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HomeMy WebLinkAboutResolution 2026-34212RESOLUTION NO. 2026-34212 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA APPROVING ON A 5/7TH VOTE, IN SUBSTANTIAL FORM, A FOURTH AMENDMENT (LEASE AMENDMENT) TO THE LEASE AGREEMENT (LEASE) DATED NOVEMBER 7, 1985 BY AND BETWEEN THE CITY AND PENROD BROTHERS, INC. (PENROD) AND A FIRST AMENDMENT (CONCESSION AMENDMENT) TO THE CONCESSION AGREEMENT (CONCESSION AGREEMENT) DATED FEBRUARY 25, 2005 BETWEEN THE CITY AND PENROD TO ALLOW FOR AN EXTENSION OF THE LEASE AND CONCESSION AGREEMENT THROUGH AUGUST 31, 2026 TO ACCOMMODATE THE TIMELY PREPARATION AND PRESENTATION TO THE MAYOR AND CITY COMMISSION AT ITS MAY 20, 2026 MEETING OF A SETTLEMENT AGREEMENT, DEFINITIVE LEASE AMENDMENT AND DEFINITIVE CONCESSION AGREEMENT AMENDMENT FOR APPROVAL; AND AUTHORIZING THE CITY MANAGER TO FINALIZE THE LEASE AMENDMENT AND THE CONCESSION AMENDMENT; AND FURTHER, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE LEASE AMENDMENT AND THE CONCESSION AMENDMENT. WHEREAS, on October 2, 1985, the Mayor and City Commission adopted Resolution No. 85-18223, approving a Lease Agreement between the City and Penrod for the development, construction, management and operation of a restaurant facility at the Premises (as amended by the First Amendment, Second Amendment and Third Amendment, the "Lease Agreement"); and WHEREAS, on March 2, 1988, the Mayor and City Commission adopted Resolution No. 88- 19178, approving the First Amendment to the Lease Agreement, thereby amending the building footprint and appropriating funds for construction of a portion of the Pier Park parking area; and WHEREAS, on April 6, 1988, the Mayor and City Commission adopted Resolution No, 88- 19211, approving the Second Amendment to the Lease Agreement, thereby revising the site plan and legal description; and WHEREAS, On February 25, 2004, the Mayor and City Commission adopted Resolution No. 2004-25506, approving a Concession Agreement between the City and Penrod for the operation of a concession in the Concession Area consisting of the rental of beach equipment, water recreation equipment and food and beverage service (the "Concession Agreement"); and WHEREAS, on February 25, 2004, the Mayor and City Commission adopted Resolution No. 2004-25507, approving the Third Amendment to the Lease Agreement thereby correcting a scrivener's error in the exhibits to the Lease Agreement, to modify certain provision relating to Percentage Rent and to enable Penrod to terminate the Concession Agreement in the event of an economic downturn; and WHEREAS, disputes have arisen between the parties relating to the Property; the Lease Agreement; the Concession Agreement; City Commission Resolutions 2023-32586, 2023-32612, and 2023-32825; City procurement activity and a City -issued request for proposals RFP 2023-479- KB (the "RFP"); a contract between City and Boucher Brothers Pier Park, LLC ("Boucher") dated October 20, 2023 (the "Contract"); and applications by Boucher and City for land use approvals, variances and permits; including as described in pleadings and papers in lawsuits at Case Nos. 2023-016657-CA-01 (Fla. 11th Cir. Civ.); 2023-56-AP-01 (Fla. 11th Cir. App.); 2023-CV-23362 (S.D. Fla.); 2025-13415 (11th Cir.), which suits remain pending (the "Litigation") (together, the "Disputes"); and WHEREAS, on March 26, 2026, pursuant to Fla. R. Civ. P. 1.720(d), the parties agreed to the material terms of a settlement of the Disputes reflected in a term sheet executed by the parties (the "Term Sheet"), which will be documented in a settlement agreement ("Settlement Agreement'), an amendment to the Lease (the "Fifth and Final Amendment'), and an amendment to the Concession Agreement (the "Second Amendment to Concession Agreement'), and an amendment to the Contract (collectively, the "Settlement Documents") to be presented to the City Commission for its approval; and WHEREAS, the terms of the Settlement Agreement contemplate a 15-month extension of the term of the Lease Agreement and the Concession Agreement through August 6, 2027; and WHEREAS, the Lease Agreement and the Concession Agreement are set to expire on May 6, 2026 and it is anticipated that the Settlement Documents will be presented to the City Commission for approval until the May 20, 2026 meeting to enable the parties to prepare the Settlement Documents; and WHEREAS, to accommodate the preparation of the Settlement Documents and presentation thereof for approval to the Mayor and City Commission at its May 20, 2026 meeting, the parties desire to effectuate a short-term extension of the Lease Agreement and Concession Agreement; and WHEREAS, the Mayor and City Commission finds that authorizing the short-term extension as a necessary first step in the process of settling the outstanding litigation between the City and Penrod is in the best interest of the City. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve on a 5/7th vote, in substantial form, a Fourth Amendment ("Lease Amendment")to the Lease Agreement ("Lease") dated November 7, 1985 by and between the City of Miami Beach and Penrod Brothers, Inc. ("Penrod") and a First Amendment ("Concession Amendment') to the Concession Agreement ("Concession Agreement') dated February 25, 2005 between the City and Penrod to allow for an extension of the Lease and Concession Agreement through August 31, 2026 to accommodate the timely preparation and presentation to the Mayor and City Commission at its May 20, 2026 meeting of a settlement agreement, a definitive lease amendment and definitive concession agreement amendment for approval; and authorizing the City Manager to finalize the Lease Amendment and the Concession Amendment; and further authorizing the Mayor and City Clerk to execute the Lease Amendment and the Concession Amendment. PASSED and ADOPTED this 2� day of Alar 11 2026. ATTEST: APR 2 8 2026 Rafael E. Grana o, Secretary Steven Meiner, Mayor APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION Z_ City Attorney -20Z� Date Resolutions - C7 D MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Eric Carpenter, City Manager DATE: April 22, 2026 TITLE: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH. FLORIDA APPROVING ON A 5/7TH VOTE. IN SUBSTANTIAL FORM, A FOURTH AMENDMENT (LEASE AMENDMENT) TO THE LEASE AGREEMENT (LEASE) DATED NOVEMBER 7, 1985 BY AND BETWEEN THE CITY AND PENROD BROTHERS. INC. (PENROD) AND A FIRST AMENDMENT (CONCESSION AMENDMENT) TO THE CONCESSION AGREEMENT (CONCESSION AGREEMENT) DATED FEBRUARY 25, 2005 BETWEEN THE CITY AND PENROD TO ALLOW FOR AN EXTENSION OF THE LEASE AND CONCESSION AGREEMENT THROUGH AUGUST 31, 2026 TO ACCOMMODATE THE TIMELY PREPARATION AND PRESENTATION TO THE MAYOR AND CITY COMMISSION AT ITS MAY 20, 2025 MEETING OF A SETTLEMENT AGREEMENT, DEFINITIVE LEASE AMENDMENT AND DEFINITIVE CONCESSION AGREEMENT, AMENDMENT FOR APPROVAL; AND AUTHORIZING THE CITY MANAGER TO FINALIZE THE LEASE AMENDMENT AND THE CONCESSION AMENDMENT: AND FURTHER, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE LEASE AMENDMENT AND THE CONCESSION AMENDMENT. RECOMMENDATION The Administration recommends adopting the Resolution approving an extension of the Lease and Concession Agreements through August 31, 2026. BACKGROUND/HISTORY On October 2, 1985, the Mayor and City Commission adopted Resolution No. 85-18223, approving a Lease Agreement between the City and Penrod for the development, construction, management and operation of a restaurant facility at the Premises (as amended by the First Amendment, Second Amendment and Third Amendment, the `Lease Agreement"). On March 2, 1988, the Mayor and City Commission adopted Resolution No. 88-19178, approving the First Amendment to the Lease Agreement, thereby amending the building footprint and appropriating funds for construction of a portion of the Pier Park parking area. On April 6, 1988, the Mayor and City Commission adopted Resolution No, 88-19211, approving the Second Amendment to the Lease Agreement, thereby revising the site plan and legal description. On February 25, 2004, the Mayor and City Commission adopted Resolution No. 2004-25506, approving a Concession Agreement between the City and Penrod for the operation of a concession in the Concession Area consisting of the rental of beach equipment, water recreation equipment and food and beverage service (the "Concession Agreement") On February 25, 2004, the Mayor and City Commission also adopted Resolution No. 2004-25507, approving the Third Amendment to the Lease Agreement thereby correcting a scrivener's error in the exhibits to the Lease Agreement, to modify certain provision relating to Percentage Rent and to 352 of 2461 enable Penrod to terminate the Concession Agreement in the event of an economic downturn. ANALYSIS Disputes have arisen between the parties relating to the Property; the Lease Agreement; the Concession Agreement; City Commission Resolutions 2023-32586, 2023-32612, and 2023- 32825; City procurement activity and a City -issued request for proposals RFP 2023-479-KB (the "RFP"); a contract between City and Boucher Brothers Pier Park, LLC ("Boucher") dated October 20, 2023 (the "Contract"); and applications by Boucher and City for land use approvals, variances and permits; including as described in pleadings and papers in lawsuits at Case Nos. 2023- 016657-CA-01 (Fla. 11th Cir. Civ.); 2023-56-AP-01 (Fla. 11th Cir. App.); 2023-CV-23362 (S.D. Fla.); 2025-13415 (11th Cir.), which suits remain pending (the "Litigation") (together, the "Disputes"). On March 26, 2026, pursuant to Fla. R. Civ. P. 1.720(d), the parties agreed to the material terms of a settlement of the Disputes reflected in a term sheet executed by the parties (the "Term Sheet"), which will be documented in a settlement agreement ("Settlement Agreement"), an amendment to the Lease (the "Fifth and Final Amendment'), and an amendment to the Concession Agreement (the "Second Amendment to Concession Agreement'), and an amendment to the Contract (collectively, the "Settlement Documents") to be presented to the City Commission for its approval. The terms of the Settlement Agreement contemplate a 15-month extension of the term of the Lease Agreement and the Concession Agreement through August 6, 2027. To accommodate the preparation of the Settlement Documents and presentation thereof for approval to the Mayor and City Commission at its May 20, 2026 meeting, the parties desire to effectuate a short-term extension of the Lease Agreement and Concession Agreement (Exhibits A and B). FISCAL IMPACT STATEMENT N/A Does this Ordinance require a Business Impact Estimate? (FOR ORDINANCES ONLY) If applicable, the Business Impact Estimate (BIE) was published on: See BIE at: https://www.miamibeachfi.gov/city-hall/city-clerk/meeting-notices/ FINANCIAL INFORMATION CONCLUSION The Administration recommends adopting the Resolution approving Amendment No. 4 to the Lease Agreement and Amendment No. 1 to the Concession Agreement between the City of Miami Beach and Penrod Brothers, Inc., for the use and operation of the premises located at One Ocean Drive and the concession area defined in the Concession Agreement, said Amendments extending the term of the Lease Agreement and Concession Agreement through August 31, 2026. 353 of 2461 Applicable Area South Beach Is this a "Residents Right to Know" item, pursuant to City Code Section 2-17? No Is this item related to a G.O. Bond Project? No Was this Agenda Item initially requested by a lobbyist which, as defined in Code Sec. 2-481, includes a principal engaged in lobbying? No If so, specify the name of lobbyist(s) and principal(s): Department City Manager Sponsor(s) Co-sponsor(s) Condensed Title Amendment 4 to Lease Agt/Amendment 1 to Concession Agt w/ Penrod`s, Extend Term to 8/31/26. CM Previous Action (For City Clerk Use Only) 354 of 2461 FIRST AMENDMENT TO CONCESSION AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND PENROD BROTHERS, INC. This First Amendment ("Amendment") to the Concession Agreement dated February 25, 2004 by and between the City of Miami Beach, Florida, a municipal corporation organized and existing under the laws of the State of Florida, ("City"), and Penrod Brothers, Inc., a Florida corporation ("Penrod" or "Concessionaire", and together with the City, "the parties"), for that portion of Pier Park seaward of the footprint of the Penrod's Restaurant located at One Ocean Drive, Miami Beach, and the beaches seaward thereof (the "Concession Area") is entered into as of March 26, 2026. RECITALS WHEREAS, on October 2, 1985, the Mayor and City Commission adopted Resolution No. 85-18223, approving a Lease Agreement between the City and Penrod for the development, construction, management and operation of a restaurant facility at the property located at One Ocean Drive (as amended by the First Amendment, Second Amendment and Third Amendment, the "Lease Agreement"); and WHEREAS, on February 25, 2004, the Mayor and City Commission adopted Resolution No. 2004-25506, approving a Concession Agreement between the City and Penrod for the operation of a concession in the Concession Area consisting of the rental of beach equipment, water recreation equipment and food and beverage service (the "Concession Agreement"); and WHEREAS, disputes have arisen between the parties relating to the Property; the Lease Agreement; the Concession Agreement; City Commission Resolutions 2023-32586, 2023-32612, and 2023-32825; City procurement activity and a City -issued request for proposals RFP 2023-479-KB (the "RFP"); a contract between City and Boucher Brothers Pier Park, LLC ("Boucher") dated October 20, 2023 (the "Contract"); and applications by Boucher and City for land use approvals, variances and permits; including as described in pleadings and papers in lawsuits at Case Nos. 2023-016657-CA-01 (Fla. 11th Cir. Civ.); 2023-56-AP-01 (Fla. 11th Cir. App.); 2023-CV-23362 (S.D. Fla.); 2025-13415 (11th Cir.), which suits remain pending (the "Litigation") (together, the "Disputes"); and WHEREAS, on March 26, 2026, pursuant to Fla. R. Civ. P. 1.720(d), the parties agreed to the material terms of a settlement of the Disputes reflected in a term sheet executed by the parties (the "Term Sheet"), which will be documented in a settlement agreement ("Settlement Agreement"), an amendment to the Lease (the "Fifth and Final Amendment"), an amendment to the Concession Agreement 355 of 2461 (the "Second Amendment to Concession Agreement") and an amendment to the Contract (collectively, the "Settlement Documents") to be presented to the City Commission for its approval; and WHEREAS, the terms of the Settlement Agreement contemplate a 15- month extension of the term of the Lease Agreement and the Concession Agreement through August 6, 2027; and WHEREAS, the Lease Agreement and the Concession Agreement are set to expire on May 6, 2026 and it is anticipated that the Settlement Documents will be presented to the City Commission for approval at the May 20, 2026 meeting to enable the parties to prepare the Settlement Documents; and WHEREAS, to accommodate the preparation of the Settlement Documents and presentation thereof for approval to the Mayor and City Commission at its May 20, 2026 meeting, the parties desire to effectuate a short-term extension of the Concession Agreement. NOW THEREFORE, in consideration of the mutual promises and conditions contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the City and Penrod hereby agree to amend the Concession Agreement as follows: 1. ABOVE RECITALS. The above recitals are true and correct and are incorporated as part of this Amendment. Capitalized terms used herein and not otherwise defined shall have the same meaning as ascribed to them in the Concession Agreement. 2. MODIFICATIONS. A. The Concession Agreement is hereby immediately amended to extend the Term and all rights and obligations of the parties thereunder through August 31, 2026. B. Concessionaire agrees that its operations at the Concession Area shall remain consistent with current uses and hours of service, i.e., Monday - Thursday Beachfront 11am-6pm, Outdoor Restaurant/Beach Club: 12pm-7pm: Friday -Sunday Beachfront: 11 am-6pm; Outdoor Restaurant/Beach Club 11am-8pm (the "Standard Hours of Operation"). C. Notwithstanding anything to the contrary in Section 13.3 of the Concession Agreement or otherwise, if (i) Concessionaire breaches the foregoing agreement relating to its operations, and such default is not cured within one (1) day after written notice is given to Concessionaire or (ii) Concessionaire breaches the foregoing agreement a second or subsequent time following the first breach and cure by Lessee, then the City shall have the right to immediately terminate the Concession Agreement by written notice to Concessionaire, and Concessionaire shall vacate the Concession Area within ten (10) business days following such notice and shall deliver the Concession Area back to City in no worse condition than exists as of the date of this First Amendment 356 of 2461 consistent with Section 13.8 of the Concession Agreement. If Concessionaire fails to so vacate the Concession Area, then, upon expiration of such period, the City, at its option, may enter the Concession Area and remove all persons therefrom and may either take possession of all furniture, equipment, and other personal property of Concessionaire found within the Concession Area or remove such property or any part of its and store it at Concessionaire's expense. D. In addition to Concessionaire's agreement in A, above, to maintain its operations consistent with the uses and Standard Hours of Operation, Concessionaire will continue its operations at the Concession Area in compliance with the Concession Agreement and all applicable laws, including without limitation all City ordinances. Except as otherwise stated herein and as stated in the parties' Term Sheet, the City agrees to non-interference with Concessionaire's contracts and operations. Concessionaire may sub -contract portions of the Concession Area to subconcessionaires, provided (a) such subconcessionaires' operations are consistent with Concessionaire's current uses, occur only during the Standard Hours of Operation, and are in strict compliance with the terms of the Concession Agreement and all applicable laws, including without limitation all City ordinances; (b) not less than one of Concessionaire's managers is present at the Concession Area during all times when a subconcessionaire is conducting operations at the Concession Area; (c) each such subconcessionaire shall enter into an indemnification agreement for the benefit of the City with indemnification and insurance provisions consistent with those required of Concessionaire pursuant to the Concession Agreement; and (d) Concessionaire expressly ratifies its indemnity obligations pursuant to Section 12.1 of the Concession Agreement in respect of any such subconcessionaire on the Premises and/or Concession Area. Concessionaire shall allow Boucher and its consultants to enter upon the Concession Area and conduct geotechnical boring tests, provided such testing does not interfere with Concessionaire's operations. 3. RATIFICATION. Except as amended herein, all other terms and conditions of the Concession Agreement shall remain unchanged and in full force and effect. In the event there is a conflict between the provisions of this Amendment and the Concession Agreement, the provisions of this Amendment shall govern. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. 3 357 of 2461 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their appropriate officials, as of the date first entered above. ATTEST: Rafael E. Granado, City Clerk Witnesses: Print Name: Print Name: CITY OF MIAMI BEACH By: Steven Meiner, Mayor PENROD BROTHERS, INC. By: Lucia Penrod, CEO 358 of 2461 FOURTH AMENDMENT TO LEASE AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND PENROD BROTHERS, INC. This Fourth Amendment ("Amendment") to the Lease Agreement dated November 7, 1985 by and between the City of Miami Beach, Florida, a municipal corporation organized and existing under the laws of the State of Florida, ("Lessor" or "City"), and Penrod Brothers, Inc., a Florida corporation ("Lessee" or "Penrod", and together with the City, "the parties"), for the property located at One Ocean Drive, Miami Beach, FL ("Premises") is entered into as of March 26, 2026. RECITALS WHEREAS, on October 2, 1985, the Mayor and City Commission adopted Resolution No. 85-18223, approving a Lease Agreement between the City and Penrod for the development, construction, management and operation of a restaurant facility at the Premises (as amended by the First Amendment, Second Amendment and Third Amendment, the "Lease Agreement"); and WHEREAS, on March 2, 1988, the Mayor and City Commission adopted Resolution No. 88-19178, approving the First Amendment to the Lease Agreement, thereby amending the building footprint and appropriating funds for construction of a portion of the Pier Park parking area; and WHEREAS, on April 6, 1988, the Mayor and City Commission adopted Resolution No, 88-19211, approving the Second Amendment to the Lease Agreement, thereby revising the site plan and legal description; and WHEREAS, on February 25, 2004, the Mayor and City Commission adopted Resolution No. 2004-25507, approving the Third Amendment to the Lease Agreement to correct a scrivener's error in the exhibits to the Lease Agreement, to modify certain provisions relating to Percentage Rent, and to enable Penrod to terminate the Concession Agreement dated February 25, 2004 between the parties (the "Concession Agreement") in the event of an economic downturn; and WHEREAS, disputes have arisen between the parties relating to the Property; the Lease Agreement; the Concession Agreement; City Commission Resolutions 2023-32586, 2023-32612, and 2023-32825; City procurement activity and a City -issued request for proposals RFP 2023-479-KB (the "RFP"); a contract between City and Boucher Brothers Pier Park, LLC ("Boucher") dated October 20, 2023 (the "Boucher Contract"); and applications by Boucher and City for land use approvals, variances and permits; including as described in pleadings and papers in lawsuits at Case Nos. 2023-016657-CA-01 (Fla. 11th Cir. Civ.); 2023-56-AP-01 359 of 2461 (Fla. 11th Cir. App.); 2023-CV-23362 (S.D. Fla.); 2025-13415 (11th Cir.), which suits remain pending (the "Litigation") (together, the "Disputes"); and WHEREAS, on March 26, 2026, pursuant to Fla. R. Civ. P. 1.720(d), the parties agreed to the material terms of a settlement of the Disputes reflected in a term sheet executed by the parties (the "Term Sheet"), which will be documented in a settlement agreement ("Settlement Agreement'), an amendment to the Lease (the "Fifth and Final Amendment'), and an amendment to the Concession Agreement (the "Second Amendment to Concession Agreement'), and an amendment to the Boucher Contract (collectively, the "Settlement Documents") to be presented to the City Commission for its approval; and WHEREAS, the terms of the Settlement Agreement contemplate a 15- month extension of the term of the Lease Agreement and the Concession Agreement through August 6, 2027; and WHEREAS, the Lease Agreement and the Concession Agreement are set to expire on May 6, 2026 and it is anticipated that the Settlement Documents will be presented to the City Commission for approval at the May 20, 2026 meeting to enable the parties to prepare the Settlement Documents; and WHEREAS, to accommodate the preparation of the Settlement Documents and presentation thereof for approval to the Mayor and City Commission at its May 20, 2026 meeting, the parties desire to effectuate a short-term extension of the Lease Agreement. NOW THEREFORE, in consideration of the mutual promises and conditions contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the City and Penrod hereby agree to amend the Lease Agreement as follows: 1. ABOVE RECITALS. The above recitals are true and correct and are incorporated as part of this Amendment. Capitalized terms used herein and not otherwise defined shall have the same meaning as ascribed to them in the Lease Agreement. 2. MODIFICATIONS. A. The Lease Agreement is hereby immediately amended to extend the Term and all rights and obligations of the parties thereunder through August 31, 2026. B. Lessee agrees that its operations at the Premises shall remain consistent with current uses and hours of service, i.e., Monday - Thursday Beachfront 11 am-6pm, Outdoor Restaurant/Beach Club: 12pm-7pm; Friday -Sunday Beachfront: 11 am-6pm; Outdoor Restaurant/Beach Club 11am-8pm; Indoors only: 8am-2am (collectively, the "Standard Hours of Operation"). In addition, and consistent with its existing catering hours and operations, Lessee may host catering, 2 360 of 2461 special events, and banquet functions for weddings, social, and corporate events in the Outdoor Restaurant/Beach Club and Indoors for all hours during and after Standard Hours of Operations, but any outdoor catering or banquet functions must end and all guests must depart from the outside areas of the Premises not later than 12am, Sunday - Thursday and not later than lam on Fridays, Saturdays, and Holidays ("Catering Additional Hours"). C. Notwithstanding anything to the contrary in Section 26 of the Lease Agreement or otherwise, if (i) Lessee breaches the foregoing agreement relating to its operations, and such default is not cured within one (1) day after written notice is given to Lessee or (ii) Lessee breaches the foregoing agreement a second of subsequent time following the first breach and cure by Lessee, then Lessor shall have the right to immediately terminate the Lease Agreement by written notice to Lessee, and Lessee shall vacate the Premises within ten (10) business days following such notice and shall deliver the Premises back to Lessor in no worse condition than exists as of the date of this Fourth Amendment consistent with Section 20 of the Lease Agreement. If Lessee fails to so vacate the Premises, then upon the expiration of such period Lessor, at Lessor's option, may enter into possession of the Premises and all improvements thereon and remove all persons therefrom and may either take possession of all furniture, equipment, and other personal property of Lessee found on the Premises or remove such property or any part of its and store it at Lessee's expense. D. In addition to Lessee's agreement in A, above, to maintain its operations consistent with the uses and Standard Hours of Operation and Catering Additional Hours, Lessee will continue operations of and at the Premises in compliance with the Lease Agreement and all applicable laws, including without limitation all City ordinances. Except as otherwise stated herein and as stated in the parties' Term Sheet, the City agrees to non-interference with Lessee's contracts and operations. Lessee may sub -lease or sub -contract portions of the Premises to third parties, provided, (a) such third parties' operations are consistent with current uses, occur only during the Standard Hours of Operation and Catering Additional Hours, and are in strict compliance with the terms of the Lease Agreement and all applicable laws, including without limitation all City ordinances; (b) not less than one of Lessee's managers is present at the Premises at all times when a third party is conducting operations at the Premises; (c) each such third party shall enter into an indemnification agreement for the benefit of the City with indemnification and insurance provisions consistent with those required of Lessee pursuant to the Lease Agreement; and (d) Lessee expressly agrees that its indemnity obligations pursuant to Section 22 of the Lease Agreement are hereby amended to include claims of any kind or nature resulting from the use, activities and operations on the Premises and/or Concession Area of any such third party. For the avoidance of doubt, Lessee may not sub -lease or sub -contract portions of the Premises for 3 361 of 2461 use outside of the Standard Hours of Operation or Catering Additional Hours. Lessee shall allow Boucher and its consultants to enter upon the Premises and conduct geotechnical boring tests, provided such testing does not interfere with Lessee's operations. 3. RATIFICATION. Except as amended herein, all other terms and conditions of the Lease Agreement shall remain unchanged and in full force and effect. In the event there is a conflict between the provisions of this Amendment and the Lease Agreement, the provisions of this Amendment shall govern. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. a 362 of 2461 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their appropriate officials, as of the date first entered above. ATTEST: Rafael E. Granado, City Clerk Witnesses: Print Name: Print Name: CITY OF MIAMI BEACH M Steven Meiner, Mayor PENROD BROTHERS, INC. By: Lucia Penrod, CEO tt 14b44i;s %1 363 of 2461