HomeMy WebLinkAboutExhibit 1Prepared by and after recordation
Return to: Office of the City Attorney
Attn: Rafael Suarez -Rivas
444 S.W. 2 Avenue, Ste. 945 Miami, FL. 33130
COVENANT TO RUN WITH THE LAND
THIS COVENANT (hereinafter the "Covenant"), made and entered into this
day of
,200by and between Midguard Development Group, Inc.,
a Florida corporation with offices at 1475 West Cypress Creek Road, Suite 202, Ft.
Lauderdale, FL., 33309, 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 County, party of the second part (hereinafter called "CITY");
WHEREAS, COVENANTOR is the fee owner of the parcel of land located at
8101 Biscayne Boulevard, Miami, Florida 33138, more particularly described in the <
attached Exhibit "A" (hereinafter called "PROPERTY"); and
WHEREAS, said PEDESTRIAN OVERPASS is to be located approximately 115
feet South of Northeast 82 Street with a minimum vertical clearance of 14 feet, 6 inches
above the surface of the alley; and
WHEREAS, COVENANTOR has proffered to improve and maintain the public
alley between Northeast 81 Street and Northeast 82 Street; and
WHEREAS, CITY has required the execution of this covenant running with the
land as a condition precedent to its acting as Permittee and to the granting, of said
permission to COVENANTOR to construct the PEDESTRIAN OVERPASS over and
across the public alley located east of and parallel to Biscayne Boulevard, which divides
the PROPERTY;
NOW THEREFORE, in consideration of the express grant by CITY of the right
and Iicense to allow the construction and maintenance of the PEDESTRIAN OVERPASS
over and across the dedicated public right-of-way of the alley located east of and parallel
to Biscayne Boulevard as authorized and permitted by Resolution No.
passed and adopted by the City Commission on , 2006, subject
to the terms and conditions set forth herein below, and in further consideration of these
premises, COVENANTOR does hereby 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 aforementioned PEDESTRIAN OVERPASS over and across the
alley east of and parallel to Biscayne Boulevard between "The Bank Condominium"
residential building and "The Bank Condominium" parking garage, located at 8101
Biscayne Boulevard, Miami, Florida, in accordance with the requirements of the Florida
Building Code and the Charter and Code of the CITY.
3. COVENANTOR shall improve said alley between Northeast 81 Street and
Northeast 82 Street prior to the issuance of a certificate of occupancy for the
PEDESTRIAN OVERPASS and COVENANTOR shall maintain said alley at all times
during the exercise of this Covenant. Said improvement and maintenance of the alley
shall be in accordance with CITY standards and specifications and approved by the
Director of the Department of Public Works.
4. In the event COVENANTOR, its heirs, successors, or assigns fail in the
reasonable discretion of the Director of the Department of Public Works to properly
maintain the PEDESTRIAN OVERPASS, the alley, or any part thereof, so that they
become a hazard to the health, welfare and safety 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, and COVENANTOR shall within thirty (30) days from receipt of such
notice either (i) restore the PEDESTRIAN OVERPASS, the alley, or any part thereof, to
a safe condition satisfactory to CITY Public Works Director or (ii) remove the
PEDESTRIAN OVERPASS, the alley, or any part thereof, and restore the. alley 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, the alley, or 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 (4), CITY may
contract for such restoration or removal, and the amount of such restoration or removal
costs shall be declared and established as a lien against the PROPERTY described on the
attached Exhibit "A" and enforced as any municipal 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 its reasonable attorneys' fees and costs of
collection arising in any action to foreclose the municipal lien or otherwise recover costs
for restoration or removal of the PEDESTRIAN OVERPASS, the alley, or any part
thereof, otherwise, in any 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, 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 pubic right-of-way of the alley pursuant to paragraph 5 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, the alley, 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. COVENANTOR shall indemnify, defend and save the CITY, its officials and
employees, harmless from and against any and all claims, liability, losses and causes of
action, of any nature whatsoever which 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 which
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 provided for in this Agreement shall survive the. cancellation or expiration of
the agreement.
9. COVENANTOR shall keep in full 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 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 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 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, 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 lien on the PROPERTY
of COVENANTOR and enforced as any 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 the written request of 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 notice7 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:
CITY:
MIDGUARD DEVELOPMENT GROUP, INC.
1475 West Cypress Creek Road, Suite 202
Ft. Lauderdale, FL. 33309
Attn: James E. Goldstein, President
CITY MANAGER
THE CITIY OF MIAMI
444 S.W. 2nd Avenue
Miami, FL. 33130
and
DIRECTOR OF PUBLIC WORKS
THE CITY OF MIAMI
444 S.W. 2nd Avenue
Miami, FL. 33130
12. COVENANTOR herein expressly acknowledges that (a) the permission
granted by the CITY to construct the PEDESTRIAN OVERPASS on CITY owned land
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 privilege to do certain specified acts on CITY owned land, (b) the CITY remains
dominion, possession and control of the CITY land and can in the event of default by
COVENANTOR unilaterally end the permission herein granted to COVENANTOR
without any fault or breach 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 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 land by virtue of its use hereunder or by virtue of any expenditures incurred in
connection herewith.
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
addresses set forth in Section 11.
[Signature Page Follows]
IN WITNESS WHEREOF, COVENANTOR has caused these presents to be
executed and signed in its name by its Manager and its corporate seal to be affixed hereto
and attested to by its secretary, the day and year first above set forth.
COVENANTOR:
FIRST WITNESS: MIDGUARD DEVELOPMENT GROUP, INC.
a Florida Corporation
Name:
Address:
SECOND WITNESS: By:
Name: James E. Goldstein
Title: President
Name:
Address:
Attest:
Corporate Secretary (Affix Corporate Seal)
STATE OF
) SS:
COUNTY OF
I HEREBY CERTIFY that on this day of , 2006, personally
appeared before me, an officer duly authorized to administer oaths and take
acknowledgements, James E. Goldstein, as the President of Midguard Development
Group, Inc., a Florida Corporation. He is personally known to me or has
produced as identification.
NOTARY PUBLIC
Print Name:
Commission No.:
Commission Expires:
[SEAL]
ACCEPTANCE OF COVENANT
CITY OF MIANII:
By:
Name: Stephanie N. Grindell, P.E.
Title: Director, Public Works Department
APPROVED As to Insurance Requirements:
Dania Carillo
Risk Manager
APPROVED AS TO LEGAL FORM AND CORRECTNESS:
Jorge L. Fernandez
City Attorney