R15-141 RESOLUTION R15 - 141
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA,
4 APPROVING AND AUTHORIZING THE MAYOR AND CITY
5 CLERK TO SIGN THE BOYNTON VILLAGE PARK
CONVEYANCE AGREEMENT; AND PROVIDING AN EFFECTIVE
DATE.
3
9 WHEREAS, as part of the build -out of the remainder of the Boynton Village & Town
1) Center project, plans depicting a land swap of proposed park parcels were submitted and
11 approved as part of a series of Master Plan and Major Site Plan Modification Development
12 Orders for Boynton Village & Town Center and Cortina beginning in 2012 and as recent as this
13 year; and
14 WHEREAS, as a condition of approval, submittal of a park land swap agreement for
15 execution was required in compliance with Commission actions; and
13 WHEREAS, the proposed centrally located park within the Boynton Village & Town
17 Center development will be constructed and maintained by the developer and ultimately turned
13 over to the BR Cortina Homeowners Association or the Boynton Village Community
1 a Development District; and
2) WHEREAS, the City Commission of the City of Boynton Beach deems it in the best
21 interest of the residents and citizens of the City to approve the Boynton Village Park
22 Conveyance Agreement.
23 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
21 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
25 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
23 being true and correct and are hereby made a specific part of this Resolution upon adoption
27 hereof.
23 Section 2. The City of Boynton Beach approves the Boynton Village Park
23 Conveyance Agreement and authorizes the Mayor and City Clerk to sign the Interlocal
3) Agreement, a copy of which is attached hereto as Exhibit "A ".
31 Section 3. That this Resolution shall become effective immediately upon passage.
32 PASSED AND ADOPTED this 17 day of NO Yem er, 2015.
33 CITY OF BOYNTON BEACH, FLORIDA
34
35 YES NO
33
3 7 Mayor — Jerry Taylor ✓
33
33 Vice Mayor — Joe Casello (/
4)
41 Commissioner — David T. Merker r/
42
43 Commissioner — Mack McCray
44
45 Commissioner — Michael M. Fitzpatrick
43
4P
41 VOTE 5 -O
49
51 ATTEST:
5h
52
53
54 J et M. Prainito, MMC
55 _ ty C lerk
53
53 a`
53 o Seal) r
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BOYNTON VILLAGE PARK CONVEYANCE AGREEMENT
This Boynton Village Park Conveyance Agreement (this "Agreement ") is made and
entered into on o Y , 20 0 A "Effective Date "), by and among BR
CORTINA ACQUISITION LLC, a Delaware limited liability company, whose address is c/o
Blackrock, 400 Howard Street, San Francisco, CA 94105 ( "BR Cortina "), and THE CITY OF
BOYNTON BEACH, Florida, a municipal corporation of the State of Florida, having its offices
at 100 E. Boynton Beach Boulevard, Boynton Beach, FL 33435 (the "City "; the City and BR
Cortina are each a "Party" and collectively referred to in this Agreement as the "Parties ").
RECITALS
A. 1950 Congress Avenue, LLC ( "1950 ") and the City entered into that certain
Boynton Village Park Conveyance Agreement (the "1950 Park Agreement ") whereby 1950
donated certain real property, legally described in Exhibit "A" attached to and made part of this
Agreement, to the City to be used as a public park (the "Existing Park Land ");
B. BR Cortina is the owner of the real property legally described in Exhibit "B"
attached to and made part of this Agreement, which is a proposed residential development
consisting of single family homes, multi - family homes and townhomes ( "Cortina ");
C. The City desires that a portion of Cortina legally described and depicted in
Exhibit "C" attached to and made part of this Agreement, be a new public park ( "the "New
Park Land ");
D. The City of Boynton Beach City Commission approved the Site Plan and the
Site Lighting and Photometric Plan (collectively, the "Site Plan ") for Cortina, which Site Plan
includes the Existing Park Land and the New Park Land and includes construction and other
requirements for the New Park Land to be performed by BR Cortina.
E. The City has agreed to convey the Existing Park Land to BR Cortina to use
Park Land to the
in its development of Cortina and BR Cortina has agreed to convey the New Pak a d o
p t�' Y
City to be used as a new public park; and
F. The City also agrees to terminate all easements and other rights with respect
to the Existing Park Land, including but not limited to, the forty foot (40') wide pedestrian
easement along the east side of the Existing Park Land (the "Existing Easements "), and such
property shall be conveyed to BR Cortina as part of this Agreement.
NOW THEREFORE, for and in consideration of the mutual covenants and obligations
in this Agreement and other good and valuable consideration, the receipt and sufficiency of
which is hereby mutually acknowledged, the parties agree as follows:
1. RECITALS.
The recitals set forth above are true and correct and are incorporated into and form a part
of this Agreement.
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2. PARK LAND CONVEYANCE.
A. Subject to the terms of this Agreement, no later than ninety (90) days following
the Effective Date (the "Closing Date "), BR Cortina shall convey the New Park Land to the
City pursuant to the special warranty deed, the form of which is attached to this Agreement
as Exhibit "D" ( "New Park Deed "). On or before the Closing Date, BR Cortina shall
deliver to the City, together with the New Park Deed, (i) a no lien, possession and gap
affidavit acceptable to the Title Company and sufficient to remove the standard title
exceptions from the New Park Title Commitment, (ii) a certificate of non - foreign status or
statement complying with Section 1445(b)(2) or (iii) of the Internal Revenue Code, as
amended, (iv) a certificate of good standing and resolution authorizing the conveyance of the
New Park Land, (v) a closing statement, and (vi) such other documents as the Title Company
shall reasonably require and instruments and/or documents as otherwise necessary to
consummate the transactions contemplated by this Agreement.
B. Simultaneously with the conveyance of the New Park Land from BR Cortina to
the City, and subject to the terms of this Agreement, the City shall covey to BR Cortina the
h Existing Easements pursuant to the special warranty
Park Land and shall release the g p p y
deed, the form of which is attached to this Agreement as Exhibit "E" ( "Existing Park
Deed "), which shall include the conveyance of any rights the City may have pursuant to
Section 270.011, Florida Statutes. On or before the Closing Date, the City shall deliver to the
BR Cortina, together with the Existing Park Deed, (i) a no lien, possession and gap affidavit
acceptable to the Title Company and sufficient to remove the standard title exceptions from
the Existing Park Title Commitment, (ii) a certificate of non - foreign status or statement
complying with Section 1445(b)(2) or (iii) of the Internal Revenue Code, as amended, (iv) a
resolution or other authorization authorizing the conveyance of the New Park Land, (v) a
closing statement, and (vi) such other documents as the Title Company shall reasonably
require and instruments and/or documents as otherwise necessary to consummate the
transactions contemplated by this Agreement.
C. All conveyances shall be subject to the New Park Permitted Exceptions and
Existing Park Permitted Exceptions, as applicable, and all other matters of public record.
D. The City and BR Cortina each acknowledge that it is acquiring the Existing Park
Land and New Park Land, as applicable, in an "AS IS, WHERE IS" condition, without
representation or warranty on the part of the other party, except as expressly provided in this
Agreement and the special warranty deeds.
3. INSPECTIONS.
A. The City shall have forty five (45) days from the Effective Date (the
"Inspection Period ") to perform an inspection of the New Park Land. The City shall,
during the Inspection Period, determine (a) whether the New Park Land is satisfactory for
the City's purposes, and (b) whether the New Park Land has adequate services available and
that all federal, state, county and local laws, rules and regulations have been and are
currently being complied with relative to the New Park Land. During the Inspection Period,
BR Cortina shall also have the right to perform an inspection of the Existing Park Land to
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determine (a) whether the New Park Land is satisfactory to BR Cortina's purposes, (b)
whether the Existing Park Land has adequate services available and that all federal, state,
county and local laws, rules and regulations have been and are currently being complied
with relative to the Existing Park Land, (c) and that the Existing Park Land can be used by
BR Cortina in the development of Cortina.
B. During the Inspection Period, it shall be the responsibility of the respective
Party to determine that utility services including, water, waste water, electric, telephone and
all other utilities are available in the proper size and capacity to serve the Existing Park
Land and the New Park Land (collectively, the "Property "). At all times during the
Inspection Period, each party and their respective agents shall be provided with reasonable
access during normal business hours to the Property for purposes of on -site inspections.
The City and BR Cortina, respectively, shall determine the scope of the inspections as each
party deems appropriate under the circumstances. In the event that any inspections and any
review of documents conducted by the City relative to the New Park Land during the
Inspection Period prove unsatisfactory to the City, at its sole discretion, City shall be
entitled to terminate this Agreement by providing written notice at any time prior to 5:00
p.m. Florida time on that date which is the second Business Day next following the
expiration of the Inspection Period (the "Expiration Inspection Date "). In the event that
City fails to provide a timely written notice of termination, this Agreement shall not
terminate and the City and BR Cortina shall proceed to Closing as set forth in this
Agreement. To the extent permitted by, and subject to the limitations of Section 768.28,
Florida Statutes, as may be amended from time to time, the City does hereby agree to
indemnify and hold BR Cortina harmless from any and all damage to the New Park Land or
physical injury to persons resulting from the City's inspections of the New Park Land;
provided, however, that this indemnity shall not extend to and in no event shall the City be
liable to BR Cortina for (i) any release of pre- existing hazardous substances arising from the
conduct of any investigation or testing of the New Park Land or for any diminution in the
value of the New Park Land resulting from the information disclosed by any such
investigations or tests, (ii) for any negligence or misconduct of the BR Cortina or any agent,
contractor or employee of BR Cortina, (iii) any pre- existing conditions on or about the New
Park Land, or (iv) any consequential or punitive damages. Notwithstanding such
indemnification, nothing herein shall constitute a waiver of the City's entitlement to
sovereign immunity. In the event that any inspections and any review of documents
conducted by BR Cortina relative to the Existing Park Land during the Inspection Period
prove unsatisfactory to the BR Cortina, at its sole discretion, BR Cortina shall be entitled to
terminate this Agreement by providing written notice to the City at any time prior the
Expiration Inspection Date. In the event that BR Cortina fails to provide a timely written
notice of termination, this Agreement shall not terminate and the City and BR Cortina shall
proceed to Closing as set forth in this Agreement. BR Cortina hereby agrees to indemnify
and hold the City harmless from any and all damage to the Existing Park Land or physical
injury to persons resulting from BR Cortina's negligence in performing such inspections of
the Existing Park Land; provided, however, that this indemnity shall not extend to and in no
event shall BR Cortina be liable to the City for (i) any release of pre- existing hazardous
substances arising from the conduct of any investigation or testing of the Existing Park Land
or for any diminution in the value of the Existing Park Land resulting from the information
disclosed by any such investigations or tests, (ii) for any negligence or misconduct of the
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City or any agent, contractor or employee of the City, (iii) any pre - existing conditions on or
about the Existing Park Land, or (iv) any consequential or punitive damages.
C. During the Inspection Period, both the City and BR Cortina shall provide the
other party reasonable access to any appraisals, environmental reports (Phase I and Phase II,
if any), surveys, abstracts and title policies and all other studies each party may have in its
possession or is subject to its actual control relating to the Existing Park Land and the New
Park Land, respectively, and both the City and BR Cortina shall, without additional
consideration, assign to the other party such due diligence documentation, to the extent
assignable, and shall provide true and correct copies of all leases in effect, if any, with
respect to the Existing Park Land and the New Park Land, respectively.
D. The City's right to inspect and enter onto the New Park Land during the
Inspection Period is expressly conditioned upon the City's covenant to protect BR Cortina
from the filing of any liens against the New Park Land, and the City's indemnification as
provided in Section 3(B). In the event that any claims of lien are filed against the New Park
Land as a result of work performed or requested by the City, the City shall either pay the
sum claimed by the lienor or bond such claim of lien in the manner permitted by law within
five (5) Business Days after the City receives written notice of the existence of the lien.
E. BR Cortina's right to inspect and enter onto the Existing Park Land during
the Inspection Period is expressly conditioned upon the BR Cortina's covenant to protect the
City from the filing of any liens against the Existing Park Land, and the BR Cortina's
indemnification of the City for any and all claims, costs, liabilities and expenses arising out
of the BR Cortina's actions on the Existing Park Land except as otherwise provided in
Section 3(B). In the event that any claims of lien are filed against the Existing Park Land as
a result of work performed or requested by BR Cortina, BR Cortina shall either pay the sum
claimed by the lienor or bond such claim of lien in the manner permitted by law within five
(5) Business Days after BR Cortina receives written notice of the existence of the lien.
F. Except as otherwise provided in this Agreement, all inspections shall be
conducted and completed during the Inspection Period. At any time prior to Expiration
Inspection Date, either Party shall have the alternative, in its sole and absolute discretion, of
either (i) terminating this Agreement, in which event such Party shall notify the other Party
in writing prior to the Expiration Inspection Date of the Party's election to terminate this
Agreement, whereupon both parties shall be released from any further rights and obligations
under this Agreement; or (ii) proceeding with the transaction contemplated by this
Agreement, subject to the terms and conditions of this Agreement. In the event either Party
fails to notify the other Party of its election to terminate this Agreement as provided herein,
such failure shall be deemed an acceptance of the Property and an election to proceed with
the transaction contemplated by this Agreement.
4. REPRESENTATIONS AND WARRANTIES.
A. BR CORTINA'S REPRESENTATIONS. To induce the City to enter into
this Agreement, BR Cortina makes the following representations, all of which, to the best of
Michael Oliveri's actual knowledge, in all material respects and except as otherwise
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provided in this Agreement (i) are now true, and (ii) shall be true on the date the special
warranty deed for the New Park Land is delivered to the City (the "Closing "):
(1) At all times prior to Closing, BR Cortina shall keep the New Park Land
free and clear of any construction, mechanic's or materialmen's liens for work or
materials furnished to or contracted for, by or on behalf of BR Cortina prior to the
Closing.
(2) BR Cortina has no actual knowledge of pending or contemplated
condemnation proceedings affecting the New Park Land or any part thereof.
(3) BR Cortina has no actual knowledge nor has BR Cortina received any
notice of any litigation, claim, action or proceeding, actual or threatened, against
BR Cortina or the New Park Land that would affect the use, occupancy or value
of the New Park Land or any part thereof or which would otherwise relate to the
New Park Land.
(4) Except as may be provided in the Permitted Exceptions New Park Title
Commitment, no individual, general or limited partnership, limited liability
partnership or company, corporation, trust, estate, real estate investment trust,
association or any other entity has or is entitled to possession of any part of the
New Park Land.
(5) No tenant or other occupant, no licensor or franchisor and no other person,
firm, corporation, or other entity has any right or option to acquire the New Park
Land or any portion thereof. The City has the exclusive right to acquire the New
Park Land and, for so long as this Agreement remains in full force and effect, BR
Cortina shall not engage in any negotiations with or solicit offers from any other
party relating to the sale of the New Park Land.
(6) BR Cortina is not a party to any unrecorded contracts, restrictions,
easements, leases, option contracts, rights of first refusal or contracts with respect
to the New Park Land, nor shall BR Cortina enter into any of the foregoing with
respect to the New Park Land from and after the date of execution of this
Agreement without the prior written consent of the City.
(7) To the best of BR Cortina's knowledge, BR Cortina has not received any
written notice claiming that the New Park Land or any method of operation of the
New Park Land is in violation of any applicable law, ordinance, code, rule, order,
regulation or requirement of any governmental authority, the requirements of any
local board of fire underwriters (or other body exercising similar functions) and
BR Cortina further represents that the New Park Land shall be delivered free of
any such violation at Closing.
(8) BR Cortina shall maintain all existing insurance coverage on the New
Park Land in full force and effect through Closing and shall pay all required
premiums and other charges.
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(9) Between the Effective Date and Closing, BR Cortina shall operate and
maintain the New Park Land and shall cause the New Park Land to be operated
and maintained in a manner generally consistent with past practices and in a
manner fully compliant with applicable law and BR Cortina shall reasonably
endeavor to prevent the introduction of any Hazardous Materials onto the New
Park Land and BR Cortina shall reasonably endeavor to prevent the release of any
Hazardous Materials onto the New Park Land. As used in this Agreement, the
term "Hazardous Materials" means (i) those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic substances"
or "solid waste" in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. §960 et seq., the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. § 6901 et seq., the Hazardous Materials
Transportation Act, 49 U.S. C. §1801 et seq., or the Clean Water Act, 33 U.S.C.
§1321 et seq., as amended, and in the regulations promulgated pursuant thereto;
(ii) those substances listed in the United States Department of Transportation
Table (49 CFR §172.101) or by the Environmental Protection Agency as
"hazardous substances," "hazardous materials," "toxic substances" and "solid
waste ", (iii) such other substances, materials and wastes which are regulated, or
classified as hazardous or toxic, under applicable local, state or federal laws,
ordinances or regulations; and any material, waste or substance which is
petroleum, asbestos, polychlorinated, biphenyls, flammable explosives or
radioactive materials.
(10) BR Cortina has full power and authority to enter into this Agreement and
to assume and perform its obligations under this Agreement.
(11) BR Cortina warrants that it will not, between the Effective Date and the
Closing, the City's prior written consent, create by its consent any
g, Ty p Y
encumbrances on the New Park Land. For purposes of this provision, the term
"encumbrances" shall mean any liens, claims, options, or other encumbrances,
encroachments, rights of way or leases.
(12) All of the representations, warranties, and covenants of BR Cortina
contained in this Agreement or in any other document delivered to the City in
connection with the transaction contemplated in this Agreement shall be true and
correct in all material respects and not in default at the time of Closing, just as
though they were made on the date of Closing.
(13) BR Cortina shall indemnify, hold harmless and defend the City against all
claims, demands, losses, liabilities, actual and reasonable costs and expenses,
including reasonable attorney's fees, imposed upon or accruing against the City as
a result of the representations contained in this section being incorrect for a period
of one year.
(14) All warranties, representations, covenants, terms and conditions contained
in this Section 4(A) shall survive the delivery and recording of the deed for a
period of nine (9) months.
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B. THE CITY'S REPRESENTATIONS. To induce the BR Cortina to enter into
this Agreement, the City makes the following representations:, all of which, to the best of its
actual knowledge, in all material respects and except as otherwise provided in this
Agreement (i) are now true, and (ii) shall be true through Closing:
(1) At all times prior to Closing, the City shall keep the Existing Park Land
free and clear of any construction, mechanic's or materialmen's liens for work or
materials furnished to or contracted for, by or on behalf of the City prior to the
Closing.
(2) The City has no actual knowledge of pending or contemplated
condemnation proceedings affecting the Existing Park Land or any part thereof.
(3) The City has no actual knowledge nor has the City received any notice of
any litigation, claim, action or proceeding, actual or threatened, against the City or
the Existing Park Land that would affect the use, occupancy or value of the
Existing Park Land or any part thereof or which would otherwise relate to the
Existing Park Land.
(4) Except as may be provided in the Existing Park Title Commitment, no
individual, general or limited partnership, limited liability partnership or
company, corporation, trust, estate, real estate investment trust, association or any
other entity has or is entitled to possession of any part of the Existing Park Land.
(5) No tenant or other occupant, no licensor or franchisor and no other person,
firm, corporation, or other entity has any right or option to acquire the Existing
Park Land or any portion thereof. BR Cortina has the exclusive right to acquire
the Existing Park Land and, for so long as this Agreement remains in full force
and effect, the City shall not engage in any negotiations with or solicit offers from
any other party relating to the sale of the Existing Park Land.
(6) The City is not a party to any unrecorded contracts, restrictions,
easements, leases, option contracts, rights of first refusal or contracts with respect
to the Existing Park Land, nor shall the City enter into any of the foregoing with
respect to the Existing Park Land from and after the date of execution of this
Agreement without the prior written consent of BR Cortina.
(7) To the best of the City's knowledge, the City has not received any written
notice claiming that the Existing Park Land or any method of operation of the
Existing Park Land is in violation of any applicable law, ordinance, code, rule,
order, regulation or requirement of any governmental authority, the requirements
of any local board of fire underwriters (or other body exercising similar functions)
and the City further represents that the Existing Park Land shall be delivered free
of any such violation at Closing.
(8) The City shall maintain all existing insurance coverage on the Existing
Park Land in full force and effect through Closing and shall pay all required
premiums and other charges.
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(9) Between the Effective Date and Closing, the City shall operate and
maintain the Existing Park Land and shall cause the Existing Park Land to be
operated and maintained in a manner generally consistent with past practices and
in a manner fully compliant with applicable law and the City shall reasonably
endeavor to prevent the introduction of any Hazardous Materials onto the Existing
Park Land and the City shall reasonably endeavor to prevent the release of any
Hazardous Materials onto the Existing Park Land.
(10) The City has full power and authority to enter into this Agreement and to
assume and perform its obligations under this Agreement. By approval and
execution of this Agreement, the City authorizes and ratifies the preparation and
execution by the property officials of the City of all documents necessary to
effectuate the conveyances contemplated by this Agreement.
(11) The City warrants that it will not, between the Effective Date and the
Closing, without BR Cortina's prior written consent, create by its consent any
encumbrances on the Existing Park Land. For purposes of this provision, the term
"encumbrances" shall mean any liens, claims, options, or other encumbrances,
encroachments, rights of way or leases.
(12) All of the representations, warranties, and covenants of the City contained
in this Agreement or in any other document delivered to BR Cortina in connection
with the transaction contemplated herein shall be true and correct in all material
respects and not in default at the time of Closing, just as though they were made
on the date of Closing.
(13) The City shall indemnify, hold harmless and defend BR Cortina against all
claims, demands, losses, liabilities, actual and reasonable costs and expenses,
including reasonable attorney's fees, imposed upon or accruing against the City as
a result of the representations contained in this section being incorrect for a period
of one year.
(14) All warranties, representations, covenants, terms and conditions herein
contained shall survive the delivery and recording of the deed for a period of nine
(9) months.
5. EVIDENCE OF TITLE.
A. NEW PARK LAND.
(1) TITLE COMMITMENT. BR Cortina shall convey the New Park Land,
including all easements and restrictions of record, to the City at Closing by delivery of
the New Park Deed. BR Cortina shall provide to the City, no later than ten (10) days
after the Effective Date, a title insurance commitment ( "New Park Title Commitment ")
issued by a title insurance underwriter chosen by BR Cortina ( "Title Company ")
proposing to insure the City's title to the New Park Land in an amount equal to the fair
market value of the New Park Land, as determined by an appraisal ( "New Park
Appraisal "). The costs and expenses relative to the issuance of the New Park Title
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Commitment, the New Park Appraisal and an owner's title policy for the New Park Land
shall be borne by BR Cortina.
(2) TITLE REVIEW. The City shall have fifteen (15) days from the date of
receiving the New Park Title Commitment to examine the New Park Title Commitment.
If the City objects to any exception to title as shown in the New Park Title Commitment,
the City shall, within fifteen (15) days of receipt of the title commitment, notify BR
Cortina in writing specifying the specific exception(s) to which the City objects ( "City
Title Objection Notice "). All items set forth in the New Park Title Commitment and
New Park Survey (as defined below) that are not included in a timely delivered City Title
Objection Notice shall be deemed "New Park Permitted Exceptions." Within ten (10)
days after BR Cortina's receipt of the City Title Objection Notice, BR Cortina will
provide written notice of its decision to either (i) agree to cure and remove such title
objection within thirty (30) days after receipt of the title objection notice or (ii) refuse to
cure and remove such title objection. If BR Cortina refuses to cure such objection, the
City can either (i) waive such objection and proceed to closing on this transaction and
such objection shall be deemed a Permitted Title Exception hereunder or (ii) terminate
this Agreement. If BR Cortina elects to cure such title objection(s), then within ten (10)
days after the expiration of BR Cortina's time to cure any objection, BR Cortina shall
send to the City a notice in writing (the "Cure Notice ") stating either (i) that the
objection has been cured and, in such case, enclosing evidence of such cure, or (ii) that
BR Cortina is unable to cure such objection despite the good faith efforts of BR Cortina's
to effectuate the cure. If BR Cortina is unable to cure all objections within the time
period set forth in the preceding sentence despite the good faith efforts of BR Cortina,
then the City may (i) terminate this Agreement by written notice to BR Cortina within
fifteen (15) days after receipt of a Cure Notice specifying an uncured objection; or (ii)
subject to the provisions set forth below, proceed to close the transaction contemplated
herein despite the uncured objection. Notwithstanding anything to the contrary herein, if
any of the objections (i) consist of delinquent taxes, mortgages, deeds of trust, security
agreements, construction or mechanics' liens, tax liens or other liens or charges in a fixed
sum or capable of computation as a fixed sum, and (ii) were caused, assumed, created or
permitted to be created by BR Cortina, then, to that extent, BR Cortina shall be obligated
to pay and discharge any such objections prior to the issuance of the title commitment so
that the title policy to the New Park Land is not subject to such monetary obligations and
encumbrances.
(3) SURVEY AND LEGAL DESCRIPTION. No later than ten (10) days
following the Effective Date, BR Cortina shall provide to the City: (i) a current survey
( "current" is defined to be certified within ninety (90) days of the Effective Date),
prepared by a registered land surveyor or engineer licensed in the State of Florida
showing the boundaries of the New Park Land, and the location of any easements and
other matters as reflected on Schedule B - II of the New Park Title Commitment and
certifying the number of acres (to the nearest one thousandth acre) of land contained in
the New Park Land, all buildings, improvements and encroachments; and (ii) a correct
legal description of the New Park Land which, upon approval thereof by the City and BR
Cortina (not to be unreasonably withheld, conditioned or delayed), shall be the legal
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description used in the New Park Deed ( "New Park Survey "). The New Park Survey
shall be certified to BR Cortina, the City and the Title Company.
(4) SURVEY REVIEW. In the event the New Park Survey shows any
material encroachments, strips, gores, or any portion of the land noncontiguous to any
other portion of the New Park Land or any other matter materially affecting the intended
use of the New Park Land or marketability of title to the New Park Land (any such matter
is herein called a "New Park Survey Objection" and treated as a title defect), the City
shall have a period of thirty (30) days after receipt of the New Park Survey within which
to approve or disapprove any New Park Survey Objection and to give written notice to
BR Cortina of any disapproval thereof indicating in reasonable detail the nature and
reasons for the City's objection. In the event the City provides a notice of disapproval of
a New Park Survey Objection to BR Cortina, the rights and obligations of the parties
respecting such objections shall be governed by Section 5(A)(2) of this Agreement such
that the parties shall have the same rights and objections as though such New Park
Survey Objection was a new exception to title which was discovered and objected to
within the contemplation of Section 5(A)(2).
(5) TRANSFER OF TITLE SUBJECT TO. Except as otherwise set forth in
this Agreement, the New Park Land shall be conveyed subject only to the New Park
Permitted Exceptions, water lines, sanitary sewer, drainage, gas distribution, electrical
and telephone easements of record. It shall be the sole and exclusive responsibility of the
City to relocate any utilities and any such relocation costs and expenses shall be borne by
the City. The City shall, in the event of any relocation of the utilities, provide to the City
or the appropriate service provider, easements for the relocated utilities.
B. EXISTING PARK LAND.
(1) TITLE COMMITMENT. The City shall convey the Existing Park Land,
including all easements and restrictions of record, to BR Cortina at Closing by delivery of
the Existing Park Deed. BR Cortina, during the Inspection Period, shall obtain a title
insurance commitment ( "Existing Park Title Commitment ") issued by Title Company
proposing to insure BR Cortina's title to the Existing Park Land at an amount equal to
fair market value of the Existing Park Land, as determined by an appraisal ( "Existing
Park Appraisal "). The costs and expenses relative to the issuance of the Existing Park
Title Commitment, the Existing Park Appraisal and an owner's title insurance policy for
the Existing Park Land shall be borne by BR Cortina.
(2) TITLE REVIEW. BR Cortina shall have fifteen (15) days from the date
of receiving the Existing Park Title Commitment to examine the Existing Park Title
Commitment. If BR Cortina objects to any exception to title as shown in the Existing
Park Title Commitment, BR Cortina shall, within fifteen (15) days of receipt of the
Existing Park Title Commitment, notify the City in writing specifying the specific
exception(s) to which it objects ("BR Cortina Title Objection Notice "). All items set
forth in the Existing Park Title Commitment and Existing Park Survey (as defined below)
that are not included in a timely delivered BR Cortina Title Objection Notice shall be
deemed "Existing Park Permitted Exceptions ". Within ten (10) days after the City's
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(00064022.5 306 - 99051041
receipt of the BR Cortina Title Objection Notice, the City will provide written notice of
its decision to either (i) agree to cure and remove such title objection within thirty (30)
days after receipt of the title objection notice or (ii) refuse to cure and remove such title
objection. If the City refuses to cure such objection, BR Cortina can either (i) waive such
objection and proceed to closing on this transaction and such objection shall be deemed a
Permitted Title Exception hereunder or (ii) terminate this Agreement. If the City elects to
cure such title objection(s), then within ten (10) days after the expiration of the City's
time to cure any objection, the City shall send to BR Cortina a notice in writing (the
"City Cure Notice ") stating either (i) that the objection has been cured and, in such case,
enclosing evidence of such cure, or (ii) that the City is unable to cure such objection
despite the good faith efforts of the City's to effectuate the cure. If the City is unable to
cure all objections within the time period set forth in the preceding sentence despite the
good faith efforts of the City, then BR Cortina may (i) terminate this Agreement by
written notice to the City within fifteen (15) days after receipt of the City Cure Notice
specifying an uncured objection; or (ii) subject to the provisions set forth below, proceed
to close the transaction contemplated herein despite the uncured objection.
Notwithstanding anything to the contrary herein, if any of the objections (i) consist of
delinquent taxes, mortgages, deeds of trust, security agreements, construction or
mechanics' liens, tax liens or other liens or charges in a fixed sum or capable of
computation as a fixed sum, and (ii) were caused, assumed, created or permitted to be
created by the City, then, to that extent, the City shall be obligated to pay and discharge
any such objections prior to the issuance of the title commitment so that the title policy to
the Existing Park Land is not subject to such monetary obligations or encumbrances.
(3) SURVEY AND LEGAL DESCRIPTION. No later than ten (10) days
following the Effective Date, the City shall provide to BR Cortina: (i) a current survey
( "current" is defined to be certified within ninety (90) days of the Effective Date),
prepared by a registered land surveyor or engineer licensed in the State of Florida
showing the boundaries of the Existing Park Land, and the location of any easements and
other matters as reflected on Schedule B -II of the Existing Park Title Commitment and
certifying the number of acres (to the nearest one thousandth acre) of land contained in
the Existing Park Land, all buildings, improvements and encroachments; and (ii) a correct
legal description of the Existing Park Land which, upon approval thereof by the City and
BR Cortina (not to be unreasonably withheld, conditioned or delayed), shall be the legal
description used in the Existing Park Deed (the "Existing Park Survey "). The Existing
Park Survey shall be certified to BR Cortina, the City and the title insurance company
issuing the title insurance.
(4) SURVEY REVIEW. In the event the survey shows any material
encroachments, strips, gores, or any portion of the land noncontiguous to any other
portion of the Existing Park Land or any other matter materially affecting the intended
use of the Existing Park Land or marketability of title to the Existing Park Land (any such
matter is herein called a `BR Cortina Survey Objection" and treated as a title defect),
BR Cortina shall have a period of thirty (30) days after receipt of the Existing Park
Survey within which to approve or disapprove any BR Cortina Survey Objection and to
give notice to the City of any disapproval thereof indicating in reasonable detail the
nature and reasons for BR Cortina's objection. In the event BR Cortina provides a notice
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{00064022.5 306 - 9905104 }
of disapproval of a BR Cortina Survey Objection to the City, the rights and obligations of
the parties respecting such objections shall be governed by Section 5(B)(2) of this
Agreement such that the parties shall have the same rights and objections as though such
BR Cortina Survey Objection objected to was a new exception to title which was
discovered and objected to within the contemplation of Section 5(B)(2).
(5) TRANSFER OF TITLE SUBJECT TO. Except as otherwise set forth in
this Agreement, the Existing Park Land shall be conveyed subject only to the Existing
Park Permitted Exceptions, water lines, sanitary sewer, drainage, gas distribution,
electrical and telephone easements of record. It shall be the sole and exclusive
responsibility of BR Cortina to relocate any utilities and any such relocation costs and
expenses shall be borne by BR Cortina. The City shall, in the event of any relocation of
the utilities, provide to BR Cortina or the appropriate service provider, easements for the
relocated utilities.
6. RISK OF LOSS.
A. NEW PARK LAND. Risk of loss or damage from fire, other casualty, or
both, to the New Park Land is assumed by BR Cortina until the New Park Deed is executed
by BR Cortina. In the event any portion of the New Park Land is destroyed by fire or other
casualty then the following shall apply:
(1) If the damage, as determined by the insurance adjuster, is not more than
Five Hundred Thousand ($500,000.00) Dollars: (i) the City shall proceed to close the
transaction contemplated herein and all insurance proceeds relating to the improvements
damaged by such casualty shall be paid to the City, and (ii) BR Cortina shall pay to the
City on the Closing Date the full amount of any deductible under BR Cortina's fire and
extended coverage insurance policy applicable to said damage; or
(2) If the damage, as determined by the insurance adjuster, is more than Five
Hundred Thousand ($500,000.00) Dollars, the City shall have the option to (i) proceed to
close the transaction contemplated herein and collect all available insurance proceeds
relating to the improvements damaged by such casualty, in which case BR Cortina shall
pay to the City on the Closing Date the full amount of any deductible under BR Cortina's
fire and extended coverage insurance policy, or (ii) terminate this Agreement. BR
Cortina warrants that it shall maintain until the Closing Date adequate "All Risk"
property insurance.
PARK LAND. Risk of loss or damage from fire, other casualty,
EXISTING g ty,
or both, to the Existing Park Land is assumed by the City until the New Park Deed is
executed by the City. In the event any portion of the Existing Park Land is destroyed by fire
or other casualty then the following shall apply:
(1) If the damage, as determined by the insurance adjuster, is not more than
Five Hundred Thousand ($500,000.00) Dollars: (i) BR Cortina shall proceed to close the
transaction contemplated herein and all insurance proceeds relating to the improvements
damaged by such casualty shall be paid to BR Cortina, and (ii) the City shall pay to BR
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{00064022.5 306 - 9905104 }
Cortina on the Closing Date the full amount of any deductible under the City's fire and
extended coverage insurance policy applicable to said damage; or
(2) If the damage, as determined by the insurance adjuster, is more than Five
Hundred Thousand ($500,000.00) Dollars, BR Cortina shall have the option to (i)
proceed to close the transaction contemplated herein and collect all available insurance
proceeds relating to the improvements damaged by such casualty, in which case the City
shall pay to BR Cortina on the Closing Date the full amount of any deductible under the
City's fire and extended coverage insurance policy, or (ii) terminate this Agreement. The
City warrants that it shall maintain until the Closing Date adequate "All Risk" property
insurance.
7. CLOSING COSTS.
BR Cortina shall pay the costs of the New Park Title Commitment and Existing Park
Title Commitment, the premiums for the title insurance policies on the New Park Land and
Existing Park Land, the costs of the New Park Survey and Existing Park Survey, the
documentary stamp taxes on the New Park Deed and Existing Park Deed, and the costs of
recording the New Park Deed and the Existing Park Deed.
8. NEW PARK REQUIREMENTS.
A. The City acknowledges and agrees that the development of Cortina will
include the Existing Park Land. The City will process any amendments to any plats, site
plans, or other land development approvals submitted by BR Cortina with respect to the
development of Cortina, including the Existing Park Land. The City, as the current owner
of the Existing Park Land, will consent to the re -plat of Cortina, which re -plat will include
the Existing Park Land and the New Park Land. In addition, the City will consent to the
expansion of the boundaries of the Boynton Village Community Development District (the
"CDD ") to include the New Park Land and Existing Park Land, provided, however, the
New Park Land shall be exempt from paying any assessments authorized, adopted, and/or
imposed by the CDD.
B. BR Cortina acknowledges and agrees that it shall be responsible to grade,
irrigate, landscape, install lighting, construct a dog park and an accompanying ten (10) space
parking lot within the New Park Land (collectively, the "Park Improvements "), in
accordance with and consistent with the specifications and requirements contained in the
Site Plan. The Park Improvements as indicated on the Site Plan are incorporated into this
Agreement as is fully set forth in this Agreement. As of the Closing Date, the City shall
provide BR Cortina with access to the New Park Land by means of a temporary
construction and access easement in the form attached to this Agreement as Exhibit E
( "Temporary Construction and Access Easement ") which shall permit and authorize BR
Cortina to access the New Park Land for construction and installation of the Park
Improvements. Prior to commencing construction and/or installation of the Park
Improvements, BR Cortina shall obtain and record a payment and performance bond
pursuant to and consistent with the requirements of Section 255.05, Florida Statutes. Any
modifications or amendments to the Park Improvements shall not require any obligations on
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{00064022.5 306 - 9905104 )
the part of the City with respect to the installation and/or construction of the Park
Improvements. BR Cortina shall be responsible for all maintenance, repair, and
replacement of the Park Improvements in conformance with all City standards, guidelines,
and legal requirements; provided, however, BR Cortina's obligation to maintain, repair and
replace the Park Improvements shall terminate upon the earlier of either (a) the creation of a
homeowners association to operate and maintain Cortina or any portion of Cortina, which
homeowners association has the obligation to maintain, repair and replace the Park
Improvements, or (b) the boundaries of the CDD are expanded to include the New Park
Land and the CDD is responsible to maintain, repair and replace the Park Improvements.
C. The Park Improvements shall be substantially completed on or before the
issuance of the first certificate of occupancy for the residential units constructed within
Cortina ( "Substantial Completion "). Substantial Completion of the Park Improvements
shall be deemed to have occurred (a) when the Park Improvements are sufficiently complete
in accordance with the terms of this Agreement so that the Park Improvements can be
utilized for their intended use, and (b) upon the issuance of a certificate from BR Cortina's
engineer that the Park Improvements have been substantially completed without regard to
whether the Park Improvements have been conveyed to, or accepted by, the City. If a
dispute arises between the parties as to Substantial Completion of the Park Improvements,
then such determination shall be made by an independent third party engineer chosen by BR
Cortina's engineer and the City within ten (10) days following notice from BR Cortina
and/or the City that there is a dispute in regard to the Substantial Completion of the Park
Improvements; the non - prevailing party in such a dispute shall pay for the actual cost of the
third party engineer.
D. During construction and/or installation of the Park Improvements and
through Substantial Completion, BR Cortina shall obtain and maintain, and/or cause
Subcontractors to obtain and maintain, insurance as set forth below so as to provide
protection from claims which may arise out of or result from BR Cortina's construction
and /or installation of the Park Improvements, whether such construction and/or installation
of the Park Improvements is performed by BR Cortina, by any person or entity who has a
direct contract with BR Cortina to perform all or a portion of the construction and/or
installation of the Park Improvements ( "Subcontractor "), by anyone directly or indirectly
employed by BR Cortina or a Subcontractor to perform or furnish any of the Park
Improvements, or by anyone for whose acts any of them may be liable. Before starting and
during construction and/or installation of the Park Improvements, BR Cortina shall procure
and maintain insurance for protection from claims under applicable workers' compensation
laws, claims for damages because of bodily injury, and claims for damages, other than the
Park Improvements themselves, to the New Park Land which may arise out of or result from
the construction and/or installation of the Park Improvements pursuant to this Agreement,
and meeting the following minimum requirements:
(1) Workers' Compensation insurance covering all employees employed in, or
about the New Park Land and involved in the construction and/or installation of the Park
Improvements with limits no less than the amount required by applicable State and
Federal laws and employers' liability in an amount not less than $100,000 each
occurrence, $100,000 each employee disease, and $500,000 policy limit. The policy
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{00064022.5 306 - 99051041
must contain a provision that the policy will not be canceled and the policy limits will not
be reduced until at least thirty (30) days' prior written notice has been provided to the
City.
(2) Comprehensive General Liability or Commercial General Liability
Coverage must be afforded from BR Cortina's or Subcontractors' usual sources as
primary coverage for BR Cortina's and Subcontractors' vicarious liability for
construction operations under this Agreement, and must include (i) contractual liability
coverage insuring the activities of BR Cortina and/or Subcontractors under this
Agreement, (ii) protective liability coverage on operations of independent contractors
engaged in construction, (iii) blanket contractual liability coverage, and (iv) products
liability coverage, in the event of bodily injury to any number of persons or of damage to
property arising out of any one occurrence and including a cross- liability provision, with
limits of liability of at least $1,000,000 per occurrence and $2,000,000 in the aggregate
with contractual liability coverages and with no deductible in excess of $25,000. The
City shall be named an additional insured (including products), and the policy must
contain a provision that the policy will not be canceled and the policy limits will not be
reduced until at least thirty (30) days' prior written notice has been provided to the City.
(3) Commercial Automobile Liability, on an occurrence basis, with a
combined single limit for bodily injury and property damages per accident of $1,000,000
coverage "any auto ", and mandatory limits for personal injury protection and uninsured
motorist coverage. The policy must contain a provision that the policy will not be
canceled and the policy limits will not be reduced until at least thirty (30) days' prior
written notice has been provided to the City.
(4) The insurance required pursuant to this Agreement shall be obtained from
a company or companies authorized to do business in the State of Florida with A Best
Rating of no less than A -7. Neither BR Cortina nor any Subcontractor shall commence
construction and/or installation of the Park Improvements until the insurance required
pursuant to this Agreement has been obtained and the City has been provided with
certificates of insurance reflecting the required insurance. BR Cortina shall be
responsible for and shall obtain and provide the City with insurance certificates on behalf
of Subcontractors. All Certificates of Insurance should specifically list The City of
Boynton Beach as certificate holder and The City of Boynton Beach, its Officers,
Employees and Agents as additionally insured. All certificates of insurance shall be filed
with the City.
E. INDEMNIFICATION. BR Cortina agrees to defend, indemnify, and hold
the City and the City's its officers, employees, and agents harmless (each an "Indemnitee"
and collectively "Indemnitees ") from and against any and all damages, liabilities, claims,
actions, penalties, damages, settlements, judgments, costs and expenses, including court
costs, reasonable attorney's fees, and paralegal expenses, at both the trial and appellate
levels (collectively, "Losses ") arising directly out of BR Cortina's construction and/or
installation of the Park Improvements, to the extent caused by the negligence, recklessness,
or intentional wrongful misconduct of BR Cortina, its employees, officers, representative,
agents, and Subcontractors including, without limitation, Losses arising directly out of or
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{00064022.5 306 - 9905104 }
resulting from (a) personal injury, death, damage to property, defects in materials or
workmanship, or (b) a claim that the City's receipt or use of the Park Improvements
infringes or misappropriates any patent, trademark, copyright or of any other tangible or
intangible personal or property right of a third party, or (c) a claim that the construction
and/or installation of the Park Improvements violates any applicable statute, ordinance,
administrative order, rule or regulation or decree of any court; provided, however, the
foregoing indemnity shall not apply (i) with respect to any Losses to the extent that such
losses are the result of any acts or omissions on the part of the Indemnitees or any of its
employees, agent, contractors, subcontractors, successors and/or assigns, (ii) to the extent
such Losses are covered by the insurance required to be maintained by the this Agreement,
or (3) to the extent any Losses are in excess of Indemnitees' liability pursuant to applicable
law including, without limitation, Section 768.28, Florida Statutes. The provisions of this
Section 8(E) shall survive the Closing Date for a period of one (1) year after Substantial
Completion of the Park Improvements.
F. Except as otherwise provided in Section 8(E), the provisions of this Section 8
shall survive the Closing Date until Substantial Completion of the Park Improvements.
9. DEFAULT. If either party defaults in the performance of any of its obligations or
requirements under this Agreement, and the defaulting party fails to remedy such default within
thirty (30) days after written notice by the other Party of such default(s) (the "Default Notice "),
except for a failure to close in accordance with the terms of this Agreement which shall
constitute an immediate default for which no Default Notice is required, the non - defaulting Party
shall have, as its sole remedy for such default, the option to pursue an action against the
defaulting party for specific performance of this Agreement and obtain such orders or decrees as
appropriate to achieve specific performance of the defaulting parties' obligations under this
Agreement. In the event either Party is required to enforce this Agreement by court proceedings
or otherwise, the prevailing party shall be entitled to collect from the non - prevailing party its
reasonable attorneys' fees, paraprofessional fees and costs incurred pretrial, at trial, and at all
levels of proceedings, including appeals.
10. NOTICE. All notices, request, consents, instructions, and communications required or
permitted under this Agreement shall be in writing and shall be (as elected by the person giving
such notice) hand - delivered by messenger or nationally recognized overnight courier service,
sent by facsimile or electronic transmission (i.e. e-mail) with copy by mail, or mailed by certified
mail (postage prepaid), return receipt requested, and addressed to each party at their respective
addresses as set forth below or to such other addresses any party may designate by notice
complying with the terms of this Section 10:
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{00064022.5 306 - 99051041
As to BR Cortina: BR Cortina Acquisition LLC
c/o BlackRock
400 Howard Street, 2 Floor
San Francisco, CA 94105
Attn: Philip Mader
Facsimile: (415) 618 -1761
E -mail: philip.mader @blackrock.com
Bridge Cortina Management, LLC
c/o Waypoint Residential
7284 W. Palmetto Park Rd., Suite 201
Boca Raton, Florida 33433
Attn: Michael Oliveri
Facsimile: (561) 206 -0962
E -mail: moliveri@waypointliving.com
w /copy to: Berger Singerman LLP
350 E. Las Olas Boulevard, Suite 1000
Fort Lauderdale, Florida 33301
Attn: Jeffrey R. Margolis, Esq.
Facsimile: (954) 523 -2872
E -mail: jargolis@bergersingerman.com
If to City: City of Boynton Beach
100 E. Boynton Beach Boulevard
Boynton Beach, Florida 33435
Attn: Lori Laverriere, City Manager
Facsimile: (561) 742 -6011
E -mail: laverrierel @bbfl.us
with copy to: James Cherof, City Attorney
100 E. Boynton Beach Boulevard
Boynton Beach, Florida 33435
Facsimile: (954) 771 -4923
E -mail: jcherof @cityatty.com
Each such notice, request, or other communication shall be considered given and shall be
deemed delivered (a) on the date delivered if by personal delivery or courier service; (b) on the
date of transmission if by facsimile or electronic transmission (i.e. e-mail) if transmitted before
5:00 p.m. on a Business Day, and on the next Business Day if transmitted after 5:00 p.m. or on a
non - Business Day with a copy of such notice also sent by the methods described in (a) or (c); or
(c) on the date on which the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the case may be, if mailed. Rejection,
refusal to accept, or inability to deliver of which no notice was given shall be deemed to be a
receipt of such notice, request, or other communication. The respective attorneys for Seller and
Purchaser are hereby authorized to give any notice pursuant to this Agreement on behalf of their
respective clients.
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{00064022.5 306-9905104
11. MISCELLANEOUS PROVISIONS
A. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of Florida and venue for any legal proceeding arising out of this Agreement shall be
exclusively in Palm Beach County, Florida.
B. MODIFICATION. This Agreement may not be changed, altered, modified,
amended or terminated except by written agreement signed by both the City and BR
Cortina.
C. BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of the Parties hereto, their heirs, assigns and successors in interest. This
Agreement is solely for the benefit of the Parties to this Agreement and no right or cause of
action shall accrue upon, to or for the benefit of any third party not a party to this
Agreement. Nothing in this Agreement expressed or implied is intended or shall be
construed to confer upon any person or corporation other than the Parties to this Agreement
any right, remedy or claim under or by reason of this Agreement or any provisions or
conditions of this Agreement, and all of the provisions, representations, covenants and
conditions contained in this Agreement shall inure to the sole benefit of and shall be binding
upon the Parties to this Agreement and their respective representatives, successors and
assigns.
D. SEVERABILITY. In the event that any paragraph, section, term, provision
or portion of this Agreement is determined to be illegal, unenforceable, or otherwise invalid,
such paragraph, section, term, provision or portion of this Agreement shall be given its
nearest legal meaning or be stricken from and construed for all purposes not to constitute a
part of this Agreement, and the remaining portion of this Agreement shall remain in full
force and effect and shall, for all purposes, constitute the entire agreement.
E. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original, and a complete set of which taken together
shall constitute one and the same agreement. The parties agree and intend that a signature
by facsimile machine or electronic transmission (i.e. e-mail) shall bind the party so signing
with the same effect as though the signature was an original.
F. EFFECTIVE DATE. The Effective Date of this Agreement shall be the date
the City executes the Agreement.
G. ENTIRE AGREEMENT. This Agreement constitutes the complete
understanding and entire agreement of the City and BR Cortina with respect to the matters
addressed in this Agreement and there are no other agreements, representations, or
warranties other than as set forth in this Agreement. No agreement or representation, unless
set forth in this Agreement, shall bind any of the Parties to this Agreement.
H. WAIVER OF BREACH. The failure of the City or BR Cortina to enforce
any provisions of this Agreement shall not be construed to be a waiver of such or any other
provision, nor in any way to affect the validity of all or any part of this Agreement, or the
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{00064022.5 306 - 9905104
1
right of such party thereafter to enforce each and every such provision. No waiver of any
breach of this Agreement shall be held to constitute a waiver of any other or subsequent
breach.
I. TIME AND TIME PERIODS. Time is of the essence in the performance of
each of the obligations contained in this Agreement. Unless otherwise specifically provided
in this Agreement, time periods shall be determined on calendar days, including Saturdays,
Sundays and legal holidays. Wherever any time limit or date provided in this Agreement
falls on a Saturday, Sunday or legal holiday under the laws of the State of Florida, then that
date is automatically extended to the next day that is not a Saturday or Sunday or legal
holiday. For purposes of this Agreement, the term "Business Day" means any weekday
that is not a legal holiday under the laws of the State of Florida.
J. HEADINGS. The headings, captions and section numbers appearing in this
Agreement are inserted only as a matter of convenience and do not define, limit, construe or
describe the scope or intent of such paragraphs of this Agreement or in any way affect this
Agreement.
K. CONSTRUCTION OF AGREEMENT. The City and BR Cortina
acknowledge that they have had the benefit of independent counsel with regard to this
Agreement and that this Agreement has been prepared as a result of the joint efforts of all
Parties and their respective counsel. Accordingly, all Parties agree that the provisions of
this Agreement shall not be construed or interpreted for or against any Party based upon
authorship.
L. EXECUTION OF DOCUMENTS. Each Party covenants and agrees that it
will at any time and from time to time do such acts and execute, acknowledge and deliver,
or cause to be executed, acknowledged and delivered, such documents reasonably requested
by the other Party necessary to carry out fully and effectuate the transaction contemplated
by this Agreement and to convey good and insurable title for all conveyances subject to this
Agreement.
M. BOYNTON VILLAGE COMMUNITY DEVELOPMENT DISTRICT. BR
CORTINA AND THE CITY ACKNOWLEDGE THAT: (I) THE PROPERTY IS OR
WILL BE LOCATED WITHIN THE BOYNTON VILLAGE COMMUNITY
DEVELOPMENT DISTRICT; (II) THE BOYNTON VILLAGE COMMUNITY
DEVELOPMENT DISTRICT MAY IMPOSE AND LEVY TAXES AND /OR
ASSESSMENTS ON THE EXISTING PARK LAND; (III) THESE TAXES AND
ASSESSMENTS MAY PAY THE CONSTRUCTION, OPERATION, AND
MAINTENANCE COSTS OF CERTAIN PUBLIC FACILITIES AND SERVICES OF
THE BOYNTON VILLAGE COMMUNITY DEVELOPMENT DISTRICT AND ARE
SET ANNUALLY BY THE GOVERNING BOARD OF THE BOYNTON VILLAGE
COMMUNITY DEVELOPMENT DISTRICT; AND (IV) THESE TAXES AND /OR
ASSESSMENTS ARE IN ADDITION TO COUNTY AND OTHER LOCAL
GOVERNMENTAL TAXES AND ASSESSMENTS AND ALL OTHER TAXES AND
ASSESSMENTS PROVIDED FOR BY LAW.
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4701439 -11
(00064022.5 306 - 9905104}
IN WITNESS WHEREOF, the City and BR Cortina hereto have executed this
Agreement as of the date set forth above.
BR CORTINA ACQUISITION LLC,
a Delaware limited liability company
By: Bridge Cortina Management, LLC
a Florid limited liability, its non - member
manage
By:
Name: Ncilez/ al+ vQ�o
Title: r'1. a A.
STATE OF FLORIDA
P )
COUNTY OF Ik � W�
The foregoin instrument was acknowled ed before me this .2 day of 0c7D8 &2 ,
20 (s , by kl 101w -v i , as Not Ati &4 tof Bridge Cortina Management,
LLC, a Florida limited liability company, the non - member manager of BR Cortina Acquisition
LLC, a Delaware limited liability company, who is personally known to me or has produced a
as identification, on behalf of the company .
My commission Expires:
Notary Public, State of Florida
tiM' : 'v'' , MELODY LAI
MY COMMISSION # FF 174774 Jl0 �/
�`' *` EXPIRES: November 6, 2018
. " 4 4,0;1 1 Bonded Nu Notary Public Underwriters Printed Name of N Public
[SIGNATURE OF THE CITY ON THE FOLLOWING PAGE.]
20
4701439 -11
(00064022.5 306 - 9905104 )
STATE OF FLORIDA )
)ss:
COUNTY OF PALM BEACH )
21
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{00064022.5 306- 9905104 }
Printed Name ofvotary Public
Exhibit A
Legal Description of the Existing Park Land
� g 1M E r
947 Clint Moore Road SURVEYING & MAPPING Tel: (561) 241 -9988
Boca Raton, Florida 33487 Certificate of Authorization 14o. LB7264 Fax: (561) 241 -5182
SKETCH AND LEGAL DESCRIPTION
(NOT A SURVEY) 47X/6 / T A
BOYNTON TOWN CENTER - EXISTING CITY PARK
LEGAL DESCRIPTION
SMU - Pork Parcel, of "BOYNTON TOWN CENTER, A P.C.D ", as recorded in Plot Book
106, Pages 144-151 of the Public Records of Polm Beacn County, Florida,
LESS AND EXCEPT THE EAST 40.00 FEET THEREOF.
Said parcel of land situate within the City of Boynton Beach, Palm Beach County,
Florida, contoining 4.723 Acres, (205751 Square Feet), more or Tess.
"Ilt
.,
i ffic III . -I ABBREVIATIONS
- - - - - -- L ARCLENGTH
KEY MAP D R DELTA ANGLE)
L.B. LICENSED BUSINESS
NOTES L.S. LICENSED SURVEYOR
1. REPRODUCTIONS OF THIS SKETCH ARE NOT VALID
MON. .8. OFFICIAL RECORDS BOOK
WITHOUT THE SIGNATURE AND THE ORIGINAL RAISED P.0.8. • POINT OF BEGINNING
SEAL OF A FLORIDA LICENSED SURVEYOR AND MAPPER. P.o.C. - POINT OF COMIENCEb£NT PLAT 2. NO SEARCH OF THE PUBLIC RECORDS WAS MADE p, B. C. R. • PALM BEACH COUNTY RECORDS
IN THE PREPARATION OF THIS SKETCH AND DESCRIPTION. pG. PAGE
3. BEARINGS SHOWN HEREON ARE BASED ON THE P.S.M. - PROF ESSIONAL SURVEYOR
NORTH LINE OF SAID PLAT HAVING A BEARING OF 8 MAPPER
NORTH 87° 45'57" EAST, ACCORDING TO SAID PLAT. R/W RIGHT - OF - WAY
•
CERTIFICATION
(HEREBY CERTIFY THAT THE SKETCH AND DESCRIPTION SHOWN HEREON
COMPLIES WITH MINIMUM TECHNICAL STANDARDS AS CONTAINED IN
CHAPTER 5J- 17.051, FLORIDA ADMINISTRATIVE CODE, PURSUANT TO
SECTION 472.027, FLORIDA STATUTES, AND THAT SAID SKETCH AND
DESCRIPTION IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE .
AND BELIEF A P ED UNDER MY DIRECTION.
JErf .
SU EYOR AND MAPPER
FLORIDA LICENSE NO. LS5111
Project Nolpl 800NTON VILLAGE 000 MOE, 02/24/2015
Joe NO. 04173 DM BY. JSH
WO BY. JEK EHLLT 10F 2
4701439 - 11
(00064022.5 306 - 9905104)
4g,,..„---,__---- M e T..4
947 Clint Moore Road SURVEYING &MAPPING Tel: (561) 241 -9988
Boca Raton, Florida 35467 Certificate of Authorization No. LB7264 Fax: (5611241 - 5182
SKETCH AND LEGAL DESCRIPTION
(NOT A SURVEY)
PN
i
'I
1
i n "C ORTINA PUD REPEAT" E '
I i l ' 11 I I I 1 1 (P.B. 109, PGS. 196-202) 1
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E
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_ UTILITY EASEMENT {,�
` -' RB13 7 PG.16i0) '2' L ! g '
11 9� 4�'5 ' +2' 8 . J . a � o
r l 1 , _ _ C)1,. — 4 b'PEDESTRIAN EASEMENT Z
- 6.50 \ 50' OPENING "BOYNTON TOWN CENTER, AP.C.D. - ��
D•18 34'11" a ' /(P.B. 106, {P.B. 106, PGS. 144 151) 0 �.� I , 7
0 Oo
1' PG -151 L•209.53' N 0
1, ' 11 10' R.U.E. SMU -PARK PARCEL to a I b
1 1' (pg. 106, "BOYNTON TOWN CENTER, A P.C.D."
I z o II PGS, 144-151) (P.B. 106, PGS. 144 -151) 'A _o
I n
L„,: :: N71° 32'14 "W 5' L.A.E. m I
o II 15' L.B.E. (P.B. 106,
72.61' r — (P.B. 106, IPGS. 144 -151)
W
PGS. 144-15i)'
a TRACT Z - S89 48' "W 48'57 "
S89° W
1 _ _ 229.06' _ _ N78° 45'29 "W _ 379.29'
0
v— OL BOYNTON ROAD 20.19' A ` _
JCr1 NO. 04173 rrolect Na01a, RDYNTBN ALL ACE COO 1owc Pri JSH SCALE, 1" °150'
CK '0 BY' JEK ❑A' • 02/24/2015 SI ICE' 2 OF 2
4701439 -11
{00064022.5 306 - 9905104 )
Exhibit B
Legal Description of Cortina
ALL OF CORTINA PUD REPLAT, ACCORDING TO THE PLAT THEREOF, RECORDED
IN PLAT BOOK 109, PAGES 196 THROUGH 202 OF THE PUBLIC RECORDS OF PALM
BEACH COUNTY, FLORIDA.
AND
PARCEL "SMU — PARCEL 3 — TRACT WR2- RESIDENTIAL" OF THE PLAT OF
BOYNTON TOWN CENTER, A P.C.D., ACCORDING TO THE PLAT THEREOF,
RECORDED IN PLAT BOOK 106, PAGE 144 OF THE PUBLIC RECORDS OF PALM
BEACH COUNTY, FLORIDA.
AND
PARCEL "SMU — PARCEL 4 — TRACT WR1- RESIDENTIAL" OF THE PLAT OF
BOYNTON TOWN CENTER, A P.C.D., ACCORDING TO THE PLAT THEREOF,
RECORDED IN PLAT BOOK 106, PAGE 144 OF THE PUBLIC RECORDS OF PALM
BEACH COUNTY, FLORIDA.
4701439 -11
{00064022.5 306 - 9905104}
4
Exhibit C
Legal Description and Sketch of the New Park Land
4GRI
Q -��P
947 Clint, MoreRood SURVEYING & MAPPING Tel:15.1611241.9988
Bo::o Raton,F�tondo 334 B7 Certificate of Authorization 11o.LB 2G4 Fox: 1568241.5182
SKETCH AND LEGAL DESCRIPTION
(NOT A SURVEY) Enf leriT° C
PROPOSED PARK PARCEL
LEGAL DESCRIPTION
ALL OF LOTS 338 THROUGH 343,345 THROUGH 376,379 THROUGH 383, AND 388
THROUGH 392, TOGETHER WITH PORTIONS OF LOTS 337, 344, 377, 378, 384
THROUGH 387 AND 393, AND PORTIONS OF TRACTS B -5, B-6 AND R -2, ALL OF
CORTINA PUD REPLAT, ACCORDING TO THE PLAT THEREOF, RECORDED IN PLAT
BOOK 109, PAGES 196 THROUGH 202 OF THE PUBLIC RECORDS OF PALM BEACH
COUNTY, FLORIDA AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF SMU - LAKE PARCEL, BOYNTON
TOWN CENTER, A P.C.D., ACCORDING TO THE PLAT THEREOF, RECORDED IN PLAT
BOOK 106, PAGES 144 THROUGH 151 OF THE PUBLIC RECORDS OF PALM BEACH
COUNTY, FLORIDA: THENCE NORTH 83° 50'35" WEST, A DISTANCE OF 9.11 FEET TO
THE POINT OF BEGINNING; THENCE SOUTH 03° 01'43" EAST, A DISTANCE OF 112.89
FEET; THENCE SOUTH 06° 58'40" EAST, A DISTANCE OF 102.68 FEET; THENCE SOUTH
09°51'11" EAST, A DISTANCE OF 133.60 FEET; THENCE SOUTH 14° 09'16" EAST, A
DISTANCE OF 132.91 FEET; THENCE SOUTH 18°59'00" EAST, A DISTANCE OF 148.91
FEET; THENCE SOUTH 25° 45'25" EAST, A DISTANCE OF 184.46 FEET; THENCE SOUTH
89° 19'14" WEST, A DISTANCE OF 183.07 FEET TO A POINT ON THE ARC OF A
CIRCULAR CURVE TO THE LEFT, AT WHICH THE RADIUS POINT BEARS SOUTH
70° 49'03" WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE,
HAVING A RADIUS OF 646.50 FEET AND A CENTRAL ANGLE OF 05° 56'36 ", A
DISTANCE OF 67.06 FEET TO A POINT OF REVERSE CURVATURE OF A CIRCULAR
CURVE TO THE RIGHT: THENCE NORTHWESTERLY AND NORTHERLY ALONG THE
ARC OF SAID CURVE, HAVING A RADIUS OF 1452.00 FEET AND A CENTRAL ANGLE
OF 25° 34'55 ", A DISTANCE OF 648.30 FEET TO A POINT OF REVERSE CURVATURE OF
A CIRCULAR CURVE TO THE LEFT; THENCE NORTHERLY ALONG THE ARC OF SAID
CURVE, HAVING A RADIUS OF 646.50 FEET AND A CENTRAL ANGLE OF 09°49'59", A
DISTANCE OF 110.95 FEET (THE LAST THREE DESCRIBED COURSES BEING
COINCIDENT WITH THE WEST BOUNDARY OF SAID TRACT 0-5); THENCE SOUTH
83°50'35" EAST, ALONG A NON - RADIAL LINE, A DISTANCE OF 152.78 FEET TO THE
POINT OF BEGINNING.
SAID LANDS SITUATE IN THE CITY OF BOYNTON BEACH, PALM BEACH COUNTY,
FLORIDA, AND CONTAIN 3.000 ACRES, MORE OR LESS.
NOTES
1. REPRODUCTIONS OF THIS SKETCH ARE NOT VALID WITHOUT THE SIGNATURE AND THE
ORIGINAL RAISED SEAL OF A FLORIDA LICENSED SURVEYOR AND MAPPER.
2. NO SEARCH OF THE PUBLIC RECORDS WAS MADE IN THE PREPARATION OF THIS SKETCH ANL)
DESCRIPTION.
3. BEARINGS SHOWN HEREON ARE BASED ON THE EAST RIGHT -OF -WAY LINE OF CONGRESS
AVENUE, HAVING AN ASSUMED BEARING OF NORTH 01° 23'03" WEST.
CERTIFICATION
I HEREBY CERTIFY THAT THE SKETCH AND DESCRIPTION SHOWN HEREON
COMPLIES WITH MINIMUM TECHNICAL STANDARDS AS CONTAINED IN
CHAPTER 5J-17.051, FLORIDA ADMINISTRATIVE CODE, PURSUANT TO
SECTION 472.027, FLORIDA STATUTES, AND THAT SAID SKETCH AND
1 DESCRIPTIO IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE
AND E S P ARED UNDER MY DIRECTION.
JEF PP
S YOR AND MAPPER
ORIDA LICENSE NO LS511I
H. B°°°, CORTINA HAZE, 10/28/2014
.ros No. 04173 ouo er, JSH
CND Hy, JFK SHEET 1 OF 4
4701439 -11
{00064022.5 306 - 9905104 )
Q coR1 M___ E
947 Clint Moore R Tal :(56I124I-9908
Boca Raton Floride 87 SURVEYING & MAPPING Fax :15611241 -5182
fertiTictlle or Authorization No, LB1264
SKETCH AND LEGAL DESCRIPTION
(NOT A SURVEY)
PROPOSED PARK PARCEL
I AVE./ GATEWAY BLVD.
BuANTV14
CORP(MATE
a PARK S
L.W.O.O. CANAL E-4
: N I'1: A 111mwm omm ita 1.
BOYNTON 4 -PAGE 3
BEACH TI "II
MALL E SKETCH
I —PAGE 4
11uilti1/J1/l : a: e �,...
L
; .
LOC • T ION MAP
NM TO SCALE
ABBREVIATIONS
P.B.C.R. • PALM BEACH COUNTY RECORDS
D DELTA (CENTRAL ANGLE/
F.P.L. = FLORIDA POWER B LIGHT COMPANY
L - ARCLENGTH
L.B. • LICENSED BUSINESS
L.S. LICENSED SURVEYOR
L.W.D.D. LAKE WORTH DRAINAGE DISTRICT
NO. • NUMBER
O.R.B. OFFICIAL RECORDS BOOK
P.B. • PLAT BOOK
PG. - PAGE
R • RADIUS
R/W • RIGHT -OF -WAY
ENTIO DATE, 18/28/2014
JOB NO. 0417? DWG BY, JSIi
mo B JEK SHEET 2 OF 4
4701439 -11
(00064022.5 306 - 9905104 )
SMU LAKE PARCEL
/ ,..`�. ® "BOYNT S -LAK CENTER A P.C.D."
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- .1452.00'
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- 09° 4 ' SPINE ROAD TRAC p . 25° 34 55 �y t1*11 p g C•R -- i
D • 09° 49'59" °B P BT 06, TOWN CENTER. 51. B C R.) (p.9.10 P� 20 � - i
----r— _ - - -- - _ CGE E SEN .R.) I
------ 5' L.A.E. 100' CROQS P G S 218 P.g.L g
(P.B. 106, PGS. 144 -151. P.B.C.R.) lO.Ra.._
10' R.U.E. - —
1 s ~
( °.B. 106, PGS. 144-151, P.B.0 R.) _ -
O
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r
SKETCH AND LEGAL DESCRIPTION
(NOT A SURVEY)
MATCH LINE
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J00 NO. 04173 Project Ncme: CORTINA DWI; BY: EH SC ?d f: 1"-S0'
CICD Br' JCK DATE: 10/740014 I • Sllffl 4 Of 4
4701439 -11
(00064022.5 306 - 9905104 )
Exhibit D
Form of Special Warranty Deed for New Park Land
4701439 -11
(000640225306-9905104 )
THIS INSTRUMENT PREPARED BY
AND AFTER RECORDING RETURN TO:
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED is made as of 20 , by BR
CORTINA ACQUISITION LLC, a Delaware limited liability company, with an address at do
BlackRock, 400 Howard Street, San Francisco, CA 94105( "Grantor ") to THE CITY OF
BOYNTON BEACH, a municipal corporation of the State of Florida, having its offices at 100 E.
Boynton Beach Boulevard, Boynton Beach, Florida 33435 ( "Grantee "). (Wherever used herein
the terms "Grantor" and "Grantee" include all the parties to this instrument and the heirs, legal
representatives and assigns of individuals, and the successors and assigns thereof.)
WITNESSETH:
That Grantor, for and in consideration of the sum of Ten and No /100 Dollars ($10.00)
and other good and valuable consideration paid by Grantee to Grantor, the receipt and
sufficiency of which are hereby acknowledged, by these presents does grant, bargain, sell, alien,
remise, release, convey and confirm unto the Grantee, and Grantee's successors and assigns
forever, all the right, title, interest, claim in and to that certain real property located and situate in
Palm Beach County, Florida, described in Exhibit A attached hereto and made a part hereof (the
"Property ");
TOGETHER WITH all tenements, hereditaments and appurtenances belonging to or in
any way appertaining to the Property and (i) any and all structures and improvements on the
Property; and (ii) all easements, rights of way, privileges, licenses, appurtenances and other
rights and benefits belonging to, running with the owner of, or in any way related to the Property.
TO HAVE AND TO HOLD the same in fee simple forever.
GRANTOR hereby covenants with Grantee that Grantor is lawfully seized of the
Property in fee simple; that Grantor has good right and lawful authority to sell and convey the
Property; that Grantor hereby warrants the title to the Property and will defend the same against
the lawful claims of all persons claiming by, through or under Grantor, but against none other;
subject, however, to subject to all assessments and taxes for the year 2015 and all subsequent
years, which are not yet due and payable, and the matters set forth on Exhibit B hereto, without
any intent to reimpose same.
4701439 -11
(00064022.5 306 - 9905104 )
IN WITNESS WHEREOF, Grantor has duly executed this instrument in the manner and
form sufficient to bind it as of the day and year first above written.
WITNESSES: BR CORTINA ACQUISITION LLC,
a Delaware limited liability company
By: Bridge Cortina Management, LLC
a Florida limited liability, its non -
member manager
Name: By:
Name:
Title:
Name:
STATE OF FLORIDA )
)ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
20 , by , as of Bridge Cortina Management,
LLC, a Florida limited liability company, the non - member manager of BR Cortina Acquisition
LLC, a Delaware limited liability company, who is personally known to me or has produced a
as identification, on behalf of the company.
My Commission expires:
Notary Public, State of Florida
Printed Name of Notary Public
4701439 -11
(00064022.5 306 - 9905104 }
Exhibit E
Form of Special Warranty Deed for Existing Park Land
4701439 -11
(00064022.5 306- 9905104
THIS INSTRUMENT PREPARED BY
AND AFTER RECORDING RETURN TO:
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED is made as of 20 , by THE
CITY OF BOYNTON BEACH, a municipal corporation of the State of Florida, having its
offices at 100 E. Boynton Beach Boulevard, Boynton Beach, Florida 33435 ( "Grantor "), to BR
CORTINA ACQUISITION LLC, a Delaware limited liability company, with an address at do
BlackRock, 400 Howard Street, San Francisco, CA 94105 ( "Grantee "). (Wherever used herein
the terms "grantor" and "grantee" include all the parties to this instrument and the heirs, legal
representatives and assigns of individuals, and the successors and assigns thereof.)
WITNESSETH:
That Grantor, for and in consideration of the sum of Ten and No /100 Dollars ($10.00)
and ther good valuable consideration paid Grantee to Grantor, the receipt go and b e conside at n pa d by G t G t and p
sufficiency whereof are hereby acknowledged, by these presents does grant, bargain, sell, alien,
remise, release, convey and confirm unto the Grantee, and Grantee's successors and assigns
forever, all that certain real property located and situate in Palm Beach County, Florida,
described in Exhibit A attached hereto and made a part hereof (the "Property ");
TOGETHER WITH all tenements, hereditaments and appurtenances belonging to or in
any way appertaining to the Property, and (i) any and all structures and improvements on the
Property; and (ii) all easements, rights of way, privileges, licenses, appurtenances and other
rights and benefits belonging to, running with the owner of, or in any way related to the Property.
TO HAVE AND TO HOLD the same in fee simple forever.
AND Grantor hereby covenants with Grantee that Grantor is lawfully seized of the
Property in fee simple; that Grantor has good right and lawful authority to sell and convey the
Property; that Grantor hereby warrants the title to the Property and will defend the same against
the lawful claims of all persons claiming by, through or under Grantor, but against none other;
subject, however, to subject to all assessments and taxes for the year 2015 and all subsequent
years, which are not yet due and payable, and the matters set forth on Exhibit B hereto, without
any intent to reimpose same.
4701439 -11
{00064022.5 306 - 9905104 )
GRANTOR hereby releases all easement rights Grantor has over the Property including,
but not limited to platted easements, drainage and access easements, including the forty foot
(40') wide platted pedestrian easement along the east side of the Property, pursuant to the Plat of
Boynton Town Center, a P.C.D., according to the Plat thereof, recorded in Plat Book 106, Page
144 of the Public Records of Palm Beach County, Florida.
IN WITNESS WHEREOF, Grantor has duly executed this instrument in the manner and
form sufficient to bind it as of the day and year first above written.
CITY OF BOYNTON BEACH, a municipal
corporation of the State of Florida
ATTEST:
By:
Name: Gerald Taylor
Janet M. Prainito, City Clerk Title: Mayor
Signed, sealed and delivered in presence of:
(Signature of first witness)
(Printed name of first witness)
(Signature of second witness)
(Printed name of second witness)
STATE OF FLORIDA )
)ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
20_ by Gerald Taylor and Janet M. Prainito, Mayor and City Clerk, respectively, of the City of
Boynton Beach, a municipal corporation of the State of Florida, on behalf of the City of Boynton
Beach, who have acknowledged himself and herself to be the Mayor and City Clerk of the City
of Boynton Beach, and who are personally known to me.
My Commission expires:
Notary Public, State of Florida
Printed Name of Notary Public
4701439 -11
(00064022.5 306 - 9905104 )
Exhibit F
Form of Temporary Construction and Access Easement
4701439 -11
(00064022.5 306 - 9905104 1
THIS INSTRUMENT PREPARED BY
AND AFTER RECORDING RETURN TO:
TEMPORARY CONSTRUCTION AND ACCESS EASEMENT
THIS TEMPORARY CONSTRUCTION AND ACCESS EASEMENT (this
"Easement ") is granted this day of , 201, by THE CITY OF
BOYNTON BEACH, a municipal corporation of the State of Florida (the "Grantor ") in favor of
BR CORTINA ACQUISITION, LLC, a Delaware limited liability company, its successors
and /or assigns (the "Grantee ").
RECITALS:
A. Grantor and Grantee entered into that certain Boynton Village Park Conveyance
Agreement with an effective date of , 2015 (as amended, the "Purchase
Agreement ") pursuant to which Grantee conveyed to the Grantor the real property located in the
City of Boynton Beach more particularly described on the attached Exhibit A (the "Park" or
"Easement Property "). Grantor is the owner of the Park.
B. The Purchase Agreement provides that Grantee shall be responsible to complete the Park
Improvements (as defined in the Agreement) within the Park and that Grantor shall grant to
Grantee a temporary construction and access easement allowing Grantee access to the Park for
the purpose of completing the Park Improvements..
C. In order to facilitate the construction and installation of the Park Improvements, Grantor
desires to grant to Grantee, its contractors, subcontractors, agents, employees, successors and
assigns (collectively, the "Grantee Parties ") a temporary, non - exclusive construction and access
easement over and across the Park for the construction, installation and development of Park
Improvements.
NOW, THEREFORE, in consideration of the foregoing, the sum of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Grantor and Grantee agree as follows:
1. Recitals. The foregoing recitals are true and correct and are incorporated into and form a
part of this Easement.
4701439 -11
(00064022.5 306 - 9905104 )
2. Grant of Easement. Subject to the terms of this Easement, Grantor hereby grants to
Grantee a temporary, non - exclusive easement (the "Construction Easement ") over and across
the Park, for the use and benefit of Grantee and the Grantee Parties, as set forth in this Easement.
The Construction Easement shall expressly include the right of ingress and egress over and
across the Easement Property, as reasonably necessary for the exercise of the rights granted in
this Easement. The Construction Easement will terminate (the "Easement Termination ") upon
the Substantial Completion of the Park Improvements to be constructed within the Park. Such
Easement Termination is intended to be automatic and require no further action on the part of
any party to this Easement, provided however, upon the occurrence of the Easement Termination
pursuant to this Section 2, and if so requested in writing by Grantor, Grantee hereby agrees to
execute a termination of this Easement to be recorded in Public Records of Palm Beach County,
Florida by Grantor.
3. Limitation of Use. The Construction Easement shall be used by Grantee and the
Grantee Parties solely for the purpose of construction and/or installation of the Park
Improvements and related work within the Park in accordance with the specifications and
requirements contained in the Site Plan for Cortina approved by the City of Boynton Beach City
Commission. Grantee shall take all commercially reasonable precautions so as not to impede
Grantor's access to the Easement Property during the term of this Easement; provided however,
Grantee may limit, restrict or prohibit access to the Easement Property during construction and
installation of the Park Improvements for safety and other reasons.
4. Grantee's Indemnification. Grantee agrees to indemnify, defend and hold Grantor and its
agents and employees harmless from any damage, loss, cost, expense (including, without
limitation, reasonable costs, attorneys' fees and paraprofessional fees pretrial, at trial and at all
levels of proceedings, including appeals), or claims of damage to property, personal injury, death
or other matters caused directly or indirectly by or arising from the acts or omissions of Grantee
or any of the Grantee Parties, in connection with Grantee's use of the Easement Property;
provided, however, the foregoing indemnity shall not apply (i) with respect to any losses to the
extent that such losses are the result of any acts or omissions on the part of Grantor or any of its
employees, agent, contractors, subcontractors, successors and /or assigns or (ii) to the extent such
losses are covered by the insurance required to be maintained by the Purchase Agreement, if any.
5. Covenants of Grantor. Grantor hereby covenants and agrees with Grantee that it will not,
at any time, take any action which materially and adversely affects the rights granted in this
Easement to the Grantee and Grantee Parties and will reasonably cooperate with the Grantee and
Grantee Parties, at Grantee's sole cost and expense (including, without limitation, all legal and
consultant fees, if any, incurred by Grantor), in connection with obtaining, transferring,
amending, supplementing and/or renewing any permits or approvals from any governmental or
quasi - governmental authorities necessary with respect to use and enjoyment of the rights granted
to the Grantee and Grantee Parties. Grantor agrees to indemnify, defend and hold Grantee and its
agents and employees harmless from any damage, loss, cost, expense (including, without
limitation, reasonable costs, attorneys' fees and paraprofessional fees pretrial, at trial and at all
levels of proceedings, including appeals), or claims of damage to property, personal injury, death
or other matters caused directly or indirectly by or arising from the acts or omissions of Grantor
or any of its employees, agent, contractors, subcontractors, successors and /or assigns (the
"Grantor Parties "), in connection with Grantor's use of the Easement Property; provided,
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however, the foregoing indemnity shall not apply (i) with respect to any losses to the extent that
such losses are the results of any acts or omissions on the part of Grantee or any of the Grantee
Parties or (ii) to the extent such losses are covered by the insurance required to be maintained by
the Purchase Agreement, if any.
6. Enforcement. The terms of this Easement may be enforced by Grantor or Grantee by
injunctive relief and any other available remedies. By way of example, and not limitation.
Grantee shall be entitled to enjoin any activity or use of the Easement Property that is
inconsistent with this easement and rights granted to Grantee pursuant to this Easement. In the
event of any litigation between Grantor and Grantee concerning the terms of this Easement, the
prevailing party will be entitled to reimbursement of its costs and expenses, including reasonable
attorneys' fees and costs, pretrial, at trial and at all levels of proceedings, including appeals.
7. Modification. Except as set forth in Section 2 above with respect to an Easement
Termination, this Easement cannot be amended, modified, released or terminated except by
written agreement executed by Grantor and Grantee, and recorded in the Public Records of Palm
Beach County, Florida.
8. Notices. All notices given pursuant to this Easement shall be in writing and shall be given
in the manner described in the Purchase Agreement.
9. Covenant Running with the Land. All provisions of this Easement, including the rights,
benefits and burdens set forth in this Easement shall be a covenant running with the land, binding
upon Grantor, Grantee, their successors and assigns, but only during the term of this Easement.
10. Definitions. All capitalized terms not defined herein shall have the meanings ascribed to
such terms in the Purchase Agreement.
11. Headings. The section headings in this Easement are included for convenience and
reference only and shall not be construed to modify or affect the terms and provisions of any
section of this Easement, or to define or limit the scope or content of this Easement in any way.
12. Counterparts. This Easement may be executed in any number of counterparts, each of
which will be deemed to be an original, and a complete set of which shall together constitute one
and the same instrument.
13. Severability. The invalidity of any provision of this Easement shall not affect the validity
of any other provision of this Agreement.
14. Governing Law. This Easement shall be governed by and in accordance with the laws of
the State of Florida.
15. No Waiver. Enforcement of the terms and provisions of this Agreement shall be at the
reasonable discretion of the aggrieved party, and any forbearance by such aggrieved party to
exercise its rights under this Easement in the event of any breach hereof by the other party, shall
not be deemed or construed to be a waiver of the aggrieved party's rights under this Easement.
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16. Construction. All of the parties to this Agreement have participated in the negotiation of
this Easement and have been represented by legal counsel (or have been afforded the opportunity
to do so and have declined). Accordingly, this Agreement shall not be construed more strictly
against any one of the parties hereto.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement as of the
date above first written.
GRANTOR:
CITY OF BOYNTON BEACH, a municipal
corporation of the State of Florida
ATTEST:
By:
Name: Gerald Taylor
Title: Mayor
Janet M. Prainito, City Clerk
WITNESSES
Sign
Print
Sign
Print
STATE OF FLORIDA )
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this day of
20 by Gerald Taylor and Janet M. Prainito, Mayor and City Clerk, respectively, of the City of
Boynton Beach, a municipal corporation of the State of Florida, on behalf of the City of Boynton
Beach, who have acknowledged himself and herself to be the Mayor and City Clerk of the City
of Boynton Beach, and who are personally known to me or who produced
as identification.
My commission expires:
NOTARY PUBLIC, State of Florida
Print name:
[GRANTEE'S SIGNATURE APPEARS ON FOLLOWING PAGE]
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{00064022.5 306- 9905104
GRANTEE:
WITNESSES BR CORTINA ACQUISITION, LLC, a Delaware
limited liability company
Sign
By:
Print Name:
Title:
Sign
Print
STATE OF FLORIDA )
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
20_ by , as of BR Cortina
Acquisition, LLC, a Delaware limited liability company, who is personally known to me or who
produced as identification, on behalf of the
company.
My commission expires:
NOTARY PUBLIC, State of Florida
Print name:
4701439 -11
(00064022.5 306 - 9905104 )
EXHIBIT A TO TEMPORARY CONSTRUCTION AND ACCESS EASEMENT
Park/Easement Property
ALL OF LOTS 338 THROUGH 343, 345 THROUGH 376, 379 THROUGH 383, AND 388
THROUGH 392, TOGETHER WITH PORTIONS OF LOTS 337, 344, 377, 378, 384
THROUGH 387 AND 393, AND PORTIONS OF TRACTS B-5, 8-6 AND R-2, ALL OF
CORTINA PUD REPEAT, ACCORDING TO THE PLAT THEREOF, RECORDED IN PLAT
BOOK 109, PAGES 196 THROUGH 202 OF THE PUBLIC RECORDS OF PALM BEACH
COUN I Y, FLORIDA AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF SMIJ - LAKE PARCEL, BOYNTON
E T 0 0 0 W K N 1 C 0 E 6 N , T GEAS P. 144 C. D H A R C O C U O G R I D I N 5 G 1 o T r 0 T T H H E E P P U L B A L T I T H R E DS R E I B N EA P C L H AT
COUNTY, FLORIDA; THENCE NORTH 83° 5035" WEST, A DISTANCE OF 9.11 FEET TO
THE POINT OF BEGINNING; THENCE SOUTH 03°0143" EAST, A DISTANCE OF 112.89
FEET; THENCE SOUTH 06° 58'4Y' EAST, A DISTANCE OF 102.68 FEET; THENCE SOUTH
09° 51'11" EAST, A DISTANCE OF 133.60 FEET; THENCE SOUTH 14°09'16" EAST, A
DISTANCE OF 132.91 FEET; TIIENCE SOUTH 18° 59'00" EAST, A DISTANCE OF 148.91
FEET; THENCE SOUTH 25° 4525" EAST, A DISTANCE OF 184.46 FEET; THENCE SOUTH
89° 19'14" WEST, A DISTANCE OF 183.07 FEET TO A POINT ON THE ARC OF A
CIRCULAR CURVE TO THE LEI- I, AT WHICH THE RADIUS POINT BEARS SOUTH
70° 490.3" WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE,
HAVING A RADIUS OF 646.50 FEET AND A CENTRAL ANGLE OF 05° 5636", A
DISTANCE OF 67.06 FEET TO A POINT OF REVERSE CURVATURE OF A CIRCULAR
CURVE TO THE RIGHT; THENCE NORTHWESTERLY AND NORTHERLY ALONG THE
ARC OF SAID CURVE, HAVING A RADIUS OF 1452.00 FEET AND A CENTRAL ANGLE
OF 25 3455", A DISTANCE OF 648.30 FEET TO A POINT OF REVERSE CURVATURE OF
A CIRCULAR CURVE TO THE LEFT; 1HENCE NOR I HERLY ALONG THE ARC OF SAID
CURVE, HAVING A RADIUS OF 646.50 FEET AND A CENTRAL ANGLE OF 09° 49'59", A
DISTANCE OF 110,95 FEET (THE LAST THREE DESCRIBED COURSES BEING
COINCIDENT WITH THE WEST BOUNDARY OF SAID TRACT B-5): THENCE SOUTH
83° 5035" EAS1, ALONG A NON-RADIAL LINE, A DISTANCE OF 152.78 FEET TO THE
POINT OF BEGINNING.
SAID LANDS SITUATE IN THE CITY OF BOYNTON BEACH, PALM BEACH COUNTY,
FLORIDA, AND CONTAIN 3.000 ACRES, MORE OR LESS.
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