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HomeMy WebLinkAboutSubmittal-Third Amendment Easement Agreement Parcels A, B and C-City ManagerL.1 THIRD AMENDMENT EASEMENT AGREEMENT (PARCELS A, B, & C) _ _ THIS THIRD AMENDMENT TO EASEMENT AGREEMENT (PARCELS A, B, & C) ("Third Amendment") is made as of , 2026 by THE CITY OF MIAMI, a municipal corporation of the State of Florida ("City"), to and for the benefit of BH3 IG DEVELOPER LLC, a Delaware lim ited liability company ("BH3"), and, as to their respective Project Interest (as defined below), IS"JANb_ GARDENS DEEP HARBOUR, LLC, a Delaware limited liability company ("Marina T nrtint' f j IG LUXURY LLC, a Delaware limited liability company ("Luxury Tenant"), IG RESIDENCES LLC, a Delaware limited liability company ("Residences Tenant"), IG LIFESTYLE LLC, a Delaware limited liability company ("Lifestyle Tenant"), IG RETAIL LLC, a Delaware limited liability company ("Retail Tenant"), and IG PARKING LLC, a Delaware limited liability company ("Parking Tenant"), and together with Marina Tenant, Luxury Tenant, Residences Tenant, Lifestyle Tenant, and Retail Tenant, collectively, the "Tenants"). RECITALS A. City is the owner of certain upland property on Watson Island located at 888 MacArthur Causeway, Miami, Florida and certain submerged land located adjacent thereto (the "Property"). B. City and Flagstone Island Gardens, LLC, a Delaware limited liability company ("Flagstone"), heretofore entered into that certain Agreement to Enter Ground Lease, dated January 1, 2003, as subsequently amended by the First Amendment dated December 2, 2004, the Second Amendment dated December 8, 2006, and the Third Amendment dated July 30, 2008 to the Agreement to Enter into Ground Lease (collectively, the "Agreement to Enter Into Ground Lease"). C. City and Flagstone heretofore entered into that certain Master Development Agreement, dated April 13, 2020 (as may be amended from time to time, the "MDA"), which replaced and superseded, inter alia, the Agreement to Enter Into Ground Lease, and pursuant to which, and upon the satisfaction of certain conditions as provided therein, City is obligated to grant (and in certain cases has granted) long- term ground leasehold estates on portions of the Property to the Tenants or their predecessors -in -interest, as the case may be (collectively, the "Ground Leases"). D. Pursuant to the Ground Leases and the PSA (as defined below), the Tenants will develop and operate a mixed -use project on the Leased Property (the "Project"). E. City will derive substantial benefits from the development and operation of the Project. F. City is also the owner in fee simple of certain other land located on Watson Island. G. The construction of the Project requires that Tenants be granted certain non-exclusive easements over, across and upon a portion of Watson Island for construction staging access and other purposes. H. City has agreed to grant such easements. I. The City Commission, pursuant to Resolution No. 06-0026, adopted January 12, 2006, authorized the City Manager to execute the grant of a non-exclusive Temporary Construction Easement Agreement (Parcels A, B, & C) dated December 11, 2007, recorded on December 12, 2007 at CFN 2007R1177417 or Book 26102 Pages 2922-2955 in the public records of Miami -Dade County, Florida, (the "Original Easement Agreement") for certain designated upland areas (the "Original Easement Area") which City and Flagstone negotiated, providing for construction use and access to the Project. 1 19148 Submittal -Third Amendment Easement Agreement Parcels A, B and C-City Manager to c�j J. F Section 39 of the Original Easement Agreement authorized the City Manager to amend the Origjnal Easeinent Agreement for temporary uses of the Original Easement Area and the parties 7" acca9a ing7y entered into a First Amendment to Temporary Construction Easement Agreement (Parcels A, LI 7 B, & C) also -dated December 11, 2007, recorded on December 12, 2007 at CFN 2007R1177443 or Book C 26102 Pages '3110-3124 in the public records of Miami -Dade County, Florida, ("First Amendment") in ordWto provide for additional necessary temporary uses of the Original Easement Area. aFlagstone requested that City revise and increase the Original Easement Area to include ad oinintsubmerged area in order for Flagstone to repair a certain abutting existing dock area (together with the Original Easement Area, the "Easement Area", as more particularly described and depicted in Exhibit A-1 attached hereto and incorporated herein by this reference). L. The City Commission pursuant to Resolution No. 08-0584, adopted October 16, 2008, authorized the City Manager amend the Original Easement Agreement and the parties accordingly entered into a Second Amendment to Temporary Construction Easement Agreement (Parcels A, B, & C) dated November 14, 2008, recorded on November 24, 2008 at CFN 2008R0951146 or Book 26662 Pages 0355- 0369 in the public records of Miami -Dade County, Florida, (the "Second Amendment", and together with the Original Easement Agreement and the First Amendment, the "Existing Easement Agreement"). M. City, Flagstone, Marina Tenant, Island Gardens Retail Experience LLC, a Delaware limited liability company ("Retail Experience"), Island Gardens Parking Structures, LLC, a Delaware limited liability company ("Parking Structures"), and Island Gardens Master Association, Inc., a Florida not -for - profit corporation, entered into that certain Amendment and Assignment of External Easements and Dredging Agreement, dated April 13, 2020, which was recorded on November 5, 2020 at CFN 2020R0644283 or Book 32186 Pages 6-22, which, inter alia, amended the Existing Easement Agreement to partially assign the rights thereunder to the Tenants based on their Project Interest. N. On April 12, 2023, BH3, the parent company of Luxury Tenant and Residences Tenant, succeeded to the interests of Flagstone with respect to the Project, including the interests of Flagstone under the MDA and the Existing Easement Agreement. In connection therewith, Flagstone assigned its interest in the Existing Easement Agreement to Lifestyle, Luxury, and Residences, Retail Experience assigned its interest in the Existing Easement Agreement to Retail Tenant, and Parking Structures assigned its interest in the Existing Easement Agreement to Parking Tenant. Also in connection therewith, that certain Amended and Restated Mixed Use Project Declaration dated as of April 12, 2023, was recorded on April 14, 2023 at CFN 2023R0251059 or Book 33665 Pages 3611-3904 in the public records of Miami -Dade County, Florida, and BH3 become the Project Developer and Declarant thereunder, which was subsequently 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"). Unless otherwise defined herein, capitalized terms used herein shall have the meanings given to them in the Project Dec. O. On August 8, 2025, FP IG Developer LLC, a Delaware limited liability company ("FP'), succeeded to certain interests of BH3 with respect to the Project, including becoming the parent company of Lifestyle Tenant, Retail Tenant, and Parking Tenant, and becoming the Project Developer and Declarant pursuant to the Project Dec pursuant to that certain Assignment of Project Developer's and Declarant's Interest in Project Declaration dated August 8, 2025, which was recorded on August 29, 2025 at CFN 20250662573 or Book 34920 Pages 187-191. 2 P. On January 2, 2026, City and IG Luxury LLC, a wholly -owned indirect subsidiary of BH3, entered into an Agreement for Purchase and Sale for a portion of the Property containing approximately 3.2 acres (the "PSA"). In connection with the PSA, City and BH3 agreed to enter into a Community Benefits Agreement (the "CBA") to provide a comprehensive list of the public benefits that have previously been committed to by the Tenants in the various Ground Leases, the Project Dec, the Existing Easement Agreement, and/or other 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. Q. In connection with the PSA and the CBA, BH3 has requested for City to revise the Existing Easement Agreement as further described herein. R. The City Commission pursuant to Resolution No. , adopted , 2026, authorized the City Manager to execute this Third Amendment so that the Existing Easement Agreement and this Third Amendment now collectively constitute the "Easement Agreement' of Parcels A, B, & C. NOW, THEREFORE, in consideration of Ten and No/100 Dollars and other good and valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, the parties agree as follows: 1. Amendment. a. Expanded Waterfront Promenade 1 (Temporary Easement "C"). In exchange for non- exclusive easement rights to and for BH3 (and the other Tenants as to their respective Project Interest) for the uses and purposes described herein in the upland area of Temporary Easement "C" and non-exclusive easement rights for BH3 and Marina Tenant (and the other Tenants as to their respective Project Interest) in the submerged area of Temporary Easement "C" (i.e. located South of Entrance Blvd. extending easterly, as described in official records book 26102, page 2922, official records book 26102, page 3110, and official records book 26662, page 355 and as depicted on Exhibit A-1 and Exhibit A-2 attached hereto), in each case subject to rights reserved to the City as described herein, Temporary Easement "C" is hereby amended to allow for the installation of public utilities benefitting Watson Island, the installation of a new seawall, and for waterfront activation events, uses, gatherings spaces and/or temporary structures, permanent structures permitted in CS (Civic Space) zoning, installation of utilities, and the ongoing maintenance of such areas, provided that any improvements shall conform with City's applicable regulations and standards, including applicable waterfront regulations and standards. BH3 shall be responsible for the installation of said utilities, at no cost to the City, pursuant to any Miami Dade Water & Sewer Agreements entered by BH3. These improvements will add approximately 210 linear feet of additional public waterfront promenade. No permanent structures shall be permitted to be installed by BH3 in the submerged area of Temporary Easement "C" (i.e., seaward of the seawall) that would block access to and use of the adjacent marina without the consent of Marina Tenant. These rights shall be continuing until the expiration (or earlier termination) of the Retail Lease, provided that BH3 shall maintain such upland area of Temporary Easement "C" in good order and condition subject to the reasonable discretion of City. b. Expanded Waterfront Promenade 2 (Temporary Easement "A" and Temporary Easement "B"). In exchange for non-exclusive easement rights to and for BH3 (and the other Tenants as to their respective Project Interest) for the uses and purposes described herein in Temporary Easement "A" and Temporary Easement `B" (a/Ida the "Quad Parcel", as depicted on Exhibit A-1 and Exhibit A-2 attached hereto), in each case subject 3 IL, ..tt to rights reserved to the City as described herein, Temporary Easement "A" and Temporary Easement `B" are hereby amended to include, in addition to the previous committed improvements, infrastructure resiliency improvements and be open to the general public, other activation events, uses, gatherings spaces and/or temporary structures, permanent structures permitted in CS (Civic Space) zoning, installation of utilities and the ongoing maintenance of such areas provided that any improvements shall conform with City's applicable regulations and standards, including applicable waterfront regulations and standards. These rights shall be continuing until the expiration (or earlier termination) of the Retail Lease, provided that BH3 shall maintain Temporary Easement "A" and Temporary Easement `B" in good order and condition subject to the reasonable discretion of City. c , 2. Ratification. The parties hereto hereby ratify, confirm, and adopt the Existing Easement Agreement and acknowledge and agree that (i) the Existing Easement Agreement remains in full force and effect without modification, except as specifically set forth in this Third Amendment, (ii) all Tenants continue to maintain their respective interests in the Easement Agreement (including the easements granted therein) based on their Project Interest and are not waiving any rights with respect thereto, and (iii) as between the Tenants and BH3, the provisions of Section 8 of the Project Dec shall continue to apply to the Easement Agreement (as modified herein). 3. Headings. The captions and headings contained in this Third Amendment are for convenience of reference only and shall not affect the construction of interpretation of this Third Amendment. 4. Amendments. No amendment of any provision of this Third Amendment or the Existing Easement Agreement shall in any event be effective unless it is in writing and signed by the party against whom enforcement is sought. 5. Severability. Any provision of this Third Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision beyond such extent or in any other jurisdiction. It is the intention of the parties to this Third Amendment that if any provision of this Third Amendment is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, the provision shall have the meaning which renders it valid. 6. Binding Effect; Assignments. This Third Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 7. Governing Law. This Third Amendment shall be governed by, and construed in accordance with, the laws of the State of Florida, without application of its conflict of law principles. 8. Entire Easement Agreement. The Existing Easement Agreement, as amended by this Third Amendment, together with all easement agreements executed in connection therewith or otherwise contemplated thereby, embody and constitute the entire understanding among the parties hereto, and all prior or contemporaneous agreements, understandings, representations, and statements, oral or written, with respect thereto are merged therein. 9. Counterparts. This Third Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any party hereto may execute this Third Amendment by signing any such counterpart. 4 [Signatures Appear on Following Page.] „g w Li J �0Cr- IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment as of the date set forth above. Signed, sealed and delivered BH3 IG DEVELOPER LLC in the presence of: Name: Name: By: Name: Title: Signed, sealed and delivered ISLAND GARDENS DEEP HARBOUR, LLC in the presence of: Name: Name: By: Name: Title: Signed, sealed and delivered IG LUXURY LLC in the presence of: Name: Name: 4 i O By: Name: Title: Signed, sealed and delivered IG RESIDENCES LLC in the presence of: Name: Name: By: Name: Title: Signed, sealed and delivered IG LIFESTYLE 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: Signed, sealed and delivered IG PARKING LLC in the presence of: Name: Name: CNI .W.1.." Lid:) („) C'7.4 L. C=1 By: Name: Title: ATTEST: Todd Hannon, City Clerk James Reyes, 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 STATE OF FLORIDA ss: COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this (date) by James Reyes (name of officer or agent) as the City Manager (title of officer or agent) of THE CITY OF MIAMI, a municipal corporation of the State of Florida, on behalf of the City. Notary Public ACKNOWLEDGMENTS STATE OF FLORIDA ss: COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this (date) by (name of officer or agent) on behalf of and as the (title of officer or agent) of ISLAND GARDENS DEEP HARBOUR, 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 ss: COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this (date) by (name of officer or agent) on behalf of and as the (title of officer or agent) 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 STATE OF FLORIDA ss: COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this (date) by (name of officer or agent) on behalf of and as the (title of officer or agent) of IG RESIDENCES LLC, a Delaware limited liability company. He is personally known to me or has produced (type or identification) as identification. ..o tl Nota PulaliL N CMCC STATE OF FLORIDA ss: COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this (date) by (name of officer or agent) on behalf of and as the (title of officer or agent) of IG LIFESTYLE 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 ss: COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this (date) by (name of officer or agent) on behalf of and as the (title of officer or agent) 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 STATE OF FLORIDA ss: COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this (date) by (name of officer or agent) on behalf of and as the (title of officer or agent) of IG PARKING LLC, a Delaware limited liability company. He is personally known to me or has produced (type or identification) as identification. Notary Public %.) Rf 0— N CV O N EXHIBIT A-1 Parcel A, B, & C Property Legal Description [Attached behind] 0 MN. EXHIBIT A-2 Temporary Easement "C" Temporary Easement "A" and Temporary Easement "B" (a/k/a Quad Parcel) [Attached behind]