HomeMy WebLinkAboutExhibit - CovenantReturn recorded copy to:
City of Miami
Office of the City Attorney
444 S.W. 2nd Avenue, Ste. 945
Miami, FL 33130-1910
DECLARATION OF RESTRICTIVE COVENANTS
FOR BAYWALK IMPROVEMENTS
This Declaration of Restrictive Covenants (the "Declaration") made this _day of
, 2016, by FIRST PRESBYTERIAN CHURCH OF MIAMI, FLORIDA, a not -
for -profit corporation of the State of Florida, ("Owner") having an address at 609 Brickell
Avenue, Miami, Florida 33131-2510, in favor of CITY OF MIAMI, a municipal
corporation of the State of Florida ("City"), having an address at 444 SW 2nd Avenue,
Miami, Florida 33130.
WHEREAS, Owner hereby covenants that Owner is lawfully seized of that certain
real property located in the City of Miami, Miami -Dade County, Florida, assessed under
Folio Number: 01-0210-030-1010, legally described in Exhibit "A", attached hereto and
incorporated herein (the "Property"); and
WHEREAS, Owner has granted City an easement across its Property, recorded
in Book , Page , of the Official Records of Miami -Dade County,
Florida, to allow construction of a baywalk across Owner's Property (the "Baywalk")
notwithstanding that Owner has not initiated development that would otherwise require it
to construct one itself pursuant to §§ 3(mm)(ii)-(iv) of the City Charter, as amended, and
Miami21, the zoning ordinance of the City, as amended; and
WHEREAS, construction of the Baywalk, including the filling of Owner's
submerged lands, marine improvements such as sheet pilings and a seawall, and other
finishes and hardscape are intended to be performed by the City and / or its contractors
or agents ("Baywalk Improvements"); and
WHEREAS, the Baywalk Improvements have a total cost of One Million Four
Hundred Ninety Six Thousand Four Hundred Sixty Three Dollars and Fifty Seven Cents
($1,496,463.57) (the "Total Baywalk Improvements Funding"); and
WHEREAS, the City intends to apply for, and may receive, a grant from the
Florida Inland Navigation District ("FIND"), an independent special taxing district of the
State of Florida to partially fund the Baywalk Improvements; and
WHEREAS, if obtained, FIND's grant would pay for 50% or Seven Hundred Forty
Eight Thousand Two Hundred Thirty One Dollars and Seventy Eight Cents
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($748,231.78), rendering the City -funded portion of the Baywalk Improvements as
Seven Hundred Forty Eight Thousand Two Hundred Thirty One Dollars and Seventy
Seven Cents ($748,231.77) ("Partially Grant -Funded Baywalk Improvements Funding");
and
WHEREAS, Owner, in consideration for the improvement of its Property,
including the Baywalk Improvements, places certain restrictions on the use of the
Property;
NOW, THEREFORE:
1. Recitals. The recitals set forth above are true and correct and are
incorporated into this Declaration.
2. Covenant Running with the Land. This Declaration shall constitute a
covenant running with the land and be binding upon the Owner, its successors, heirs,
representatives and assigns, effective upon recordation in the Public Records of Miami -
Dade County, Florida, for an initial term of thirty (30) years, after which time it shall be
extended automatically for successive periods of ten (10) years, unless released in
writing by the Owner with approval by the City. These restrictions shall be for the benefit
of, and a limitation upon, all present and future owners of the Property and for the public
welfare.
3. Restriction. Owner hereby declares that the Property shall be held,
maintained, transferred, sold, conveyed and owned subject to the following designations
and restrictive covenants:
(a) Owner hereby agrees that it shall immediately remit to
the City the remaining Baywalk Improvements Funding or
Partially Grant -Funded Baywalk Improvement Funding , as
applicable, pursuant to subsection (b) which shall be
immediately due and payable upon the acquisition by the
Owner of a building permit, including a phased permit or any
other approval that would otherwise allow for development
as defined in § 380.04, Fla. Stat. that would also require
compliance with §§ 3(mm)(ii)-(iv) of the City Charter, as
amended, or Miami21, as amended, or any successor land
development regulation requiring, inter alia, the construction
and provision of a baywalk, with the exception of any activity
that meets the definition of development pursuant to §
380.04, Fla. Stat. that the City initiates in connection with
construction of the Baywalk Improvements.
(b) Upon the occurrence of any condition in Section 3(a),
the Owner's remittance of the Baywalk Improvements
Funding shall be calculated as the Baywalk Improvements
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Funding minus the Baywalk Improvements Funding divided
by six -hundred (600) multiplied by the number of months the
Baywalk Improvements have been in place, which shall be
the month in which the Baywalk Improvements are
substantially complete. Restated, the formula shall be,
utilizing a standard mathematical order of operations:
(Baywalk Improvements Funding — ((Baywalk Improvements
Funding / 600) X months Baywalk Improvements have been
in place)). Should the City, subsequent to the execution of
this Declaration, obtain a FIND grant for 50% of the cost of
the Baywalk Improvements the formula above shall be
modified to use the Partially Grant -Funded Baywalk
Improvements Funding in lieu of the Baywalk Improvements
Funding. If the City receives any grant money towards the
Baywalk Improvements, whether from FIND or another
eligble source, the Baywalk Improvements Funding or
Partially Grant -Funded Baywalk Improvements Funding, as
applicable, shall be reduced by that amount.
4. Termination. City, at the request of Owner or its successor or assigns,
shall cause a release of this Declaration to be executed and recorded in the Official
Records of Miami -Dade County, Florida upon payment by the Owner to the City of the
Baywalk Improvements Funding or Partially Grant -Funded Baywalk Improvements
Funding, as applicable. The City Manager or his successor is authorized to execute a
release of this Declaration upon payment of the Baywalk Improvements Funding or
Partially Grant -Funded Baywalk Improvements Funding, as applicable. Any release
shall be in recordable form acceptable to the City Attorney.
5. Monitoring. It is understood and agreed that any official inspector of the
City may after written notice have the right at any time during normal business hours to
enter upon the Property for the purpose of investigating the use of the Property and for
determining whether the conditions of this Declaration are being complied with. An
action to enforce the terms and conditions of this Declaration may be brought by the
City and may be by action at law or in equity against any person or persons, entity or
entities, violating or attempting to violate the terms of this Declaration, either to restrain
violations or to recover the Baywalk Improvements Funding or Partially Grant -Funded
Baywalk Improvements Funding, as applicable. This enforcement provision shall be in
addition to any other remedies available under the law. It is further understood that the
City may also withhold building permits, including phased permits, if the Baywalk
Improvements Funding or Partially Grant -Funded Baywalk Improvements Funding, as
applicable, is due and payable.
6. Modification or Termination. Any modification or deferral of any
provision of this Declaration shall not be effective unless modification or deferral is in
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recordable form and signed by the Owner and approved by the City Commission, in
form acceptable to and signed by the City Attorney.
7. Costs. This Declaration, modifications, amendments, or releases
thereof, shall be recorded in the Public Records of Miami -Dade County, Florida, at the
cost of the City, and shall become effective upon recordation. In the event the City or its
agents must institute a civil action to collect any funds due or enforce any obligation
under this instrument then City shall be entitled to recover its court costs and
reasonable attorneys' fees.
8. Headings. The article and paragraph headings in this Declaration are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Declaration.
9. Governing Law. The Agreement shall be construed in accordance with
the laws of the State of Florida and any proceedings arising between the parties in any
manner pertaining or relating to this Agreement shall, to the extent permitted by law, be
held in Miami -Dade County, Florida.
10. Entire Agreement. This Declaration incorporates and includes all prior
negotiations, correspondence, conversations, agreements, and understandings
applicable to the matters relating to the repayment of money to the City for Baywalk
Improvements and the parties agree that there are no other commitments, agreements,
or understandings concerning the repayment of money to the City for Baywalk
Improvements arising out of this Declaration that are not contained in this Declaration.
Accordingly, the parties agree that no deviation from the terms hereof shall be
predicated upon any prior representation or agreements whether written or oral. It is
further agreed, that no modification, amendment, or alteration in the terms or conditions
contained herein shall be effective unless contained in a written document utilizing the
same formalities as were used in the execution of this Declaration.
11. Notice. Any notice required to be given herein shall be given by personal
delivery or by certified U.S. mail at the address specified below or at such other address
as may be specified in writing by the parties.
DEPARTMENT
City Manager
City of Miami
444 SW 2nd Avenue
10th Floor
Miami, Florida 33130
With a copy to:
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OWNER
First Presbyterian Church of Miami,
609 Brickell Avenue
Miami, Florida 33131-2510
Office of the City Attorney
City of Miami
444 SW 2nd Avenue
Suite 945
Miami, Florida 33130
(SIGNATURES ON FOLLOWING PAGES)
Signed, witnessed, executed and acknowledged this day of , 2016.
Witnesses:
Print Name:
Print Name:
STATE OF )
)SS
COUNTY OF )
By:
Name:
Title:
The foregoing instrument was acknowledged before me this day of
, 2016, by [OWNER], Personally Known or Produced Identification
Type of Identification Produced
My Commission Expires:
Print or Stamp Name:
Notary Public, State of
Commission No.:
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ATTESTED:
CITY OF MIAMI, a municipal
corporation of the State of Florida
By:
Todd B. Hannon Daniel J. Alfonso
City Clerk City Manager
STATE OF FLORIDA
)SS:
COUNTY OF MIAMI-DADE
Sworn to and subscribed before me this day of
2016, by Daniel J. Alfonso, as City Manager of City of Miami, a municipal corporation of
the State of Florida. He is personally known to me or has produced
as identification.
My Commission Expires:
Approved as to legal form and correctness:
Victoria Mendez, Esq.
City Attorney
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Notary Public, State of Florida
Print or Stamp Name
Commission No.:
EXHIBIT "A"
LEGAL DESCRIPTION
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