Loading...
HomeMy WebLinkAboutExhibit 4This instrument prepared by: Steven H. Naturman Steven H. Naturman, P.A. Two Datran Center, Suite 1509 9130 South Dadeland Boulevard Miami, FL 33156 Exhibit "C" COVENANT This Covenant is made this day of , 2008 between IERI BRICKELL, LLC, its assigns and successors (the "Owner") and the FLORIDA DEPARTMENT OF STATE, Division of Historical Resources, (the "Division") pursuant to Chapters 872 and 267, Florida Statutes and Rule 1A-44, Florida Administrative Code, for the purpose of protecting and re -interring Unmarked Human Burials from a parcel located at 1814 Brickell Avenue, Miami, FL 33131 (recorded in the Florida Master Site File of the Division as archaeological site 8DA11246) to an area within said parcel more particularly described below. DEFINITIONS 'Unmarked Human Burial' as used in this Covenant means any human skeletal remains or associated burial artifacts or any location within 1814 Brickell Avenue, Miami, FL 33131, as defined below, where human skeletal remains or associated burial artifacts are discovered or believed to exist on the basis of archaeological or historical evidence, excluding any burial marked or previously marked by a tomb, monument, gravestone, or other structure or thing placed or designed as a memorial of the dead. This includes human skeletal remains and associated burial artifacts. RECITALS During an archaeological investigation of the parcel in 2007, Unmarked Human Burials, including primary graves and some disarticulated human remains were found. These remains were associated with a large solution hole located near the center of the parcel and determined to represent the remains of ancient American Indians. The Owner will encumber a small parcel within the northwest corner of 1814 Brickell Avenue, Miami, FL 33131 with this covenant for the purpose of re -interring and protecting the Unmarked Human Burials and to ensure they will remain undisturbed in perpetuity; and The Owner has an interest in protecting and preserving the Unmarked Human Burials for his/her own, as well as the general public's benefit; and Owners are the fee simple owners of the real property legally describes as "Lot 3, Block 1, IERI SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 164, Page 26, of the Public Records of Miami -Dade County, Florida (Parcel Identification Number 01 Unmarked Human Burial Protective Covenant Page 1 of 7 41390920030 )" as shown on Exhibit "A" attached hereto and which is herein referred to as the "Parcel;" and The Unmarked Human Burials are to be re -interred within that portion of the Parcel, being more particularly described on Exhibit `B" attached hereto and incorporated by reference as the `Burial Area;" and The Division has assumed jurisdiction over any Unmarked Human Burials, human skeletal remains, and associated burial artifacts not otherwise protected under Chapter 497 within the Parcel, pursuant to Subsection 872.05(6), Florida Statutes, and Rule 1A-44.005, Florida Administrative Code; and This section applies to all human burials, human skeletal remains, and associated burial artifacts not otherwise protected under Chapter 497, Florida Statutes, or other state law and found upon or within any public or private land in the state, including submerged lands. The Division may snake and enter into all contracts and agreements with other agencies, organizations, associations, corporations and individuals or federal agencies as it may determine are necessary, expedient or incidental to the performance of its duties, or the execution of its powers, pursuant to Section 267.031(2), Florida Statutes; and The Division and the Owner desire to protect and preserve the Burial Area; and The Division and the Owner agree to re -inter Unmarked Human Burials discovered on the Parcel and reported to the Division in March, 2007, pursuant to the requirements of section 872.05(4), Florida Statutes and Rule 1A-44, Florida Administrative Code; and The Owner has agreed to encumber the referenced property with a covenant, which shall run with the land, requiring that the Burial Area be maintained and preserved in perpetuity. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the Owner and the Division hereby agree as follows: Ownership. The Owner is the fee simple owner of the property more particularly described on Exhibit `B" attached hereto and which is herein referred to as the `Burial Area." Purpose. This covenant shall preserve and protect Unmarked Human Burials discovered on the Parcel and re -interred in the Burial Area, Maintenance. The Owner shall assume the costs of continued maintenance and conservation of the Burial Area associated with archaeological site 8DA11246. The Owner shall install concrete corner markers to delimit the Burial Area. Neither the Owner nor the Unmarked Human Burial Protective Covenant Page 2 of 7 Division shall make any visual or physical alteration to the Burial Area, unless otherwise agreed by both parties. Re -Interment Plan. The re -interment of all Unmarked Human Burials discovered on the Parcel and first reported to the Division in March, 2007, will be completed, pursuant to Rule IA - 44 -005(5)(c), Florida Administrative Code, three years from the State Archeologist's decision of final disposition, which is the date of execution of this Covenant, and the method of re -interment shall be in accordance with the following criteria: Discernible skeletal remains shall be oriented with feet towards the east and skulls towards the west; and No modern materials (i.e., plastic bags, paper bags) shall be re -interred with the Unmarked Human Burials; and All associated burial artifacts shall be re -interred with the Unmarked Human Burials. Inspection. The Division shall have the right to inspect the Burial Area at all reasonable times. Recording. This Covenant shall run with the land and be recorded in the Public Records of Miaini-Dade County, Florida, on and against the Burial Area and shall be a limitation on the use of the Burial Area. The Owner shall record this Covenant, at the Owner's expense, within fifteen business days of the Owner's receipt of the fully executed Covenant. The Owner shall furnish the Division with a recorded copy of this Covenant which shall run with the land and shall be binding on the Owner, his heirs, successors and assigns, personal representatives, mortgagees, lessees and against all persons claiming by, through or under them Tenn. This Covenant shall be in effect in perpetuity. Enforcement. The Division, on behalf of The State of Florida, or its successor institution, is vested with the authority to enforce this Covenant. If the Division discovers any non- compliance with this Covenant, the Division shall issue a Demand for Compliance to the Owner, impose any civil or criminal penalties, may seek injunctions and any other remedies under all applicable laws. This enforcement provision shall be in addition to any other remedies available at law, in equity, or both. Under Section 872.02, Florida Statutes: (1) A person who willfully and knowingly destroys, inutilates, defaces, injures, or removes any tomb, monument, gravestone, burial mound, earthen or shell monument containing human skeletal remains or associated burial artifacts, or other structure or thing placed or designed for a memorial of the dead, or any fence, railing, curb, or other thing intended for the protection or ornamentation of any tomb, monument, gravestone, burial mound, earthen or shell monument containing human skeletal remains or associated burial artifacts, or other structure before mentioned, or for any enclosure for Unmarked Human Burial Protective Covenant Page 3 of 7 m v l dee the burial of the dead, or willfully destroys, mutilates, removes, cuts, breaks, or injures any tree, shrub, or plant placed or being within any such enclosure, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (2) A person who willfully and knowingly disturbs the contents of a tomb or grave commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Notification. If the Owner knows or has reason to know that the Burial Area is being unlawfully disturbed, destroyed, defaced, mutilated, removed, excavated, or exposed, the Owner shall immediately notify the Division, and their local law enforcement agency with jurisdiction in the area where the Burial Area is located. Severability. Invalidation of any provision of this Covenant by judgment of court shall not affect any of the other provisions, which shall remain in full force and effect. Force Majeure. A party shall not be liable for loss or damage suffered as a result of any delay or failure in performance under this Covenant or interruption of performance resulting directly or indirectly from acts of God, accidents, fire, explosions, earthquakes, floods, water, wind, lightning, civil or military authority, acts of public enemy, war, riots, civil disturbances, insurrections, strikes, or labor disputes. However, should the character of the land change directly or indirectly due to any act of God, accidents, fire, explosions, earthquakes, floods, water, wind, lightning, civil or military authority, acts of public enemy, war, riots, civil disturbances, insurrections, strikes, or other factors including, but not limited to, labor disputes, zoning changes or changes in business status, the Covenant shall remain in effect and run with the land. IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed as of the day and date first above written. WITNESSES: Print Name: Print Name: IERI BRICKELL, LLC. By: Piero Trinchero, Manager STATE OF FLORIDA ) SS: COUNTY OF MIAMI -DARE ) The foregoing instrument was acknowledged before me this day of , 2007, by Piero Trinchero, Manager of Ieri Brickell, LLC , in the capacity aforestated; such person is (check one) [ ] personally known to me or [ ] has produced as identification. NOTARY PUBLIC, State of Florida