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HomeMy Public PortalAboutThe Little Club Declaration of Use Agreement 08-13-2021Prepared by and Return to: Town of Gulf Stream c/o Edward C. Nazzaro, Esq. 100 Sea Road Gulf Stream, FL 333483 (561) 276-5116 Declaration of Use Agreement By The Town of Gulf Stream and The Little Club, Inc. August 2021 Table of Contents Page Article I Recitals 4 Article II The Little Club's Use 4 Article I I I Conditions 4 Article IV Voluntary Agreement 4 Article V Remedies for Violation 4 Article VI Undue Interference with the Enjoyment of Nearby Properties .. 5 Article VII Provisions to Run with the Land/Recording 5 Article VIII Entire Agreement 6 Article IX Effective Date 6 Article X Miscellaneous 6 2 DECLARATION OF USE AGREEMENT THIS DECLARATION OF USE AGREEMENT is made and entered into this 1,3 "bh day of ✓ 2021 by and between the TOWN OF GULF STREAM, a Florida municipal corporati n, 100 Sea Road, Gulf Stream, Florida 33483 (hereafter, "Town") and THE LITTLE CLUB, INC., 100 Little Club Road, Gulf Stream, FL 33483 (hereafter, "Club") (collectively, the "Parties"), which terms "Town" and "Club" will include and bind the successors and assigns of the Parties, wherever the context so requires or admits. WITNESSETH: WHEREAS, the Club operates a private golf course and clubhouse located within the municipal limits of the Town, which is a permitted use in the Outdoor Recreational District in which it is zoned; and WHEREAS, the Architectural Review and Planning Board was presented with Application # 21-17 (hereafter, "Application"), which sought approval for the construction of two (2) Pickleball courts with a spectator area, a total of 4,800 square feet, in an open area adjacent to the golf course maintenance facility; and WHEREAS, on July 25, 2019 and September 26, 2019 ("2019 ARPB Meetings"), the Architectural Review and Planning Board considered the similar Application # 019-05, in an open area adjacent to a multifamily dwelling, and how the Club would mitigate noise generated by the two (2) Pickleball courts to lessen its impact to the adjoining properties; and WHEREAS, during the July 22, 2021 meeting, Application # 21-17 was unanimously recommended for approval by the Architectural Review and Planning Board, subject to the Parties entering into a Declaration of Use agreement containing certain terms similar to those required as part of the 2019 ARPB Meetings; and WHEREAS, certain conditions were believed to be sufficient to protect neighboring properties by the Architectural Review and Planning Board in 2019, and therefore the Club and Town agree that some of those conditions should be adhered to for this similar application; and WHEREAS, should the Club fail to comply with the conditions of approval set forth in Article I I I and Article V below, the approval of the Application may be revoked and play on the Pickleball Court must cease; and WHEREAS, all the representations made herein are true and accurate, and the approval of the Application is conditioned upon the representations made herein and all of the conditions herein imposed. NOW, THEREFORE, in consideration of the mutual promises set forth herein, it is agreed as follows: 3 ARTICLE I RECITALS The recitals set forth above are true and correct and are incorporated herein and made a part hereof. ARTICLE II THE LITTLE CLUB'S USE The use that is the subject of this Declaration of Use shall be as set forth in the Application submitted to the Town for Application # 21-17 and approved by the Town Commission on August 13, 2021, as the same may be amended from time to time (herein "Approval"). ARTICLE I II CONDITIONS The Approval to allow pickleball to be played on the two (2) pickleball courts that are the subject of Application # 21-17 is conditioned upon the following: 1. All players shall use balls with comparable sound dampening characteristics to the foam quiet ball by Gamma as proposed in Application # 019-05 in all pickleball games. 2. All players shall use quiet paddles with comparable sound dampening characteristics to the Sniper "quiet" pickleball paddle by Patriot Pickleball as proposed in Application # 019- 05 in all pickleball games. ARTICLE IV VOLUNTARY AGREEMENT The Club agrees to be bound by the terms and conditions in this Agreement, and the Club waives any legal objection it might otherwise have to said terms and conditions or parts thereof. ARTICLE V REMEDIES FOR VIOLATION 1. Upon determination of the ARPB of a violation of any of the conditions contained in Article III of this Agreement that is based on competent substantial evidence, the Club shall pay to the Town a liquidated amount per violation occurring in a year. For the purposes of determining the number of cumulative violations in a year, a year is defined as starting on December 1 and ending on November 30. The amounts per violation are as follows: First Violation: $500 Second Violation: $1,000 Third Violation: $1,500 Fourth Violation: $2,000 Fifth and Subsequent Violations: $2,500 4 On the occurrence and finding by the ARPB of a sixth violation within one year (defined as starting December 1 and ending on November 30), that is based on competent substantial evidence, the ARPB at a future meeting may rescind the approval of the use. In the event the Club disputes the determination of the ARPB that a violation of this Agreement has occurred, the Club may appeal its decision to the Board of Adjustment of the Town of Gulf Stream. Appeals of any decision of the Board of Adjustment shall be to the Circuit Court in and for Palm Beach County, Florida. 2. In addition to the remedies contained in paragraph 1 above, the Town shall have all remedies available at law and in equity in order to enforce the terms of this Agreement, including but not limited to (a) the Town's Code Enforcement procedures; (b) all remedies otherwise provided in the Town's Code of Ordinances; and (c) injunction, specific performance, and any and all other equitable relief through the civil courts in and for Palm Beach County for the State of Florida. In the event the Town is required to seek injunctive relief, it shall not be required to post bond and it shall not be required to demonstrate irreparable harm or injury to secure an injunction to enforce the terms of this Agreement. Additionally, in the event of any breach, default or non performance of this Agreement, or any of its covenants, agreements, terms or conditions, the prevailing party shall be entitled to recover its costs, expenses and reasonable attorney's fees insofar as whomever prevails, either before or as a result of litigation, including appeals. ARTICLE VI UNDUE INTERFERENCE WITH THE ENJOYMENT OF NEARBY PROPERTIES The use of the two (2) Pickleball courts shall not interfere unduly with the enjoyment of the property rights by owners of nearby properties. For the purposes of this agreement only, whether an undue interference with said enjoyment exists will be determined by noise complaints from nearby households as follows: in the event the Club's use of the two (2) Pickleball courts results in three or more noise complaints to the Town from separate households within a 30 -day period, a noise control plan shall be developed by a professional engineer registered in the State of Florida, and the Club shall implement the recommendations of the noise control plan. The noise control plan will be developed by an engineer hired by the Town, and paid for by the Club. Upon receipt of the engineer's recommendations from the Town, the Club shall have 30 days to implement the recommendations. If that time period is not met, the Club shall cease all play on the two (2) Pickleball courts until the recommendations of the noise control plan have been implemented to the satisfaction of the Town. ARTICLE VII PROVISIONS TO RUN WITH THE LAND/RECORDING This Agreement shall run with the land. The approval of the Application referenced herein and this Agreement shall terminate upon the termination of the Club's operation and ownership of the two (2) pickleball courts, or rescission of the approval by the ARPB. This Agreement shall be recorded by the Club in the Official Records of Palm Beach County, Florida upon full execution by the Parties. 5 ARTICLE VIII ENTIRE AGREEMENT This eight (8) page agreement represents the entire agreement between the Parties as to its subject matter and it may not be amended except by written agreement executed by both parties. ARTICLE IX EFFECTIVE DATE The Effective Date of this Agreement shall be the day upon which this Agreement is executed by the last party to sign the Agreement. ARTICLE X MISCELLANEOUS Whenever the word "laws" Appears in this Agreement, it shall be deemed to include all ordinances, rules and regulations as well as laws of the appropriate governmental authorities. Paragraph headings are inserted for convenience only and shall not be read to enlarge, construe, restrict or modify the provisions hereof. All references to numbered or lettered paragraphs, subparagraphs and exhibits refer (unless the context indicates otherwise) to paragraphs and subparagraphs of this Agreement and to exhibits attached hereto, which exhibits are by this reference made a part hereof. In the event of the invalidity of any provision of this Agreement, same shall be deemed stricken herefrom and this Agreement shall continue in full force and effect as if such invalid provision were never a part hereof. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. IN WITNESS WHEREOF, this Agreement is accepted by the Parties on the date last written below. TOWN OF GULF STREAM Print me: EM -4,1a Akt zZ`vo Print Name: 612C L i L OVNY-24111 6 By: Scott Morgan, Mayor Date: 8 fi Attest: 6 Rita Taylor, Town Clerk \\ U /� I, Print Name: 4t i�tt Print Name: EP AL2/U Z At° Print Name: --i4=6 -r- tc- - i Pri Name. 1 STATE OF FLORIDA COUNTY OF PALM BEACH ialog � By: Gregory L. Dunham, Town Manager Date: O ) Z ova l THE LITTLE CLUB, INC. By: . ( Print Name: , T-4/ Ct'.c'T7,3 Its: /CC5i7CNT Date: ///�/ The foregoing instrument was acknowledged before me this 3 day of A 2021, by Scott Morgan, Mayor of the Town of Gulf Stream, a Florida municipal corporate n, on behalf of the corporation. He is personally known to me and he did not take an oath. :,. . Ails:.. RENEE' ROWAN BASEL ,4 • ter; Notary Public - State of Florida .' Commission # GG 984730 9 ',. ova.° ` My Comm. Expires Aug 28, 2024 0 Bonded through National Notary Assn. 7 Signa : of Nota koti)axi ' aGe- Printed Name of Notary Public Commission Expires: -2--C2Z-A— STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this day of 2021, by Gregory L. Dunham, the Town Manager of the Town of Gulf Stream, a Florida municipal corporation, on behalf of the corporation. He is personally known to me and he did not take an oath. Signature of Notary Public Printed Name of Notary Public Commission Expires: STATE OF FLORIDA COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this 11 day of 2021, by #eSWe11 M . C.v0-'5 1, on behalf of The Little Club, Inc. He/She is pe onally known to me / produced the following Identification �2 �S ?ecsonc\\\ iC rlo .A' �(5`M2. and he/she did not take an oath. _�►R� ' STEPHANIE ANDRINGA Notary Public • State of Florida Commission k HH 029580 °' My Comm. Expires Aug 6, 2024 Bonded through National Notary Assn. APPROVED AS TO FORM AND LEGAL SUFFICIENCY FOR THE TOWN OF GULF ECM By: Edward C. Nazzar., squire 8 Signature of Notary Public SA -e nonie AnaVncyA Printed Name of Notary Public Commission Expires: )3 I b 1 a` -1