HomeMy WebLinkAboutExhibit B SUBTHIS ITEM IS A SUBSTITUTION. THE ORIGINAL
CAN BE FOUND AT THE END OF THIS DOCUMENT.
AGREEMENT FOR PURCHASE AND SALE
THIS PURCHASE AND SALE AGREEMENT, (the "Agreement") is made and entered into this
day of , 20 ("Execution Date"), by and between the City of Miami, Florida,
a municipal corporation of the State of Florida, with offices at 444 SW 2nd Avenue, Miami,
Florida 33130-1910 (the "Seller"), and IG Luxury LLC, a Delaware limited liability company,
whose mailing address is c/o BH3 Management, 819 NE 2nd Avenue, Suite 500, Fort Lauderdale,
Florida 33304 (the "Purchaser"). The Purchaser and Seller are hereinafter jointly referred to as
the "Parties," and individually as "Party."
WHEREAS, Flagstone Island Gardens, LLC, a Delaware limited liability company ("FIG") and
the Seller entered into that certain Master Development Agreement, dated as of April 13, 2020 (the
"MDA"), pursuant to which, and upon the satisfaction of certain conditions as provided therein,
Seller is obligated to grant long-term ground leasehold estates defined in the MDA as the "Luxury
Hotel Lease" and the "Residences Lease" of that certain 3.2 acre parcel of land located at 888
Macarthur Causeway, in the City of Miami and more particularly described on Exhibit A attached
hereto (the "Land"); and
WHEREAS, BH3 IG Developer LLC, a Delaware limited liability company ("BH3 IG")
succeeded to the interests of FIG under the MDA and, upon the satisfaction of certain conditions,
has the rights to cause the Seller to grant the aforementioned long-term ground leasehold estates;
and
WHEREAS, Seller and Purchaser desire to enter into this Agreement for the purchase of all of the
Seller's rights, title and interest in the Land that is encumbered by, and is subject to, the rights of
BH3 IG to cause Seller to enter into the Luxury Hotel Lease and the Residences Lease pursuant
the MDA (hereinafter referred to as the "Encumbered Fee Interest"), together with all of Seller's
rights, title and interest to (i) all fixtures and improvements located thereon, (ii) all appurtenances,
rights, privileges, easements and advantages thereto belonging, (iii) all licenses, permits,
authorizations and approvals pertaining to ownership and/or operation of the Land, (iv) all
equipment, furniture, machinery, inventory, appliances and all other articles of personal property
owned by Seller and installed upon, located in or otherwise used in the maintenance or operation
of the Land, (v) all contract rights, leases (including, any security deposits, letters of credit and/or
guarantees related thereto), (vi) any construction and development drawings and plans and
specifications for or relating to the Land, in whatever form existing, including, without limitation,
electronic format, and (vii) all general intangible rights and intellectual property pertaining to the
ownership and/or operation of the Land, including, without limitation, all of Seller's rights, title
and interest related to the Land arising pursuant that certain Amended and Restated Mixed Use
Project Declaration dated as of April 12, 2023, and recorded on April 14, 2023 at CFN
2023R0251059 or Book 33665, Pages 3611-3904 in the public records of Miami -Dade County,
Florida (as amended, the "Project Declaration") and all of Seller's rights under the MDA as they
relate to the Land (hereinafter collectively referred to as the "Property"); and WHEREAS,
pursuant to Resolution No. [ ], attached and incorporated as Exhibit B, which authorized
the City Manager to execute this Agreement, the Seller seeks to convey the Property for the reasons
stated in such resolution and in exchange for various benefits to the Seller contained therein, and
subject to the various restrictions and limitations set forth in this Agreement.
FILE NO. 18468 EXHIBIT A SUB
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NOW, THEREFORE, for and in consideration of the premises, promises and covenants hereinafter
set forth, and the mutual advantages and benefits accruing hereunder, Seller agrees to sell to
Purchaser, and Purchaser agrees to purchase from Seller, the Property all in accordance with the
terms and conditions set forth in this Agreement.
1. DESCRIPTION OF PROPERTY
A. Legal Description:
See Exhibit A attached hereto.
Containing approximately 3.2 acres.
B. Folio Number: Portion of 01-3231-061-0010
2. PURCHASE PRICE AND PAYMENT
The Purchaser agrees to pay and the Seller agrees to accept in exchange for the conveyance
of the Property the sum of Twenty -Nine Million Dollars ($29,000,000.00), which represents the
greater of the appraised fair market value of the Encumbered Fee Interest as determined by two appraisals
commissioned by the Seller, (the "Purchase Price"). This Purchase Price is based on the fact that
the Property, as defined herein, contains approximately 3.204 acres (i.e. 139,547 square feet) as
shown on the Survey Map Ref. # 2020-031-7, dated July 16, 2024, prepared by Fortin, Leavy,
Sidles, Inc. (the "Survey"). In the event that the Property boundaries change from the boundaries
shown on the Survey as may be agreed to by the Parties, and a new survey to be reveals that the
square footage of the changed Property is more than approximately 3.204 acres (i.e., 139,547
square feet) as indicated in the Survey, the Purchase Price shall be adjusted to reflect an increase
based on Purchase Price per square foot calculation. In the event the square footage of the changed
Property is less than approximately 3.204 acres (i.e., 139,547 square feet), then the Purchase Price
shall not be affected. The Purchase Price, as it may be adjusted, will be payable as follows:
(a) Deposit: Within five (5) days of the Execution Date, as defined herein, the
Purchaser shall deposit with Seller or an escrow agent acceptable to the Parties
("Escrow Agent") an amount equal to five percent (5%) of the Purchase Price less
the $669,637.97 which is being held as a security deposit under the Luxury Hotel
Lease and the Residences Lease, which amount shall be held as a deposit hereunder
("Initial Deposit"). If Purchaser extends the Outside Closing Date as provided
herein in Section 11, then Purchaser shall deposit with Escrow Agent an additional
deposit equal to two and a half percent (2.5%) of the Purchase Price (the
"Additional Deposit"). The Initial Deposit, and if applicable together with the
Additional Deposit and any interest earned thereon, shall be referred to herein as
the Deposit. At Closing, the Deposit shall be credited against the Purchase Price.
The Deposit is non-refundable, except in the event Purchaser terminates this
Agreement as provided herein.
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(b) Closing Payment: At Closing, the Deposit shall be released to the Seller by Escrow
Agent and the balance of the Purchase Price, inclusive of adjustments, credits,
prorations, or as otherwise provided in this Agreement, shall be paid by the
Purchaser to closing agent in the form of cashier's check, certified check, official
bank check or wire transfer for disbursement to Seller pursuant to escrow
instructions mutually acceptable to the Parties.
3. WAIVER OF BIDDING REQUIREMENTS
Competitive bidding requirements are waived pursuant to amendment of Section 29-C of
the City Charter, approved via voter referendum on November 5, 2024.
4. ENVIRONMENTAL MATTERS
A. Definitions.
For purposes of this Agreement:
The term "Hazardous Materials" shall mean and include without limitation, any
substance, which is or contains (a) any "hazardous substance" as now or hereafter defined
in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C., Section 9601 et. seq.) ("CERCLA") or any regulations
promulgated under or pursuant to CERCLA; (b) any "hazardous waste" as now or hereafter
defined in the Resource Conservation and Recovery Act (42 U.S.C., Section 6901 et. seq.);
(c) any substance regulated by the Toxic Substances Control Act (15 U.S.C., Section 2601
et. Seq.); (d) gasoline, diesel fuel, or other petroleum hydrocarbons; (e) asbestos and
asbestos containing materials, in any form, whether friable or non -friable;
(f) polychlorinated biphenyls; and (g) any additional substances or material which: (i) is
now or hereafter classified or considered to be hazardous or toxic under Environmental
Requirements as hereinafter defined; (ii) causes or threatens to cause a nuisance on the
Property or adjacent property or poses or threatens to pose a hazard to the health or safety
of persons on the Property or adjacent property; or (iii) would constitute a trespass if it
emanated or migrated from the Property.
The term "Environmental Requirements" shall mean all laws, ordinances,
statutes, codes, rules, regulations, agreements, judgments, orders and decrees, now or
hereafter enacted, promulgated, or amended of the United States, the State of Florida,
Miami -Dade County, the City of Miami, or any other political subdivision, agency or
instrumentality exercising jurisdiction over the Seller or the Purchaser, the Property, or the
use of the Property, relating to pollution, the protection or regulation of human health,
natural resources, or the environment, or the emission, discharge, release or threatened
release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances
or waste or Hazardous Materials into the environment (including, without limitation,
ambient air, surface water, groundwater, land or soil).
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B. Disclaimer As To Environmental Matters.
The Property is being sold in "AS IS" condition. Purchaser acknowledges and
agrees that Seller has not made, does not make and specifically negates and disclaims any
representations, warranties, promises, covenants, agreements or guaranties of any kind or
character whatsoever, whether express or implied, oral or written, (past, present, or future)
of, as to, concerning or with respect to environmental or surface or subsurface matters with
reference to the Property, including, but not limited to: (a) the value, nature, quality or
condition of the Property, including, without limitation, the water, minerals, soil and
geology, (b) the compliance of or by the Property, or its operation with any Environmental
Requirements, (c) any representations regarding compliance with any environmental
protection, soil or water quality, pollution or land use, zoning or development of regional
impact laws, rules, regulations, orders or requirements, including the existence in or on the
Property of Hazardous Materials.
Purchaser further acknowledges and agrees that it is being given all relevant
documents and records of the Seller as they relate to the Property, if any, and other
documents that may exist in the public records of the state, county and/or city relating to
the environmental condition of the Property as part of this Agreement and that Purchaser
is not relying upon any documents or representations made by or on behalf of Seller..
Purchaser further acknowledges and agrees that any information provided or to be
provided with respect to the Property, if any, was obtained from a variety of sources and
that Seller has not made any independent investigation or verification of such information
and makes no representations as to the accuracy or completeness of such information but
Seller agrees that it will not intentionally withhold information and Seller will not
knowingly provide any false or misleading information. Except as otherwise provided
herein, Seller is not liable or bound in any matter by any oral or written statements,
representations or information pertaining to the Property, or the operation thereof,
furnished by any third -party agent, servant or other person, agency, or entity.
5. WAIVER AND RELEASE
Purchaser acknowledges and agrees that to the maximum extent permitted by law,
the sale of the Property as provided for herein is made on an "AS IS" condition and basis,
inclusive of all faults that may exist. Purchaser on behalf of itself and its successors and
assigns thereafter voluntarily, knowingly and intentionally waives, releases, acquits, and
forever discharges Seller, its heirs, and the successors and assigns of any of the preceding,
of and from any and all claims, actions, causes of action, demands, rights, damages, costs,
expenses or compensation whatsoever, direct or indirect, known or unknown, foreseen or
unforeseen, which Purchaser or any of its successors or assigns now has or which may arise
in the future on account or in any way related to or in connection with any past, present, or
future physical or other characteristic or condition of the Property including, without
limitation, any Hazardous Materials in, at, on, under or related to the Property, or any
violation or potential violation or any Environmental Requirement applicable thereto. In
addition, Purchaser thereafter specifically waives all current and future claims and causes
of action against Seller arising under CERCLA, RCRA, Chapters 376 and 402, Florida
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Statutes, and any other federal or state law or county regulation relating to Hazardous
Materials in, on, under or affecting the Property. Notwithstanding anything to the contrary
set forth herein, this release shall survive the Closing of this Agreement.
6. TITLE EVIDENCE
Purchaser, at its sole cost and expense, shall be responsible for obtaining all title
documents, which Purchaser requires in order to ascertain the status of title. Purchaser
agrees to forward a copy of the aforementioned title documents to Seller within seven (7)
days of the Purchaser's receipt thereof
Purchaser shall have a period of thirty (30) days from the Execution Date to
examine title and notify Seller, in writing, of any condition which renders the title
unmarketable. Seller shall have no obligation to cure title defects, it being understood and
agreed that the Property is being sold in "AS IS" condition. In the event that title
examination reveals a condition that renders title unmarketable or in Purchaser's
reasonable opinion interferes with Purchaser's intended use thereof, Purchaser may: (i)
elect to accept such title that Seller may be able to convey; or (ii) terminate this Agreement.
Purchaser shall have no other recourse in this regard. This Property is being sold in "AS
IS" condition as to title, without any representations and/or warranties made by Seller.
7. STATE OF FLORIDA APPROVAL
Purchaser and Seller acknowledge that the Property is subject to restrictions pursuant to
that certain Deed No. 19447 executed by the Trustees of the Internal Improvement Fund
of the State of Florida ("Trustees"), as grantor, with the City of Miami, Dade County,
Florida, as grantee, dated February 24, 1949 and recorded in Book 3130, Page 257, in the
public records of Miami -Dade County, Florida (the "TIFF Deed"), which restrictions are
in full force and effect. It is further understood by the Parties, that the obligation of the
Parties to consummate the transactions herein described shall be expressly conditioned on
the receipt of a partial release and modification of the restrictions contained in the TIFF
Deed in the form and content reasonably acceptable to the Parties (the "TIFF Release and
Modification"). The Parties shall cooperate with each other to obtain such TIFF Release
and Modification following the Execution Date. If the TIFF Release and Modification is
not obtained on or before the Outside Closing Date, then Purchaser and Seller shall have
the right to terminate this Agreement and Escrow Agent shall return to Purchaser the
Deposit paid in connection herewith. In the event Trustees require payment of any kind
associated with its release and modification referenced hereinabove, Seller shall be solely
responsible for all payments associated therewith.
8. DISCLAIMER OF WARRANTIES AS TO PROPERTY; "AS IS" CONVEYANCE
A. Purchaser is purchasing the Property in an "AS IS" condition and specifically and
expressly without any warranties, representations or guaranties, either express or
implied, of any kind, nature or type whatsoever from or on behalf of Seller. Without
in any way limiting the generality of the immediately preceding sentence, and in
addition to the specific disclaimers set forth in Sections 4 and 5 of this Agreement
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with respect to Environmental Matters, but subject to any representations and
warrantees expressly provided herein or in any of the documents delivered by Seller
at Closing, Purchaser and Seller further acknowledge and agree that in entering into
this Agreement and purchasing the Property:
Purchaser hereby acknowledges that Seller has not made, will not and does
not make any warranties or representations, whether express or implied,
with respect to the Property, its condition, the value, profitability, or
marketability thereof;
ii. Purchaser acknowledges that with respect to the Property, Seller has not,
will not and does not make any warranties, whether express or implied, of
merchantability, habitability or fitness for a particular use or suitability of
the Property for any and all activities and uses which Purchaser may
conduct thereon;
iii. Purchaser acknowledges that Seller has not made, will not and does not
make any representations, whether express or implied, with respect to
compliance with any land use matter, developer impact fees or assessments,
zoning or development of regional impact laws, rules, regulations, orders or
requirements;
iv. Purchaser acknowledges that Purchaser has made and/or has been given an
adequate opportunity to make such legal, factual and other inquiries and
investigations as Purchaser deems necessary, desirable or appropriate with
respect to the Property, the value or marketability thereof and of the
appurtenances thereto. Such inquiries and investigations of Purchaser
include, but shall not be limited to, the condition of all portions of the
Property and such state of facts as an accurate abstract of title would show;
v. Purchaser acknowledges that Purchaser has not relied, and is not relying,
upon any information, document, projection, proforma, statement,
representation, guaranty or warranty (whether express or implied, or oral or
written or material or immaterial) that may have been given by or made by
or on behalf of Seller;
vi. Purchaser acknowledges that Seller has not made, will not make and does
not make any warranties or representations, whether express or implied, as
to any personalty on the Property, and specifically disclaims the warranty
of merchantability. Personal property, if any, is conveyed "AS IS" and
"with all faults."
B. The provisions of this Section shall survive the closing, expiration, or termination
of this Agreement.
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9. RESTRICTIONS, EASEMENTS AND LIMITATIONS
The Purchaser agrees it shall take title subject to: any existing zoning, planning,
restrictions, prohibitions, and other requirements imposed by governmental authorities; all
existing restrictions and matters appearing on the public records as reflected on that certain
title commitment number 12000464 issued by Chicago Title Insurance Company and
having an effective date of September 9 2024, at 5:00 p.m, including but not limited to,
deed restrictions and reversionary interests, all recorded easements as shown thereon, and
any matters that would be disclosed on a survey of the property (hereinafter the "Permitted
Exceptions").
The Seller shall convey title to the Property by quitclaim deed (henceforth known
as the "Deed") in accordance with applicable requirements of the Resolution, City Charter,
Code of the City of Miami, Florida, as amended, and the City Commission, subject to the
following limitations, which shall survive closing:
a. A covenant running with the land which will provide that in the event
construction of the Project as defined in the MDA, as amended, is not substantially
completed by the date that is ten (10) years after the Execution Date, as such date
may be extended due to Force Majeure, Unavoidable Delay or a City -Related Delay
(as each such term is defined in the MDA), then commencing on the day following
such date, Purchaser shall pay to the Seller Base Rent as defined and required under
both the Luxury Hotel Lease and the Residences Lease. Purchaser shall continue
to pay to the Seller such Base Rent until the Project is substantially completed, at
which point the foregoing covenant shall automatically terminate by its terms and
be of no further force and effect.
b. Execution by Purchaser, and recordation of the Community Benefits Agreement,
described in Section 12, hereinbelow. The Community Benefits Agreement shall
be a covenant running with the land recorded in the public records in Miami -Dade
County in the final form, as approved by the Parties.
c. Solely with respect to the number of permitted residences (i.e., condominiums)
and lodging units at the Property, restrictions of: (i) up to 105 condominiums
consisting of not more than 340,000 sellable square feet, and (ii) up to 500 lodging
units in total when combined with the number of lodging units to be developed on
the parcel to be leased pursuant to the Lifestyle Lease (as such term is defined in
the MDA).
d. In accordance with City of Miami Code of Ordinances Section 18-182(3), in the
event the Property ever becomes immune or exempt from the payment of ad
valorem taxes, the Purchaser, or any of the Purchaser 's assigns, heirs, or successors,
shall pay to the Seller an annual payment which shall be equal to what Seller would
have received as ad valorem taxes based on the valuation method employed by the
Miami -Dade County Property Appraiser.
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e. Pursuant to, and subject to the terms, conditions and limitations of Section
270.11 of Florida Statutes, Seller's reservation of rights in and to an undivided
three -fourths interest in, all the phosphate, minerals, and metals that are or may be
in, on, or under the Property and an undivided one-half interest in all the petroleum
that is or may be in, on, or under the Property, provided that, Seller hereby expressly
waives any and all right of entry in, on or under the Property for the purpose of
extracting or mining any such phosphate, minerals or metals.
f. If the Property is conveyed to any third -party not currently a tenant or affiliate
of a tenant at the Project between the Execution Date and the later of (i) the date
that is two (2) years following the Execution Date and (ii) the date of
commencement of construction of the building to be built on the Land for a
purchase price exceeding the sum of (x) the Purchase Price plus (y) the cash
payment made pursuant to the Community Benefits Agreement (i.e., up to
$38,000,000 if the full $9,000,000 payment has been made; the "Hurdle Price"),
then Purchaser shall pay (or cause to be paid) to the City an amount equal to ten
percent (10%) of the difference between (a) the sales proceeds realized in such
transaction and (b) the Hurdle Price. For the sake of clarity, Purchaser, BH3
Management, Merrimac Ventures, Fort Partners, Island Gardens Deep Harbour,
and each of their respective affiliates shall not be considered third -parties for the
purposes of this paragraph.
10. CONDUCT PENDING CLOSING
Between the date of this Agreement and date of Closing, Seller:
A. shall conduct its operation of the Property only in the ordinary course of business
and in compliance with all applicable laws.
B. shall not dispose of any interest in the Property and shall not mortgage, pledge or
subject to lien or other encumbrance any interest in the Property or any interest in
Seller.
C. shall not enter into any new leases, licenses or occupancy agreements with respect
to any portion of the Property.
D. shall not enter into any management, leasing or maintenance service contract, or
any other agreement that would be binding on Purchaser or the Property following
the Closing, without the prior written consent of Purchaser, to be withheld in
Purchaser' s reasonable discretion.
E. On or prior to the Closing, Seller shall release the Property from that certain Unity
of Title, dated as of September 4, 2015, recorded in Book 29767, Page 2069 of the
Official Public Records of Miami Dade County, Florida.
Notwithstanding any language contained in this Agreement to the contrary, in no event
shall the Seller be restricted from exercising its rights as Landlord pursuant to the MDA.
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11. CLOSING DATE
Closing (the "Closing") shall take place on the date selected by Purchaser by no less than
thirty (30) days prior written notice to the Seller, but in no event later than the date that is
two and one-half (2.5) years after the Execution Date (the "Outside Closing Date"),
provided that, Purchaser may extend the Outside Closing Date until the date that is three
(3) years after the Execution Date by delivering written notice to Seller on or prior to the
then scheduled Outside Closing Date of Purchaser's extension election and a payment of
the Additional Deposit as provided herein in Section 2(a). Closing shall occur at a mutually
agreeable time at the City of Miami, Depail.uient of Real Estate and Asset Management
located at 14 N.E. 1st Avenue, Second Floor, Suite 325, Miami, Florida 33132, provided
that, at the request of either party, the Closing may be conducted by a title company selected
by Purchaser via mail -away and escrow instructions. The Parties may, subject to mutual
agreement, in writing, establish an earlier or later date for Closing.
12. CLOSING DOCUMENTS
A. At Closing, Seller shall execute and/or deliver to Purchaser the following:
i. Quitclaim Deed subject to any existing zoning, planning, restrictions,
prohibitions, easements and other matters or limitations of record in the
form attached hereto as Exhibit C;
ii. A bill of sale and general assignment conveying the tangible and intangible
personal property of Seller which is part of the Property;
iii. An assignment of all of Seller's rights, title and interest under the MDA and
the Project Declaration pertaining to the Land;
iv. A Community Public Benefits Agreement in the form attached hereto as
Exhibit D;
v. A Closing Statement;
vi. A Non -Foreign Affidavit;
vii. Customary affidavits in the form reasonably acceptable to the Seller as may
be required by the title company (including, without limitation, no -lien and
gap affidavits) to be able to issue to Purchaser an ALTA owner's title policy
with customary endorsements for similar transactions, insuring Purchaser
in the amount of the Purchase Price, updated to the time of Closing,
affirmatively insuring over the standard printed exceptions for GAP,
matters of mechanics or materialmen's liens, and parties in possession, and
subject only to Permitted Exceptions.
viii. Such documents as are necessary in the opinion of Seller to fully authorize
the sale of the Property by Seller; and
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ix. Any other documents reasonably necessary to consummate the transaction
contemplated hereby.
B. Purchaser's Closing Documents: At Closing, Purchaser shall execute and/or
deliver to Seller the following:
i. Closing Statement;
ii. Such documents as are necessary to fully authorize the purchase of the
Property by Purchaser; and
iii. Executed Community Benefits Agreement, which shall be a covenant
running with the land, recorded in the public records in Miami -Dade
County, Florida.
iv. Any other documents reasonably necessary to consummate the transaction
contemplated hereby.
13. CLOSING COSTS AND ADJUSTMENTS
At Closing, the following items shall be borne, adjusted, prorated or assumed by or between
Seller and Purchaser as follows:
A. Adjustments and Prorations. There will be no prorations of any Property related
expenses at Closing.
B. Closing Costs.
i. Each party shall be responsible for its own costs and attorney's fees relating
to this Agreement and the Closing.
ii. Purchaser shall pay all closing and recording costs incurred in connection
with the sale and purchase of the Property described in this Agreement,
including, but not limited to:
(1) documentary stamps tax and surtax, to the extent applicable;
(2) all recording charges and/or filing fees payable in connection with
the transfer of the Property hereunder;
(3) all amounts necessary to provide Seller with a certified copy of the
recorded deed.
14. DEFAULT
(a) If this transaction does not close as a result of default by Seller, Purchaser
as and for its sole and exclusive remedy, shall have the right to:
(i) terminate this Agreement, in which event both parties shall be
discharged from all duties and performance hereunder, except for any
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obligations which by their terms survive any termination of this Agreement;
(ii) pursue and obtain specific performance of Seller's obligations
hereunder (without the necessity of proving irreparable harm or posting any
security), including to convey the Property as provided herein; or (iii) waive
any such conditions or defaults and to consummate the transactions
contemplated by this Agreement in the same manner as if there had been no
conditions or defaults and without any reduction in the Purchase Price and
without any further claim against Seller. If Purchaser elects to pursue
specific performance pursuant to this Section 14(ii) but specific
performance is unavailable as a result of any action or omission of Seller,
Purchaser shall not be entitled to pursue any other remedies under
applicable law or principles of equity.
(b) If this transaction does not close as a result of default by Purchaser, Seller,
as and for its sole and exclusive remedy, shall have the right to terminate
this Agreement. Upon such termination, the Seller shall be entitled to the
Deposit including all interest earned and the parties hereto shall be relieved
of all further obligation and liability hereunder; provided, however, that
nothing contained in this Section shall limit Seller's rights to enforce
Purchaser's obligations that survive the termination of this Agreement,
including but not limited to Section 5 of this Agreement.
15. RISK OF LOSS
The Purchaser assumes all risk of loss or damage to the Property by fire or other casualty,
or acts of God, as of the Execution Date. If, at any time prior to the Closing, all or any
portion of the Property becomes subject to a "Taking" (defined below), then Purchaser may
either (a) terminate this Agreement, or (b) proceed to Closing without adjustment to
Purchase Price, provided that, Seller shall assign to Purchaser rights, title and interest of
Seller to any Taking awards in an amount not to exceed the Purchase Price. For purposes
of this Section 15, a "Taking" means the taking or condemnation of property by a
governmental authority under the power of eminent domain.
16. RELEASE AND INDEMNIFICATION
From and after the Closing, Purchaser and anyone claiming by, through or under Purchaser
hereby fully and irrevocably release Seller, its employees, officers, directors,
representatives, agents, successors and assigns (collectively the Seller) from any and all
claims that it may now have or hereafter acquire against the Seller for any cost, loss,
liability, damage, expense, demand, action or cause of action arising from or related to any
defects, errors, omissions or other conditions, including, but not limited to, environmental
matters, title to the Property, condition of the Property, personal injury, wrongful death, or
property damage arising from use or occupancy of the Property, failure to comply with any
laws, rules or regulations involving sale or use of the Property, or any other matter affecting
the Property, or any portion thereof. This release and indemnification shall survive
Closing.
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17. DESIGNATION OF REPRESENTATIVES
Purchaser and Seller acknowledge that proper communication between Purchaser and
Seller is important. Accordingly, to facilitate such communication, the Purchaser and
Seller have appointed the following persons on their respective behalves to be their
representatives, to wit:
On behalf of Seller: On behalf of Purchaser:
Andrew Frey Greg Freedman
18. NOTICES
All notices or other communications which may be given pursuant to this Agreement shall
be in writing and shall be deemed properly served if delivered by personal service or by
certified mail addressed to Seller and Purchaser at the address indicated herein. Such notice
shall be deemed given on the day on which personally served; or if by certified mail, on
the fifth day after being posted or the date of actual receipt, whichever is earlier, to the
addresses indicated below:
Seller:
City of Miami
City Manager
444 S.W. 2nd Avenue, 10th Floor
Miami, Florida 33130
Copy To:
Director
Depailment of Real Estate &
Asset Management
14 N.E. 1st Avenue, Second Floor, Suite
325
Miami, Florida 33132
City Attorney
444 S.W. 2nd Avenue, 9th Floor
Miami, FL 33130
19. CAPTIONS AND HEADINGS
Purchaser:
IG Luxury LLC
c/o BH3 Management
819 NE 2nd Avenue, Suite 500
Fort Lauderdale, Florida 33304
Copy To:
Greenberg Traurig, P.A.
333 SE 2nd Ave, Suite 4400
Miami, Florida 33131
Attn: Steve Bassin, Esq.
Email: bassins@gtlaw.com
The Section headings or captions appearing in this Agreement are for convenience only,
are not part of this Agreement, and are not to be considered in interpreting this Agreement.
20. BINDING EFFECT
ACTIVE 701797810v18
This Agreement shall bind and inure to the benefit of the parties hereto and their successors
in interest.
21. GOVERNING LAW; VENUE
This Agreement shall be governed according to the laws of the State of Florida and venue
in any proceedings shall be in Miami -Dade County, Florida.
22. COUNTERPARTS; ELECTRONIC SIGNATURES
This Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which shall constitute one and the same Agreement. An
executed facsimile or electronic scanned copy of this Agreement shall have the same force
and effect as an original. The parties shall be entitled to sign and transmit an electronic
signature on this Agreement (whether by facsimile, PDF, or other email transmission),
which signature shall be binding on the party whose name is contained therein. Any party
providing an electronic signature agrees to promptly execute and deliver to the other parties
an original signed Agreement upon request.
23. WAIVERS
No waiver by either party of any failure or refusal to comply with its obligations shall be
deemed a waiver of any other or subsequent failure or refusal to comply. All remedies,
rights, undertaking, obligations and agreement contained herein shall be cumulative and
not mutually exclusive.
24. SURVIVAL OF REPRESENTATIONS/WARRANTIES
Except for the covenants, representations, warrantees or other obligations arising pursuant
to this Agreement that by their terms survive the Closing, all other covenants,
representations, warrantees or other obligations shall merge into the deed and shall not
survive the Closing.
25. PARTIAL INVALIDITY
In the event that any provision of this Agreement shall be unenforceable in whole or in
part, such provision shall be limited to the extent necessary to render same valid, or shall
be excised from this Agreement, as circumstances require, and this Agreement shall be
construed as if said provision had been incorporated herein as so limited, or as if said
provision had not been included herein, as the case may be, provided the remainder of the
Agreement does not frustrate the intent of the Parties as set forth herein.
26. WAIVER OF TRIAL BY JURY; ATTORNEY'S FEES
The parties hereby knowingly, voluntarily and intentionally waive any right they may have
to a trial by jury under or in connection with this Agreement.
27. ENTIRE AGREEMENT
ACTIVE 701797810v18
This Agreement contains the entire agreement between the parties. There are no promises,
agreements, undertakings, warranties or representations, oral or written, express or
implied, between the parties other than as herein set forth or in any documents delivered
by the parties at Closing. No amendment or modification of this Agreement shall be valid
unless the same is in writing and signed by the City Manager with due authorization by the
City Commission, as may be required, on behalf of the Seller and by the Purchaser.
28. TIME IS OF THE ESSENCE
Time is of the essence of this Agreement and in the performance of all conditions and
covenants to be performed or satisfied by either party hereto. Whenever a date specified
herein shall fall on a Saturday, Sunday or legal holiday, the date shall be extended to the
next succeeding business day.
29. CONFLICT OF INTEREST
If any individual member, or an employee, or an immediate family member of the
Purchaser is also a member of any board, commission, or agency of Seller, that individual
is subject to the conflict of interest provisions of the City Code, Section 2-611. The Code
states that no City officer, official, employee or board, commission or agency member, or
a spouse, son, daughter, parent, brother or sister of such person, shall enter into any
contract, transact any business with the City, or appear in representation of a third party
before the City Commission. This prohibition may be waived in certain instances by the
affirmative vote of 4/5 of the City Commission, after a public hearing, but is otherwise
strictly enforced and remains effective for two years subsequent to a person's departure
from City employment or board, commission or agency membership.
A letter indicating a conflict of interest for each individual to whom it applies must
accompany the submission of this Purchase and Sale Agreement. The letter must contain
the name of the individual who has the conflict; the relative(s), office, type of employment
or other situation which may create the conflict; the board on which the individual is or has
served; and the dates of service.
30. NO DISCRIMINATION
The Purchaser shall not lawfully discriminate in its performance of this Agreement or use
of the Property.
31. RADON DISCLSOURE
Radon is a naturally occurring radioactive gas that, when it has accumulated in a building
in sufficient quantities may present health risks to persons who are exposed to it over a
period of time. Levels of radon that exceed federal and state guidelines have been found
in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit.
32. CITY RIGHTS AS SOVEREIGN
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Notwithstanding anything to the contrary contained in this Agreement, Seller is entering
into this Agreement only in its proprietary (not regulatory) capacity and retains all of its
sovereign prerogatives and rights and regulatory authority (quasi-judicial or otherwise) as
a city under all applicable laws and shall in no way be estopped from withholding or
refusing to issue any approvals, licenses or permits under present or future laws and
regulations whatever nature applicable to the Property and Purchaser' s use thereof.
Accordingly, the Seller retains all its sovereign prerogatives and rights as a municipality
under all applicable laws, including, but not limited to, any governmental approvals arising
from the planning, design, construction, development and operation of the Purchaser' s
intended use of the Property.
33. ANTI -HUMAN TRAFFICKING AFFIDAVIT
Pursuant Section 787.06(13) of Florida Statutes, Purchaser shall execute an affidavit in the
form attached hereto and incorporated herein as Exhibit E. The Statutes state that when a
contract is executed, renewed, or extended between a nongovernmental entity and a
governmental entity, the nongovernmental entity must provide the governmental entity
with an affidavit signed by an officer or a representative of the nongovernmental entity
under penalty of perjury attesting that the nongovernmental entity does not use coercion
for labor or services.
34. OMBUDSMAN
The Parties hereto acknowledge and agree that the provisions of Section 8.1.1 of that
certain Amended and Restated Agreement to Enter into Ground Lease dated as of
February 1, 2010 between Seller and FIG (the "Agreement to Enter into Ground
Leases") appointing an Ombudsman shall apply during the term of this Agreement and
shall survive the Closing during the duration of Purchaser's intended development on the
Property in accordance with the terms of such Agreement to Enter into Ground Leases, and
the Parties incorporate such Section 8.1.1 of the Agreement to Enter into Ground Leases
into this Agreement by reference, provided that, the Ombudsman named therein, Aldo
Bustamante, is hereby replaced by Andrew Frey.
[Signatures appear on next page]
ACTIVE 701797810v18
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement, as of
the day and year first above written.
"SELLER"
Executed by CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
Arthur Noriega V, City Manager
Date:
ATTEST:
Todd B. Hannon, City Clerk
APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE AND
CORRECTNESS: REQUIREMENTS:
George K. Wysong III David Ruiz, Interim Director
City Attorney Risk Management Administrator
ACTIVE 701797810v18
"PURCHASER"
IG LUXURY LLC, a Delaware limited
liability company
By:
Date:
Witness
Print Name
Witness
Print Name
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this day of
, by , who is [ ] personally known to me or [ ] who produced the
following identification:
(NOTARY PUBLIC SEAL)
Notary Public
(Printed, Typed or Stamped Name of Notary Public)
Commission No.:
My Commission Expires:
ACTIVE 701797810v18
EXHIBIT A
Legal Description
A portion of Tract "A" and ell of Tract "C", WATSON ISLAND SOUTHWEST, according to the Plat thereof, as
re::orded in Plat Book 166 at Page 11, of the Public Records of Miami —Dade County, Florida, being more
particularly described as follows:
Commence at the South corner of said Tract "A", the following two (2) courses being along the Southeasterly
line of said Tract "A"; 1) thence N 54'07'39" E for 105.55 feet to the Point of Beginning; 2) thence continue
N 54'07°39" E for 44.59 feet to the West corner of said Tract "C"; thence S 35'54'03" E along the
Southwesterly line of said Tract "C" for 134.36 feet to the South corner of said Tract °°C"; thence N 54'07'39" E
along the Southeasterly line of said Tract "C" for 531.61 feet to the East corner of said Tract "C", the following
two (2) courses being ❑long The \ortheasterly line of said Tracts "A°' and "C", also being the Southwesterly right
of way line of General Douglas MacArthur Causeway; 1) thence N 26'22'36" W far 196.59 feet to a point of
curvature; 2) thence Northwesterly along a 600.00 foot radius curve leading to the left through a central angle
of 5-09'29" for an arc distance of 54.02 feet to a point on a non —tangent line; thence S 54'07'39" W along a
line 113 feet Northwesterly and parallel with said Southeasterly line of Tract "A" for 576.98 feet; thence
S 17'12'21" E along a line 100 feet Easterly and parallel with the Westerly line of said Tract "A" for 119.43 to
the Point of Beginning.
ACTIVE 701797810v18
EXHIBIT B
Resolution
ACTIVE 701797810v18
EXHIBIT C
Form of Quitclaim Deed
ACTIVE 701797810v18
This Instrument Prepared By
and Return, After Recordation, To:
George K. Wysong, III
City of Miami
Office of the City Attorney
444 S.W. 2"d Avenue, 9th Floor
Miami, Florida 33130-1910
Folio: Portion of 01-3231-061-0010
QUITCLAIM DEED
THIS QUITCLAIM DEED, is made this day of
20 ("Effective Date"), by the City of Miami, a municipal corporation of the State of Florida,
whose post office address is 444 S.W. 2"d Avenue, Miami, Florida 33130, hereinafter called the
"Grantor," to IG LUXURY LLC, a Delaware limited liability company, whose address is c/o BH3
Management, 819 NE 2"d Avenue, Suite 500, Fort Lauderdale, Florida 33304, hereinafter called
the "Grantee."
WITNESSETH: That the Grantor, for and in consideration of the sum of Ten Dollars
($10.00) and other valuable consideration, the receipt of which is hereby acknowledged, does
hereby remise, release and quitclaim unto the Grantee and Grantee's beneficiaries, successors,
transferees, and assigns, all of the Grantor's right, title and interest in that certain land situated in
Miami -Dade County, Florida, hereinafter referred to collectively as the "Property," to wit:
SEE LEGAL DESCRIPTION ATTACHED AND
INCORPORATED AS EXHIBIT "A"
The foregoing conveyance was approved pursuant to Resolution No
, attached and incorporated as Exhibit "B", the City Commission found it in the
best interest of the City to authorize the conveyance of the Property to the Grantee.
This Quitclaim Deed is made and executed upon, and is subject to, the following conditions,
restrictions and covenants, which are part of the consideration for the Property conveyed and are
taken and construed as running with the land:
1. Conditions, restrictions, easements, limitations, and reservations of record, though
this reference is not intended to reimpose same.
2. Applicable zoning ordinances, codes, rules, and regulations.
3. The Property is being taken by the Grantee "as is" with the Grantee being solely
responsible for the removal of any environmental contamination, if present on the
Property.
4. The Grantee, for itself, its beneficiaries, successors, transferees, and assigns, agrees
not to discriminate upon the basis of race, color, religion, marital status, sex,
Page 1 of 5
ACTIVE 704336330v2
disability, sexual orientation, or national origin in the sale of the Property, or any
improvements erected or to be erected thereon or on any part thereof.
5. The Grantee, for itself, its beneficiaries, successors, transferees, and assigns, agrees
to pay the real estate taxes or assessments on the Property or any part thereof when
due. In the event that the Property is ever declared to be "immune" or "exempt"
from the payment of ad -valorem taxes, the Grantee agrees, for itself and any
successor(s) in interest, to pay to the Grantor an annual payment which shall be in
an amount equal to the amount the Grantor would have received as ad valorem
taxes based on the valuation method employed by the Miami -Dade County property
appraiser pursuant to Chapter 193 Florida Statutes, as amended from time to time.
6. Following the execution of this Quitclaim Deed, there shall be no amendments,
extensions, or modifications except in the case that a clerical error has been
identified and there is clear and convincing evidence to support the finding of a
clerical error resulting in a typographic mistake to the original deed, then a
modification may be made where upon all parties to the original agreement consent
in writing to the modification.
7. The Grantor hereby confirms that Grantor does not relinquish any interests in
minerals, petroleum, phosphates and/or metals at, on or beneath the Property
pursuant to Section 270.11, Florida Statutes, provided, however, that the Grantor
hereby waives any right to enter onto the Property to initiate any drilling, mining
or removal from the surface but retains all right to its share of any proceeds of any
such drilling, mining or removal.
TO HAVE AND TO HOLD, the same together with all and singular tenements,
hereditaments, and appurtenances thereto belonging or in anywise appertaining, and all the estate,
right, title, interest, lien, equity, and claim whatsoever of the Grantor, either in law or in equity, to
the use, benefit and behalf of the Grantee forever.
[SIGNATURE PAGE FOLLOWS]
Page 2 of 5
ACTIVE 704336330v2
IN WITNESS WHEREOF, the said Grantor has signed, sealed and executed this Quit Claim
Deed as of the day and year first above written.
Signed, sealed, and delivered
in our presence:
GRANTOR:
CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
Print Name: Arthur Noriega V
City Manager
Print Name:
APPROVED AS TO FORM AND ATTEST:
CORRECTNESS:
George K. Wysong, III
City Attorney
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Todd B. Hannon
City Clerk
ACKNOWLEDGMENT
The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑
online notarization, this day of , by Arthur Noriega V, as City
Manager for the City of Miami, a municipal corporation of the State of Florida, on behalf of the
municipal corporation. He/she is personally known to me or has produced
as identification.
(NOTARY PUBLIC SEAL)
Signature of Person Taking Acknowledgment
(Printed, Typed, or Stamped Name of Notary Public)
Title or Rank
Serial Number, if any
Page 3 of 5
ACTIVE 704336330v2
EXHIBIT "A"
LEGAL DESCRIPTION
A portion of Tract "A" and all o` Tract "C", WATSON ISLAND SOUTHWEST, according to the Plat thereof, as
recorded in Plat Book 156 a: Page 11, of the Public Records of Miami —Dade County, Florida, being more
particularly described as follows:
Commence at the South corner of said Tract "A", the following two (2) courses being along the Southeasterly
line of said Tract "A"; 1) thence N 54'07'39" E for 105.55 feet to the Point of Beginning; 2) thence continue
N 54'07'39" E for 44.59 feet t❑ the West corner of said Tract 'C"; thence S 35.54'03" E along the
Southwesterly line of said Tract "C°' for 134,36 feet to the South corner of said Tract "C"; thence N 54'07'39" E
along the Southeasterly line of said Tract "C" for 531.61 feet to :he East corner of said Tract "C", the following
two (2) courses being ❑long the Northeasterly line of said Tracts "A" and "C", ❑lso being the Southwesterly right
of way line of General Douglas MacArthur Causeway; 1) thence N 26'22'36" W for 196.59 feet to a point of
curvature; 2) thence Northwesterly along a 600.00 foot radius curve leading to the left through a central angle
of 5-09'29" for an ❑rc distance of 54.02 feet to a point on a non —tangent line; thence 5 54'07'39" W along a
line 113 feet Northwesterly and parallel with said Southeasterly line of Tract "A" for 576.98 feet; thence
5 17'12'21" E along a line 100 feet Easterly and parallel with the Westerly line of said Tract "A" for 119.43 to
the Point of Beginning.
Page 4 of 5
ACTIVE 704336330v2
EXHIBIT "B"
CITY RESOLUTIONS
Page 5 of 5
ACTIVE 704336330v2
EXHIBIT D
Form of Community Public Benefits Agreement
ACTIVE 701797810v18
EXECUTION VERSION
BH3 IG DEVELOPER LLC
COMMUNITY PUBLIC BENEFITS AGREEMENT
This Community Public Benefits Agreement (this "Community Benefits Agreement")
constitutes the Final Comprehensive Community Benefits Plan approved by THE CITY OF
MIAMI (the "City"), having an address of 444 SW 2nd Avenue, 10th Floor, Miami, FL 33131,
Attention: City Manager and by BH3 IG DEVELOPER LLC and IG LUXURY LLC, each a
Delaware limited liability company (with their successors and assigns, collectively, "BH3"),
having an address at c/o BH3 Management, 819 NE 2nd Avenue, Suite 500, Fort Lauderdale,
Florida 33304, Attention: Gregory Freedman, and IG RETAIL LLC, a Delaware limited liability
company ("Retail Tenant"), having an address at c/o Fort Partners, 500 W. Cypress Creek Road,
Suite 330, Fort Lauderdale, Florida 33309, Attention: Legal Depailinent, based on the following
facts and circumstances.
1. Background and Purpose.
a. The City is the owner of that certain property located at 888 MacArthur Causeway,
Miami, Florida (the "Property").
b. Retail Tenant, IG Parking LLC, a Delaware limited liability company ("Parking
Tenant"), and Island Gardens Deep Harbour, LLC, a Delaware limited liability
company ("Marina Tenant", and together with BH3, Parking Tenant, and Retail Tenant,
collectively "Tenants"), are tenants of various portions of the Property pursuant to
various leases from the City.
c. FP IG Developer LLC, a Delaware limited liability company ("FP"), is the parent
company of Retail Tenant and Parking Tenant and is the Project Developer and
Declarant pursuant to that certain Amended and Restated Mixed Use Project
Declaration dated as of April 12, 2023, which was recorded on April 14, 2023 at CFN
2023R0251059 or Book 33665 Pages 3611-3904 in the public records of Miami -Dade
County, Florida, as amended by that certain First Amendment to Amended and
Restated Mixed Use Project Declaration dated as of July 26, 2024, which was recorded
on July 30, 2024 at CFN 2024R0571267 or Book 34334 Pages 3186-3196 and that
certain Second Amendment to Amended and Restated Mixed Use Project Declaration
dated as of April 15, 2025, which was recorded on May 6, 2025 at CFN 2025R0342507
or Book 34741 Pages 4004-4011 (the "Project Dec."; all capitalized terms not
otherwise described herein shall have the meanings ascribed to them in the Project
Dec.).
d. The City and IG Luxury LLC, a wholly -owned indirect subsidiary of BH3, desire to
enter into an Agreement for Purchase and Sale for a portion of the Property containing
approximately 3.2 acres (the "Agreement").
e. In connection with the Agreement, the City and BH3 have agreed to enter into this
Community Benefits Agreement to provide a comprehensive list of the public benefits
that have previously been committed to by the Tenants in the various leases, the Project
Dec., and/or easement documents, as well as to provide for additional community
public benefits that are being committed as a condition of the Agreement and the
passing of a 2024 referendum question adopted by the City Commission by Resolution
No. R-24-0281.
ACTIVE 699774535v2
2. Previously proffered Community Public Benefits. Tenants previously
committed, as described below, to provide a variety of different public benefits which benefit the
public:
a. Civic Arts Endowment Trust (Project Dec. §10; Lease, Rider 1, Section §36.19)
b. Open Space and Recreation (Project Dec. §4.13, §16.9; Retail Lease §5.1.1, §6.4.2)
c. Seawall (Project Dec. §16.7)
d. Kiosks in the Promenade (Project Dec. §4.13; Retail Lease §5.1.3)
e. Entrance Blvd. (Project Dec. §4.4, §15.1; Retail Lease §6.3)
f. New Fish Market (Project Dec. §4.14; Retail Lease §5.1.2)
g. Maritime Gallery (Project Dec. §4.6; Retail Lease §5.1.5)
h. Skills Training and Employment Center (MDA §7.5)
i. First Source Hiring (MDA §7.4; Lease Rider 1 §33.1)
j. Minority and Women Participation and Equal Employment Opportunity. (Lease, Rider
§33.2)
k. Quad Parcel Beautification (Quad Parcel Easement §12)
1. Water Taxi (Project Dec. §4.18)
m. Pier Spires (MUSP Modification #2)
3. Additional proffered Community Public Benefits. BH3 hereby commits to
provide a variety of additional and/or enhanced community public benefits which benefit the
public as described below. To the extent the additional community benefits enhance, replace,
supplant or supplement the Community Benefits in paragraph 2 hereof, such provisions shall be in
accordance with this Community Benefits Agreement as follows:
a. Affordable Housing and Infrastructure Trust Fund Contribution. BH3 shall make a
total contribution of Nine Million Dollars ($9,000,000) towards the City of Miami
Affordable Housing Trust Fund and infrastructure improvements, to be paid as follows,
(i) Three Million Dollars ($3,000,000) upon receipt of the master building permit for the
Luxury Hotel, (ii) Three Million Dollars ($3,000,000) upon receipt of a Temporary
Certificate of Occupancy of Luxury Hotel Tower, and (iii) Three Million Dollars
($3,000,000) upon receipt of a Temporary Certificate of Occupancy of Lifestyle Hotel
Tower.
b. Civic Arts Endowment Trust exchanged and updated to current City of Miami Arts
in Public Places Program. The Civic Arts Endowment Trust provisions found in, inter
alia, Project Dec. §10 and Lease, Rider 1, Section §36.19, shall be stricken. Project
development will comply with the City of Miami current standards for Arts in Public Places
Chapter 62, Article XVI of the Code of the City of Miami, Florida, as amended ("City
Code"), and Ordinance No. 13114, the Zoning Ordinance of the City of Miami, as amended
("Miami 21 Code"), Article 11.
c. Additional Kiosk in Promenade for Small Business. In addition to those described in
Item 2(d) above, Retail Tenant shall construct and operate an additional Kiosk, for a total
of three (3) kiosks located within the Promenade of approximately 500-600 sf each, for
Retail Use and a minimum of one of the Kiosks shall be leased to a small business operator
and resident in the City of Miami.
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ACTIVE 699774535v2
d. Maritime, Ocean and Art Gallery. As an additional enhancement of Item 2(g) above,
Retail Tenant shall cause the Gallery to be operated as a display space for maritime, ocean
and/or art exhibits. Toward that end, Retail Tenant shall enter into a Sublease with or
engage a third -party nonprofit operator for that purpose. Retail Tenant shall allocate at least
2,000 sf of space to the Gallery (the "Gallery Space") free of charge, except payment or
reimbursement of all utility usage, common area maintenance costs, and maintenance and
repair costs in or for the benefit of the Gallery Space. Retail Tenant shall not operate the
Gallery for any purpose except a maritime, ocean and art museum. Retail Tenant may
replace museum content or any museum operator as Retail Tenant reasonably determines
from time to time.
e. First Source Hiring. As an additional enhancement of Item 2(i) above, hiring for the
Project shall be prioritized in accordance with the following priority list:
i. Overtown community, or zip codes 33127, 33128, 33130, 33136, 33142, 33125,
33126, 33144, 33134, 33150 and West Coconut Grove.
ii. City residents.
iii. County Targeted Areas — 33010, 33010, 33034, 33054 and 33161
iv. County residents
v. All other employees
f. Skills and Training Employment Center. The Project shall coordinate with community
partners, such as the Miami Dade College, the Hospitality Institute and the Hospitality
Employee Advancement & Training, The Overtown Business Resource Center, Camillus
House Building Futures program, and Hermanos de la Calle employment placement.
g.
District 5 Participation. To the extent there is Office Space in the Retail Component,
Retail Tenant will set aside for lease a minimum of three percent (3%) of such Office
Spaces for such individuals and establish preferential terms for the provision of tenant
improvements. For purposes of clarity and calculation, ancillary office spaces are not
included in the overall calculation to ascertain the three percent (3%) overall of office use
at the premises.
h. Ex -Felon Outreach. As an additional enhancement of Item 2(j) above, BH3 and FP, as
applicable, shall ensure that no less than 3 percent (3%) of its total construction workforce
will be comprised of ex -felons.
J.
Community Benefit Program Outreach. In addition to regular employment and training
notifications to be posted on customary websites, newspapers, and employment services
agencies, BH3 and FP shall each send written notification of opportunities in training and
employment to all five (5) district Commissioners offices to assist in the notification of
these opportunities. District Commissioners may request and BH3 and FP will coordinate
a workshop or application assistance to be coordinated in their district to help facilitate
completion of application forms for qualification.
City Art Enhancements Alternative to Pier Spires. The MUSP approval included the
proposal for two thirty -foot -high pier spires of Henry Flagler and Julia Tuttle at the
entrance of the Marina (Item 2(m) above), which shall be stricken and replaced by a
contribution of Two Hundred and Fifty Thousand Dollars ($250,000), payable (i) $113,425
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ACTIVE 699774535v2
by BH3 and (ii) $136,575 by FP to the City of Miami Arts in Public Places Fund for the
Liberators Monuments along Biscayne Boulevard. Said contribution amounts shall be
applied for compliance and deducted from the respective City Arts In Public Places values
due from BH3 and FP pursuant to Item 3(b) above.
k. Infrastructure Enhancements and Waterfront Promenade Expansion. BH3 and City
agree to use good faith efforts to negotiate any required amendments to External
Easements, the Project Dec., Master Development Agreement, or other documents related
to the Project to reflect infrastructure enhancements and waterfront promenade expansion
(at BH3's cost) in the areas known as Easement "A", Easement "B", Easement "C", and
Easement "G", which shall memorialize the existing easements, where applicable, to be
permanent, provided that BH3 shall maintain such easements as to be memorialized in the
formal documents, all subject to Commission approval.
4. Monitoring. Commencing 90 days after the Effective Date of the Luxury Hotel
Lease and Lifestyle Hotel Lease, as applicable, and continuing until BH3 and Retail Tenant have
satisfied all their obligations under this Community Benefits Agreement, BH3 and Retail Tenant
will provide the City Manager with a written report at least quarterly setting forth their respective
progress toward satisfying its obligations under this Community Benefits Agreement. Prior to the
issuance of the final Certificate of Occupancy for the Luxury Hotel component and Lifestyle Hotel
Component, BH3 and FP, as applicable, will provide the City Manager with a written report of
their obligations under this Community Benefits Agreement. With respect to any obligations
under this Community Benefits Agreement to be satisfied after completion of all vertical
improvements for the Luxury Hotel component and Lifestyle Hotel Component, BH3 and FP, as
applicable, will provide the City Manager with annual monitoring reports confirming and
evidencing satisfaction of such surviving obligations under this Community Benefits Agreement.
All reports required from BH3 and FP pursuant to this Community Benefits Agreement shall be in
a form required by the City Manager and shall contain such information and include such back-up
information as may be reasonably required by the City Manager to confirm compliance with this
Community Benefits Agreement. In addition, said reports and all back-up information supporting
said reports shall be subject to audit and inspection by the City Manager.
5. Audit. The City Manager will have access to, and the right to audit, examine, or
reproduce, the financial books and records of BH3 and FP related to this Community Benefits
Agreement. BH3 and FP must retain all such records for a minimum period of six (6) years from
completion, or for such longer period of time as required by federal or state law or in connection
with the completion of any audit in progress. BH3 and FP must keep all financial records in a
manner consistent with generally accepted accounting principles. Access must be provided to the
City Manager or its agents during normal business hours to review the requested records no later
than ten (10) calendar days after the written request is made by the City Manager or its authorized
representative. Construction contracts related to this Community Benefits Agreement shall also
include the same right to audit the records of the general contractor in favor of the City Manager.
The parties do not intend for compliance with this paragraph 5 to be construed as a waiver of the
ability to assert any valid exemptions to Chapter 119, Florida Statutes, with respect to the records
inspected by the City Manager hereto.
6. Release of Obligations. Upon satisfaction of any of any of Tenants' obligations
under this Community Benefits Agreement as reasonably determined by City, Tenants will have
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ACTIVE 699774535v2
no further obligation to comply with, and will be automatically released from, such obligation and
at the request of such Tenant, the City Manager will execute and deliver to such Tenant a
recordable instrument reflecting that such Tenant is released from such obligation in form and
substance reasonably acceptable to such Tenant and City. For the avoidance of doubt, Tenants
shall not be released from those obligations set forth in this Community Benefits Agreement,
which, by their nature, are ongoing obligations; provided, however, that upon request of any
Tenant or any Sublessee or Lender, the City Manager shall be required to execute an estoppel in
form and substance reasonably acceptable to the City Manager and to such Tenant (or Sublessee
or Lender, as applicable) setting forth the status of such Tenant's compliance with such ongoing
obligations.
7. Assignment. Tenants may assign (a) all its obligations under this Community
Benefits Agreement in connection with Tenant's assignment of any or all of its rights under the
Project Dec. or the applicable Lease, or (b) any portion of its obligations under this Community
Benefits Agreement related to a specific component of the Project in connection with Tenant's
assignment of its rights under the applicable Lease to a lessee of such component of the Project
through a Bifurcated Lease, in each case, upon written notice given to the City Manager. Any such
notice of assignment shall indicate: (i) the name of the assignee and the assignee's contact
information, (ii) the portion of Tenant's obligations under this Community Benefits Agreement
being assigned, and (iii) any other terms or provisions applicable thereto and mutually agreed to
as between Tenant and the assignee. Upon the assignment of all of Tenant's obligations under this
Community Benefits Agreement, the assignee will be solely responsible for satisfying such
obligations and Tenant will be automatically released from all such obligations. Upon the
assignment of a portion of Tenant's obligations under this Community Benefits Agreement in
connection with a Bifurcated Lease for a specific component of the Project, the tenant under such
Bifurcated Lease will be solely responsible for satisfying such obligations, and such Tenant will
automatically be released from all such obligations.
8. Amendments. The City Manager, in his or her reasonable discretion, may approve
amendments to this Community Benefits Agreement provided that any such amendment does not
materially decrease the total value of the community benefits to be provided to the City and does
not materially change, in any respect, the community benefits set forth above and is at all times in
compliance with the Charter Amendment.
9. Date Calculation. For the avoidance of doubt, Business Days shall mean Monday
through Friday, excluding legal holidays in the City of Miami, Florida_ Unless otherwise identified
as Business Days, any reference to days shall refer to calendar days.
10. Covenant Running with the Land. This Community Benefits Agreement shall
constitute a covenant running with the land and shall be recorded, at BH3's expense, in the public
records of Miami -Dade County, Florida and shall remain in full force and effect and be binding
upon BH3 and Retail Tenant, and their heirs, successors and assigns until such time as the same is
modified or released (as further described in paragraph 6 above).
[SIGNATURES FOLLOW]
s
ACTIVE 699774535v2
PROFFERED BY:
Signed, sealed and delivered BH3 IG DEVELOPER LLC
in the presence of:
Name:
Name:
By:
Name:
Title:
Signed, sealed and delivered IG LUXURY LLC
in the presence of:
Name:
Name:
By:
Name:
Title:
Signed, sealed and delivered IG RETAIL LLC
in the presence of:
Name:
Name:
By:
Name:
Title:
ACTIVE 699774535v2
ACCEPTED AND APPROVED BY:
ATTEST:
TODD HANNON, CITY CLERK ARTHUR NORIEGA, CITY MANAGER
APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE AND
CORRECTNESS: REQUIREMENTS:
George K. Wysong III David Ruiz, Interim Director
City Attorney Risk Management Administrator
ACTIVE 699774535v2
ACKNOWLEDGMENT
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
ss:
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, this , 202 , by on behalf of
BH3 IG DEVELOPER LLC, a Delaware limited liability company. He is personally known to
me or has produced (type or identification) as identification.
Notary Public
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
ss:
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, this , 202, by on behalf of
IG LUXURY LLC, a Delaware limited liability company. He is personally known to me or has
produced (type or identification) as identification.
Notary Public
ACTIVE 699774535v2
ACKNOWLEDGMENT
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
ss:
The foregoing instrument was acknowledged before me by means of ❑ physical presence
or ❑ online notarization, this , 202 , by on behalf of
IG RETAIL LLC, a Delaware limited liability company. He is personally known to me or has
produced (type or identification) as identification.
Notary Public
ACTIVE 699774535v2
EXHIBIT E
Form of Anti -Human Trafficking Affidavit
ACTIVE 701797810v18
ANTI -HUMAN TRAFFICKING AFFIDAVIT
THIS FORM MUST BE SIGNED AND SWORN TO IN THE PRESENCE OF A NOTARY PUBLIC
OR OTHER OFFICIAL AUTHORIZED TO ADMINISTER OATHS.
1. The undersigned affirms, certifies, attests, and stipulates as follows:
a. The entity/individual is a nongovernmental entity authorized to transact business in the
State of Florida (hereinafter, "nongovernmental entity").
b. The nongovernmental entity is either executing, renewing, or extending a contract
(including, but not limited to, any amendments, as applicable) with the City of Miami
("City") or one of its agencies, authorities, boards, trusts, or other City entity which
constitutes a governmental entity as defined in Section 287.138(1), Florida Statutes (2024).
c. The nongovernmental entity is not in violation of Section 787.06, Florida Statutes (2024),
titled "Human Trafficking."
d. The nongovernmental entity does not use "coercion" for labor or services as defined in
Section 787.06, Florida Statutes (2024).
2. Under penalties of perjury, pursuant to Section 92.525, Florida Statutes, I declare the following:
a. I have read and understand the foregoing Anti -Human Trafficking Affidavit and that the
facts, statements and representations provided in Section 1 are true and correct.
b. I am an officer, a representative, or individual of the nongovernmental entity authorized to
execute this Anti -Human Trafficking Affidavit.
FURTHER AFFIANT SAYETH NAUGHT.
Nongovernmental Entity/Individual: , LLC
Signature:
Name:
Office Address:
Email Address:
Title:
Phone Number:
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
Sworn to and subscribed before me this day of , 20 , by
, as of
LLC, a Florida limited liability company, on behalf of said entity, who is ( ) personally known
to me or ( ) has produced the following identification
(Printed, typed or stamped commissioned
Notary Public — State of Florida
My commission expires
SUBSTITUTED.
LEGAL DESCRIPTION:
A portion of Tract "A" and all of Tract "C", WATSON ISLAND SOUTHWEST, according
recorded in Plat Book 166 at Page 1 1 , of the Public Records of Miami —Dade Cou
particularly described as follows:
Commence at the South corner of said Tract "A", the following two (2) cours
line of said Tract "A"; 1) thence N 54°07'39" E for 105.55 feet to the Poin
N 54°07'39" E for 44.59 feet to the West corner of said Tract "C"; thenc
Southwesterly line of said Tract "C" for 134.36 feet to the South corner
along the Southeasterly line of said Tract "C" for 531.61 feet to the E
two (2) courses being along the Northeasterly line of said Tracts "A"
of way line of General Douglas MacArthur Causeway; 1) thence N
curvature; 2) thence Northwesterly along a 600.00 foot radius cury
of 5°09'29" for an arc distance of 54.02 feet to a point on a
line 113 feet Northwesterly and parallel with said Southeasterly
S 17°12'21" E along a line 100 feet Easterly and parallel
the Point of Beginning.
SURVEYOR'S NOTES:
wit
e
2
e Plat thereof, as
Florida, being more
eing along the Southeasterly
Beginning; 2) thence continue
35°54'03" E along the
said Tract "C"; thence N 54°07'39" E
corner of said Tract "C", the following
"C", also being the Southwesterly right
36" W for 196.59 feet to a point of
eading to the left through a central angle
tangent line; thence S 54°07'39" W along a
of Tract "A" for 576.98 feet; thence
Westerly line of said Tract "A" for 119.43 to
This site lies in Section 31, Township 53 South, R. 42 East, City of Miami, Miami —Dade County, Florida.
All documents are recorded in the Public Records Miami —Dade County, Florida unless otherwise noted.
Bearings hereon are referred to a platted beari alue of N 54°07'39" E for the Southeasterly line of
Tract "A".
Lands shown hereon were not abstracted for .sements and/or rights —of —way of records.
Lands shown hereon containing 139,547 sq feet, or 3.204 acres, more or less.
This is not a "Boundary Survey" but only .raphic depiction of the description shown hereon.
Dimensions shown hereon are based on tin, Leavy, Skiles, sketch #2020-031 —7.
SURVEYOR'S CERTIFICATION:
I hereby certify that this "Sketch of scription" was made under my responsible charge on July 16, 2024, and
meets the applicable codes as se rth in the Florida Administrative Code, pursuant to Section 472.027, Florida
Statutes.
"Not valid without the signature and on
, FORr
FORTIN, LEAVy;'
E
OF
raised seal or a digital signature of the Florida Licensed Surveyor and Mapper shown below"
!NC., LB3653
By: SuLVEvo oe
Daniel C. in, -Jr7Tror The Firm
Surveyor . Mapper, LS6435
State o orida.
Drawn By
Cad. No. 200831
Ref. D
MAP
2020-031-7
Plotted:
7/16/24 9:07a
LEGAL DESCRIPTION, NOTES & CERTIFICATION
FORTIN, LEAVY, S KILES, INC.
CONSULTING ENGINEERS, SURVEYORS & MAPPERS
FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER: 00003653
180 Northeast 168th Street / North Miami Beach, Florida 33162
Phone 305-653-4493 / Fax 305-651-7152 / Email fls@flssurvey.com
7-
Date
7/16/24
Scale NOT TO SCALE
Job. No. 240464
Dwg.No. 1024-039-3
Sheet
1
of 3
SUBSTITUTED.
\
\ A\
\ Q� \
TRACT "A
\ \ WATSON ISLAND SOUTHWEST
PLAT BOOK 166 PAGE 11
\
n i \� \
m o0
POINT OF
BEGINNING
POINT OF
COMMENCEMENT
SOUTH CORNER OF TRACT "A"
GRAPHIC SCAL'
75 150 300
( IN FEE
1 inch =
20-031 —7
7/16/24 9:07a
WESTERLY LINE
OF TRACT "A"
SOUTHEASTERLY LINE
OF TRACT "C"
SOUTHWESTERLY LINE
OF TRACT "C"
CENTERLINE OF
GENERAL DOUGLAS
MACARTHUR CAUSEWAY
SOUTHWESTERLY
RIGHT OF WAY OF
GENERAL DOUGLAS
MACARTHUR CAUSEWAY
T_R CCT
WATSON ISLAND SOUTHWEST
PLAT BOOK 166 PAGE 11
LINE TABLE
LINE
LENGTH
BEARING
L1
44.59
N54°07'39"E
L2
134.36
S35°54'03"E
L3
531.61
N54°07'39"E
L4
196.59
N26°22'36"W
L5
576.98
S54°07'39"W
L6
119.43
S17°12'21"E
SKETCH OF DESCRIPTION
FORTIN, LEAVY, S KILES, INC.
CONSULTING ENGINEERS, SURVEYORS & MAPPERS
FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER: 00003653
180 Northeast 168th Street / North Miami Beach, Florida 33162
Phone 305-653-4493 / Fax 305-651-7152 / Email fls@flssurvey.com
7/16/24
Job. No. 240464
Dwg.No. 1024-039-3
Ref Dw,
TURNING BASIN
BISCAYNE BAY
2020-031-7
7/16/24 9:07a
SUBSTITUTED.
BISCAYNE
LOCATION MAP
FORTIN, LEAVY, S KILES, INC.
CONSULTING ENGINEERS, SURVEYORS & MAPPERS
FLORIDA CERTIFICATE OF AUTHORIZATION NUMBER: 00003653
180 Northeast 168th Street / North Miami Beach, Florida 33162
Phone 305-653-4493 / Fax 305-651-7152 / Email fls@flssurvey.com
7/16/24
Scale NOT TO SCALE
Job. No. 240464
Dwg.No. 1024-039-3