HomeMy WebLinkAboutExhibit SUB.Vet -k Gt c
COVENANT RUNNING WITH THE LAND
THIS Covenant Running
with the Land
(Hereinafter the "COVENANT")
made and entered into this
day of
, 2009, by
and between
3031 INVESTMENT CORPORATION, a Florida corporation, party of the first part
(hereinafter called COVENANTOR) and the CITY OF MIAMI, FLORIDA, a
municipal corporation of the State of Florida, in the County of Miami -Dade, party
of the second part, (hereinafter called CITY);
WHEREAS, COVENANTOR is the fee OWNER of the property
(hereinafter called "PROPERTY"), having a street address of 3850 Bird Road,
legally described in the attached Exhibit "A''; and
WHEREAS, COVENANTOR has requested permission to construct and
maintain a nine (9) level pedestrian overpass (hereinafter called "PEDESTRIAN
OVERPASS") over and across the public alley to connect the COVENANTOR's
professional office building and parking garage; and
WHEREAS, said PEDESTRIAN OVERPASS is to be over and across the
public alley located approximately 160 feet south of Bird Road between SW 38
Court and SW 38 Avenue with a minimum vertical clearance of 16 feet above the
surface of said alley; and
WHEREAS, CITY has required the execution of this covenant running with
land as a condition precedent to its acting as Permittee and to the granting of
said permission to COVENANTOR to construct and maintain the PEDESTRIAN
OVERPASS over and across the public alley as located above;
NOW THEREFORE, in consideration of the express grant by City of the
right and license to allow the construction and maintenance of the PEDESTRIAN
OVERPASS over and across the public alley as located above, as authorized
and permitted by Resolution No. 09-0026, passed and adopted by the City
Commission on January 15, 2009, subject to the terms and conditions set forth
herein below, and in further consideration of these premises, COVENANTOR
does hereby voluntarily, freely and knowingly covenant and agree with CITY as
follows:
1. The foregoing recitals are true and correct and are made a part hereof.
2. COVENANTOR is hereby allowed to install, construct, maintain,
improve, replace, and repair the PEDESTRIAN OVERPASS over and across the
public alley located 160 feet south of Bird Road between SW 38 Court and SW
38 Avenue with a minimum vertical clearance of 16 feet above the surface of said
alley in accordance with the requirements of the Florida Building Code and
Charter and Code of the CITY.
3. COVENANTOR hereby agrees that the alley between SW 38 Court to
SW 38 Avenue shall be paved and . shall be wholly maintained by the
COVENANTOR, including landscaping, cleaning and overall beautification.
COVENANTOR further agrees that the pedestrian overpass shall not be
occupied.
4. In the event that COVENANTOR, its successors, or assigns fails in the
reasonable discretion of the Director of Department of Public Works to properly
maintain the PEDESTRIAN OVERPASS, or any part thereof, so that it becomes
a hazard to the health, safety, and welfare of the general public, CITY shall give
COVENANTOR one (1) written notice of such failure via certified mail, return
receipt requested, with a copy to any mortgagee who has given written notice of
its lien to the City of Miami Public Works Director, and COVENANTOR shall
within thirty (30) days from receipt of such notice either (i) restore PEDESTRIAN
OVERPASS, or any part thereof, to a safe condition satisfactory to CITY's Public
Works Director, or (ii) remove the PEDESTRIAN OVERPASS, or any part
thereof, and restore the public alley below to CITY standards at no cost or
expense to CITY.
5. In the event COVENANTOR, its heirs, successors, or assigns fail to
either restore the PEDESTRIAN OVERPASS, any part thereof, to a safe
condition satisfactory to CITY or remove the PEDESTRIAN OVERPASS, or any
part thereof, and restore the right of way within the specified time as set forth in
Paragraph (3), CITY may contract for such restoration and/or removal, and the
amount of such restoration and/or removal costs shall be declared and
established as a lien against the PROPERTY legally described on the attached
Exhibit "A" and enforced as any municipal special assessment lien provided for
under the Statutes of the State of Florida and the Code of Ordinances of the City
of Miami. The COVENANTOR shall pay the CITY's reasonable attorney's fees
and costs of collection arising in any action to foreclose the municipal special
assessment lien or otherwise recover costs for restoration or removal of the
PEDESTRIAN OVERPASS, or any part thereof, otherwise, in any other actions
or proceedings each party shall bear its own attorney's fees.
6. COVENANTOR further covenants and agrees that all recourse against
CITY is hereby expressly waived as to any damage caused, direct, indirect,
consequential or otherwise, to any portion, in whole or in part, of the remainder of
the COVENANTOR's buildings, resulting from the removal of the PEDESTRIAN
OVERPASS, or any part thereof, from the dedicated public alley pursuant to
Paragraph (4) hereinabove.
7. COVENANTOR shall indemnify, defend, and hold harmless the CITY,
its officials and employees, from any claims, demands, liabilities, losses or
causes of action of any nature whatsoever arising out of the use, construction,
maintenance and/or removal of the PEDESTRIAN OVERPASS, or any part
thereof, from and against any orders, judgments or decrees which may be
entered and from and against all reasonable costs, attorneys' fees, expenses,
and liabilities incurred in the defense of such claim, or in the investigation thereof.
8. COVENANTORS shall indemnify, defend and save CITY, its officials
and employees, harmless from and against any and all claims, liability, losses
and causes of action, of any nature whatsoever, that may arise out of the
granting of this Covenant or out of COVENANTORS' 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 reasonable costs, attorneys' fees, expenses and liabilities
incurred in the defense of any such claims or in the investigation thereof. All
indemnities and duties to defend or hold harmless provided for in this covenant
shall survive the cancellation or expiration of this covenant.
9. COVENANTOR shall keep in force and effect at all times during the
exercise of this covenant, the insurance coverages as shown in Exhibit B.
All companies providing insurance shall be authorized to do business in
the State of Florida and rated A5 or better by Best's Key Rating Guide, latest
edition. Any primary insurance policy must be issued by an insurance company
having a policyholder's surplus at least five times the amount of the coverage of
the policy.
The insurance shall be subject to the approval of the CITY's Risk
Manager. Products and completed operations, contractual liability, explosion,
collapse and underground liability coverages shall be included under said policy.
The insurance policy shall be procured and premiums paid by COVENANTOR.
The effective date of the policy shall be 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 Risk Management Division
of the CITY. CITY shall be named 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 the CITY as Additional Insured
shall in no way relieve or excuse the COVENANTOR of the obligation to add
CITY as an Additional Insured to the actual insurance policy. The insurance
policy shall provide that CITY Risk Manager 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, the 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 special assessment lien on the
PROPERTY of COVENANTOR and enforced as any special assessment lien
provided for under the statutes of the State of Florida. COVENANTOR agrees to
increase from time to time the limits of the comprehensive liability insurance
policy required to be provided pursuant to this covenant, upon written request of
the CITY.
10. It is expressly understood and agreed that this instrument touches,
concerns and binds the land, shall be binding upon COVENANTOR and also
upon 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.
11. 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 prepaid, 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:
COVENANTOR: 3031 INVESTMENT CORPORATION
3850 Bird Road, #903
Miami, FL 33146
Attn:
President
CITY: CITY MANAGER
THE City of Miami
444 SW 2ND AVENUE, 10th Floor
MIAMI, FL 33130
AND
DIRECTOR OF PUBLIC WORKS
THE CITY OF MIAMI
444 SW 2ND AVENUE, 8th Floor
MIAMI, FL 33130
12. COVENANTOR herein expressly acknowledges that (a) the
permission granted by the CITY to construct the PEDESTRIAN OVERPASS over
and across the CITY's public right of way is solely for the limited purposes set
forth herein and does not constitute a lease and that the rights of the
COVENANTOR hereunder are not those of a tenant but is a mere personal
priviledge to do certain expressly specified acts on the CITY's public right of way,
(b) the CITY retains dominion, possession and control of the CITY's public right
of way and can unilaterally end the permission herein granted to COVENANTOR
in the event of default by COVENANTOR without any fault or breach or cause
whatsoever, provided however, that a thirty (30) day notice is given to
COVENANTOR and COVENANTOR has not cured the event of default within the
period of time specified herein after receipt of notice 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's public right of way by virtue of its use hereunder
or by virtue of any expeditures incurred in connection herewith; (d)
COVENANTOR shall comply with all applicable laws, regulations and resolutions
of the State of Florida, Miami -Dade County and the City of Miami.
13. COVENANTOR shall, at its own cost and expense, record this
covenant in the Miami -Dade County Public Records within thirty (30) days of its
execution. The COVENANTOR shall provide recorded copies of the covenant to
the CITY at the address set forth in paragraph (10) within thirty (30) days of
recordation.
14. This Covenant and its Exhibits constitutes the entire final
Agreement between the parties as to its subject matter and supersedes all prior
and contemporaneous understanding, writings or communications between the
parties as to its subject matter. This Covenant may only be amended by a
written amendment executed by authorized officials of the parties employing the
same formalities as were used in its execution.
15. This Covenant is governed by the laws of the State of Florida.
Venue in any action or proceeding between the parties shall be in Miami -Dade
County, Florida. Each party shall bear their own costs and attorneys fees
(except in a lien foreclosure action). IN order to expedite conclusion of these
proceedings, the parties waive their right to a jury trial in actions between them
arising out of this Covenant.
[signature page follows]
IN WITNESS WHEREOF, the COVENANTOR has caused these presents
to be executed and signed in its name by its Director or Officer and its corporate
seal to be affixed hereto this day and year first above set forth.
Signed, Sealed and Delivered in the
Presence of:
FIRST WITNESS SIGN:.
Print Name:
Address:
SECOND WITNESS SIGN:
Print Name:
Address:
STATE OF FLORIDA )
) SS
COUNTY OF MIAMI-DADE )
COVENANTOR:
3031 INVESTMENT CORPORATION, a
Florida corporation
Name:
Title: President
The foregoing instrument was acknowledged before me, an officer duly
authorized to administer oaths and take acknowledgements this day of
2008, by , as of 3031
INVESTMENT CORPORATION, a Florida corporation on behalf of said
company. He/she is personally known to me or presented
as identification and did not take an oath.
[SEAL]
NOTARY PUBLIC
Print Name:
Commission No.:
Commission Expires:
ACCEPTANCE OF COVENANT
CITY OF MIAMI:
APPROVED AS TO CONTENT:
Stephanie N. Grindell, P.E.
Director, Department of Public Works
APPROVED AS TO INSURANCE REQUIREMENTS:
LeeAnn Brehm
Director of Risk Management
APPROVED AS TO LEGAL FORM AND CORRECTNESS:
Julie O. Bru
City Attorney
COVENANT RUNNING WITH THE LAND
THIS COVENANT made and entered into this day of ,
2008, by and ptween 3031 INVESTMENT CORPORATION, a Florida
corporation, party of�he first part (hereinafter called COVENANTOR) and the
CITY OF MIAMI, FLORIRA, a municipal corporation of the State of Florida, in the
County of Miami -Dade, partX of the second part, (hereinafter called CITY);
WHEREAS, COVENANTOR is the fee OWNER of the following property:
See attached Exhibit "A" hereinafter called "PROPERTY", AKA as 3850 Bird
Road; and
WHEREAS, COVENANTOR has\requested permission to construct and
maintain' a pedestrian overpass (herein
over and across the public alley to
office building and parking garage; and
called "PEDESTRIAN OVERPASS")
COVENANTOR's professional
WHEREAS, said PEDESTRIAN OVERPASS, is to be over and across the
public alley located 160 feet south of Bird Road betWJ en SW 38 Court and SW
38 Avenue with a minimum vertical clearance of 16 feet above the surface of said
alley; and
WHEREAS, CITY has required the execution of this covlknant running with
land as a condition precedent to its acting as Permittee and toXhe granting of
said permission to COVENANTOR to construct and maintain the PkDESTRIAN
OVERPASS over and across the public alley as located above;
NOW THEREFORE, in consideration of the express grant by City\of the
right and license to allow the construction and maintenance of the PEDES
OVERPA over and across the public alley as located above, as authorized
and permitted by Resolution No, , passed and adopted by the
City Commission 6n , 2008, subject to the terms and
conditions set forth \h�e, in below, p and in further consideration of these premises,
COVENANTOR does he by voluntarily, freely and knowingly covenant and
agree with CITY as follows:
1. The foregoing recitals afe true and correct and are made a part hereof.
2. COVENANTOR is
improve, replace, and repair the PE
allowed to install, construct, maintain,
OVERPASS over and across the
public alley located 160 feet south of Bird\Road between SW 38 Court and SW
38 Avenue with a minimum vertical clearance`of 16 feet above the surface of said
alley in accordance with the requirements of 111 a Florida Building Code and
Charter and Code of the CITY.
3. In the event that COVENANTOR, its successbfs, or assigns fails in the
reasonable discretion of the Director of Department of Pub, is Works to properly
maintain the PEDESTRIAN OVERPASS, or any part thereof, that it becomes
a hazard to the health, safety, and welfare of the general public, ITY shall give
COVENANTOR one (1) written notice of such failure via certified ail, return
e r� tice of
receipt requested, with a copy to any mortgagee who has given watt n
its lien to the City of Miami, and COVENANTOR shall within thirty (30) days om
receipt of such notice either (i) restore PEDESTRIAN OVERPASS, or any pa
thereof, to a safe condition satisfactory to CITY's Public Works Director, or (ii)
remove the PEDESTRIAN OVERPASS, or any part thereof, and restore the
public alley below to CITY standards at no cost or expense to CITY.
4. In the event COVENANTOR, its heirs, successors, or assigns fail to
restore the PEDESTRIAN OVERPASS, any part thereof, to a safe
conditio6,\satisfactory to CITY or remove the PEDESTRIAN OVERPASS, or any
part thereof,\�nd restore the right of way within the specified time as set forth in
Paragraph (3), TY may contract for such restoration and/or removal, and the
amount of such r storation and/or removal costs shall be declared and
established as a specia assessment lien against the PROPERTY described on
the attached Exhibit A and nforced as any municipal special assessment lien
provided for under the Statuks of the State of Florida and the Code of
Ordinances of the City of Miami. \The COVENANTOR shall pay the CITY's
reasonable attorney's fees and
foreclose the municipal special
of collection arising in any action to
11 .
lien or otherwise recover costs for
restoration or removal of the PEDESTRIAN OVERPASS, or any part thereof,
otherwise, in any other actions -or proceedings ek party shall bear its own
attorney's fees.
5. COVENANTOR further covenants and agrees tha`teall recourse against
CITY is hereby expressly waived as to any damage caused, direct, indirect,
consequential or otherwise, to any portion, in whole or in part, of th remainder of
the COVENANTOR's buildings, resulting from the removal of the PE STRIAN
OVERPASS, or any part thereof, from the dedicated public alley purl` ant to
.Paragraph (4) hereinabove.
6. COVENANTOR shall indemnify, defend, and hold harmless the CITY,
It officials and employees, from any claims, demands, liabilities, losses or
cause of action of any nature whatsoever arising out of the use, construction,
maintena ge and/or removal of the PEDESTRIAN OVERPASS, or any part
thereof, from 11pnd against any orders, judgments or decrees which may be
entered and from\@nd against all reasonable costs, attorneys' fees, expenses,
and liabilities incurredN(n the defense of such claim, or in the investigation thereof.
7. COVENANTOP\S shall indemnify, defend and save CITY, its officials
and employees, harmless
and causes of action, of
granting of , this Covenant or
Covenant, including all other
and against any and all claims, liability, losses
nature whatsoever, that may arise out of the
of COVENANTORS' activities under this
or omissions to act on the part of
COVENANTOR or any person acting fir or on COVENANTOR'S behalf, and
from and against any orders, judgments, dt decrees that may be entered and
from and against all reasonable costs, attorneys' fees, expenses and liabilities
incurred in the defense of any such claims or ity the investigation thereof. All
indemnities and duties to defend or hold harmless kovided for in this covenant
shall survive the cancellation or expiration of this
8. COVENANTOR shall keep in force and effect all times during the
exercise of this covenant, the insurance coverage(s) as shown 'n Exhibit B.
All companies providing insurance shall be authorized to do business in
the State of Florida and rated A5 or better by Best's Key Rating 'guide, latest
edition. Any primary insurance policy must be issued by an insura
having a policyholder's surplus at least five times the amount of the coverage(s)
of the policy.
The insurance shall be subject to the approval of the CITY's Risk
Mana er. Products and completed operations, contractual liability, explosion,
collapse nd underground liability coverage(s) shall be included under said
policy. Tt* insurance policy shall be procured and premiums paid by
COVENANTOR\Theeffective date of the policy shall be the effective date of the
covenant, and icy term or any renewals thereof shall remain in effect for
the term of the
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
of the CITY. CITY shall be named as
of insurance shall be supplied to the
any permits.. A certificate -of -insurance
by the Risk Management Division
itional Insured under the policy. Proof
of CITY prior to the issuance of
the. CITY as Additional. Insured
shall in no way relieve COVENANTOR of the\obligation to add CITY as an
Additional Insured to the actual insurance policy. The insurance policy shall
provide that CITY Risk Manager be given at least thirty 0) days advance written
notice of any material changes., cancellation or non-rene al notification of any
policy, and in the event of such material change, cancellation, or non -renewal
notification, COVENANTOR shall immediately replace said polity with another
policy to the satisfaction of CITY with the receipt of a certificate of ih�urance for
such policy by CITY at least ten (10) days prior to the effective datb,,,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, the CITY shall have the right to
immediately secure a similar insurance policy in its name with the total cost of the
ium and all monies that may become due during the term of the covenant
beinjcharged to COVENANTOR and City shall have the right to declare and.
establis said costs as a special assessment lien on the PROPERTY of
COVENAN NOR and enforced as any special assessment lien provided for under
the statutes of %eState of Florida. COVENANTOR agrees to increase from time
to time the limif\the comprehensive liability insurance policy required to be
provided pursuant to thlcovenant, upon written request of the CITY.
9. It is expressly derstood and agreed that this instrument touches,
concerns and binds the land, shall be binding upon COVENANTOR and also
upon heirs, successors in interes%or assigns of COVENANTOR, and shall be a
condition implied in any conveyanceNpr other instrument affecting the title to the
._aforesaid property or any pprtion_ther
10. Any notice, request; demand, a`�proval, or consent given or required
to be given under this covenant shall be in writ`fpg and shall be deemed as having
been given when mailed by United States registered or certified mail, return
receipt requested, postage prepaid, to the other paries at the addresses stated
below or at the last changed address given by the\party to be notified as
hereinafter specified:
COVENANTOR: 3031 INVESTMENT CORPORATION
3850 Bird Road, 003
Miami, FL 33146
Attn:
President
CITY: CITY MANAGER
THE City of Miami
444 SW 2ND AVENUE
MIAMI, FL 33130
.'►k
DIRECTOR OF PUBLIC WORKS
THE CITY OF MIAMI
444 SW 2ND AVENUE
MIAMI, FL 33130
11. COVENANTOR herein\expressly acknowledges that (a) the
permission granted by the CITY to constrlt the PEDESTRIAN OVERPASS over
and across the CITY's public right of way is olely for the limited purposes set
forth herein and does not constitute a leseand that the rights of the
COVENANTOR hereunder are not those of a tena%pDu
ut is a mere personal
priviledge to do certain specified acts on the CITY's is right of way, (b) the
CITY retains dominion, possession and control of the CITY' "public right of way
and can unilaterally end the permission herein granted to COVENANTOR in the
event of default by COVENANTOR without any fault or bread or cause
whatsoever, provided however, that notice is given to COVENANTOR and
COVENANTOR has not cured the event of default within the period of time
i§ ecified herein after receipt of notice and (c) COVENANTOR does not and shall
not laim at any time any interest or estate of any kind or extent whatsoever in
the CI 's public right of way by virtue of its use hereunder or by virtue of any
expeditur s incurred in connection herewith.
12. OVENANTOR shall, at its own cost and expense, record this
covenant in the iami-Dade County Public Records within thirty (30) days of its
execution. The C VENANTOR shall provide recorded copies of the covenant to
the CITY at the address set forth in paragraph (10).
[signature page follows]
WITNESS WHEREOF, the COVENANTOR has caused these presents
to be exe6uted and signed in its name by its Director or Officer and its corporate
seal to be affik,�d hereto this day and year first above set forth.
Signed, Sealed and Del
Presence of:
FIRST WITNESS SIGN:
Print
SECOND WITNESS SIGN:
Print Name:
Address:
in the COVENANTOR:
STATE OF FLORIDA )
) SS
COUNTY OF MIAMI-DADE )
3031 INVESTMENT CORPORATION, a
Florida corporation
Name:
Title: President
The foregoing instrument was acknowledged befor me, an officer duly
authorized to administer oaths and take acknowledgemen this day of
2008, by , as of 3031
INVESTMENT CORPORATION, a Florida corporation onbehalf of, said
company. He/she is personally known to me or presented
as identification and did not take an ath.
[SEAL]
NOTARY PUBLIC
Print Name:
Commission No.:
Commission Expires:
ACCEPTANCE OF COVENANT
CITY OF MIAMI:
APPROVED AS TC\CONTENT:
Stephanie N. Grindell, P.E.
Director, Department of Public
APPROVED AS TO INSURANCE REQUIREMENTS:
LeeAnn Brehm
Director of Risk Management
APPROVED AS TO LEGAL FORM AND CORRECTNF-SS:
Julie O. Bru
City Attorney