment may lawfully be divided and paid in
annual installments, then, for the purposes of "(k)" above, such assessment shall be deemed to be so divided and to be payable in
‘the maximum number of annual instaliments permitted by law, and such assessment shall be deemed included in Non-Controllable
Operating Expenses for any year only to the extent of the annual installment becoming a lien during such year, together with
statutory interest payable in such year on the annual installment and on all installments thereafter becoming due os provided by
Jaw, all as if such assessment had actually been so divided.
6 SALES AND OTHER TAX: All Minimum Rent and additional rent payable by Tenant to Landlord hereunder
shall be accompanied by payment of sales tax and other governmental tax or charge thereon to the extent then required by law.
‘Tenant may provide to Landlord a Direct Pay Permit in accordance with Florida law, which will be considered compliance with
this provision,
he DESCRIPTION AND CONDITIONS OF ANY LANDLORD'S WORK IN THE PREMISES: Tenant
acknowledges that it has examined and inspected the Premises to its satisfaction and acocpts the Premises in their “AS IS”
condition, without any work and/or materials to be provided by Landlord with respect to all or any part of the Premises, except as
specifically provided in the Landlord's Work Rider.
a DESCRIPTION AND CONDITIONS OF ANY TENANT'S WORK IN THE PREMISES: Tenant, at its
‘expense, shall (a) promptly erect an exterior storeftont sign in accordance with Landlord's sign eciterie attached as Exhibit "B"
(pot later than 30 days after the date of the mutual execution and delivery of this Lease, and in any event prior to the installation
of Tenant’s exterior storefront sign, Tenant, at its expense, shall (f) submit to Landlord for approval permit drawings, in duplicate,
for Tenant's exterior storefront sign in accordance with that Exhibit, such drawings to be prepared by, and such sign as approved
in writing by Landlord to be erected by, a duly licensed and insured sign contractor, and (ii) furnish and install on the interior glass
storefront of the Premises a sign that is approximately 2 feet high by 6 feet wide sign which must be as shown on Exhibit “C”
attached to this Lease and must be removed by Tenant upon the opening of the Presaises for business), and :
(b) except for the work and/or materials required of Landlord pursuant to the Landlord's Work Rider, do all work and
provide all materials that may be needed to prepare the Premises for Tenants use and occupancy, all in accordance with (f) plans
and specifications to be submitted by Tenant not later than 30 days after the date of the mutual execution and delivery of this
Lease (and in any event prior to the commencement of Tenant's work) for written approval by Landlord or its property manager,
fo
6 Taig “7h
V Vvwhich approval shall not be unreasonably withheld as to interior, non-structural matters, and (fi) the attached "Tenant
Improvements Rules and Regulations”. Tenant's plans and specifications must inchide, without limitation, fixtures, equipment,
carpeting, other floorcovering and wallcovering, the roof vent contemplated by the “Standard Restaurant Provisions Rider”
attached to this Lease, and all other intended improvements to the Premises, and must show the locations of such materials and
finishes within the Premises, Approval by Landlord or its property manager of Tenant's plans and specifications will not impose
any liability on Landlord or its property manager nor constitute a representation or other assurance thet they comply with
applicable laws, ordinances, regulations and codes. All of Tenant's signage and Tenant work (including fixturing) must conform
to all applicable laws, ordinances, regulations and codes, and Tenant, at its expense, shall obtain all permits, licenses and
approvals that may be required by any governmental authority in connection with Tenant's signage and-Tenant work, including a
Certificate of Occupancy or equivalent governmental approval; on request Tenant shall deliver to Landlord copies of the same as
well as a set of the final plans and specifications, as revised and as approved by Landlord and all applicable governmental
authorities, for all work done by or for Tenant to prepare the Premises for Tenant's use and occupancy pursuant to this Article. If
‘Tenant installs any electrical equipment that overloads the lines in the Premises or the building containing the Premises (the
"Building", then Tenant, at its expense, shall promptly make whatever changes may be necessary to remedy such condition to
Landlord's reasonable satisfaction. If this Lease permits Tenant to engage in the preparation of foods or packaged foods or to
‘engage in the use, sale or storage of any "Hazardous Materials,” as defined in Article 13, Tenant, at its expense, raust furnish and
‘install chemical extinguishing devices (such as Ansul) that are approved by the fire insurance rating organization and are in
compliance with local codes. If gas is used in the Premises, Tenant, at its expense, must furnish and install manual and automatic
gas cutoff devices.
‘Notwithstanding anything to the contrary herein, Tenant agrees that upon completion of Tenant’s work as contemplated
by this Article, the interior of the Premises and all furniture, fixtures and equipment therein (“FF&E”) will in all respects (except,
‘perhaps, for square footage) be the same as or substantially similar to the interior of the restaurant operated on the date hereof in
Naples, Florida, under Tenant’s Trade Name, inchiding the FF&E used therein on the date hereof. Without limiting the foregoing,
Exhibit “D” attached to this Lease shows materials and finishes for various items used in the interior of the Naples restaurant, and
Tenant must use the same or substantially similar materials and finishes for corresponding items in the Premises.
(©) With regard to any guaranties and warranties which Tenant may receive in comection with Tenant's work
Gollectively, the "Tenant Warranties"), insofar as the Tenant Warranties cover any plumbing, electrical, lighting and/or heating,
ventileting and air-conditioning fixtures or equipment, promptly following Tenant's receipt of any of the Tenant Warranties,
Tenant will furnish Landlord with a copy thereof. Tenant hereby assigns to Landlord all of Tenant’ right, title and interest in and
to the Tenant Warranties, effective upon the expiration or sooner termination of the Term, at which time Tenant shall deliver the
originals of such Tenant Warranties to Landlord. (See the Landlord’s Work Rider for provisions regarding “Landlord
‘Warranties.”)
(@) Landlord and Tenant acknowledge and agree that: Tenant will take such action with respect to the storeftont of the
Premises as may be required to install Tenant’s brickoven in the Premises; need to use a forklift to install its brickoven in the
Premises; prior to such installation Landlord and Tenant must agree in writing on the date and time when such installation will
‘occur, and the same shall be when the work has the least impact on the operation of the other businesses in the Center; the forklift
will be provided, and all work in connection with the installation of Tenant’s brickoven within the Premises will be and
performed, by and at the expense of Tenant; as soon as possible after (and in any event on the same day that) Tenant’s brickoven
is installed in the Premises, Tenant, at its expense, will repair ot replace (as applicable) any damage caused by or in connection
with the work contemplated hereby; all work contemplated hereby will constitute part of Tenant's work as required by this Article
8 and will be performed in accordance with applicable laws, ordinances, regulations and codes and in connection with any work
contemplated hereby, at all times during the course of such work Landlord. will be entitled (but not required) to have its
representatives present at the site for inspection purposes, but such presence and/or inspection will not impose any obligation or
liability whatsoever on Landlord or its representatives.
9, USE OF THE PREMISES: (a) The Premises shall be occupied only by Tenant and used solely for the
Permitted Use, and by no other person or entity and for no other purpose, and Tenant shall operate its business throughout the
‘Term under Tenant's Trade Name. ‘Tenant hereby represents and warrants to Landlord that on the date of this Lease, Tenant has
7 ATi i)
WAfull legal authority to use Tenant's Trade Name and that Tenant’s Trade Name does not violate any law, rule, order or regulation
of any governmental or quasi-govermmental authority or the rights of any third party. Tenant, at its expense, shall take all actions
necessary to protect its authority to use Tenant's Trade Name throughout the Term,
(b) Tenant, at its expense and throughout the Term, will completely fumish and equip the Premises with appropriate and
suitable furnishings and equipment so that at all times the Premises will constitute and be operated as a modem, first-class
establishment. In furtherance (but not in limitation) of the foregoing, Tenant, at its expense, will renovate and/or repaint the
interior of the Premises from time to time as Landlord may determine, but in no event more than once in any consecutive three
‘year period.
(© Tenant, at its expense, agrees at all times to use and occupy the Premises in a safe and proper manner, not to commit
-waste therein and to Keep the Premises (including windows, doors and all other glass) in a clean and neat condition,
(@ Landlord reserves the right (but will not be obligated) at any time(s) to install, maintain, use, repair and replace pipes,
utility systems, alarm monitoring devices, sprinkler risers, ductwork, conduits, utility lines and wires through hung ceiling space,
column space and partitions, in or beneath the floor slab or above-or below the Premises or other parts of the Center; in doing so,
Landlord will use reasonable efforts not to materially affect Tenant's business (but this does not require the use of overtime help).
(© A primary consideration to Landlord is the agreement of Tenant to operate and maintain its business in the Premises,
and within the time period specified in Introductory Provision R Tenant (subject only to delays beyond Tenant's reasonable
control as contemplated by Article 34 hereof), shell open the Premises for business with the public and shall thereafter
continuously occupy and actively and diligently operate its business in the whole of the Premises throughout the Term, at least on
the days and during the hours specified in Introductory Provisions T and U (excepting holidays observed by the federal
government), or longer as may be () determined by the Merchants” Association (if any) or (i) standard for shopping centers in the
county where the Center is located, mafniaining an adequate staff of employees and a full and complete stock of merchandise
and/or foods and beverages (as may be applicable to the Permitted Use) unless prevented from doing so by fire or other casualty
or other canses beyond Tenant's control, If Tenant fails to open the Premises for business with the public within the time period
specified in Introductory Provision R or fails thereafter to keep the Premises open each business day fully fixtured, stocked and
staffed for normal business operations during the hours specified herein, Tenant will be in default under this Lease beyond any
applicable cure period provided for in Article 23 and, at Landlord's option (and without waiving such default), for each full or
partial day that the Premises are not open or in which such hours are not maintained, Tenant shall pay as additional rent an amount
equal fo 50% of the prorated Minimum Rent for such day (based on the number of days in the calendar month in which such day
falls) as consideration for the negative impact thet Tenant's failure to open the Premises or to keep the Premises open will have on
the remainder of the Center. This amount is in addition to the regular installments of Minimum Rent and all other sums due under
this Lease and all other rights and remedies Landlord ray have, including the right to terminate this Lease.
(® Tenant agrees not to use or occupy the Premises or any part thereof, nor permuit the same to be used or occupied, for
‘any purpose contrary to present or future Jaw or the rules or regulations of any public authority or the requirements or
recommendations of any insurance underwriters or rating bureaus or in any manner that will increase the cost to Landlord of any
insurance. On request Tenant will reimburse Landlord for all extra premiums resulting from Tenant's use of the Premises, whether
‘or not Landlord bas consented to such use (nothing herein authorizes a use other than the Permitted Use). Tenant shall promptly
comply with all present and future recommendations and requirements of the National Board of Fire Underwriters or any other
body exercising similar functions which may be applicable to Tenant, the Premises and/or Tenant's use of the Premises.
) Tenant agrees to spend each Lease Year an amount not less than 5% of the Minimum Rent payable for such Lease
‘Year in advertising of its business operation at the Center in newspapers, radio, television or other media selected by Tenant.
‘Within 30 days after the end of each Lease Year, Tenant shall fumish Landlord with reasonable evidence that ‘Tenant has satisfied
‘this requirement with respect to such Lease Year.
10. MARKETING FUND OR MERCHANTS’ ASSOCIATION: [Intentionally omitted.
il. ALTERATIONS: Tenant agrees not to make or permit any alterations, improvements, additions and/or other
changes (collectively, “Alterations”) in or to the Premises except with Landlord's prior written consent in each instance, which
consent is dealt with in the next paragraph. Alterations shall be (a) made only in accordance with plans and-specifications first
8 Lier
V Uapproved by Landlord in writing, all applicable laws and codes, the recommendations of Landlord's insurers and the “Tenant
Improvements Rules and Regulations” attached, (b) made only by one or more contractors duly licensed to perform such work in
‘the county where the Center is located, and (c) deemed to have attached to the freehold and to have become Landlord's property
isamediately on installation and shall remain for the benefit of Landlord 2t the expiration or sooner termination of the Term;
provided, however, if prior to the expiration or termination of the Term, or within 30 days thereafter, Landlord so elects in a
written notice to Tenant, Tenant, at its expense, shall promptly remove all or any Alterations designated in Landlord's notice and
shall repair any damage occasioned by such Alterations and their removal, and if Tenant does not do so Landlord may effect such
removal and repairs at Tenant's expense plus interest at the rate of 15% per annum, payable on request.
Landlord will not unreasonably withhold its consent to Tenant making interior, non-structural Alterations, at Tenant's
expense, provided they will not diminish the value of the Premises and/or the Center and that each of the following conditions is
satisfied at Tenant's expense: (i) prior to the commencement of any such work (x) Tenant will submit to Landlord for approval
(which will not be unreasonably withheld) plans and specifications in detail reesonably satisfactory to Landlord, (y) Tenant will
deliver to Landlord original certificates of insurance evidencing that each of Tenant's contractors has obtained, in comnection with
‘the Alterations, liability insurance and workers' compensation insurance meeting all of the requirements applicable to Tenant
pursuant to Article 13 (such liability coverage must include Landlord, its property manager and designee(s) as additional insureds
and will be primary as to any insurance carried by Landlord, its property manager and designee(3)), and (2) Tenant will obtain, and
muake available to Landlord for inspection, copies of all requisite permits, approval
Preview
Case Number: CACE-15-016079 Division: 14 Filing # 31734228 E-Filed 09/04/2015 01:43:51 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO.: IVC CORAL PALM, LLC, a Delaware Limited Liability Company, Plaintiff, v. ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, a Florida Limited Liability Company, d/b/a ROSEDALE BRICK OVEN PIZZERIA; JOSEPH ARATO, Individually; KARYN ARATO, Individually; JOSEPH GONNELLY, Individually; and JOAN GONNELLY, Individually, Defendants. / COMPLAINT FOR DAMAGES Plaintiff, IWC CORAL PALM, LLC, a Delaware Limited Liability Company, sues Defendants, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, a Florida Limited Liability Company, d/b/a ROSEDALE BRICK OVEN PIZZERIA; JOSEPH ARATO, Individually (‘GUARANTOR’); KARYN ARATO, Individually (‘GUARANTOR’); JOSEPH GONNELLY, Individually (“GUARANTOR”); and JOAN GONNELLY, Individually (‘GUARANTOR’), and alleges: COUNT | — BREACH OF CONTRACT ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC 1. This is an action for damages based upon breach of contract against the Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, a Florida Limited Sotowsky & ALLEN, P.L. 915 MIAMI CENTER - 201 S. BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 TEL (305) 371-2223 ** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 9/4/2015 1:43:50 PM.****CASE NO.: Liability Company, d/b/a ROSEDALE BRICK OVEN PIZZERIA (“ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC’), which exceeds $15,000.00 exclusive of interest, costs and attorneys’ fees, and which is within the jurisdiction of this Court. 2. Plaintiff, IWC CORAL PALM, LLC, a Delaware Limited Liability Company (‘Plaintiff’), owns the following described real property in Broward County, Florida (the “Leased Premises”): Coral Palm Plaza 2049 N. University Drive Room #2049 Coral Springs, Florida 33071 3. On January 15, 2013, Defendant, CORAL SPRINGS PHYSICIANS ASSOCIATES, INC., took possession of the Leased Premises under that certain written Shopping Center Lease Agreement entered into with Plaintiff for the above-described Leased Premises (the “Lease”). (A true and correct copy of the Lease is attached hereto and made a part hereof as Plaintiff's Exhibit “A’). 4, Pursuant to the Lease, Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, was obligated to pay to Plaintiff certain rent, together with other charges and sales tax thereon. 5. Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, notwithstanding its obligations under the Lease, has failed to pay rent and other charges due and owing through and including the month of August, 2015. 6. Rent will continue to accrue during the pendency of this action. 7. On July 14, 2015, Plaintiff served Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, with a Notice of Default. (A copy of said Notice of Default is attached hereto and made a part hereof as Plaintiff's Exhibit “B”). -2- Soowsky & ALLEN, P.L. ‘915 MIAMI CENTER - 201 S. BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 TEL (305) 371-2223CASE NO.: 8. Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, has failed and refused to pay Plaintiff all the rent, late charges, adjustments and interest due under the Lease. 9. In August, 2015, Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, further defaulted under the Lease by vacating and ceasing to do business in the Leased Premises, as set forth in Article 9(e) of the Lease. 10. On August 19, 2015, Plaintiff served Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, with a Notice of Default for vacating and ceasing to do business in the Premises in violation of Article 9(e) of the Lease. (A copy of said Notice of Default is attached hereto and made a part hereof as Plaintiff's Exhibit “C’). 11. Article 23 of the Lease provides that in the event that Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, defaults under the Lease, Plaintiff may declare all Minimum Rent and other sums payable under this Lease for the entire unexpired Term to be immediately due and payable. Plaintiff hereby declares such amount due and payable. 12. Plaintiff has engaged the undersigned attorneys to bring this action and is obligated to pay them a fee for their services. 13. Article 25 of the Lease provides for payment of reasonable attorneys’ fees and all expenses of suit. 14. Venue is proper in Broward County, Florida. 15. All conditions precedent to this action have been performed, satisfied, waived or excused. Sotowsky & ALLEN, P.L. 915 MIAMI CENTER - 201 S. BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 TEL (305) 371-2223CASE NO.: 16. Plaintiff has been damaged as a result of Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC’s breach of the Lease. WHEREFORE, Plaintiff, IWC CORAL PALM, LLC, a Delaware Limited Liability Company, demands judgment against Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, a Florida Limited Liability Company, d/b/a ROSEDALE BRICK OVEN PIZZERIA, for damages, together with interest, attorneys’ fees, court costs, and such other and further relief as is proper. COUNT Il - BREACH OF GUARANTY JOSEPH ARATO, KARYN ARATO, JOSEPH GONNELLY, AND JOAN GONNELLY 17. This is an action for damages based upon breach of Guaranty against Defendants, JOSEPH ARATO, KARYN ARATO, JOSEPH GONNELLY, and JOAN GONNELLY, which exceeds $15,000.00 exclusive of interest and costs. 18. Plaintiff repeats and realleges paragraphs 2 through 16 above as though copied herein in full. 19. On or about January 9, 2013, Defendants, JOSEPH ARATO, KARYN ARATO, JOSEPH GONNELLY, and JOAN GONNELLY, executed a Guaranty Agreement guaranteeing absolutely and unconditionally the obligations of tenant under the Lease including but not limited to guaranteeing prompt payment of rent and other charges. (A true and correct copy of the Guaranty Agreement is attached to the Lease which is Plaintiffs Exhibit “A” hereto). 20. Defendants, JOSEPH ARATO, KARYN ARATO, JOSEPH GONNELLY, and JOAN GONNELLY, breached the Guaranty Agreement by failing to pay to Plaintiff all sums due Plaintiff as a result of the breach of the Lease by Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC. -4- Sovowsky & ALLEN, P.L. 915 MIAMI CENTER - 201 S, BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 TEL (305) 371-2223CASE NO.: 21. Plaintiff has been damaged as a result of Defendants’, JOSEPH ARATO, KARYN ARATO, JOSEPH GONNELLY, and JOAN GONNELLY, breach of the Guaranty Agreement. 22. The Guaranty Agreement provides for Defendants’ payment of all attorneys’ fees and disbursements incurred by Plaintiff in connection with any breach or default by Defendant, ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, and for the enforcement of the Guaranty Agreement. WHEREFORE, Plaintiff, IVC CORAL PALM, LLC, a Delaware Limited Liability Company, demands judgment against Defendants, JOSEPH ARATO, KARYN ARATO, JOSEPH GONNELLY, and JOAN GONNELLY, jointly and severally, for damages, together with interest, attorneys’ fees, court costs, and such other and further relief as is proper. Respectfully submitted, SoLowsky & ALLEN, P.L. Attorneys for Plaintiff, IVC CORAL PALM, LLC 915 Miami Center 201 S. Biscayne Boulevard Miami, Florida 33131 Telephone No. (305) 371-2223 Facsimile No. (305) 373-2073 Primary: rallen@salawmiami.com 2"? One: mlopez@salawmiami.com 2™ Tw6: bleadings@salawmiami.com Wi RICHARD L. ALLEN lorida Bar No. 295485 By: i:\main\gumberg\coral palm plaza\rosedale\damages\pleadings\complaint for damages.docx -5- Sotowsky & ALLEN, P.L. 915 MIAMI CENTER - 201 S. BISCAYNE BOULEVARD, MIAMI, FLORIDA 33131 TEL (305) 371-2223,Table of Contents of Standard Shopping Center Lease Between IVC CORAL PALM, LLC, A DELAWARE LIMITED LIABILITY COMPANY AND ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC ARTICLE INTRODUCTORY PROVISIONS 1 ~ DEMISE OF PREMISES 2. - TERM EXPIRATION; BUILDOUT PERIOD 3 - MINIMUM RENT 4 - REPORTING GROSS SALES 5. - OPERATING EXPENSES; COMMON AREA 6. -SALESANDOTHERTAX 1. - DESCRIPTION AND CONDITIONS OF ANY LANDLORD'S WORK IN THE PREMISES 8 - DESCRIPTION AND CONDITIONS OF ANY TENANT'S WORK IN THE PREMISES 9. - USE OF THE PREMISES 10. - MARKETING FUND OR MERCHANTS' ASSOCIATION 1. - ALTERATIONS 12, ~ MAINTENANCE AND REPAIRS 13. - INDEMNITY; INSURANCE REQUIREMENTS; HAZARDOUS MATERIALS 4 ~ MECHANICS LIENS 15, - DESTRUCTION AND RESTORATION 16. - PROPERTY IN THE PREMISES 7. - ACCESS TO THE PREMISES, ETC. 38. - SURRENDER OF THE PREMISES 19. - UTILITIES 20. ~ ASSIGNMENT, SUBLETTING, ETC. 21. - '§ ADDITIONAL AGREEMENTS 2. ~ EMINENT DOMAIN B. - DEFAULT BY TENANT 24. - DEFAULT BY LANDLORD 25. ~ PREVAILING PARTY 26. - ESTOPPEL CERTIFICATE, ATTORNMENT AND SUBORDINATION 21. - HOLDING OVER : 28. - QUIET ENJOYMENT 29. - SECURITY AGREEMENT 30. ~ LANDLORD'S RIGHT TO PERFORM FOR TENANTS ACCOUNT 31. - WAIVER 32, -NO ACCORD AND SATISFACTION 33. - NOTICES 34, - FORCE MAJEURE 35. ~ DEFINITION OF TERMS 36, - SECURITY DEPOSIT 37. - ADDITIONAL PROVISIONS 38. - NO RIGHT OF COUNTERCLAIM OR JURY TRIAL 39. - LIMITED LIABILITY 40. ~ LEASE VALIDITY AND TENANT'S OFFER, AL. - COMPETITION 42. TRASH REMOVAL 43, - RELOCATION OF TENANT a4, - OFFICE OF FOREIGN ASSETS CONTROL CERTIFICATION 4. - WAIVER OF SUBROGATION EXHIBIT A - SITE PLAN EXHIBIT B - SIGN CRITERIA. EXHIBIT C - TENANT'S "COMING SOON" SIGN EXHIBIT D - MATERIALS AND FINISHES FOR CERTAIN ITEMS IN THE PREMISES RADON DISCLOSURE RIDER LANDLORD'S WORK RIDER ABATEMENT RIDER, OPTIONS TO EXTEND LEASE TERM RIDER EXCLUSIVE USE RIDER PYLON RIDER STANDARD RESTAURANT PROVISIONS RIDER TENANT IMPROVEMENTS RULES AND REGULATIONS EXHIBIT Hae[ ‘STANDARD SHOPPING CENTER LEASE ] INTRODUCTORY PROVISIONS FORMING A PART OF THUS LEASE LEASE DATE: 2013. NAME AND MAILING ADDRESS OF "LANDLORD": IVC CORAL PALM , LLC, A DELAWARE LIMITED LIABILITY COMPANY, c/o Gumberg Asset Management Corp., 3200 N. Federal Highway, Ft. Lauderdale, FL 33306 (Attn: Legal Dept.), AU payments to be made to Landlord are to be sent to IVC Coral Palm, LLC, P.O. Box 535505, Atlanta, GA 30353-5505, and must include Tenant’s Unit/Reference No. “465-2049-CU” on the remittance. NAME AND MAILING ADDRESS OF "TENANT": ROSEDALE RESTAURANT OF CORAL SPRINGS, LLC, 1427 Pine Ridge Road, #105, Naples, FL 34109, with a copy of any default notice to Rosedale Restaurant of Coral Springs, LLC, 2049 N. University Drive, Coral Springs, FL 33071. NAME OF "CENTER": CORAL PALM PLAZA, located in the City of Coral Springs, State of Florida. "PREMISES" (Article 1): ROOM #2049 in the Center, having as its address 2049 N. University Drive, Coral Springs, FL 33071. For the purposes of this Lease, the parties agree that the Premises contain 3,000 square feet of “Floor Area,” as defined in Article 35, "PERMITTED USE" (Article 9: A brick oven pizzeria restaurant serving traditional Italian menu items for on- Premises and off-Premises consumption. Notwithstanding anything to the contrary herein, (a) upon obtaining the applicable license (the “License”), Tenant may sell beer and wine to its patrons (but in no event beverages containing distilied alcohol) at the Premises, and (b) beer and wine sold for off-Premises consumption shall be soid only in sealed containers and Tenant shall strictly enforce these restrictions. Without limiting any other provisions of this Lease, a default by Tenant hereunder shall occur if Tenant does not do one cor more of the following with respect to the License (cach, a “License Default”): comply with any requirements of law respecting the License; maintain the License in good standing; file for all renewals of the License when due, Immediately upon the occurence of a default under this Lease resulting in a termination of Tenant's tight to possession of the Premises, or immediately upon the expiration or sooner termination of this Lease, Tenant, at its expense, shall transfer the License to Landlord or its designee. If for any reason Tenant fails to do so, Landlord is hereby authorized (but not obligated) to effect such transfer pursuant to the power of attorney set forth below. Landlord is hereby appointed the true and lawful attorney-in-fact of Tenant, in its name and stead, to execute and deliver all documents, instruments and writings that Landlord deems necessary or advisable in connection with the preservation and/or transfer of the License, including obtaining renewals of the License, responding to or participating in any investigation or administrative or judicial proceeding involving the License, and placing the License in safekeeping, all at the sole and exclusive election of Landlor. Tenant shall be responsible for all costs, fees and expenses, including reasonable attorneys” fees, associated with any such action by Landlord. The foregoing power of attomey is imevocable and coupled with an interest. “TENANT'S TRADE NAME" (Article 9): ROSEDALE BRICK OVEN PIZZERIA. "TERM" OF LEASE (Article 2): 10 years, commencing on the date (the “Commencement Date”) that is first to ocour of the date that all or any part of the Premises opens for business with the public or the 150th day after the date that Landlord tenders delivery of possession of the Premises to Tenant with “Landlord's Work,” as defined in the attached “Landlord’s Work Rider,” substantially completed (the “Delivery Date”). “MINIMUM RENT” (Article 3; "Lease Year" is defined in Article 35): PER YEAR PER MONTH BEGINNING THROUGH $63,000.00 $5,250.00 On the Commencement Date ‘Lease Year 5 $69,300.00 $5,775.00 Lease Year 6 ‘Remainder of the Term "SECURITY DEPOSIT" (Article 36): $8,000.00. NUMBER. OF DAYS ALLOWED TO TENANT TO OPEN THE PREMISES FOR BUSINESS WITH THE PUBLIC (Article 9): 150 days after the Delivery Date. PROCURING BROKER(S) (Article 37): Rotella Group, 3300 N. Federal Highway, Suite 200, Ft. Lauderdale, FL 33306, and Guuiberg Asset Management Corp., 3200 N Federal Highway, Ft. Lauderdale, FL 33306. DAYS PER WEEK THE PREMISES MUST BE OPEN FOR BUSINESS (Article 9): Monday through Sunday, except as otherwise set forth in Article 9(¢) hereof.MINIMUM HOURS THE PREMISES MUST BE OPEN EACH BUSINESS DAY (Article 9): Noon to 9:00 P.M. ‘Mondays through Saturdays and noon to 5:00 P.M. Sundays, except as otherwise set forth in Article 9(e) hereof. REQUIRED AMOUNT OF LIABILITY (PLUS, IF APPLICABLE, SEPARATE LIQUOR LIABILITY) INSURANCE (Article 13): $1,000,000 per occurrence’$2,000,000 general ageregate. CONDITION OF PREMISES ON POSSESSION BY TENANT (Article 7): See the Landlord’s Work Rider. aa* * + * * * * * * * * * ® * 1. DEMISE OF PREMISES: Landlord leases to Tenant, and Tenant rents from Landlord, the Premises, The Premises’ approximate boundaries are shown on the site plan attached as Exhibit "A" solely for the purpose of illustrating the general location of the Premises in the Center. Tenant has no right to use for any purpose any part of the roof and/or the exterior walls of the Premises, except as may be otherwise specifically provided in this Lease. 2. TERM EXPIRATION; BUILDOUT PERIOD: Notwithstanding anything herein, if, by reason of Introductory Provision H, the Term would otherwise expire prior to the last day of a month, the Term will be automatically extended to expire on the last day of the month. As used herein, the "Buildout Period” means the period between the Delivery Date and the Commencement Date, Except for Tenant's obligation to pay Minimum Rent and the monthly additional rent called for by Article 5 (which obligation will not begin to accrue until the Commencement Date), cach and all of the terms and conditions of this Lease will apply throughout the Buildout Period. 3. MINIMUM RENT: ‘Tenant agrees to pay Mininium Rent in advance on the first day of each calendar month, at the address specified in Introductory Provision B or such other place as Landlord may designate from time to tine, without prior notice or demand and (except as may be otherwise specifically provided herein) without any deduction, set-off or abatement, ‘Minimum Rent will be appropriately prorated for any partial calendar mouth occurring at the beginning of the Tema. If any installment of Minimum Rent or any additional rent becomes overdue for more than 5 days, a “Late Charge” of 10 cents per each overdue dollar shall be paid by Tenant on request; if the Late Charge is not paid on request, the entire unpaid amount of the arrearage and the Late Charge will accrae interest at the rate of 15% per annum ftorn the due date until fll payment is received by Landlord. However, if, more than twice in any 12-month period, any installment of Mininaum Rent or any additional rent becomes overdue for more than 5 days, thereupon the Late Charge will be increased automatically and without notice to 15 cents per each overdue dollar, to be paid by Tenant on request; ifthe Late Charge is not paid on request, the entire amount of the arrearage and tho Late Charge will accrue interest at the rate of 18% per annum from the due date until full payment is received by Landlord. ‘The Late Charge and interest thereon do not constitute a penalty and are acknowledged by Tenant to be fair and reasonable and shall be in addition to, and will not preclude Landlord from, any other remedy at law, in equity and/or under this Lease. In this regard, without limiting the foregoing and notwithstanding anything to the contrary in this Lease, if, more than 3 times in any 12 month period, any installment of Minimum Rent or any additional rent becomes overdue for more than $ days, stich fact will _ Constitute a default under this Lease beyond any applicable grace period and without the requirement of notice from Landlord, entitling Landlord to exercise all available default rights and remedies, including termination of this Lease and eviction of Tenant. 4. REPORTING GROSS SALES: On or before the 60th day after the end of each Lease Year (Including the ‘Lease Year in which the expiration of the Term occurs) Tenant will furnish Landlord with a statement of "Gross Sales," as defined below, for the preceding Lease Year or partial Lease Year. Each such statement must be certified as complete and cormect by ‘Tenant (if Tenant is one or more individuals) or by an officer, managing membet or partner of Tenant (if Tenant is an entity), as the case may be, Tenant will require its subtenants, concessionaires and licensees to simultaneously furnish similar statements to Landlord. All statements of Gross Sales must be in form satisfactory to Landlord and must be accompanied by a copy of the Sales and Use Tax Retum (“Return”) filed by Tenant with the Florida Department of Revenue for each month in the applicable Lease ‘Year. If any statement of Gross Sales and/or Return copy is not timely furnished to Landlord, upon request Tenant will pay to Landlord as additional rent 2 fine of $100.00 for each such overdue statement and/or Return copy. "Gross Sales" means the gross receipts of Tenant, and of all licensees, concessionaires and subtenants of Tenant, from all activities generated, originating or conducted in, at, on or from any part of the Premises (including sales by means of any computer or mechanical or vending device), and encompasses all charges for cash or credit. A service, sale or rental will be deemed made in the Premises if the order is placed, secured or received in the Premises, in-person or pursuant to mail, telegram, telephone, computer or other means, whether (or not it is filled in the-Premises; and, for the purposes hereof, a sale generated from any Intemet “Web site” or other computer link siow or hereafter established for the Premises will be deemed placed at the Premises. Upon not fewer than 10 days? prior written notice to Tenant, Landlord, at its expense, may audit Tenant’s books aad records respecting Gross Sales. Nothing herein constitutes a consent by Landlord to occupancy of all or any part of the Premises by a subtenant, licensee or concessionaire, of to the use of any mechanical or other vending device, ia violation of the provisions of this Lease. > Xiu5. OPERATING EXPENSES; COMMON AREA: (a) Tenant agrees to pay to Landlord, as additional rent, ‘Tenant's “Proportionate Share” (defined below) of certain expenses Landlord may incur in operating the Center (collectively, “Operating Expenses”). Initially, Tenant’s Proportionate Share of Operating Expenses shall be as set forth in Introductory Provision L. Operating Expenses inclnde without limitation those generally related to: operating, managing, insuring, equipping, lighting, repaiting, replacing and maintaining the Center and the “Common Area” (defined in Article 35); providing security protection and fire protection for the Center (if and to the extent Landlord determines the same to be necessary); maintaining, repairing and replacing the exterior walls, foundations, roofs, building mechanical systems, electrical systems, sprinkler systems, plumbing systems, gutters, downspouts, awnings, canopies and similar elements of ell buildings in the Center, including building reconstruction required by changes in applicable codes and ordinances; insuring all of the Center buildings and other improvements in the Center; and all real estate taxes, personal property taxes and other governmental and quasi-goveramental charges levied or assessed against all or any part of the Center, all assessments for public improvements benefiting all or any part of the Center and any amounts Landlord may spend comesting the same, up to the amount of any reductions obtained. Any ‘expenses for capital improvements that are included in Operating Expenses shall be amortized on a straight-line basis over a period of 5 years; Tenant shall be responsible only for those amortized payments that are due and payable during the original ‘Term of this Lease as the same may be extended pursuant to “Options to Extend Lease Term Rider” attached to this Lease, ‘Examples of some (but not necessarily all) of the costs which will be included in Operating Expenses are those Landlord incurs for the following: general maintenance, repairs, cleaning, painting, refurbishing, and decorating; cleaning and repair of the sidewalks, windows, walls, mullions, curbs, elevated walkways, hallways, elevators and stairways; maintenance, restriping, resurfacing and repair (including replacement) of driveways arid parking areas; Christmas and/or other holiday decorations on the buildings of the Center or in the Common Area; maintenance and replacement of the landscaped areas, trash receptacles, bench¢s, signs, directories, and other property and facilities in the Common Area, including the lighting systems in the Common Area; janitorial services in the Common Area; removal of garbage, trash, rubbish and other refuse within the Center; fire protection and security systems (if any), maintenance of storm drainage, sanitary sewer, trash disposal and other utility systems; non-ad valorem. assessments, fees and charges; water/sewer service to the Center; electricity for lighting and other equipment in the Common Area; wages and related payroll costs of personnel Landlord employs to iinplement those services; insurance premiums for Landlord’s public Hability, property damage, windstomm, flood (if applicable), business interruption, fire and extended coverage insurance for ail buildings and other improvements in the Center and such other insurance as Landlotd deems appropriate, and insurance deductible amounts; fees for required inspections, licenses and permits; environmental audits; supplies; straight-line depreciation ‘on machinery and equipment purchased for the purpose of maintaining and operating the Center, or rental paid for such machinery and equipment if rented; fees for management of the Center; legal and accounting expenses relating to collection of and administration of Operating Expenses; and an administrative charge of 15% of all of the above expenses excluding real estate taxes and personal property taxes. {b) The following categories of expenses will not be included in Operating Expenses: depreciation on any buildings or other improvements; interest or principal payments on mortgages covering the Center; federal or state income taxes attributable to Landlord’s ownership of the Center, and penalties for delinquent payment of real estate taxes. (© Tenant's “Proportionste Share” of Operating Expenses will be the percentage obtained by dividing the Floor Area of the Premises by the total Floor Area of all leased and occupied space located within the Center. (For this purpose, Floor Area will not include any space in the Center which is leased by a “Major Tenant” (defined in Article 35({) hereof) who is not required to fully share in the payment of Operating Expenses, and will not include outparcel buildings, if any. To the extent that any such Major Tenant or outparcel building does contribute toward Operating Expenses, that contribution will be applied to reduce the total amount of Operating Expenses payable by Tenant.) (@) Payments of Tenant’s Proportionate Share of Operating Expenses are due monthly, on the first day of each mouth, together with payments of Minimum Rent, and are based on estimates of expenses for each upcoming cslendar year. For each calendar year, Landlord will fiamish Tenaut with an estimate of Operating Expenses for the new calendar year, along with a statement of Tenant's Proportionate Share of the same (including any deficiency for any applicable months of the new calendar yeat). Until Tenant receives the new estimate for each yeat, Tenant will continue to pay Tenant's Proportionate Share based on the previous calendar year’s estimate, Thereafter, Tenant will pay to Landlord, with each monthly payment of Minimum Rent,additional rent equal to 1/12 of Tenant's annual Proportionate Share of the estimated Operating Expenses for that calendar year. ‘Tenant's Proportionate Share of the actual Operating Expenses for the full calendar year will be adjusted upward or downward on or about the following March 31%, and, as applicable, Tenant will pay any shortfall within 10 days after billing or (provided no defaalt on Tenant's part exists under this Lease) be credited with any excess with respect to the next due payment(s) from Tenant ‘on account of Operating Expenses. {e) Tenant waives any right it may have by statute or otherwise to protest with the taxing authorities all or any part of the real estate taxes and personal property taxes assessed against the Center. (® Ifa taxing authority includes in the computation of real estate taxes and/or personal property taxes assessed against the Center any leasehold improvements made by or for Tenant and/or any other property or assets of Tenant, then at Landlord's election Tenant shall also pay the entire amount of such taxes for those items; if all or any portion of such amount is paid by Landlord, the same shall be reimbursed by Tenant to Landlord, as additional rent, within 10 days after billing. (@ Landlord grants to Tenant during the Term a non-exclusive license to use the Common Area as constituted from time to time, in common with Landlord, other tenants and occupants of the Center and their respective employees, agents, licensees, contractors, customers and offer invitees. The Common Area shall be subject to Landlord's exclusive contro! and management. (h) Landlord shall have the unrestricted right at any time(s) to: close any or all of the Common Area to such extent as may be legally sufficient to prevent a dedication thereof or the accrual of any rights to any person or to the public therein; temporarily close all or any of the parking areas to discourage non-customer parking; and make changes, additions, deletions, alterations and/or improvements in and to any or all of the Common Area, inchiding changes as in appearance, layout, shape, size and location, erecting thereon store buildings or other structures or improvements of any kind and adding extensions to the same; in performing any such work, Landlord will use reasonable efforts not to materially affect Tenant's business (but this does not ‘require the use of overtime belp). @ Landlord agrees to maintain the Common Area in reasonably good repair and reasonably clear of debris, lighted when necessary and open during each business day. @ Landlord reserves the right, from time to time, to utilize portions of the Common Area (including any common mall area) for camival type shows, rides and entertainment, outdoor shows, displays, automobile and other product shows, business promotions, the leasing of pushcatts, wallshops, Kiosks or sales space, or other uses which in Landlord's judgment tend to attract the publio; in connection with any such utilization Landlord will use reasonable efforts not to materially affect Tenant's business. Further, Landlord reserves the right to utilize the lighting standards and other areas in the parking lot and any common mall area for advertising purposes and to designate one or more parking areas for employee parking, and Tenant shall cause ts employees to park only in the designated area(s) of, if none shall be designated, then only in the outer areas of the parking lot. Within 10 days after each request by Landlord, Tenant will deliver to Landlord a list of the motor vehicles that Tenant and its employees drive to the Center when working at the Premises (the "Vehicle List"). The Vehicle List will set forth in reasonable detail the name(s) of the registered owner(s) and Griver(s) of each such vehicle, and the’ vehicle's make, model, color(s), license plate number and state of issuance. From time to time Tenant will give prompt written notice to Landlord of any change, addition and/or deletion that should be made to the Vehicle List. Lf any vehicle that appears (or should appear) on the Vehicle List violates this provision by paring anywhere in the Center other than the pennitted area(s) referred to above, and if prior notice has been given to Tenant (or to the manager of the Premises) that the same vehicle had previously parked in violation of this provision, then on request Tenant will pay to Landlord $15.00 per day, for each such vehicle, for each full or partial day that the new violation exists. In addition, if any vehicle that appears (or should appear) on the Vehicle List violates this provision, Tenant, for itself and on behalf of each of its present and future employees, authorizes Landlord and its property manager, at any time(s) and at Tenants expense (payable on request), to remove such vehicle or cause it to be removed from the Center and/or to attach violation stickers or notices to such vehicle, Tenant agrees to and hereby does indemnify, protect, defend and hold Landlord, its property manager and mortgagee(s) harmless against all Habilities, costs and expenses résulting from or.in any way connected with any such acts. (&) Notwithstanding anything to the contrary herein, initially, and continuing through December 31, 2013, Tenant's monthly payments on account of Operating Expenses will be as specified in Introductory Provision L and the year-end adjustment procedure contemplated by “(d)” of this Article will apply with respect to calendar year 2013. Commencing January 1, 2014, and RA von the first day of each subsequent Jenuary, the amount payable by Tenant on account of Operating Expenses, except and excluding “Non-Controllable Operating Expenses” (defined below), for each calendar year automatically shall be increased by 3% over the amount payable on account of the same in the immediately preceding calendar year, provided, however, that this limitation will not apply to, and there is no limitation on, real estate taxes, special assessments, personal property taxes, insurance preminms, removal of trash (which term also includes rubbish, refuse and garbage), security (if any), and utilities (collectively, “Non-Controllable Operating Expenses”), and at all times in the Term Tenant will be required to pay Tenant's Proportionate Share of Non-Controltable Operating Expenses as and when payments from Tenant are required by this Article (it being understood that the 15% administrative charge called for by “(a)” of this Article will be included in computing Tenant’s Proportionate Share of ‘Non-Controliable Operating Expenses). For the purposes of computing the amount payable by Tenant on account of Operating Expenses for calendar year 2013, such amount will be deemed to be $21,270.09. With regard to the immediately preceding paragraph, by way of illustration and not limitation (as used herein, “Controllable Operating Expenses” means Operating Expenses less and except Non-Controllable Operating Expenses): ()) assuming that for calender year 2013 Tenant pays $21,270.00 on account of Operating Expenses and of that amount Controllable Operating Expenses are $9,000.00 and Non-Controllable Operating Expenses are $12,270.00, then for calendar year 2014 ‘Tenant’s payment toward Controllable Operating Expenses will be $9,270.00 (i.e., an increase of 3% over the $9,000.00) and Tenant’s payment for Non-Controllable Operating Expenses will be an amount equal to Tenant’s Proportionate Share thereof, including the 15% administrative fee called for by “(a)” of this Article; and (ii) assuming that Tenant’s payment toward Controllable Operating Expenses for calendar year 2014 is $9,270.00, then for calendar year 2015 Tenant's payment toward Controllable Operating Expenses will be $9,548.10 (ie., an increase of 3% over the $9,270.00) and Tenant’s payment for Non- Controllable Operating Expenses will be an amount equal to Tenant’s Proportionate Share thereof, including the 15% administrative fee called for by “(a)” of this Article. (@ Notwithstanding anything to the contrary in “(k)” above, if any special assessment may lawfully be divided and paid in annual installments, then, for the purposes of "(k)" above, such assessment shall be deemed to be so divided and to be payable in ‘the maximum number of annual instaliments permitted by law, and such assessment shall be deemed included in Non-Controllable Operating Expenses for any year only to the extent of the annual installment becoming a lien during such year, together with statutory interest payable in such year on the annual installment and on all installments thereafter becoming due os provided by Jaw, all as if such assessment had actually been so divided. 6 SALES AND OTHER TAX: All Minimum Rent and additional rent payable by Tenant to Landlord hereunder shall be accompanied by payment of sales tax and other governmental tax or charge thereon to the extent then required by law. ‘Tenant may provide to Landlord a Direct Pay Permit in accordance with Florida law, which will be considered compliance with this provision, he DESCRIPTION AND CONDITIONS OF ANY LANDLORD'S WORK IN THE PREMISES: Tenant acknowledges that it has examined and inspected the Premises to its satisfaction and acocpts the Premises in their “AS IS” condition, without any work and/or materials to be provided by Landlord with respect to all or any part of the Premises, except as specifically provided in the Landlord's Work Rider. a DESCRIPTION AND CONDITIONS OF ANY TENANT'S WORK IN THE PREMISES: Tenant, at its ‘expense, shall (a) promptly erect an exterior storeftont sign in accordance with Landlord's sign eciterie attached as Exhibit "B" (pot later than 30 days after the date of the mutual execution and delivery of this Lease, and in any event prior to the installation of Tenant’s exterior storefront sign, Tenant, at its expense, shall (f) submit to Landlord for approval permit drawings, in duplicate, for Tenant's exterior storefront sign in accordance with that Exhibit, such drawings to be prepared by, and such sign as approved in writing by Landlord to be erected by, a duly licensed and insured sign contractor, and (ii) furnish and install on the interior glass storefront of the Premises a sign that is approximately 2 feet high by 6 feet wide sign which must be as shown on Exhibit “C” attached to this Lease and must be removed by Tenant upon the opening of the Presaises for business), and : (b) except for the work and/or materials required of Landlord pursuant to the Landlord's Work Rider, do all work and provide all materials that may be needed to prepare the Premises for Tenants use and occupancy, all in accordance with (f) plans and specifications to be submitted by Tenant not later than 30 days after the date of the mutual execution and delivery of this Lease (and in any event prior to the commencement of Tenant's work) for written approval by Landlord or its property manager, fo 6 Taig “7h V Vvwhich approval shall not be unreasonably withheld as to interior, non-structural matters, and (fi) the attached "Tenant Improvements Rules and Regulations”. Tenant's plans and specifications must inchide, without limitation, fixtures, equipment, carpeting, other floorcovering and wallcovering, the roof vent contemplated by the “Standard Restaurant Provisions Rider” attached to this Lease, and all other intended improvements to the Premises, and must show the locations of such materials and finishes within the Premises, Approval by Landlord or its property manager of Tenant's plans and specifications will not impose any liability on Landlord or its property manager nor constitute a representation or other assurance thet they comply with applicable laws, ordinances, regulations and codes. All of Tenant's signage and Tenant work (including fixturing) must conform to all applicable laws, ordinances, regulations and codes, and Tenant, at its expense, shall obtain all permits, licenses and approvals that may be required by any governmental authority in connection with Tenant's signage and-Tenant work, including a Certificate of Occupancy or equivalent governmental approval; on request Tenant shall deliver to Landlord copies of the same as well as a set of the final plans and specifications, as revised and as approved by Landlord and all applicable governmental authorities, for all work done by or for Tenant to prepare the Premises for Tenant's use and occupancy pursuant to this Article. If ‘Tenant installs any electrical equipment that overloads the lines in the Premises or the building containing the Premises (the "Building", then Tenant, at its expense, shall promptly make whatever changes may be necessary to remedy such condition to Landlord's reasonable satisfaction. If this Lease permits Tenant to engage in the preparation of foods or packaged foods or to ‘engage in the use, sale or storage of any "Hazardous Materials,” as defined in Article 13, Tenant, at its expense, raust furnish and ‘install chemical extinguishing devices (such as Ansul) that are approved by the fire insurance rating organization and are in compliance with local codes. If gas is used in the Premises, Tenant, at its expense, must furnish and install manual and automatic gas cutoff devices. ‘Notwithstanding anything to the contrary herein, Tenant agrees that upon completion of Tenant’s work as contemplated by this Article, the interior of the Premises and all furniture, fixtures and equipment therein (“FF&E”) will in all respects (except, ‘perhaps, for square footage) be the same as or substantially similar to the interior of the restaurant operated on the date hereof in Naples, Florida, under Tenant’s Trade Name, inchiding the FF&E used therein on the date hereof. Without limiting the foregoing, Exhibit “D” attached to this Lease shows materials and finishes for various items used in the interior of the Naples restaurant, and Tenant must use the same or substantially similar materials and finishes for corresponding items in the Premises. (©) With regard to any guaranties and warranties which Tenant may receive in comection with Tenant's work Gollectively, the "Tenant Warranties"), insofar as the Tenant Warranties cover any plumbing, electrical, lighting and/or heating, ventileting and air-conditioning fixtures or equipment, promptly following Tenant's receipt of any of the Tenant Warranties, Tenant will furnish Landlord with a copy thereof. Tenant hereby assigns to Landlord all of Tenant’ right, title and interest in and to the Tenant Warranties, effective upon the expiration or sooner termination of the Term, at which time Tenant shall deliver the originals of such Tenant Warranties to Landlord. (See the Landlord’s Work Rider for provisions regarding “Landlord ‘Warranties.”) (@) Landlord and Tenant acknowledge and agree that: Tenant will take such action with respect to the storeftont of the Premises as may be required to install Tenant’s brickoven in the Premises; need to use a forklift to install its brickoven in the Premises; prior to such installation Landlord and Tenant must agree in writing on the date and time when such installation will ‘occur, and the same shall be when the work has the least impact on the operation of the other businesses in the Center; the forklift will be provided, and all work in connection with the installation of Tenant’s brickoven within the Premises will be and performed, by and at the expense of Tenant; as soon as possible after (and in any event on the same day that) Tenant’s brickoven is installed in the Premises, Tenant, at its expense, will repair ot replace (as applicable) any damage caused by or in connection with the work contemplated hereby; all work contemplated hereby will constitute part of Tenant's work as required by this Article 8 and will be performed in accordance with applicable laws, ordinances, regulations and codes and in connection with any work contemplated hereby, at all times during the course of such work Landlord. will be entitled (but not required) to have its representatives present at the site for inspection purposes, but such presence and/or inspection will not impose any obligation or liability whatsoever on Landlord or its representatives. 9, USE OF THE PREMISES: (a) The Premises shall be occupied only by Tenant and used solely for the Permitted Use, and by no other person or entity and for no other purpose, and Tenant shall operate its business throughout the ‘Term under Tenant's Trade Name. ‘Tenant hereby represents and warrants to Landlord that on the date of this Lease, Tenant has 7 ATi i) WAfull legal authority to use Tenant's Trade Name and that Tenant’s Trade Name does not violate any law, rule, order or regulation of any governmental or quasi-govermmental authority or the rights of any third party. Tenant, at its expense, shall take all actions necessary to protect its authority to use Tenant's Trade Name throughout the Term, (b) Tenant, at its expense and throughout the Term, will completely fumish and equip the Premises with appropriate and suitable furnishings and equipment so that at all times the Premises will constitute and be operated as a modem, first-class establishment. In furtherance (but not in limitation) of the foregoing, Tenant, at its expense, will renovate and/or repaint the interior of the Premises from time to time as Landlord may determine, but in no event more than once in any consecutive three ‘year period. (© Tenant, at its expense, agrees at all times to use and occupy the Premises in a safe and proper manner, not to commit -waste therein and to Keep the Premises (including windows, doors and all other glass) in a clean and neat condition, (@ Landlord reserves the right (but will not be obligated) at any time(s) to install, maintain, use, repair and replace pipes, utility systems, alarm monitoring devices, sprinkler risers, ductwork, conduits, utility lines and wires through hung ceiling space, column space and partitions, in or beneath the floor slab or above-or below the Premises or other parts of the Center; in doing so, Landlord will use reasonable efforts not to materially affect Tenant's business (but this does not require the use of overtime help). (© A primary consideration to Landlord is the agreement of Tenant to operate and maintain its business in the Premises, and within the time period specified in Introductory Provision R Tenant (subject only to delays beyond Tenant's reasonable control as contemplated by Article 34 hereof), shell open the Premises for business with the public and shall thereafter continuously occupy and actively and diligently operate its business in the whole of the Premises throughout the Term, at least on the days and during the hours specified in Introductory Provisions T and U (excepting holidays observed by the federal government), or longer as may be () determined by the Merchants” Association (if any) or (i) standard for shopping centers in the county where the Center is located, mafniaining an adequate staff of employees and a full and complete stock of merchandise and/or foods and beverages (as may be applicable to the Permitted Use) unless prevented from doing so by fire or other casualty or other canses beyond Tenant's control, If Tenant fails to open the Premises for business with the public within the time period specified in Introductory Provision R or fails thereafter to keep the Premises open each business day fully fixtured, stocked and staffed for normal business operations during the hours specified herein, Tenant will be in default under this Lease beyond any applicable cure period provided for in Article 23 and, at Landlord's option (and without waiving such default), for each full or partial day that the Premises are not open or in which such hours are not maintained, Tenant shall pay as additional rent an amount equal fo 50% of the prorated Minimum Rent for such day (based on the number of days in the calendar month in which such day falls) as consideration for the negative impact thet Tenant's failure to open the Premises or to keep the Premises open will have on the remainder of the Center. This amount is in addition to the regular installments of Minimum Rent and all other sums due under this Lease and all other rights and remedies Landlord ray have, including the right to terminate this Lease. (® Tenant agrees not to use or occupy the Premises or any part thereof, nor permuit the same to be used or occupied, for ‘any purpose contrary to present or future Jaw or the rules or regulations of any public authority or the requirements or recommendations of any insurance underwriters or rating bureaus or in any manner that will increase the cost to Landlord of any insurance. On request Tenant will reimburse Landlord for all extra premiums resulting from Tenant's use of the Premises, whether ‘or not Landlord bas consented to such use (nothing herein authorizes a use other than the Permitted Use). Tenant shall promptly comply with all present and future recommendations and requirements of the National Board of Fire Underwriters or any other body exercising similar functions which may be applicable to Tenant, the Premises and/or Tenant's use of the Premises. ) Tenant agrees to spend each Lease Year an amount not less than 5% of the Minimum Rent payable for such Lease ‘Year in advertising of its business operation at the Center in newspapers, radio, television or other media selected by Tenant. ‘Within 30 days after the end of each Lease Year, Tenant shall fumish Landlord with reasonable evidence that ‘Tenant has satisfied ‘this requirement with respect to such Lease Year. 10. MARKETING FUND OR MERCHANTS’ ASSOCIATION: [Intentionally omitted. il. ALTERATIONS: Tenant agrees not to make or permit any alterations, improvements, additions and/or other changes (collectively, “Alterations”) in or to the Premises except with Landlord's prior written consent in each instance, which consent is dealt with in the next paragraph. Alterations shall be (a) made only in accordance with plans and-specifications first 8 Lier V Uapproved by Landlord in writing, all applicable laws and codes, the recommendations of Landlord's insurers and the “Tenant Improvements Rules and Regulations” attached, (b) made only by one or more contractors duly licensed to perform such work in ‘the county where the Center is located, and (c) deemed to have attached to the freehold and to have become Landlord's property isamediately on installation and shall remain for the benefit of Landlord 2t the expiration or sooner termination of the Term; provided, however, if prior to the expiration or termination of the Term, or within 30 days thereafter, Landlord so elects in a written notice to Tenant, Tenant, at its expense, shall promptly remove all or any Alterations designated in Landlord's notice and shall repair any damage occasioned by such Alterations and their removal, and if Tenant does not do so Landlord may effect such removal and repairs at Tenant's expense plus interest at the rate of 15% per annum, payable on request. Landlord will not unreasonably withhold its consent to Tenant making interior, non-structural Alterations, at Tenant's expense, provided they will not diminish the value of the Premises and/or the Center and that each of the following conditions is satisfied at Tenant's expense: (i) prior to the commencement of any such work (x) Tenant will submit to Landlord for approval (which will not be unreasonably withheld) plans and specifications in detail reesonably satisfactory to Landlord, (y) Tenant will deliver to Landlord original certificates of insurance evidencing that each of Tenant's contractors has obtained, in comnection with ‘the Alterations, liability insurance and workers' compensation insurance meeting all of the requirements applicable to Tenant pursuant to Article 13 (such liability coverage must include Landlord, its property manager and designee(s) as additional insureds and will be primary as to any insurance carried by Landlord, its property manager and designee(3)), and (2) Tenant will obtain, and muake available to Landlord for inspection, copies of all requisite permits, approval