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1998-27 Aston Gardens Site Plan Approval & Restrictive Covenants RESOLUTION 98 - 27 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF PARKLAND, FLORIDA FOR SITE PLAN APPROVAL FOR ASTON GARDENS AT PARKLAND, A RESIDENTIAL CONGREGATE CARE FACILITY; CASE NO. 02-SP-98. WHEREAS, at a regular meeting of the City Commission a Public Hearing was held to hear testimony for and against the petition of WCI Communities and Aston Care Systems, Inc. requesting site plan approval of a Residential Congregate Care Facility; and WHEREAS, the proposed site plan contains eleven (11) buildings and a one story clubhouse which has a clock tower on top with a height of sixty-two (62) feet; and WHEREAS, the proposed site plan meets the code requirements for parking; and WHEREAS, the proposed site plan revision has been reviewed by the Planning and Zoning Board which voted 7-0 for denial; and WHEREAS, the proposed site plan is found to be in conformance with all applicable Land Development regulations and is in compliance with concurrency requirements. NOW, THEREFORE, be it resolved by the City Commission of the City of Parkland, Florida, that; The Aston Gardens at Parkland site plan is approved with the following conditions: 1. This approval is based on a site plan entitled Aston Gardens at Parkland prepared by Gee & Jenson Engineers, Architects & Planners, Inc. dated received by the Planning Deparbnent on June 12, 1998 as amended at the City Commission meeting of June 17, 1998. 2. This approval was reviewed on the application for Aston Gardens at Parkland prepared by Keith & Schnars, P.A. Engineers, Planners & Surveyors dated received by the Planning Deparbnent on March 19, 1998. 3. This site plan approval shall be for development of a Special Residential Congregate Care Facility, Category 3, consisting of 462 sleeping rooms; containing not more than 248 Independent units and 122 Assisted Living Facility units, the total not to exceed a maximum of 370 units. 4. The development of Aston Gardens at Parkland shall be controlled and phased in a manner to assure that a building permit for the Assisted Living Facility (ALF) Building # 12 shall be issued prior to the issuance of any building permit for buildings # 7, # 8, # 9, # 10, and # 11 and a Certificate of Occupancy for the ALF shall be issued prior to a Certificate of Occupancy for buildings # 7, # 8, # 9, # 10 and # 11. 5. Prior to issuance of a building permit the petitioner shall pay to the City of Parkland a park impact fee in the equivalent of3.33 acres in which the petitioner shall be allowed to draw down on the credit currently within the City of Parkland or pay the amount of $233,100.00 dollars in lieu of the credit. If the petitioner wishes to pay the money in lieu of the park credit, the full amount shall be paid prior to the issuance of the first building permit. Resolution 98-27 Page 2 6. The petitioner shall provide provision for adequate security in the form of a bond or irrevocable letter of credit or lender guarantee for the complete construction of buildings indicated on the approved site plan prior to the issuance of any building permits. 7. The petitioner shall at no cost to the City, permit and construct a five (5) foot wide concrete sidewalk on the west side of University Drive from the projects entrance south to the City limits. This condition shall be completed prior to the issuance of the first Certificate of Occupancy for any part of the Aston Gardens at Parkland development. 8. Prior to the issuance of a building permit the petitioner shall execute and have recorded in the public records a Declaration of Restrictive Covenants, acceptable to the City Attorney, limiting the use of the property to the purposes and the structures as contained in the approved site plan. 9. Building # 3 and # 9 shall be a maximum of two (2) stories in height as amended on the site plan at the City Commission meeting of June 17, 1998. PASSED AND ADOPTED THIS..1L DAY OF June ,1998. ATTEST: L ~ '- ___<><<3 Qr-~ SUSAN ARMST ONG, C.M.C CITY CLERK res-acs 1 ') ; i " I '. LAW OFFICES OF ANDREW S. MAURODIS ,~':~{ ,f';;.",. ..~ P.O. BOX 2468 FT. LAUDERDALE, FL 33303 TELEPHONE (954) 524-3044 TELECOPIER (954) 524-5199 150 N.E. 2ND A VENUE DEERFIELD BEACH, FL 33441 TELEPHONE (954) 480-4265 TELECOPIER (954) 480-4490 REPLY TO: DEERFIELD BEACH June 18, 1999 Helen Lynott, City Clerk City of Parkland 6500 Parkside Drive Parkland, Florida 33067 RE: Aston GardenslDeclaration of Covenants and Restrictions Dear Helen: Enclosed is the original fully executed Declaration of Covenants and Restrictions for Aston Gardens. Please have the Declaration of Covenants and Restrictions recorded in the public records. Sincerely, ASM:jms Enclosure , . OR BIe 29606 PG 1424 REaIIED 16129/99 11151 AN 11111111111111111111 =~'16 DECLARATION OF COVENANTS AND RESTRICTIONS THIS DECLARATION OF RESTRICTIVE COVENANTS ("Covenant") made this f of t..,. day of Jl)"~ , 1999 by Aston Gardens at Parkland Commons, Ltd., L.P., a Delaware limited partnership, with a post office address at 137 South Pebble Beach Blvd., Sun \ City Center, Florida 33573 ("Owner") shall be for the benefit of the City of Parkland, a political subdivision of the State of Florida, its successors and assigns, with a post office address at 6500 Parkside Drive, Parkland, Florida 33067 ("City"). WIT N E SSE T H: WHEREAS, Owner has received rezoning, special exception, plat and site plan approval for a Special Residential Facility, Category III, which includes independent living, assisted living and extended care living (the "Project"), pursuant to City of Parkland Ordinance No. 98-14, Resolution No. 98-25, Resolution 98-26 and Resolution 98-27, respectively (the "Approvals") for the property described on Exhibit A attached hereto (the "Property"); and WHEREAS, Owner understands that the City of Parkland's granting of the Approvals and application of reserve and flexibility units is based upon the construction of the Project, specifically including an assisted living facility (ALF), as defined in Section 400.402(3), Florida Statutes, within the approved plat and site plan as set forth in the Approvals; and WHEREAS, the execution and recordation of this Declaration of Covenants and . Restrictions, and compliance therewith, is a condition of the site .plan and special exception approval and precondition to the issuance of any building permits on the Property; and WHEREAS, it is the intention and desire of the Owner to confirm its representations to the City of Parkland that it shall construct the Project consistent with the Approvals by binding the Property to the terms and conditions as set forth therein and as set forth in this Declaration of Covenants and Restrictions; and WHEREAS, Owner is the owner of the Property in fee simple and is authorized to execute this Declaration of Covenants and Restrictions; and WHEREAS, the parties acknowledge that this Declaration of Covenants and Restrictions is part of the approval process entered into voluntarily by the Owner, and as a reasonable condition to approval of the Project; NOW THEREFORE, in consideration of the promises and covenants herein contained, Owner hereby declares that the Property shall be owned, held, used, transferred, sold, conveyed, demised. and occupied subject to the covenants, restrictions, and regulations hereinafter set forth, all of ~hich shall run with the Property, and any part thereof, and which shall be binding upon all parties having any right, title or interest in the Property, or any part thereof, their heirs, succ.essors and assigns. Section 1. The recitations set forth above are true and correct and made a binding part of ,this Declaration. DEFE-ARED ITEM Return: Document To ;~~;~9!!5 ODerations (",... -< ",.,. il '-) \ ~... \, '...,~,' _[,f, ._/" . .. OR BIC 29606 PG 1425 Section 2. The Owner does hereby commit that it shall only construct facilities on the Property which are consistent with the Approvals. It recognizes that it has no right to construct facilities or undertake any uses which are not consistent with the Project, as specified in the Approvals, and that any such inconsistency on the Property shall be a violation of this Declaration and the Approvals. Section 3. Owner does commit and restrict the use of the Property so the Project satisfies the "housing for older persons" exemption to the federal Fair Housing Act as defined in 42 U.S.C. ~ 3607(b). Section 4. The City agrees that the Approvals and the Project are consistent with the definition of a special residential facility, as set forth in the Broward County Land Use Plan in effect as of the date of execution of this Declaration. Section 5. As a clarification of Condition #4 and Condition #6 of the site plan approval (Resolution 98-27), the City and Owner hereby agree to the following: Phase I of the Project consists of buildings #1, #2, #3, #4, #5, #6, and #8 as shown on the approved site plan. Phase II of the Project consists of buildings #7, #9, #10, #11 and the ALF (Building #12) as shown on the approved site plan. Owner shall cause Aston Care Systems, Inc. to provide a completion and payment guaranty in favor of the City of Parkland guaranteeing that the ALF will satisfy the requirements to have a Certificate of Occupancy issued for the ALF no later than thirty (30) months after the date that the fIrst building permit for the project is issued by the City of Parkland. The completion and payment guaranty will contain a provision requiring Aston Care Systems, Inc. to pay $100,000 to the City as an agreed upon penalty for the failure to comply with the terms of the site plan approval and this Declaration, if the ALF has not satisfied the requirements to have a Certificate of Occupancy issued by this date. The completion and payment guaranty will automatically terminate when a completion bond for the ALF is issued to Owner's lender. Owner shall commence construction of the ALF prior to issuance of Certificates of Occupancy for buildings #7, #9, #10, and #11. Section 6. The Property described on Exhibit B (hereinafter referred to as the ALF Property) shall be constructed and used solely for the purposes of an ALF and ancillary services directly related thereto. Therefore, the ALF Property shall have a specific restriction placed on it as set forth herein, and in no case may any use of the ALF Property be made except for the purposes of an ALF and ancillary services directly related thereto. Section 7. The Declaration and Covenants set forth herein shall run to the benefit of the City of Parkland and may be enforced by the City of Parkland in a court of law by any and all remedies at law or equity. The parties agree that any material violation of this Declaration shall cause irreparable harm to the City of Parkland. Should litigation or any action be required to enforce any provision herein, then in that event, the non-prevailing party in such action shall reimburse the prevailing party for any and all costs and attorney's fees (including any costs and attorney's fees incurred in any appeals). Jurisdiction shall be in the Circuit Court of Broward County, Florida; provided however, the City may enforce any site plan or code requirement through its Code Enforcement Board should it, in its sole discretion, elect to do so. -2- OR BIC 29606 PG 1426 Section 8. Owner represents to the City of Parkland that it is the owner of the Property, that the person executing this Declaration has authority to execute same and bind the Property and that no other signatures or other parties are needed to bind the Declaration or the Property as set forth herein. Section 9. Owner recognizes that the Approvals are based upon the representations contained herein and does hereby bind itself, its successors and assigns, all future owners of the Property and the Property to the Declarations set forth herein. These Declarations shall be recorded in the public records of Broward County, Florida and shall run with and bind the Property, the Owner, its successors and assigns, and all future owners of the Property (or persons with an interest in the Property) in perpetuity. Section 10. These restrictions are hereby declared to be severable and independent. If any court of competent jurisdiction shall declare any section, paragraph, or part thereof, invalid or urienforceable, then such judgment or decree shall have no effect on the enforcement or validity of any other section, paragraph, or part thereof, and the same shall remain in full force and effect. Section 11. This Declaration shall be liberally construed to achieve its intent to restrict the use of the Property, as set forth herein. Section 12. This Declaration shall become effective upon the last day either party affixes its signature hereto. -3- , .' OR BK 29606 PG 1427 IN WITNESS WHEREOF the parties have caused these presents to be executed. Witnesses: "OWNER" ~~(;.~c,: ASTON GARDENS AT PARKLAND COMMONS, LTD., L.P., a Delaware limited partnership By: ASTON GARDENS AT PARKLAND COMMONS, INC., a Delaware corpo iOn, its general p. er ~~ ~ . Print N : wrC By: Print Title: STATE OF FLORIDA COUNTY OF ~ The foregoing instrument was acknowledged before me, the undersigned Notary Public in and for the State of Florida, on this, the IOf" day of .:Tt,lne. . 1999, by ~vtr A. ~h);fh , the PY"e$ic1.&f of ASton Gardens at Parkland Commons, Inc., a Delaware corporation, general partner of Aston Garden at Parkland Commons, Ltd., L.P., a Delaware limited partnership, on behalf of the corporation and limited partnership. (Notary Seal) ~I!.~ Public, State of Florida Conhw ~. J/a.r+neS5 Printed, typed or stamped name of Notary Public exactly as commissioned ~sonally known to me, or Produced identification: ~ DONNA c. HAATNaiS ~ "1 c-.. Eotl. ~ ... P\&IC ./ No. cc "1616 If~..... I J..... Type of identification produced 4- '4" .. OR BIC 29606 PG 1428 "CITY" Witnesses: CITY OF PARKLAND, a political subdivision of the State of Florida BY:~~ Print Name: L FA lARA Title: MAYOR STATE OF FLORIDA COUNTY OF BROWARD The foregoing instrument was acknowledged before me, the undersigned Notary Public June . 1999, by of the City of Parkland, a political in and for the State of Florida, on this, the 7th day of Sal Paqliara , as Mayor subdivision of the State of Florida. ~\\\\'''Il'''',,//1. ~\\" ~~ M. L)I'M ~II~ *' .~\J ......... o)'~ ~ ~..~\tI\SSION ;.... ~ ~ ..<:..0 ~w 18. ~.. ~ ~ : ~ ~ - I~Q.-~.. i. :: .~~ ~cp.:: :*: ... :*= .,. . . .: .. ~ . . ~.. ~o . Ice 790368 · ~ :: ~:;4..4<.. ~..~s ~~;';~1-~~ ..~~ ~ ...liIlIICU ...~.""-"'~ "Z ....~~~ ,,, II"""",,' CJftfuv9t~ (2f~t:t;- Notary Public, State of Fl6rida Helen M. Lynott Printed, typed or stamped name of Notary Public exactly as commissioned ---2'Personally known to me, or Produced identification: Type of identification produced 623830 viO -5- CITY OF PARKLAND 6600 UNIVERSITY DRIVE PARKLAND, FL 33067 (954) 753-5040 FAX (954) 341-5161 April 17, 2001 Mr. Ron Myers President & CEO Aston Care Systems Incorporated 137 South Pebble Beach Boulevard Sun City Center, Florida 33573 RE: A2reement between Aston Care Systems. Inc. and City of Parkland Dear Mr. Myers: I am attaching one (1) fully executed copy of the above referenced Agreement regarding the construction of an opaque buffer along University Drive and acknowledge receipt of your check #6103 in the amount of$61,200.00. If you need further information, please feel free to contact our office. Si~ .Yl~ Helen Lyno~;;l'~' - City Clerk Enclosure CC: Mayor Sal Pagliara w/original agreement Harry J. Mertz, City Manager Judith Kilgore, Director of Finance Margaret Bertolami, Building Official Brian Archer, Director of Environmental Resources , .../' j ':. ::::.: :.;:'~: :.;;:::/>: ~ ;it: :;:;~'.::'. ':g:i;~;:.;.~:. :)~::;~ . >:. " .' -~~.,.. ...... ......I~ ... .t, ! ! ASTON CARE SYSTEMS, INC. - PARKLAND COMMONS 137 S. PEBBLE BEACH BLVD. .~.' SUN CITY CENTER. FL 33573 SunTrust BANK, TAMPA BANK SUNTRUST FINANCiAl CENTRE TAMPA, FL 63-6561631 6103 . DATE AMOUNT 4/5/01 $61,200.00 ~ - PAY Sixty One Thousand Two Hundred Dollars And 00 Cents T"~' : t-/-O "/;z;e TO THE ORDER Of f?J City of Parkland . 3300 University Drive SUite 7 Coral Springs FL 33065 ~\;~v \ . .__'h'_ __...___.___ .._____.__..~ ..!"" 1:0(; 3 1.0(; S(;ql:OO 320 lOL.O ?q(; 11-' \ II-DO (; 1.03"- ASTON CARE SYSTEMS, INC. . PARKLAND COMMONS 6103 VENDOR I D NAME 006103 ~~1;t":II ._- :1.'.'.1::1:..:1111.1:1:1: 99020252 CITY PARK City of Parkland 99021229 040105 4/5/01 $61,200.00 $0.00 $61,200.00 $0.00 $61,200.00 COMMENT $U-rJOO~O $"-rJOO.OO $0-..00 $O...oO---$61,200.0C Note to File 4/13/2001 : Re: Agreement signed by President of Aston Gardens Three original copies were signed by the President of Aston Gardens but they were not attested. I called our City Attorney Andrew Maurodis and advised him of such and he said the agreements are acceptable without his signature being attested as along as we have the check in our possession (which we do). Helen Iy"'~ H City Clerk AGREEMENT TillS AGREEMENT is entered into by and between ASTON CARE SYSTEMS, INC., its successors and assigns (DEVELOPER) and the CITY OF PARKLAND (CITY) as follows: WITNESSETH: WHEREAS, DEVELOPER has received site plan approval for an adult congregate living facility within the CITY known as Aston Gardens (the Project), which property is located on the west side of University Drive (the Development); and WHEREAS, the site plan for the Project was approved by the CITY on June 17, 1998; and WHEREAS, the DEVELOPER agrees that construction of an opaque buffer along University Drive is a requirement of the site plan and such a buffer does not yet exist; and WHEREAS, DEVELOPER is requesting its first certificate of occupancy in the near future, but has not completed the buffer as required by the CITY; NOW, THEREFORE, be it agreed by and between the parties as follows: Section 1. The above representations are true and correct and made a part hereof. . Section 2. In order to permit DEVELOPER to obtain a certificate of occupancy so as not to work a hardship on those persons who have made plans to reside in the facility in the near future, the DEVELOPER and the CITY have entered into this Agreement to provide for the posting of a cash bond or irrevocable letter of credit to assure that the opaque buffer and benn are properly constructed within a reasonable time as set forth below. Section 3. DEVELOPER commits that an adequate opaque buffer, as detennined by the City Forrester, shall be completed within one (1) year from the date of this Agreement. If the DEVELOPER disagrees with the determination of the Forrester, it may appeal said determination within five (5) days of receipt thereof to the City Commission of the City of Parkland. which would enter a final decision. If no appeal is filed, then the decision of the City Forrester will be final. DEVELOPER recognizes that the decision as to whether an opaque buffer has indeed been constructed within a proper period of time is within the sole discretion of the CITY. Section 4. Based upon this commitment and upon posting with the CITY. a cash bond or irrevocable letter of credit (in a form acceptable to the City Attorney) in the amount of $61.200, the CITY will issue certificates of occupancy for the Development. When DEVELOPER meets the requirements of the agreement, the bond or irrevocable letter of credit will be released. SectiOD 5. The cash bond or irrevocable letter of credit shall secure the completion of the opaque buffer within the one (1) year period. If a final decision is rendered that the opaque buffer is not completed within the time period set forth herein, then the cash bond shall be forfeited to the CITY or the CITY may draw upon the letter of credit and the CITY shall have the right to enter upon the premises of the DEVELOPER for the purposes of undertaking additional plantings to create an opaque buffer. This Agreement shall be considered a license for the CITY to enter upon the premises Wlder said circumstances for said purpose and to use the cash bond or letter of credit for said purposes. The use of the bond money or money from the irrevocable letter of credit shall be at the sole discretion of the CITY and shall be expended in the manner as deemed appropriate by the CITY in its sole discretion. Section 6. Any and all notices given or required under this Agreement shall be in writing and may be delivered in person or by United States mail, telecopy, postage prepaid, first class and certified, return receipt requested, addressed as follows: IF TO CITY: Harry Mertz, City Manager City of Parkland 6600 University Drive Parkland, Florida 33067 Page -2- IF TO DEVELOPER: Aston Care Systems, Inc. 137 South Pebble Beach Boulevard Sun City Center, Florida 33573 Attn: Ronald E. Myers President and CEO Section 7, The CITY shall provide fifteen (l 5) days notice to DEVELOPER of its intent to access the cash bond or irrevocable letter of credit, after a final decision has been reached as set forth above. S~ctiOIJ 8. DEVELOPER shall have no cause of action of any kind whatsoever with regard to any landscaping or other improvements made by the CI1Y with the bond monies should the CITY access the premises pursuant to this Agreement. All such expenditures, and all landscaping improvements, of whatsoever nature, shall be at the sole discretion of the CITY, and DEVELOPER. as a condition of this Agreement and the issuance of the certificates of occupancy prior to the completion of the bond, does hereby waive any claims or causes of action in any way related to the manner in which the CITY uses the funds for landscaping or other buffer improvements. Se~tion 9-1 Should the DEVELOPER fail to pennit access to the property by the CITY for use of the funds should a final decision be reached as set forth above, then, in that event, the CITY may retain the cash bond or the proceeds of the letter of credit as liquidated damages for violation of this Agreement, it being agreed by the parties that damages for breach of this Agreement cannot be readily or reasonably calculated. This shall be the CITY'S sole remedy for violation of this Agreement. ~ This Agreement shall be effective upon the last day either party affixes his signature hereto. Section 11. The drafting of this Agreement is a joint endeavor of the parties and may not, solely as a maUer of judicial interpretation, be construed more strictly against one party than the other. Section 12. No amendment of this Agreement shall be pennitted except by a written document executed with equal dignity herein. This Agreement represents the entire agreement between the parties. Page -3.. IN WITNESS WHEREOF, the parties have made and executed this Agreement on the respective dates under each signature: ASTON CARE SYSTEMS, INC.(DEVELOPER), signing by and through its President and CEO, authorized to execute same, and CITY OF PARKLAND, signing by and through its Mayor, duly authorized to execute same. CITY OF PARKLAND ATTEST: gJjlw~ Helen Lynott, City C k ,/ ..--? JL~-~ ' By: Mayorsad~ .', 5~-- .J.L day of o/"-J , 2001. Approved as to fonn by: . Maurodis, City Attorney ATTEST: By l2-dayof ~. ]-' ZOO\. Page -4- ARTIQLE 5 CHANGES IN SCOPE OF SERVIQES 5.1 Any change to the Scope of Services must be accomplished by a written amendment, executed by the parties in accordance with Section 9.18 below. ARTIGLE 6 INDEMNlFICATIQN 6.1 PARKLAND/SUBCONTRACTOR and COUNTY/CONTRACTOR are state agencies as defined in Chapter 768.28, Aorida Statutes, and agree to be fully responsible foracls and omissions of their respective agents or employees to the extent permitted by law. Nothing herein is intended to serve as a waiver of sovereign immunity by either party to which sovereign immunity may be applicable. Nothing herein shall be construed as consent by a state agency or political subdivision of the state of Aorida to be sued by third parties in any matter arising out of this Agreement or any other contract. ARTICLE 7 INSURANCE 7.1 PARKLAND/SUBCONTRACTOR is a state agency as defined by Section 788.28, Florida Statutes, and PARKLAND/SUBCONTRACTOR shall furnish Contract Administrator with written verification of liability protection in accordance with state law prior to final execution of said agreement. ARTICLE 8 TERMINATION 8.1 This Agreement may be terminated for cause by action of Board or by PARKLAND/SUBCONTRACTOR upon thirty (30) days' written notice by the party that elected to terminate, or for convenience by action of Board upon not less than thirty (30) days' written notice by Contract Administrator. This Agreement may also CAF'112.FRM (Rev. 2/11/98) -5-