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HomeMy WebLinkAboutExhibitCOVENANT TO RUN WITH THE LAND THIS COVENANT (hereinafter the "Covenant"), made and entered into this day of ,200 by and between MILLENNIUM PARTNERS, a with offices at , 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 parcels of land located at 1441 Brickell Avenue and 1451 Brickell Avenue, Miami, Florida 33131, more particularly described in the attached Exhibit "A" (hereinafter called "PROPERTY"); and WHEREAS, COVENANTOR has requested permission to construct a two level pedestrian overpass (hereinafter called "PEDESTRIAN OVERPASS") over and across Southeast 14 Lane between the "Four Seasons Tower and Hotel" located at 1441 Brickell Avenue and a proposed office building located at 1451 Brickell Avenue; and WHEREAS, said PEDESTRIAN OVERPASS is to be located east of Brickell Avenue with a minimum vertical clearance of 16 feet above the surface of Southeast 14 Lane; 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 Southeast 14 Lane located east of Brickell Avenue, which divides the PROPERTY; 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 dedicated public right-of-way of Southeast 14 Lane located east of Brickell Avenue as authorized and permitted by Resolution No. , passed and adopted by the City Commission on , 2007, 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 Southeast 14 Lane located east of Brickell Avenue between the "Four Seasons Tower and Hotel" located at 1441 Brickell Avenue and a proposed office building, located at 1451 Brickell Avenue, Miami, Florida, in accordance with the requirements of the Florida Building Code and the Charter and Code of the CITY. 3. 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, or any part thereof, so that it becomes 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, or any part thereof, to a safe condition satisfactory to CITY Public Works Director or (ii) remove the PEDESTRIAN OVERPASS, or any part thereof, and restore Southeast 14 Lane to CITY standards at no cost or expense to CITY. 4. In the event COVENANTOR, its heirs, successors, or assigns fail to either restore the PEDESTRIAN OVERPASS, 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 (3), 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 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 its reasonable attorneys' 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 actions or proceedings each party shall bear its own attorney's fees. 5. COVENANTOR further covenants and agrees that all recourse against CITY, its officials or employees, 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 Southeast 14 Lane pursuant to paragraph 4 hereinabove. 6. 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, restoration 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. 7. 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 without limitation any property damage or personal injury and 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. 8. 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 A:5 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 5 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. 9. It is expressly understood and agreed that this instrument touches, concerns and binds the ]and, 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. 10. 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: CITY: MILLENNIUM PARTNERS Attn: CITY MANAGER THE CITY OF MIAMI 444 S.W. 2"d Avenue Miami, FL. 33130 and DIRECTOR OF PUBLIC WORKS THE CITY OF MIAMI 444 S.W. 2"d Avenue Miami, FL. 33130 11. 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. 12. 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 promptly provide recorded copies of the Covenant to the CITY at the addresses set forth in paragraph (10). [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. FIRST WITNESS: Name: Address: SECOND WITNESS: Name: Address: Attest: COVENANTOR: MILLENNIUM PARTNERS a Name: Title: STATE OF ) ) SS: COUNTY OF ) By: Name: Title: Managing General Partner I HEREBY CERTIFY that on this day of appeared before me, an officer duly authorized acknowledgements, MILLENNIUM PARTNERS, a me or has produced to , as , 200_, personally administer oaths and take the of . He is personally known to as identification. NOTARY PUBLIC Print Name: Commission No.: Commission Expires: [SEAL] ACCEPTANCE OF COVENANT CITY OF MIAMI: By: Name: Stephanie N. Grindell, P.E. Title: Director, Public Works Department APPROVED As to Insurance Requirements: LeeAnn R. Brehm Director, Risk Management APPROVED AS TO LEGAL FORM AND CORRECTNESS: Jorge L. Fernandez City Attorney EXHIBIT A DESCRIPTION OF PROPERTY Lots 20 and 21 in Block 3, AND Lots 8 through 21, inclusive, in Block 9, of the Plat and Shore Crest, according to the Plat thereof, as recorded in Plat Book 10, Page 23 of the Public Records of Miami -Dade County, Florida. LESS AND EXCEPT: Those parties of Lots 12 through 18, inclusive, Block 9, Shore Crest subdivision according to the Plat thereof, as recorded in Plat Book 10, Page 23 of the Public Records of Miami -Dade County, Florida, being more particularly described as follows: The West 12 feet of Lots 12 through 18 inclusive. AND The external area of a circular curve having a radius of 10 feet and tangents which are 25 feet North of and parallel with the centerline of Northeast 81 Street and 45 feet East of and parallel with the centerline of Biscayne Boulevard. EXHIBIT B INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE -NON-STANDARD IMPROVEMENTS Commercial General Liability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury Endorsements Required City of Miami included as an Additional Insured Employees included as insured Independent Contractors Coverage Waiver of Subrogation Explosion, Collapse and Underground Hazard Business Automobile Liability $1,000,000 $2,000,000 $1,000,000 $1,000,000 Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto Included Hired, Borrowed or Non -Owned Autos Any One Accident $1,000,000 Endorsements Required City of Miami included as an Additional Insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation IV. Employer's Liability A. Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $100,000 for bodily injury caused by disease, policy limit The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change. Companies authorized to do business in the State of Florida with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A" as to management and no less than "Class V" as to financial strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and/or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 12