R7V - Approve Southgate Towers Easement

Resolutions - R7 V

R7 V A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM, AN EASEMENT AGREEMENT WITH SOUTHGATE TOWERS, LLC (GRANTOR), OWNER OF THE PROPERTY LOCATED AT 910 WEST AVENUE; SAID EASEMENT GRANTING THE CITY (GRANTEE) A PERPETUAL NON-EXCLUSIVE EASEMENT FOR THE PUBLIC’S USE OF THE ALREADY CONSTRUCTED BAYWALK, LOCATED ALONG THE WEST PORTION OF THE PROPERTY, IN ACCORDANCE WITH DRB FILE NO. 22945; AND APPROVING THE REIMBURSEMENT OF $195,000, SUBJECT TO APPROPRIATION AND APPROVAL PURSUANT TO AN AMENDMENT TO THE FY 2026 CAPITAL BUDGET AT THE NEXT CITY COMMISSION MEETING, FOR THE INSTALLATION OF A GLASS RAILING, SEPARATING THE PUBLIC BAYWALK FROM THE OWNER’S PROPERTY; AND AUTHORIZING THE CITY MANAGER TO FINALIZE THE EASEMENT AGREEMENT; AND FURTHER, AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE FINAL EASEMENT AGREEMENT. Applicable Area:

COMMISSION MEMORANDUM

RECOMMENDATION

The Administration recommends that the Mayor and City Commission (City Commission) adopt the Resolution.

BACKGROUND/HISTORY

As part of the development and improvements to the property at 910 West Avenue, the property owner offered, proffered, and agreed to grant an easement for a public baywalk along the upland portion at the rear of the site. On March 5, 2013, the project received Design Review Board (DRB) approval, which included the construction of the Baywalk and a specific stipulation that the property owner would grant an easement and be reimbursed for the cost of installing a glass railing/fence along the baywalk in an amount not to exceed $195,000.

On November 23, 2016, the property owner submitted a request for reimbursement for the installation of the glass railing/fence along the baywalk. After researching the matter with the Planning and Budget Departments, it was concluded that no budget line item was ever created for this particular scope of work / re-imbursement. Additionally, it did not appear that the agreement to fund the scope of work identified in the DRB Order ever made its way to the City Commission for budget action. As such, the Administration has no authority to unilaterally fund the amount in question, as the DRB order alone does not provide a budget allocation or authorization to pay.

On December 14, 2016, the City Commission approved a referral to the Finance and Citywide Projects Committee (now FERC) - Discussion and Potential Funding Options for a Public Baywalk Guardrail Located at 900 West Avenue Southgate Towers (Exhibit A). The referral memorandum included, as an Exhibit, the request for reimbursement from the property owner, as well as the DRB approval, which included the stipulations for the easement agreement, that the public

baywalk would be opened concurrently with the baywalk segments to the south, and that the City would reimburse the cost of the glass railing/fence in an amount no to exceed $195,000.

On January 20, 2017, the Finance and Economic Resiliency Committee (FERC) discussed the item and recommended moving the item to the full Commission with a Capital Budget Amendment.

On April 26, 2017, a Capital Budget Amendment proposed an allocation of $195,000 for the reimbursement to Southgate Towers for the Baywalk glass railing (fence). However, the item was not approved and was dual-referred back to FERC and Neighborhood/Community Affairs Committee. The item was not discussed by either committee.

An upland baywalk has been constructed at 910 West Avenue; however, it has not yet been made publicly accessible by the property owner, awaiting the completion of adjacent baywalk segment to the south. Additionally, as stipulated in the DRB Order, the property owner should be reimbursed for the cost associated with the installation of the glass railing/fence.

ANALYSIS

The City Administration and the property owner have been actively engaged in negotiations regarding the terms of the easement agreement for the public use of the pedestrian baywalk “Southgate Baywalk Improvements.“ At present, the easement agreement (Exhibit B) is undergoing legal review by both the City Attorney’s Office and the legal counsel representing the property owner, to ensure all provisions are appropriately addressed and mutually acceptable.

The property owner has advised the City that with the completion of the baywalk to the north, in lieu of the segment to the south, they are willing to open the Southgate Towers baywalk to public use, provided that the reimbursement for the glass railing/fence, as stipulated in the DRB order, is completed and the easement agreement is executed.

The City Administration recommends authorizing the City Manager to negotiate and execute the easement agreement, in substantial form, and approve the funding to reimburse the cost of the installation of the glass railing/fence.

FISCAL IMPACT STATEMENT

The total cost of the glass railing to be reimbursed is $195,000, subject to a future amendment to the FY 2026 Capital Budget.

Does this Ordinance require a Business Impact Estimate? (FOR ORDINANCES ONLY)

If applicable, the Business Impact Estimate (BIE) was published on: See BIE at: https://www.miamibeachfl.gov/city-hall/city-clerk/meeting-notices/

FINANCIAL INFORMATION

Subject to a future capital budget amendment to the FY 2026 Capital Budget.

CONCLUSION

The Administration recommends that the Mayor and City Commission adopt the Resolution.

Applicable Area

South Beach

Was this Agenda Item initially requested by a lobbyist which, as defined in Code Sec. 2-481, includes a principal engaged in lobbying? No

If so, specify the name of lobbyist(s) and principal(s):

Department

Capital Improvement Projects

Sponsor(s)

Commissioner Laura Dominguez

Co-sponsor(s)

Condensed Title

Approve Reimbursement, Southgate Towers Baywalk Glass Railing Installation. (LD) CIP

Previous Action (For City Clerk Use Only)

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Prepared by, or under the supervision of, and Returned to: Ricardo J. Dopico, City Attorney City of Miami Beach Office of the City Attorney, 4 th Floor 1700 Convention Center Drive Miami Beach, FL 33139

EASEMENT AGREEMENT

THIS EASEMENT AGREEMENT ("Agreement") is made and entered into as of the ___ day of ___________, 20____, by and between the CITY OF MIAMI BEACH, a municipal corporation of the State of Florida (the "City"), with an address of 1700 Convention Center Drive, Miami Beach, Florida 33139, and Southgate Towers, LLC, a Delaware limited liability company ("Owner"), having an address of 910 West Avenue, Miami Beach, Florida 33139.

RECITALS:

A. Owner is the owner in fee simple of the residential project located at 910 West Avenue and commonly known as the "Southgate Towers" project, as legally described or depicted in Exhibit “A” attached hereto (the ''Property'').

B. Pursuant to that certain development order under Design Review Board Order dated March 5, 2013, under File No: 22945 recorded April 18, 2013, in Official Records Book 28589, Page 1759 (the “DRB Order”) and subsequent modification No. 22945 recorded October 4, 2013 in Official Records Book 28853, Page 893, as further modified at the October 1, 2024 Design Review Board hearing Application No. 24-1041 (the “2024 DRB Order”), which Design Review Board determination has not been reduced to a written resolution, Owner has agreed to open to the public the existing pedestrian walkway (the “Southgate Baywalk Improvements”) within a certain area of the Property legally described or depicted in Exhibit “B” attached hereto (the "Easement Area"), subject to the terms, conditions, reservations and restrictions set forth herein.

C. Condition No. 4.g of the DRB Order provides for the City’s grant of $195,000.00 (the “Grant”) to reimburse the Owner to “partially fund the construction of a fence separating the public Baywalk from the [Owner’s] property located eastward of the public Baywalk Easement Area” (the “Fence”).

D. The Owner constructed the Southgate Baywalk Improvements within the Easement Area, and has constructed the Fence.

E.

F. Pursuant to the Easement Area Submerged Lands Lease (as defined in paragraph 6.d), the Owner has the requisite rights, title and interest in any portion of the Easement Area located over submerged lands to grant the easements rights contained in this Page 1 of 16

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Agreement, subject to any further clarifications which may be required, as described in paragraph 6.d. The Owner intends to enhance the existing Southgate Baywalk Improvements and Fence at its sole expense by (i) installing video cameras; (ii) replacing the existing gates with new gates, to better secure the existing piers (dock and observation deck) extending perpendicular from the Southgate Baywalk; and (iii) installing locks for the existing gates at the north and south ends of the Southgate Baywalk Improvement (the “Locks”) (collectively, the “Additional Improvements”). The City will likely require installation of automated locks when the entire Baywalk system is open to ensure the gates may be opened and closed in a uniform fashion during Operating Hours as further set forth in this Agreement and may need to replace the Locks with a uniform automated lock system at the City’s expense.

G. The City Commission will consider an appropriation to fund the Grant, which appropriation is a material inducement to open the Easement Area prior to fulfillment of all preconditions in the DRB Order.

NOW, THEREFORE, in consideration of the premises, agreements and covenants set forth hereinafter, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Owner hereby agree that the foregoing recitals are true and correct and further agree as follows:

1. Grant of Easements. Commencing on the Effective Date (as defined in paragraph 3), and pursuant to Owner’s rights, title and interest in the Easement Area, as described in the Recitals, the Owner hereby grants to the City, for the use of the City, its agents, employees, contractors, representatives and licensees and the members of the general public (collectively, the "Easement Beneficiaries"), a permanent, non-exclusive easement through the Easement Area, subject to the terms, conditions, reservations and restrictions set forth below. The Easement Area is improved with the Southgate Baywalk Improvements, a segment of a publicly accessible baywalk planned by the City to extend from 5 th Street to Lincoln Road (the "Baywalk"). The Easement Beneficiaries shall have access to the Easement Area solely from the portions of the Baywalk located directly north and south of, and contiguous to, the Easement Area, specifically including access to the public right-of-ways located directly north of, and contiguous to, the Easement Area. In no event shall the Easement Beneficiaries, by virtue of this Agreement, have access to the Easement Area by, though, across, under or over any portion of the Property; it being agreed that the sole points of access to the Easement Area are the locations noted in the immediately preceding sentence.

2. Easement Area. The "Easement Area'' shall refer to a meandering strip of land that is approximately ten (10') feet in width improved with the Southgate Baywalk Improvements within the portion of the Property located westward of the Fence, as described and depicted in Exhibit B attached hereto, that runs immediately along and parallel to the entire Westernmost boundary of the Property, including the seawall cap, except within the area located approximately between 250.21 feet and 401.37 feet south of the north property line (the “Platform Area”), where the Southgate Baywalk Improvements shift west and along the northern, western, boundaries of the portion of the Owner’s private improvements, comprised of a deck platform projecting west from the western property line into sovereign submerged land. The Easement Area comprises the property east of the existing seawall along the rear of the Property but west of the Fence.

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EXHIBIT B

3. Effective Date. The easements granted herein shall become effective upon the following conditions being met (“Preconditions”): (i) receipt by the Owner of the Grant; (ii) the Owner’s completion of the Additional Improvements or ninety (90) days from the Owner’s receipt of the Grant funds, whichever is first to occur; (iii) the City’s completion of construction of the Baywalk segment located at the street end of 10 th Street and contiguous to the Southgate Baywalk Improvements; and (iv) the issuance of a written resolution memorializing the 2024 DRB Order (the “Effective Date”). Upon the City’s request, Owner agrees to execute a “Notice of Commencement Date of Easement”, to be recorded in the Public Records at Owner’s expense.

4. Use of the Easement Area. The easements granted hereunder shall be for the sole purposes of (i) providing the Easement Beneficiaries with a non-exclusive way of passage through the Easement Area solely for the Permitted Public Uses described in paragraph 4.a. below, and (ii) allowing ingress and egress for police, maintenance/sanitation personnel and/or emergency personnel of the City for the purposes described in (and the City's performance of its obligations under) this Agreement, in each case subject to the terms, conditions and restrictions set forth herein.

a. Permitted Public Uses. Owner and the City acknowledge and agree that the permitted uses of the Easement Area by the Easement Beneficiaries during Operating Hours are as follows: jogging, walking, hiking along the bay, biking (non-motorized vehicles) and fishing; periodic and reasonable respites by the Easement Beneficiaries using the Baywalk to enjoy the view or to rest, subject to changes in the Baywalk Rules and Regulations (as defined in paragraph 6.c) and applicable Laws (“Permitted Public Uses”).

b. Prohibited Public Uses. Owner and the City acknowledge and agree that the following uses of the Easement Area are expressly prohibited: Easement Beneficiaries loitering and consuming alcohol on the Easement Area; Easement Beneficiaries using the Easement Area for destination activities including, but not limited to, picnicking and camping; Easement Beneficiaries and Owner's residents using chairs, tents, or other temporary or permanent furniture during the Operating Hours, as defined in paragraph 4.c. below; dogs not on leashes; operation of motorized vehicles, skateboards, and scooters (except by policing authorities, maintenance/sanitation personnel and/or emergency personnel as contemplated hereunder), subject to changes in the Baywalk Rules and Regulations (as defined in paragraph 6.c) and applicable Laws. It is understood and agreed by the parties that use of the Easement Area by the Easement Beneficiaries is limited to the Permitted Public Uses expressly stated in this Agreement and that no other use by members of the general public shall be implied or construed, irrespective of whether or not such use is expressly prohibited by the terms hereof.

c. Operating Hours. The Easement Area shall be open to the general public every day from sunrise to sunset ("Operating Hours"). Owner has installed an operable fence, gate or other operable barrier (the “Barrier”) on the utmost northern and southern ends of the Easement Area to restrict Easement Beneficiaries access to the Baywalk outside of Operating Hours and for as long as necessary during emergency, maintenance or repair activities that would render usage of the Baywalk a safety risk. The Barrier shall be operated to ensure public access during Operating Hours. The Owner may replace, alter, remove, or improve the Barrier subject to the review and approval of the City staff, which approval shall not be unreasonably withheld or denied, so long as the new Barrier is consistent with the types of Barriers approved by the City to be installed at the other sections of the Baywalk. The City shall pay all expenses associated with the fabrication and installation of automated locks to replace the Locks and thereafter Owner, at its sole cost, shall maintain the Barrier in good and working condition. Page 3 of 16

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Access by the Easement Beneficiaries to the Baywalk, shall only be restricted between sunset and sunrise, and as determined by the City Manager, in the event of an emergency, dangerous condition or other circumstance, including but not limited to, for maintenance and/or repair activities described in paragraph 5, that would render usage of the Baywalk a safety risk. Subject to the above, to the extent that a Barrier is maintained at either the north and south ends of the Southgate Baywalk Improvements, or both, Owner shall neither open the gates later than sunrise, nor close the Barrier before sunset, seven days a week. Temporary closures of the Easement Area during Operating Hours for the purpose of maintenance and repair; or closures of the Easement Area during Operating Hours when there is a Force Majeure Event (as defined in paragraph 13 below); or temporary closures of the Easement Area during Operating Hours pursuant to paragraphs 6.a. or 6.c. of this Agreement, shall not be deemed a breach of this Agreement by Owner. Owner shall provide the City with reasonable advance notice of any scheduled maintenance and repair that will result in a temporary closure of the Easement Area during Operating Hours and shall re-open the Easement Area immediately following the conclusion of any such maintenance or repair. Owner shall also provide the City with notice of any closure of the Easement Area during Operating Hours due to a Force Majeure Event as soon as reasonably practicable under the circumstances.

Any violation of this condition shall be subject to a notice of violation and enforcement by the City's Special Master or any alternative remedy available to the City. Upon completion of a continuous publicly accessible Baywalk from 5 th Street to 10 th Street, the City Commission may adopt uniform rules and regulations concerning hours of operation of the Baywalk, affecting the use of that portion of the Baywalk within the Easement Area identified herein, including but not limited to operating hours set forth in this paragraph (“Baywalk Rules and Regulations”). The installation of new fences or other barriers, which permanently block Easement Beneficiary access to the Baywalk shall be prohibited. The foregoing prohibition shall not prohibit the Owner operating, maintaining, repairing, or replacing the Additional Improvements and/or the Fence, provided that the use of the Baywalk is not interrupted.

5. Maintenance of Easement Area; Improvements. Except as otherwise expressly provided herein, Owner shall, at its sole cost and expense, maintain, repair and replace, in whole or in part, the Easement Area, including any Southgate Baywalk Improvements and the Fence east of the existing seawall, including the access gates and abutting seawall in accordance with all applicable laws, codes, rules, orders, approvals and regulations of Miami- Dade County, the City of Miami Beach and any other governmental or quasi-governmental agency or authority (the “Laws”) with jurisdiction over the Easement Area, and shall keep the Easement Area in good and working condition, reasonable wear and tear excepted. Notwithstanding the foregoing, the City shall be responsible for the maintenance and repair of the Easement Area necessitated by or required as a result of the negligence or willful misconduct of the City, its agents, employees, contractors, or vendors, operators, representatives and licensees (excluding the general public), in its or, their use of the Easement Area pursuant to the terms of this Agreement, or exercise of rights or performance of obligations hereunder. Owner shall establish reserves and procure insurance to accomplish the obligation of maintenance, repair and replacement as delineated herein. Insurance provisions are delineated in paragraph 15. Except for the Additional Improvements, Owner shall not make any new improvements to the Easement Area without the prior written consent of the City Manager, which consent shall not to be unreasonably withheld or delayed Any temporary closures of the Easement Area necessitated by Owner’s repair obligations under this Agreement shall be coordinated with the City in advance and shall only be maintained to the extent necessary, and for as long as necessary, to ensure public safety. In the event that the Page 4 of 16

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City Manager determines that an emergency maintenance, repair or replacement is needed to the Easement Area, and following notice to Owner and Owner failing to diligently pursue the emergency maintenance, repair or replacement within five (5) working days and thereafter diligently pursues to completion of the emergency work within a reasonable period of time as the City Manager determines would be necessary to address a safety risk, not to exceed thirty (30) days, the City shall have the right, but not the obligation, to perform the maintenance, repair or replacement work within the Easement Area and the Owner shall reimburse the City within ten (10) days from receipt of the invoice. The City’s right to self-help shall not be exercised so long as the Owner continues to diligently pursue the maintenance, repair, or replacement and completes the emergency work within a period of thirty (30) days.

6.

City's Obligations.

a. Police. The City shall police the Easement Area in a manner consistent with other sections of the Baywalk owned by the City, or on which the City has obtained rights of access through easement, covenant or otherwise, and which are open to the general public (hereinafter referred to as "publicly accessible baywalks in the City"). Owner agrees to submit legitimate complaints about any alleged noncompliance by the City with this requirement to the City Manager, in writing, for his/her review and appropriate action. If the parties are still unable to resolve disputes regarding the policing of the Easement Area, the parties agree that an independent mutually agreed upon neutral arbitrator will resolve such disputes under American Arbitration Association rules, as is provided in paragraph 10 of this Agreement. If the independent arbitrator concludes that the City has breached its duty to police the Easement Area, Owner shall be temporarily relieved of the obligation to provide public access to the Easement Area until the City's failure to police is remedied to the satisfaction of the arbitrator. The City’s adoption of, and reasonable good faith efforts to, enforce security measures consistent with those used in or on other sections of the publicly accessible baywalk in the City shall be accepted as satisfaction of the City’s obligations under this paragraph 6.a. Any noncompliance by Owner and/or its officers, employees, contractors, residents or authorized guests with any rules, regulations, ordinances or statutes applicable to the Baywalk within the Easement Area shall not be a basis for any legitimate complaint about alleged City noncompliance with, or for temporary closure of the Easement Area pursuant to this paragraph 6.a.

b. Sanitation. The City will, at its expense, provide removal of rubbish from the Easement Area on a twice weekly basis not including fecal matter and vegetative debris that are the responsibility of adjacent property owner as applicable under the City Code. Owner will be responsible for cleaning the Easement Area after any private events that occur during non- Operating Hours.

Rules and Regulations. Following completion of a continuous publicly c. accessible Baywalk from 5 th Street to Lincoln Road, the City Commission may adopt uniform Baywalk Rules and Regulations concerning the hours of operation, the opening and closing of gates and the permitted uses of the Baywalk (including the Baywalk within the Easement Area. In the event of any conflict between such Baywalk Rules and Regulations and applicable Laws, and the provisions of this Agreement, the Baywalk Rules and Regulations and applicable Laws shall take precedence.

d. FDEP licensure. The Platform Area is subject to that certain Sovereign Submerged Lands Lease recorded in Official Records Book 33402 at Page 2762 of the Public Records of Miami-Dade County, Florida, as may be modified or extended from time to time (the

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“Submerged Lands Lease”). To the extent that the easements described herein are deemed a change to the approved use of the leased premises or of the riparian uplands, Owner shall file the required application, and the City shall cooperate and support the Owner’s application to modify the Submerged Lands Lease as needed in Owner’s reasonable discretion, including execution of documents deemed necessary by the Owner to obtain approval and payment of any application fees which may be required by the governmental agency with jurisdiction. The Owner shall use commercially reasonable efforts to obtain any necessary modification of the Submerged Lands Lease; however, the City acknowledges that such modification is ultimately subject to approval by the governmental agency with jurisdiction. To the extent an amendment to the Submerged Land Lease is either (a) unacceptable to such governmental agency or (b) acceptable to the governmental agency but conflicts with the terms of this Agreement, this Agreement shall be deemed amended to conform with the amended Submerged Lands Lease automatically, without further action, upon the execution of such amendment to the Submerged Lands Lease. Any application, either current or future, for the reconstruction, construction, alteration, renovation, or expansion of any water dependent structure west of the seawall of the Property and/or the Platform Area, including, but not limited to docks, piers, platforms, davits and mooring piles, shall also include a public Baywalk to ensure the continuance of the Baywalk within the Easement Areas (the “Modified Baywalk Improvements”), which Modified Baywalk Improvements shall run the entire length along and parallel to the entire Westernmost boundary of the Property, including the seawall cap, except within the Platform Area or any area where the Owner is authorized to construct a seawall and other improvements, where the Modified Baywalk Improvements will shift west and along the northern, western, boundaries of the portion of the Owner’s improvements projecting west from the western property line into sovereign submerged land. The dimensions, material, access points, and design of such Modified Baywalk Improvements, shall be subject to the prior review and written approval of the City Manager. To build the approved Modified Baywalk Improvements within the Easement Area, and towards the existing dock area and waters under the jurisdiction of FDEP, Owner agrees to execute any necessary applications or authorizations with the Florida Department of Environmental Protection, Division of State Lands, and with any other applicable state, county, or local administrative agencies to modify any licensure to include the Baywalk, as an authorized extension, or authorized amendment, to the Submerged Lands Lease. Each party shall make a good faith effort to obtain all required permits, which shall include a joint application to the FDEP for any approved Modified Baywalk Improvements.

7. Signage. Owner shall post signs at all access points to the Easement Area that display the Operating Hours and summarize the use restrictions described in this Agreement as contemplated in this Agreement.

Reservation. Owner hereby reserves those rights of ownership it has in and to 8. the Easement Area which are not inconsistent with the easements and rights granted herein, including, without limitation, the right to grant further easements on, over and/or across such area, and all other uses not interfering with the uses permitted herein.

9. City's Liability. The City, shall be liable and responsible, to the extent permitted by law, for any costs, liabilities, claims or damages, including, without limitation, reasonable attorneys’ fees and disbursements at the trtial level and all levels of appeal, relating to death of or injury to persons, or loss of or damage to property, incurred by Owner, and resulting from, arising out of, or incurred in connection with, use of the Esement Area by the Easement Beneficiaries in connection with the easements herein granted. In such event, the City shall be Page 6 of 16

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entitled to select counsel of the City’s choice, which may include in-house Assistant City Attorneys. Notwithstanding anything contained herein to the contrary, the City shall not be obligated or liable to Owner or any third parties for any costs, liabilities, expenses, losses, claims or damages, including, without limitation, reasonable attorneys’ fees or disbursements at the trial level or appellate levels, in respect of third party claims relating to death of or injury to persons, or losss of, or damage to, property, and resulting from, arising out of or incurred in connection with use of the Easement Area, for amounts in excess of those limitations on the statutory wwaiver of sovereign immunity provided under Florida Statutes Section 768.28 (or any successor statute thereto), or in respect of claims liability arising from the negligence or willful acts of the Owner, its officers, invitees, lessees, employees, agents, licensees or contractors, or claims or liability arising from activities that occur from sunset to sunrise (while the Baywalk within the Easement Area is closed to the public in accordance with paragraph 4.c. above). Nothing contained in this paragraph 9 or elsewhere in this Agreement is in any way intended to be a waiver of the limitations on the City's liability to third parties as set forth in Section 768.28, Florida Statutes; and further, the limitations under said statutory provision shall not apply to the City's contractual obligations to provide a defense, as set forth in this paragraph 9.

10. Enforcement. Except for the City’s self-help rights with respect to Owner’s maintenance obligations, as set forth in paragraph 5, no action to enforce this Agreement through arbitration or through filing suit shall be pursued by any party to this Agreement absent prior written notice of the alleged breach, providing an opportunity to cure, which shall be no less than 60 days in length. If the alleged breach is not cured to the satisfaction of the complaining party within such sixty (60) day period, the parties shall attempt in good faith to mediate the dispute. As to paragraphs 6.a. and 6.c. of this Agreement, when and if mediation fails, the sole remedy for such a dispute shall be binding arbitration. The dispute shall be administered in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association ("AAA") and Florida substantive law shall apply. The parties shall attempt to designate one neutral arbitrator from the AAA or elsewhere. If they are unable to do so within 30 days after written demand therefor, then the AAA shall designate a neutral arbitrator. No arbitration hearing may proceed without a representative of all parties present. In the event the AAA's expedited procedures are used, notice by telephone must be supplemented immediately by facsimile or electronic mail. No dispute shall be resolved on documents alone except by agreement between the parties. The arbitration shall be final and binding, and enforceable in a Court with jurisdiction in Miami-Dade County, Florida. The arbitrator shall provide a written explanation of the basis of any award. The arbitrator shall award reasonable attorneys' fees (including but not limited to those of in- house counsel, or outside special counsel to the City) and costs to the substantially prevailing party and charge the cost of arbitration to the party which is not the substantially prevailing party. For all other provisions of this Agreement, when and if mediation fails, enforcement shall be with a Court of competent jurisdiction in and for Miami-Dade County, seeking enforcement in equity or for damages, unless City and Owner agree in writing to utilize arbitration.

11. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon Owner, and its successors and assigns, except that Owner or such successor or assignee, as the case may be, shall be released from all future obligations hereunder upon conveyance of its interest in the Property; provided, however, that any such transferee of Owner or its successor or assignee, as the case may be, shall be bound by all terms and conditions of this Agreement. The easements hereby granted, and the requirements herein contained are intended as, and shall be, covenants running with the land with respect to and binding on the Property. This Agreement shall inure to the benefit of and be binding upon Page 7 of 16

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the City, and the City shall not be permitted to assign, transfer or convey all or any part of its rights and interests under this Agreement (including its rights and interests in and to the easements granted hereunder), except to a successor municipal corporation; provided, however, that nothing herein shall be deemed a limitation on the City's right to permit the Easement Beneficiaries to use the Easement Area, subject to and in accordance with the terms of this Agreement. 12. Amendments; Termination. This Agreement may not be amended, modified or terminated except by written agreement of the City and all of the then fee owner(s) of the Property, and the holders of any mortgages of record encumbering same, provided that with respect to any portion of the Easement Area for which a condominium, property owner's or master association then exists, the written agreement of such association (and its mortgagee, if any) shall be required in lieu of the fee owner(s) thereof and their mortgagees. No modification or amendment of this Agreement shall be effective unless in writing and recorded in the Public Records of Miami-Dade County, Florida.

13. Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, epidemic, acts of God, inability to obtain labor or materials or reasonable substitutes therefor, riot, civil commotion, fire or other casualty, and other causes beyond the reasonable control of the party obligated to perform (each such event is referred to herein as a "Force Majeure Event"), excluding the financial inability of such party to perform, shall excuse the performance by such party for a period of time equal to any such period of prevention, delay or stoppage. Any party seeking to invoke this paragraph shall provide written notice to the other party as soon as reasonably practicable under the circumstances.

14. No Warranties; As-Is. The Owner is not making and has not made any representations or warranties, express or implied, as to the Easement Area, including but not limited to, title (other than Owner’s rights, title and interest described in the Recitals), survey, physical condition, suitability or fitness for any particular purpose, value, or condition, or the presence or absence of hazardous substances. The City acknowledges that it has relied solely on its own inspections and investigations of the Easement Area in its determination of whether to accept this Easement. As a material part of the consideration of this Easement, the City agrees to accept the Easement Area in its “As Is” and “Where Is” condition, without any representations or warranties.

Miscellaneous.

15.

a. Closures. No breach of the terms set forth in this Agreement shall result in the closure or reverter of the public access to the Easement Area provided for herein, except for temporary closure as provided in paragraphs 6.a. and 6.c. above.

b. Counterparts. This Agreement may be executed in any number of counterparts and by the separate parties hereto in separate counterparts, each of which shall be deemed an original, but all of which (when taken together) shall constitute one and the same instrument.

Construction. Reference to any paragraph, section, exhibit, or subpart c. thereof, unless otherwise provided, shall refer to this Agreement. In construing this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, and reference to any particular gender shall be held to include every other and all genders. Use of the term "including" shall mean "including, without limitation". Each of the parties hereto and their counsel have reviewed and revised, or requested revisions to, this Agreement, and the Page 8 of 16

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usual rule of construction that any ambiguities are to be resolved against the drafting party shall be inapplicable in the construction and interpretation of this Agreement and any amendments or exhibits to this Agreement.

Titles of Paragraphs and Sections. The titles of the several parts, d. paragraphs and sections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions.

e. Estoppel Certificates. Upon the prior written request of either party, the other party hereto shall furnish the requesting party an estoppel certificate reasonably satisfactory to the requesting party. f. Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered by hand, sent by recognized overnight courier (such as Federal Express) or mailed by certified or registered mail, return receipt requested, in a postage prepaid envelope, and addressed as follows:

If to the City at:

With a copy to:

If to the Owner:

With a copy to:

Notices personally delivered or sent by overnight courier shall be deemed given on the date of delivery and notices mailed in accordance with the foregoing (certified or registered mail) shall be deemed given on the date of delivery. The parties may modify the above referenced addresses upon written notice to the other party.

EXHIBIT B

City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Manager

City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Attn: City Attorney Tel: 305-673-7000 Fax: 305-673-7002 RicardoDopico@miamibeachfl.gov

Property Manager Southgate Towers LLLP 910 West Avenue Miami Beach, FL 33139

Dan Hooks, Esq. Apartment Income REIT Corp (AIR Communities)

4582 S ULSTER ST SUITE 1700 DENVER, CO 80237

daniel.hooks@aircommunities.com

303-757-8101

Page 9 of 16

g. Governing Laws. The laws of the State of Florida shall govern the interpretation, validity, performance and enforcement of this Agreement. Venue for any action brought hereunder shall be proper exclusively in Miami-Dade County, Florida.

Exhibits. All of the Exhibits attached to this Agreement are h. incorporated in, and made a part of, this Agreement.

INSURANCE.

16.

Owner’s Insurance. Owner shall provide to City certificates of insurance evidencing that Owner has acquired the following insurance coverages for the Property and the Easement Area. Owner shall at all times maintain at its sole cost the following insurance:

(1) All risks property insurance, containing a waiver of subrogation rights which City’s insurers may have against Owner and against those for whom Owner is in law responsible including, without limitation, its directors, officers, agents, and employees, and (except with respect to Owner’s chattels) incorporating a standard Florida mortgagee endorsement (without contribution). Such insurance shall insure the property contained within the Easement Area in an amount not less than the full replacement cost thereof (new), with such cost to be adjusted no less than annually. Such policy shall incluce the City as an additional insured.

(2) Comprehensive general liability insurance. Such policy shall contain inclusive limits per occurrence of not less than $2,000,000; provide for severability of interests; and include as additional insured the City and its affiliates.

(3) any other form of insurance which the City, acting reasonably, requires from time to time in form, in amounts, and for risks against which a prudent owner would insurance, but in any event not less than that carried by owners of comparable properties or businesses in Miami-Dade County, Florida.(4) All policies referred to above shall: (i) be taken out with insurers licensed to do business in Florida; (iii) be noncontributing with, and shall apply only as primary and not as excess to any other insurance available to City; (iv) contain an undertaking by the insurers to notify City by certified mail not less than thirty (30) calendar days prior to any material change, cancellation or termination, and (v) with respect to paragraph (a)(1), contain replacement cost, demolition cost, and increased cost of construction endorsements. Certificates of insurance, if required by the City, copies of such insurance policies certified by an authorized officer of Owner's insurer as being complete and current, shall be delivered to the City promptly upon request. If Owner fails to take out or to keep in force any insurance referred to in this paragraph, and Owner does not commence and continue to diligently cure such default within two (2) business days and secure the required insurance within fifteen (15) business days after written notice by the City to Owner specifying the nature of such default, then the City has the right, without assuming any obligation in connection therewith, to

EXHIBIT B

10

EXHIBIT B

effect such insurance at the sole cost of Owner and all outlays by City shall be paid by Owner to City without prejudice to any other rights or remedies of the City under this Agreement. Owner shall not keep or use on the Premises any article which may be prohibited by any fire or casualty insurance policy in force from time to time covering the Property and the Easement Area.

(5) In addition, any contractor performing work within or around the Easement Area shall maintain at all times during the course of the work hereunder) workers' compensation insurance to cover full liability under workers' compensation laws of the State of Florida with employers' liability coverage; comprehensive general liability insurance for the hazards of operations, independent contractors, products and completed operations (for two (2) years after the date of acceptance of the work); and contractual liability specifically covering the indemnification provision in the construction contract, such comprehensive general liability to include broad form property damage and afford coverage for explosion, collapse and underground hazards, and "personal injury" liability insurance and an endorsement providing that the insurance afforded under the contractor's policy is primary insurance as respects City and Owner and that any other insurance maintained by City or Owner is excess and non-contributing with the insurance required hereunder, provided that such insurance may be written through primary or umbrella insurance policies with a minimum policy limit of $2,000,000.00. City and Owner are to be included as an additional insured for insurance coverages required of the general contractor.

[The remainder of this page is intentionally left blank.]

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IN WITNESS WHEREOF, the Grantor herein has caused these presents to be executed in its name on the day and year first above written.

SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF:

__________________________ Signature __________________________ Print Name __________________________ Address __________________________

__________________________ Signature __________________________ Print Name __________________________ Address __________________________

STATE OF FLORIDA

)

) SS: COUNTY OF MIAMI-DADE )

The forgoing instrument was acknowledged before me by means of ___ physical presence or ___ online notarization this ____ day of ____________, 20__, by ___________________, as Authorized Signatory of SOUTHGATE TOWERS, LLC, a Delaware limited liability company, on behalf of said corporation, who is personally known to me or produced _______________________ as identification.

My Commission Expires:

EXHIBIT B

SOUTHGATE TOWERS, LLC, a Delaware limited liability company

By:__________________________

Name:_______________________ ____________________________ Title: ____________________________ Address: _____________________ _____________________________

____________________________ Print Name: Notary Public, State of Florida [NOTARIAL SEAL]

12

IN WITNESS WHEREOF, the Grantee herein has caused these presents to be executed in its name on the day and year first above written.

SIGNED, SEALED AND DELIVERED IN THE PRESENCE OF:

__________________________ Signature __________________________ Print Name Address: 1700 Convention Center Drive, Miami Beach, FL 33139

__________________________ Signature __________________________ Print Name Address: 1700 Convention Center Drive, Miami Beach, FL 33139

STATE OF FLORIDA

COUNTY OF MIAMI-DADE

EXHIBIT B

CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida By:__________________________ Name: Eric T. Carpenter_________ Title: _City Manager_____________ Address: 1700 Convention Center Dr. Miami Beach, Florida 33139

ATTEST:

_____________________________ Signature Rafael E. Granado, City Clerk_____ Address: 1700 Convention Center Dr. Miami Beach, Florida 33139

) ) SS: )

The forgoing instrument was acknowledged before me by means of ___ physical presence or ___ online notarization this ___ day of __________, 2025, by Eric T. Carpenter, as City Manager, and Rafael E. Granado, as City Clerk, of the CITY OF MIAMI BEACH, FLORIDA, a municipal corporation of the State of Florida, on behalf of said municipal corporation, who is personally known to me or produced ______________________________ as identification.

____________________________ Print Name: Notary Public, State of Florida [NOTARIAL SEAL]

My Commission Expires:

13

EXHIBIT A

EXHIBIT B

Lots 8, 9, 10, 11, 12, 13, 14, and 15, of Block 3, of Fleetwood Subdivision Amended, according to the Plat thereof, recorded in Plat Book 28, at Page 34, of the Public Records of Miami-Dade County, Florida.

LOCATION OF EASEMENT AREA

EXHIBIT B-1 Sketch of Easement Area

EXHIBIT B

EXHIBIT B

EXHIBIT B-2

LEGAL DESCRIPTION OF EASEMENT AREA

A PORTION OF LOTS 11, 12, 13, 14, 16, 17 & 18, BLOCK 1, AMENDED PLAT FLEETWOOD SUBDIVISION, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 28, PAGE 34, OF THE PUBLIC RECORDS OF MIAMI-DADE COUNTY, FLORIDA, TOGETHER WITH A PORTION OF BISCAYNE BAY LYING WESTERLY OF SAID BLOCK 1, DESCRIBED AS FOLLOWS:

BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 11; THENCE SOUTH 88°03'29" WEST ALONG THE WESTERLY EXTENSION OFTHE SOUTH BOUNDARY OF SAID LOT 11, A DISTANCE OF 4.00 FEET; THENCE NORTH 04°34'30" WEST ALONG A LINE LYING 10FEET WEST OF AND PARALLEL WITH, WHEN MEASURED AT RIGHT ANGLES TO A WEST FACE OF AN EXISTING CONCRETE RETAINING WALL, A DISTANCE OF 243.41 FEET; THENCE SOUTH 85°20'06" WEST ALONG A LINE LYING 10 FEET SOUTH OF ANDPARALLEL WITH, WHEN MEASURED AT RIGHT ANGLES TO, A SOUTH FACE OF SAID RETAINING WALL, A DISTANCE OF 24.52 FEET; THENCE NORTH 04°39'38" WEST ALONG A LINE LYING 10 FEET WEST OF AND PARALLEL WITH, WHEN MEASURED ATRIGHT ANGLES TO A WEST FACE OF SAID RETAINING WALL, A DISTANCE OF 151.16 FEET; THENCE NORTH 84°58'54" EASTALONG A LINE LYING 10 FEET NORTH OF AND PARALLEL WITH, WHEN MEASURED AT RIGHT ANGLES TO, A NORTH FACE OF SAID RETAINING WALL, A DISTANCE OF 24.64 FEET; THENCE NORTH 04°01'23" WEST ALONG A LINE LYING 10 FEET WEST OFAND PARALLEL WITH, WHEN MEASURED AT RIGHT ANGLES TO, A WEST FACE OF SAID RETAINING WALL, A DISTANCE OF 250.21 FEET TO A POINT ON THE WESTERLY EXTENSION OF THE NORTH BOUNDARY OF SAID BLOCK 1; THENCE NORTH 88°00'35" EASTALONG SAID WESTERLY EXTENSION OF SAID NORTH BOUNDARY, A DISTANCE OF 3.42 FEET TO THE NORTHWEST CORNER OF SAID BLOCK 1, SAID POINT ALSO BEING THE NORTHWEST CORNER OF SAID LOT 18; THENCE NORTH 88°00'35" EAST ALONGSAID NORTH BOUNDARY, A DISTANCE OF 6.59 FEET; THENCE SOUTH 04°01'23" EAST ALONG A WEST FACE OF SAID RETAININGWALL, A DISTANCE OF 259.68 FEET; THENCE SOUTH 84°58'54" WEST ALONG A NORTH FACE OF SAID RETAINING WALL, ADISTANCE OF 24.53 FEET; THENCE SOUTH 04°39'38" EAST ALONG A WEST FACE OF SAID RETAINING WALL, A DISTANCE OF131.22 FEET; THENCE NORTH 85°20'06" EAST ALONG SAID SOUTH FACE OF SAID RETAINING WALL, A DISTANCE OF 24.54 FEET;THENCE SOUTH 04°34'30" EAST, ALONG A WEST FACE OF SAID RETAINING WALL, A DISTANCE OF 253.89 FEET TO A POINT ONSAID SOUTH BOUNDARY OF SAID LOT 11; THENCE SOUTH 88°03'29" WEST ALONG SAID SOUTH BOUNDARY, A DISTANCE OF 6.01FEET TO THE POINT OF BEGINNING.

SAID LANDS SITUATE IN THE CITY OF MIAMI BEACH, MIAMI-DADE COUNTY, FLORIDA. CONTAINING 6,939 SQUARE FEET OR (0.159 ACRES MORE OR LESS).

EXHIBIT B

RESOLUTION NO. _ _ _ _ _ _

A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM, AN EASEMENT AGREEMENT WITH SOUTHGATE TOWERS, LLC ("GRANTOR"), OWNER OF THE PROPERTY LOCATED AT 910 WEST AVENUE (THE "PROPERTY"); SAID AGREEMENT GRANTING THE CITY ("GRANTEE") A PERPETUAL NON-EXCLUSIVE EASEMENT FOR THE PUBLIC'S USE OF THE ALREADY CONSTRUCTED BAYWALK, LOCATED ALONG THE WEST PORTION OF THE PROPERTY, IN ACCORDANCE WITH ORB FILE NO. 22945; AND APPROVING THE REIMBURSEMENT OF $195,000, SUBJECT TO APPROPRIATION AND APPROVAL PURSUANT TO AN AMENDMENT TO THE FY 2026 CAPITAL BUDGET AT THE NEXT CITY COMMISSION MEETING, FOR THE INSTALLATION OF A GLASS RAILING, SEPARATING THE PUBLIC BA YWALK FROM THE OWNER'S PROPERTY; AND AUTHORIZING THE CITY MANAGER TO FINALIZE THE EASEMENT AGREEMENT; AND FURTHER AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE FINAL EASEMENT AGREEMENT.

WHEREAS, as part of the development and improvements to their property at 910 West Avenue (the "Property"), Southgate Towers, LLC (the "Owner'' or "Granter") offered, proffered, and agreed to grant an easement in favor of the public for a Baywalk along the upland portion at the rear of the Property (the "Public Baywalk"); and

WHEREAS, on March 5, 2013, pursuant to that certain Order of the Design Review Board ("ORB"), File No. 22945 (the "ORB Approval"), the project received approval, which included the following stipulations:

i.

That Owner would grant an easement in favor of the public over the Public Baywalk concurrently with the completion of, and public accessibility to, the portion of the Baywalk located to the south; and

ii.

That the City would reimburse the cost of the glass railing/fence separating the Public Baywalk from Owner's property in an amount not to exceed $195,000; and

WHEREAS, on November 23, 2016, Owner submitted a request for reimbursement for the installation of the glass railing/fence along the Public Baywalk pursuant to that certain stipulation of the ORB Approval ; and

WHEREAS, the Administration will only fund the reimbursement for the scope of work identified and stipulated in the ORB Approval if authorized by the City Commission, at its sole discretion; and

WHEREAS, no appropriations have previously been made to accomplish this reimbursement; and

WHEREAS, on December 14, 2016, the City Commission approved a referral to the Finance and Citywide Projects Committee (now FERC), entitled "Discussion and Potential Funding Options for a Public Baywalk Guardrail Located at 900 West Avenue Southgate Towers," to consider and make a recommendation for the request for reimbursement from Owner under the ORB Approval; and

WHEREAS, on January 20, 2017, the Finance and Economic Resiliency Committee ("FERC'') discussed the item and recommended moving the item to the full City Commission with a Capital Budget Amendment allocating $195,000 for the reimbursement to Owner for the Public Baywalk glass railing/fence; and

WHEREAS, on April 26, 2017, the City Commission did not accept FERC's recommended proposed Capital Budget Amendment and instead referred the item back to FERC and the Neighborhood/Community Affairs Committee ("NCAC"), where no further discussion took place by either committee; and

WHEREAS, the Public Baywalk has been constructed along the upland portion at the rear of the Property, but has not yet been made publicly accessible by Owner; and

WHEREAS, Owner has advised the City that with the completion of the Baywalk to the north, in lieu of the segment to the south, Owner is willing to grant an easement in favor of the public over the Public Baywalk at the Property, provided that the reimbursement for the glass railing/fence, as stipulated in the ORB Approval, is completed and an Easement Agreement is executed; and

WHEREAS, the City Administration recommends approving, in substantial form, the Easement Agreement attached to the City Commission Memorandum accompanying this Resolution , contingent upon the Administration securing the requisite funding appropriation and approval pursuant to an amendment to the FY 2026 Capital Budget for the cost of the installation of the glass railing/fence, consistent with the ORB Approval stipulation; and authorizing the City Manager to negotiate and execute the final Easement Agreement.

NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the Mayor and City Commission hereby approve, in substantial form, an Easement Agreement with Southgate Towers, LLC, ("Grantor"), owner of the property located at 91 O West Avenue (the "Property"); said Agreement granting the City ("Grantee") a perpetual non-exclusive easement for the public's use of the already constructed Baywalk, located along the west portion of the Property, in accordance with ORB File No. 22945; and approve the reimbursement of $195,000, subject to the appropriation and approval of the City Commission pursuant to an amendment to the FY 2026 Capital Budget at the next City Commission meeting, for the installation of a glass railing separating the Public Baywalk from Owner's property; and authorize the City Manager to finalize the Easement Agreement; and further authorize the City Manager and City Clerk to execute the final Easement Agreement.

PASSED and ADOPTED this _ _ day of _ _ __ _ _ , 2025.

ATTEST:

Steven Meiner, Mayor

Rafael E. Granado, City Clerk APPROVED AS TO FORM AND LANGUAGE & FO ECUTION

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Date