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HomeMy WebLinkAboutExhibit CLOCATION: 249 NW 6 STREET MIAMI, FLORIDA 33136 FOLIO No.: 01-0105-050-1120 Prepared by and return recorded copy to: City of Miami Department of Resilience and Public Works Attention: Director, Alan M. Dodd, P.E. 444 SW 2nd Avenue, 8th Floor Miami, FL 33130-1910 COVENANT RUNNING WITH THE LAND "COVENANT" THIS COVENANT made and entered into this day of 2021, by and between Block 55 Owner, LLC, a Florida limited liability company, (together with its successors and assigns, hereinafter called COVENANTOR) and the CITY OF MIAMI, FLORIDA, a municipal corporation of the State of Florida, located in Miami -Dade County, hereinafter called CITY; and WHEREAS, COVENANTOR is the fee OWNER of. See attached Exhibit "A" containing a legal description of the property (hereinafter called PROPERTY); and WHEREAS, COVENANTOR has requested permission from CITY to construct and maintain nonstandard improvements as further depicted on page HS-1 of the Warrant No. PZ-19-2545 Substantial Compliance Final Determination stamped approved by the City of Miami on April 5, 2021, attached as Exhibit "B" (hereinafter collectively called "IMPROVEMENTS") within the public right- of-way on NW 7 Street between NW 2 Avenue and NW 3rd Avenue, adjacent to PROPERTY; and NOW THEREFORE, in consideration of the permission by CITY, which is hereby granted, to allow the construction and maintenance of the IMPROVEMENTS within the dedicated public right of way by COVENANTOR and in the further consideration of the premises, COVENANTOR does hereby covenant and agree that COVENANTOR shall provide maintenance of the IMPROVEMENTS for a period of thirty (30) years. Indemnity. COVENANTOR shall indemnify, defend and save CITY, its officers and employees, harmless from and against any and all claims, liability, losses and causes of action, of 1 LOCATION: 249 NW 6 STREET MIAMI, FLORIDA 33136 FOLIO No.: 01-0105-050-1120 any nature whatsoever that may arise out of the granting of this Covenant or out of COVENANTOR'S activities under this Covenant, including all other acts or omissions to act on the part of COVENANTOR or any person acting for or on COVENANTOR'S behalf, and from and against any orders, judgments or decrees that may be entered, and from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such claims or in the investigation thereof or against, any civil actions, statutory or similar claims, injuries or damages arising or resulting from the permitted work or use of the right of way. Insurance. COVENANTOR shall keep in full force and effect, at all times during the exercise of this Covenant, a commercial general liability policy of insurance of at least $1,000,000 per occurrence and $2,000,000 aggregate for bodily injury, including death, and property damage. The certificate of insurance should afford coverage for premises and operations liability, products and completed operations, personal and advertising injury liability, and any other endorsements pertinent to the scope of work. The insurance should be primary and non- contributory. The insurance shall be subject to the approval of the CITY's Risk Manager and the CITY Attorney. The insurance policy shall be procured and premiums paid by COVENANTOR. The effective date of the policy shall be prior to or on the effective date of the Covenant, and the policy term or any renewals thereof shall remain in effect for the term of the Covenant. The insurance carrier for the policy must be rated no less than A- as to management and no less than Class (V) as to strength by the latest edition of Best's Insurance Guide and must be approved by the CITY's Risk Manager. CITY shall be listed as Additional Insured under the policy. Proof of insurance shall be supplied to the satisfaction of CITY prior to the issuance of any permits. A Certificate of Insurance bearing CITY as "Additional Insured" shall in no way relieve COVENANTOR of the obligation to add CITY as "Additional Insured" to the actual insurance policy. The insurance policy shall provide, 2 LOCATION: 249 NW 6 STREET MIAMI, FLORIDA 33136 FOLIO No.: 01-0105-050-1120 to the extent available from the applicable insurance company, that CITY be given at least thirty (30) days advance written notice of any material changes, cancellation or non -renewal notification of any policy and, in the event of such material change, cancellation or non -renewal notification, COVENANTOR shall immediately replace said policy with another policy to the satisfaction of CITY with the receipt of a certificate of insurance for such policy by CITY at least ten (10) days prior to the effective date of the material changes, cancellation or non -renewal of any policy. In the event that CITY is not in possession of same by such date, then CITY shall have the right to immediately secure a similar insurance policy in its name with the total cost of the premium and all monies that may become due during the term of the Covenant being charged to COVENANTOR and CITY shall have the right to declare and establish said costs as a lien on the PROPERTY of COVENANTOR, enforced as any lien provided for under the statutes of the State of Florida. COVENANTOR agrees to increase from time to time, as required by the City's Code, the limits of the comprehensive liability insurance policy required to be provided pursuant to this Covenant, upon the written request of CITY. It is expressly understood and agreed that this COVENANT touches and concerns the PROPERTY, and shall be binding upon COVENANTOR, and also upon grantees, heirs, successors -in -interest or assigns of COVENANTOR, and shall be a condition -implied in any conveyance or other instrument affecting the title to the aforesaid property or any portion thereof. Notice. Any notice, request, demand, approval or consent given, or required to be given, under this Covenant shall be in writing and shall be deemed as having been given when mailed by United States registered or certified mail (return receipt requested), postage paid, to the other parties at the addresses stated below or at the last changed address given by the party to be notified as hereinafter specified: 3 LOCATION: 249 NW 6 STREET MIAMI, FLORIDA 33136 FOLIO No.: 01-0105-050-1120 COVENANTOR: Block 55 Owner, LLC Attention: Michael Swerdlow 2901 Florida Avenue Coconut Grove, FL 33133 CITY THE CITY OF MIAMI Attention: Director, Department of Resilience and Public Works 444 S.W. 2nd Avenue, 8' Floor Miami, Florida 33130 City Authority. COVENANTOR herein expressly acknowledges that (a) permission granted by the CITY to construct the IMPROVEMENTS on CITY public right of way is solely for the limited purposes set forth herein and does not constitute a lease, (b) the CITY retains dominion, possession and control of the CITY public right of way, and (c) COVENANTOR does not and shall not claim at any time any interest or estate of any kind or extent whatsoever in the CITY public right of way by virtue of its use hereunder or by virtue of any expenditures incurred in connection herewith. Enforcement. (a) In the event COVENANTOR or its successors or assigns fails in the reasonable discretion of the CITY Director of the Department of Public Works to maintain the IMPROVEMENTS such that IMPROVEMENTS become a hazard to the health, welfare or safety of the general public, the CITY shall give COVENANTOR written notice of such failure via certified mail, return receipt requested, and COVENANTOR shall within sixty (60) calendar days from receipt of such notice, abate such hazard, if and as applicable either by (1) restoring the IMPROVEMENTS, or any part thereof, to a safe condition reasonably satisfactory to the CITY, or (ii) removing the IMPROVEMENTS, or any part thereof, and restoring the public right of way to current CITY standards at no cost or expense to the CITY. El LOCATION: 249 NW 6 STREET MIAMI, FLORIDA 33136 FOLIO No.: 01-0105-050-1120 (b) In the event COVENANTOR or its successors or assigns fails to abate any noticed hazard, if and as applicable, within the specified time set forth in Section (a) above, the CITY may abate such hazard, if and as applicable, by removing the offending IMPROVEMENTS. (c) COVENANTOR agrees not to pursue any legal remedy against the CITY for any damage, consequential or otherwise, to non -offending IMPROVEMENTS, or any part thereof, in connection with the CITY enforcement of its rights set forth in Section (b) above, except to the extent such damage is caused by the gross negligence, bad faith or willful misconduct of the CITY or any of its employees, agents, licensees, permittees, contractors or representatives. (d) Without limiting any of the terms of this Section, the terms of this Agreement may be enforced by the CITY and/or COVENANTOR by injunctive relief and any other available remedies. By way of example, and not limitation, COVENANTOR shall be entitled to enjoin any activity or use of the right of way that is inconsistent with the rights granted to COVENANTOR pursuant hereto. Modification. This Agreement cannot be modified or terminated except by written agreement executed by the parties hereto. Miscellaneous. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. The invalidity of any provision of this Agreement shall not affect the validity of any other provision of this Agreement. This Agreement supersedes all prior agreements, written or oral, relating to the subject matter hereof. This Agreement shall be governed by and in accordance with the laws of the State of Florida. Enforcement of the terms and provisions of this Agreement shall be at the reasonable discretion of the aggrieved party, and any forbearance by such aggrieved party to exercise its rights hereunder in the event of any breach hereof by the other party, shall not be deemed or construed to be a waiver of the aggrieved party's rights 5 LOCATION: 249 NW 6 STREET MIAMI, FLORIDA 33136 FOLIO No.: 01-0105-050-1120 hereunder. Each of the parties to this Agreement have participated in the negotiation of this Agreement and have been represented by legal counsel. Accordingly, this Agreement shall not be interpreted or construed more strictly against any one of the parties hereto. [signature page follows] Cel LOCATION: 249 NW 6 STREET MIAMI, FLORIDA 33136 FOLIO No.: 01-0105-050-1120 COVENANTOR Witnesses By: Print Name: By: Print Name STATE OF )SS COUNTY OF ) BLOCK 55 OWNER, LLC, a Florida limited liability company By: SG Manager, LLC, a Florida limited liability company, its Manager I0 Name: Title: The foregoing instrument was acknowledged before me, by means of ( ) physical presence or ( ) online notarization, this day of 2021 by of SG Manager, LLC, a Florida limited liability company, as the manager of Block 55 Owner, LLC, a Florida limited liability company, on behalf of said companies, who is ( ) personally known to me or ( ) produced a valid driver's license as identification. My Commission Expires Notary Public: Sign Name: Print Name: [NOTARIAL SEAL] 7 LOCATION: 249 NW 6 STREET MIAMI, FLORIDA 33136 FOLIO No.: 01-0105-050-1120 CITY OF MIAMI a municipal Corporation of the State of Florida APPROVED AS TO CONTENT: Alan M. Dodd, P.E., Director Department of Resilience and Public Works APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria Mendez, Esq. City Attorney APPROVED AS TO INSURNCE REQUIREMENTS: Anne -Marie Sharpe Director of Risk Management LOCATION: 249 NW 6 STREET MIAMI, FLORIDA 33136 FOLIO No.: 01-0105-050-1120 EXHIBIT A LEGAL DESCRIPTION [To be inserted after approval of Director of Resilience and Public Works]