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HomeMy WebLinkAboutManpriya, Inc Lease Agreement /- - . -Jt'C' (;- - /'C> /7/ f{ 7 fI- Vlt,/~" LEASE AGREEMENT THIS LEASE AGREEMENT, made this i /u, day of IJ p y;' / , 2006, by and between the CITY OF MIAMI BEACH, a Florida municipal corporation, (hereinafter referred to as "City"), and MANPRIYA, INC., a Florida corporation, (hereinafter referred to as "Tenant"). 1. Demised Premises. The City, in consideration of the rentals hereinafter reserved to be paid and of the covenants, conditions and agreements to be kept and performed by the Tenant, hereby leases, lets and demises to the Tenant, and Tenant hereby leases and hires from the City, those certain premises hereinafter referred to as the "Demised Premises", located at 22 Washington Avenue, Miami Beach, Florida 33139, and more fully described as follows: Approximately two thousand eighty (2,080) square feet. Such Demised Premises are specified in Exhibit A, which is hereby made a part of this Lease Agreement (the Lease or the Agreement). 2. Term. 2.1. Tenant shall be entitled to have and to hold the Demised Premises for an initial term of five (5) years, commencing on the L day of Mav, 2006 (Commencement Date), and ending on the 30th day of April, 2011. 2.2. The City, at its sole discretion, may provide Tenant an option to renew the term of this Agreement for one additional term of four (4) years and 364 days. In the event Tenant wishes to request said renewal option, Tenant shall communicate said request, in writing, to the City at least 180 days prior to the end of the initial term. The City's response to said request will be provided to Tenant, in writing, no later than sixty (60) days after receipt of said written request from Tenant. 3. Rent. 3.1 Minimum Guarantee (MG). In consideration of the City executing this Agreement and granting the rights provided in this Agreement, commencing on May 1, 2006, and thereafter on May 1st of each year during the Term of the Agreement, Tenant shall pay to the City a Minimum Guaranteed (MG) rent of Fifty Two Thousand ($52,000) Dollars, plus applicable Sales and Use Taxes (as provided in Section 4.4 herein); said MG subject to the annual increases a~-deHneated in Subsection 3.1.1. ~ 3.1.1 Commencing with the second Lease year (i.e. May 1, 2007 to April 1 30, 2008), and each subsequent year during the initial term of this Agreement, the MG shall be automatically increased annually, on the anniversary of the Commencement Date of the Agreement (or May 1st), as delineated in the chart below: YEAR MINIMUM GUARANTEE 2 $53,560.00 3 $62,400.00 4 $64,272.00 5 $83,200.00 3.1.2 Commencing with the first year of the renewal term, as defined in Subsection 2.2, and each subsequent year during the renewal term of this Agreement, the MG shall be automatically increased annually, on the anniversary of the Commencement Date of the Agreement (or May 1st), as delineated in the chart below: YEAR MINIMUM GUARANTEE 6 $85,696.00 7 $88,267.00 8 $90,915.00 9 $93,642.00 3.1.3 PercentaQe of Gross Receipts vs. MG. During the Term of this Agreement, in the event that the amount equal to five (5%) percent of Tenant's annual gross receipts (GR) exceeds the Minimum Guarantee (MG) amount provided in Section 3.1 herein (and as increased annually pursuant to Subsections 3.1.1 and 3.1.2), then Tenant shall also pay to the City the difference between the amount of the GR and the MG amount, no later than June 30th of each year during the Term of this Agreement (including renewal terms). The term "gross receipts" is understood to mean all income, whether collected or accrued, derived by the Tenant from its operations related to this Agreement, AND INCLUDING, without limitation, all income, whether collected or accrued, from the restaurant operation located at 816 Commerce Street, Miami Beach, Florida. Any amounts that may be due for any Federal, State, or City sales tax, or other tax, governmental imposition, assessment, charge or expense of any kind and required by law to be remitted to the taxing authority, or other governmental authority, shall be the sole responsibility of Tenant. 3.2 Late Payment. Any payment which Tenant is required to make to the City which is not paid on or before the respective date(s) provided for in this Agreement shall be subject to be a penalty of $50.00 per day assessed for late or delinquent 2 payments, along with simple interest accruing to the City at the rate of ten (10%) percent per annum, from the due date of payment until such time as payment is actually received by the City. Payments shall be considered late when paid five (5) days after the due date. Interest shall accrue beginning with the tenth (10th) day following due date. 3.3 Sales and Use Tax. It is also understood that Tenant shall also include and forward to the City any and all additional sums for all applicable sales and use tax, now or hereafter prescribed by State, Federal or local law, and now described by Florida Statute 212.031. It is the City's intent that it is to receive all payments due from Tenant as net of such Florida State Sales and Use Tax. 3.4 Location for Payments. All rents or other payments due hereunder shall be paid to the City of Miami Beach at the following address: City of Miami Beach Finance Department c/o Revenue Supervisor 1700 Convention Center Drive Miami Beach, Florida 33139 4. MAINTENANCE AND EXAMINATION OF RECORDS. Tenant shall maintain current, accurate, and complete financial records on an accrual basis of accounting related to its operations pursuant to this Agreement, including such records and accounting related to the restaurant operation at 816 Commerce Street. Systems and procedures used to maintain these records shall include a system of internal controls and all accounting records shall be maintained in accordance with generally accepted accounting principles and shall be open to inspection and audit by the City Manager or his designee upon reasonable prior request and during normal business hours. Such records and accounts shall include a breakdown of gross receipts, expenses, and profit and loss statements, and such records shall be maintained as would be required by an independent CPA in order to audit a statement of annual gross receipts and profit and loss statement pursuant to generally accepted accounting principles. A monthly report of gross receipts must be submitted to the City, through the Finance Department's Revenue Manager, to be received no later than thirty (30) days after the close of each month. 5. INSPECTION AND AUDIT. Tenant shall maintain its financial records pertaining to its operation pursuant to this Agreement and including the restaurant operation at 816 Commerce Street for a period of three (3) years after the conclusion of the initial term, or (if approved) the last renewal term, and such records shall be open and available to the City Manager or his designee, as deemed necessary by the City Manager or his designee. Tenant 3 shall maintain all such records at its principal office, currently located at 816 Commerce Street, Miami Beach, Florida, 33139 or, if moved to another location, all such records shall be relocated, at Tenant's expense, to a location within the City of Miami Beach, within ten (10) days' written notice from the City Manager or his designee that the City desires to review said records. The City Manager or his designee shall be entitled to audit Tenant's records pertaining to its operation and including the restaurant located at 816 Commerce Street, as often as it deems reasonably necessary throughout the Term of this Agreement, and three (3) times within the three (3) year period following termination of the Agreement, regardless of whether such termination results from the natural expiration of the Term or for any other reason. The City shall be responsible for paying all costs associated with such audits, unless the audit(s) reveals a deficiency of five (5%) percent or more in Tenant's statement of gross receipts for any year or years audited, in which case the Tenant shall pay to the City, within thirty (30) days of the audit being deemed final (as specified below), the cost of the audit and a sum equal to the amount of the deficiency revealed by the audit, plus interest; provided, however, the audit shall not be deemed final until Tenant has received the audit and has had a reasonable opportunity to review the audit and discuss the audit with the City. Nothing contained within this Section shall preclude the City's audit rights for resort tax collection purposes. Tenant shall submit at the end of the initial term (and, if approved, any renewal term), a certified audited annual statement of gross receipts (including the restaurant at 816 Commerce Street), in a form consistent with generally accepted accounting principles. It is Tenant's intent to stay informed of comments and suggestions by the City regarding Tenant's performance under the Agreement. Within thirty (30) days after the end of the initial term (and, if approved, any renewal term), Tenant and City may meet to review Tenant's performance under the Agreement. At said meeting, Tenant and City may discuss quality, operational, maintenance and any other issues regarding Tenant's performance under the Agreement. 6. TAXES, ASSESSMENTS, AND UTILITIES. 6.1 Tenant agrees to and shall pay before delinquency all taxes (including but not limited to resort taxes) and assessments of any kind assessed or levied upon Tenant by reason of this Agreement or by reason of the business or other activities and operations of Tenant upon or in connection with the Demised Premises and/or the adjoining restaurant at 816 Commerce Street. Tenant will have the right, at its own expense, to contest the amount or validity, in whole or in part, of any tax and/or assessment by appropriate proceedings diligently conducted in good faith. Tenant may refrain from paying a tax or assessment to the extent it is contesting the assessment or imposition of same in a manner that is in accordance with law; provided, however, if, as a result of such contest, additional delinquency charges 4 become due, Tenant shall be responsible for such delinquency charges, in addition to payment of the contested tax and/or assessment if so ordered. Tenant shall also pay for any fees imposed by law for licenses or permits for any business, activities, or operations of Tenant upon the Demised Premises and the adjoining restaurant at 816 Commerce Street, and shall maintain same current and in good standing throughout the Term of this Agreement. 6.2 Utilities. No electrical or water service will be provided by the City in connection with the operation of the Demised Premises under this Agreement. If not currently existing, requests for installation of new and/or additional electrical and/or water utilities shall be submitted in writing to the City Manager or his designee. Installation of new and/or additional utilities will be performed at Tenant's sole cost and expense. 6.3 Procedure If Ad Valorem Taxes Assessed. During the term of this Agreement, Tenant shall be solely responsible for all taxes of whatever nature lawfully levied upon or assessed against the Demised Premises and improvements, sales, or operations thereon, including but not limited to, Ad Valorem taxes. 7. Security Deposit. 7.1 On or prior to the Commencement Date, Tenant shall to pay the City a Security Deposit, in the sum of eight thousand five hundred dollars ($8,500.00). Said Security Deposit is to ensure the full and faithful performance by the Tenant of each and every term, covenant and condition of this Agreement. In the event that Tenant defaults in respect of any of the terms, provisions, covenants and conditions of this Agreement, including but not limited to, the payment of any rent, the City may use, apply or retain the whole or any part of the Security Deposit for the payment of such rents in default or any other sum which the City may expend or be required to expend by reason of the Tenant's default, including any damages or deficiency in the re-Ietting of the Demised Premises, whether such damages or deficiency may accrue or after summary proceedings or other re-entry by City. 7.2 In the event that the Tenant shall fully and faithfully comply with all of the terms, provisions, covenants and conditions of this Agreement, the Security Deposit or any balance thereof shall be returned to the Tenant, without interest, upon the expiration of the Agreement and peaceful surrender of the Demised Premises. 7.3 City shall not be required to keep the Security Deposit in a segregated account and the Security Deposit may be commingled with other funds of 5 City and in no event shall the Tenant be entitled to any interest on the Security Deposit. 7.4 In the event of a bona fide sale of the Demised Premises, as delineated in this Agreement, the City shall have the right to transfer the Security Deposit to the purchaser for the benefit of the Tenant and the City shall be considered by the Tenant free from all liability for the return of such Security Deposit, and the Tenant agrees to look to the new ownerllandlord solely for the return of the Security Deposit, if such Security Deposit is actually transferred, and it is agreed that this shall apply to every transfer or assignment made of the Security Deposit to any new ownerllandlord. 7.5 It is expressly understood that the issuance of a warrant and the lawful re- entry to the Demised Premises by the City for any default on the part of the Tenant, prior to the expiration of the term of this Agreement, shall not be deemed such termination of this Agreement as to entitle the Tenant to recovery of the Security Deposit and the Security Deposit shall be retained and remain the possession of the City. 8. Use and Possession of Demised Premises. 8.1 The Demised Premises shall be used by the Tenant solely as an outdoor cafe to serve the patrons and guests of the adjoining restaurant at 816 Commerce Street. 8.2 Tenant and owner of the restaurant at 816 Commerce Street shall at all times throughout the Term of the Agreement be one and the same and cannot exist independently of each other. Tenant acknowledges and agrees that its use of the Demised Premises shall be, and remain at all times throughout the Term, an ancillary use to the restaurant at 816 Commerce Street. 8.3 Tenant hereby warrants and represents that Manpriya, Inc. is the owner of the restaurant at 816 Commerce Street and shall, throughoutthe Term ofthe Lease, remain as the Owner of said restaurant, unless any change in ownership is approved by the City, in writing, prior to such change taking place. Change of ownership for purposes hereof shall mean a sale, exchange, assignment, transfer or other disposition by Tenant of all or a portion of Tenant's interest in the restaurant, whether by operation of law or otherwise. 8.4 Tenant agrees not to place any speakers, or any other device used to amplify sound, in or around the Demised Premises. Tenant further agrees to not attach any speakers, or any other device used to amplify sound, to the exterior of the restaurant building at 816 Commerce Street. Furthermore, Tenant shall in no manner use the Demised Premises, or the restaurant building at 816 Commerce Street, as an outdoor entertainment or open air entertainment establishment, and hereby acknowledges that such uses are 6 prohibited (whether as main or accessory uses). Notwithstanding anything to the contrary contained herein, in the event of a breach by Tenant of this Subsection 8.4, the City, in its sole determination and judgment, shall have the right (but not the obligation) to automatically terminate this Lease, without any liability to the City, said termination effective upon three (3) days written notice to Tenant. To the extent permitted by law, Tenant hereby waives and releases all rights now or hereafter conferred by Florida Statute, the Miami-Dade and Miami Beach Codes (respectively), and/or otherwise, that would have the effect of limiting or modifying the City's rights to terminate this Lease pursuant to this Subsection. 8.5 It is understood and agreed that the Demised Premises shall be used by the Tenant during the term of this Agreement only for the uses contemplated herein, and for no other purpose or use whatsoever. Tenant will not make or permit any use of the Demised Premises that, directly or indirectly, is forbidden by public law, ordinance or government regulation, or that may be dangerous to life, limb or property. Tenant may not commit waste on the Demised Premises, use the Demised Premises for any illegal purpose, or commit a nuisance on the Demised Premises. In the event that the Tenant uses the Demised Premises for any purpose not expressly permitted herein, then the City may declare this Agreement in default pursuant to Section 18, or without notice to Tenant, restrain such improper use by injunction or other legal action. 9. Improvements. 9.1 Tenant shall, at its own cost and expense, construct or cause to be constructed, ONLY those improvements to the Demised Premises as substantially in accordance with the attached Exhibit 9.1. Moreover, said improvements shall be further subject to the City's final (proprietary) review and written approval and acceptance. Any additional improvements, other than those contemplated in Exhibit 9.1, shall be subject to the prior written approval of the City, which approval, if given at all, shall be at the City's sole discretion. All permanent (fixed) improvements to the Demised Premises shall become the property of the City upon termination of the Lease. Notwithstanding the preceding sentence, the City may require that Tenant, upon termination of the Agreement, remove all permanent (fixed) improvements to the Demised Premises (at the City's sole discretion), without damage to the Demised Premises or cost to the City. Furthermore, upon the lawful termination of the Agreement, all personal property and trade fixtures may be removed by the Tenant from the Demised Premises without damage to the Demised Premises. The failure of Tenant to complete the improvements contemplated in Exhibit 9.1, as approved and accepted by the City, within six (6) months from the Commencement Date of this Agreement shall be deemed a default by Tenant. Tenant will permit no liens to attach to 7 the Demised Premises arising from, connected with or related to the construction of the improvements. Moreover, such construction shall be accomplished through the use of licensed, reputable contractors who are acceptable to the City. Any and all costs, permits and or licenses required for the installation of improvements shall be the sole responsibility of Tenant. 9.2 Performance Bond. Tenant shall deliver to the City a Performance Bond, or other similar instrument (e.g. Letter of Credit, Surety Bond, etc.) acceptable to the City, in an amount equal to the estimated cost to demolish and remove, at the City's sole discretion, any improvements constructed on the Demised Premises, as contemplated in Subsection 9.1 and Exhibit 9.1 herein, at the termination and/or expiration of the Agreement. 10. City's Riaht of Entry. 10.1 The City, or its authorized agent or agents, shall have the right to enter upon the Demised Premises at all reasonable times for the purpose of inspecting same, preventing waste, making such repairs as the City may consider necessary and for the purpose of preventing fire, theft or vandalism. However, the City agrees that whenever possible, the City shall provide reasonable notice, in writing, to Tenant, unless the need to enter the Demised Premises is an emergency, as deemed by the City at its sole discretion, which if not immediately addressed could cause property damage, loss of life or limb, or other injury to persons. Nothing herein shall imply any duty on the part of the City to do any work that under any provisions of this Agreement the Tenant may be required to perform, and the performance thereof by the City shall not constitute a waiver of the Tenant's default. 10.2 If the Tenant shall not be personally present to open and permit entry into the Demised Premises at any time, for any reason, and any entry thereon shall be necessary or permissible, the City, or its agents, may enter the Demised Premises by master key, or may forcibly enter the Demised Premises without rendering the City or such agents liable therefore. 10.3 Tenant shall furnish the City with duplicate keys to all locks on the Demised Premises prior to the Commencement Date of this Agreement. Tenant shall not change the locks to the Demised Premises without the prior written consent of City, not to be unreasonably withheld, and in the event such consent is given Tenant shall furnish City duplicate keys to said locks in advance of their installation. 11. Tenant's Insurance. 11.1 The Tenant shall, at its sole cost and expense, comply with all insurance requirements of the City. It is agreed by the parties that the Tenant shall not occupy the Demised Premises until proof of the following insurance coverages have been furnished to and approved by the City's Risk Manager: 8 11.1.1 Comprehensive General Liability in the minimum amount of $1,000,000 per occurrence for bodily injury and property damage. The City of Miami Beach must be named as an additional insured party on this policy. 11.1.2 Workers Compensation and Employers Liability coverage in accordance with Florida statutory requirements. 11.1.3 All-Risks property and casualty insurance, written ata minimum of 80% of replacement cost value and with replacement cost endorsement, covering all of Tenant's personal property in the Demised Premises (including, without limitation, inventory, trade fixtures, floor coverings, furniture and other property removable by Tenant under the provisions of the Lease) and all leasehold improvements installed in the Demised Premises by or on behalf of Tenant. 11.2 Proof of these coverages must be provided by submitting original certificates of insurance. All policies must provide thirty (30) days written notice of cancellation to both the City's Risk Manager and Asset Manager at 1700 Convention Center Drive, Miami Beach, Florida, 33139. All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and must have a rating of B+:VI or better per AM. Best's Key Rating Guide, latest edition, and certificates are subject to the approval of the City's Risk Manager. 12. Assionment and Sublettino. 12.1. Tenant shall not have the right to assign or sublet the Demised Premises, in whole or in part, without the prior written consent of City which shall not be unreasonably withheld. Such written consent is not a matter of right and City is not obligated to give such consent. If granted as provided herein, the making of any assignment or sublease will not release Tenant from any of its obligations under this Agreement. A sale or transfer of a majority interest of the stock of Tenant's corporate entity shall be deemed an assignment, and for purposes of this Agreement, the City shall have the right to approve the new majority owner. Said approval shall be provided in writing. Tenant is prohibited from assigning or subletting this Agreement to any person or entity which is not of the same or higher financial responsibility as Tenant, as shall be determined by City, in its sole judgment and discretion. Further, Tenant shall be prohibited from any changes in ownership, whether in the Demised Premises or the restaurant located at 816 Commerce Street, as set forth in Subsections 8.1 and 8.2. 12.2 Any consent by the City to any act of assignment shall apply only to the specific transaction thereby authorized. Such consent shall not be construed as a waiver of the duty of the Tenant or the legal representatives or assigns 9 of the Tenant, to obtain from the City consent to any other or subsequent assignment, or as modifying or limiting the rights of the City under the foregoing covenants of the Tenant not to assign without such consent. 12.3 Any violation of the provisions of this Agreement, whether by act or omissions, by assignee, sub-tenant, or under-tenant or occupant, shall be deemed a violation of such provision by the Tenant, it being the intention and meaning of the parties hereto, that the Tenant shall assume and be liable to the City for any and all acts and omissions of any and all assignees, sub- tenants, or under-tenants or occupants. If the Agreement be assigned, the City may and is hereby empowered to collect rent from the assignee; if the Demised Premises or any part thereof be underlet or occupied by any person, other that the Tenant, the City, in the event of the Tenant's default, may, and is hereby empowered to, collect rent from the under-tenant or occupants; in either of such events, the City may apply the net amount received by it for rent herein reserved, and no such collection shall be deemed a waiver of the covenant herein against assignment or the acceptance of the assignee, under-tenant or occupant as tenant, or a release of the Tenant from the further performance of the covenants herein contained on the part of the Tenant. 13. Maintenance and Repair. 13.1 Tenant shall maintain the Demised Premises and the fixtures and appurtenances therein, and at its sole cost and expense shall make all repairs thereto as and when needed to preserve them in good working order and condition. Tenant shall also be responsible for maintenance and repair of any and all improvements including, without limitation, all walls, fences, walkways, pavers, ground-coverings, landscaping, gates and doors. 13.2 All damage or injury of any kind to the Demised Premises shall be the obligation of Tenant, and shall be repaired, restored or replaced promptly by Tenant at its sole cost and expense to the satisfaction of the City. 13.3 All of the aforesaid repairs, restorations and replacements shall be in quality and class equal to the original work or installations and shall be done in good and workmanlike manner. 13.4 If Tenant fails to make such repairs or restorations or replacements, the same may be made by the City, at the expense of the Tenant, and all sums spent and expenses incurred by the City shall be collectable and shall be paid by the Tenant within ten (10) days after rendition of a bill or statement thereof. IN ALL OTHER RESPECTS, THE DEMISED PREMISES ARE BEING LEASED IN ITS PRESENT "AS IS" CONDITION. 13.5 It shall be Tenant's obligation to insure that any renovations, repairs and/or improvements made by Tenant to the Demised Premises comply with all 10 applicable building codes and life safety codes of governmental authorities having jurisdiction. 14. Governmental ReQulations. The Tenant covenants and agrees to fulfill and comply with all statutes, ordinances, rules, orders, regulations, and requirements of any and all governmental bodies, including but not limited to Federal, State, Miami-Dade County, and City governments, and any and all of their departments and bureaus applicable to the Demised Premises and shall also comply with and fulfill all rules, orders, and regulations for the prevention of fire, all at Tenant's own cost and expense. Tenant shall pay all costs, expenses, claims, fines, penalties, and damages that may be imposed because of Tenant's failure to comply with this Section, and shall indemnify and hold harmless the City from all liability arising from each non- compliance. 15. Liens. Tenant will not permit any mechanics, laborers, or materialman's liens to stand against the leased premises or improvements for any labor or materials to Tenant or claimed to have been furnished to Tenant's agents, contractors, or sub-tenants, in connection with work of any character performed or claimed to have performed on said premises, or improvements by or at the direction or sufferance of the Tenant, provided however, Tenant shall have the right to contest the validity or amount of any such lien or claimed lien. In the event of such contest, Tenant shall give the City reasonable security as may be demanded by the City to insure payment thereof and prevent sale, foreclosure, or forfeiture of the premises or improvements by reasons of such non-payment. Such security need not exceed one and one half (1 %) times the amount of such lien or such claim of lien. Such security shall be posted by Tenant within ten (10) days of written notice from the City, or Tenant may "bond off' the lien according to statutory procedures. Tenant will immediately pay any judgment rendered with all proper cost and charges and shall have such lien released or judgment satisfied at Tenant's own expense. 16. Enforcement. Tenant agrees to pay rent at the time and in the manner aforesaid, and should said rent herein provided, at any time remain due and unpaid for a period of fifteen (15) days after the same shall become due, the City may exercise any or all options available to it hereunder, which options may be exercised concurrently or separately or the City may pursue any other remedies enforced by law. 17. Condemnation. 17.1 If at any time during the term of this Agreement and any renewal term hereunder, all or any part or portion of the Demised Premises are taken, appropriated, or condemned by reason of Eminent Domain proceedings (except if the Eminent Domain proceedings are initiated by the City of Miami Beach), then this Agreement shall be terminated as of the date of such taking, and shall thereafter be completely null and void, and neither of the parties hereto shall thereafter have any rights against the other by reason of 11 this Agreement or anything contained therein, except that any rent prepaid beyond the date of such taking shall be prorated to such date, and the Tenant shall pay any and all rents, additional rents, utility charges, or other costs including excess taxes for which it is liable under the terms of this Agreement, up to the date of such taking. 17.2 Except as hereunder provided, Tenant shall not be entitled to participate in the proceeds of any award made to the City in any such Eminent Domain proceeding, excepting, however, the Tenant shall have the right to claim and recover from the condemning authority, but not from the City, such compensation as may be separately awarded or recoverable by Tenant in Tenant's own right on account of any and all damage to Tenant's business by reasons of the condemnation and for or on account of any cost or loss which Tenant might incur in removing Tenant's furniture and fixtures. 18. Default. 18.1 Default bv Tenant. At the City's option, any of the following shall constitute an Event of Default under this Agreement: 18.1.1 Rent, or any installment thereof is not paid promptly when and where due within fifteen (15) days of due date and if Tenant shall not cure such failure within five (5) days after receipt of written notice from the City specifying such default; 18.1.2 Any other payment provided for under this Agreement is not paid promptly when and where due; 18.1.3 Demised Premises shall be deserted, abandoned, or vacated; 18.1.4 Tenant shall fail to comply with any material term, provision, condition or covenant contained herein other than the payment of rent and shall not cure such failure within thirty (30) days after the receipt of written notice from City specifying any such default; or such longer period of time acceptable to the City, at its sole discretion; 18.1.5 Receipt of notice of violation from any governmental authority having jurisdiction dealing with a code, regulation, ordinance or the like, which remains uncured for a period of thirty (30) days from its issuance, or such longer period of time acceptable to the City, at its sole discretion; 18.1.6 Any petition is filed by or against Tenant under any section or chapter of the Bankruptcy Act, as amended, which remains pending for more than sixty (60) days, or any other proceedings now or hereafter authorized by the laws of the United States or of 12 any state for the purpose of discharging or extending the time for payment of debts; 18.1. 7 Tenant shall become insolvent; 18.1.8 Tenant shall make an assignment for benefit of creditors; 18.1.9 A receiver is appointed for Tenant by any court and shall not be dissolved within thirty (30) days thereafter; or 18.1.10 The leasehold interest is levied on under execution. 18.1.11 Tenant's violation ofthe provision of Subsection 8.4 herein, which shall result in an automatic termination of the Lease, as further provided in said Subsection. 19. Riqhts on Default. 19.1 Riqhts on Default. In the event of any default by Tenant as provided herein, the City shall have the option to do any of the following in addition to and not in limitation of any other remedy permitted by law or by this Agreement; 19.1.1 Terminate this Agreement, in which event Tenant shall immediately surrender the Demised Premises to the City, but if Tenant shall fail to do so the City may, without further notice, and without prejudice to any other remedy the City may have for possession or arrearages in rent or damages for breach of contract, enter upon Demised Premises and expel or remove Tenant and his effects in accordance with law, without being liable for prosecution or any claim for damages therefore, and Tenant agrees to indemnify and hold harmless the City for all loss and damage which the City may suffer by reasons of such termination, whether through inability to re-Iet the Demised Premises, or through decrease in rent, or otherwise. 19.1.2 Declare the entire amount of the rent which would become due and payable during the remainder of the term of this Agreement to be due and payable immediately, in which event Tenant agrees to pay the same at once, together with all rents therefore due, at the address of the City, as provided in the Notices section of this Agreement; provided, however, that such payment shall not constitute a penalty, forfeiture, or liquidated damage, but shall merely constitute payment in advance of the rents for the remainder of said term and such payment shall be considered, construed and taken to be a debt provable in bankruptcy or receivership. 13 19.1.3 Enter the Demised Premises as the agent of Tenant, by force if necessary, without being liable to prosecution or any claim for damages therefore, remove Tenant's property there from, and re- let the Demised Premises, or portions thereof, for such terms and upon such conditions which the City deems, in its sole discretion, desirable, and to receive the rents therefore, and Tenant shall pay the City any deficiency that may arise by reason of such re-Ietting, on demand at any time and from time to time at the office of the City; and for the purpose of re-Ietting, City may (i) make any repairs, changes, alterations or additions in or to said Demised Premises that may be necessary or convenient; (ii) pay all costs and expenses therefore from rents resulting from re-Ietting; and (iii) Tenant shall pay the City any deficiency as aforesaid. 19.1.4 Take possession of any personal property owned by Tenant on said Demised Premises and sell the same at public or private sale, and apply same to the payment of rent due, holding the Tenant liable for the deficiency, if any. 19.1.5 It is expressly agreed and understood by and between the parties hereto that any installments of rent accruing under the provisions of this Agreement which shall not be paid when due shall bear interest at the maximum legal rate of interest per annum then prevailing in Florida from the date when the same was payable by the terms hereof, until the same shall be paid by Tenant. Any failure on the City's behalf to enforce this Section shall not constitute a waiver of this provision with respect to future accruals of past due rent. No interest will be charged for payments made within the grace period, such grace period to be defined as within five (5) days of the due date. In addition, there will be a late charge of fifty ($50.00) dollars for any payments submitted after the grace period. 19.1.6 If Tenant shall default in making any payment of monies to any person or for any purpose as may be required hereunder, the City may pay such expense but the City shall not be obligated to do so. Tenant, upon the City's paying such expense, shall be obligated to forthwith reimburse the City for the amount thereof. All sums of money payable by Tenant to the City hereunder shall be deemed as rent for use of the Demised Premises and collectable by the City from Tenant as rent, and shall be due from Tenant to City on the first day of the month following the payment of the expense by the City. 19.1.7 The rights of the City under this Agreement shall be cumulative but not restrictive to those given by law and failure on the part of the City to exercise promptly any rights given hereunder shall not operate to waive or to forfeit any of the said rights. 14 19.2 Default bv City. Failure of the City to perform any of the covenants, conditions and agreements of the Agreement which are to be performed by the City and the continuance of such failure for a period of thirty (30) days after notice thereof in writing from Tenant to the City (which notice shall specify the respects in which Tenant contends that the City failed to perform any such covenant, conditions and agreements) shall constitute a default by the City, unless such default is one which cannot be cured within thirty (30) days because of circumstances beyond the City's control, and the City within such thirty (30) day period shall have commenced and thereafter shall continue diligently to prosecute all actions necessary to cure such defaults. However, in the event the City fails to perform within the initial thirty (30) day period provided above, and such failure to perform prevents Tenant from operating its business in a customary manner and causes an undue hardship for the Tenant, then such failure to perform (regardless of circumstances beyond its control) as indicated above, shall constitute a default by the City. 19.3 Tenant's Riohts on Default. If an event of the City's default shall occur, Tenant, to the fullest extent permitted by law, shall have the right to pursue any and all remedies available at law or in equity, including the right to sue for and collect damages, including reasonable attorney fees and costs, to terminate this Agreement (and all of its obligations hereunder by giving notice of such election to the City, whereupon this Agreement shall terminate as of the date of such notice), to specifically enforce Tenant's rights; and/or to enjoin the City. 20 Indemnitv Aoainst Costs and Charoes. 20.1 Tenant shall be liable to the City for all costs and charges, expenses, reasonable attorney's fees, and damages which may be incurred or sustained by the City, by reason of the Tenant's breach of any of the provisions of this Agreement. Any sums due the City under the provisions of this item shall constitute a lien against the interest of the Tenant and the Demised Premises and all of Tenant's property situated thereon to the same extent and on the same conditions as delinquent rent would constitute a lien on said premises and property. 20.2 If Tenant shall at any time be in default hereunder, and ifthe City shall deem it necessary to engage an attorney to enforce the City's rights and Tenant's obligations hereunder, Tenant will reimburse the City for the reasonable expenses incurred thereby, including, but not limited to, court costs and reasonable attorney's fees, whether suit be brought or not and if suit be brought, then Tenant shall be liable for expenses incurred at both the trial and appellate levels. 15 21 Indemnification Aqainst Claims. 21.1 Tenant shall indemnify and save the City harmless from and against any and all claims or causes of action (whether groundless or otherwise) by or on behalf of any person, firm, or corporation, for personal injury or property damage occurring upon the Demised Premises or upon any parking lot or other facility or appurtenance used in connection with the Demised Premises, occasioned in whole or in part by any of the following: 21.1.1 An act or omission on the part of the Tenant, or any employee, agent, invitee, or guest, assignee or sub-tenant of the Tenant; 21.1.2 Any misuse, neglect, or unlawful use of the Demised Premises or the building in which the Demised Premises is located or any of its facilities by the Tenant, or any employee, agent, invitee, or guest, assignee or sub-tenant or the Tenant, but not to include trespassers upon the Demised Premises; 21.1.3 Any breach, violation, or non-performance of any undertaking of the Tenant under this Agreement; 21.1.4 Anything growing out of the use or occupancy of the Demised Premises by the Tenant or anyone holding or claiming to hold through or under the Agreement. 21.2 Tenant agrees to pay all damages to the Demised Premises or other facilities used in connection therewith, caused by the Tenant or any employee, guest, or invitee of the Tenant. 22. SiQns and Advertisinq. Without the prior written consent of the City, Tenant shall not permit the painting and display of any signs, plaques, lettering or advertising material of any kind on or near the Demised Premises. All additional signage shall comply with signage standards established by the City and comply with all applicable building codes, and any other Municipal, County, State and Federal laws. 23. Damaqe to the Demised Premises and/or Restaurant at 816 Commerce Street. 23.1 If the Demised Premises and/or restaurant at 816 Commerce Street shall be damaged by the elements or other casualty not due to Tenant's negligence, or by fire, but are not thereby rendered untenantable, as determined by the City, in whole or in part (hereinafter referred to as "such occurrence"), Tenant shall as soon as possible after such occurrence, utilize its insurance proceeds to cause such damage to be repaired and the rent for the Demised Premises shall not be abated. If by reason of such occurrence, the Demised Premises and/or restaurant at 816 Commerce Street shall be rendered untenantable, as determined by the City, only in part, Tenant shall as soon as possible utilize its insurance proceeds to cause the damage to be 16 repaired, and the rent for the Demised Premises shall be abated proportionately as to the portion of the Demised Premises rendered untenantable; provided however, if either the Demised Premises and/or restaurant at 816 Commerce Street are by reason of such occurrence, rendered more than 50% but less than 100% untenantable, as determined by the City, Tenant shall promptly obtain a good faith estimate, from a licensed contractor acceptable to the City, of the time required to render the Demised Premises and/or restaurant at 816 Commerce Street tenantable. If such time exceeds sixty (60) days, the City and/orTenantshall have the option of canceling this Agreement, which option shall be exercised by the requesting party in writing within ten (10) days of the end of the sixty (60) day period, and the Agreement shall be terminated within thirty (30) days from the date thereof. 23.2 If the Demised Premises and/or restaurant at 816 Commerce Street shall be rendered wholly untenantable by reason of such occurrence, Tenant shall utilize its insurance proceeds to cause such damage to be repaired and the rent for the Demised Premises shall be abated in whole; provided, however, that the Tenant shall have the right, to be exercised by notice in writing delivered to the City within sixty (60) days from and after said occurrence, to elect not to reconstruct the destroyed Demised Premises and/or restaurant, and in such event, this Agreement and the tenancy hereby created shall cease as of the date of said occurrence, the rent to be adjusted as of such date. If the Demised Premises shall be rendered wholly untenantable, the City and/or Tenant shall have the right, to be exercised by notice in writing, delivered to the other party within thirty (30) days from and after said occurrence, to elect to terminate this Agreement, the rent to be adjusted accordingly. 24. Quiet Eniovment. Tenant shall enjoy quiet enjoyment of the Demised Premises and shall not be evicted or disturbed in possession of the Demised Premises so long as Tenant complies with the terms of this Agreement. 25. Waiver. 25.1 It is mutually covenanted and agreed by and between the parties hereto that the failure of the City to insist upon the strict performance of any of the conditions, covenants, terms or provisions of this Agreement, or to exercise any option herein conferred, will not be considered or construed as a waiver or relinquishment for the future of any such conditions, covenants, terms, provisions or options but the same shall continue and remain in full force and effect. 25.2 A waiver of any term expressed herein shall not be implied by any neglect of the City to declare a forfeiture on account of the violation of such term if such violation by continued or repeated subsequently and any express waiver 17 shall not affect any term other than the one specified in such waiver and that one only for the time and in the manner specifically stated. 25.3 The receipt of any sum paid by Tenant to the City after breach of any condition, covenant, term or provision herein contained shall not be deemed a waiver of such breach, but shall be taken, considered and construed as payment for use and occupation, and not as rent, unless such breach be expressly waived in writing by the City. 26. Notices. The addresses for all notices required under this Agreement shall be as follows, or at such other address as either party shall be in writing, notify the other: CITY: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 With copies to: City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 and: Asset Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 TENANT: Manpriya, Inc. 816 Commerce Street Miami Beach, Florida 33139 All notices shall be hand delivered and a receipt requested, or by certified mail with return receipt requested, and shall be effective upon receipt. 27 Entire and Bindinq Aqreement. This Agreement contains all of the agreements between the parties hereto, and it may not be modified in any manner other than by agreement in writing signed by all the parties hereto or their successors in interest. The terms, covenants and conditions contained herein shall inure to the benefit of and be binding upon the City and Tenant and their respective successors and assigns, except as may be otherwise expressly provided in this Agreement. 28. Provisions Severable. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder ofthis Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected 18 thereby and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 29. Captions. The captions contained herein are for the convenience and reference only and shall not be deemed a part of this Agreement or construed as in any manner limiting or amplifying the terms and provisions of this Agreement to which they relate. 30. Number and Gender. Whenever used herein, the singular number shall include the plural and the plural shall include the singular, and the use of one gender shall include all genders. 31. Governinq Law. This Agreement shall be governed by and construed in accordance with the law of the State of Florida. 32. Limitation of Liabilitv. The City desires to enter into this Agreement only if in so doing the City can place a limit on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of Ten Thousand ($10,000.00) Dollars and no/1 00. Tenant hereby expresses its willingness to enter into this Agreement with the Tenant's recovery from the City for any damage action for breach of contract to be limited to a maximum amount of Ten Thousand ($10,000.00) Dollars. Accordingly, and notwithstanding any other term or condition of this Agreement, Tenant hereby agrees that the City shall not be liable to Tenant for damage in an amount in excess of Ten Thousand ($10,000.00) Dollars for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this Section or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City's liability as set forth in Florida Statutes, Section 768.28. 33. Surrender of the Demised Premises. Tenant shall, on or before the last day of the term herein demised, or the sooner termination thereof, peaceably and quietly leave, surrender and yield upon to the City the Demised Premises, together with any and all equipment, fixtures, furnishings, appliances or other personal property, if any, located at or on the Demised Premises and used by Tenant in the maintenance, management or operation of the Demised Premises, excluding any trade fixtures or personal property, if any, which can be removed without material injury to the Demised Premises, free of all liens, claims and encumbrances and rights of others or broom- clean, together with all structural changes, alterations, additions, and improvements which may have been made upon the Demised Premises, in good order, condition and repair, reasonable wear and tear excepted, subject, however, to the subsequent provisions of this Article. Any property which pursuant to the provisions of this Section is removable by Tenant on or at the Demised Premises upon the termination of this Agreement and is not so removed may, at the option of the City, be deemed abandoned by the Tenant, and either may be retained by the City as its 19 property or may be removed and disposed of at the sole cost of the Tenant in such manner as the City may see fit. If the Demised Premises and personal property, if any, be not surrendered at the end of the term as provided in this Section, the Tenant shall make good the City all damages which the City shall suffer by reason thereof, and shall indemnify and hold harmless the City against all claims made by any succeeding tenant or purchaser, so far as such delay is occasioned by the failure of the Tenant to surrender the Demised Premises as and when herein required. 34. Time is of the Essence. Time is of the essence in every particular and particularly where the obligation to pay money is involved. 35. Venue. This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any and all the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. CITY AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND TENANT MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT. (INTENTIONALLY LEFT BLANK) 20 IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed by the W,SpectiV:Afj authorized officers and the respective corporate seals to be affixed this --'/..!!. day of ZI L , 2006. ATTEST: ~ r~dvv- CITY CLERK . Robert Parcher ATTEST: SECRE Y AI NVe~/' ~S-.;::,v61/ (Print Name) CORPORATE SEAL (affix here) F:\DDHP\$ALL \ASSET\22 W ASHINGTON\ManpriyaLease.Final.doc BY: David Dermer TENANT: BY: PRESIDENT Am~u::, 5' ffJ~tA (Print Name) APPROVED AS TO & LANGUAGE & FO TION 't bk' 21 EXHIBIT A Description of Demised Premises A portion of Lots 1 and 2, Block 51, Ocean Beach Addition No.3, according to the plat thereof, recorded in Plat Book 2, at page 81, of the Public Records of Dade County, Florida, being more particularly described as follows: Bounded on the North by the South RIW line of Commerce St.; Bounded on the West by the East line of Lot 2; Bounded on the South by the North RIW line of Biscayne Court; Bounded on the East by a line that is a perpendicular distance of 100 feet westerly and parallel to the East RIW line of Washington Avenue. ~U .. ~ 3.:'1' I c: SUUTH ..(t<'(.-' ,1</5$<:> Lv 7;oN 41J;' /"-...- Z($ 7. 54 , 22 EXHIBIT 9.1 I .. -> ~~ ~~ ~ ~ i; ~ ~ z . .-.. .-~-- - ;'''', -.... .j:.. -_..-. :~; '.' !~ ~ I . :~~_'I- I I ~ 5~1 (~~~ ~ -- C)~fJ ~~ ~ ~ ~ f; EXTERIOR SEATING PLAN 22 Washington Avenue Miami Beach, FL 33139 23 Itl ii !! 11111-1