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HomeMy WebLinkAboutSettlement Agreement between the CMB and Penrod Brothers, Inc.ZoZ(o _S q Z97 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 "UP"); 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. I lth Cir. Civ.), 2023-56-AP-01 (Fla. I Ith Cir. App.), and 2023-CV-23362 (S.D. Fla.); 2025-13415-3 (11 th 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 y� REAS, on M ZO , 2026, the Mayor and Commission adopted Resolution No. 2026-+B_ approving the aterial terms of the proposed mediated settlement agreement, authorized the City Manager to finalize the settlement agreement consistent with those material Page 1'12 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: 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 Panics as to the veracity of the statements contained therein. 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. 23 "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 unacerued, 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 "Lass" or "Losses" means any and all past, present or future losses, Liabilities, costs, expenses, damages, penalties, Fines, assessments, levies, payments, judgments, interest, Page 2/12 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 crony 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. 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 ponies; 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. Settlement Payment a.l Pa menl. 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 (I0) 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. Page 3/ 12 4.3 Non-Pavment. 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. Stal. § 55.03(I), with the full amount of any unpaid portion and all applicable interest immediately due and owing. 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 fors 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 I of the Penrod Concession Ammement), and all rights and obligations thereunder, by fifteen (15) months, to and including August 6, 2027, on the same rem 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 OpSrational CgIliplitince. 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; (it) 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; fill) No equipment or materials may be left or stored on the Property: Page 4/12 (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 (vBBoucher 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/sc it sample tests in order w satisfy Florida Department of Environmental Protection regulatory requirements ("Additional Select Testing"), provided the following conditions are met: (1) 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 ama(s) of Property needed; (ii)Any occurrence of such testing may only take place Monday through Thursday from S 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 placeand 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, Page 5/12 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 Dcliverv,. 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. 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 Temr of the Penrod Agreements (at Section 3 of the Lease and Section I 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 I, 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 IA of the Boucher Contract) to May I, 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 inirio, such that inter olio 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. 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 Page 6/ 12 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 Panics") 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 unacerued (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. 73 The Releasing Panics by this Settlement Agreement do not waive any claims not waivable by applicable Law. The Releasing Panics 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 &1 Within seven (7) days of effectiveness of the releases and covenants in Section 7 herein, 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, arc each and all, including all sub -parts, material terms. Breach of any material term relieves the non -breaching Page 7/ 12 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. it. 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 parry as shall be specified in a notice given in accordance with this section): If to Penrod: Penrod Brothers Inc. I Ocean Drive Miami Beach, Florida 33139 Attn: Lucia Penrod E-mail: Lucian nikkibeach.com with a copy to: Steams Weaver Miller Weissler Alhadeff & Sittcrson, 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: mfehrctdinov ustearnsweaver.com: ikoslowe a smarnsweaver.com Page 8.12 If to City: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida33139 Attn: Eric T. Carpenter E-mail: EricCarpenter(ru)miamibeachB.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(rgmiamibcachfl.gov If to Boucher: Boucher Brothers Miami Beach, LLC 1451 Ocean Drive Suite 205 Miami Beach, Florida 33139 Attn: Adam Cedrati E-mail:adam.cedmti@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: miguel deemndv.a hklaw.com; daniel.hanloma hklaw.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 Authority. 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. Page 9. 12 12.1 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 ever that Parties in such respect. Each Party warrants and covenants that it will not dispute such personal jurisdiction. 13.3 Onoortunity 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 Headinas. 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 w 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 Page IO/12 Page 11112 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: JUN - 2 2026 jfW e . Granado, City Clerk REGIS BARBOU` ' OWN: i Witnesses: C „Zfi f iA.yWLe' f (AY'YfH P�ri�n/t�Name:: Tayme Hnmi% Print Name: Maria Fehretdinov Witness otol. a. '- rint ame: O G P.piwft Name: t�+r&1* ` CIN At--toirey U Senlement Agreement — Signature Page Page 12/12 "I'll" CITY OF MIAMI BEACH By: St en Meaner, Mayor PENROD BROTHERS, INC. By: _ l 'r r n. 7- „i ,4 - Lucia Penrod, CEO BOUCHER BROTHERS PIER PARK C By: Stev B ucher, PKcipal APPROVED AS TO FORM &LANGUAGE & FOR EXECUTION S Z.9 26 pore Exhibit 1 Payment Instructions Bank of America Routing:063100277 Account: 898102773544 Composite Exhibit 2 Penrod Lease and Concession Agreement Amendments 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 joperty located at One Ocean Drive, Miami Beach. FL ('Premises") is entered into this 2 day of ?Jae_ , 2011&_ 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 Agreemenf); 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 downtum; 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.)I 2023-56-AP-01 (Fla. itth Cir. App.); 2023-CV-23362 (S.D. Fla.); 2025-13415 (111h Cii which suits remain pending (the "Litigation") (together, the "Disputes"); and WHEREAS, on March 26, 2026, pursuant to Fla. R. Civ. P. 1.720(d), the parties agreed to the material terms of a settlement of the Disputes reflected in a term sheet executed by the parties (the "Term Sheet"), which will be documented in a settlement agreement ('Settlement Agreement'), an amendment to the Lease (the "Fifth and Final Amendment"), and an amendment to the Concession Agreement (the "Second Amendment to Concession Agreement'), and an amendment to the Boucher Contract (collectively, the "Settlement Documents) to be presented to the City Commission for its approval; and WHEREAS, the terms of the Settlement Agreement contemplate a 15- month extension of the term of the Lease Agreement and the Concession Agreement through August 6, 2027; and WHEREAS, 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 Amentlment. 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 coot plated by that certain Settlement Agreement ("Settlement Agreement") tlatetl iZAD 2026 by and among the Lessee. the Lessor and Boucher resulting in a voidance of the Settlement Agreement, then this Amendment shall be null and void ab info 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. 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: Aftiner, CH ATTEST: ' By Granada, City Clerk or REGIS BARBOU ...B...... k JUN - 2 2026 <: Date t `.IN(0AP OAAIEA FOR TENANT: •9<`Ff 3.+Af Witnesses: jaymtr HArrry Print Nam: e: aleaee ue,.;e Print Name: Mari, F,hmtdinov PENROD BROTHERSINC. Preaident Lucia Penrod Print Name APPROVED AS TO FORM &LANGUAGE & FOR EXECUTION 5292b CiN A — we