HomeMy WebLinkAboutResolution 2026-34297RESOLUTION NO. 2026-34297
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA APPROVING, IN SUBSTANTIAL FORM, A
SETTLEMENT AGREEMENT (SETTLEMENT AGREEMENT) BY AND AMONG
PENROD BROTHERS, INC., THE CITY OF MIAMI BEACH, FLORIDA AND
BOUCHER BROTHERS PIER PARK, LLC TO CONCLUSIVELY SETTLE
LITIGATION RELATING TO THE PROPERTY LOCATED AT ONE OCEAN
DRIVE CONSISTENT WITH THE TERMS REFLECTED IN THE MEDIATION
SETTLEMENT BINDING TERM SHEET ATTACHED TO THIS RESOLUTION AS
EXHIBIT 1; AND AUTHORIZING THE CITY MANAGER TO FINALIZE THE
SETTLEMENT AGREEMENT; AND FURTHER, AUTHORIZING THE CITY
MANAGER AND CITY CLERK TO EXECUTE THE SETTLEMENT
AGREEMENT.
WHEREAS, disputes have arisen between Penrod Brothers, Inc. ("Penrod"), the City of
Miami Beach, Florida (the "City") and Boucher Brothers Pier Park, LLC ("Boucher") relating to: City -
owned property located at One Ocean Drive, Miami Beach, Florida and adjacent seaward and
beachfront area (collectively, the "Property"); a lease agreement between the City and Penrod,
entered into, pursuant to all required resolutions and approvals, on or about October 2, 1985, for
the development, construction, management and operation of a restaurant facility at the Property
(together with all subsequent amendments, including the Fourth Amendment to the Lease, the
"Lease"), a concession agreement between the City and Penrod, entered into, pursuant to all
required resolutions and approvals, on or about February 25, 2004, for the operation and
management of lounging equipment rentals and food and beverage sales on a portion of the
Property (together with all subsequent amendments, including the First Amendment to the Penrod
Concession Agreement, the "Penrod Concession Agreement," together with the Lease, the "Penrod
Agreements"); City Commission Resolutions 2023-32586, 2023-32612, 2023-32783, and 2023-
32825; City procurement activity and a City -issued request for proposals RFP 2023-479-KB (the
"RFP"); a concession agreement between the City and Boucher dated October 20, 2023 for
development, management and operation of the Property (the "Boucher Contract"); and applications
by Boucher and the City for land use approvals, variances and permits; including as described in
pleadings and papers in lawsuits at Case No. 2023-016657-CA-01 (Fla. 11th Cir. Civ.), 2023-56-
AP-01 (Fla. 11th Cir. App.), and 2023-CV-23362 (S.D. Fla.); 2025-13415-J (11th Cir.) (the lawsuits
together, the "Litigation") (all together, the "Disputes"); and
WHEREAS, the Parties engaged in mediation, discussions and negotiations in an effort to
resolve the Disputes, and 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
and in the settlement agreement that is the subject of this Resolution (the "Settlement Agreement");
and
WHEREAS, to enable the parties to negotiate the Settlement Agreement, on April 22, 2026,
the Mayor and Commission adopted Resolution No. 2026-34212 pursuant to which the City and
Penrod entered into the Fourth Amendment to the Lease and the First Amendment to the Penrod
Concession Agreement to allow for a short-term extension of the Lease and the Penrod Concession
Agreement pending the approval of the Settlement Agreement; and
WHEREAS, the principal terms of the settlement are reflected in the Mediation Settlement
Binding Term Sheet and Exhibit A thereto, a copy of which is attached to this Resolution as Exhibit
1; and
WHEREAS, the Mayor and City Commission have determined that it is in the best interest of
the City to enter into the Settlement Agreement as a compromise of disputed claims and issues, to
avoid the uncertainty and expense of litigation, and to bring certainty to the City's relationships with
Penrod and Boucher, and not as an admission of liability, wrongdoing, or the validity of any claim or
defense that was or could have been asserted.
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
in substantial form, a settlement agreement ("Settlement Agreement") by and among Penrod
Brothers, Inc., the City of Miami Beach, Florida and Boucher Brothers Pier Park, LLC to conclusively
settle litigation relating to the property located at One Ocean Drive consistent with the terms reflected
in the Mediation Settlement Binding Term Sheet attached to this Resolution as Exhibit 1; and
authorize the City Manager to finalize the Lease Amendment and the Concession Amendment; and
further authorize the City Manager and City Clerk to execute the Settlement Agreement.
PASSED and ADOPTED this a0 day of Aa , 20
ATTEST:
MAY 2 6 2026 Steven Meiner, Mayor
Rafael E. Granado, City Clerk
'OR PIORATE
2.
:"ROVED AS TO
RM & LANGUAGE
u FOR EXECUTION
�Ity A',torney pate
Exhibit 1
Mediation Settlement Binding Term Sheet
Docusign Envelope ID: 8CD57725-CD9B-4769-9440-C954A2BF4FA9
Penrod Bros. Inc. v. City of Miami Beach, Boucher Bros. Miami Beach, LLC
Case No. 2023-016657-CA-01
Mediation Settlement Binding Term Sheet
• Penrod will immediately withdraw/terminate all support of any kind for any opposition;
and end any joint/common-interest relationship and all assistance with any
objector/opposition; in respect of RFP, Property, and all related subject matter.
• Boucher and the City to pay Penrod $3 million (the "Settlement Payment") on the earlier
of September 30, 2026 or final approval of all Project Approvals (as that term is defined
under the Boucher Contract). The Settlement Payment is to be paid as follows: the City to
pay $1.5 million and Boucher to pay $1.5 million. Upon payment, Penrod will dismiss with
prejudice all claims, causes of actions, suits, appeals, etc.; withdraw with prejudice all
objections, protests, or other administrative actions.
• City and Penrod extend Penrod's lease and concession agreement by 15 months (to end
August 6, 2027), on the same rent/payment, operational, and other terms. Penrod will
continue operations in compliance with lease and all applicable laws, including without
limitation all City ordinances. Penrod may sub -lease or sub -contract portions of the
property for operations consistent with current uses and hours operation. All three parties
agree to non-interference with Penrod's contracts and operations. Penrod will allow
specific boring tests by Boucher provided non-interference with Penrod's operations.
• Standard mutual releases. All parties pay their own attorneys' fees, etc.
• All settlement terms herein are contingent upon City final approval of all agreed
amendments to the Boucher Contract as listed in the Binding Settlement Term Sheet
between Boucher and the City attached hereto as Exhibit A.
• At the end of Penrod's lease and concession agreement, Penrod shall deliver the City
property at One Ocean Drive back to the City in no worse condition than exists as of the
date of the Settlement Agreement consistent with Section 20 of Penrod's lease with the
City.
• Parties will jointly and under seal seek stay of litigation to allow for Planning Board review,
and Commission approval, documentation, and execution.
• Pursuant to Rule 1.720(d), the City's signature solely signifies that it will recommend the
above terms to the Mayor and City Commission for final settlement approval.
This reflects the parties' material terms of settlement.
Docusign Envelope ID: 8CD57725-CD9B-4769-9440-C954A2BF4FA9
PENROD BROTHERS INC.
FDOcuSigned
by:
36
by Lucia Penrod, CEO, Co -Founder, Owner
CITY OF MIAMI BEACH
F
Si/�gn/�ed by:
-q ICvQXWO �plCO
4/6BE9 5VB4L0...
by Ricardo Dopico, City Attorney
BOUCHER BROTHERS MIAMI BEACH,
Coeu3iyned by:
by Steven Boucher, Co -Founder, Principal
#14599360 v1
Penrod Bros. Inc. v. City of Miami Beach, Boucher Brosl Miami Beach, LLC
Case No. 2023-016657-CA-01
• As part of the settlement agreement in this matter, the Cit and Boucher agree to amend
ssion Boucher Bros. Miami Beach LLC's existing conceag pement as follows:
o Section 1.1 to be amended as follows: This Agree gent shall be effective as of the
Effective Date, but the term hereof shall not cominence until the earlier of: (a)
August 1, 2029 (the "Outside Commencement Date") subject to extension due to
Unavoidable Delays (as hereafter defined) occurring from and after the date of the
settlement agreement and (b) the date on which any of the Concession Operations
(as hereinafter defined) have been issued a certificate of use or certificate of
completion, as applicable, and are fully open to the public for business (the earlier
of such dates, the "Commencement Date"). For the avoidance of doubt, the
foregoing 2-year extension of the Outside Commencement Date accounts for
claims for Unavoidable Delays made prior to the dal hereof by Boucher.
o Addition of one extension option for five (5) years o long as Boucher is in good
standing
o Recommendation to Mayor and City Commissioz to approve demolition of
currently existing building on the property at One Ocean Drive
o Should the City exercise the 5 year option, in Year 10 there will be rent reset to
arrive at the new minimum guaranteed annual rent fqr years 10-15. Percentage rent
for years 10-15 shall stay the same.
o Pursuant to Rule 1.720(d), the City's signature Isolely signifies that it will
recommend the above terms to the Mayor and City C mmission for final settlement
approval.
BOUCHER BR THERS MIAMI BEACH,
LLC __ .4
by Steven
CITY OF MIAMI BEACH
-, Co -Founder, Principal
by Ricardo Dopico, City Attorney
Resolutions - R7 AD
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Eric Carpenter, City Manager
DATE: May 20, 2026
TITLE: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA APPROVING, IN SUBSTANTIAL FORM, A
SETTLEMENT AGREEMENT (SETTLEMENT AGREEMENT) BY AND AMONG
PENROD BROTHERS, INC., THE CITY OF MIAMI BEACH, FLORIDA AND
BOUCHER BROTHERS PIER PARK, LLC TO CONCLUSIVELY SETTLE
LITIGATION RELATING TO THE PROPERTY LOCATED AT ONE OCEAN DRIVE
CONSISTENT WITH THE TERMS REFLECTED IN THE MEDIATION
SETTLEMENT BINDING TERM SHEET ATTACHED TO THIS RESOLUTION AS
EXHIBIT 1; AND AUTHORIZING THE CITY MANAGER TO FINALIZE THE
SETTLEMENT AGREEMENT; AND FURTHER, AUTHORIZING THE CITY
MANAGER AND CITY CLERK TO EXECUTE THE SETTLEMENT AGREEMENT.
RECOMMENDATION
The Administration recommends that the Mayor and City Commission adopt the Resolution
approving, in substantial form, a Settlement Agreement relating to the property located at One
Ocean Drive among Penrod Brothers, Inc. ("Penrod"), the City of Miami Beach ("City"), and
Boucher Brothers Pier Park, LLC ("Boucher"), consistent with the Mediation Settlement Binding
Term Sheet attached as Exhibit 1; and authorizing the City Manager to finalize and execute the
Settlement Agreement, together with the City Clerk.
BACKGROUND/HISTORY
On May 17, 2023, through Resolution 2023-32612, the City Commission directed the
Administration to issue a Request for Proposals (RFP 2023-479-KB) seeking qualified firms to
manage or operate a high -end beach establishment at One Ocean Drive and the adjacent
beachfront concession area. The intent was to identify a future operator to assume responsibilities
upon the expiration of the long-standing Lease Agreement between the City and Penrod Brothers,
Inc., executed in 1985, and the Concession Agreement executed in 2004, both scheduled to
conclude on May 6, 2026.
Following the competitive selection process, the City Manager recommended Boucher Brothers
Pier Park, LLC as the top -ranked proposer. On September 27, 2023, the Mayor and City
Commission authorized the Administration to negotiate with Boucher Brothers Pier Park, LLC,
and on October 18, 2023, the Commission adopted Resolution 2023-32825 approving the
resulting concession agreement.
A Lease Agreement between the City and Penrod was entered into on October 2, 1985, for the
development, construction, management and operation of a restaurant facility at the Property. In
addition, a Concession Agreement between the City and Penrod was entered into, pursuant to all
required resolutions and approvals, on February 25, 2004, for the operation and management of
lounging equipment rentals and food and beverage sales on a portion of the Property.
Disputes have arisen between Penrod Brothers. Inc. ("Penrod"), the City of Miami Beach, Florida
1246 of 1709
(the "City") and Boucher Brothers Pier Park, LLC ("Boucher") relating to the City -owned property
located at One Ocean Drive, Miami Beach, Florida (the "Property").
ANALYSIS
In an effort to resolve these matters comprehensively, the parties engaged in mediation and
extended negotiations. These discussions culminated on March 26, 2026, when Penrod, the City,
and Boucher reached agreement on the principal terms of a global settlement, memorialized in a
Mediation Settlement Binding Term Sheet.
Because additional time was needed to prepare the full Settlement Agreement, the Mayor and
City Commission adopted Resolution 202634212 on April 22, 2026. This action authorized the
City and Penrod to enter into shortterm extensions of the existing Lease and Concession
Agreement, ensuring continuity of operations while the final settlement documents were drafted
and readied for Commission consideration.
The principal terms of the settlement are reflected in the Mediation Settlement Binding Term
Sheet and Exhibit A thereto, a copy of which is attached to this Resolution as Exhibit 1. The
Mayor and City Commission are requested to determine that it is in the best interest of the City to
enter into the Settlement Agreement as a compromise of disputed claims and issues, to avoid the
uncertainty and expense of litigation, and to bring certainty to the City's relationships with Penrod
and Boucher, and not as an admission of liability, wrongdoing, or the validity of any claim or
defense that was or could have been asserted.
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 miamibeachfl.gov/city-hall/city-clerk/meeting-notices/
FINANCIAL INFORMATION
CONCLUSION
The Administration recommends that the Mayor and City Commission hereby approve in
substantial form, a Settlement Agreement by and among Penrod Brothers, Inc., the City of Miami
Beach, Florida and Boucher Brothers Pier Park, LLC to conclusively settle litigation relating to the
property located at One Ocean Drive consistent with the terms reflected in the Mediation
Settlement Binding Term Sheet; and authorize the City Manager to finalize the Lease Amendment
and the Concession Amendment; and further authorize the City Manager and City Clerk to
execute the Settlement Agreement.
Applicable Area
1247 of 1709
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
Proiect?
Im
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
Settlement Agmt Among Penrod Brothers, CMB and Boucher Brothers Pier Park. CM
Previous Action (For City Clerk Use Only)
1248 of 1709
Exhibit 1
Mediation Settlement Binding Term Sheet
1251 of 1709
Docusign Envelope ID: 8CD57725-CD9B-4769-9440-C954A2BF4FA9
Penrod Bros. Inc. v. City of Miami Beach, Boucher Bros. Miami Beach, LLC
Case No. 2023-016657-CA-01
Mediation Settlement Binding Term Sheet
• Penrod will immediately withdraw/terminate all support of any kind for any opposition;
and end any joint/common-interest relationship and all assistance with any
objector/opposition; in respect of RFP, Property, and all related subject matter.
Boucher and the City to pay Penrod $3 million (the "Settlement Payment") on the earlier
of September 30, 2026 or final approval of all Project Approvals (as that term is defined
under the Boucher Contract). The Settlement Payment is to be paid as follows: the City to
pay $1.5 million and Boucher to pay $1.5 million. Upon payment, Penrod will dismiss with
prejudice all claims, causes of actions, suits, appeals, etc.; withdraw with prejudice all
objections, protests, or other administrative actions.
• City and Penrod extend Penrod's lease and concession agreement by 15 months (to end
August 6, 2027), on the same rent/payment, operational, and other terms. Penrod will
continue operations in compliance with lease and all applicable laws, including without
limitation all City ordinances. Penrod may sub -lease or sub -contract portions of the
property for operations consistent with current uses and hours operation. All three parties
agree to non-interference with Penrod's contracts and operations. Penrod will allow
specific boring tests by Boucher provided non-interference with Penrod's operations.
• Standard mutual releases. All parties pay their own attorneys' fees, etc.
• All settlement terms herein are contingent upon City final approval of all agreed
amendments to the Boucher Contract as listed in the Binding Settlement Term Sheet
between Boucher and the City attached hereto as Exhibit A.
• At the end of Penrod's lease and concession agreement, Penrod shall deliver the City
property at One Ocean Drive back to the City in no worse condition than exists as of the
date of the Settlement Agreement consistent with Section 20 of Penrod's lease with the
City.
• Parties will jointly and under seal seek stay of litigation to allow for Planning Board review,
and Commission approval, documentation, and execution.
• Pursuant to Rule 1.720(d), the City's signature solely signifies that it will recommend the
above terms to the Mayor and City Commission for final settlement approval.
This reflects the parties' material terms of settlement.
1252 of 1709
Docusign Envelope ID: 8CD57725-CD9B-4769-9440-C954A2BF4FA9
PENROD BROTHERS INC. BOUCHER BROTHERS vIIAMI BEACH,
I- ocus;cn.a by
OocuS.gned by:
22aF66ED35�A486
by Lucia Penrod, CEO, Co -Founder, Owner by Stcvcn Boucher, Co -Founder, Principal
CITY OF MIAMI BEACH
FSigned by*
p;crty%'�o Lofuco
by Ricardo Dopico.. City Attorney
114599360 vl
1253 of 1709
Penrod Bros-. Inc. v. City of Miami Beach, Boucher Bros Miami Beach, LLC
Case No. 2023-0I6657-CA-01
ettlement Hindtna Term meet —
• As part of the settlement agreement in this matter, the Cit-,' and Boucher agree to amend
Boucher Bros. Miami Beach LLC's existing concession ag �eement as follows:
o Section 1.1 to be amended as follows: This Agreement shall be effective as of the
Effective Date, but the term hereof shall not commence until the earlier of: (a)
August 1, 2029 (the "Outside Commencement Date") subject to extension due to
Unavoidable Delays (as hereafter defined) occurrin ` from and after the date of the
settlement agreement and (b) the date on which any of the Concession Operations
(as hereinafter defined) have been issued a certi cate of use or certificate of
completion, as applicable, and are fully open to the ublic for business (the earlier
of such dates, the "Commencement Date"). For the avoidance of doubt, the
foregoing 2-year extension of the Outside Com�encement Date accounts for
claims for Unavoidable Delays made prior to the da i hereof by Boucher.
o Addition of one extension option for five (5) years o long as Boucher is in good
standing
o Recommendation to Mayor and City Commissio to approve demolition of
currently existing building on the Property at One O `ean Drive
o Should the City exercise the 5 year option, in Year; 10 there will be rent reset to
arrive at the new minimum guaranteed annual rent fqr years 10-15. Percentage rent
for years 10-15 shall stay the same.
o Pursuant to Rule 1.720(d), the City's signature solely signifies that it grill
recommend the above terns to the Mayor and City C I mmission for final settlement
approval.
CITY OF v1IAMI BEACH
BOUCHER BROTHERS MIAMI BEACH,
LLC 4
by Steven
, Co -Founder, Principal
1254 of 1709
by Ricardo Dopico, City Attorney
1255 of 1709
Exhibit 1
Mediation Settlement Binding Term Sheet
1256 of 1709
Docusign Envelope ID8CD57725-CD9B-4769-9440-C954A2BF4FA9
Penrod Bros. Inc. v. City of Miami Beach, Boucher Bros. Miami Beach, LLC
Case No. 2023-016657-CA-01
Mediation Settlement Binding Term Sheet
• Penrod will immediately withdraw/terminate all support of any kind for any opposition;
and end any joint/common-interest relationship and all assistance with any
objector/opposition; in respect of RFP, Property, and all related subject matter.
Boucher and the City to pay Penrod $3 million (the "Settlement Payment") on the earlier
of September 30, 2026 or final approval of all Project Approvals (as that term is defined
under the Boucher Contract). The Settlement Payment is to be paid as follows: the City to
pay $1.5 million and Boucher to pay $1.5 million. Upon payment, Penrod will dismiss with
prejudice all claims, causes of actions, suits, appeals, etc.; withdraw with prejudice all
objections, protests, or other administrative actions.
• City and Penrod extend Penrod's lease and concession agreement by 15 months (to end
August 6, 2027), on the same rent/payment, operational, and other terms. Penrod will
continue operations in compliance with lease and all applicable laws, including without
limitation all City ordinances. Penrod may sub -lease or sub -contract portions of the
property for operations consistent with current uses and hours operation. All three parties
agree to non-interference with Penrod's contracts and operations. Penrod will allow
specific boring tests by Boucher provided non-interference with Penrod's operations.
• Standard mutual releases. All parties pay their own attorneys' fees, etc.
• All settlement terms herein are contingent upon City final approval of all agreed
amendments to the Boucher Contract as listed in the Binding Settlement Term Sheet
between Boucher and the City attached hereto as Exhibit A.
• At the end of Penrod's lease and concession agreement, Penrod shall deliver the City
property at One Ocean Drive back to the City in no worse condition than exists as of the
date of the Settlement Agreement consistent with Section 20 of Penrod's lease with the
City.
• Parties will jointly and under seal seek stay of litigation to allow for Planning Board review,
and Commission approval, documentation, and execution.
• Pursuant to Rule 1.720(d), the City's signature solely signifies that it will recommend the
above terms to the Mayor and City Commission for final settlement approval.
This reflects the parties' material terms of settlement.
1257 of 1709
Docusign Envelope ID8CD57725-CD9B-4769-9440-C954A2BF4FA9
PENROD BROTHERS INC. BOUCHER BROTHERS MIAMI BEACH,
L USipned by:
DocuSigned by:
224F86ED357A488
by Lucia Penrod, CEO, Co -Founder, Owner
CITY OF MIAMI BEACH
Signed by:
►tv�Do Jdo1uco
/088E916C5E7B428
by Ricardo Dopico, City Attorney
by Steven Boucher, Co -Founder, Principal
#14599360v1 1258 of 1709
Penrod Bros. Inc. v. City of Miami Beach, Boucher Bros Miami Beach, LLC
Case No. 2023-016657-CA-01
ediation Settlement BindinnzTerm Sheet —
• As part of the settlement agreement in this matter, the City and Boucher agree to amend
Boucher Bros. Miami Beach LLC's existing concession agreement as follows:
o Section 1.1 to be amended as follows: This Agreement shall be effective as of the
Effective Date, but the term hereof shall not co ence until the earlier of: (a)
August 1, 2029 (the "Outside Commencement Dat ") subject to extension due to
Unavoidable Delays (as hereafter defined) occurrin from and after the date of the
settlement agreement and (b) the date on which any of the Concession Operations
(as hereinafter defined) have been issued a certi cate of use or certificate of
completion, as applicable, and are fully open to the ublic for business (the earlier
of such dates, the "Commencement Date"). For the avoidance of doubt, the
foregoing 2-year extension of the Outside Commencement Date accounts for
claims for Unavoidable Delays made prior to the dale hereof by Boucher.
o Addition of one extension option for five (5) years o long as Boucher is in good
standing
o Recommendation to Mayor and City Commissios to approve demolition of
currently existing building on the property at One O ean Drive
o Should the City exercise the 5 year option, in Year III there will be rent reset to
arrive at the new minimum guaranteed annual rent f r years 10-15. Percentage rent
for years 10-15 shall stay the same.
o Pursuant to Rule 1.720(d), the City's signature solely signifies that it will
recommend the above terms to the Mayor and City C )mmission for final settlement
approval.
CITY OF MIAMI BEACH
BOUCHER B
LLC
by Steven B
ERS MIAMI BEACH,
Co -Founder, Principal
1259 of 1709
by Ricardo Dopico, City Attorney
1260 of 1709
Agenda Item: R7 AD
Date: 5/20/2026
SETTLEMENT AGREEMENT
This Settlement Agreement ("Settlement Agreement") is entered into as of May 20, 2026
(the "Effective Date"), by and between Penrod Brothers, Inc., a Florida corporation ("Penrod"),
the City of Miami Beach, Florida, a Florida municipal corporation (the "City") and Boucher
Brothers Pier Park, LLC, a Florida company, along with any and all of its affiliates and partners
associated with the Property and/or Boucher Contract (defined below) (together, "Boucher").
Penrod, City and Boucher are each referred to herein as a "Party" and together as the "Parties."
WHEREAS, disputes have arisen between the Parties relating to: City -owned property
located at One Ocean Drive, Miami Beach, Florida and adjacent seaward and beachfront area
(collectively, the "Property"); a lease agreement between the City and Penrod, entered into,
pursuant to all required resolutions and approvals, on or about October 2, 1985, for the
development, construction, management and operation of a restaurant facility at the Property
(together with all subsequent amendments, including the Fourth Amendment to the Lease, the
"Lease"), a concession agreement between the City and Penrod, entered into, pursuant to all
required resolutions and approvals, on or about February 25, 2004, for the operation and
management of lounging equipment rentals and food and beverage sales on a portion of the
Property (together with all subsequent amendments, including the First Amendment to the Penrod
Concession Agreement, the "Penrod Concession Agreement," together with the Lease, the "Penrod
Agreements"); City Commission Resolutions 2023-32586, 2023-32612, 2023-32783, and 2023-
32825; City procurement activity and a City -issued request for proposals RFP 2023-479-KB (the
"RFP"); a concession agreement between the City and Boucher dated October 20, 2023 for
development, management and operation of the Property (the "Boucher Contract"); and
applications by Boucher and the City for land use approvals, variances and permits; including as
described in pleadings and papers in lawsuits at Case No. 2023-016657-CA-01 (Fla. l lth Cir.
Civ.), 2023-56-AP-01 (Fla. 1 lth Cir. App.), and 2023-CV-23362 (S.D. Fla.); 2025-13415-J (1 lth
Cir.) (the lawsuits together, the "Litigation") (all together, the "Disputes"); and
WHEREAS, the Parties engaged in mediation, discussions and negotiations in an effort to
resolve the Disputes, and 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; and
WHEREAS, as contemplated by the material terms of settlement in the executed term
sheet and in anticipation of this Settlement Agreement, on April 22, 2026, the Mayor and
Commission adopted Resolution No. 2026-34212 pursuant to which the City and Penrod entered
into the Fourth Amendment to the Lease and the First Amendment to the Penrod Concession
Agreement; and
WHEREAS, the Parties enter into this Settlement Agreement as a compromise of disputed
claims and issues to avoid the uncertainty and expense of litigation and to bring certainty to their
relationships and planned developments on the terms set forth herein, and not as an admission of
liability, wrongdoing, or the validity of any claim or defense that was or could have been asserted;
and
WHEREAS, on , 2026, the Mayor and Commission adopted Resolution No.
2026- , approving the material terms of the proposed mediated settlement agreement,
authorized the City Manager to finalize the settlement agreement consistent with those material
K
Agenda Item: R7 AD
Date: 5/20/2026
terms and in a form acceptable to the City Attorney, and authorized the City Manager and City
Clerk to execute said settlement agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
below, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Party intending to be legally bound, agrees as follows:
1. Incorporation of Recitals, Exhibits and Attachments
1.1 The above recitals are true and correct and are incorporated by this reference as a
substantive part of this Settlement Agreement. All attachments and exhibits to this Settlement
Agreement are incorporated herein and made a part hereof by reference. Notwithstanding the
foregoing, if the terms of this Settlement Agreement shall become null and void pursuant to Section
6.2 hereof, then the recitals shall not be binding upon any of the Parties as to the veracity of the
statements contained therein.
2. Definitions
2.1 "Action" means any action, cause of action, claim (including any cross -claim,
counterclaim or third -party claim), suit, charge, demand, judgment, right, mediation, arbitration,
litigation, order, audit, proceeding (including any civil, commercial, criminal, administrative,
investigative or appellate proceeding), governmental inquiry, governmental investigation,
complaint, motion, petition, hearing, inquiry, dispute, challenge, objection, administrative dispute,
appeal, controversy, or dispute resolution process, under any Law, whenever or however arising,
whether pending or prospective, including by, before or with respect to any person or entity.
2.2 "Authority" means any nation, government or political subdivision, whether
federal, state, local, foreign, multinational, international, tribal, regulatory, administrative or self -
regulatory, commission, agency, bureau, department, body, board, or other instrumentality of any
such government or political subdivision, any self -regulated organization or other non-
governmental regulatory authority or quasi -governmental authority (to the extent that the rules,
regulations or orders of such organization or authority have the force of Law) or any federal, state,
local, foreign, multinational, international, or tribal court, judicial, quasi-judicial, administrative
or arbitral body.
2.3 "Law" means any statute, law, common law, constitution, code, ordinance,
regulation or Order of any Authority, treaty, rule, judgment, decree, standard, or other requirement
or rule of law of any Authority or industry -recognized self -regulatory organization, or other
binding action or legally enforceable requirement of any Authority.
2.4 "Liability" or "Liabilities" means any direct or indirect obligation, indebtedness,
encumbrances, duty, guaranty, obligation, tax obligation, tax entrustment, tax requirement,
endorsement, claim, loss, damage, deficiency, cost, expense, or responsibility, fixed or unfixed,
absolute or contingent, matured or unmatured, known or unknown, asserted or unasserted, choate
or inchoate, liquidated or unliquidated, secured or unsecured, accrued or unaccrued, interest,
penalty, fine, demand, charge, due, judgment, notice of violation, cause of action, or other loss,
cost or expense of any kind or nature whatsoever, arising under any Law, Action or Contract.
2.5 "Loss" or "Losses" means any and all past, present or future losses, Liabilities,
costs, expenses, damages, penalties, fines, assessments, levies, payments, judgments, interest,
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amounts paid in settlement, costs of investigation, increase in insurance rates or premiums,
response action, removal action, remedial action, attorneys' fees and costs, accountants' fees and
costs, investigators' fees and costs, experts' fees and costs, and including, as the context may
require, any of the foregoing which arise out of or in connection with any actions, suits,
proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions,
judgments, Orders, decrees or rulings.
2.6 "Order" means any order, injunction, judgment, decree, decision, award,
stipulation, determination, writ or decree, ruling, administrative decision, assessment, or
arbitration award of, or any settlement agreement or similar written agreement with, any
governmental Authority or arbitrator, mediator or Authority or any settlement agreement or similar
written agreement with any Authority.
2.7 "Person" means an individual, partnership, corporation, limited liability company,
business trust, joint stock corporation, estate, trust, unincorporated association, joint venture,
Authority or other entity, of whatever nature.
2.8 "Subsidiary" of any Person means any corporation, partnership, limited liability
company or other legal entity in which such Person (either alone or through or together with any
other Subsidiary), owns, directly or indirectly, a majority or controlling equity or ownership
interests, the holder of which is generally entitled to elect a majority of the board of managers or
directors or other governing body of such legal entity.
2.9 Additional Terms. In addition to the terms defined in this Section 2, capitalized
terms are elsewhere defined in this Settlement Agreement. Capitalized terms used but not defined
herein have the meanings ascribed to them in the Penrod Agreements and Boucher Contract, as
applicable.
3. Termination of Opposition
3.1 Penrod will immediately withdraw and terminate all support of any kind for any
existing opposition; will not support any future opposition by third parties; end any joint -interest
or common -interest relationship and all assistance with any objector(s) and/or opposition; cease
any existing opposition; and will not engage in any future opposition in respect of: the Boucher
Contract and any amendments thereto, the RFP, Boucher's demolition of any existing structures
on the Property, Boucher's development or operation of the Property after August 7, 2027 as
contemplated by the Boucher Contract and any amendments thereto, or any of the City's and/or
Boucher's land use and government application(s) with respect to the Property, as contemplated
by the Boucher Contract and any amendments thereto.
4. Settlement Payment
4.1 Payment. Boucher and City shall - pay Penrod Three Million Dollars
($3,000,000.00) ("Settlement Payment") on the earlier of (a) September 30, 2026 or (b) the date
that is ten (10) business days following the final approval of all Project Approvals (as that term is
defined in the Boucher Contract) ("Payment Date").
4.2 Payment Instructions. The Settlement Payment shall be remitted pursuant to written
wire instructions included as Exhibit 1 herein.
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4.3 Non -Payment. Time is of the essence with respect to payment of the Settlement
Payment by the Payment Date. Non-payment of any portion of the Settlement Payment by the
Payment Date shall result, in addition to any and all rights, claims and interests available to Penrod
under all applicable Law, in interest on such non -paid portion accruing daily and compounding
monthly at the statutory post judgment interest rate set pursuant to Fla. Stat. § 55.03(1), with the
full amount of any unpaid portion and all applicable interest immediately due and owing.
5. Extension of Penrod Agreements
5.1 Extension. Pursuant to the Fifth Amendment to the Lease and the Second
Amendment to the Penrod Concession Agreement, (collectively, the "Penrod Lease and
Concession Agreement Amendments"), substantially in the forms attached hereto as Composite
Exhibit 2, but subject to the provisions in Sections 6.1 and 6.2 below, the City is
contemporaneously with effectuation of the terms of this Settlement Agreement extending the
Term of the Penrod Agreements (at Section 3 of the Lease and Section 1 of the Penrod Concession
Agreement), and all rights and obligations thereunder, by fifteen (15) months, to and including
August 6, 2027, on the same rent/payment, operational, and other terms and provisions as provided
in the Penrod Agreements except as such terms are modified by the Penrod Lease and Concession
Amendments (including, for the avoidance of doubt, the modifications made pursuant to the Fourth
Amendment to the Lease and First Amendment to the Penrod Concession Agreement). Boucher
agrees and consents to same and the terms of this Section, notwithstanding the Boucher Contract
and as contemplated and effectuated by this Settlement Agreement and the terms and provisions
of the Boucher Contract Amendment (defined below).
5.2 Operational Compliance. Penrod will continue operations of and at the Property in
compliance with the Penrod Agreements (including the terms set forth in the Penrod Lease and
Concession Agreement Amendments) and all applicable laws, including without limitation all City
ordinances. Penrod may sub -lease or sub -contract portions of the Property for operations consistent
with the terms set forth in the Penrod Lease and Concession Agreement Amendments.
5.3 Non -Interference. The City and Boucher agree to not interfere with Penrod's
contracts and operations to the extent that such interference would directly result in a Loss to
Penrod. Notwithstanding that limitation:
(a) Boucher is permitted to walk through the Property with its designers and/or
architects and undertake non-destructive testing ("Pre -Construction Visit") provided that all of the
following conditions are met:
(i) Penrod and the City are provided seven (7) days advance written
notice of the names of the participants ("Participants"), purpose of
the visit, scope of work, and areas of Property needed for the Pre -
Construction Visit;
(ii) The Pre -Construction Visits may only take place Monday through
Thursday from 8 a.m. until 12 p.m. or from 7 p.m. until 9 p.m., on a
day when no catering or special event is scheduled;
(iii) No equipment or materials may be left or stored on the Property;
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(iv)The Participants must be fully licensed and insured professionals in
their fields;
(v) The Participants must be accompanied by a City representative or a
Penrod representative at all times that they are on the Property; and
(vi)Boucher agrees to indemnify and hold Penrod and the City harmless
for any and all liability, loss, damages, costs or expenses, arising
from the Participants' acts or omissions in connection with the Pre -
Construction Visit.
(b) Boucher is permitted to conduct three (3) boring/soil sample tests at the
Property, and potentially additional boring/soil sample tests in order to satisfy Florida Department
of Environmental Protection regulatory requirements ("Additional Select Testing"), provided the
following conditions are met:
(i) Penrod and the City are provided seven (7) days advance written
notice of. the names of the Participants, verification from the State
evidencing that such testing is needed solely in the case of
Additional Select Testing, purpose of the visit, scope of work, and
specific area(s) of Property needed;
(ii) Any occurrence of such testing may only take place Monday
through Thursday from 8 a.m. until 12 p.m. or from 7 p.m. until 9
p.m., on a day when no catering or special event is scheduled;
(iii) If the testing and/or storage of the equipment exceeds three (3) days
in total, Boucher shall compensate Penrod $3,000 for each
additional day of testing/storage, prior to undertaking such
testing/storage;
(iv) Boucher and/or its Participants may place and store on the Property
machinery and/or rigging necessary for testing, provided that any
such machinery and/or rigging are stored: within the parking area
designated for public parking and not used by Penrod for valet
parking; in a neat, orderly, and compact matter; and at Boucher's
(and not Penrod's or the City's) complete risk and liability;
(v) Boucher is responsible to return the Property to all site conditions
that existed prior to testing;
(vi)The Participants must be fully licensed and insured professionals in
their fields;
(vii) The Participants must be accompanied by a City representative
or a Penrod representative at all times that they are on the Property;
and;
(viii) Boucher agrees to indemnify and hold Penrod and the City
harmless for any and all liability, loss, damages, costs or expenses,
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arising from the Participants' acts or omissions in connection with
the testing.
In addition to all available remedies, any material violation by Boucher of any provision of this
Section 5.3 during or in connection with a Pre -Construction Visit and/or testing terminates
Boucher's permission to engage in any future Pre -Construction Visit or testing.
5.4 Deliverv. Upon the expiration of the extension of the Terms per section 5.1, Penrod
shall deliver the Property back to the City in no worse condition than exists as of March 26, 2026,
consistent with Section 20 of Penrod's Lease.
6. Amendment to Boucher Contract
6.1 As a condition precedent to the validity of this Settlement Agreement and the
Penrod Lease and Concession Agreement Amendments, the City and Boucher will obtain final
Commission approval ("Approval") to execute an amendment to the Boucher Contract that
incorporates all agreed terms listed in the binding term sheet executed by the City and Boucher on
March 26, 2026, attached as Exhibit 3 ("Boucher Contract Amendment") on or before September
30, 2026 ("Final Approval Date").
6.2 If there has been no Approval of the Boucher Contract Amendment by the Final
Approval Date, then: (a) Penrod agrees to not pursue injunctive relief in the Litigation to permit
Penrod to remain on the Property after January 10, 2027 and to vacate the Premises on or before
such date; (b) the alternative versions of the Fifth Amendment to the Lease and the Second
Amendment to the Penrod Concession Agreement, (collectively, the "Alternative Penrod Lease
and Concession Agreement Amendments," executed copies of which are attached hereto as
Composite Exhibit 4 and executed copies of which shall be delivered by Penrod and the City by
or before June 1, 2026 to an escrow agent to be mutually agreed upon and held in escrow pursuant
to the terms of this Settlement Agreement) --extending the Term of the Penrod Agreements (at
Section 3 of the Lease and Section 1 of the Penrod Concession Agreement), and all rights and
obligations thereunder, to January 10, 2027, on the same rent/payment, operational, and other
terms and provisions —shall be immediately effective; (c) an alternative amendment to the
Boucher Contract (the "Alternative Boucher Contract Amendment," a copy of which is attached
hereto as Exhibit 5 and an executed copy of which shall be delivered by Boucher and the City by
or before June 1, 2026 to an escrow agent to be mutually agreed upon and held in escrow pursuant
to the terms of this Settlement Agreement) —extending the latest date for commencement of the
Boucher Contract's term (at Section 1.1 of the Boucher Contract) to May 1, 2028—shall be
immediately effective; and (d) all terms and provisions of this Settlement Agreement —except the
preamble, Sections 2, 6, 11, 12 and 13, and signature pages —shall be null and void ab initio, such
that inter alia and for the avoidance of doubt, no Party will have released, waived or discharged
any, and instead shall have retained all, Actions, claims, demands, damages, Losses, Liabilities,
obligations, or causes of action of any kind or nature whatsoever, whether known or unknown,
suspected or unsuspected, fixed or contingent, liquidated or unliquidated, accrued or unaccrued,
including those arising out of this remaining Section 6.2.
7. Mutual Releases / Covenants Not to Sue
7.1 Upon payment by the City and Boucher to Penrod of the full Settlement Payment
and delivery of the executed Penrod Lease and Concession Agreement Amendments and Boucher
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Contract Amendment in Sections 5 and 6.1 hereto, respectively, the Parties effectuate the releases
and covenants in this Section.
7.2 Penrod, the City, and Boucher, each on behalf of itself and its respective past,
present, and future parents, subsidiaries, affiliates, predecessors, successors, assigns, members,
shareholders, managers, officers, directors, employees, agents, insurers, representatives, and
related entities (collectively, the "Releasing Parties"), hereby fully, finally, and irrevocably
releases and forever discharges the other parties (Penrod, the City, and Boucher, alternatively) and
their respective past, present, and future parents, subsidiaries, affiliates, predecessors, successors,
assigns, members, shareholders, managers, officers, directors, employees, agents, insurers,
representatives, and related entities (collectively, the "Released Parties") from any and all Actions,
claims, demands, damages, Losses, Liabilities, obligations, or causes of action of any kind or
nature whatsoever, whether known or unknown, suspected or unsuspected, fixed or contingent,
liquidated or unliquidated, accrued or unaccrued (collectively, "Claims"), that any Releasing Party
ever had, now has, or may hereafter have, arising out of or relating in any way to any and all facts,
events, transactions, or circumstances relating to the Disputes, expressly including all Claims that
were asserted or could have been asserted in the Litigation, but not the Parties' ongoing
relationships with each other and their future uses of the Property as contemplated under this
Settlement Agreement (the "Released Claims"), whether those arise out of contract, tort, statute,
ordinance, warranty, strict liability, punitive or exemplary damages, or any other Law. For the
avoidance of doubt, unless this Settlement Agreement shall become null and void pursuant to
Section 6.2, the Released Claims shall expressly include (a) any claims that Boucher may have
against the City or Penrod in respect of the approval by the Mayor and City Commission of, or
terms contained in, the Penrod Lease and Concession Agreement Amendments and (b) any claims
Penrod may have against the City or Boucher in respect of the approval by the Mayor and City
Commission of, or terms contained in, the Boucher Contract Amendment.
7.3 The Releasing Parties by this Settlement Agreement do not waive any claims not
waivable by applicable Law. The Releasing Parties do not waive any claims arising from this
Settlement Agreement, including in connection with this Section.
7.4 Each Releasing Party further covenants not to sue any Released Party in respect of
or for any of the Released Claims, not to take any action, conduct, effort, or activity in furtherance
of any Released Claim, and not to cause any Released Party to be sued or caused to suffer any
Loss or Liability by any person or party in respect of or for any of the Released Claims.
8. Dismissal
8.1 Within seven (7) days of effectiveness of the releases and covenants in Section 7
hereto, the Parties will jointly dismiss with prejudice all claims and defenses asserted or available
in and seek closure of the Litigation.
8.2 Unless otherwise provided herein, all Parties will be responsible for their own
attorneys' fees and all other fees and costs associated with the Litigation.
9. Breach
9.1 The Parties acknowledge that the terms of this Settlement Agreement, are each and
all, including all sub -parts, material terms. Breach of any material term relieves the non -breaching
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Party of its obligations under this Settlement Agreement. In the event of a breach of any provision
of this Settlement Agreement, and upon the provision of ten days written notice of the alleged
breach and provision of an opportunity to cure, the non -breaching Party shall be entitled to seek
all remedies available at law or in equity, including injunctive relief, and the breaching Party
acknowledges that such breach may result in irreparable harm for which monetary damages alone
may be an inadequate remedy.
9.2 The Parties are, in all events and otherwise, entitled to all forms of relief at law and
in equity to remedy any breach of this Settlement Agreement.
10. Attorneys' Fees
10.1 Each Party shall bear its own fees and costs in connection with the Disputes.
11. Notice
11.1 All notices, requests, consents, claims, demands, waivers and other
communications in connection with this Settlement Agreement shall be in writing and (unless
specified herein that sender shall cause receipt to be made) shall be deemed to have been given (a)
when delivered by hand (with written confirmation of receipt); (b) when received by the addressee
if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by
facsimile or e-mail (with confirmation of transmission) if sent during normal business hours of the
recipient, and on the next business day if sent after normal business hours of the recipient or (d)
on the third day after the date mailed, by certified or registered mail, return receipt requested,
postage prepaid.
11.2 Such communications must be sent to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a notice given in accordance
with this section):
If to Penrod: Penrod Brothers Inc.
1 Ocean Drive
Miami Beach, Florida 33139
Attn: Lucia Penrod
E-mail: luciaknikkibeach.com
with a copy to: Stearns Weaver Miller
Weissler Alhadeff & Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, Florida 33130
Attn: Maria A. Fehretdinov, Esq.; Jason S. Koslowe, Esq.
Facsimile: 305-789-2605
E-mail: mfehretdinov&stearnsweaver.com;
jkoslowe@stearnsweaver.com
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If to City: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Eric T. Carpenter
E-mail: EricCarpenter@miamibeachfl.gov
with a copy to: City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attn: Ricardo Dopico
E-mail: RicardoDopico@miamibeachfl.gov
If to Boucher: Boucher Brothers Miami Beach, LLC
1451 Ocean Drive Suite 205
Miami Beach, Florida 33139
Attn: Adam Cedrati
E-mail: adam. cedrati@boucherbrothers.com
with a copy to: Holland & Knight LLP
701 Brickell Avenue Suite 3300
Miami, Florida 33131
Attn: Miguel De Grandy, Esq.; Daniel Hanlon, Esq.
E-mail: mi ug el.degrandy@hklaw.com;
daniel.hanlonnhklaw.com
12. Effectiveness
12.1 Execution. This Settlement Agreement shall be binding upon the Parties as of the
Effective Date upon execution by acceptance and signature of all the parties as set forth in the
place designated for execution by the Parties on the last pages of this Settlement Agreement and
upon satisfaction of any and all conditions precedent stated in this Settlement Agreement.
12.2 Counterparts and Copies. This Settlement Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Settlement Agreement. A facsimile, .pdf or
electronic copy of this Settlement Agreement and any signature hereon shall be considered for all
purposes as additional originals and delivery of an executed counterpart.
12.3 Authori . Each Party represents that it has truthfully represented themselves and
their identities to the other Party and that it has the authority to enter into, execute and perform this
Settlement Agreement on its behalf and on behalf of any other person or entity as represented in
this Settlement Agreement, including the Releasing Parties, and to make the representations,
undertake the commitments, and compromise the actual and potential claims, defenses, and causes
of action, referred to herein. The City represents and warrants that execution of this Settlement
Agreement and any other associated documents are made pursuant to all required authorizations
and approvals including as necessary from and by the City Commission.
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12.4 Binding. This Settlement Agreement shall be binding upon and inure to the benefit
of the Parties and all relevant affiliates, successors and permitted assigns.
13. Construction
13.1 Choice of Law. The Parties agree that this Settlement Agreement shall be governed
by, construed, and enforced in accordance with the Laws of the State of Florida, without giving
effect to its conflict of laws or choice of law principles. Each Party warrants and covenants that it
will not dispute the applicability of such laws.
13.2 Jurisdiction, Venue. Each Party unconditionally and irrevocably submits to the
exclusive jurisdiction of the applicable state court or a federal court located within the Southern
District of Florida in connection with any Action arising from or related to this Settlement
Agreement. Each Party expressly waives any objection to the jurisdiction of such court over that
Parties in such respect. Each Party warrants and covenants that it will not dispute such personal
jurisdiction.
13.3 Opportunity to Review. Each Party acknowledges that it has read the terms of this
Settlement Agreement, has had an opportunity to consult with counsel of its own choosing, and
enters into this Settlement Agreement voluntarily and without duress.
13.4 Joint Drafting. The Parties have cooperated in the drafting and preparation of this
Settlement Agreement. This Settlement Agreement shall be deemed to have been jointly drafted
by the Parties, and in construing and interpreting this Settlement Agreement, no provisions shall
be construed and interpreted for or against any of the Parties because such provisions or any other
provision of the Settlement Agreement as a whole is purportedly prepared or requested by such
Party.
13.5 Severability. If any provision of this Settlement Agreement is deemed to be illegal
or unenforceable, the remainder of this Settlement Agreement shall not be affected thereby and
shall remain in full force and effect. In the event that any provision of this Settlement Agreement
is held to be unenforceable for being unduly broad as written, such provision shall be deemed
amended to narrow its application to the extent necessary to make the provision enforceable
according to applicable Law and shall be enforceable as amended.
13.6 Headings. Unless otherwise noted, the headings in this Settlement Agreement are
for reference only and shall not affect the interpretation of this Settlement Agreement.
13.7 Amendment and Modification; Waiver. This Settlement Agreement may only be
amended, modified or supplemented by an agreement in writing signed by each Party. No waiver
by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing
and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a
waiver in respect of any failure, breach or default not expressly identified by such written waiver,
whether of a similar or different character, and whether occurring before or after that waiver. No
failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this
Settlement Agreement shall operate or be construed as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
SIGNATURE PAGES TO FOLLOW
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IN WITNESS WHEREOF, the parties hereto have caused this Settlement Agreement 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:
Witnesses:
Print Name:
Print Name:
CITY OF MIAMI BEACH
By:
Steven Meiner, Mayor
PENROD BROTHERS, INC.
By:
Lucia Penrod, CEO
BOUCHER BROTHERS PIER
PARK, LLC
By:
Steven Boucher, Principal
#14714417 Q
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Exhibit 1
Payment Instructions
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Composite Exhibit 2
Penrod Lease and Concession Agreement Amendments
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FIFTH AMENDMENT TO THE LEASE AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
PENROD BROTHERS, INC.
This Fifth 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
this day of , 20
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 (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
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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, in order to facilitate the preparation of the Settlement Agreement and
the proposed fifteen -month extension, the City Commission, at its April 22, 2026 meeting,
approved a short-term extension pursuant to Resolution No. 2026-34212, thereby
extending both the Lease and the Concession Agreement through August 31, 2026.
WHEREAS, the City Administration has reviewed the proposed Settlement
Documents and determined that the settlement, including the Lease Amendment and
Concession Amendment, is in the best interest of the City, as it resolves pending litigation,
reduces financial and operational uncertainty, and provides continuity of operations at the
Premises; and
NOW THEREFORE, in consideration of the mutual promises and conditions
contained herein, and other good and valuable considerations, the sufficiency of which is
hereby acknowledged, the City and Lessee hereby agree to amend the 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.
The Lease Agreement is hereby immediately amended to extend the Term and all
rights and obligations of the parties thereunder through August 6, 2027. The
Lessor and Lessee have simultaneously executed an alternative form of this
Amendment (the "Alternative Fifth Amendment to Lease"). If by or before
September 30, 2026, the Mayor and City Commission of the City of Miami Beach,
Florida has not approved an amendment to that certain Concession Agreement for
Management and Operation of a High -End Beach Establishment dated October
20, 2023 by and between the Lessor and Boucher Brother Pier Park, LLC
("Boucher") as contemplated by that certain Settlement Agreement ("Settlement
Agreement') dated , 2026 by and among the Lessee, the Lessor and
Boucher resulting in the voidance of the Settlement Agreement, then this
Amendment shall be null and void ab initio and the Alternative Fifth Amendment
shall be immediately effective.
3. RATIFICATION.
Except as amended herein, all other terms and conditions of the 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 Agreement, the provisions of
this Amendment shall govern.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their appropriate officials, as of the date first entered above.
FOR LANDLORD:
ATTEST:
0
CITY OF MIAMI BEACH
Rafael E. Granado, City Clerk Steven Meiner, Mayor
Date
FOR TENANT:
Witnesses:
Print Name:
Print Name:
PENROD BROTHERS INC.
President
Print Name
19
Agenda Item: R7 AD
Date: 5/20/2026
SECOND AMENDMENT TO THE CONCESSION AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
PENROD BROTHERS, INC.
This Second 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 this day of , 20
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 (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
20
Agenda Item: R7 AD
Date: 5/20/2026
WHEREAS, in order to facilitate the preparation of the Settlement Agreement and
the proposed fifteen -month extension, the City Commission, at its April 22, 2026 meeting,
approved a short-term extension pursuant to Resolution No. 2026-34212, thereby
extending both the Lease and the Concession Agreement through August 31, 2026.
WHEREAS, the City Administration has reviewed the proposed Settlement
Documents and determined that the settlement, including the Lease Amendment and
Concession Amendment, is in the best interest of the City, as it resolves pending litigation,
reduces financial and operational uncertainty, and provides continuity of operations at the
Premises; and
NOW THEREFORE, in consideration of the mutual promises and conditions
contained herein, and other good and valuable considerations, the sufficiency of which is
hereby acknowledged, the City and Concessionaire hereby agree to amend the
Concession Agreement as follows:
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. The City
and Concessionaire have simultaneously executed an alternative form of this
Amendment (the "Alternative Second Amendment to Concession Agreement"). If
by or before September 30, 2026, the Mayor and City Commission of the City of
Miami Beach, Florida has not approved an amendment to that certain Concession
Agreement for Management and Operation of a High -End Beach Establishment
dated October 20, 2023 by and between the Lessor and Boucher Brother Pier
Park, LLC ("Boucher") as contemplated by that certain Settlement Agreement
("Settlement Agreement') dated , 2026 by and among the Lessee, the
Lessor and Boucher resulting in the voidance of the Settlement Agreement, then
this Amendment shall be null and void ab initio and the Alternative Second
Amendment to Concession Agreement shall be immediately effective.
2. MODIFICATIONS.
The Concession Agreement is hereby immediately amended to extend the Term
and all rights and obligations of the parties thereunder through August 6, 2027.
3. RATIFICATION.
Except as amended herein, all other terms and conditions of the 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 Agreement, the provisions of
this Amendment shall govern.
21
Agenda Item: R7 AD
Date: 5/20/2026
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their appropriate officials, as of the date first entered above.
FOR LANDLORD:
ATTEST:
By:
Rafael E. Granado, City Clerk
Date
FOR CONCESSIONAIRE:
Witnesses:
By:
Print Name:
Print Name:
CITY OF MIAMI BEACH
Eric T. Carpenter, City Manager
PENROD BROTHERS INC.
President
Print Name
22
Agenda Item: R7 AD
Date: 5/20/2026
Exhibit 3
Mediation Settlement Binding Term Sheet
23
Docusign Envelope ID: 8CD57725-CD9B-4769-9440-C954A2BF4FA9
Agenda Item: R7 AD
Date: 5/20/2026
Penrod Bros. Inc. v. City of Miami Beach, Boucher Bros. Miami Beach, LLC
Case No. 2023-016657-CA-01
Mediation Settlement Binding Term Sheet
• Penrod will immediately withdraw/terminate all support of any kind for any opposition;
and end any joint/common-interest relationship and all assistance with any
objector/opposition; in respect of RFP, Property, and all related subject matter.
• Boucher and the City to pay Penrod $3 million (the "Settlement Payment") on the earlier
of September 30, 2026 or final approval of all Project Approvals (as that term is defined
under the Boucher Contract). The Settlement Payment is to be paid as follows: the City to
pay $1.5 million and Boucher to pay $1.5 million. Upon payment, Penrod will dismiss with
prejudice all claims, causes of actions, suits, appeals, etc.; withdraw with prejudice all
objections, protests, or other administrative actions.
City and Penrod extend Penrod's lease and concession agreement by 15 months (to end
August 6, 2027), on the same rent/payment, operational, and other terms. Penrod will
continue operations in compliance with lease and all applicable laws, including without
limitation all City ordinances. Penrod may sub -lease or sub -contract portions of the
property for operations consistent with current uses and hours operation. All three parties
agree to non-interference with Penrod's contracts and operations. Penrod will allow
specific boring tests by Boucher provided non-interference with Penrod's operations.
• Standard mutual releases. All parties pay their own attorneys' fees, etc.
• All settlement terms herein are contingent upon City final approval of all agreed
amendments to the Boucher Contract as listed in the Binding Settlement Term Sheet
between Boucher and the City attached hereto as Exhibit A.
• At the end of Penrod's lease and concession agreement, Penrod shall deliver the City
property at One Ocean Drive back to the City in no worse condition than exists as of the
date of the Settlement Agreement consistent with Section 20 of Penrod's lease with the
City.
• Parties will jointly and under seal seek stay of litigation to allow for Planning Board review,
and Commission approval, documentation, and execution.
• Pursuant to Rule 1.720(d), the City's signature solely signifies that it will recommend the
above terms to the Mayor and City Commission for final settlement approval.
This reflects the parties' material terms of settlement.
24
Docusign Envelope ID: 8CD57725-CD9B-4769-9440-C954A2BF4FA9
Agenda Item: R7 AD
Date: 5/20/2026
PENROD BROTHERS INC.
Docusigned by:
I l
224F88ED357A486...
by Lucia Penrod, CEO, Co -Founder, Owner
CITY OF MIAMI BEACH
Signed by:
►60woo f4ofuco
46BE916C5E7B428...
by Ricardo Dopico, City Attorney
BOUCHER BROTHERS MIAMI BEACH,
L uSigned by:
— r--7��A
by Steven Boucher, Co -Founder, Principal
#14599360 v1
25
Agenda Item: R7 AD
Date: 5/20/2026
Penrod Bros. Inc. v. City of Miami Beach, Boucher A
Case No. 2023-016657-CA-01
• As part of the settlement agreement in this matter, the
Boucher Bros. Miami Beach LLC's existing concession
o Section 1.1 to be amended as follows: This Agreem
Effective Date, but the term hereof shall not corry
August 1, 2029 (the "Outside Commencement Dat(
Unavoidable Delays (as hereafter defined) occurring
settlement agreement and (b) the date on which any
(as hereinafter defined) have been issued a certil
completion, as applicable, and are fully open to the
of such dates, the "Commencement Date"). For
foregoing 2-year extension of the Outside Comn
claims for Unavoidable Delays made prior to the da
o Addition of one extension option for five (5) years
standing
o Recommendation to Mayor and City Commis:
currently existing building on the property at One
Miami Beach, LLC
and Boucher agree to amend
ement as follows:
-nt shall be effective as of the
fence until the earlier of. (a)
") subject to extension due to
from and after the date of the
of the Concession Operations
icate of use or certificate of
>ublic for business (the earlier
the avoidance of doubt, the
encement Date accounts for
e hereof by Boucher.
long as Boucher is in good
to approve demolition of
an Drive
o Should the City exercise the 5 year option, in Yearl 10 there will be rent reset to
arrive at the new minimum guaranteed annual rent I
r years 10-15. Percentage rent
for years 10-15 shall stay the same.
o Pursuant to Rule 1.720(d), the City's signature
recommend the above terms to the Mayor and City C
approval.
CITY OF MIAMI BEACH
(A
BOUCHER B
LLC
by Steven
solely signifies that it will
immission for final settlement
MIAMI BEACH,
-, Co -Founder, Principal
26
Agenda Item: R7 AD
Date: 5/20/2026
by Ricardo Dopico, City Attorney
27
Agenda Item: R7 AD
Date: 5/20/2026
Composite Exhibit 4
Alternative Penrod Lease and Concession Agreement Amendments
28
Agenda Item: R7 AD
Date: 5/20/2026
FIFTH AMENDMENT TO THE LEASE AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
PENROD BROTHERS, INC.
[ALTERNATIVE FORM]
This Fifth 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
this 301h day of September 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 (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
29
Agenda Item: R7 AD
Date: 5/20/2026
executed by the parties (the "Term Sheet"), which have been documented in a settlement
agreement ("Settlement Agreement"), an amendment to the Lease (the "Fifth Amendment
to the Lease"), and an amendment to the Concession Agreement (the "Second
Amendment to Concession Agreement"), and an amendment to the Boucher Contract
(collectively, the "Settlement Documents") 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, in order to facilitate the preparation of the Settlement Agreement and
the proposed fifteen -month extension, the City Commission, at its April 22, 2026 meeting,
approved a short-term extension pursuant to Resolution No. 2026-34212, thereby
extending both the Lease and the Concession Agreement through August 31, 2026.
WHEREAS, the City Administration has reviewed the proposed Settlement
Documents and determined that the settlement, including the Lease Amendment and
Concession Amendment, is in the best interest of the City, as it resolves pending litigation,
reduces financial and operational uncertainty, and provides continuity of operations at the
Premises; and
NOW THEREFORE, in consideration of the mutual promises and conditions
contained herein, and other good and valuable considerations, the sufficiency of which is
hereby acknowledged, the City and Lessee 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.
The Lease Agreement is hereby immediately amended to extend the Term and all
rights and obligations of the parties thereunder through January 10, 2027. The
Lessor and Lessee have simultaneously executed a Fifth Amendment to the Lease
(the "Original Fifth Amendment to Lease") as contemplated by the terms of that
certain Settlement Agreement ("Settlement Agreement") dated , 2026 by
and among the Lessee, the Lessor and Boucher Brothers Pier Park, LLC
("Boucher"). This alternative version of the Fifth Amendment shall only become
effective if by or before September 30, 2026, the Mayor and City Commission of
the City of Miami Beach, Florida has not approved an amendment to that certain
Concession Agreement for Management and Operation of a High -End Beach
Establishment dated October 20, 2023 by and between the Lessor and Boucher
resulting in the voiding of the Settlement Agreement and the Original Fifth
Amendment to Lease, as which time this alternative Fifth Amendment to Lease
shall be immediately effective. In consideration of the City's entering into this
alternative Fifth Amendment to Lease despite the voidance of the Settlement
Agreement, Penrod agrees to not pursue injunctive relief in the Litigation to permit
Penrod to remain on the Property after January 10, 2027 and that it will vacate the
Property on or before January 10, 2027.
30
Agenda Item: R7 AD
Date: 5/20/2026
3. RATIFICATION.
Except as amended herein, all other terms and conditions of the 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 Agreement, the provisions of
this Amendment shall govern.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their appropriate officials, as of the date first entered above.
FOR LANDLORD:
ATTEST:
M
Rafael E. Granado, City Clerk
Date
FOR TENANT:
Witnesses:
Print Name:
Print Name:
CITY OF MIAMI BEACH
Steven Meiner, Mayor
PENROD BROTHERS INC.
President
Print Name
#14720674 vl
31
Agenda Item: R7 AD
Date: 5/20/2026
SECOND AMENDMENT TO THE CONCESSION AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
PENROD BROTHERS, INC.
[ALTERATIVE FORM]
This Second 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 this 30th day of September 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. 11' 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 have been documented in a settlement
agreement ("Settlement Agreement"), an amendment to the Lease (the "Fifth Amendment
to the Lease"), 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
32
Agenda Item: R7 AD
Date: 5/20/2026
WHEREAS, in order to facilitate the preparation of the Settlement Agreement and
the proposed fifteen -month extension, the City Commission, at its April 22, 2026 meeting,
approved a short-term extension pursuant to Resolution No. 2026-34212, thereby
extending both the Lease and the Concession Agreement through August 31, 2026.
WHEREAS, the City Administration has reviewed the proposed Settlement
Documents and determined that the settlement, including the Lease Amendment and
Concession Amendment, is in the best interest of the City, as it resolves pending litigation,
reduces financial and operational uncertainty, and provides continuity of operations at the
Premises; and
NOW THEREFORE, in consideration of the mutual promises and conditions
contained herein, and other good and valuable considerations, the sufficiency of which is
hereby acknowledged, the City and Concessionaire 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.
The Concession Agreement is hereby immediately amended to extend the Term
and all rights and obligations of the parties thereunder through January 10, 2027.
The City and Concessionaire have simultaneously executed a Second
Amendment to the Concession Agreement (the "Original Second Amendment to
the Concession Agreement") as contemplated by the terms of that certain
Settlement Agreement ("Settlement Agreement") dated , 2026 by and
among the Lessee, the Lessor and Boucher Brothers Pier Park, LLC ("Boucher").
This alternative version of the Second Amendment shall only become effective if
by or before September 30, 2026, the Mayor and City Commission of the City of
Miami Beach, Florida has not approved an amendment to that certain Concession
Agreement for Management and Operation of a High -End Beach Establishment
dated October 20, 2023 by and between the Lessor and Boucher resulting in the
voiding of the Settlement Agreement and the Original Second Amendment to
Concession Agreement, at which time this alternative Second Amendment shall
be immediately effective. In consideration of the City's entering into this alternative
Second Amendment to the Concession Agreement despite the voidance of the
Settlement Agreement, Penrod agrees to not pursue injunctive relief in the
Litigation to permit Penrod to remain on the Property after January 10, 2027.
3. RATIFICATION.
Except as amended herein, all other terms and conditions of the 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 Agreement, the provisions of
this Amendment shall govern.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their appropriate officials, as of the date first entered above.
33
Agenda Item: R7 AD
Date: 5/20/2026
FOR LANDLORD:
ATTEST:
M
Rafael E. Granado, City Clerk
Date
FOR CONCESSIONAIRE:
Witnesses:
M
Print Name:
Print Name:
CITY OF MIAMI BEACH
Eric T. Carpenter, City Manager
PENROD BROTHERS INC.
President
Print Name
# 14720679 v 1
34
Agenda Item: R7 AD
Date: 5/20/2026
Exhibit 5
Alternative Boucher Contract Amendment
35
Agenda Item: R7 AD
Date: 5/20/2026
FIRST AMENDMENT TO THE CONCESSION AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
BOUCHER BROTHERS PIER PARK, LLC
FOR
MANAGEMENT AND OPERATION OF HIGH -END BEACH ESTABLISHMENT
CONCESSIONS
[ALTERNATIVE FORM]
This First Amendment ("Amendment") to the Concession Agreement for Management and
Operation of a High -End Beach Establishment dated October 20, 2023 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 Boucher Brothers Pier Park, LLC, a Florida limited
liability company ("Concessionaire", and together with the City, "the parties"), is entered
into this 30'h day of September 2026.
RECITALS
WHEREAS, on May 17, 2023, pursuant to Resolution 2023-32612, the City
Commission directed the City Administration to prepare and issue a Request for Proposals
("RFP") to seek proposals from firms interested in being considered to negotiate an
agreement(s) with the City for the management or operation of a high -end beach
establishment and ancillary uses on the property located at One Ocean Drive and adjacent
beachfront concession area as legally defined and graphically depicted on Exhibit 1.0 of
the Concession Agreement for Management and Operation of a High -End Beach
Establishment dated October 20, 2023 (the "Concession Area"), with the agreement(s)
taking effect after the expiration of an existing Lease Agreement dated November 7, 1985
between the City and Penrod Brothers, Inc. and an existing Concession Agreement dated
February 25, 2004 between the City and Penrod (the "Existing Concession Area
Agreements"), which collectively encompass a majority of the Concession Area;
WHEREAS, on June 13, 2023, RFP 2023-479-KB for the management or
operation of a high -end beach establishment was issued; and
WHEREAS, on September 27, 2023, as recommended by the City Manager, the
Mayor and City Commission authorized the City Administration to negotiate with Boucher
Brothers Pier Park, LLC, the successful proposer; and
WHEREAS, on October 18, 2023, the Mayor and City Commission adopted
Resolution No. 2023-32825 approving the Concession Agreement for Management and
Operation of a High -End Beach Establishment dated October 20, 2023 between the City
and Concessionaire; and
WHEREAS, disputes have arisen between Penrod, the City and Concessionaire
relating to the Property; 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"); the Concession Agreement for Management and Operation of a High -
End Beach Establishment dated October 20, 2023 between the City and Concessionaire
(the "Concession Agreement"); 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. 1111
M1.1
Agenda Item: R7 AD
Date: 5/20/2026
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), Penrod, the
City and Concessionaire jointly agreed to the material terms of a settlement of the
Disputes reflected in a term sheet executed by the parties (the "Term Sheet'), which have
been documented in a settlement agreement ("Settlement Agreement'), amendments to
the Existing Concession Area Agreements ("Penrod Amendments"), and an amendment
to the Concession Agreement (the "Boucher Amendment') (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 Existing Concession Area Agreements through August 6,
2027; and
WHEREAS, in order to facilitate the preparation of the Settlement Agreement and
the proposed fifteen -month extension, the City Commission, at its April 22, 2026 meeting,
approved a short-term extension pursuant to Resolution No. 2026-34212, thereby
extending the Existing Concession Area Agreements through August 31, 2026; and
WHEREAS, the City Administration has reviewed the proposed Settlement
Documents and determined that the settlement, including the Penrod Amendments and
the Boucher Amendment, is in the best interest of the City, as it resolves pending litigation,
reduces financial and operational uncertainty, and provides continuity of operations at the
Premises.
NOW THEREFORE, in consideration of the mutual promises and conditions
contained herein, and other good and valuable considerations, the sufficiency of which is
hereby acknowledged, the City and Concessionaire 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.
Section 1.1 of the Concession Agreement is hereby immediately amended to
extend the latest date for commencement of the term to May 1, 2028, and remove
the existing reference to August 1, 2027.
Section 12.1 of the Concession Agreement is hereby immediately amended to
extend the latest date for Concessionaire to use commercially reasonable efforts
to complete construction of the Public Parking Area to October 1, 2027 and remove
the existing reference to December 31, 2026.
Section 3.4.3 of the Concession Agreement is hereby immediately amended to
extend the latest date for Concessionaire to submit for City approval all proposed
patron rates for the Health and Wellness Center services to be provided to January
1, 2027, and remove the existing reference to April 1, 2026.
37
Agenda Item: R7 AD
Date: 5/20/2026
Section 3.5.1 of the Concession Agreement is hereby immediately amended to
extend the latest date for Concessionaire to submit for City approval a schedule
reflecting all proposed beach -related sundries and skin care products to be sold
and the pricing therefor to January 1, 2027, and remove the existing reference to
April 1, 2026.
Section 3.6.3 of the Concession Agreement is hereby immediately amended to
extend the latest date for Concessionaire to submit for City approval all proposed
rates for subconcessions for use of space and cost of goods at the Retail Pavilion
to January 1, 2027, and remove the existing reference to April 1, 2026.
Exhibit 3.2.3 of the Concession Agreement is hereby immediately amended to
extend the date for Concessionaire's submission for City approval of the Menu and
Price Schedule for Restaurants to January 1, 2027, and remove the existing
reference to April 1, 2026.
Exhibit 3.4.3 of the Concession Agreement is hereby immediately amended to
extend the date for Concessionaire's submission for City approval of the Health
and Wellness Center Offerings and Rate Card to January 1, 2027, and remove the
existing reference to April 1, 2026.
Exhibit 3.5.1 of the Concession Agreement is hereby immediately amended to
extend the date for Concessionaire's submission for City approval of the Beach -
Related Sundries Offerings and Rate Card to January 1, 2027, and remove the
existing reference to April 1, 2026.
Exhibit 3.6.2 of the Concession Agreement is hereby immediately amended to
extend the date for Concessionaire's submission for City approval of the Retail
Pavilion Offerings and Fees to be Charged to Subconcessionaires to January 1,
2027, and remove the existing reference to April 1, 2026.
Exhibit 3.12(2)(m) of the Concession Agreement is hereby immediately amended
to extend the date for Concessionaire's payment of $25,000 to the City to May 1,
2028, and remove the existing reference to August 1, 2027.
Exhibit 3.12(2)(n) of the Concession Agreement is hereby immediately amended
to extend the date for Concessionaire's payment for the design ,permitting,
equipment purchase, and installation of sail shades to May 1, 2028, and remove
the existing reference to August 1, 2027.
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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their appropriate officials, as of the date first entered above.
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Agenda Item: R7 AD
Date: 5/20/2026
FOR LANDLORD:
ATTEST:
By:
Rafael E. Granado, City Clerk
Date
FOR CONCESSIONAIRE:
Witnesses:
By:
Print Name:
Print Name:
CITY OF MIAMI BEACH
Eric T. Carpenter, City Manager
Boucher Brothers Pier Park, LLC.
President
Print Name
#14720679 vl
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