R18-046 1 RESOLUTION NO. R18-046
2 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
3 FLORIDA, APPROVING AND AUTHORIZING THE MAYOR TO
4 SIGN THE FOLLOWING AGREEMENTS WITH JKM
5 DEVELOPERSBLACKROCK OR ITS SUCCESSORS AND
6 ASSIGNS, FOR (1) THE SALE AND PURCHASE OF REAL
7 PROPERTY OWNED BY THE CITY, AND (2) A DEVELOPMENT
8 AGREEMENT FOR MULTI-FAMILY RENTAL HOUSE WITH
9 ASSOCIATED PARKING FACILITIES, AND (3) A PARKING
10 LICENSE TO PROVIDE PARKING FOR CITY FACILITIES; AND
11 (4) AN OPTION AGREEMENT FOR CITY RE-ACQUISITION OF
12 REAL PROPERTY, ALL IN FURTHERANCE OF THE
13 DEVELOPMENT OF THE CITY'S TOWN SQUARE PROJECT;
14 AND PROVIDING AN EFFECTIVE DATE.
15 Whereas; the City and JKM Developers/Blackrock, a development team member of
16 the town square development team have negotiated the terms and conditions necessary to
17 facilitate the (1) the sale and purchase of real property owned by the city, and (2) a
18 development agreement for multi-family rental house with associated parking facilities, and
19 (3) a parking license to provide parking for city facilities; and (4) an option agreement for city
20 re-acquisition of real property, all in furtherance of the development of the City's Town
21 Square project.
22 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
23 THE CITY OF BOYNTON BEACH, FLORIDA,THAT:
24 Section 1. Each Whereas clause set forth above is true and correct and
25 incorporated herein by this reference.
26 Section 2. The City Commission of the City of Boynton Beach, Florida does
27 hereby approve and authorize the Mayor to sign the following documents and such other
28 collateral documents necessary thereto with JKM Developer/Blackrock or its successors and
(00220646.1 306-9001821)
29 assigns at such time as they are finalized to the satisfaction of the City Manager and City
30 Attorney:
31 (1) The sale and purchase of real property owned by the city, a copy of which is attached as
32 Exhibit"A", and
33 (2) A development agreement for multi-family rental house with associated parking facilities,
34 a copy of which is attached as Exhibit"B", and
35 (3) A parking license, a copy of which is attached as Exhibit"C", to provide parking for City
36 r facilities; and
37 0 (4) an option agreement, a copy of which is attached as Exhibit"D" for City re-acquisition of
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38 real property;
39 all in furtherance of the development of the City's Town Square project
40 Section 3. That this Resolution shall become effective immediately upon passage.
41 PASSED AND ADOPTED this /3" day of n , 2018.
42 CITY OF BOYNTON BEACH, FLORIDA
43
44 YES NO
45
46 Mayor— Steven B. Grant
47
48 Vice Mayor—Justin Katz
49
5o Commissioner—Mack McCray
51
52 Commissioner—Christina L. Romelus
53
54 Commissioner—Joe Casello
55 S-0
56 VOTE
57 ATTEST:
58
59
60 '
61 Jud' 7A. Pyle, CMC
62 Citfr lerk
63
64
65 (City Seal) I
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PURCHASE AND SALE AGREEMENT
(BTS South)
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made and entered
into as of the ( \ day of March, 2018 (the "Effective Date"), by and between JKM BTS South,
LLC, a Florida limited liability company (the "Purchaser"), and City of Boynton Beach (the
"Seller").
RECITALS
WHEREAS, Seller is the owner of the property located in Boynton Beach, Florida, which
consists of approximately +/-3.71 gross acres and is commonly known as Boynton Town Square
South, as depicted on Exhibit"A" and made a part hereof, together with the improvements located
thereon and all fixtures and personal property located on said property(the"Property"); and
WHEREAS, Seller desires to develop upon the Property a rental apartment project which is
anticipated to consist of approximately 280 apartment units (the "Apartments"), as well as a
parking structure which is anticipated to consist of approximately 918 parking spaces (the
"Garage"),together with related improvements(the Apartments, Garage,and related improvements
are referred to herein as the"Project"); and
WHEREAS, simultaneously with the execution of this Agreement, Seller and an affiliate of
Purchaser have entered into a Development Agreement (the "Development Agreement"), which
shall govern the development of the Project and certain obligations of Seller and such affiliate of
Purchaser with respect thereto; and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to purchase from
Seller,the Property,pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set
forth herein and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby covenant and agree to the terms and conditions set
forth herein.
AGREEMENT:
1. Recitals. The recitals set forth above are incorporated herein by this reference,
and the parties agree that such recitals are true and correct.
2. Purchase and Sale. Subject to all of the terms and conditions of this Agreement,
the Seller will sell to the Purchaser, and the Purchaser will purchase from the Seller, the Property,
together with all appurtenances, rights, easements, rights of way, permits, licenses, leases,
warranties,and approvals incident or appurtenant thereto.
3. Purchase Price and Payment. The purchase price to be paid by the Purchaser to
the Seller for the Property shall be $10.00 (the "Purchase Price"), and any adjustments and
prorations as set forth in this Agreement.
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Boynton Town Square South Parcel 1
4. Title and Title Insurance.
(a) Purchaser shall obtain a current title insurance commitment (the
"Commitment") for an ALTA owner's title insurance policy, issued by PG Law, as agent for
Chicago Title Insurance Company, Old Republic National Title Insurance Company, or another
national title insurance company (the "Title Company"). Purchaser shall have until the end of the
Due Diligence Period (as defined hereafter) to examine the condition of title to the Property to
confirm that title to the Property is good, marketable and insurable. Within such period, if
Purchaser fails to provide Seller with written notice of specific defects which make title to the
Property other than as required by this paragraph, then, for all purposes of this Agreement,
Purchaser shall be deemed to have accepted title in the condition described in the Commitment. If
Purchaser timely notifies Seller that title does not satisfy the requirements of this paragraph, then
Seller agrees to use its best efforts to make title good, marketable, and insurable, for which purpose
Seller shall have twenty (20) days from the receipt of Purchaser's written notice that title is
unacceptable to remedy any such objection; provided, however, that Seller shall not be required to
spend more than $5,000.00 (exclusive of attorney's fees or other professional fees) to remedy any
specific title objection other than a mortgage, lien, judgment, or other monetary obligation
encumbering the Property as described in Section 4(b). If title is not rendered as required by this
paragraph despite the best efforts of Seller, then at any time after the end of such twenty (20) day
period, upon written notice delivered at the option of Purchaser, this Agreement shall be terminated
and all parties hereto shall be released from any and all obligations and liabilities hereunder except
those which specifically survive termination. At any time prior to such termination, Purchaser may
elect by written notice to Seller to waive any defects in title, in which event, subject to satisfaction
of the conditions set forth in this Agreement, the Closing shall take place pursuant to this
Agreement without any abatement in the Purchase Price. Prior to the Closing,Purchaser shall cause
the Commitment to be updated to a current effective date by the Title Company. If the update of the
Commitment shows additional exceptions that render title unmarketable or which materially
interfere with Purchaser's development, ownership, and intended use for the Property, Purchaser
shall provide written notice of its objections to such new exceptions to Seller. Seller shall have a
period of twenty (20) days from receipt of such written notice from Purchaser in which to use its
best efforts to cause such additional exceptions to be removed from the Commitment. If, after
utilizing due diligence and Seller's best efforts, Seller is unable to remove such additional
exceptions, Purchaser shall have the option of either waiving any such title defects, in which event,
subject to satisfaction of the conditions set forth in this Agreement, the Closing shall take place
pursuant to this Agreement without any abatement in the Purchase Price,or Purchaser shall have the
right to terminate this Agreement and neither party shall have any further rights or obligations
hereunder except for those obligations which specifically survive termination.
(b) Seller agrees that Seller shall use its best efforts to make title good,
marketable and insurable within the time limits set forth in this Agreement. Notwithstanding the
foregoing, Seller agrees that Seller shall pay all indebtedness secured by a mortgage upon the
Property, as well as all past due taxes, outstanding governmental or quasi-governmental
assessments,and any outstanding judgments or liens against Seller and/or the Property, including all
penalties and interest,prior to the Closing.
5. Survey. Purchaser shall have the right, at its expense, to obtain a current survey of
the Property prepared by a licensed Florida land surveyor (the "Survey"). The Survey shall be
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certified to the Purchaser and to the Title Company and shall be prepared in accordance with the
minimum technical standards for surveys in the State of Florida and/or ALTA requirements. In the
event that the Survey shows any encroachments or any other defects, then such defects shall be
treated as a title defect and the provisions of Section 4 shall be applicable to any such Survey
defects.
6. Seller's Obligations Prior to Closing.
(a) Seller covenants and agrees that it has or will, within fifteen (15) days
following the Effective Date, deliver to Purchaser true and correct copies of the following, to the
extent existing and in Seller's possession and/or control: survey, development approvals, economic
studies, traffic studies, all title related documents, copies of all ad valorem tax statements, bills and
assessments, engineering reports, topographical maps, traffic studies, FDOT letters, geotechnical
subsurface analysis reports, environmental reports and related environmental studies and all similar
reports and studies available to or currently in Seller's possession.
(b) Seller shall provide Purchaser, together with Purchaser's agents and
representatives, complete access to any portion of the Property for the purpose of making physical
inspections of the Property to determine whether, in Purchaser's sole and absolute discretion, the
Property is suitable for Purchaser's purposes. Such inspections may include, among other things,
survey, site,engineering,appraisal, environmental,and feasibility studies.
(c) Seller shall cooperate with Purchaser as reasonably required in order for
Purchaser to perform its due diligence and seek its Approvals (as defined in Section 8) in
accordance with the terms of this Agreement.
7. Due Diligence.
(a) Due Diligence Period. Purchaser shall have the "Due Diligence Period" in
which to ascertain whether the Property is acceptable to Purchaser in order for Purchaser to
proceed with seeking approvals, permits and licenses necessary for the development of the
Property. "Due Diligence Period" shall mean the period commencing on the Effective Date of
this Agreement and expiring on the date which is sixty (60) calendar days subsequent to the
Effective Date. If the Property is determined to be unacceptable to Purchaser in its sole
discretion, Purchaser shall notify the Seller by providing written notice of its determination that
the Property is unacceptable for its intended use no later than 5:00 p.m. Florida time on the final
day of the Due Diligence Period (a "Notice of Cancellation"), in which event neither party shall
have any further rights or obligations hereunder. If the Property is determined to be acceptable
to Purchaser in its sole discretion, Purchaser shall notify the Seller by providing written notice of
its determination that the Property is acceptable for its intended use no later than 5:00 p.m.
Florida time on the final day of the Due Diligence Period (a "Notice to Proceed"). If Purchaser
fails to deliver either a Notice of Cancellation or a Notice to Proceed by 5:00 p.m. Florida time
on the final day of the Due Diligence Period, then Purchaser shall be deemed to have delivered a
Notice of Cancellation, in which event neither party shall have any further rights or obligations
hereunder.
(b) Indemnification. Purchaser agrees to indemnify, defend, and hold
harmless Seller and its affiliates, managers, members, partners, subsidiaries, shareholders,
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Boynton Town Square South Parcel
officers, directors, lenders, employees, attorneys, and agents from any loss, injury, damage,
claim, lien, cost or expense, including reasonable attorneys' fees, paraprofessional fees and costs
pretrial, at trial and at all levels of proceedings, including appeals, arising out of or resulting
from Purchaser's physical inspections, examinations, studies, and/or analyses of the Property.
8. Permits and Approvals. Purchaser shall be seeking to receive all authorizations,
including, without limitation, land-use change, re-zoning, plat and/or replat, and site plan
approvals necessary for Purchaser's intended use of, and the construction and operations of the
improvements upon, the Property (collectively, the "Approvals"). Seller shall, upon request by
Purchaser, execute any and all documentation in support of any application for such Approvals
including the site specific Site Plan/Master .Plan Amendment as conceptually agreed by both
parties; provided, however, that Purchaser shall not be required, as a condition of receiving its
Approvals or otherwise, to construct or maintain any infrastructure, improvements, or other
structures or property other than the Project. If, at any time, Purchaser (i) is denied or refused
any such Approvals, (ii) is uncertain that Purchaser's intended use, construction and
improvements to the Property will not be physically or fmancially impaired, as determined in
Purchaser's sole and absolute discretion, (iii) determines that the necessary Approvals have been
granted subject to any conditions that Purchaser deems unacceptable because they will physically
or financially impair Purchaser's use and development of the Property, or (iv) determines that
adequate utilities and related facilities, including, without limitation, water, storm water and
sanitary sewage disposal, telephone service and energy sources to service the Property and
improvements thereto for Purchaser's intended use and/or easements therefore are not available
to the reasonable satisfaction of Purchaser, then Purchaser may, by furnishing written notice to
Seller, terminate this Agreement without owing any liability to Seller (other than any liability
that expressly survives any termination hereunder).
9. Seller's Representations and Warranties. Seller hereby represents and warrants
to Purchaser as follows:
(a) To the best of Seller's knowledge, Seller has not received any notice from
the State Department of Environmental Protection or similar agency, the United States
Environmental Protection Agency or any other governmental or quasi governmental entity
indicating that the Property is currently contaminated by hazardous wastes or pollutants as those
terms are defined by applicable laws ("Hazardous Substances") or any notice that the Property is
subject to any claim or cause of action pursuant to any federal, state or local environmental
statute, regulation or ordinance.
(b) Seller has full right and is duly authorized to enter into and consummate
this Agreement.
(c) To the knowledge of Seller, there is no litigation, investigation or
proceeding pending or threatened against Seller which would adversely affect Seller's ability to
perform its obligations hereunder.
(d) There has been no petition filed by or against Seller under the Federal
Bankruptcy Code or any similar state or federal law.
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Boynton Town Square South Parcel `'F
(e) There are no condemnation or eminent domain proceedings pending or, to
the best of Seller's knowledge, contemplated against the Property or any part thereof, and Seller
has received no notice of the desire or intention of any public authority to take or use the
Property or any part thereof.
(f) Seller has received no notice of and to Seller's knowledge, there is no
violation of any law, regulation, ordinance, order or judgment affecting the Property regarding
any zoning violation, or, in connection with the ownership and operation of the Property and
buildings thereon, any violation of any local, county, state or federal environmental, health,
safety or sanitary, or building code law,rule or regulation.
(g) To the best of Seller's knowledge, Seller has no knowledge of any
unrecorded easements, restrictions, or encumbrances affecting all or any part of the Property.
(h) To the best of Seller's knowledge, (i) Seller has received no written notice
regarding the existence of, and (ii) Seller has no knowledge of the existence of, any underground
storage tanks located on the Property. To the best of Seller's knowledge, no underground
storage tanks have been removed from the Property during the time the Property has been owned
by Seller.
(i) There is no leasehold interest affecting the Property.
(j) There are no existing service contracts or other contracts relative to the
operation and maintenance of the Property which shall remain in effect after the date of Closing.
There shall be no money due on such contracts as of the date of Closing.
In this Section 9, the phrases "to the knowledge of' or "has no knowledge of' or similar
phrases shall be deemed to refer to the actual knowledge of Seller after due inquiry and
investigation. The provisions of this Section 9 shall survive the Closing or termination of this
Agreement for a period of one (1) year. If any representation set forth herein is not true and
correct as of the Closing, the same shall constitute a default hereunder, and Purchaser may
terminate this Agreement and receive as damages reimbursement of all costs and expenses
expended by Purchaser since the Effective Date. Subject to applicable law, Seller hereby
indemnifies and holds Purchaser harmless from any and all loss, cost, damage, and expense,
including reasonable attorneys' fees, paralegal fees, and court costs, in and through all appellate
levels, arising or incurred by Purchaser by virtue of any material misrepresentation or inaccuracy
in the representations and warranties set forth herein. Subject to applicable law, Seller shall
indemnify and hold Purchaser harmless from and against all costs, expenses, claims, and credits
asserted against, or incurred by, Purchaser, by reason of any third party tort claim or other claim
regarding bodily injury or property damage arising or accruing prior to the Closing.
10. Conditions to Purchaser's Obligations. It shall be a condition precedent to
Closing of this Agreement by Purchaser that the following conditions be satisfied:
(a) All representations and warranties set forth in Section 9 are true and
correct, and Seller has delivered its certificate to Purchaser reaffirming such representations and
warranties as of the Closing Date.
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Boynton Town Square South Parcel J
(b) Seller shall have removed all tenants and other persons in possession from
the Property, such that, upon Closing, Purchaser shall have exclusive possession of the Property.
(c) Seller shall not be in breach or default with respect to any obligation of
Seller under the terms and provisions of this Agreement.
To the extent that Purchaser elects to waive any condition set forth in this Section 10
prior to Closing, satisfaction of each such condition shall be a condition to Purchaser's
obligations under the Development Agreement(as defined in Section 12(g)).
11. Closing.
(a) Subject to the provisions of this Agreement and the conditions precedent
to closing, the purchase and sale contemplated by this Agreement shall be closed (the "Closing")
no later than the later to occur of(i) the date that is thirty (30) days after the expiration of the
Due Diligence Period, as may have been extended, and (ii) seven (7) business days following the
date when all other conditions to Closing as set forth in Section 10 have been met (the date of
such Closing, the"Closing Date").
(b) The Closing shall take place by way of escrow and shall be conducted by
the Purchaser's attorney on the Closing Date.
(c) Should Purchaser be unable to obtain basic hazard, wind, or flood
insurance at reasonable rates due to storm or extreme weather conditions that prohibit the
issuance of such insurance, Purchaser may delay Closing for up to ten (10) days from when such
coverage becomes available.
12. Seller's Deliveries. Seller shall deliver to Purchaser at Closing the following
documents dated as of the Closing Date, the delivery and accuracy of which shall be a condition to
Purchaser's obligation to consummate the purchase and sale:
(a) Special Warranty Deed. A special warranty deed in recordable form, duly
executed by Seller, conveying to Purchaser good, marketable and insurable fee simple title to the
entire Property, subject only to the permitted exceptions as reflected in the Commitment which
have not been objected to by Purchaser, with the legal description provided in the Commitment
and Survey, as the same may have been revised from time to time in accordance with the
Approvals.
(b) Bill of Sale. A bill of sale, duly executed by Seller, conveying to
Purchaser good, marketable and lien-free title to all personal property and fixtures located on the
Property.
(c) Affidavit. An owner's affidavit adequate for title insurance to be issued
by the Title Company without exception for parties in possession, mechanics' or materialmens'
liens and to permit the Title Company to delete the "gap"in the Commitment.
(d) FIRPTA Affidavit. In order to comply with the requirements of the
Foreign Investment Real Property Tax Act of 1980 ("FIRPTA"), Seller will deliver to Purchaser
at Closing Seller's affidavit under penalty of perjury stating that Seller is not a "foreign person,"
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as defined in Section 1445 of the Internal Revenue Code of 1986 and the U.S. Treasury
Regulations thereunder, setting forth Seller's taxpayer identification number, and that Seller
intends to file a United States income tax return with respect to the transfer. Seller represents
and warrants to Purchaser that it has not made nor does Seller have any knowledge of any
transfer of the Property or any part thereof that is subject to any provisions of FIRPTA that has
not been fully complied with by either transferor or transferee. As required by law, if Seller fails
to comply with the requirement of this paragraph, Purchaser shall withhold 10% of the Purchase
Price in lieu of payment thereof to Seller and pay it over instead to the Internal Revenue Service in
such form and manner as may be required by law.
(e) Assignment. An assignment of all of Seller's right, title and interest to all
permits, licenses, and warranties with respect to the Property.
(f) Certificate. A Certificate of the Seller that the representations and
warranties set forth in Section 9 are true and correct as of the Closing Date.
(g) Option Agreement. An Option Agreement in favor of Seller in
substantially the form attached hereto as Exhibit "B" (the "Option Agreement"), which shall
provide the Seller a right to re-acquire the Property from Purchaser upon the occurrence of
certain events.
(h) Parking Agreement. The Parking License in substantially the form
attached hereto as Exhibit "C" (the "Parking Agreement"), which shall govern the relationship
between the parties with respect to the Garage after completion.
(i) Other Documents. Any other settlement statement, agreement, document
or instrument required by this Agreement or by the closing agent or any Title Company (or its
agent), by any governmental or quasi-governmental authority or agency, or by any public utility
to be delivered by Seller or reasonably necessary to carry out the provisions of this Agreement;
the form of any and all such agreements shall be as reasonably agreed upon between the
applicable parties, or in the case of a governmental or quasi-governmental authority or agency or
a public utility, shall be in the form or format customarily required by such authority, agency, or
utility, subject to modification as may be reasonably necessary as a result of the specifics of the
Property and the transactions contemplated hereby.
13. Purchaser's Deliveries. At the Closing, and after Seller has complied with all of
the terms and conditions of this Agreement and simultaneously with Seller's delivery of the final
documents required in Section 12, Purchaser shall execute and deliver the settlement statement, the
Option Agreement, and the Parking Agreement and pay to Seller the Purchase Price, as the same
may be adjusted for the prorations and any other credits or adjustments provided for in this
Agreement.
14. Closing and Recording Costs. Seller shall pay the cost to obtain and record any
title curative documents. Purchaser shall pay for the cost of documentary stamp taxes and any
surtax on the deed, the cost of recording the deed, the cost of the title search and Commitment, the
cost of the owners' title policy to be issued to Purchaser, the cost of the Survey, the costs of its
investigations,the costs incurred in connection with seeking the Approvals, and any mortgagee title
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policy and any endorsements thereto. Except as set forth herein, each party shall pay its respective
attorney's fees.
15. Real Estate Taxes and Prorations. At the Closing, the real estate taxes on the
Property shall be prorated between the parties on a calendar year basis. Special assessment liens
certified as of Closing shall be paid by the Seller. Pending special assessment liens shall be treated
as a certified lien and shall be paid by the Seller. Seller shall be responsible for payment in full of
any personal property taxes applicable to Seller, Seller's personal property or business assets. This
covenant shall survive Closing.
16. Possession. Purchaser shall be granted full possession of the Property as of the
Closing.
17. Covenants and Agreements of Seller. Seller hereby covenants and agrees that
between the Effective Date of this Agreement and the Closing:
(a) Seller will not, without Purchaser's prior written consent, create by its
consent any encumbrances on the Property. For purposes of this provision, the term
"encumbrances" shall include, but not be limited to, any liens, claims, options, or other
encumbrances, encroachments, rights-of-way, leases, easements, covenants, conditions or
restrictions. At or prior to Closing, Seller shall terminate, and pay in full, all outstanding
amounts due and payable and any termination fees required to terminate any and all leases,
service contracts, maintenance contracts, franchise agreements, easements not approved in
writing by Purchaser, and any other claims to the Property not approved in writing by Purchaser.
(b) Seller will terminate all tenancies with respect to the Property, and shall
have removed from the Property all tenants, no later than five (5) business days following the
time when the Approvals have been received. Seller shall not enter into any new lease or extend
any current lease, or permit any tenant to remain upon the Property as a holdover tenant, or allow
any tenancy to convert to a month-to-month or other form of tenancy.
(c) Seller will not remove any fill or cause any change to be made to the
condition of the Property without the prior written consent of the Purchaser.
(d) Between the Effective Date and the date of Closing, Seller will not create
or consent to the creation of any special taxing districts or associations with the authority to
impose taxes, liens or assessments on the Property.
18. Real Estate Commissions.
(a) Seller hereby warrants to Purchaser that Seller has not engaged or dealt
with any broker or agent with respect to the purchase and sale of the Property as contemplated by
this Agreement. Seller shall indemnify and hold Purchaser harmless against any and all liability,
cost, damage and expense (including, but not limited to, attorneys' fees and costs of litigation
and appeals) which Purchaser shall ever suffer or incur because of any claim by any broker or
agent claiming to have dealt with Seller with respect to the Property, whether or not meritorious,
for any commission or other compensation with respect to this Agreement or to the purchase and
sale of the Property in accordance with this Agreement.
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(b) Purchaser hereby warrants to Seller that Purchaser has not dealt with any
broker or agent with respect to the purchase and sale of the Property as contemplated by this
Agreement. Purchaser shall indemnify and hold Seller harmless against any and all liability,
loss, cost, damage and expense (including, but not limited to, attorneys' fees and costs of
litigation and appeal) Seller shall ever suffer or incur because of any claim by any broker or
agent claiming to have dealt with Purchaser, whether or not meritorious, for any commission or
other compensation with respect to this Agreement or to the purchase and sale of the Property in
accordance with this Agreement.
19. Risk of Loss and Condemnation.
(a) All risk of condemnation shall be on Seller. In the event that the Property
or any portion thereof is taken by eminent domain, negotiated for grant in lieu of condemnation
or threatened to be taken or made unavailable for use by any governmental entity, prior to
Closing or through Purchaser's development approval process, Purchaser shall have the option of
either: (i) canceling this Agreement and receiving a refund of the Deposit, together with all
interest accrued thereon, whereupon both parties shall be relieved of all further obligations under
this Agreement, except those obligations which survive termination; or (ii) Purchaser may
proceed with Closing in which case Purchaser shall be entitled to all condemnation awards and
settlements relating to the Property and Purchaser shall accept the Property less and except any
property to which the condemnation award relates. In the event Purchaser elects the latter
option, Purchaser shall be entitled to participate in any such negotiations and proceedings, and
Seller shall from time to time deliver to Purchaser all instruments requested by it to permit such
participation. Seller shall, at its expense, diligently pursue any such proceeding, and shall
consult with Purchaser, its attorneys and experts and cooperate with them in any defense of any
such proceedings.
(b) If all or a portion of the Property shall be damaged or destroyed by any
casualty after the Effective Date and before Closing which, in the sole and absolute discretion of
Purchaser, renders the Property unsuitable for Purchaser's intended use (whether because of
impossibility, economic unfeasibility, or otherwise, including as a result of casualties such as a
sinkhole, earthquake, tsunami, hurricane or otherwise which render the Property geotechnically
unstable or otherwise unsuitable for Purchaser's intended use), Purchaser shall have the option of
either: (i) canceling this Agreement, whereupon both parties shall be relieved of all further
obligations under this Agreement, except those obligations which survive termination; or (ii)
Purchaser may proceed to Closing, in which case Purchaser shall be entitled to all insurance
awards and settlements relating to the Property.
20. Default.
(a) In the event of a default by Purchaser under this Agreement which is not
cured within ten (10) days after written notice to Purchaser, then Purchaser shall owe to Seller
the full amount of the Purchaser Price, which shall be retained by Seller as liquidated and agreed
upon damages and as Seller's sole remedy; and thereafter, Purchaser shall be relieved from all
further obligations under this Agreement, and Seller shall have no further claim against the
Purchaser for specific performance or for damages by reason of the failure of Purchaser to close
this transaction or for any other claim of Seller.
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(b) In the event of a default by Seller hereunder which is not cured within ten
(10) days after written notice to Seller, then at any time thereafter prior to the cure of such
default by Seller, and Purchaser shall have the right to proceed against Seller in an action for
specific performance of this Agreement and/or for damages based upon such default.
21. AS-IS. Except as specifically set forth in this Agreement or any other written
agreement between Seller and Purchaser(or any affiliate of Purchaser), Seller makes and shall make
no representation or warranty either expressed or implied (except as specifically set forth in this
Agreement) regarding the condition, operability, safety, fitness for intended purpose, use,
governmental requirements, development potential, utility availability, legal access, impact fees,
concurrency, economic feasibility or any other matters whatsoever with respect to the Property.
Purchaser specifically acknowledges and agrees that Seller shall sell and Purchaser shall purchase
the Property on an "AS IS, WHERE IS, AND WITH ALL FAULTS" basis and that, except for
Seller's representations and warranties specifically set forth in this Agreement or any other written
agreement between Seller and Purchaser (or any affiliate of Purchaser), Purchaser is not relying on
any representations or warranties of any kind whatsoever,express or implied,from Seller,its agents,
officers, or employees, as to any matters concerning the Property including, without limitation, any
matters relating to (1) the quality, nature, adequacy, or physical condition of the Property, (2) the
quality, nature, adequacy, or physical conditions of soils, fill, geology, or any groundwater, (3) the
development potential or income potential, (4) the Property's value, use, habitability, or
merchantability, (5) the fitness, suitability, or adequacy of the Property for any particular use or
purpose, (6) the presence of Hazardous Materials or any other hazardous or toxic matter on, under,
or about the Property or adjoining or neighboring property, (7) the freedom of the Property from
latent or apparent vices or defects, or (8) environmental matters of any kind or nature whatsoever
relating to the Property. PURCHASER ACKNOWLEDGES THAT THIS TRANSACTION AND
THE ASSIGNMENTS, CONVEYANCES AND TRANSFERS OF PROPERTY BY SELLER TO
PURCHASER IS iN ITS "AS-IS, WHERE IS" CONDITION WITHOUT REPRESENTATION
OR WARRANTY, ORAL OR WRITTEN, EXPRESS OR IMPLIED EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT OR ANY OTHER WRIF!EN
AGREEMENT BETWEEN SELLER AND PURCHASER (OR ANY AFFILIATE OF
PURCHASER).
22. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the transaction contemplated herein, and it supersedes all prior
understandings or agreements between the parties.
23. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
24. Survival of Provisions. All representations, warranties, and agreements contained
herein shall survive the Closing and delivery of the deed of conveyance contemplated by this
Agreement.
25. Waiver; Modification. The failure by Purchaser or Seller to insist upon or enforce
any of their rights shall not constitute a waiver thereof, and except to the extent conditions are
waived by the express terms of this Agreement, nothing shall constitute a waiver of Purchaser's
right to insist upon strict compliance with the terms of this Agreement. Either party may waive the
Purchase and Sale Agreement- 10
Boynton Town Square South Parcel
benefit of any provision or condition for its benefit which is contained in this Agreement. No oral
modification of this Agreement shall be binding upon the parties and any modification must be in
writing and signed by the parties.
26. Governing Law; Venue. This Agreement shall be governed by and construed
under the laws of the State of Florida. The venue of any legal proceeding between the parties shall
be the state or Federal courts having jurisdiction in or over Palm Beach County, Florida.
27. Headings. The section headings as set forth in this Agreement are for convenience
or reference only and shall not be deemed to alter the content of this Agreement or limitthe
provisions or scope of any section herein.
28. Notices. All notices, demands and other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given:
(a) when personally delivered; or
(b) the next Business Day after being sent by reputable overnight express
courier(charges prepaid); or
(c) when received if by facsimile or e-mail transmission, so long as notice is
concurrently provided to the parties to this Agreement by a method set forth in Section 27(a) or
Section 27(b).
Unless another address is specified in writing, notices,demands and communications to the
parties shall be sent to the addresses indicated below:
If to Seller: City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach,Florida 33435
Attn: Lori LaVerriere, City Manager
With a copy to: Goren, Cherof,Doody&Ezrol,P.A.
Attn: James Cherof,Esq.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale,Florida 33308
If to Purchaser: JKM BTS South,LLC
2300 Glades Road
Suite 202 East
Boca Raton,Florida 33431
Attention: James S. Gielda,John K. Markey and Adam P. Freedman
With a copy to:
Stephen J. Grave de Peralta,Esq.
5030 Champion Blvd., Suite Gi 1-281
Purchase and Sale Agreement- 11
Boynton Town Square South Parcel
Boca Raton, Florida 33496
If any party refuses to accept any attempted delivery of notice in any of the foregoing manners,then
notice shall be deemed to have been delivered upon such refusal. Any party hereto shall have the
right to change its address for notice if written notice is given to all other parties in accordance with
the notice provisions hereof.
29. Assignment. Purchaser shall be permitted to assign its interest in this Agreement
or in any of its rights pursuant to this Agreement to an entity affiliated with Purchaser or its
principals, and such assignments may result in Purchaser selling the right to purchase Property,
selling the Property, or reselling the Property, if after the Closing, for a price which may be less
than or more than the price to be paid to Seller pursuant to this Agreement, and Seller shall have
no claim to any such proceeds in excess of the Purchase Price, nor shall Seller be required to
contribute any deficit if such sales are for less than the Purchase Price. Seller shall not assign
this Agreement without the prior written approval of Purchaser, which may be withheld in
Purchaser's sole and absolute discretion.
30. Attorneys' Fees. In the event that it becomes necessary for either party to bring
suit to enforce the terms of this Agreement, then the prevailing party shall be entitled to recover all
fees and costs, including attorneys' fees and paralegal charges incurred in connection with such
proceedings(including appellate proceedings)against the nonprevailing party.
31. Time of the Essence. Time is of the essence with respect to each provision of this
Agreement which requires that action be taken by either party within a stated time period, or upon a
specified date; provided however, if the date for performance is on a Saturday, Sunday, or federal
holiday,the date for performance shall be extended to the next business day.
32. Construction. Each party hereto hereby acknowledges that all parties hereto
participated equally in the drafting of this Agreement and that, accordingly, no court construing this
Agreement shall construe it more stringently against one party than the other.
33. Counterparts. To facilitate execution, this Agreement may be executed in
counterparts (including by facsimile or other electronic transmission); and it shall not be necessary
that the signature of, or on behalf of, each party, or that the signatures of all persons required to bind
any party, appear on each counterpart; but it shall be sufficient that the signature of, or on behalf of,
each party, or that the signature of the persons required to bind the party appear on one or more of
such counterparts. All counterparts shall collectively constitute a single agreement. Facsimile
copies or other electronically transmitted copies of this executed Agreement shall be deemed an
original agreement.
34. Waiver of Jury Trial. Each party to this Agreement hereby willingly,
knowingly, and voluntarily waives any right to a jury trial in connection with any dispute
between the parties arising from this Agreement, from any claim arising hereunder, or any course
of conduct related hereto.
35. Relationship of Parties. Nothing contained in this Agreement shall be deemed
or construed in any manner or under any circumstances whatsoever as creating or establishing
Purchase and Sale Agreement- 2
1
Boynton Town Square South Parcel 1 L
the relationship of partners or co-venturers, or creating or establishing the relationship of a joint
venture between Purchaser and Seller. The provisions hereof are for the exclusive benefit of the
parties, and no other person or entity, including creditors of any party hereto, shall have any right
or claim against any party by reason of those provisions or be entitled to enforce any of those
provisions against any party.
36. Limitation on Liability. In any action brought to enforce the obligations of
Seller under this Agreement or any other document delivered in connection herewith, the
judgment or decree shall, subject to applicable law and other than in the event of fraud in any
form whatsoever, only be enforceable against Seller up to an amount not to exceed Two Hundred
Fifty Thousand and 00/No Dollars ($250,000.00) ("Maximum Liability Cap"). No officer,
employee or agent of or consultant to Seller shall be held to any personal liability hereunder, and
no resort shall be had to their property or assets, or the property or assets of Seller for the
satisfaction of any claims hereunder or in connection with the affairs of Seller. The provisions of
this Section 36 shall survive the termination of this Agreement.
37. Sovereign Immunity. The parties agree that the Seller is a political subdivision
of the State of Florida and therefore is entitled to sovereign immunity. Nothing in this
Agreement shall be construed to require the Seller to indemnify Purchaser, or insure Purchaser
for its negligence or to assume any liability for Purchaser. Further, any provision in this
Agreement that requires the Seller to indemnify, hold harmless or defend Purchaser from liability
for any other reason shall not alter the Seller's waiver of sovereign immunity or extend the
Seller's liability beyond the limits established in Section 768.28 of the Florida Statutes, as
amended.
(SIGNATURES APPEAR ON THE FOLLOWING PAGE)
Purchase and Sale Agreement- 13
Boynton Town Square South Parcel
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have
executed this Agreement as of the latest day and year set forth below.
SELLER:
City of Bo 1 to• Beac r
APPROV V ' TOI
By: ?.//�
Name: 5 6/6/1) /4, •Ai`T
II '� Title: 424 y 0
City 37.' ney /
PURCHASER:
JKM BTS South, LLC,
a Florida limited liability company
By: JKM BTS Capital, LLC, a Florida
limited liability company, its
Manager
B . //
.ohn K. Markey, Manager
I
Purchase and Sale Agreement-
14
Boynton Town Square South Parcel
Exhibit"A"
Legal Description of the Property
(00222413.1 306-9905263) 7
Option Agreement-
Boynton Town Square South
LEGEND:
Il.aa.Il• PROJECT BOUNDARY
4 PEDESTRIAN CIRCULATION
PHASE LINE
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EXHIBIT "B"
Option Agreement
See attached.
Purchase and Sale Agreement- 1 L
Boynton Town Square South Parcel 1 V
THIS INSTRUMENT PREPARED BY AND
WHEN RECORDED RETURN TO:
Stephen J. Grave de Peralta, Esq. I PG Law
5030 Champion Blvd., Suite G11-281
Boca Raton, Florida 33496 1561.325.6510
Folio No.
OPTION AGREEMENT
(BTS SOUTH)
Th's Option Agreement (the "Agreement") is made and entered into as of the day of
2018 (the "Effective Date"), by and between JKM BTS South, LLC, a Florida limited
liability company (the "Owner"), and City of Boynton Beach(the"City").
RECITALS
WHEREAS, Owner has acquired the real property described on Exhibit"A" (the"Property")
from the City; and
WHEREAS, Owner and City have entered into this Agreement as a condition of and in
consideration of the acquisition of the Property from City; and,
WHEREAS, the parties desire to reduce their agreement to writing.
THEREFORE, for $10 and other good and other valuable consideration, the receipt of which
is hereby acknowledged, the parties stipulate and agree as follows:
AGREEMENT
1. Recitals. The recitals set forth above are true and correct and are hereby incorporated
herein.
2. Granting of Option. Subject to the terms and conditions of this Agreement, Owner
hereby grants City an option to purchase the Property(the "Option").
3. Conditions to Exercise of Option. Following the occurrence of any of the following
events, City shall have the right to exercise the Option:
a. If Owner shall have failed to file an application for site plan approval within 120
days of the Effective Date; or
1
Option Agreement-
Boynton Town Square South
b. If Owner shall have failed to obtain a construction loan within fourteen (14)
months from the Satisfaction Date (as such term is defined in that certain
Development Agreement by and between City and JKM BTS Capital, LLC, an
affiliate of Owner, executed as of the _ day of March, 2018 (the "Development
Agreement"); or
c. Upon any termination of the Development Agreement; or
d. Upon the filing by or against Owner of any petition or application for relief,
extension, moratorium or reorganization under any bankruptcy, insolvency or
debtor's relief law or law whereunder Owner is making an assignment for the
benefit of creditors, or entering into any arrangement with creditors or becomes a
party to any receivership proceeding, which is not dismissed within sixty (60)
days of filing in the case of matters filed against Owner.
4. Exercise of the Option. City may exercise the Option by delivering written notice to
Owner of its intent to the exercise the Option and of the specific grounds pursuant to which the City
believes the Option has become exercisable (the "Option Exercise Notice"). Upon receipt of such
Option Exercise Notice, Owner shall have thirty (30) days (the "Option Confirmation Period") to (i)
cause the termination of the Option (as set forth in Section 5 below), (ii) cause such grounds to no
longer exist, or (iii) demonstrate to the reasonable satisfaction of City that such grounds never
existed(the foregoing,the"Option Deferral Conditions").
5. Termination of Option. Notwithstanding any prior or pending Option Exercise Notice
or the expiration of any Option Confirmation Period, upon Owner's entering into a construction loan
for the construction of the intended improvements upon the Property, the Option granted hereunder
shall be terminated, and City shall have no further rights whatsoever to acquire the Property
pursuant to this Agreement or otherwise. City agrees to cooperate with Owner in connection with
Owner obtaining such a construction loan and to deliver a termination of this Option Agreement in
recordable form into escrow, to be recorded only upon the occurrence of the closing of such a
construction loan.
6. Cooperation. City agrees that, in connection with Owner obtaining a construction loan,
City shall cooperate with Owner and Owner's lender to satisfy the requirements of Owner's lender
and any title insurer underwriting a policy of title insurance with respect to the construction loan
upon the Property. In connection therewith, City shall execute a termination of this Agreement and
deliver such termination into escrow, to be released and delivered from escrow only upon the
closing of such construction loan, together with such other documents and such further terms and
conditions as City, Owner, Owner's lender, and any such title insurer shall reasonably agree.
7. Purchase Price. The purchase price for the exercise of the Option shall be $100.00,
payable in cash at closing (the"Purchase Price").
8. Closing. Closing for the purchase under this Agreement shall occur within fifteen (15)
Idays following the expiration of any applicable Option Confirmation Period with respect to which
Owner did not satisfy any of the Option Deferral Conditions, at such time and in such manner as
Owner and City shall reasonably agree.
(00222413.1306-9905263) 2
Option Agreement-
Boynton Town Square South
9. Title. Upon the terms and conditions agreed to and set forth herein, at the Closing,
Owner shall convey to City, by special warranty deed, title in fee simple to the Property in the same
condition as conveyed by City to Owner.
10. Closing Costs. City shall pay all costs of recording the deed for the Property and any
documentary stamp taxes on the deed. Each of the parties shall pay for their own attorney's fees in
connection with the exercise of the Option and the Closing thereunder.
11. Default. In the event of a default by either party hereunder which is not cured within ten
(10) days after written notice to such party, then at any time thereafter prior to the cure of such
default by party, the non-defaulting party shall have the right to proceed against the defaulting party
in an action for specific performance of this Agreement and/or for damages based upon such default.
12. Assignment. The Option hereunder may not be assigned to any party without the written
consent of Owner, which may be withheld for any reason or for no reason, in the sole and absolute
discretion of Owner.
13. Miscellaneous.
a. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the transaction contemplated herein, and it supersedes all
prior understandings or agreements between the parties.
b. Binding Effect. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
c. Headings. The section headings as set forth in this Agreement are for
convenience or reference only and shall not be deemed to alter the content of this
Agreement or limit the provisions or scope of any section herein.
d. Waiver; Modification. The failure by either party to insist upon or enforce any
of their rights shall not constitute a waiver thereof, and except to the extent
conditions are waived by the express terms of this Agreement, nothing shall
constitute a waiver of such party's right to insist upon strict compliance with the
terms of this Agreement. Either party may waive the benefit of any provision or
condition for its benefit which is contained in this Agreement. No oral
modification of this Agreement shall be binding upon the parties and any
modification must be in writing and signed by the parties.
e. Notices. Any notice required or permitted to be delivered hereunder shall be
deemed to be delivered when delivered, whether personally delivered or whether
delivered by an overnight or other courier service (or upon refusal of the
receiving party to accept such attempted delivery. Notice to either party, as the
case may be, shall be addressed as follows:
If to Owner:
2300 Glades Road
{00222413.1 306-9905263) 3
Option Agreement-
Boynton Town Square South
Suite 202 East
Boca Raton, Florida 33431
Attention: James S. Gielda, John K. Markey and Adam P.
Freedman
With a copy to:
Stephen J. Grave de Peralta, Esq.
5030 Champion Blvd., Suite G11-281
Boca Raton, Florida 33496
If to City:
City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach, Florida 33435
Attn: Lori LaVerriere, City Manager
With a copy to:
Goren, Cherof, Doody& Ezrol, P.A.
Attn: James Cherof, Esq.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale, Florida 33308
Such addresses may be changed from time to time by either party by
providing written notice in the manner set forth above.
f. Governing Law; Venue. This Agreement shall be governed by and construed
under the laws of the State of Florida. The venue of any legal proceeding
between the parties shall be the state or Federal courts having jurisdiction in or
over Palm Beach County, Florida.
•
g. Attorneys' Fees. In the event that it becomes necessary for either party to bring
suit to enforce the terms of this Agreement, then the prevailing party shall be
entitled to recover all fees and costs, including attorneys' fees and paralegal
charges incurred in connection with such proceedings (including appellate
proceedings) against the nonprevailing party.
h. Counterparts. To facilitate execution, this Agreement may be executed in
counterparts, and it shall not be necessary that the signature of, or on behalf of,
each party, or that the signatures of all persons required to bind any party, appear
on each counterpart; but it shall be sufficient that the signature of, or on behalf of,
each party, or that the signature of the persons required to bind the party appear
on one or more of such counterparts. All counterparts shall collectively
constitute a single agreement.
i. Waiver of Jury Trial. Each party to this Agreement hereby willingly,
knowingly, and voluntarily waives any right to a jury trial in connection with any
(00222413.1 306-9905263} 4
Option Agreement-
Boynton Town Square South
dispute between the parties arising from this Agreement, from any claim arising
hereunder, or any course of conduct related hereto.
j. Relationship of Parties. Nothing contained in this Agreement shall be deemed
or construed in any manner or under any circumstances whatsoever as creating or
establishing the relationship of partners or co-venturers, or creating or
establishing the relationship of a joint venture between City and Owner. The
provisions hereof are for the exclusive benefit of the parties, and no other person
or entity, including creditors of any party hereto, shall have any right or claim
against any party by reason of those provisions or be entitled to enforce any of
those provisions against any party.
(Signatures appear on the following pages)
•
(00222413.1306-9905263) 5
Option Agreement-
Boynton Town Square South
(Signature page to Option Agreement)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
Signed,sealed and deli h i T6 FORM
in the presence of: f1
rkl
aty ®rne CITY:
�ri%7 bli / • !/ City of Boyn on : -ach '
Pr' ame: L. i .115d • . /
By: dA ' 40
Name: 5 i A) 4• (j t i ,v r
,� Title: /1'),¢y 6/1
Pre e: '�j ,•'^1 /.3• f-Iv w/4.-'
OWNER:
/ JKM BTS South,LLC,
Age 'I I/ t'. At a Florida limited liability company
'r} Name: �Cy/IJNySooU
/ / By: JKM BTS Capital, LLC, a Florida
limited liability company, its Manager
Print Name: ,--, igi, ii-k 4 •
lin K. Markey, Manager
STATE OF FL A
COUNTY OF fig Lifl/3162CA/
The,foregoing instrume t was ac owledged before me this I I day of/,q,- A>/,2018 by 5.741/44/i /Z/j/(/'j� , as..R4 I of the City of Boynton Beach, Florida, who is personally known to
me or who produced as identificati n.
i ` "! ;" YNL N M.sWANSON .I �� •�/
;- \` M1 COMMISSION#GG 150$13 N• feARY PUBLIC, State of Florida
0 ore EXPIRES:November 17,_721
f `a`_`Bonded Thr_Notary P_b�c Und
STATE OF FLOfIDA ,,//
COUNTY OF �L ' Ai
The foregoing instrument was acknowledged before me this / / day of/kaki , 2018 by John K.
Markey, as Manager of JKM BTS Capital, LLC, a Florida limited liability company, the manager of JKM
BTS South, LLC, a Florida limited liability company, who is personally known to me or who produced
as identification, on behalf of the come. /
' '"+"' LYNN M.SWANSON •
/ir/L`/ /1, le/ " ".��//
cid �c MY COMMISSION#GG 150313
1 - EXPIRES:November 17,2021 i• / RY PU:LIC, State of Florida
"•f:6°•'' Bonded Thr_Notary Public Underwriters
6
Option Agreement-
Boynton Town Square South
Exhibit "A"
Legal Description of the Property
7
Option Agreement•
Boynton Town Square South
DESCRIPTION: PARCEL#7
A PARCEL OF LAND BEING A PORTION OF LOTS 1, 2, 3,4, 5 AND 6, BLOCK 16 OF THE PLAT OF SAWYER'S
ADDITION AS RECORDED IN PLAT BOOK 1, PAGE 69 ALL OF THE PUBLIC RECORDS OF PALM BEACH
COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS;
COMMENCING AT THE NORTHEAST CORNER OF SECTION 28, TOWNSHIP 45 SOUTH, RANGE 43 EAST,
PALM BEACH COUNTY, FLORIDA; THENCE, ALONG THE NORTH LINE OF SAID SECTION 28, SOUTH
89°46'40" WEST, A DISTANCE OF 1973.92 FEET TO A POINT OF INTERSECTION WITH THE CENTERLINE OF
SEACREST BOULEVARD (GREEN STREET) AS RECORDED IN ROAD PLAT BOOK 5, PAGE 179 OF THE PUBLIC
RECORDS OF PALM BEACH COUNTY, FLORIDA; THENCE, DEPARTING SAID NORTH LINE OF SECTION 28,
ALONG SAID CENTERLINE, SOUTH 01°33'51" EAST, A DISTANCE OF 996.59 FEET; THENCE, DEPARTING
SAID CENTERLINE NORTH 88°26'09" EAST, A DISTANCE OF 40.00 FEET TO A POINT OF INTERSECTION
WITH THE EAST RIGHT-OF-WAY LINE OF SAID SEACREST BOULEVARD AND THE POINT OF BEGINNING;
THENCE, DEPARTING SAID EAST RIGHT-OF-WAY LINE, NORTH 89°42'10" EAST, A DISTANCE OF 610.35
FEET TO A POINT OF INTERSECTION WITH THE EAST LINE OF.SAID LOT 1, BLOCK 16; THENCE, ALONG
SAID EAST LINE, SOUTH 01°22'45" EAST, A DISTANCE OF 268.35 FEET TO THE SOUTHEAST CORNER OF
SAID LOT 1, BLOCK 16; THENCE, ALONG THE SOUTH LINE OF SAID LOTS 1 THROUGH 6, BLOCK 16, SAID
LINE ALSO BEING THE NORTH RIGHT-OF-WAY LINE OF S.E. 2ND AVENUE (DADE STREET) AS SHOWN ON
SAID PLAT OF SAWYER'S ADDITION, SOUTH 89°30'34" WEST,A DISTANCE OF 589.81 FEET TO THE POINT
OF CURVATURE OF A CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 20.00 FEET;THENCE,
DEPARTING THE SOUTH LINE OF SAID LOT 6, BLOCK 16, NORTHWESTERLY ALONG SAID NORTH RIGHT-
OF-WAY LINE AND ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 88055'35", A
DISTANCE OF 31.04 FEET TO THE POINT OF TANGENCY AND A POINT OF INTERSECTION WITH THE
AFORESAID EAST RIGHT-OF-WAY LINE OF SEACREST BOULEVARD;THENCE,ALONG SAID EAST RIGHT-OF-
WAY LINE, NORTH 01°33'51"WEST,A DISTANCE OF 250.80 FEET TO THE POINT OF BEGINNING.
SAID LANDS LYING SECTION 28,TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA.
CONTAINING 164,187 SQUARE FEET OR 3.7692 ACRES, MORE OR LESS.
IEXHIBIT "C"
Parking Agreement
See attached.
I
Purchase and Sale Agreement- 17
Boynton Town Square South Parcel
107-0140
PARKING LICENSE AGREEMENT
(BTS South)
THIS PARKING LICENSE AGREEMENT (the "Agreement") is entered into this L
day of gaL' , 2016, by and between JKM BTS South, LLC, a Florida limited liability
company("Owner"),and City of Boynton Beach ("City").
WITNESSETH:
WHEREAS, Owner owns certain real property in Boynton Beach,Florida,together with all
rights, easements and appurtenances belonging or in any way pertaining thereto, and all
improvements thereon, including without limitation certain buildings located thereon, commonly
known as Boynton Beach Town Square Apartments South (the "Apartments") and Garage South
(the "Garage"), as more particularly depicted on the attached Exhibit "A" (collectively,
"Property");
WHEREAS, City desires to license from Owner the right to use certain portions of the
Garage consisting of three hundred sixty-four (364) parking spaces, which will be constructed in
accordance with applicable law and construction codes ("Spaces"), and certain other areas within,
adjacent to, or near the Garage (such other areas,the"Other Licensed Areas") (the Spaces and the
Other Licensed Areas are sometimes hereinafter referred to as "Facilities"), upon the terms and
conditions set forth herein; and
WHEREAS, Owner desires to license the use of the Facilities to City, upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of their mutual promises, covenants and intending
to be legally bound,the parties hereto agree as follows:
1. Facilities. Owner hereby licenses to City and City hereby licenses from Owner,
pursuant to the terms and conditions of this Agreement, the use of the Facilities, together with the
nonexclusive use, in common with others entitled thereto, of driveways and pathways across the
Property as designated by the Owner,for the limited purpose of accessing the Facilities.
2. Term and Commencement of Term. This Agreement shall be in full force and
effect from the date first written above. The term of the Agreement ("Term") shall commence on
the last to occur of the following("Commencement Date"):
(a) the date first written above;or
(b) the date a Certificate of Occupancy is delivered to Owner.
Unless sooner terminated pursuant to the terms of this Agreement, the Term shall continue
from the Commencement Date for a period of fifty(50)years and shall terminate at midnight on the
last day of the fiftieth(50th) License Year(as hereinafter defined) ("Expiration Date").
1
Parking License Agreement-
Boynton Town Square South
For purposes of this Agreement, the first "License Year" shall commence upon the
Commencement Date and end on the last day of the fourth(4th)full calendar quarter thereafter(e.g,
if the Commencement Date is February 15,2019,then the first License Year shall commence on the
Commencement Date and end on March 31, 2020); and each License Year thereafter shall
commence upon the first day after the end of the prior License Year, and shall end on the last day of
the fourth (4th) full calendar quarter thereafter (continuing the example above, the second License
Year would commence on April 1,2020, and end on March 31,2021).
3. License Fees and Expenses.
(a) Pursuant to the Development Agreement entered into between an affiliate of
Owner and City, City has provided consideration to Owner for the use of the Spaces for the Term
set forth herein.
(b) In addition to such consideration, City shall pay its proportionate share of all
expenses relating to the Common Areas (as defined in Section 4)and to the Operating Expenses(as
defined in Section 4)related to the maintenance and operation of the Garage.
4. Expenses.
(a) Definitions. For purposes of this Agreement,the following terms shall have
the meanings set forth below:
(i) "City's Proportionate Share of Common Area Expenses" shall mean
forty percent(40%) of the Common Area Expenses;provided,however,that 100%of any Common
Area Expenses with respect to the Other Licensed Areas shall be allocated to City.
(ii) "City's Proportionate Share of Operating Expenses" shall mean forty
percent(40%)of the Operating Expenses;provided,however,that 100%of any Operating Expenses
with respect to the Other Licensed Areas shall be allocated to City.
(iii) "Common Areas" shall mean all areas located within the Garage that
are not dedicated to the exclusive use or possession of any person.
(iv) "Common Area Expenses" shall include, without limitation, all taxes
(including, without limitation, real estate taxes), assessments, insurance costs, common area
cleaning, landscaping, electricity, water, sewer, other utility services, garbage and trash removal,
pest control, management fees, operating costs, administrative costs, service contracts, repair and
replacement costs, and all other charges, costs and expenses, ordinary, foreseen or unforeseen,
computed on the accrual basis,which pertain to the Common Areas and are the obligation of Owner
to pay under the Development Agreement or otherwise.
(v) "Operating Expenses" shall mean all costs and expenses which
Owner incurs for operating, maintaining and repairing the Garage, the parking areas, and other
common areas and appurtenances relating to the Garage or any part thereof. Operating Expenses
shall include, without limitation, the following with respect to the Garage and Owner and any
manager or operator engaged to manage the Garage and others engaged in the operation,
maintenance and repair thereof: (a) management fees, including, to the extent permitted under the
{00222424.1 306-9905263) 2
Parking License Agreement-
Boynton Town Square South
applicable management contract, employee compensation, benefits and taxes; (b) all charges for
water, sewer, electricity and other utilities and services which are not separately metered, and
rubbish removal, and taxes thereon; (c) the cost of all supplies, tools, materials and equipment; (d)
the cost of repairs, maintenance, alterations, replacements and painting; the cost of cleaning,
maintenance and landscaping of public areas and window cleaning; (e) the cost of capital
improvements to any portion of the Garage; (f) legal, accounting and other professional fees and
expenses; (g) administrative costs; and any and all other expenses; (h) all taxes and assessments
(including, without limitation, real estate taxes); (i) insurance costs; and (j) all other costs
customarily treated as operating expenses or taxes in buildings of this nature.
(vi) Rights. City acknowledges that Owner shall have the right to install
facilities within the Common Areas for the benefit of the Property and to perform services for the
benefit of the Property, of Owner, of Owner's tenants, and of the licensees, employees, customers,
visitors and invitees of the Property, and to pass through to the City its proportionate share of the
costs of operating, maintaining and insuring such facilities and performing such services, which
may include, without limitation, additional security, trash compaction and disposal, litter control,
and landscape maintenance of the Property. Owner's costs of operating, maintaining and insuring
any such facilities and providing any such services for the benefit of the Property as a whole,as well
as all costs passed through to Owner by the City or incurred directly by Owner for operating,
maintaining and insuring the Common Areas, as well as all other costs incurred by Owner in
connection with administering, operating, maintaining and insuring the Property, shall be included
in Common Area Expenses for purposes hereof. The Common Area Expenses may include a
market rate management fee to the manager of the Property, not to exceed six percent (6%) of the
Common Area Expenses and Operating Expenses. Notwithstanding anything to the contrary in this
License, to the extent that any material improvements to the Garage contemplated by Owner
directly affect the Facilities or City's right to the use of the Facilities, as reasonably determined by
Owner, Owner shall be required to obtain the prior written consent of City, which consent shall not
be unreasonably withheld by City, and City shall be responsible for City's Proportionate Share of
Common Area Expenses and City's Proportionate Share of Operating Expenses with respect to such
improvements. Furthermore to the extent that any improvements to the Garage only:
(i) Affect the Facilities or City's right to the use of the Facilities under
this License, City shall be solely responsible for all costs of construction, installation, maintenance,
repair,and replacement of such improvements; and
(ii) Affect portions of the Property other than the Facilities or rights other
than City's right to the use of the Facilities under this License, then Owner shall be solely
responsible for all costs of construction, installation, maintenance, repair, and replacement of such
improvements.
(b) Payment of City's Proportionate Share. Commencing as of the Effective
Date, City agrees to pay to Owner, in accordance with the methodology set forth in Section 4(d),the
following(prorated for any partial License Year at the beginning or end of the Term):
(i) City's Proportionate Share of Common Area Expenses; and
(ii) City's Proportionate Share of Operating Expenses.
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Parking License Agreement-
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(c) Estimate. For each License Year during the Term, Owner shall supply City
with an estimate of the City's Proportionate Share of Common Area Expenses and City's
Proportionate Share of Operating Expenses ("Owner's Estimated Expense Computation") for such
License Year. City shall pay to Owner on the 1 st day of each month during the License Year one-
twelfth (1/12) of Owner's Estimated Expense Computation. For each License Year during the
Term, Owner shall notify City of the actual annualized Common Area Expenses and the Operating
Expenses for the License Year just concluded("Owner's Actual Expense Computation"). Owner's
Actual Expense Computation shall be prorated for any fraction of a License Year in which the Term
begins or ends. If the Owner's Estimated Expense Computation paid by City to Owner with regard
to any License Year is less than the Owner's Actual Expense Computation with regard to the same
License Year, the amount of such shortfall shall be taken into account in calculating the Owner's
Estimated Expense Computation for the following License Year (and shall thereby increase the
following License Year's estimated payments by the amount of such shortfall). If the portion of the
Owner's Estimated Expense Computation paid by City to Owner with regard to any License Year
exceeds the Owner's Actual Expense Computation with regard to the same License Year,the excess
shall be taken into account in calculating the Owner's Estimated Expense Computation for the
following License Year (and shall thereby decrease the following License Year's estimated
payments by the amount of such excess). Owner agrees to coordinate with City to adjust timing of
and dates for the calculations set forth in this Section in order to coincide with City's fiscal year.
(d) Right to Audit. City shall have the right, at its sole cost and expense, within
sixty(60)days from receipt of Owner's Actual Expense Computation,to audit or have its appointed
accountant audit Owner's records related to Owner's Actual Expense Computation, provided any
such audit may not occur more frequently than once during each License Year occurring during the
term of the License. City must raise any objection to any item contained within the Owner's Actual
Expense Computation by providing written notice of such objection to Owner within thirty (30)
days after its completion of the audit of Owner's records. If Owner made a clerical error and City
has paid in excess of its Proportionate Share of Common Area Expenses or Proportionate Share of
Operating Expenses, then Owner will immediately adjust the Estimated Expense Computation to
take into account the amount of the overpayment.
(e) Changes to Common Areas. City acknowledges that (subject to applicable
law) the Owner has the right to: change or modify and add to or subtract from the sizes, locations,
shapes and arrangements of parking areas, entrances, exits, parking aisle alignments, lighting,
landscaping, and other Common Areas and Common Area improvements and facilities located
within the Property; establish and, from time to time, change the level or grade of parking surfaces;
enforce parking charges (by meters or otherwise) with respect to portions of the Property other than
the Spaces at any time and/or with respect to non-City use of the Spaces during Non-Exclusive Use
Hours; and do and perform such other acts in and to Common Areas as Owner,in its sole discretion,
deems advisable. Notwithstanding the foregoing, except as required by applicable law, Owner will
not modify or rearrange the Spaces without the prior written consent of City, which consent shall
not be unreasonably withheld, conditioned,or delayed.
5. Late Charge and Default Interest. Any payment owed by City not received
within thirty (30) calendar days of the date due shall bear an administrative late charge of Twenty-
Five and 00/100 Dollars ($25.00) and shall bear interest at the lesser of(i) eighteen percent (18%)
per annum, and(ii)the highest rate allowed by applicable law. If any check given to Owner for any
{00222424 1 306-9905263) 4
Parking License Agreement-
Boynton Town Square South
payment under this Agreement is dishonored, for any reason whatsoever not attributable to Owner,
in addition to all other remedies available to Owner, at Owner's option, all future payments from
City shall be made by Cashier's Check drawn on a bank located in the Palm Beach County or by
wire transfer to Owner's account.
6. Payment of Utilities. Subject to reimbursement as part of the Common Area
Expenses or Operating Expenses, Owner shall provide and pay for any electrical or other utility
services required to operate the Facilities. Owner makes no warranty or representation as to the
quality or capacity of utility service to the Facilities.
7. Use of Facilities.
(a) City shall use the Spaces solely for the parking of motor vehicles and for no
other purpose, and the remainder of the Facilities for their respective intended purposes and for no
other. City shall have the non-exclusive use of the Other Licensed Areas, twenty-four(24) hours a
day, seven(7)days a week. City shall be permitted the exclusive use of the Spaces twenty-four(24)
hours a day,seven(7)days a week(the"Exclusive Use Hours").
(b) City accepts the Facilities in their "as is" condition, with all faults, and
without representation or warranty of any kind as to suitability of the Facilities for City's use.
(c) City acknowledges that all parking in the Garage is currently on a self-
parking basis. City covenants and agrees that Owner has no obligation to monitor unauthorized use
of the Spaces, and that Owner shall have no obligation, liability, or responsibility to City should the
Spaces be occupied at any time or times by vehicles not so authorized or directed by Owner.
(d) During the Term of this Agreement, City, at its sole expense, shall have the
right to install or otherwise designate (via paint or other approved format) and maintain appropriate
signage of the Spaces indicating that such Spaces are for the sole use of City and that violators will
be subject to towing at the violators' expense. Any signage that City intends to be installed shall
first be submitted to Owner for its review and approval. City, at its sole cost and expense, shall
prior to installation of signage, obtain all required governmental, quasi-governmental, and other
permits and approvals.
(e) During the Term of this Agreement, City, at its sole expense, shall have the
right to install and maintain metered parking equipment and such other equipment and facilities as
are necessary in connection with allowing the public use of all or any portion of the Spaces in the
ordinary course, whether with or without charge, on an hourly or daily basis. Any equipment that
City intends to be installed shall first be submitted to Owner for its review and approval, which
approval shall not be unreasonably withheld provided that such installation will comply with
applicable law and will not materially impact the structural integrity of the Garage, any electrical or
other systems in the Garage, or otherwise have any material adverse impact upon the Garage or its
use and operation. City, at its sole cost and expense, shall, prior to installation of such equipment,
obtain all required governmental, quasi-governmental, and other permits and approvals. City shall
be responsible for all costs of installation, maintenance, and repair of such equipment and facilities,
and shall coordinate same with Owner and any third-party manager of the Garage at no expense to
Owner or such third-party manager; City shall be entitled to all revenue resulting from such use of
{00222424.1306-9905263} 5
Parking License Agreement-
Boynton Town Square South
the Spaces, and such amounts shall either be collected by or paid to City, or if collected by Owner
or any third-party manager, shall be paid to City or applied to reduce City's obligations with respect
to City's Proportionate Share of Common Area Expenses and City's Proportionate Share of
Operating Expenses. If City should elect to have metered parking equipment installed for its
facilities during the initial construction or at any time thereafter, City shall pay for and/or reimburse
Owner for the total construction cost for the additional metered parking equipment.
(f) City, at its sole expense, may also contract with a duly licensed towing
company to service the Spaces during the Exclusive Use Hours and to enforce the signage described
in Section 6(d), above. If City elects to contract with such a towing company, City shall promptly
furnish Owner with a copy of its written contract with the towing company, and shall require the
towing company to furnish insurance in connection with its services in a form and in amounts
reasonably required by the Owner, and such insurance shall name the Owner as an additional
insured.
(g) City covenants that,during the Term,no part of the Facilities shall be used in
any manner whatsoever for any purposes other than as set forth in Section 6(a) or in violation of the
laws, ordinances, regulations, codes or orders of the United States, the State of Florida, county,
and/or city or other applicable governmental subdivisions where the Facilities are located. City
shall comply with all such laws, ordinances, regulations, codes and orders now in effect or hereafter
enacted or passed during the Term insofar as the Facilities and any signs of the City are concerned
(collectively,"Legal Requirements").
8. City's Insurance. City has advised Owner that City has elected to self-insure
against certain risks, including certain risks related to City's rights under this License and to City's
occupation or use of the Facilities. City shall keep Owner reasonably apprised of any material
changes to its self-insurance program(e.g., any current action or planned actions to make significant
increases or decreases in the reserves for such purpose or to modify the source or method of
replenishment of such reserves). Notwithstanding the foregoing, to the extent that City obtains any
insurance policy from a private insurer (rather than a governmental insurance pooling arrangement
or other self-insurance method), City, at its sole cost, shall maintain such coverages with admitted
insurers authorized to do business in the State of Florida and which are rated "A-/VIII" or
equivalent in Best's Key Rating Guide, or any successor thereto (or if there is none, a rating
organization having a national reputation); City shall provide to Owner a copy of each such policy
or a certificate of insurance prior to the Commencement Date. If permitted by the insurer or the
terms of City's insurance pooling arrangement or other self-insurance method, any policy of
insurance maintained by City in connection with the Property shall name Owner as an additional
insured, and if required by any mortgagee, shall name such mortgagee as additional insured.
Furthermore, any policy of insurance maintained by City in connection with the Property shall
provide that written notice shall be given to all insured parties, additional insured parties, and
holders of certificates of insurance at least thirty (30) days prior to suspension, cancellation,
termination, modification, non-renewal or lapse or material change of coverage. Subject to
applicable law,in no event shall the limits of any insurance policies (or City's election to self-insure
as to any risks in connection with the Property)limit the liability of City under this Agreement.
9. Waiver of Claims. Except for claims arising from Owner's intentional or grossly
negligent acts that are not covered by City's insurance required by this Agreement, subject to
{00222424.1306-9905263} 6
Parking License Agreement-
Boynton Town Square South
applicable law,City or any party claiming through City(collectively, "City Parties")hereby waives
all claims against Owner and Owner's members, and each of their respective members, managers,
officers, agents, employees, and independent contractors (collectively, "Owner Parties") for injury
or death to persons, or damage to property or to any other interest of any of the City Parties,
resulting from: (i) any occurrence in or upon the Facilities or Property; (ii) wind, rain, hurricane,
flooding, fire, explosion, hail, or other casualty or act of God; (iii) the Facilities or the Property
being defective, out of repair, or failing; and (iv) vandalism, assault, battery, malicious mischief,
theft or other acts or omissions of any third parties.
10. Indemnification by City. Subject to applicable law, City shall indemnify, defend,
and hold harmless Owner and Owner's members, and each of their respective members, managers,
employees, independent contractors, attorneys, and agents, and each of their respective heirs,
representatives, successors and assigns, from and against any and all claims,expenses, damages and
liabilities of every kind and nature whatsoever including, without limitation, reasonable attorneys'
fees, court costs, litigation expenses, and penalties, arising out of, caused by, or related to the use of
the Facilities by City and its employees, independent contractors, invitees, or agents, and the
conduct and/or actions of any of City's employees, independent contractors, invitees, guests, or
agents relating thereto. This Section 10 shall survive the termination of the License.
11. Indemnification by Owner. Owner (and Owner's heirs, successors, and assigns)
shall indemnify, defend, and hold harmless City and City's managers, employees, independent
contractors, attorneys, and agents, and each of their respective heirs,representatives, successors and
assigns, from and against any and all claims, expenses, damages and liabilities of every kind and
nature whatsoever including, without limitation, reasonable attorneys' fees, court costs, litigation
expenses, and penalties, arising out of, caused by, or related to any acts of gross negligence or
intentional misconduct by Owner or any of its employees, independent contractors, invitees, guests,
or agents. This Section 11 shall survive the termination of the License.
12. Events of Default by City. Upon the happening of one or more of the following
events("Event of Default"),Owner shall have any and all rights and remedies hereinafter set forth:
(a) if City shall fail to pay any sum due from City to Owner within five (5)
calendar days after City receives written notice of the failure to pay after the payment is due;
(b) if City allows any person or entity other than the City, or its employees,
agents, guests, and invitees to use the Facilities or if City attempts to transfer its rights under this
Agreement without Owner's prior written consent including any attempt to assign this Agreement
or sublicense all or any portion of the Facilities without Owner's prior written consent;
(c) if City violates any other term, condition, or covenant in this Agreement
which is to be performed by City, and fails to remedy the same within thirty (30) days after written
notice of the default is given by Owner to City. Such written notice shall give reasonable detail as
to the nature and extent of the default and identify the Agreement provisions containing the
obligations. If the default cannot reasonably be cured within thirty (30) days, City shall not be in
default of this Agreement if City, during said thirty (30) day period, commences to cure the default
and diligently continues in good faith to cure the default until completion;or
{00222424.1 306-9905263} 7
Parking License Agreement-
Boynton Town Square South
111 (d) if an execution or other legal process is levied upon the interest of City in
this Agreement, and the same is not satisfied or dismissed within ten(10)days from such levy.
13. Remedies of Owner.
(a) If any monetary Event of Default by City occurs and continue for a period in
excess of three (3) months, then, in addition to any other remedies of Owner, Owner shall have the
right to collect all amounts otherwise payable to City from the public use of the Spaces as set forth
in Section 7(e), and to continue collection of such amounts until such Event of Default has been
cured.
(b) If any monetary Event of Default by City occurs and continue for a period in
excess of twelve (12) months, then, in addition to any other remedies of Owner, Owner shall have
the right to seek, pursuant to the terms of Section 28(j), to revoke this License, or to otherwise
terminate City's rights under this License if it is determined pursuant to Section 28(j)that there is no
other remedy available to Owner which will provide reasonable relief to Owner (e.g., if City is
unable to satisfy its financial obligations hereunder and will remain unable to do so for an
unreasonable period of time).
(c) If any Event of Default by City occurs, Owner shall have the right, at its
option, to commence action immediately thereupon and recover judgment for all sums due under
the terms and conditions of Section 28(j)of this Agreement.
(d) If any Event of Default by City occurs, in addition to or instead of the
remedies described in this Agreement, Owner may exercise any right or remedy now or hereafter
existing at law or in equity or by statute, but shall not exercise any right to terminate City's right to
use the Spaces, to revoke this License, or to otherwise terminate City's rights under this License
unless it is determined pursuant to Section 28(j) that there is no other remedy available to Owner
which will provide reasonable relief to Owner (e.g., if City is unable to satisfy its financial
obligations hereunder and will remain unable to do so for an unreasonable period of time).
(e) Subject to any alternative or contrary ruling pursuant to Section 28(j), if any
Event of Default by City occurs, Owner, in addition to other rights and remedies it may have, shall
have the right to remove all personal property, including signage, from the Facilities and any
property removed may be stored in any public warehouse or elsewhere at the cost of, and for the
account of City, and Owner shall not be responsible for the care or safekeeping thereof whether in
transport, storage or otherwise, and City hereby waives any and all claims against Owner for loss,
destruction and/or damage or injury which may be occasioned by any of the aforesaid acts.
(f j Any amounts which may be due Owner, whether by acceleration or
otherwise, shall include any license fees, costs, expenses, or any other amounts payable pursuant to
this Agreement.
(g) If City fails to maintain any insurance required by law, Owner shall have the
right to force-place such insurance with respect to the City's rights under this License or to add City
as an additional insured under a policy of Owner's as to City's rights under this License, and Owner
shall have the right to charge City for any amounts required to purchase such insurance (or to be
reimbursed for such amounts).
{00222424.1306-9905263) 8
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(h) It is expressly agreed that the forbearance on the part of Owner in the
institution of any suit or entry of judgment for any amounts due to Owner under this Agreement
shall in no way serve as a defense against nor prejudice a subsequent action for any such amounts.
City hereby expressly waives City's right to claim a merger or waiver of such subsequent action in
any previous suit or in the judgment entered therein.
(i) Any and all rights, remedies and options given in this Agreement to Owner
shall be cumulative and in addition to and without waiver of, or in derogation of, any right or
remedy under this Agreement or provided under any law now or hereafter in effect.
(j) No cure periods shall apply to any emergencies or to failure to maintain and
furnish insurance.
14. Event of Default by Owner. Owner shall be in default of this Agreement ("Owner
Event of Default") if it fails to perform any provision of this Agreement that it is obligated to
perform, and if the failure to perform is not cured within thirty (30) days of written notice of the
default from City to Owner. Such written notice shall give reasonable detail as to the nature and
extent of the default and identify the Agreement provisions containing the obligations. If the default
cannot reasonably be cured within thirty(30)days, Owner shall not be in default of this Agreement if
Owner, during such thirty(30)day period,commences to cure the default and diligently continues in
good faith to cure the default until completion.
15. Remedies of City. If Owner shall have failed to cure any Owner Event of Default,
after applicable written notice and opportunity to cure, City may terminate this Agreement and may
exercise any right or remedy now or hereafter existing at law or in equity or by statute.
16. Non-Waiver. Any failure of either party to insist upon strict performance of any
part or provision of the Agreement shall not be deemed a waiver, and shall not waive or diminish
such party's right thereafter to demand strict compliance therewith or any other provision and shall
not prejudice or affect such party's rights in event of a subsequent default. Except as otherwise
provided in this Agreement, each party's rights and remedies under this Agreement are cumulative.
17. No Assignment or Sublicense/Change in Ownership.
(a) City may not assign this Agreement in whole or in part, nor sublicense all or
any portion of the Facilities, without the prior written consent of Owner in each instance, which
consent shall be at Owner's sole discretion; provided, however,that the foregoing shall not prohibit
the City from allowing public use of all or any portion of the Spaces in the ordinary course,whether
with or without charge, on an hourly or daily basis. The consent by Owner to any assignment or
sublicense shall not constitute a waiver of the necessity for such consent to any subsequent
assignment or sublicense. No assignment, sublicense, occupancy or collection shall be deemed
acceptance of the assignee, sub-licensee, or occupant, or as a release of City from the further
performance by City of the covenants on the part of City herein contained. This prohibition against
assignment or sublicense without Owner's prior written consent shall be construed to include
prohibition against any assignment or sublicense by operation of law, legal process, receivership,
bankruptcy or otherwise, whether voluntary or involuntary and a prohibition against any
encumbrance of all and any part of City's interest in this Agreement. Despite Owner's consent to
(00222424 I 306-9905263) 9
Parking License Agreement-
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an assignment or sublicense, City shall remain fully liable on this Agreement and shall not be
released from performing any of the terms, covenants and conditions hereof or any license fees or
other sums to be paid hereunder. Any attempted assignment or sublicense without Owner's prior
written consent shall be void and shall constitute an Event of Default.
(b) City acknowledges and agrees that, subject to the terms of this Agreement,
any and all right and interest of Owner in and to the Facilities and the Property, and all right and
interest of Owner in this Agreement, may be conveyed, assigned or encumbered at the sole
discretion of Owner at any time.
(c) If Owner, in its sole and absolute discretion, consents to an assignment or
sublicense of all or any portion of the Facilities, the form of such documents shall be as acceptable
to Owner in its sole and absolute discretion.
(d) If City assigns or sublicenses all of any portion of the Facilities, City shall
pay to Owner an additional license fee, as and when received by City, in an amount equal to all
sums paid to City or its agent by or on behalf of such assignee or sublicensee under the assignment
or sublicense.
18. Subordination and Attornment.
(a) City, and its successors and assigns hereby subordinate their rights hereunder
to the lien of any ground or underlying leases, any mortgage or mortgages, or the lien resulting from
any other method of financing or refinancing,now or hereafter in force against the Facilities and the
Property, and to all advances made or hereafter to be made upon the security thereof. This Section
18(a) shall be self-operative and no further instrument of subordination shall be required, but City
agrees upon request of Owner, from time to time, to promptly execute and deliver all documents
evidencing such subordination, and failure to do so shall constitute a default under this Agreement.
(b) If any proceedings are brought for the foreclosure of, or if exercise of the
power of sale occurs under, any mortgage covering the Facilities and/or the Property; or if a deed is
given in lieu of foreclosure of any such mortgage, City shall attom to the purchaser, mortgagee, or
grantee in lieu of foreclosure, upon any such foreclosure or sale or transfer in lieu of foreclosure,
and recognize such purchaser, mortgagee, or grantee in lieu of foreclosure, as Owner under this
Agreement.
19. Estoppel. Owner and City agree that each will, at any time and from time to time,
within thirty (30) days following written notice by the other party hereto specifying that it is given
under this Section 19, execute, acknowledge and deliver to the party who gave such notice, or its
designate, a statement in writing certifying this Agreement is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and effect and stating the
modifications), and the date to which any payments due hereunder from City have been paid in
advance, if any, and stating whether or not there are defenses or offsets claimed by the maker of the
certificate and whether or not to the best of knowledge of the signer of such certificate the other party
is in default in performance of any covenant, agreement or condition contained in this Agreement,
and if so, specifying each such default of which the maker may have knowledge. The failure of
either party to execute, acknowledge and deliver to the other a statement in accordance with the
{00222424.1306-9905263) 10
Parking License Agreement-
Boynton Town Square South
provisions of this Section 19 within such thirty (30) day period shall constitute an acknowledgment,
by the party given such notice, which may be relied on by any person holding or proposing to
acquire an interest in the Property or any part thereof or the Facilities or this Agreement from or
through the other party, that this Agreement is unmodified and in full force and effect and that such
amounts have been duly and fully paid to and including the respective due dates immediately
preceding the date of such notice and shall constitute, as to any person entitled as aforesaid to rely
upon such statements, waiver of any defaults which may exist prior to the date of such notice;
provided, however that nothing contained in the provisions of this Section 19 shall constitute waiver
by Owner of any default in payment of any amounts owed as of the date of such notice and, unless
expressly consented to in writing by Owner, and City shall still remain liable for the same.
20. Richt of Entry. Owner and Owner's agents may enter the Facilities at all
reasonable times to examine the same, and to show them to prospective purchasers, mortgagees, or
other interested parties, and to make such repairs, alterations, improvements or additions as Owner
may deem necessary or desirable, and Owner shall be allowed to take all material into and upon the
Facilities that may be required therefor without the same constituting a termination of or
infringement upon City's rights in whole or in part, and the amounts payable to Owner shall in no
way abate while the repairs, alterations, improvements, or additions are being made. If City shall
not be present to open and permit entry into the Facilities, at any time,when for any reason an entry
will be necessary or permissible, Owner or Owner's agents may enter the same without in any
manner affecting the obligations and covenants of this Agreement.
21. Right of First Offer.
(a) Offer. If Owner decides to sell the Garage separately from the Apartments,
then prior to putting the Garage on the market, Owner shall offer (an "Offer") to City the right to
purchase the Garage at a purchase price consistent with the purchase price Owner has at such time
elected to offer to third parties and pursuant to material business terms Owner has then elected in its
sole discretion to disclose to third parties (the "Terms"). Owner shall deliver the terms of such
Offer in writing to City(an"Offer Notice"),which shall include no contingency for financing and a
closing to occur no later than 60 days after delivery of the Offer(the"Offer Closing Period").
(b) Offer Period. If City and Owner do not enter into a written agreement for
the sale of the Garage (an "Offer Purchase Agreement") within sixty (60) days of delivery of the
Offer (the "Offer Period"), then such Offer shall be deemed rejected by City. Any Offer Purchase
Agreement shall contain as a condition to the closing thereunder the execution of a parking license
for the benefit of the owner of the Apartments, which license shall be assignable to any subsequent
owner of the Apartments.
(c) No Offer Closing. If City does not close on the purchase of the Garage
pursuant to an Offer Purchase Contract (other than as a result of a default by Owner) during the
applicable Offer Closing Period, then for purposes of this Section 21, City shall be deemed to have
rejected the Offer as of the expiration of the Offer Closing Period, and Owner shall have the same
rights with respect thereto as if City had rejected the Offer.
(d) Rights after Rejection of Offer. Upon the earliest to occur of the following
events: (x) Owner receives notice from City of its rejection of an Offer Notice, (y) the termination
(00222424.1306-9905263} 11
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of a particular Offer Period without Owner and City having entered into an Offer Purchase
Agreement, and (z) the expiration of an Offer Closing Period during which City failed to close on
the purchase of the Garage pursuant to an Offer Purchase Contract(other than as a result of a default
by Owner) (such event, a "Rejection" and such earliest date, the "Rejection Date"); Owner shall
thereafter, subject to the following terms, be permitted to market the Garage for sale at such times
and upon such terms as Owner shall determine in its sole and absolute discretion without City
having any further rights thereto:
(i) Owner shall enter into a written purchase and sale agreement with a
third party within one(1)year after the Rejection Date(the"Third-Party Purchase Contract");
(ii) The Third-Party Purchase Contract shall provide for a purchase price
equal to at least ninety percent(90%)of the Offer Price offered to City; and
(iii) The Third-Party Purchase Contract shall provide for a closing date
no later than 90 days after the effective date of the Third-Party Purchase Contract.
(e) No Sale following Rejection. If, following a Rejection, Owner does not sell
the Garage pursuant to a Third-Party Purchase Contract in accordance with the foregoing terms,
then prior to any future marketing of the Garage, Owner shall be required to issue a new Offer to
City and to proceed with the process set forth in this Section 21.
22. Hazardous Materials and Environmental Laws; Indemnity.
(a) City shall not cause or permit the Facilities to be used for the generation,
handling, storage, transportation, disposal or release of any Hazardous Materials except as
specifically exempted or permitted under applicable Environmental Laws, and City shall not cause
or permit the Facilities or any activities conducted thereon to be in violation of any current and/or
future applicable Environmental Laws. City agrees to indemnify, defend and hold Owner (and
Owner's members,principals, affiliates,directors,officers,employees,mortgagees, ground Owners,
heirs, successors and assigns, as applicable) harmless from and against any and all claims, losses,
damages (including all foreseeable and unforeseeable consequential and incidental damages),
liabilities, fmes, penalties, charges, interest, administrative or judicial proceedings and orders,
judgments, remedial action, requirements, enforcement actions of any kind, and all costs and
expenses incurred in connection therewith (including, without limitation, attorneys= fees and
expenses at both trial and appellate levels), directly or indirectly resulting in whole or in part from
the violation of any Environmental Laws applicable to the Facilities or any activity conducted
thereon, and from any use, generation, handling, storage, transportation, disposal or release of
Hazardous Materials at or in connection with the Facilities and City's use thereof, or any
contamination, detoxification, closure, cleanup or other remedial measure required under any
Environmental Laws. This indemnity shall survive the full payment of all license fees and other
charges under this Agreement and the expiration or earlier termination of this Agreement, and shall
inure to the benefit of Owner and Owner's heirs,personal representatives, successors and assigns.
As used herein, "Hazardous Materials" means: substances defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous materials", "toxic
substances", "containment=s", or other pollution under applicable federal, state, commonwealth,
(00222424 I 306-9905263} 12
Parking License Agreement-
Boynton Town Square South
county, municipal, or local laws, ordinances, codes, rules, regulations or orders now or hereafter in
effect.
As used herein "Environmental Laws" means: any applicable current federal,
commonwealth, state, county, municipal, or local laws, ordinances, rules, codes, regulations, or
orders pertaining to Hazardous Materials or industrial hygiene or environmental conditions.
23. Time of the Essence. Time is of the essence regarding the performance of every
provision of this Agreement.
24. Limitation of Liability of Owner. Notwithstanding any provision to the contrary
contained in this Agreement, City shall look solely to the estate and property of Owner in and to the
Garage in the event of any claim against Owner arising out of or in connection with this Agreement,
the relationship of Owner and City, or City's use of the Facilities, and City agrees that the liability
of Owner arising out of or in connection with this Agreement, the relationship of Owner and City,
or City's use of the Facilities, shall be limited to such estate and property of Owner in and to the
Garage. No properties or assets of Owner other than the estate and property of Owner in and to the
Garage, and no property owned by any affiliate of or member of Owner shall be subject to levy,
execution or other enforcement procedures for the satisfaction of any judgment (or other judicial
process) or for the satisfaction of any other remedy of City arising out of or in connection with this
Agreement,the relationship of Owner and City or City's use of the Facilities.
25. Waiver of Jury Trial. OWNER AND CITY KNOWINGLY, INTENTIONALLY,
AND VOLUNTARILY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM INVOLVING ANY MATTER WHATSOEVER ARISING OUT OF OR IN
ANY WAY CONNECTED WITH (I) THIS AGREEMENT, (II) THE RELATIONSHIP OF
OWNER AND CITY, (III) CITY'S USE OF FACILITIES AND THE GARAGE, OR (IV) THE
RIGHT TO ANY STATUTORY RELIEF OR REMEDY. CITY FURTHER WAIVES THE
RIGHT TO INTERPOSE ANY PERMISSIVE COUNTERCLAIM OF ANY NATURE IN ANY
ACTION OR PROCEEDING COMMENCED BY OWNER TO TERMINATE THIS
AGREEMENT, TERMINATE CITY'S USE OF THE FACILITIES, OR OBTAIN POSSESSION
OF THE FACILITIES. THE WAIVERS SET FORTH IN THIS SECTION ARE MADE
KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY BY THE PARTIES. THIS
PROVISION IS A MATERIAL INDUCEMENT TO BOTH PARTIES IN AGREEING TO
ENTER INTO THIS AGREEMENT.
26. Notices. All notices, demands and other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given:
(a) when personally delivered; or
(b) the next Business Day after being sent by reputable overnight express
courier(charges prepaid);or
{00222424.1306-9905263) 13
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(c) when received if by facsimile or e-mail transmission, so long as notice is
concurrently provided to the parties to this Agreement by a method set forth in Section 26(a) or
Section 26(b).
Unless another address is specified inwriting, notices, demands and communications to the
parties shall be sent to the addresses indicated below:
If to City: City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach,Florida 33435
Attn: Lori LaVerriere, City Manager
With a copy to: Goren, Cherof,Doody&Ezrol,P.A.
James Cherof,Esq.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale,Florida 33308
If to Owner:
2300 Glades Road
Suite 202 East
Boca Raton,Florida 33431
Attention: James S. Gielda,John K.Markey and Adam P. Freedman
With a copy to:
Stephen J. Grave de Peralta,Esq.
5030 Champion Blvd., Suite G11-281
Boca Raton,Florida 33496
If any party refuses to accept any attempted delivery of notice in any of the foregoing manners,then
notice shall be deemed to have been delivered upon such refusal. Any party hereto shall have the
right to change its address for notice if written notice is given to all other parties in accordance with
the notice provisions hereof.
27. Improvements by City.
(a) City Work. City Work shall mean any work approved by Owner to be
constructed by City on the Property,together with all fixtures and equipment installed by the City.
(b) Plans. Plans shall mean the construction plans and specifications including,
but not limited to, architectural plans and elevations, structural plans, landscape plans, and all other
plans and specifications for the City Work.
(c) Submission and Approval of Plans. City shall ensure that the Plans for the
City's Work and material changes to the Plans for the City's Work shall be submitted for the written
approval of Owner prior to implementation, which approval Owner shall have the right to approve
or reject in its sole and absolute discretion. Any review and/or approval by Owner or its affiliates of
(00222424.1 306-9905263) 14
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the Plans or otherwise relating to the City Work shall be solely for the purposes set out in this
License and shall not render Owner and/or its affiliates responsible or liable to City or to any other
person for the design of the improvements or any associated facilities constituting City Work or for
any delay relating thereto and may not be relied upon by City or by any other person.
(d) Engagement and Responsibility. City shall engage, at its own cost and
expense, a general contractor and architect for the City's Work, each of whose engagement shall be
subject to the prior written approval of Owner, which approval shall not be unreasonably withheld.
City and or City's contractors shall construct the City's Work in accordance with the Plans
approved by Owner and the terms and provision of this License. City shall be responsible, at City's
sole cost and expense, for any and all City Work.
(e) Compliance and Construction Standards. City shall, at its own cost and
expense, comply with all government requirements and obtain and comply with all necessary
government approvals applicable to the City's Work. City shall promptly provide to Owner copies
of all such government approvals or rejections, refusals or conditions placed on such government
approvals, together with any other relevant information relating to the government approvals that
Owner may reasonably request. All construction work done by City within the Property shall be
performed in a good and workmanlike manner, in compliance with all applicable laws (hereinafter
defined), and in such manner as to cause a minimum of interference with other construction in
progress(if any)and with the operation of the Property.
(f) Right to Inspect. Owner shall have the right, at all reasonable times after
giving reasonable prior notice to City,to access and inspect any part of the City Work.
(g) Liens. Nothing contained in this License shall be deemed or construed in
any way as constituting the consent or request of Owner, express or implied, to any contractor,
subcontractor, laborer, materialman or vendor for the performance of any labor or services for the
alteration, addition, repair, or demolition of or to the Property or any part thereof. All persons are
hereby put upon notice that City shall never,under any circumstances, have the power to subject the
interest of the Owner in the Property to any mechanic's liens or materialmen's liens or any liens in
connection with material or labor furnished to the Premises,including any lien for architects' fees or
engineers' fees: and all persons dealing with City are hereby put upon notice that they must look
solely to the City and not to Owner. City shall strictly comply with the Construction Lien Law of
the State of Florida as set forth in Florida Statutes Section 713, including, but not limited to, giving
written notice to all persons performing services or furnishing materials on its behalf of the terms
and conditions of this Section 27. In the event that a mechanic's claim of lien is filed against the
Property or any of Owner's interest therein in connection with any work performed by or on behalf
of City, City shall satisfy such claim or shall transfer same to security,within twenty(20) days from
City's receipt of notice of such filing. In the event that City fails to satisfy or transfer such claim
• within said twenty (20) day period, Owner may do so and thereafter charge City for all costs
incurred by Owner in connection with satisfaction or transfer of such claim, including attorney's
fees thereon. Further, subject to applicable law, City agrees to defend, indemnify and save Owner
harmless from and against any damage or loss incurred by Owner as a result of any such mechanic's
claim of lien. If so requested by Owner, City shall execute a short form or memorandum of this
License, which may, in Owner's discretion, be recorded in the Public Records for the purpose of
protecting Owner's estate from mechanics' claims of lien, as provided in Florida Statutes Section
(00222424.1 306-9905263) 15
Parking License Agreement-
Boynton Town Square South
713.10. Owner has the right to record the memorandum without execution by City in the event City
fails to execute the memorandum within seven(7)days of request.
(h) Indemnification. Subject to applicable law, City, on behalf of itself and on
behalf of future visitors,trespassers, licensees, invitees, guests or persons performing work or using,
visiting or occupying the Property, hereby agrees and covenants to indemnify, defend(with counsel
selected by City and approved by Owner) and save harmless the Owner and City from and against
any and all claims, actions, damages, liabilities, losses, costs and expenses, including without
limitation, attorneys' fees (collectively, "Losses") to the fullest extent permitted by law, resulting
from either the construction of the City's Work or any subsequent renovation or alterations by the
City. Furthermore, City covenants and agrees that any contracts for the City's Work entered into by
City and a general contractor or other contractor in privity with City will include the indemnities
required by this License from the general contractor or other contractor in privity with City in favor
of City, Owner and the City.
(i) Survival. This Section 27 shall survive any termination of the License.
28. Miscellaneous.
(a) Accord and Satisfaction. No payment by City or receipt by Owner of a
lesser amount than the amount stipulated in this Agreement to be paid shall be deemed to be other
than on account of the earliest stipulated payable amounts, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment be deemed an accord and
satisfaction, and Owner may accept such check or payment without prejudice to Owner's right to
recover the balance of such amount or pursue any other remedy provided herein or by law.
(b) Entire Agreement. This Agreement and the exhibits attached hereto and
forming a part thereof as if fully set forth herein, constitute all covenants, promises, agreements,
conditions and understandings between Owner and City concerning the Facilities and there are no
covenants, promises, conditions or understandings, either oral or written, between them other than
are herein set forth. Neither Owner nor Owner's agents have made nor shall be bound to any
representations with respect to the Facilities except as herein expressly set forth, and all
representations, either oral or written, shall be deemed to be merged into this Agreement. Except as
herein otherwise provided, no subsequent alteration, change or addition to this Agreement shall be
binding upon Owner or.City unless reduced to writing and signed by them.
(c) Successors and Assigns. All rights, obligations, and liabilities herein given
to, or imposed upon, the respective parties hereto shall extend to and bind the several respective
heirs, legal representatives, and permitted successors and assigns of the said parties. No rights,
however, shall inure to the benefit of any assignee of City unless the assignment to such assignee
has been approved by Owner in writing as provided herein. Nothing contained in this Agreement
shall in any manner restrict Owner's right to assign or encumber this Agreement and, in the event
Owner sells its interest in the Property and the purchaser assumes Owner's obligations and
covenants,Owner shall thereupon be relieved of all further obligations hereunder.
(d) Captions and Section Numbers. The captions, section numbers, and article
numbers appearing in this Agreement are inserted only as a matter of convenience and in no way
(00222424.1306-9905263) 16
Parking license Agreement-
Boynton Town Square South
define, limit, construe, or describe the scope or intent of such sections or articles of this Agreement
nor in any way affect this Agreement.
(e) Partial Invalidity. If any term, covenant or condition of this Agreement or
the application thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable,the remainder of this Agreement the application of such term, covenant or condition
to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not
be affected thereby and each term, covenant or condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
(f) Construction of Language. Whenever in this Agreement the context allows,
the terms "Agreement," "Term" and"Term of this Agreement", or terms of similar import, shall be
deemed to include all renewals, extension or modifications of this Agreement or the Term. The
word"including"when used in this Agreement shall be deemed to mean"including, but not limited
to," or "including without limitation." Whenever in this Agreement the context so requires,
references to the masculine shall be deemed to include the feminine and the neuter,references to the
neuter shall be deemed to include the masculine and the feminine, and references to the plural shall
be deemed to include the singular and the singular to include the plural. The headings of sections or
subsections in this Agreement are for convenience only and shall not be relevant for purposes of
interpretation of this Agreement. This Agreement has been negotiated "at arm's length" by Owner
and City, each having the opportunity to be represented by legal counsel of its choice and to
negotiate the form and substance of this Agreement. Therefore, this Agreement shall not be more
strictly construed against either party by reason of the fact that one party may have drafted this
Agreement.
(g) Non-Waiver. No delay or failure by either party in exercising any right
under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that
or any other right.
(h) Counterparts/ Electronic or Facsimile Signatures. This Agreement may be
executed in several counterparts, each of which shall be deemed to be an original and which
together shall constitute one and the same instrument. The electronic signature of any party hereto
shall be as binding as the original signature of such party for all purposes; and the copy of any
parties' signature to this Agreement delivered by facsimile, e-mail, or such other electronic means
shall be as binding and enforceable as the parties' original signature to this Agreement.
(i) Governing Law/Venue. This Agreement shall be interpreted and construed
in accordance with and governed by the laws of the State of Florida. Any action arising out of,or in
connection to, this Agreement or between the parties hereto, to the extent not required to be
determined via arbitration pursuant to Section 28(j), shall be brought exclusively in the courts of
Palm Beach County,Florida.
(j) Dispute Resolution. The parties hereto agree that upon the written request of
either party, any dispute, controversy, or claim arising out of or relating to this Agreement, or any
breach or Event of Default hereof(a "Dispute"), shall be submitted to arbitration in Palm Beach
County, Florida, in accordance with the Commercial Arbitration Rules of the American Arbitration
Association then pertaining, and judgment upon the award rendered may be entered in any court
(00222424.1306-9905263) 1
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Boynton Town Square South
having jurisdiction. Each party shall select an arbitrator within thirty (30) days after receipt of
written notice from one party to the other party requesting arbitration. The two arbitrators shall
collectively select a third arbitrator. Any decision made by two of the three arbitrators shall be
binding upon the parties, and any decision may involve monetary damages or such form of
equitable relief as the arbitrators shall determine is necessary. If one party fails to select an
arbitrator within the thirty (30) day period provided above, the one arbitrator shall select a second
arbitrator and the two arbitrators shall collectively select a third arbitrator. The party prevailing at
arbitration shall be reimbursed by the losing party for all costs and expenses incurred by it in
connection with the arbitration.
(k) Relationship of Parties. Nothing contained in this Agreement shall be
deemed or construed in any manner or under any circumstances whatsoever as creating or
establishing the relationship of partners or co-venturers, or creating or establishing the relationship
of a joint venture between Owner and City. The provisions hereof are for the exclusive benefit of
the parties, and no other person or entity, including creditors of any party hereto, shall have any
right or claim against any party by reason of those provisions or be entitled to enforce any of those
provisions against any party.
(1) Agreement Subject to Covenants, Conditions, and Restrictions. City
acknowledges and agrees that its rights hereunder are subject to, and subordinate to the declarations,
covenants, conditions, restrictions, easements, and agreements of record as of the date of this
Agreement.
(m) Radon Gas Notification. Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities, may present health risks to persons
who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit.
(n) Sovereign Immunity. The parties agree that the City is a political subdivision
of the State of Florida and therefore is entitled to sovereign immunity. Nothing in this Agreement
shall be construed to require the City to indemnify Owner, or insure Owner for its negligence or to
assume any liability for Owner. Further, any provision in this Agreement that requires the City to
indemnify, hold harmless or defend Owner from liability for any other reason shall not alter the
City's waiver of sovereign immunity or extend the City's liability beyond the limits established in
Section 768.28 of the Florida Statutes,as amended.
[SIGNATURES ON FOLLOWING PAGE(S)]
{00222424.1306-9905263} 18
Parking License Agreement-
Boynton Town Square South
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
CITY:
City of Boynton Beach
APPR® ��� � T�. '� '� If
Affil.it .latiti
City' ''orney By: Al. " 4
Name: EA) `. £4N%
TitleAre_
OWNER:
JKM BTS South,LLC,
a Florida limited liability company
By: JKM BTS Capital,LLC,
a Florida limited liability company,
its Manager
B . .ice_ _
a ohn K. Markey,Manager
, 19
Parking Ucense Agreement.
8oynton Town Square South
LEGEND:
.. • PROJECT BOUNDARY
,4 I PEDESTRIAN CIRCULATION
PHASE LINE
PHASE 3 PHASE I PHASE 2 VEHICULAR ACCESSTO
NCO INCLUDED PARKING GARAGE
NOT INCLUDED NOT INCLUDED ZONING:RIA
NOT INCLUDED NOT INCLUDED NOT INCLUDED NOT INCLUDED ZONING.RJ ZONMG:RI FUTURE LAND USE.LDR T'T
ZONING:CJ TONING:R1 ZONING.RJ ZONING.RJ FUTURE LAND PURIM LAND USE:MDR J \\
FD,URE LAND USE:NOR I.ULU.%I AND U.LAC USE.IAC1
FUTURE LAND U. < FUTURE LAND USE HDR
J \ N.E.-IST-ST. -
_ - --- 1
ON-STREET PARKING
Jiwilillir � Lo WG NOT
INCLUDED I■
° - ° PROJECT DATA
\ • PARR I� FUTURE LAND USE:HOR ■ W AREA
♦aryl •■ O Q Z
,sTories OM .1 Site Area 15.04 Acres
t4auwE / •I =g g (+1-655,481 SF)
' • I i■■i■i■ 8 5 ZONING
Courtyard I Z"" Existing: PU(Public Use)
Casson REC(Recreation)
1 Proposed: MU-3(Mixed Use-3
■ I, MAU s ° PHASE
ASE1 ■ FUTURE LAND USE
■ 111
Q PHASE o Existing: Public&Private
1, 1 Fe°we�,. ■ Govt/lnstit (PPG!)
CO I PROPOSED op., j E`°""""nee Proposed: Mixed Use
.E.N.l•.(NU')I Mem.RP. 0 Q - ■ Medium(MXM)
E. 5.1.I ii m I t Z .� PROPOSEDII
DENSITY
D � �.' �� U ` -'.nAGe(F:I ■ 1 Maximum Density: 50 Units/Acre x 15.04
W 4 S I E
S D ............... 0 " Proposed Den tYcres
3 g ( 1 .I : Z Acres 752 Units
u W Io705 Units/15.04
=i m I I 1 '•I . ■ ry 47 Units/Acre A
• II#
D I . •••• ,... •••,,, r L11
N
•
Density
WI n.mMNlwuj vad I I SchDEWAR.! . ■ , N Residential:mAR
->.. I --7. ^�I �• 705 Units
• w ■
4 ,r _. ■ I.1■ y EEtlNE: Hotel: 120 Rooms
• P NC�ry HES U " <>1u.,'
I M
,,,,, I ., �py1 `D Flex: 54,749 SF
1-'• s 1 2 Fitness Club/Gym: 29,138 SF
• Li., 1M ' tn. <..rt,-.b 'i Civic Center/ 28,536 SF
Proposed Neal ..- Q �, o<4 Multi-purpose
...ground ill/
HLW'
E, a 3 HistoricHigh School)
. 120 s ■ N u p�'City Hall/Ubrary 110,000 SF
uJ • ■ ; i "Children's Museum 8,288 SF
•
A..,.
_. ....... : „...
___
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160031.00 01.09.16 BOYNTON BEACH TOWN SQUARE REDEVELOPMENT i/ Master Development Plan scuEr- L.
PURCHASE AND SALE AGREEMENT
(BTS Central)
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made and entered
into as of the`q day of March, 2018 (the "Effective Date"), by and between JKM BTS Central,
LLC, a Florida limited liability company (the "Purchaser"), and City of Boynton Beach (the
"Seller").
RECITALS
WHEREAS, Seller is the owner of the property located in Boynton Beach, Florida, which
consists of approximately +1-2.60 gross acres and is commonly known as Boynton Town Square
Central, as depicted on Exhibit "A" and made a part hereof, together with the improvements
located thereon and all fixtures and personal property located on said property (the "Property");
and
WHEREAS, Seller desires to develop upon the Property a rental apartment project which is
anticipated to consist of approximately 200 apartment units (the "Apartments"), together with
related improvements (the Apartments and related improvements are referred to herein as the
"Project"); and
WHEREAS, simultaneously with the execution of this Agreement, Seller and an affiliate of
Purchaser have entered into a Development Agreement (the "Development Agreement"), which
shall govern the development of the Project and certain obligations of Seller and such affiliate of
Purchaser with respect thereto; and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to purchase from
Seller,the Property,pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set
forth herein and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby covenant and agree to the terms and conditions set
forth herein.
AGREEMENT:
1. Recitals. The recitals set forth above are incorporated herein by this reference,
and the parties agree that such recitals are true and correct.
2. Purchase and Sale. Subject to all of the terms and conditions of this Agreement,
the Seller will sell to the Purchaser, and the Purchaser will purchase from the Seller, the Property,
together with all appurtenances, rights, easements, rights of way, permits, licenses, leases,
warranties,and approvals incident or appurtenant thereto.
3. Purchase Price and Payment. The purchase price to be paid by the Purchaser to
the Seller for the Property shall be $10.00 (the "Purchase Price"), and any adjustments and
prorations as set forth in this Agreement.
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Boynton Town Square Central Parcel
4. Title and Title Insurance.
(a) Purchaser shall obtain a current title insurance commitment (the
"Commitment") for an ALTA owner's title insurance policy, issued by PG Law, as agent for
Chicago Title Insurance Company, Old Republic National Title Insurance Company, or another
national title insurance company (the "Title Company"). Purchaser shall have until the end of the
Due Diligence Period (as defined hereafter) to examine the condition of title to the Property to
confirm that title to the Property is good, marketable and insurable. Within such period, if
Purchaser fails to provide Seller with written notice of specific defects which make title to the
Property other than as required by this paragraph, then, for all purposes of this Agreement,
Purchaser shall be deemed to have accepted title in the condition described in the Commitment. If
Purchaser timely notifies Seller that title does not satisfy the requirements of this paragraph, then
Seller agrees to use its best efforts to make title good, marketable, and insurable, for which purpose
Seller shall have twenty (20) days from the receipt of Purchaser's written notice that title is
unacceptable to remedy any such objection; provided, however, that Seller shall not be required to
spend more than $5,000.00 (exclusive of attorney's fees or other professional fees) to remedy any
specific title objection other than a mortgage, lien, judgment, or other monetary obligation
encumbering the Property as described in Section 4(b). If title is not rendered as required by this
paragraph despite the best efforts of Seller, then at any time after the end of such twenty (20) day
period, upon written notice delivered at the option of Purchaser, this Agreement shall be terminated
and all parties hereto shall be released from any and all obligations and liabilities hereunder except
those which specifically survive termination. At any time prior to such termination, Purchaser may
elect by written notice to Seller to waive any defects in title, in which event, subject to satisfaction
of the conditions set forth in this Agreement, the Closing shall take place pursuant to this
Agreement without any abatement in the Purchase Price. Prior to the Closing,Purchaser shall cause
the Commitment to be updated to a current effective date by the Title Company. If the update of the
Commitment shows additional exceptions that render title unmarketable or which materially
interfere with Purchaser's development, ownership, and intended use for the Property, Purchaser
shall provide written notice of its objections to such new exceptions to Seller. Seller shall have a
period of twenty (20) days from receipt of such written notice from Purchaser in which to use its
best efforts to cause such additional exceptions to be removed from the Commitment. If, after
utilizing due diligence and Seller's best efforts, Seller is unable to remove such additional
exceptions, Purchaser shall have the option of either waiving any such title defects, in which event,
subject to satisfaction of the conditions set forth in this Agreement, the Closing shall take place
pursuant to this Agreement without any abatement in the Purchase Price,or Purchaser shall have the
right to terminate this Agreement and neither party shall have any further rights or obligations
hereunder except for those obligations which specifically survive termination.
(b) Seller agrees that Seller shall use its best efforts to make title good,
marketable and insurable within the time limits set forth in this Agreement. Notwithstanding the
foregoing, Seller agrees that Seller shall pay all indebtedness secured by a mortgage upon the
Property, as well as all past due taxes, outstanding governmental or quasi-governmental
assessments, and any outstanding judgments or liens against Seller and/or the Property, including all
penalties and interest,prior to the Closing.
5. Survey. Purchaser shall have the right, at its expense, to obtain a current survey of
the Property prepared by a licensed Florida land surveyor (the "Survey"). The Survey shall be
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Boynton Town Square Central Parcel L
certified to the Purchaser and to the Title Company and shall be prepared in accordance with the
minimum technical standards for surveys in the State of Florida and/or ALTA requirements. In the
event that the Survey shows any encroachments or any other defects, then such defects shall be
treated as a title defect and the provisions of Section 4 shall be applicable to any such Survey
defects.
6. Seller's Obligations Prior to Closing.
(a) Seller covenants and agrees that it has or will, within fifteen (15) days
following the Effective Date, deliver to Purchaser true and correct copies of the following, to the
extent existing and in Seller's possession and/or control: survey, development approvals, economic
studies, traffic studies, all title related documents, copies of all ad valorem tax statements, bills and
assessments, engineering reports, topographical maps, traffic studies, FDOT letters, geotechnical
subsurface analysis reports, environmental reports and related environmental studies and all similar
reports and studies available to or currently in Seller's possession.
(b) Seller shall provide Purchaser, together with Purchaser's agents and
representatives, complete access to any portion of the Property for the purpose of making physical
inspections of the Property to determine whether, in Purchaser's sole and absolute discretion, the
Property is suitable for Purchaser's purposes. Such inspections may include, among other things,
survey, site,engineering,appraisal, environmental,and feasibility studies.
(c) Seller shall cooperate with Purchaser as reasonably required in order for
Purchaser to perform its due diligence and seek its Approvals (as defined in Section 8) in
accordance with the terms of this Agreement.
7. Due Diligence.
(a) Due Diligence Period. Purchaser shall have the "Due Diligence Period" in
which to ascertain whether the Property is acceptable to Purchaser in order for Purchaser to
proceed with seeking approvals, permits and licenses necessary for the development of the
Property. "Due Diligence Period" shall mean the period commencing on the Effective Date of
this Agreement and expiring on the date which is sixty (60) calendar days subsequent to the
Effective Date. If the Property is determined to be unacceptable to Purchaser in its sole
discretion, Purchaser shall notify the Seller by providing written notice of its determination that
the Property is unacceptable for its intended use no later than 5:00 p.m. Florida time on the final
day of the Due Diligence Period (a "Notice of Cancellation"), in which event neither party shall
have any further rights or obligations hereunder. If the Property is determined to be acceptable
to Purchaser in its sole discretion, Purchaser shall notify the Seller by providing written notice of
its determination that the Property is acceptable for its intended use no later than 5:00 p.m.
Florida time on the final day of the Due Diligence Period (a "Notice to Proceed"). If Purchaser
fails to deliver either a Notice of Cancellation or a Notice to Proceed by 5:00 p.m. Florida time
on the final day of the Due Diligence Period, then Purchaser shall be deemed to have delivered a
Notice of Cancellation, in which event neither party shall have any further rights or obligations
hereunder.
(b) Indemnification. Purchaser agrees to indemnify, defend, and hold
harmless Seller and its affiliates, managers, members, partners, subsidiaries, shareholders,
Purchase and Sale Agreement-
Boynton Town Square Central Parcel 3
officers, directors, lenders, employees, attorneys, and agents from any loss, injury, damage,
claim, lien, cost or expense, including reasonable attorneys' fees, paraprofessional fees and costs
pretrial, at trial and at all levels of proceedings, including appeals, arising out of or resulting
from Purchaser's physical inspections, examinations, studies, and/or analyses of the Property.
8. Permits and Approvals. Purchaser shall be seeking to receive all authorizations,
including, without limitation, land-use change, re-zoning, plat and/or replat, and site plan
approvals necessary for Purchaser's intended use of, and the construction and operations of the
improvements upon, the Property (collectively, the "Approvals"). Seller shall, upon request by
Purchaser, execute any and all documentation in support of any application for such Approvals
including the site specific Site Plan/Master Plan Amendment as conceptually agreed by both
parties; provided, however, that Purchaser shall not be required, as a condition of receiving its
Approvals or otherwise, to construct or maintain any infrastructure, improvements, or other
structures or property other than the Project. If at any time, Purchaser (i) is denied or refused
any such Approvals, (ii) is uncertain that Purchaser's intended use, construction and
improvements to the Property will not be physically or financially impaired, as determined in
Purchaser's sole and absolute discretion, (iii) determines that the necessary Approvals have been
granted subject to any conditions that Purchaser deems unacceptable because they will physically
or financially impair Purchaser's use and development of the Property, or (iv) determines that
adequate utilities and related facilities, including, without limitation, water, storm water and
sanitary sewage disposal, telephone service and energy sources to service the Property and
improvements thereto for Purchaser's intended use and/or easements therefore are not available
to the reasonable satisfaction of Purchaser, then Purchaser may, by furnishing written notice to
Seller, terminate this Agreement without owing any liability to Seller (other than any liability
that expressly survives any termination hereunder).
9. Seller's Representations and Warranties. Seller hereby represents and warrants
to Purchaser as follows:
(a) To the best of Seller's knowledge, Seller has not received any notice from
the State Department of Environmental Protection or similar agency, the United States
Environmental Protection Agency or any other governmental or quasi governmental entity
indicating that the Property is currently contaminated by hazardous wastes or pollutants as those
terms are defined by applicable laws ("Hazardous Substances") or any notice that the Property is
subject to any claim or cause of action pursuant to any federal, state or local environmental
statute, regulation or ordinance.
(b) Seller has full right and is duly authorized to enter into and consummate
this Agreement.
(c) To the knowledge of Seller, there is no litigation, investigation or
proceeding pending or threatened against Seller which would adversely affect Seller's ability to
perform its obligations hereunder.
(d) There has been no petition filed by or against Seller under the Federal
Bankruptcy Code or any similar state or federal law.
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Boynton Town Square Central Parcel 4
(e) There are no condemnation or eminent domain proceedings pending or, to
the best of Seller's knowledge, contemplated against the Property or any part thereof, and Seller
has received no notice of the desire or intention of any public authority to take or use the
Property or any part thereof.
(f) Seller has received no notice of and to Seller's knowledge, there is no
violation of any law, regulation, ordinance, order or judgment affecting the Property regarding
any zoning violation, or, in connection with the ownership and operation of the Property and
buildings thereon, any violation of any local, county, state or federal environmental, health,
safety or sanitary, or building code law, rule or regulation.
(g) To the best of Seller's knowledge, Seller has no knowledge of any
unrecorded easements, restrictions, or encumbrances affecting all or any part of the Property.
(h) To the best of Seller's knowledge, (i) Seller has received no written notice
regarding the existence of, and (ii) Seller has no knowledge of the existence of, any underground
storage tanks located on the Property. To the best of Seller's knowledge, no underground
storage tanks have been removed from the Property during the time the Property has been owned
by Seller.
(i) There is no leasehold interest affecting the Property.
(j) There are no existing service contracts or other contracts relative to the
operation and maintenance of the Property which shall remain in effect after the date of Closing.
There shall be no money due on such contracts as of the date of Closing.
In this Section 9, the phrases "to the knowledge of' or "has no knowledge of' or similar
phrases shall be deemed to refer to the actual knowledge of Seller after due inquiry and
investigation. The provisions of this Section 9 shall survive the Closing or termination of this
Agreement for a period of one (1) year. If any representation set forth herein is not true and
correct as of the Closing, the same shall constitute a default hereunder, and Purchaser may
terminate this Agreement and receive as damages reimbursement of all costs and expenses
expended by Purchaser since the Effective Date. Subject to applicable law, Seller hereby
indemnifies and holds Purchaser harmless from any and all loss, cost, damage, and expense,
including reasonable attorneys' fees, paralegal fees, and court costs, in and through all appellate
levels, arising or incurred by Purchaser by virtue of any material misrepresentation or inaccuracy
in the representations and warranties set forth herein. Subject to applicable law, Seller shall
indemnify and hold Purchaser harmless from and against all costs, expenses, claims, and credits
asserted against, or incurred by, Purchaser, by reason of any third party tort claim or other claim
regarding bodily injury or property damage arising or accruing prior to the Closing.
10. Conditions to Purchaser's Obligations. It shall be a condition precedent to
Closing of this Agreement by Purchaser that the following conditions be satisfied:
(a) All representations and warranties set forth in Section 9 are true and
correct, and Seller has delivered its certificate to Purchaser reaffirming such representations and
warranties as of the Closing Date.
Purchase and Sale Agreement- 5
Boynton Town Square Central Parcel J
(b) Seller shall have removed all tenants and other persons in possession from
the Property, such that, upon Closing, Purchaser shall have exclusive possession of the Property.
(c) Seller shall not be in breach or default with respect to any obligation of
Seller under the terms and provisions of this Agreement.
To the extent that Purchaser elects to waive any condition set forth in this Section 10
prior to Closing, satisfaction of each such condition shall be a condition to Purchaser's
obligations under the Development Agreement(as defined in Section 12(g)).
11. Closing.
(a) Subject to the provisions of this Agreement and the conditions precedent
to closing, the purchase and sale contemplated by this Agreement shall be closed (the "Closing")
no later than the later to occur of(i) the date that is thirty (30) days after the expiration of the
Due Diligence Period, as may have been extended, and (ii) seven (7) business days following the
date when all other conditions to Closing as set forth in Section 10 have been met (the date of
such Closing,the"Closing Date").
(b) The Closing shall take place by way of escrow and shall be conducted by
the Purchaser's attorney on the Closing Date.
(c) Should Purchaser be unable to obtain basic hazard, wind, or flood
insurance at reasonable rates due to storm or extreme weather conditions that prohibit the
issuance of such insurance, Purchaser may delay Closing for up to ten (10) days from when such
coverage becomes available.
12. Seller's Deliveries. Seller shall deliver to Purchaser at Closing the following
documents dated as of the Closing Date, the delivery and accuracy of which shall be a condition to
Purchaser's obligation to consummate the purchase and sale:
(a) Special Warranty Deed. A special warranty deed in recordable form, duly
executed by Seller, conveying to Purchaser good, marketable and insurable fee simple title to the
entire Property, subject only to the permitted exceptions as reflected in the Commitment which
have not been objected to by Purchaser, with the legal description provided in the Commitment
and Survey, as the same may have been revised from time to time in accordance with the
Approvals.
(b) Bill of Sale. A bill of sale, duly executed by Seller, conveying to
Purchaser good, marketable and lien-free title to all personal property and fixtures located on the
Property.
(c) Affidavit. An owner's affidavit adequate for title insurance to be issued
by the Title Company without exception for parties in possession, mechanics' or materialmens'
liens and to permit the Title Company to delete the "gap" in the Commitment.
(d) FIRPTA Affidavit. In order to comply with the requirements of the
Foreign Investment Real Property Tax Act of 1980 ("FIRPTA"), Seller will deliver to Purchaser
at Closing Seller's affidavit under penalty of perjury stating that Seller is not a "foreign person,"
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Boynton Town Square Central Parcel V
as defined in Section 1445 of the Internal Revenue Code of 1986 and the U.S. Treasury
Regulations thereunder, setting forth Seller's taxpayer identification number, and that Seller
intends to file a United States income tax return with respect to the transfer. Seller represents
and warrants to Purchaser that it has not made nor does Seller have any knowledge of any
transfer of the Property or any part thereof that is subject to any provisions of FIRPTA that has
not been fully complied with by either transferor or transferee. As required by law, if Seller fails
to comply with the requirement of this paragraph, Purchaser shall withhold 10% of the Purchase
Price in lieu of payment thereof to Seller and pay it over instead to the Internal Revenue Service in
such form and manner as may be required by law.
(e) Assignment. An assignment of all of Seller's right, title and interest to all
permits, licenses, and warranties with respect to the Property.
(f) Certificate. A Certificate of the Seller that the representations and
warranties set forth in Section 9 are true and correct as of the Closing Date.
(g) Intentionally Omitted.
(h) Intentionally Omitted.
(i) Other Documents. Any other settlement statement, agreement, document
or instrument required by this Agreement or by the closing agent or any Title Company (or its
agent), by any governmental or quasi-governmental authority or agency, or by any public utility
to be delivered by Seller or reasonably necessary to carry out the provisions of this Agreement;
the form of any and all such agreements shall be as reasonably agreed upon between the
applicable parties, or in the case of a governmental or quasi-governmental authority or agency or
a public utility, shall be in the form or format customarily required by such authority, agency, or
utility, subject to modification as may be reasonably necessary as a result of the specifics of the
Property and the transactions contemplated hereby.
13. Purchaser's Deliveries. At the Closing, and after Seller has complied with all of
the terms and conditions of this Agreement and simultaneously with Seller's delivery of the final
documents required in Section 12, Purchaser shall execute and deliver the settlement statement, the
Option Agreement, and the Parking Agreement and pay to Seller the Purchase Price, as the same
may be adjusted for the prorations and any other credits or adjustments provided for in this
Agreement.
14. Closing and Recording Costs. Seller shall pay the cost to obtain and record any
title curative documents. Purchaser shall pay for the cost of documentary stamp taxes and any
surtax on the deed, the cost of recording the deed, the cost of the title search and Commitment, the
cost of the owners' title policy to be issued to Purchaser, the cost of the Survey, the costs of its
investigations, the costs incurred in connection with seeking the Approvals, and any mortgagee title
policy and any endorsements thereto. Except as set forth herein, each party shall pay its respective
attorney's fees.
15. Real Estate Taxes and Prorations. At the Closing, the real estate taxes on the
Property shall be prorated between the parties on a calendar year basis. Special assessment liens
certified as of Closing shall be paid by the Seller. Pending special assessment liens shall be treated
Purchase and Sale Agreement- 7
Boynton Town Square Central Parcel
as a certified lien and shall be paid by the Seller. Seller shall be responsible for payment in full of
any personal property taxes applicable to Seller, Seller's personal property or business assets. This
covenant shall survive Closing.
16. Possession. Purchaser shall be granted full possession of the Property as of the
Closing.
17. Covenants and Agreements of Seller. Seller hereby covenants and agrees that
between the Effective Date of this Agreement and the Closing:
(a) Seller will not, without Purchaser's prior written consent, create by its
consent any encumbrances on the Property. For purposes of this provision, the term
"encumbrances" shall include, but not be limited to, any liens, claims, options, or other
encumbrances, encroachments, rights-of-way, leases, easements, covenants, conditions or
restrictions. At or prior to Closing, Seller shall terminate, and pay in full, all outstanding
amounts due and payable and any termination fees required to terminate any and all leases,
service contracts, maintenance contracts, franchise agreements, easements not approved in
writing by Purchaser, and any other claims to the Property not approved in writing by Purchaser.
(b) Seller will terminate all tenancies with respect to the Property, and shall
have removed from the Property all tenants, no later than five (5) business days following the
time when the Approvals have been received. Seller shall not enter into any new lease or extend
any current lease, or permit any tenant to remain upon the Property as a holdover tenant, or allow
any tenancy to convert to a month-to-month or other form of tenancy.
(c) Seller will not remove any fill or cause any change to be made to the
condition of the Property without the prior written consent of the Purchaser.
(d) Between the Effective Date and the date of Closing, Seller will not create
or consent to the creation of any special taxing districts or associations with the authority to
impose taxes, liens or assessments on the Property.
18. Real Estate Commissions.
(a) Seller hereby warrants to Purchaser that Seller has not engaged or dealt
with any broker or agent with respect to the purchase and sale of the Property as contemplated by
this Agreement. Seller shall indemnify and hold Purchaser harmless against any and all liability,
cost, damage and expense (including, but not limited to, attorneys' fees and costs of litigation
and appeals) which Purchaser shall ever suffer or incur because of any claim by any broker or
agent claiming to have dealt with Seller with respect to the Property, whether or not meritorious,
for any commission or other compensation with respect to this Agreement or to the purchase and
sale of the Property in accordance with this Agreement.
(b) Purchaser hereby warrants to Seller that Purchaser has not dealt with any
broker or agent with respect to the purchase and sale of the Property as contemplated by this
Agreement. Purchaser shall indemnify and hold Seller harmless against any and all liability,
loss, cost, damage and expense (including, but not limited to, attorneys' fees and costs of
litigation and appeal) Seller shall ever suffer or incur because of any claim by any broker or
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Boynton Town Square Central Parcel
agent claiming to have dealt with Purchaser, whether or not meritorious, for any commission or
other compensation with respect to this Agreement or to the purchase and sale of the Property in
accordance with this Agreement.
19. Risk of Loss and Condemnation.
(a) All risk of condemnation shall be on Seller. In the event that the Property
or any portion thereof is taken by eminent domain, negotiated for grant in lieu of condemnation
or threatened to be taken or made unavailable for use by any governmental entity, prior to
Closing or through Purchaser's development approval process, Purchaser shall have the option of
either: (i) canceling this Agreement and receiving a refund of the Deposit, together with all
interest accrued thereon, whereupon both parties shall be relieved of all further obligations under
this Agreement, except those obligations which survive termination; or (ii) Purchaser may
proceed with Closing in which case Purchaser shall be entitled to all condemnation awards and
settlements relating to the Property and Purchaser shall accept the Property less and except any
property to which the condemnation award relates. In the event Purchaser elects the latter
option, Purchaser shall be entitled to participate in any such negotiations and proceedings, and
Seller shall from time to time deliver to Purchaser all instruments requested by it to permit such
participation. Seller shall, at its expense, diligently pursue any such proceeding, and shall
consult with Purchaser, its attorneys and experts and cooperate with them in any defense of any
such proceedings.
(b) If all or a portion of the Property shall be damaged or destroyed by any
casualty after the Effective Date and before Closing which, in the sole and absolute discretion of
Purchaser, renders the Property unsuitable for Purchaser's intended use (whether because of
impossibility, economic unfeasibility, or otherwise, including as a result of casualties such as a
sinkhole, earthquake, tsunami, hurricane or otherwise which render the Property geotechnically
unstable or otherwise unsuitable for Purchaser's intended use), Purchaser shall have the option of
either: (i) canceling this Agreement, whereupon both parties shall be relieved of all further
obligations under this Agreement, except those obligations which survive termination; or (ii)
Purchaser may proceed to Closing, in which case Purchaser shall be entitled to all insurance
awards and settlements relating to the Property.
20. Default.
(a) In the event of a default by Purchaser under this Agreement which is not
cured within ten (10) days after written notice to Purchaser, then Purchaser shall owe to Seller
the full amount of the Purchaser Price, which shall be retained by Seller as liquidated and agreed
upon damages and as Seller's sole remedy; and thereafter, Purchaser shall be relieved from all
further obligations under this Agreement, and Seller shall have no further claim against the
Purchaser for specific performance or for damages by reason of the failure of Purchaser to close
this transaction or for any other claim of Seller.
(b) In the event of a default by Seller hereunder which is not cured within ten
(10) days after written notice to Seller, then at any time thereafter prior to the cure of such
default by Seller, and Purchaser shall have the right to proceed against Seller in an action for
specific performance of this Agreement and/or for damages based upon such default.
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Boynton Town Square Central Parcel 7
I21. AS-IS. Except as specifically set forth in this Agreement or any other written
agreement between Seller and Purchaser(or any affiliate of Purchaser), Seller makes and shall make
no representation or warranty either expressed or implied (except as specifically set forth in this
Agreement) regarding the condition, operability, safety, fitness for intended purpose, use,
governmental requirements, development potential, utility availability, legal access, impact fees,
concurrency, economic feasibility or any other matters whatsoever with respect to the Property.
Purchaser specifically acknowledges and agrees that Seller shall sell and Purchaser shall purchase
the Property on an "AS IS, WHERE IS, AND WITH ALL FAULTS" basis and that, except for
Seller's representations and warranties specifically set forth in this Agreement or any other written
agreement between Seller and Purchaser (or any affiliate of Purchaser), Purchaser is not relying on
any representations or warranties of any kind whatsoever,express or implied,from Seller, its agents,
officers, or employees, as to any matters concerning the Property including, without limitation, any
matters relating to (1) the quality, nature, adequacy, or physical condition of the Property, (2) the
quality, nature, adequacy, or physical conditions of soils, fill, geology, or any groundwater, (3)the
development potential or income potential, (4) the Property's value, use, habitability, or
merchantability, (5) the fitness, suitability, or adequacy of the Property for any particular use or
purpose, (6) the presence of Hazardous Materials or any other hazardous or toxic matter on, under,
or about the Property or adjoining or neighboring property, (7) the freedom of the Property from
latent or apparent vices or defects, or (8) environmental matters of any kind or nature whatsoever
relating to the Property. PURCHASER ACKNOWLEDGES THAT THIS TRANSACTION AND
THE ASSIGNMENTS, CONVEYANCES AND TRANSFERS OF PROPERTY BY SELLER TO
PURCHASER IS IN ITS "AS-IS, WHERE IS" CONDITION WITHOUT REPRESENTATION
OR WARRANTY, ORAL OR WRITTEN, EXPRESS OR IMPLIED EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT OR ANY OTHER WRI I I EN
AGREEMENT BETWEEN SELLER AND PURCHASER (OR ANY AFFILIATE OF
PURCHASER).
22. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the transaction contemplated herein, and it supersedes all prior
understandings or agreements between the parties.
23. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
24. Survival of Provisions. All representations, warranties, and agreements contained
herein shall survive the Closing and delivery of the deed of conveyance contemplated by this
Agreement.
25. Waiver; Modification. The failure by Purchaser or Seller to insist upon or enforce
any of their rights shall not constitute a waiver thereof, and except to the extent conditions are
waived by the express terms of this Agreement, nothing shall constitute a waiver of Purchaser's
right to insist upon strict compliance with the terms of this Agreement. Either party may waive the
benefit of any provision or condition for its benefit which is contained in this Agreement. No oral
modification of this Agreement shall be binding upon the parties and any modification must be in
writing and signed by the parties.
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Boynton Town Square Central Parcel
I26. Governing Law; Venue. This Agreement shall be governed by and construed
under the laws of the State of Florida. The venue of any legal proceeding between the parties shall
be the state or Federal courts having jurisdiction in or over Palm Beach County,Florida.
27. Headings. The section headings as set forth in this Agreement are for convenience
or reference only and shall not be deemed to alter the content of this Agreement or limit the
provisions or scope of any section herein.
28. Notices. All notices, demands and other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given:
(a) when personally delivered; or
(b) the next Business Day after being sent by reputable overnight express
courier(charges prepaid);or
(c) when received if by facsimile or e-mail transmission, so long as notice is
concurrently provided to the parties to this Agreement by a method set forth in Section 27(a) or
Section 27(b).
Unless another address is specified in writing, notices, demands and communications to the
parties shall be sent to the addresses indicated below:
If to Seller: City of Boynton Beach
100 E.Boynton Beach Blvd.
Boynton Beach,Florida 33435
Attn: Lori LaVerriere, City Manager
With a copy to: Goren, Cherof,Doody&Ezrol,P.A.
Attn: James Cherof,Esq.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale,Florida 33308
If to Purchaser: JKM BTS Central,LLC
2300 Glades Road
Suite 202 East
Boca Raton,Florida 33431
Attention: James S. Gielda,John K. Markey and Adam P. Freedman
With a copy to:
Stephen J. Grave de Peralta,Esq.
5030 Champion Blvd., Suite G11-281
Boca Raton,Florida 33496
If any party refuses to accept any attempted delivery of notice in any of the foregoing manners,then
notice shall be deemed to have been delivered upon such refusal. Any party hereto shall have the
Purchase and Sale Agreement- 1 1
Boynton Town Square Central Parcel 1 1
right to change its address for notice if written notice is given to all other parties in accordance with
the notice provisions hereof.
29. Assignment. Purchaser shall be permitted to assign its interest in this Agreement
or in any of its rights pursuant to this Agreement to an entity affiliated with Purchaser or its
principals, and such assignments may result in Purchaser selling the right to purchase Property,
selling the Property, or reselling the Property, if after the Closing, for a price which may be less
than or more than the price to be paid to Seller pursuant to this Agreement, and Seller shall have
no claim to any such proceeds in excess of the Purchase Price, nor shall Seller be required to
contribute any deficit if such sales are for less than the Purchase Price. Seller shall not assign
this Agreement without the prior written approval of Purchaser, which may be withheld in
Purchaser's sole and absolute discretion.
30. Attorneys' Fees. In the event that it becomes necessary for either party to bring
suit to enforce the terms of this Agreement, then the prevailing party shall be entitled to recover all
fees and costs, including attorneys' fees and paralegal charges incurred in connection with such
proceedings(including appellate proceedings)against the nonprevailing party.
31. Time of the Essence. Time is of the essence with respect to each provision of this
Agreement which requires that action be taken by either party within a stated time period, or upon a
specified date; provided however, if the date for performance is on a Saturday, Sunday, or federal
holiday,the date for performance shall be extended to the next business day.
32. Construction. Each party hereto hereby acknowledges that all parties hereto
participated equally in the drafting of this Agreement and that, accordingly, no court construing this
Agreement shall construe it more stringently against one party than the other.
33. Counterparts. To facilitate execution, this Agreement may be executed in
counterparts (including by facsimile or other electronic transmission); and it shall not be necessary
that the signature of, or on behalf of, each party,or that the signatures of all persons required to bind
any party, appear on each counterpart; but it shall be sufficient that the signature of, or on behalf of,
each party, or that the signature of the persons required to bind the party appear on one or more of
such counterparts. All counterparts shall collectively constitute a single agreement. Facsimile
copies or other electronically transmitted copies of this executed Agreement shall be deemed an
original agreement.
34. Waiver of Jury Trial. Each party to this Agreement hereby willingly,
knowingly, and voluntarily waives any right to a jury trial in connection with any dispute
between the parties arising from this Agreement, from any claim arising hereunder, or any course
of conduct related hereto.
35. Relationship of Parties. Nothing contained in this Agreement shall be deemed
or construed in any manner or under any circumstances whatsoever as creating or establishing
the relationship of partners or co-venturers, or creating or establishing the relationship of a joint
venture between Purchaser and Seller. The provisions hereof are for the exclusive benefit of the
parties, and no other person or entity, including creditors of any party hereto, shall have any right
Purchase and Sale Agreement- 12
Boynton Town Square Central Parcel 1 G
or claim against any party by reason of those provisions or be entitled to enforce any of those
provisions against any party.
36. Limitation on Liability. In any action brought to enforce the obligations of
Seller under this Agreement or any other document delivered in connection herewith, the
judgment or decree shall, subject to applicable law and other than in the event of fraud in any
form whatsoever, only be enforceable against Seller up to an amount not to exceed Two Hundred
Fifty Thousand and 00/No Dollars ($250,000.00) ("Maximum Liability Cap"). No officer,
employee or agent of or consultant to Seller shall be held to any personal liability hereunder, and
no resort shall be had to their property or assets, or the property or assets of Seller for the
satisfaction of any claims hereunder or in connection with the affairs of Seller. The provisions of
this Section 36 shall survive the termination of this Agreement.
37. Sovereign Immunity. The parties agree that the Seller is a political subdivision
of the State of Florida and therefore is entitled to sovereign immunity. Nothing in this
Agreement shall be construed to require the Seller to indemnify Purchaser, or insure Purchaser
for its negligence or to assume any liability for Purchaser. Further, any provision in this
Agreement that requires the Seller to indemnify, hold harmless or defend Purchaser from liability
for any other reason shall not alter the Seller's waiver of sovereign immunity or extend the
Seller's liability beyond the limits established in Section 768.28 of the Florida Statutes, as
amended.
(SIGNATURES APPEAR ON THE FOLLOWING PAGE)
Purchase and Sale Agreement- 13
Boynton Town Square Central Parcel
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have
executed this Agreement as of the latest day and year set forth below.
SELLER:
I ►i� `+� ' PM City of Boy ton Beach
APPR '
OA, By: /Ii •
City orney Name: .57-X-I/42 /6, 6,e4/Air
Title: /fj1 J __
PURCHASER:
JKM BTS Central, LLC,
a Florida limited liability company
By: JKM BTS Capital, LLC, a Florida
limited liability company, its
Manager
By. ,4.41
/John K. Markey, Manager
I
Purchase and Sale Agreement-
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1 A
Boynton Town Square Central Parcel 1
LEGEND:
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PURCHASE AND SALE AGREEMENT
(BTS North)
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made and entered
into as of the to) day of March, 2018 (the "Effective Date"), by and between JKM BTS North,
LLC, a Florida limited liability company (the "Purchaser"), and City of Boynton Beach (the
"Seller").
RECITALS
WHEREAS, Seller is the owner of the property located in Boynton Beach, Florida, which
consists of approximately +/-2.60 gross acres and is commonly known as Boynton Town Square
North, as depicted on Exhibit"A" and made a part hereof,together with the improvements located
thereon and all fixtures and personal property located on said property(the"Property"); and
WHEREAS, Seller desires to develop upon the Property a rental apartment project which is
anticipated to consist of approximately 225 apartment units (the "Apartments"), as well as a
parking structure which is anticipated to consist of approximately 991 parking spaces (the
"Garage"),together with related improvements(the Apartments, Garage, and related improvements
are referred to herein as the"Project"); and
WHEREAS, simultaneously with the execution of this Agreement, Seller and an affiliate of
Purchaser have entered into a Development Agreement (the "Development Agreement"), which
shall govern the development of the Project and certain obligations of Seller and such affiliate of
Purchaser with respect thereto; and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to purchase from
Seller,the Property,pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set
forth herein and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby covenant and agree to the terms and conditions set
forth herein.
AGREEMENT:
1. Recitals. The recitals set forth above are incorporated herein by this reference,
and the parties agree that such recitals are true and correct.
2. Purchase and Sale. Subject to all of the terms and conditions of this Agreement,
the Seller will sell to the Purchaser, and the Purchaser will purchase from the Seller, the Property,
together with all appurtenances, rights, easements, rights of way, permits, licenses, leases,
warranties,and approvals incident or appurtenant thereto.
3. Purchase Price and Payment. The purchase price to be paid by the Purchaser to
the Seller for the Property shall be $10.00 (the "Purchase Price"), and any adjustments and
prorations as set forth in this Agreement.
Purchase and Sale Agreement- 1
Boynton Town Square North Parcel 1
4. Title and Title Insurance.
(a) Purchaser shall obtain a current title insurance commitment (the
"Commitment") for an ALTA owner's title insurance policy, issued by PG Law, as agent for
Chicago Title Insurance Company, Old Republic National Title Insurance Company, or another
national title insurance company (the "Title Company"). Purchaser shall have until the end of the
Due Diligence Period (as defined hereafter) to examine the condition of title to the Property to
confirm that title to the Property is good, marketable and insurable. Within such period, if
Purchaser fails to provide Seller with written notice of specific defects which make title to the
Property other than as required by this paragraph, then, for all purposes of this Agreement,
Purchaser shall be deemed to have accepted title in the condition described in the Commitment. If
Purchaser timely notifies Seller that title does not satisfy the requirements of this paragraph, then
Seller agrees to use its best efforts to make title good, marketable, and insurable, for which purpose
Seller shall have twenty (20) days from the receipt of Purchaser's written notice that title is
unacceptable to remedy any such objection; provided, however, that Seller shall not be required to
spend more than $5,000.00 (exclusive of attorney's fees or other professional fees) to remedy any
specific title objection other than a mortgage, lien, judgment, or other monetary obligation
encumbering the Property as described in Section 4(b). If title is not rendered as required by this
paragraph despite the best efforts of Seller, then at any time after the end of such twenty (20) day
period, upon written notice delivered at the option of Purchaser,this Agreement shall be terminated
and all parties hereto shall be released from any and all obligations and liabilities hereunder except
those which specifically survive termination. At any time prior to such termination, Purchaser may
elect by written notice to Seller to waive any defects in title, in which event, subject to satisfaction
of the conditions set forth in this Agreement, the Closing shall take place pursuant to this
Agreement without any abatement in the Purchase Price. Prior to the Closing,Purchaser shall cause
the Commitment to be updated to a current effective date by the Title Company. If the update of the
Commitment shows additional exceptions that render title unmarketable or which materially
interfere with Purchaser's development, ownership, and intended use for the Property, Purchaser
shall provide written notice of its objections to such new exceptions to Seller. Seller shall have a
period of twenty (20) days from receipt of such written notice from Purchaser in which to use its
best efforts to cause such additional exceptions to be removed from the Commitment. If, after
utilizing due diligence and Seller's best efforts, Seller is unable to remove such additional
exceptions, Purchaser shall have the option of either waiving any such title defects, in which event,
subject to satisfaction of the conditions set forth in this Agreement, the Closing shall take place
pursuant to this Agreement without any abatement in the Purchase Price,or Purchaser shall have the
right to terminate this Agreement and neither party shall have any further rights or obligations
hereunder except for those obligations which specifically survive termination.
(b) Seller agrees that Seller shall use its best efforts to make title good,
marketable and insurable within the time limits set forth in this Agreement. Notwithstanding the
foregoing, Seller agrees that Seller shall pay all indebtedness secured by a mortgage upon the
Property, as well as all past due taxes, outstanding governmental or quasi-governmental
assessments,and any outstanding judgments or liens against Seller and/or the Property, including all
penalties and interest,prior to the Closing.
5. Survey. Purchaser shall have the right, at its expense, to obtain a current survey of
the Property prepared by a licensed Florida land surveyor (the "Survey"). The Survey shall be
Purchase and Sale Agreement- 2
Boynton Town Square North Parcel G
certified to the Purchaser and to the Title Company and shall be prepared in accordance with the
minimum technical standards for surveys in the State of Florida and/or ALTA requirements. In the
event that the Survey shows any encroachments or any other defects, then such defects shall be
treated as a title defect and the provisions of Section 4 shall be applicable to any such Survey
defects.
6. Seller's Obligations Prior to Closing.
(a) Seller covenants and agrees that it has or will, within fifteen (15) days
following the Effective Date, deliver to Purchaser true and correct copies of the following, to the
extent existing and in Seller's possession and/or control: survey,development approvals, economic
studies, traffic studies, all title related documents, copies of all ad valorem tax statements, bills and
assessments, engineering reports, topographical maps, traffic studies, FDOT letters, geotechnical
subsurface analysis reports, environmental reports and related environmental studies and all similar
reports and studies available to or currently in Seller's possession.
(b) Seller shall provide Purchaser, together with Purchaser's agents and
representatives, complete access to any portion of the Property for the purpose of making physical
inspections of the Property to determine whether, in Purchaser's sole and absolute discretion, the
Property is suitable for Purchaser's purposes. Such inspections may include, among other things,
survey,site,engineering,appraisal, environmental,and feasibility studies.
(c) Seller shall cooperate with Purchaser as reasonably required in order for
Purchaser to perform its due diligence and seek its Approvals (as defined in Section 8) in
accordance with the terms of this Agreement.
7. Due Diligence.
(a) Due Diligence Period. Purchaser shall have the "Due Diligence Period" in
which to ascertain whether the Property is acceptable to Purchaser in order for Purchaser to
proceed with seeking approvals, permits and licenses necessary for the development of the
Property. "Due Diligence Period" shall mean the period commencing on the Effective Date of
this Agreement and expiring on the date which is sixty (60) calendar days subsequent to the
Effective Date. If the Property is determined to be unacceptable to Purchaser in its sole
discretion, Purchaser shall notify the Seller by providing written notice of its determination that
the Property is unacceptable for its intended use no later than 5:00 p.m. Florida time on the final
day of the Due Diligence Period (a "Notice of Cancellation"), in which event neither party shall
have any further rights or obligations hereunder. If the Property is determined to be acceptable
to Purchaser in its sole discretion, Purchaser shall notify the Seller by providing written notice of
its determination that the Property is acceptable for its intended use no later than 5:00 p.m.
Florida time on the final day of the Due Diligence Period (a "Notice to Proceed"). If Purchaser
fails to deliver either a Notice of Cancellation or a Notice to Proceed by 5:00 p.m. Florida time
on the final day of the Due Diligence Period, then Purchaser shall be deemed to have delivered a
Notice of Cancellation, in which event neither party shall have any further rights or obligations
hereunder.
(b) Indemnification. Purchaser agrees to indemnify, defend, and hold
harmless Seller and its affiliates, managers, members, partners, subsidiaries, shareholders,
Purchase and Sale Agreement- 3
Boynton Town Square North Parcel
officers, directors, lenders, employees, attorneys, and agents from any loss, injury, damage,
claim, lien, cost or expense, including reasonable attorneys' fees, paraprofessional fees and costs
pretrial, at trial and at all levels of proceedings, including appeals, arising out of or resulting
from Purchaser's physical inspections, examinations, studies, and/or analyses of the Property.
8. Permits and Approvals. Purchaser shall be seeking to receive all authorizations,
including, without limitation, land-use change, re-zoning, plat and/or replat, and site plan
approvals necessary for Purchaser's intended use of, and the construction and operations of the
improvements upon, the Property (collectively, the "Approvals"). Seller shall, upon request by
Purchaser, execute any and all documentation in support of any application for such Approvals
including the site specific Site Plan/Master Plan Amendment as conceptually agreed by both
parties; provided, however, that Purchaser shall not be required, as a condition of receiving its
Approvals or otherwise, to construct or maintain any infrastructure, improvements, or other
structures or property other than the Project. If at any time, Purchaser (i) is denied or refused
any such Approvals, (ii) is uncertain that Purchaser's intended use, construction and
improvements to the Property will not be physically or financially impaired, as determined in
Purchaser's sole and absolute discretion, (iii) determines that the necessary Approvals have been
granted subject to any conditions that Purchaser deems unacceptable because they will physically
or financially impair Purchaser's use and development of the Property, or (iv) determines that
adequate utilities and related facilities, including, without limitation, water, storm water and
sanitary sewage disposal, telephone service and energy sources to service the Property and
improvements thereto for Purchaser's intended use and/or easements therefore are not available
to the reasonable satisfaction of Purchaser, then Purchaser may, by furnishing written notice to
Seller, terminate this Agreement without owing any liability to Seller (other than any liability
that expressly survives any termination hereunder).
9. Seller's Representations and Warranties. Seller hereby represents and warrants
to Purchaser as follows:
(a) To the best of Seller's knowledge, Seller has not received any notice from
the State Department of Environmental Protection or similar agency, the United States
Environmental Protection Agency or any other governmental or quasi governmental entity
indicating that the Property is currently contaminated by hazardous wastes or pollutants as those
terms are defined by applicable laws ("Hazardous Substances") or any notice that the Property is
subject to any claim or cause of action pursuant to any federal, state or local environmental
statute,regulation or ordinance.
(b) Seller has full right and is duly authorized to enter into and consummate
this Agreement.
(c) To the knowledge of Seller, there is no litigation, investigation or
proceeding pending or threatened against Seller which would adversely affect Seller's ability to
perform its obligations hereunder.
(d) There has been no petition filed by or against Seller under the Federal
Bankruptcy Code or any similar state or federal law.
Purchase and Sale Agreement- A
Boynton Town Square North Parcel 4
I (e) There are no condemnation or eminent domain proceedings pending or, to
the best of Seller's knowledge, contemplated against the Property or any part thereof, and Seller
has received no notice of the desire or intention of any public authority to take or use the
Property or any part thereof.
(f) Seller has received no notice of and to Seller's knowledge, there is no
violation of any law, regulation, ordinance, order or judgment affecting the Property regarding
any zoning violation, or, in connection with the ownership and operation of the Property and
buildings thereon, any violation of any local, county, state or federal environmental, health,
safety or sanitary, or building code law, rule or regulation.
(g) To the best of Seller's knowledge, Seller has no knowledge of any
unrecorded easements, restrictions, or encumbrances affecting all or any part of the Property.
(h) To the best of Seller's knowledge, (i) Seller has received no written notice
regarding the existence of, and (ii) Seller has no knowledge of the existence of, any underground
storage tanks located on the Property. To the best of Seller's knowledge, no underground
storage tanks have been removed from the Property during the time the Property has been owned
by Seller.
(i) There is no leasehold interest affecting the Property.
(j) There are no existing service contracts or other contracts relative to the
operation and maintenance of the Property which shall remain in effect after the date of Closing.
There shall be no money due on such contracts as of the date of Closing.
In this Section 9, the phrases "to the knowledge of' or "has no knowledge of' or similar
phrases shall be deemed to refer to the actual knowledge of Seller after due inquiry and
investigation. The provisions of this Section 9 shall survive the Closing or termination of this
Agreement for a period of one (1) year. If any representation set forth herein is not true and
correct as of the Closing, the same shall constitute a default hereunder, and Purchaser may
terminate this Agreement and receive as damages reimbursement of all costs and expenses
expended by Purchaser since the Effective Date. Subject to applicable law, Seller hereby
indemnifies and holds Purchaser harmless from any and all loss, cost, damage, and expense,
including reasonable attorneys' fees, paralegal fees, and court costs, in and through all appellate
levels, arising or incurred by Purchaser by virtue of any material misrepresentation or inaccuracy
in the representations and warranties set forth herein. Subject to applicable law, Seller shall
indemnify and hold Purchaser harmless from and against all costs, expenses, claims, and credits
asserted against, or incurred by, Purchaser, by reason of any third party tort claim or other claim
regarding bodily injury or property damage arising or accruing prior to the Closing.
10. Conditions to Purchaser's Obligations. It shall be a condition precedent to
Closing of this Agreement by Purchaser that the following conditions be satisfied:
(a) All representations and warranties set forth in Section 9 are true and
correct, and Seller has delivered its certificate to Purchaser reaffirming such representations and
warranties as of the Closing Date.
Purchase and Sale Agreement- 5
Boynton Town Square North Parcel J
(b) Seller shall have removed all tenants and other persons in possession from
the Property, such that, upon Closing, Purchaser shall have exclusive possession of the Property.
(c) Seller shall not be in breach or default with respect to any obligation of
Seller under the terms and provisions of this Agreement.
To the extent that Purchaser elects to waive any condition set forth in this Section 10
prior to Closing, satisfaction of each such condition shall be a condition to Purchaser's
obligations under the Development Agreement(as defined in Section 12(g)).
11. Closing.
(a) Subject to the provisions of this Agreement and the conditions precedent
to closing, the purchase and sale contemplated by this Agreement shall be closed(the "Closing")
no later than the later to occur of(i) the date that is thirty (30) days after the expiration of the
Due Diligence Period, as may have been extended, and (ii) seven (7) business days following the
date when all other conditions to Closing as set forth in Section 10 have been met (the date of
such Closing, the "Closing Date").
(b) The Closing shall take place by way of escrow and shall be conducted by
the Purchaser's attorney on the Closing Date.
(c) Should Purchaser be unable to obtain basic hazard, wind, or flood
insurance at reasonable rates due to storm or extreme weather conditions that prohibit the
issuance of such insurance, Purchaser may delay Closing for up to ten (10) days from when such
coverage becomes available.
12. Seller's Deliveries. Seller shall deliver to Purchaser at Closing the following
documents dated as of the Closing Date, the delivery and accuracy of which shall be a condition to
Purchaser's obligation to consummate the purchase and sale:
(a) Special Warranty Deed. A special warranty deed in recordable form, duly
executed by Seller, conveying to Purchaser good, marketable and insurable fee simple title to the
entire Property, subject only to the permitted exceptions as reflected in the Commitment which
have not been objected to by Purchaser, with the legal description provided in the Commitment
and Survey, as the same may have been revised from time to time in accordance with the
Approvals.
(b) Bill of Sale. A bill of sale, duly executed by Seller, conveying to
Purchaser good, marketable and lien-free title to all personal property and fixtures located on the
Property.
(c) Affidavit. An owner's affidavit adequate for title insurance to be issued
by the Title Company without exception for parties in possession, mechanics' or materialmens'
liens and to permit the Title Company to delete the "gap" in the Commitment.
(d) FIRPTA Affidavit. In order to comply with the requirements of the
Foreign Investment Real Property Tax Act of 1980 ("FIRPTA"), Seller will deliver to Purchaser
at Closing Seller's affidavit under penalty of perjury stating that Seller is not a "foreign person,"
Purchase and Sale Agreement-
Boynton Town Square North Parcel 6
as defined in Section 1445 of the Internal Revenue Code of 1986 and the U.S. Treasury
Regulations thereunder, setting forth Seller's taxpayer identification number, and that Seller
intends to file a United States income tax return with respect to the transfer. Seller represents
and warrants to Purchaser that it has not made nor does Seller have any knowledge of any
transfer of the Property or any part thereof that is subject to any provisions of FIRPTA that has
not been fully complied with by either transferor or transferee. As required by law, if Seller fails
to comply with the requirement of this paragraph, Purchaser shall withhold 10% of the Purchase
Price in lieu of payment thereof to Seller and pay it over instead to the Internal Revenue Service in
such form and manner as may be required by law.
(e) Assignment. An assignment of all of Seller's right, title and interest to all
permits, licenses, and warranties with respect to the Property.
(f) Certificate. A Certificate of the Seller that the representations and
warranties set forth in Section 9 are true and correct as of the Closing Date.
(g) Option Agreement. An Option Agreement in favor of Seller in
substantially the form attached hereto as Exhibit "B" (the "Option Agreement"), which shall
provide the Seller a right to re-acquire the Property from Purchaser upon the occurrence of
certain events.
(h) Parking Agreement. The Parking License in substantially the form
attached hereto as Exhibit "C" (the "Parking Agreement"), which shall govern the relationship
between the parties with respect to the Garage after completion.
(i) Other Documents. Any other settlement statement, agreement, document
or instrument required by this Agreement or by the closing agent or any Title Company (or its
agent), by any governmental or quasi-governmental authority or agency, or by any public utility
to be delivered by Seller or reasonably necessary to carry out the provisions of this Agreement;
the form of any and all such agreements shall be as reasonably agreed upon between the
applicable parties, or in the case of a governmental or quasi-governmental authority or agency or
a public utility, shall be in the form or format customarily required by such authority, agency, or
utility, subject to modification as may be reasonably necessary as a result of the specifics of the
Property and the transactions contemplated hereby.
13. Purchaser's Deliveries. At the Closing, and after Seller has complied with all of
the terms and conditions of this Agreement and simultaneously with Seller's delivery of the final
documents required in Section 12, Purchaser shall execute and deliver the settlement statement, the
Option Agreement, and the Parking Agreement and pay to Seller the Purchase Price, as the same
may be adjusted for the prorations and any other credits or adjustments provided for in this
Agreement.
14. Closing and Recording Costs. Seller shall pay the cost to obtain and record any
title curative documents. Purchaser shall pay for the cost of documentary stamp taxes and any
surtax on the deed, thecost of recording the deed, the cost of the title search and Commitment, the
cost of the owners' title policy to be issued to Purchaser, the cost of the Survey, the costs of its
investigations,the costs incurred in connection with seeking the Approvals, and any mortgagee title
Purchase and Sale Agreement- 7
Boynton Town Square North Parcel
policy and any endorsements thereto. Except as set forth herein, each party shall pay its respective
attorney's fees.
15. Real Estate Taxes and Prorations. At the Closing, the real estate taxes on the
Property shall be prorated between the parties on a calendar year basis. Special assessment liens
certified as of Closing shall be paid by the Seller. Pending special assessment liens shall be treated
as a certified lien and shall be paid by the Seller. Seller shall be responsible for payment in full of
any personal property taxes applicable to Seller, Seller's personal property or business assets. This
covenant shall survive Closing.
16. Possession. Purchaser shall be granted full possession of the Property as of the
Closing.
17. Covenants and Agreements of Seller. Seller hereby covenants and agrees that
between the Effective Date of this Agreement and the Closing:
(a) Seller will not, without Purchaser's prior written consent, create by its
consent any encumbrances on the Property. For purposes of this provision, the term
"encumbrances" shall include, but not be limited to, any liens, claims, options, or other
encumbrances, encroachments, rights-of-way, leases, easements, covenants, conditions or
restrictions. At or prior to Closing, Seller shall terminate, and pay in full, all outstanding
amounts due and payable and any termination fees required to terminate any and all leases,
service contracts, maintenance contracts, franchise agreements, easements not approved in
writing by Purchaser, and any other claims to the Property not approved in writing by Purchaser.
(b) Seller will terminate all tenancies with respect to the Property, and shall
have removed from the Property all tenants, no later than five (5) business days following the
time when the Approvals have been received. Seller shall not enter into any new lease or extend
any current lease, or permit any tenant to remain upon the Property as a holdover tenant, or allow
any tenancy to convert to a month-to-month or other form of tenancy.
(c) Seller will not remove any fill or cause any change to be made to the
condition of the Property without the prior written consent of the Purchaser.
(d) Between the Effective Date and the date of Closing, Seller will not create
or consent to the creation of any special taxing districts or associations with the authority to
impose taxes, liens or assessments on the Property.
18. Real Estate Commissions.
(a) Seller hereby warrants to Purchaser that Seller has not engaged or dealt
with any broker or agent with respect to the purchase and sale of the Property as contemplated by
this Agreement. Seller shall indemnify and hold Purchaser harmless against any and all liability,
cost, damage and expense (including, but not limited to, attorneys' fees and costs of litigation
and appeals) which Purchaser shall ever suffer or incur because of any claim by any broker or
agent claiming to have dealt with Seller with respect to the Property, whether or not meritorious,
for any commission or other compensation with respect to this Agreement or to the purchase and
sale of the Property in accordance with this Agreement.
Purchase and Sale Agreement- 8
Boynton Town Square North Parcel
(b) Purchaser hereby warrants to Seller that Purchaser has not dealt with any
broker or agent with respect to the purchase and sale of the Property as contemplated by this
Agreement. Purchaser shall indemnify and hold Seller harmless against any and all liability,
loss, cost, damage and expense (including, but not limited to, attorneys' fees and costs of
litigation and appeal) Seller shall ever suffer or incur because of any claim by any broker or
agent claiming to have dealt with Purchaser, whether or not meritorious, for any commission or
other compensation with respect to this Agreement or to the purchase and sale of the Property in
accordance with this Agreement.
19. Risk of Loss and Condemnation.
(a) All risk of condemnation shall be on Seller. In the event that the Property
or any portion thereof is taken by eminent domain, negotiated for grant in lieu of condemnation
or threatened to be taken or made unavailable for use by any governmental entity, prior to
Closing or through Purchaser's development approval process, Purchaser shall have the option of
either: (i) canceling this Agreement and receiving a refund of the Deposit, together with all
interest accrued thereon, whereupon both parties shall be relieved of all further obligations under
this Agreement, except those obligations which survive termination; or (ii) Purchaser may
proceed with Closing in which case Purchaser shall be entitled to all condemnation awards and
settlements relating to the Property and Purchaser shall accept the Property less and except any
property to which the condemnation award relates. In the event Purchaser elects the latter
option, Purchaser shall be entitled to participate in any such negotiations and proceedings, and
Seller shall from time to time deliver to Purchaser all instruments requested by it to permit such
participation. Seller shall, at its expense, diligently pursue any such proceeding, and shall
consult with Purchaser, its attorneys and experts and cooperate with them in any defense of any
such proceedings.
(b) If all or a portion of the Property shall be damaged or destroyed by any
casualty after the Effective Date and before Closing which, in the sole and absolute discretion of
Purchaser, renders the Property unsuitable for Purchaser's intended use (whether because of
impossibility, economic unfeasibility, or otherwise, including as a result of casualties such as a
sinkhole, earthquake, tsunami, hurricane or otherwise which render the Property geotechnically
unstable or otherwise unsuitable for Purchaser's intended use), Purchaser shall have the option of
either: (i) canceling this Agreement, whereupon both parties shall be relieved of all further
obligations under this Agreement, except those obligations which survive termination; or (ii)
Purchaser may proceed to Closing, in which case Purchaser shall be entitled to all insurance
awards and settlements relating to the Property.
20. Default.
(a) In the event of a default by Purchaser under this Agreement which is not
cured within ten (10) days after written notice to Purchaser, then Purchaser shall owe to Seller
the full amount of the Purchaser Price, which shall be retained by Seller as liquidated and agreed
upon damages and as Seller's sole remedy; and thereafter, Purchaser shall be relieved from all
further obligations under this Agreement, and Seller shall have no further claim against the
Purchaser for specific performance or for damages by reason of the failure of Purchaser to close
this transaction or for any other claim of Seller.
Purchase and Sale Agreement- 9
Boynton Town Square North Parcel 7
I (b) In the event of a default by Seller hereunder which is not cured within ten
(10) days after written notice to Seller, then at any time thereafter prior to the cure of such
default by Seller, and Purchaser shall have the right to proceed against Seller in an action for
specific performance of this Agreement and/or for damages based upon such default.
21. AS-IS. Except as specifically set forth in this Agreement or any other written
agreement between Seller and Purchaser(or any affiliate of Purchaser), Seller makes and shall make
no representation or warranty either expressed or implied (except as specifically set forth in this
Agreement) regarding the condition, operability, safety, fitness for intended purpose, use,
governmental requirements, development potential, utility availability, legal access, impact fees,
concurrency, economic feasibility or any other matters whatsoever with respect to the Property.
Purchaser specifically acknowledges and agrees that Seller shall sell and Purchaser shall purchase
the Property on an "AS IS, WHERE IS, AND WITH ALL FAULTS" basis and that, except for
Seller's representations and warranties specifically set forth in this Agreement or any other written
agreement between Seller and Purchaser (or any affiliate of Purchaser), Purchaser is not relying on
any representations or warranties of any kind whatsoever,express or implied,from Seller,its agents,
officers, or employees, as to any matters concerning the Property including, without limitation, any
matters relating to (1) the quality, nature, adequacy, or physical condition of the Property, (2) the
quality, nature, adequacy, or physical conditions of soils, fill, geology, or any groundwater, (3)the
development potential or income potential, (4) the Property's value, use, habitability, or
merchantability, (5) the fitness, suitability, or adequacy of the Property for any particular use or
purpose, (6) the presence of Hazardous Materials or any other hazardous or toxic matter on, under,
or about the Property or adjoining or neighboring property, (7) the freedom of the Property from
latent or apparent vices or defects, or (8) environmental matters of any kind or nature whatsoever
relating to the Property. PURCHASER ACKNOWLEDGES THAT THIS TRANSACTION AND
THE ASSIGNMENTS, CONVEYANCES AND TRANSFERS OF PROPERTY BY SELLER TO
PURCHASER IS IN ITS "AS-IS, WHERE IS" CONDITION WITHOUT REPRESENTATION
OR WARRANTY, ORAL OR WRITTEN, EXPRESS OR IMPLIED EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT OR ANY OTHER WRITTEN
AGREEMENT BETWEEN SELLER AND PURCHASER (OR ANY AFFILIATE OF
PURCHASER).
22. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the transaction contemplated herein, and it supersedes all prior
understandings or agreements between the parties.
23. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
24. Survival of Provisions. All representations, warranties, and agreements contained
herein shall survive the Closing and delivery of the deed of conveyance contemplated by this
Agreement.
25. Waiver; Modification. The failure by Purchaser or Seller to insist upon or enforce
any of their rights shall not constitute a waiver thereof, and except to the extent conditions are
waived by the express terms of this Agreement, nothing shall constitute a waiver of Purchaser's
right to insist upon strict compliance with the terms of this Agreement. Either party may waive the
Purchase and Sale Agreement- 1 1 0
Boynton Town Square North Parcel
benefit of any provision or condition for its benefit which is contained in this Agreement. No oral
modification of this Agreement shall be binding upon the parties and any modification must be in
writing and signed by the parties.
26. Governing Law; Venue. This Agreement shall be governed by and construed
under the laws of the State of Florida. The venue of any legal proceeding between the parties shall
be the state or Federal courts having jurisdiction in or over Palm Beach County,Florida.
27. Headings. The section headings as set forth in this Agreement are for convenience
or reference only and shall not be deemed to alter the content of this Agreement or limit the
provisions or scope of any section herein.
28. Notices. All notices, demands and other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given:
(a) when personally delivered; or
(b) the next Business Day after being sent by reputable overnight express
courier(charges prepaid);or
(c) when received if by facsimile or e-mail transmission, so long as notice is
concurrently provided to the parties to this Agreement by a method set forth in Section 27(a) or
Section 27(b).
Unless another address is specified in writing, notices, demands and communications to the
parties shall be sent to the addresses indicated below:
If to Seller: City of Boynton Beach
100 E.Boynton Beach Blvd.
Boynton Beach,Florida 33435
Attn: Lori LaVerriere, City Manager
With a copy to: Goren, Cherof,Doody&Ezrol,P.A.
Attn: James Cherof,Esq.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale,Florida 33308
If to Purchaser: JKM BTS North,LLC
2300 Glades Road
Suite 202 East
Boca Raton,Florida 33431
Attention: James S. Gielda,John K. Markey and Adam P. Freedman
With a copy to:
Stephen J. Grave de Peralta,Esq.
5030 Champion Blvd., Suite G11-281
Purchase and Sale Agreement- 1 1
Boynton Town Square North Parcel 1 1
Boca Raton,Florida 33496
If any party refuses to accept any attempted delivery of notice in any of the foregoing manners,then
notice shall be deemed to have been delivered upon such refusal. Any party hereto shall have the
right to change its address for notice if written notice is given to all other parties in accordance with
the notice provisions hereof.
29. Assignment. Purchaser shall be permitted to assign its interest in this Agreement
or in any of its rights pursuant to this Agreement to an entity affiliated with Purchaser or its
principals, and such assignments may result in Purchaser selling the right to purchase Property,
selling the Property, or reselling the Property, if after the Closing, for a price which may be less
than or more than the price to be paid to Seller pursuant to this Agreement, and Seller shall have
no claim to any such proceeds in excess of the Purchase Price, nor shall Seller be required to
contribute any deficit if such sales are for less than the Purchase Price. Seller shall not assign
this Agreement without the prior written approval of Purchaser, which may be withheld in
Purchaser's sole and absolute discretion.
30. Attorneys' Fees. In the event that it becomes necessary for either party to bring
suit to enforce the terms of this Agreement, then the prevailing party shall be entitled to recover all
fees and costs, including attorneys' fees and paralegal charges incurred in connection with such
proceedings(including appellate proceedings)against the nonprevailing party.
31. Time of the Essence. Time is of the essence with respect to each provision of this
Agreement which requires that action be taken by either party within a stated time period,or upon a
specified date; provided however, if the date for performance is on a Saturday, Sunday, or federal
holiday,the date for performance shall be extended to the next business day.
32. Construction. Each party hereto hereby acknowledges that all parties hereto
participated equally in the drafting of this Agreement and that, accordingly, no court construing this
Agreement shall construe it more stringently against one party than the other.
33. Counterparts. To facilitate execution, this Agreement may be executed in
counterparts (including by facsimile or other electronic transmission); and it shall not be necessary
that the signature of, or on behalf of, each party, or that the signatures of all persons required to bind
any party, appear on each counterpart; but it shall be sufficient that the signature of, or on behalf of,
each party, or that the signature of the persons required to bind the party appear on one or more of
such counterparts. All counterparts shall collectively constitute a single agreement. Facsimile
copies or other electronically transmitted copies of this executed Agreement shall be deemed an
original agreement.
34. Waiver of Jury Trial. Each party to this Agreement hereby willingly,
knowingly, and voluntarily waives any right to a jury trial in connection with any dispute
between the parties arising from this Agreement, from any claim arising hereunder, or any course
of conduct related hereto.
35. Relationship of Parties. Nothing contained in this Agreement shall be deemed
or construed in any manner or under any circumstances whatsoever as creating or establishing
Purchase and Sale Agreement- 2
1
Boynton Town Square North Parcel 1 L
the relationship of partners or co-venturers, or creating or establishing the relationship of a joint
venture between Purchaser and Seller. The provisions hereof are for the exclusive benefit of the
parties, and no other person or entity, including creditors of any party hereto, shall have any right
or claim against any party by reason of those provisions or be entitled to enforce any of those
provisions against any party.
36. Limitation on Liability. In any action brought to enforce the obligations of
Seller under this Agreement or any other document delivered in connection herewith, the
judgment or decree shall, subject to applicable law and other than in the event of fraud in any
form whatsoever, only be enforceable against Seller up to an amount not to exceed Two Hundred
Fifty Thousand and 00/No Dollars ($250,000.00) ("Maximum Liability Cap"). No officer,
employee or agent of or consultant to Seller shall be held to any personal liability hereunder, and
no resort shall be had to their property or assets, or the property or assets of Seller for the
satisfaction of any claims hereunder or in connection with the affairs of Seller. The provisions of
this Section 36 shall survive the termination of this Agreement.
37. Sovereign Immunity. The parties agree that the Seller is a political subdivision
of the State of Florida and therefore is entitled to sovereign immunity. Nothing in this
Agreement shall be construed to require the Seller to indemnify Purchaser, or insure Purchaser
for its negligence or to assume any liability for Purchaser. Further, any provision in this
Agreement that requires the Seller to indemnify,hold harmless or defend Purchaser from liability
for any other reason shall not alter the Seller's waiver of sovereign immunity or extend the
Seller's liability beyond the limits established in Section 768.28 of the Florida Statutes, as
amended.
(SIGNATURES APPEAR ON THE FOLLOWING PAGE)
Purchase and Sale Agreement- 1 3
Boynton Town Square North Parcel
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have
executed this Agreement as of the latest day and year set forth below.
SELLER:
/
APPROCity of Bo t • B• . •h '/
/. r By: / • 4
City Attorney. 4PM
r OName: T 1 - • /i4 T
Title: //; /,
PURCHASER:
JKM BTS North, LLC,
a Florida limited liability company
By: JKM BTS Capital, LLC, a Florida
limited liability company, its
Manager
By /LI&
/John K. Markey, Manager
I
Purchase and Sale Agreement- 1 A
Boynton Town Square North Parcel 1 Y
Exhibit"A"
•
Legal Description of the Property
{00222419.1 306-9905263) 7
Option Agreement-
Boynton Town Square North
LEGEND:
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IEXHIBIT "B"
Option Agreement
See attached.
I
I
Purchase and Sale Agreement- 6
1
Boynton Town Square North Parcel 1 V
THIS INSTRUMENT PREPARED BY AND
WHEN RECORDED RETURN TO:
Stephen J. Grave de Peralta, Esq. I PG Law
5030 Champion Blvd., Suite G11-281
Boca Raton, Florida 33496 1561.325.6510
Folio No.
OPTION AGREEMENT
(BTS NORTH) a
This Option Agreement (the "Agreement") is made and entered into as of the t 1. day of
/414- J / , 2018 (the "Effective Date"), by and between JKM BTS North, LLC, a Florida limited
liability company(the "Owner"), and City of Boynton Beach (the"City").
RECITALS
WHEREAS, Owner has acquired the real property described on Exhibit"A" (the"Property")
from the City; and
WHEREAS, Owner and City have entered into this Agreement as a condition of and in
consideration of the acquisition of the Property from City; and,
WHEREAS, the parties desire to reduce their agreement to writing.
THEREFORE, for $10 and other good and other valuable consideration, the receipt of which
is hereby acknowledged, the parties stipulate and agree as follows:
AGREEMENT
1. Recitals. The recitals set forth above are true and correct and are hereby incorporated
herein.
2. Granting of Option. Subject to the terms and conditions of this Agreement, Owner
hereby grants City an option to purchase the Property (the"Option").
3. Conditions to Exercise of Option. Following the occurrence of any of the following
events, City shall have the right to exercise the Option:
a. If Owner shall have failed to file an application for site plan approval within 120
days of the Effective Date; or
1
Option Agreement-
Boynton Town Square North
b. If Owner shall have failed to obtain a construction loan within eighteen (18)
months from the Satisfaction Date (as such term is defined in that certain
Development Agreement by and between City and JKM BTS Capital, LLC, an
affiliate of Owner, executed as of the _ day of March, 2018 (the "Development
Agreement"); or
c. Upon any termination of the Development Agreement; or
d. Upon the filing by or against Owner of any petition or application for relief,
extension, moratorium or reorganization under any bankruptcy, insolvency or
debtor's relief law or law whereunder Owner is making an assignment for the
benefit of creditors, or entering into any arrangement with creditors or becomes a
party to any receivership proceeding, which is not dismissed within sixty (60)
days of filing in the case of matters filed against Owner.
4. Exercise of the Option. City may exercise the Option by delivering written notice to
Owner of its intent to the exercise the Option and of the specific grounds pursuant to which the City
believes the Option has become, exercisable (the "Option Exercise Notice"). Upon receipt of such
Option Exercise Notice, Owner shall have thirty (30) days (the "Option Confirmation Period")to (i)
cause the termination of the Option (as set forth in Section 5 below), (ii) cause such grounds to no
longer exist, or (iii) demonstrate to the reasonable satisfaction of City that such grounds never
existed(the foregoing, the"Option Deferral Conditions").
5. Termination of Option. Notwithstanding any prior or pending Option Exercise Notice
or the expiration of any Option Confirmation Period,upon Owner's entering into a construction loan
for the construction of the intended improvements upon the Property, the Option granted hereunder
shall be terminated, and City shall have no further rights whatsoever to acquire the Property
pursuant to this Agreement or otherwise. City agrees to cooperate with Owner in connection with
Owner obtaining such a construction loan and to deliver a termination of this Option Agreement in
recordable form into escrow, to be recorded only upon the occurrence of the closing of such a
construction loan.
6. Cooperation. City agrees that, in connection with Owner obtaining a construction loan,
City shall cooperate with Owner and Owner's lender to satisfy the requirements of Owner's lender
and any title insurer underwriting a policy of title insurance with respect to the construction loan
upon the Property. In connection therewith, City shall execute a termination of this Agreement and
deliver such termination into escrow, to be released and delivered from escrow only upon the
closing of such construction loan, together with such other documents and such further terms and
conditions as City, Owner, Owner's lender, and any such title insurer shall reasonably agree.
7. Purchase Price. The purchase price for the exercise of the Option shall be $100.00,
payable in cash at closing (the "Purchase Price").
8. Closing. Closing for the purchase under this Agreement shall occur within fifteen (15)
days following the expiration of any applicable Option Confirmation Period with respect to which
Owner did not satisfy any of the Option Deferral Conditions, at such time and in such manner as
Owner and City shall reasonably agree.
{00222419.1 306-9905263} 2
Option Agreement-
Boynton Town Square North
9. Title. Upon the terms and conditions agreed to and set forth herein, at the Closing,
Owner shall convey to City, by special warranty deed, title in fee simple to the Property in the same
condition as conveyed by City to Owner.
10. Closing Costs. City shall pay all costs of recording the deed for the Property and any
documentary stamp taxes on the deed. Each of the parties shall pay for their own attorney's fees in
connection with the exercise of the Option and the Closing thereunder.
11. Default. In the event of a default by either party hereunder which is not cured within ten
(10) days after written notice to such party, then at any time thereafter prior to the cure of such
default by party, the non-defaulting party shall have the right to proceed against the defaulting party
in an action for specific performance of this Agreement and/or for damages based upon such default.
12. Assignment. The Option hereunder may not be assigned to any party without the written
consent of Owner, which may be withheld for any reason or for no reason, in the sole and absolute
discretion of Owner.
13. Miscellaneous.
a. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the transaction contemplated herein, and it supersedes all
prior understandings or agreements between the parties.
b. Binding Effect. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
c. Headings. The section headings as set forth in this Agreement are for
convenience or reference only and shall not be deemed to alter the content of this
Agreement or limit the provisions or scope of any section herein.
d. Waiver; Modification. The failure by either party to insist upon or enforce any
of their rights shall not constitute a waiver thereof, and except to the extent
conditions are waived by the express terms of this Agreement, nothing shall
constitute a waiver of such party's right to insist upon strict compliance with the
terms of this Agreement. Either party may waive the benefit of any provision or
condition for its benefit which is contained in this Agreement. No oral
modification of this Agreement shall be binding upon the parties and any
modification must be in writing and signed by the parties.
e. Notices. Any notice required or permitted to be delivered hereunder shall be
deemed to be delivered when delivered, whether personally delivered or whether
delivered by an overnight or other courier service (or upon refusal of the
receiving party to accept such attempted delivery. Notice to either party, as the
case may be, shall be addressed as follows:
If to Owner:
2300 Glades Road
(00222419.1 306-9905263) 3
Option Agreement-
Boynton Town Square North
Suite 202 East
Boca Raton, Florida 33431
Attention: James S. Gielda, John K. Markey and Adam P.
Freedman
With a copy to:
Stephen J. Grave de Peralta, Esq.
5030 Champion Blvd., Suite G11-281
Boca Raton, Florida 33496
If to City:
City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach, Florida 33435
Attn: Lori LaVerriere, City Manager
With a copy to:
Goren, Cherof, Doody& Ezrol, P.A.
Attn: James Cherof,Esq.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale, Florida 33308
Such addresses may be changed from time to time by either party by
providing written notice in the manner set forth above.
f. Governing Law; Venue. This Agreement shall be governed by and construed
under the laws of the State of Florida. The venue of any legal proceeding
between the parties shall be the state or Federal courts having jurisdiction in or
over Palm Beach County, Florida.
•
g. Attorneys' Fees. In the event that it becomes necessary for either party to bring
suit to enforce the terms of this Agreement, then the prevailing party shall be
entitled to recover all fees and costs, including attorneys' fees and paralegal
charges incurred in connection with such proceedings (including appellate
proceedings) against the nonprevailing party.
h. Counterparts. To facilitate execution, this Agreement may be executed in
counterparts, and it shall not be necessary that the signature of, or on behalf of,
each party, or that the signatures of all persons required to bind any party, appear
on each counterpart; but it shall be sufficient that the signature of, or on behalf of,
each party, or that the signature of the persons required to bind the party appear
on one or more of such counterparts. All counterparts shall collectively
constitute a single agreement.
i. Waiver of Jury Trial. Each party to this Agreement hereby willingly,
knowingly, and voluntarily waives any right to a jury trial in connection with any
(00222419.1 306-9905263) 4
Option Agreement-
Boynton Town Square North
dispute between the parties arising from this Agreement, from any claim arising
hereunder, or any course of conduct related hereto.
j. Relationship of Parties. Nothing contained in this Agreement shall be deemed
or construed in any manner or under any circumstances whatsoever as creating or
establishing the relationship of partners or co-venturers, or creating or
establishing the relationship of a joint venture between City and Owner. The
provisions hereof are for the exclusive benefit of the parties, and no other person
or entity, including creditors of any party hereto, shall have any right or claim
against any party by reason of those provisions or be entitled to enforce any of
those provisions against any party.
(Signatures appear on the following pages)
{00222419.1 306-9905263} 5
Option Agreement-
Boynton Town Square North
(Signature page to Option Agreement)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
Signed,sealed and delivered
in the presence of:APPRQ 1 n ..L.s i s COI,
/ CityAff 11e�/ _.v---_A' --• -•----• CITY:
..eI/ � �I..,, d i1�l�/ City of Boynton :e. -/ /
'r'ft Name: . &141 LSc.J4A1SO ' / r '
By:y // 1
�':�'j )�- Name:air
Title: j L, '�.� r
�^'
a
Print Name: --17rt GA y-o w A---'1
OWNER:
/ilL-
JKM BTS North, LLC,
�lj// . 4_ ;,�//,I,/ a Florida limited liability company
rit '4• e: /4/ ....S ai/9/1,1L
By: JKM BTS Capital, LLC, a Florida
/ limited liability company, its Manager
Print Name: "---/Tvs k.), Ho . -,Pi J B;: /I L.
/ Jbhn K. Markey, Manager
STATE OF FL A
COUNTY OF 6.4 ,96.44/
p,T e foregoing instrument as acki wledged before me this// day of�,2018 by%..53/7///i--41
04,94/ Tas /V% b/C. of the City of Boynton Beach, Florida,who is personall knows to
me or who- •• <• as identifica '•n. /
.40.',:"%k:,...- LYNN M.SWANSON �/� //`F/
• •_•• •I MY COMMISSION#GG 1503134011170P. 4 % `� i V
..%), •V:t3: EXPIRES:November 17,2021 •Y PUBLIC, State of Florida
"'`qF, °'' Bonded Thru Notary Public Underwriters
STATE OFFLS • DA
COUNTY OF 1/¢L 1,_/
The foregoing instrument was acknowledged before me this/9 day of/ea 2018 by John K.
Markey, as Manager of JKM BTS Capital, LLC, a Florida limited liability company, the manager of JKM
BTS North, LLC, a Florida limited liability company, who is personally known .o me or who produced
as identification, on behalf of th- -
••l✓:+?v . LYNN M.SWANSON 1/ t//'
i' •; MY COMMISSION#GG 150313 �r •A V�Y�
•.- EXPIRES:November 17,2021 ARY PUBLIC, State of Florida
''Eds °': Bonded Wu Notary Pubiic Underwriters
t
Option Agreement-
Boynton Town Square North
•
Exhibit"A"
Legal Description of the Property
•
•
•
(00222413.1 306-9905263) 7
Option Agreement-
Boynton Town Square South
DESCRIPTION: PARCEL#2
A PARCEL OF LAND BEING A PORTION OF LOTS 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 20, 21 22
AND A PORTION OF N.E. 1ST AVENUE (POINCIANNA STREET) ALL OF THE PLAT OF BOYNTON CENTER, AS
RECORDED IN PLAT BOOK 8, PAGE 12;TOGETHER WITH A PORTION OF LOTS 1, 2, 3, 4 AND 5, BLOCK 14
OF THE PLAT OF SAWYER'S ADDITION AS RECORDED IN PLAT BOOK 1, PAGE 69 ALL OF THE PUBLIC
RECORDS OF PALM BEACH COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS;
COMMENCING AT THE NORTHEAST CORNER OF SECTION 28, TOWNSHIP 45 SOUTH, RANGE 43 EAST,
PALM BEACH COUNTY, FLORIDA; THENCE, ALONG THE NORTH LINE OF SAID SECTION 28, SOUTH
89°46'40" WEST, A DISTANCE OF 1759.68 FEET; THENCE, DEPARTING SAID NORTH LINE OF SECTION 28,
SOUTH 00°13'20" EAST, A DISTANCE OF 42.00 FEET TO A POINT OF INTERSECTION WITH THE SOUTH
RIGHT-OF-WAY LINE OF BOYNTON BEACH BOULEVARD (STATE ROAD 804) (N.E. 2ND AVENUE) AS
RECORDED IN ROAD PLAT BOOK 3, PAGE 188 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY,
FLORIDA AND THE POINT OF BEGINNING;
THENCE, ALONG SAID SOUTH RIGHT-OF-WAY LINE OF BOYNTON BEACH BOULEVARD (STATE ROAD 804)
(N.E. 2ND AVENUE), NORTH 89°46'40" EAST,A DISTANCE OF 415.60 FEET TO A POINT OF INTERSECTION
WITH THE WESTERLY RIGHT-OF-WAY LINE OF N.E. 1ST STREET (PINE STREET) AS RECORDED ON SAID
PLAT OF BOYNTON CENTER AND THE POINT OF CURVATURE OF A CURVE CONCAVE TO THE SOUTHWEST
HAVING A RADIUS OF 20.00 FEET; THENCE, ALONG SAID WESTERLY RIGHT-OF-WAY LINE
SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 88°50'35", A
DISTANCE OF 31.01 FEET TO THE POINT OF TANGENCY; THENCE, CONTINUING ALONG SAID WEST
RIGHT-OF-WAY LINE AND THE SOUTHERLY PROJECTION THEREOF, SOUTH 01°22'45" EAST, A DISTANCE
OF 308.34 FEET; THENCE, DEPARTING THE SOUTHERLY PROJECTION OF SAID WEST LINE RIGHT-OF-WAY
LINE, SOUTH 88°37'15" WEST,A DISTANCE OF 13.40 FEET;THENCE SOUTH 89°42'21"WEST,A DISTANCE
OF 75.23 FEET; THENCE NORTH 00°17'39" WEST, A DISTANCE OF 0.83 FEET; THENCE SOUTH 89°42'00"
WEST, A DISTANCE OF 298.29 FEET; THENCE SOUTH 00°00'00" WEST, A DISTANCE OF 21.21 FEET;
THENCE SOUTH 89°42'17" WEST, A DISTANCE OF 53.47 FEET; THENCE NORTH 00°26'46" WEST, A
DISTANCE OF 349.09 FEET TO THE POINT OF BEGINNING.
SAID LANDS LYING SECTION 28,TOWNSHIP 45 SOUTH, RANGE 43 EAST, PALM BEACH COUNTY, FLORIDA.
CONTAINING 144,564 SQUARE FEET OR 3.3187 ACRES, MORE OR LESS.
IEXHIBIT "C"
Parking Agreement
See attached.
I
I
Purchase and Sale Agreement- 1'7
Boynton Town Square North Parcel 1
p 40
PARKING LICENSE AGREEMENT
(BTS North)
THIS PARKING LICENSE AGREEMENT (the "Agreement") is entered into this i I
day of fii , 2010 , by and between JKM BTS North, LLC, a Florida limited liability
company("Owner"), and City of Boynton Beach("City").
WITNESSETH:
WHEREAS, Owner owns certain real property in Boynton Beach, Florida,together with all
rights, easements and appurtenances belonging or in any way pertaining thereto, and all
improvements thereon, including without limitation certain buildings located thereon, commonly
known as Boynton Beach Town Square Apartments North (the "Apartments") and Garage North
(the "Garage"), as more particularly depicted on the attached Exhibit "A" (collectively,
"Property");
WHEREAS, City desires to license from Owner the right to use certain portions of the
Garage consisting of one hundred one (101) parking spaces, which will be constructed in
accordance with applicable law and construction codes ("Spaces"), and certain other areas within,
adjacent to, or near the Garage (such other areas,the "Other Licensed Areas") (the Spaces and the
Other Licensed Areas are sometimes hereinafter referred to as "Facilities"), upon the terms and
conditions set forth herein; and
WHEREAS, Owner desires to license the use of the Facilities to City, upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of their mutual promises, covenants and intending
to be legally bound,the parties hereto agree as follows:
1. Facilities. Owner hereby licenses to City and City hereby licenses from Owner,
pursuant to the terms and conditions of this Agreement, the use of the Facilities, together with the
nonexclusive use, in common with others entitled thereto, of driveways and pathways across the
Property as designated by the Owner, for the limited purpose of accessing the Facilities.
2. Term and Commencement of Term. This Agreement shall be in full force and
effect from the date first written above. The term of the Agreement ("Term") shall commence on
the last to occur of the following("Commencement Date"):
(a) the date first written above; or
(b) the date a Certificate of Occupancy is delivered to Owner.
Unless sooner terminated pursuant to the terms of this Agreement, the Term shall continue
from the Commencement Date for a period of fifty(50)years and shall terminate at midnight on the
last day of the fiftieth(50th)License Year(as hereinafter defined) ("Expiration Date").
1
Perking License Agreement-
Boynton Town Square North
For purposes of this Agreement, the first "License Year" shall commence upon the
Commencement Date and end on the last day of the fourth(4th)full calendar quarter thereafter(e.g,
if the Commencement Date is February 15,2019,then the first License Year shall commence on the
Commencement Date and end on March 31, 2020); and each License Year thereafter shall
commence upon the first day after the end of the prior License Year, and shall end on the last day of
the fourth (4th) full calendar quarter thereafter (continuing the example above, the second License
Year would commence on April 1,2020, and end on March 31,2021).
3. License Fees and Expenses.
(a) Pursuant to the Development Agreement entered into between an affiliate of
Owner and City, City has provided consideration to Owner for the use of the Spaces for the Term
set forth herein.
(b) In addition to such consideration, City shall pay its proportionate share of all
expenses relating to the Common Areas (as defined in Section 4) and to the Operating Expenses(as
defined in Section 4)related to the maintenance and operation of the Garage.
4. Expenses.
(a) Definitions. For purposes of this Agreement,the following terms shall have
the meanings set forth below:
(i) "City's Proportionate Share of Common Area Expenses" shall mean
ten percent (0%) of the Common Area Expenses; provided, however, that 100% of any Common
Area Expenses with respect to the Other Licensed Areas shall be allocated to City.
(ii) "City's Proportionate Share of Operating Expenses" shall mean ten
percent(10%)of the Operating Expenses;provided,however,that 100%of any Operating Expenses
with respect to the Other Licensed Areas shall be allocated to City.
(iii) "Common Areas" shall mean all areas located within the Garage that
are not dedicated to the exclusive use or possession of any person.
(iv) "Common Area Expenses" shall include, without limitation, all taxes
(including, without limitation, real estate taxes), assessments, insurance costs, common area
cleaning, landscaping, electricity, water, sewer, other utility services, garbage and trash removal,
pest control, management fees, operating costs, administrative costs, service contracts, repair and
replacement costs, and all other charges, costs and expenses, ordinary, foreseen or unforeseen,
computed on the accrual basis,which pertain to the Common Areas and are the obligation of Owner
to pay under the Development Agreement or otherwise.
(v) "Operating Expenses" shall mean all costs and expenses which
Owner incurs for operating, maintaining and repairing the Garage, the parking areas, and other
common areas and appurtenances relating to the Garage or any part thereof. Operating Expenses
shall include, without limitation, the following with respect to the Garage and Owner and any
manager or operator engaged to manage the Garage and others engaged in the operation,
maintenance and repair thereof: (a) management fees, including, to the extent permitted under the
(00222427.1306-9905263) 2
Parking License Agreement-
Boynton Town Square North
applicable management contract, employee compensation, benefits and taxes; (b) all charges for
water, sewer, electricity and other utilities and services which are not separately metered, and
rubbish removal, and taxes thereon; (c) the cost of all supplies, tools, materials and equipment; (d)
the cost of repairs, maintenance, alterations, replacements and painting; the cost of cleaning,
maintenance and landscaping of public areas and window cleaning; (e) the cost of capital
improvements to any portion of the Garage; (f) legal, accounting and other professional fees and
expenses; (g) administrative costs; and any and all other expenses; (h) all taxes and assessments
(including, without limitation, real estate taxes); (i) insurance costs; and (j) all other costs
customarily treated as operating expenses or taxes in buildings of this nature.
(vi) Rights. City acknowledges that Owner shall have the right to install
facilities within the Common Areas for the benefit of the Property and to perform services for the
benefit of the Property, of Owner, of Owner's tenants, and of the licensees, employees, customers,
visitors and invitees of the Property, and to pass through to the City its proportionate share of the
costs of operating, maintaining and insuring such facilities and performing such services, which
may include, without limitation, additional security, trash compaction and disposal, litter control,
and landscape maintenance of the Property. Owner's costs of operating, maintaining and insuring
any such facilities and providing any such services for the benefit of the Property as a whole,as well
as all costs passed through to Owner by the City or incurred directly by Owner for operating,
maintaining and insuring the Common Areas, as well as all other costs incurred by Owner in
connection with administering, operating, maintaining and insuring the Property, shall be included
in Common Area Expenses for purposes hereof. The Common Area Expenses may include a
market rate management fee to the manager of the Property, not to exceed six percent (6%) of the
Common Area Expenses and Operating Expenses. Notwithstanding anything to the contrary in this
License, to the extent that any material improvements to the Garage contemplated by Owner
directly affect the Facilities or City's right to the use of the Facilities, as reasonably determined by
Owner, Owner shall be required to obtain the prior written consent of City, which consent shall not
be unreasonably withheld by City, and City shall be responsible for City's Proportionate Share of
Common Area Expenses and City's Proportionate Share of Operating Expenses with respect to such
improvements. Furthermore to the extent that any improvements to the Garage only:
(i) Affect the Facilities or City's right to the use of the Facilities under
this License, City shall be solely responsible for all costs of construction, installation, maintenance,
repair,and replacement of such improvements;and
(ii) Affect portions of the Property other than the Facilities or rights other
than City's right to the use of the Facilities under this License, then Owner shall be solely
responsible for all costs of construction, installation, maintenance, repair, and replacement of such
improvements.
(b) Payment of City's Proportionate Share. Commencing as of the Effective
Date, City agrees to pay to Owner, in accordance with the methodology set forth in Section 4(d),the
following(prorated for any partial License Year at the beginning or end of the Term):
(i) City's Proportionate Share of Common Area Expenses; and
(ii) City's Proportionate Share of Operating Expenses.
(00222427.1306-9905263) 3
Parking License Agreement-
Boynton Town Square North
(c) Estimate. For each License Year during the Term, Owner shall supply City
with an estimate of the City's Proportionate Share of Common Area Expenses and City's
Proportionate Share of Operating Expenses ("Owner's Estimated Expense Computation") for such
License Year. City shall pay to Owner on the 1s` day of each month during the License Year one-
twelfth (1/12) of Owner's Estimated Expense Computation. For each License Year during the
Term, Owner shall notify City of the actual annualized Common Area Expenses and the Operating
Expenses for the License Year just concluded ("Owner's Actual Expense Computation"). Owner's
Actual Expense Computation shall be prorated for any fraction of a License Year in which the Term
begins or ends. If the Owner's Estimated Expense Computation paid by City to Owner with regard
to any License Year is less than the Owner's Actual Expense Computation with regard to the same
License Year, the amount of such shortfall shall be taken into account in calculating the Owner's
Estimated Expense Computation for the following License Year (and shall thereby increase the
following License Year's estimated payments by the amount of such shortfall). If the portion of the
Owner's Estimated Expense Computation paid by City to Owner with regard to any License Year
exceeds the Owner's Actual Expense Computation with regard to the same License Year,the excess
shall be taken into account in calculating the Owner's Estimated Expense Computation for the
following License Year (and shall thereby decrease the following License Year's estimated
payments by the amount of such excess). Owner agrees to coordinate with City to adjust timing of
and dates for the calculations set forth in this Section in order to coincide with City's fiscal year.
(d) Right to Audit. City shall have the right, at its sole cost and expense, within
sixty(60)days from receipt of Owner's Actual Expense Computation,to audit or have its appointed
accountant audit Owner's records related to Owner's Actual Expense Computation, provided any
such audit may not occur more frequently than once during each License Year occurring during the
term of the License. City must raise any objection to any item contained within the Owner's Actual
Expense Computation by providing written notice of such objection to Owner within thirty (30)
days after its completion of the audit of Owner's records. If Owner made a clerical error and City
has paid in excess of its Proportionate Share of Common Area Expenses or Proportionate Share of
Operating Expenses, then Owner will immediately adjust the Estimated Expense Computation to
take into account the amount of the overpayment.
(e) Changes to Common Areas. City acknowledges that (subject to applicable
law) the Owner has the right to: change or modify and add to or subtract from the sizes, locations,
shapes and arrangements of parking areas, entrances, exits, parking aisle alignments, lighting,
landscaping, and other Common Areas and Common Area improvements and facilities located
within the Property; establish and, from time to time, change the level or grade of parking surfaces;
enforce parking charges (by meters or otherwise)with respect to portions of the Property other than
the Spaces at any time and/or with respect to non-City use of the Spaces during Non-Exclusive Use
Hours; and do and perform such other acts in and to Common Areas as Owner,in its sole discretion,
deems advisable. Notwithstanding the foregoing, except as required by applicable law, Owner will
not modify or rearrange the Spaces without the prior written consent of City, which consent shall
not be unreasonably withheld,conditioned,or delayed.
1115. Late Charge and Default Interest. Any payment owed by City not received
within thirty (30) calendar days of the date due shall bear an administrative late charge of Twenty-
Five and 00/100 Dollars ($25.00) and shall bear interest at the lesser of(i) eighteen percent (18%)
per annum, and(ii)the highest rate allowed by applicable law. If any check given to Owner for any
(00222427 1 306-9905263) 4
Parking License Agreement-
Boynton Town Square North
payment under this Agreement is dishonored, for any reason whatsoever not attributable to Owner,
in addition to all other remedies available to Owner, at Owner's option, all future payments from
City shall be made by Cashier's Check drawn on a bank located in the Palm Beach County or by
wire transfer to Owner's account.
6. Payment of Utilities. Subject to reimbursement as part of the Common Area
Expenses or Operating Expenses, Owner shall provide and pay for any electrical or other utility
services required to operate the Facilities. Owner makes no warranty or representation as to the
quality or capacity of utility service to the Facilities.
7. Use of Facilities.
(a) City shall use the Spaces solely for the parking of motor vehicles and for no
other purpose, and the remainder of the Facilities for their respective intended purposes and for no
other. City shall have the non-exclusive use of the Other Licensed Areas, twenty-four(24) hours a
day, seven(7)days a week. City shall be permitted the exclusive use of the Spaces twenty-four(24)
hours a day, seven(7)days a week(the"Exclusive Use Hours").
(b) City accepts the Facilities in their "as is" condition, with all faults, and
without representation or warranty of any kind as to suitability of the Facilities for City's use.
(c) City acknowledges that all parking in the Garage is currently on a self-
parking basis. City covenants and agrees that Owner has no obligation to monitor unauthorized use
of the Spaces, and that Owner shall have no obligation, liability, or responsibility to City should the
Spaces be occupied at any time or times by vehicles not so authorized or directed by Owner.
(d) During the Term of this Agreement, City, at its sole expense, shall have the
right to install or otherwise designate (via paint or other approved format) and maintain appropriate
signage of the Spaces indicating that such Spaces are for the sole use of City and that violators will
be subject to towing at the violators' expense. Any signage that City intends to be installed shall
first be submitted to Owner for its review and approval. City, at its sole cost and expense, shall
prior to installation of signage, obtain all required governmental, quasi-governmental, and other
permits and approvals.
(e) During the Term of this Agreement, City, at its sole expense, shall have the
right to install and maintain metered parking equipment and such other equipment and facilities as
are necessary in connection with allowing the public use of all or any portion of the Spaces in the
ordinary course, whether with or without charge, on an hourly or daily basis. Any equipment that
City intends to be installed shall first be submitted to Owner for its review and approval, which
approval shall not be unreasonably withheld provided that such installation will comply with
applicable law and will not materially impact the structural integrity of the Garage, any electrical or
other systems in the Garage, or otherwise have any material adverse impact upon the Garage or its
use and operation. City, at its sole cost and expense, shall, prior to installation of such equipment,
obtain all required governmental, quasi-governmental, and other permits and approvals. City shall
be responsible for all costs of installation, maintenance, and repair of such equipment and facilities,
and shall coordinate same with Owner and any third-party manager of the Garage at no expense to
Owner or such third-party manager; City shall be entitled to all revenue resulting from such use of
(00222427.1306-9905263) 5
Parking License Agreement-
Boynton Town Square North
the Spaces, and such amounts shall either be collected by or paid to City, or if collected by Owner
or any third-party manager, shall be paid to City or applied to reduce City's obligations with respect
to City's Proportionate Share of Common Area Expenses and City's Proportionate Share of
Operating Expenses. If City should elect to have metered parking equipment installed for its
facilities during the initial construction or at any time thereafter, City shall pay for and/or reimburse
Owner for the total construction cost for the additional metered parking equipment.
(f) City, at its sole expense, may also contract with a duly licensed towing
company to service the Spaces during the Exclusive Use Hours and to enforce the signage described
in Section 6(d), above. If City elects to contract with such a towing company, City shall promptly
furnish Owner with a copy of its written contract with the towing company, and shall require the
towing company to furnish insurance in connection with its services in a form and in amounts
reasonably required by the Owner, and such insurance shall name the Owner as an additional
insured.
(g) City covenants that,during the Term,no part of the Facilities shall be used in
any manner whatsoever for any purposes other than as set forth in Section 6(a) or in violation of the
laws, ordinances, regulations, codes or orders of the United States, the State of Florida, county,
and/or city or other applicable governmental subdivisions where the Facilities are located. City
shall comply with all such laws, ordinances,regulations, codes and orders now in effect or hereafter
enacted or passed during the Term insofar as the Facilities and any signs of the City are concerned
(collectively, "Legal Requirements").
8. City's Insurance. City has advised Owner that City has elected to self-insure
against certain risks, including certain risks related to City's rights under this License and to City's
occupation or use of the Facilities. City shall keep Owner reasonably apprised of any material
changes to its self-insurance program(e.g., any current action or planned actions to make significant
increases or decreases in the reserves for such purpose or to modify the source or method of
replenishment of such reserves). Notwithstanding the foregoing, to the extent that City obtains any
insurance policy from a private insurer (rather than a governmental insurance pooling arrangement
or other self-insurance method), City, at its sole cost, shall maintain such coverages with admitted
insurers authorized to do business in the State of Florida and which are rated "A-/VIII" or
equivalent in Best's Key Rating Guide, or any successor thereto (or if there is none, a rating
organization having a national reputation); City shall provide to Owner a copy of each such policy
or a certificate of insurance prior to the Commencement Date. If permitted by the insurer or the
teens of City's insurance pooling arrangement or other self-insurance method, any policy of
insurance maintained by City in connection with the Property shall name Owner as an additional
insured, and if required by any mortgagee, shall name such mortgagee as additional insured.
Furthermore, any policy of insurance maintained by City in connection with the Property shall
provide that written notice shall be given to all insured parties, additional insured parties, and
holders of certificates of insurance at least thirty (30) days prior to suspension, cancellation,
termination, modification, non-renewal or lapse or material change of coverage. Subject to
applicable law, in no event shall the limits of any insurance policies(or City's election to self-insure
as to any risks in connection with the Property)limit the liability of City under this Agreement.
9. Waiver of Claims. Except for claims arising from Owner's intentional or grossly
negligent acts that are not covered by City's insurance required by this Agreement, subject to
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applicable law,City or any party claiming through City(collectively, "City Parties")hereby waives
all claims against Owner and Owner's members, and each of their respective members, managers,
officers, agents, employees, and independent contractors (collectively, "Owner Parties") for injury
or death to persons, or damage to property or to any other interest of any of the City Parties,
resulting from: (i) any occurrence in or upon the Facilities or Property; (ii) wind, rain, hurricane,
flooding, fire, explosion, hail, or other casualty or act of God; (iii) the Facilities or the Property
being defective, out of repair, or failing; and (iv) vandalism, assault, battery, malicious mischief,
theft or other acts or omissions of any third parties.
10. Indemnification by City. Subject to applicable law, City shall indemnify, defend,
and hold harmless Owner and Owner's members, and each of their respective members, managers,
employees, independent contractors, attorneys, and agents, and each of their respective heirs,
representatives, successors and assigns, from and against any and all claims,expenses, damages and
liabilities of every kind and nature whatsoever including, without limitation, reasonable attorneys'
fees, court costs, litigation expenses, and penalties, arising out of, caused by, or related to the use of
the Facilities by City and its employees, independent contractors, invitees, or agents, and the
conduct and/or actions of any of City's employees, independent contractors, invitees, guests, or
agents relating thereto. This Section 10 shall survive the termination of the License.
11. Indemnification by Owner. Owner (and Owner's heirs, successors, and assigns)
shall indemnify, defend, and hold harmless City and City's managers, employees, independent
contractors, attorneys, and agents, and each of their respective heirs, representatives, successors and
assigns, from and against any and all claims, expenses, damages and liabilities of every kind and
nature whatsoever including, without limitation, reasonable attorneys' fees, court costs, litigation
expenses, and penalties, arising out of, caused by, or related to any acts of gross negligence or
intentional misconduct by Owner or any of its employees, independent contractors, invitees, guests,
or agents. This Section 11 shall survive the termination of the License.
12. Events of Default by City. Upon the happening of one or more of the following
events("Event of Default"), Owner shall have any and all rights and remedies hereinafter set forth:
(a) if City shall fail to pay any sum due from City to Owner within five (5)
calendar days after City receives written notice of the failure to pay after the payment is due;
(b) if City allows any person or entity other than the City, or its employees,
agents, guests, and invitees to use the Facilities or if City attempts to transfer its rights under this
Agreement without Owner's prior written consent including any attempt to assign this Agreement
or sublicense all or any portion of the Facilities without Owner's prior written consent;
(c) if City violates any other term, condition, or covenant in this Agreement
which is to be performed by City, and fails to remedy the same within thirty (30) days after written
notice of the default is given by Owner to City. Such written notice shall give reasonable detail as
to the nature and extent of the default and identify the Agreement provisions containing the
obligations. If the default cannot reasonably be cured within thirty (30) days, City shall not be in
default of this Agreement if City, during said thirty (30) day period, commences to cure the default
and diligently continues in good faith to cure the default until completion;or
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(d) if an execution or other legal process is levied upon the interest of City in
this Agreement,and the same is not satisfied or dismissed within ten(10)days from such levy.
13. Remedies of Owner.
(a) If any monetary Event of Default by City occurs and continue for a period in
excess of three (3) months, then, in addition to any other remedies of Owner, Owner shall have the
right to collect all amounts otherwise payable to City from the public use of the Spaces as set forth
in Section 7(e), and to continue collection of such amounts until such Event of Default has been
cured.
(b) If any monetary Event of Default by City occurs and continue for a period in
excess of twelve (12) months, then, in addition to any other remedies of Owner, Owner shall have
the right to seek, pursuant to the terms of Section 28(j), to revoke this License, or to otherwise
terminate City's rights under this License if it is determined pursuant to Section 28(j)that there is no
other remedy available to Owner which will provide reasonable relief to Owner (e.g., if City is
unable to satisfy its financial obligations hereunder and will remain unable to do so for an
unreasonable period of time).
(c) If any Event of Default by City occurs, Owner shall have the right, at its
option, to commence action immediately thereupon and recover judgment for all sums due under
the terms and conditions of Section 28(j)of this Agreement.
(d) If any Event of Default by City occurs, in addition to or instead of the
remedies described in this Agreement, Owner may exercise any right or remedy now or hereafter
existing at law or in equity or by statute, but shall not exercise any right to terminate City's right to
use the Spaces, to revoke this License, or to otherwise terminate City's rights under this License
unless it is determined pursuant to Section 28(j) that there is no other remedy available to Owner
which will provide reasonable relief to Owner (e.g., if City is unable to satisfy its financial
obligations hereunder and will remain unable to do so for an unreasonable period of time).
(e) Subject to any alternative or contrary ruling pursuant to Section 28(j), if any
Event of Default by City occurs, Owner, in addition to other rights and remedies it may have, shall
have the right to remove all personal property, including signage, from the Facilities and any
property removed may be stored in any public warehouse or elsewhere at the cost of, and for the
account of City, and Owner shall not be responsible for the care or safekeeping thereof whether in
transport, storage or otherwise, and City hereby waives any and all claims against Owner for loss,
destruction and/or damage or injury which may be occasioned by any of the aforesaid acts.
(f) Any amounts which may be due Owner, whether by acceleration or
otherwise, shall include any license fees, costs, expenses, or any other amounts payable pursuant to
this Agreement.
(g) If City fails to maintain any insurance required by law, Owner shall have the
right to force-place such insurance with respect to the City's rights under this License or to add City
as an additional insured under a policy of Owner's as to City's rights under this License, and Owner
shall have the right to charge City for any amounts required to purchase such insurance (or to be
reimbursed for such amounts).
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(h) It is expressly agreed that the forbearance on the part of Owner in the
institution of any suit or entry of judgment for any amounts due to Owner under this Agreement
shall in no way serve as a defense against nor prejudice a subsequent action for any such amounts.
City hereby expressly waives City's right to claim a merger or waiver of such subsequent action in
any previous suit or in the judgment entered therein.
(i) Any and all rights, remedies and options given in this Agreement to Owner
shall be cumulative and in addition to and without waiver of, or in derogation of, any right or
remedy under this Agreement or provided under any law now or hereafter in effect.
(j) No cure periods shall apply to any emergencies or to failure to maintain and
furnish insurance.
14. Event of Default by Owner. Owner shall be in default of this Agreement ("Owner
Event of Default") if it fails to perform any provision of this Agreement that it is obligated to
perform, and if the failure to perform is not cured within thirty (30) days of written notice of the
default from City to Owner. Such written notice shall give reasonable detail as to the nature and
extent of the default and identify the Agreement provisions containing the obligations. If the default
cannot reasonably be cured within thirty(30)days,Owner shall not be in default of this Agreement if
Owner, during such thirty(30)day period,commences to cure the default and diligently continues in
good faith to cure the default until completion.
15. Remedies of City. If Owner shall have failed to cure any Owner Event of Default,
after applicable written notice and opportunity to cure, City may terminate this Agreement and may
exercise any right or remedy now or hereafter existing at law or in equity or by statute.
16. Non-Waiver. Any failure of either party to insist upon strict performance of any
part or provision of the Agreement shall not be deemed a waiver, and shall not waive or diminish
such party's right thereafter to demand strict compliance therewith or any other provision and shall
not prejudice or affect such party's rights in event of a subsequent default. Except as otherwise
provided in this Agreement,each party's rights and remedies under this Agreement are cumulative.
17. No Assignment or Sublicense/Change in Ownership.
(a) City may not assign this Agreement in whole or in part, nor sublicense all or
any portion of the Facilities, without the prior written consent of Owner in each instance, which
consent shall be at Owner's sole discretion; provided, however,that the foregoing shall not prohibit
the City from allowing public use of all or any portion of the Spaces in the ordinary course,whether
with or without charge, on an hourly or daily basis. The consent by Owner to any assignment or
sublicense shall not constitute a waiver of the necessity for such consent to any subsequent
assignment or sublicense. No assignment, sublicense, occupancy or collection shall be deemed
acceptance of the assignee, sub-licensee, or occupant, or as a release of City from the further
performance by City of the covenants on the part of City herein contained. This prohibition against
assignment or sublicense without Owner's prior written consent shall be construed to include
prohibition against any assignment or sublicense by operation of law, legal process, receivership,
bankruptcy or otherwise, whether voluntary or involuntary and a prohibition against any
encumbrance of all and any part of City's interest in this Agreement. Despite Owner's consent to
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an assignment or sublicense, City shall remain fully liable on this Agreement and shall not be
released from performing any of the terms, covenants and conditions hereof or any license fees or
other sums to be paid hereunder. Any attempted assignment or sublicense without Owner's prior
written consent shall be void and shall constitute an Event of Default.
(b) City acknowledges and agrees that, subject to the terms of this Agreement,
any and all right and interest of Owner in and to the Facilities and the Property, and all right and
interest of Owner in this Agreement, may be conveyed, assigned or encumbered at the sole
discretion of Owner at any time.
(c) If Owner, in its sole and absolute discretion, consents to an assignment or
sublicense of all or any portion of the Facilities, the form of such documents shall be as acceptable
to Owner in its sole and absolute discretion.
(d) If City assigns or sublicenses all of any portion of the Facilities, City shall
pay to Owner an additional license fee, as and when received by City, in an amount equal to all
sums paid to City or its agent by or on behalf of such assignee or sublicensee under the assignment
or sublicense.
18. Subordination and Attornment.
(a) City, and its successors and assigns hereby subordinate their rights hereunder
to the lien of any ground or underlying leases, any mortgage or mortgages, or the lien resulting from
any other method of financing or refinancing, now or hereafter in force against the Facilities and the
Property, and to all advances made or hereafter to be made upon the security thereof. This Section
18(a) shall be self-operative and no further instrument of subordination shall be required, but City
agrees upon request of Owner, from time to time, to promptly execute and deliver all documents
evidencing such subordination, and failure to do so shall constitute a default under this Agreement.
(b) If any proceedings are brought for the foreclosure of, or if exercise of the
power of sale occurs under, any mortgage covering the Facilities and/or the Property; or if a deed is
given in lieu of foreclosure of any such mortgage, City shall attorn to the purchaser, mortgagee, or
grantee in lieu of foreclosure, upon any such foreclosure or sale or transfer in lieu of foreclosure,
and recognize such purchaser, mortgagee, or grantee in lieu of foreclosure, as Owner under this
Agreement.
19. Estoppel. Owner and City agree that each will, at any time and from time to time,
within thirty (30) days following written notice by the other party hereto specifying that it is given
under this Section 19, execute, acknowledge and deliver to the party who gave such notice, or its
designate, a statement in writing certifying this Agreement is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and effect and stating the
modifications), and the date to which any payments due hereunder from City have been paid in
advance, if any, and stating whether or not there are defenses or offsets claimed by the maker of the
certificate and whether or not to the best of knowledge of the signer of such certificate the other party
is in default in performance of any covenant, agreement or condition contained in this Agreement,
and if so, specifying each such default of which the maker may have knowledge. The failure of
either party to execute, acknowledge and deliver to the other a statement in accordance with the
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provisions of this Section 19 within such thirty (30) day period shall constitute an acknowledgment,
by the party given such notice, which may be relied on by any person holding or proposing to
acquire an interest in the Property or any part thereof or the Facilities or this Agreement from or
through the other party, that this Agreement is unmodified and in full force and effect and that such
amounts have been duly and fully paid to and including the respective due dates immediately
preceding the date of such notice and shall constitute, as to any person entitled as aforesaid to rely
upon such statements, waiver of any defaults which may exist prior to the date of such notice;
provided, however that nothing contained in the provisions of this Section 19 shall constitute waiver
by Owner of any default in payment of any amounts owed as of the date of such notice and, unless
expressly consented to in writing by Owner,and City shall still remain liable for the same.
20. Right of Entry. Owner and Owner's agents may enter the Facilities at all
reasonable times to examine the same, and to show them to prospective purchasers, mortgagees, or
other interested parties, and to make such repairs, alterations, improvements or additions as Owner
may deem necessary or desirable, and Owner shall be allowed to take all material into and upon the
Facilities that may be required therefor without the same constituting a termination of or
infringement upon City's rights in whole or in part, and the amounts payable to Owner shall in no
way abate while the repairs, alterations, improvements, or additions are being made. If City shall
not be present to open and permit entry into the Facilities, at any time,when for any reason an entry
will be necessary or permissible, Owner or Owner's agents may enter the same without in any
manner affecting the obligations and covenants of this Agreement.
21. Right of First Offer.
(a) Offer. If Owner decides to sell the Garage separately from the Apartments,
then prior to putting the Garage on the market, Owner shall offer (an "Offer") to City the right to
purchase the Garage at a purchase price consistent with the purchase price Owner has at such time
elected to offer to third parties and pursuant to material business terms Owner has then elected in its
sole discretion to disclose to third parties (the "Terms"). Owner shall deliver the terms of such
Offer in writing to City(an"Offer Notice"), which shall include no contingency for financing and a
closing to occur no later than 60 days after delivery of the Offer(the"Offer Closing Period").
(b) Offer Period. If City and Owner do not enter into a written agreement for
the sale of the Garage (an "Offer Purchase Agreement") within sixty (60) days of delivery of the
Offer (the "Offer Period"), then such Offer shall be deemed rejected by City. Any Offer Purchase
Agreement shall contain as a condition to the closing thereunder the execution of a parking license
for the benefit of the owner of the Apartments, which license shall be assignable to any subsequent
owner of the Apartments.
(c) No Offer Closing. If City does not close on the purchase of the Garage
pursuant to an Offer Purchase Contract (other than as a result of a default by Owner) during the
applicable Offer Closing Period, then for purposes of this Section 21, City shall be deemed to have
rejected the Offer as of the expiration of the Offer Closing Period, and Owner shall have the same
rights with respect thereto as if City had rejected the Offer.
(d) Rights after Rejection of Offer. Upon the earliest to occur of the following
events: (x) Owner receives notice from City of its rejection of an Offer Notice, (y) the termination
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of a particular Offer Period without Owner and City having entered into an Offer Purchase
Agreement, and (z) the expiration of an Offer Closing Period during which City failed to close on
the purchase of the Garage pursuant to an Offer Purchase Contract(other than as a result of a default
by Owner) (such event, a "Rejection" and such earliest date, the "Rejection Date"); Owner shall
thereafter, subject to the following terms, be permitted to market the Garage for sale at such times
and upon such terms as Owner shall determine in its sole and absolute discretion without City
having any further rights thereto:
(i) Owner shall enter into a written purchase and sale agreement with a
third party within one(1)year after the Rejection Date(the"Third-Party Purchase Contract");
(ii) The Third-Party Purchase Contract shall provide for a purchase price
equal to at least ninety percent(90%)of the Offer Price offered to City; and
(iii) The Third-Party Purchase Contract shall provide for a closing date
no later than 90 days after the effective date of the Third-Party Purchase Contract.
(e) No Sale following Rejection. If, following a Rejection, Owner does not sell
the Garage pursuant to a Third-Party Purchase Contract in accordance with the foregoing terms,
then prior to any future marketing of the Garage, Owner shall be required to issue a new Offer to
City and to proceed with the process set forth in this Section 21.
22. Hazardous Materials and Environmental Laws; Indemnity.
(a) City shall not cause or permit the Facilities to be used for the generation,
handling, storage, transportation, disposal or release of any Hazardous Materials except as
specifically exempted or permitted under applicable Environmental Laws, and City shall not cause
or permit the Facilities or any activities conducted thereon to be in violation of any current and/or
future applicable Environmental Laws. City agrees to indemnify, defend and hold Owner (and
Owner's members,principals, affiliates,directors,officers,employees,mortgagees, ground Owners,
heirs, successors and assigns, as applicable) harmless from and against any and all claims, losses,
damages (including all foreseeable and unforeseeable consequential and incidental damages),
liabilities, fines, penalties, charges, interest, administrative or judicial proceedings and orders,
judgments, remedial action, requirements, enforcement actions of any kind, and all costs and
expenses incurred in connection therewith (including, without limitation, attorneys= fees and
expenses at both trial and appellate levels), directly or indirectly resulting in whole or in part from
the violation of any Environmental Laws applicable to the Facilities or any activity conducted
thereon, and from any use, generation, handling, storage, transportation, disposal or release of
Hazardous Materials at or in connection with the Facilities and City's use thereof, or any
contamination, detoxification, closure, cleanup or other remedial measure required under any
Environmental Laws. This indemnity shall survive the full payment of all license fees and other
charges under this Agreement and the expiration or earlier termination of this Agreement, and shall
inure to the benefit of Owner and Owner's heirs,personal representatives, successors and assigns.
As used herein, "Hazardous Materials" means: substances defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous materials", "toxic
substances", "containment=s", or other pollution under applicable federal, state, commonwealth,
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county, municipal, or local laws, ordinances, codes, rules, regulations or orders now or hereafter in
effect.
As used herein "Environmental Laws" means: any applicable current federal,
commonwealth, state, county, municipal, or local laws, ordinances, rules, codes, regulations, or
orders pertaining to Hazardous Materials or industrial hygiene or environmental conditions.
23. Time of the Essence. Time is of the essence regarding the performance of every
provision of this Agreement.
24. Limitation of Liability of Owner. Notwithstanding any provision to the contrary
contained in this Agreement, City shall look solely to the estate and property of Owner in and to the
Garage in the event of any claim against Owner arising out of or in connection with this Agreement,
the relationship of Owner and City, or City's use of the Facilities, and City agrees that the liability
of Owner arising out of or in connection with this Agreement, the relationship of Owner and City,
or City's use of the Facilities, shall be limited to such estate and property of Owner in and to the
Garage. No properties or assets of Owner other than the estate and property of Owner in and to the
Garage, and no property owned by any affiliate of or member of Owner shall be subject to levy,
execution or other enforcement procedures for the satisfaction of any judgment (or other judicial
process) or for the satisfaction of any other remedy of City arising out of or in connection with this
Agreement,the relationship of Owner and City or City's use of the Facilities.
25. Waiver of Jury Trial. OWNER AND CITY KNOWINGLY, INTENTIONALLY,
AND VOLUNTARILY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM INVOLVING ANY MATTER WHATSOEVER ARISING OUT OF OR IN
ANY WAY CONNECTED WITH (I) THIS AGREEMENT, (II) THE RELATIONSHIP OF
OWNER AND CITY, (III) CITY'S USE OF FACILITIES AND THE GARAGE, OR (IV) THE
RIGHT TO ANY STATUTORY RELIEF OR REMEDY. CITY FURTHER WAIVES THE
RIGHT TO INTERPOSE ANY PERMISSIVE COUNTERCLAIM OF ANY NATURE IN ANY
ACTION OR PROCEEDING COMMENCED BY OWNER TO TERMINATE THIS
AGREEMENT, TERMINATE CITY'S USE OF THE FACILITIES, OR OBTAIN POSSESSION
OF THE FACILITIES. THE WAIVERS SET FORTH IN THIS SECTION ARE MADE
KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY BY THE PAR TIES. THIS
PROVISION IS A MATERIAL INDUCEMENT TO BOTH PARTIES IN AGREEING TO
ENTER INTO THIS AGREEMENT.
26. Notices. All notices, demands and other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given:
(a) when personally delivered; or
(b) the next Business Day after being sent by reputable overnight express
courier(charges prepaid); or
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I (c) when received if by facsimile or e-mail transmission, so long as notice is
concurrently provided to the parties to this Agreement by a method set forth in Section 26(a) or
Section 26(b).
Unless another address is specified in writing, notices, demands and communications to the
parties shall be sent to the addresses indicated below:
If to City: City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach,Florida 33435
Attn: Lori LaVerriere, City Manager
With a copy to: Goren, Cherof, Doody&Ezrol,P.A.
Attn: James Cherof,Esq.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale,Florida 33308
If to Owner: JKM BTS North,LLC
2300 Glades Road
Suite 202 East
Boca Raton,Florida 33431
Attention:.James S. Gielda, John K. Markey and Adam P. Freedman
With a copy to:
Stephen J. Grave de Peralta, Esq.
5030 Champion Blvd., Suite G11-281
Boca Raton,Florida 33496
If any party refuses to accept any attempted delivery of notice in any of the foregoing manners,then
notice shall be deemed to have been delivered upon such refusal. Any party hereto shall have the
right to change its address for notice if written notice is given to all other parties in accordance with
the notice provisions hereof.
27. Improvements by City.
(a) City Work. City Work shall mean any work approved by Owner to be
constructed by City on the Property,together with all fixtures and equipment installed by the City.
(b) Plans. Plans shall mean the construction plans and specifications including,
but not limited to, architectural plans and elevations, structural plans, landscape plans, and all other
plans and specifications for the City Work.
(c) Submission and Approval of Plans. City shall ensure that the Plans for the
City's Work and material changes to the Plans for the City's Work shall be submitted for the written
approval of Owner prior to implementation, which approval Owner shall have the right to approve
or reject in its sole and absolute discretion. Any review and/or approval by Owner or its affiliates of
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the Plans or otherwise relating to the City Work shall be solely for the purposes set out in this
License and shall not render Owner and/or its affiliates responsible or liable to City or to any other
person for the design of the improvements or any associated facilities constituting City Work or for
any delay relating thereto and may not be relied upon by City or by any other person.
(d) Engagement and Responsibility. City shall engage, at its own cost and
expense, a general contractor and architect for the City's Work, each of whose engagement shall be
subject to the prior written approval of Owner, which approval shall not be unreasonably withheld.
City and or City's contractors shall construct the City's Work in accordance with the Plans
approved by Owner and the terms and provision of this License. City shall be responsible, at City's
sole cost and expense, for any and all City Work.
(e) Compliance and Construction Standards. City shall, at its own cost and
expense, comply with all government requirements and obtain and comply with all necessary
government approvals applicable to the City's Work. City shall promptly provide to Owner copies
of all such government approvals or rejections, refusals or conditions placed on such government
approvals, together with any other relevant information relating to the government approvals that
Owner may reasonably request. All construction work done by City within the Property shall be
performed in a good and workmanlike manner, in compliance with all applicable laws (hereinafter
defined), and in such manner as to cause a minimum of interference with other construction in
progress(if any)and with the operation of the Property.
(f) Right to Inspect. Owner shall have the right, at all reasonable times after
giving reasonable prior notice to City,to access and inspect any part of the City Work.
(g) Liens. Nothing contained in this License shall be deemed or construed in
any way as constituting the consent or request of Owner, express or implied, to any contractor,
subcontractor, laborer, materialman or vendor for the performance of any labor or services for the
alteration, addition, repair, or demolition of or to the Property or any part thereof. All persons are
hereby put upon notice that City shall never, under any circumstances,have the power to subject the
interest of the Owner in the Property to any mechanic's liens or materialmen's liens or any liens in
connection with material or labor furnished to the Premises,including any lien for architects' fees or
engineers' fees: and all persons dealing with City are hereby put upon notice that they must look
solely to the City and not to Owner. City shall strictly comply with the Construction Lien Law of
the State of Florida as set forth in Florida Statutes Section 713, including, but not limited to, giving
written notice to all persons performing services or furnishing materials on its behalf of the terms
and conditions of this Section 27. In the event that a mechanic's claim of lien is filed against the
Property or any of Owner's interest therein in connection with any work performed by or on behalf
of City, City shall satisfy such claim or shall transfer same to security, within twenty(20) days from
City's receipt of notice of such filing. In the event that City fails to satisfy or transfer such claim
within said twenty (20) day period, Owner may do so and thereafter charge City for all costs
incurred by Owner in connection with satisfaction or transfer of such claim, including attorney's
fees thereon. Further, subject to applicable law, City agrees to defend, indemnify and save Owner
harmless from and against any damage or loss incurred by Owner as a result of any such mechanic's
claim of lien. If so requested by Owner, City shall execute a short form or memorandum of this
License, which may, in Owner's discretion, be recorded in the Public Records for the purpose of
protecting Owner's estate from mechanics' claims of lien, as provided in Florida Statutes Section
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713.10. Owner has the right to record the memorandum without execution by City in the event City
fails to execute the memorandum within seven(7)days of request.
(h) Indemnification. Subject to applicable law, City, on behalf of itself and on
behalf of future visitors,trespassers, licensees,invitees, guests or persons performing work or using,
visiting or occupying the Property,hereby agrees and covenants to indemnify, defend(with counsel
selected by City and approved by Owner) and save harmless the Owner and City from and against
any and all claims, actions, damages, liabilities, losses, costs and expenses, including without
limitation, attorneys' fees (collectively, "Losses") to the fullest extent permitted by law, resulting
from either the construction of the City's Work or any subsequent renovation or alterations by the
City. Furthermore, City covenants and agrees that any contracts for the City's Work entered into by
City and a general contractor or other contractor in privity with City will include the indemnities
required by this License from the general contractor or other contractor in privity with City in favor
of City, Owner and the City.
(i) Survival. This Section 27 shall survive any termination of the License.
28. Miscellaneous.
(a) Accord and Satisfaction. No payment by City or receipt by Owner of a
lesser amount than the amount stipulated in this Agreement to be paid shall be deemed to be other
than on account of the earliest stipulated payable amounts, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment be deemed an accord and
satisfaction, and Owner may accept such check or payment without prejudice to Owner's right to
recover the balance of such amount or pursue any other remedy provided herein or by law.
(b) Entire Agreement. This Agreement and the exhibits attached hereto and
forming a part thereof as if fully set forth herein, constitute all covenants, promises, agreements,
conditions and understandings between Owner and City concerning the Facilities and there are no
covenants, promises, conditions or understandings, either oral or written, between them other than
are herein set forth. Neither Owner nor Owner's agents have made nor shall be bound to any
representations with respect to the Facilities except as herein expressly set forth, and all
representations, either oral or written, shall be deemed to be merged into this Agreement. Except as
herein otherwise provided, no subsequent alteration, change or addition to this Agreement shall be
binding upon Owner or City unless reduced to writing and signed by them.
(c) Successors and Assigns. All rights, obligations, and liabilities herein given
to, or imposed upon, the respective parties hereto shall extend to and bind the several respective
heirs, legal representatives, and permitted successors and assigns of the said parties. No rights,
however, shall inure to the benefit of any assignee of City unless the assignment to such assignee
has been approved by Owner in writing as provided herein. Nothing contained in this Agreement
shall in any manner restrict Owner's right to assign or encumber this Agreement and, in the event
Owner sells its interest in the Property and the purchaser assumes Owner's obligations and
covenants, Owner shall thereupon be relieved of all further obligations hereunder.
(d) Captions and Section Numbers. The captions, section numbers, and article
numbers appearing in this Agreement are inserted only as a matter of convenience and in no way
{00222427.1306-9905263} 16
Parking license Agreement-
Boynton Town Square North
define, limit, construe, or describe the scope or intent of such sections or articles of this Agreement
nor in any way affect this Agreement.
(e) Partial Invalidity. If any term, covenant or condition of this Agreement or
the application thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable,the remainder of this Agreement the application of such term, covenant or condition
to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not
be affected thereby and each term, covenant or condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
(f) Construction of Language. Whenever in this Agreement the context allows,
the terms "Agreement," "Term" and"Term of this Agreement", or terms of similar import, shall be
deemed to include all renewals, extension or modifications of this Agreement or the Term. The
word"including"when used in this Agreement shall be deemed to mean"including,but not limited
to," or "including without limitation." Whenever in this Agreement the context so requires,
references to the masculine shall be deemed to include the feminine and the neuter,references to the
neuter shall be deemed to include the masculine and the feminine, and references to the plural shall
be deemed to include the singular and the singular to include the plural. The headings of sections or
subsections in this Agreement are for convenience only and shall not be relevant for purposes of
interpretation of this Agreement. This Agreement has been negotiated "at arm's length" by Owner
and City, each having the opportunity to be represented by legal counsel of its choice and to
negotiate the form and substance of this Agreement. Therefore, this Agreement shall not be more
strictly construed against either party by reason of the fact that one party may have drafted this
Agreement.
(g) Non-Waiver. No delay or failure by either party in exercising any right
under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that
or any other right.
(h) Counterparts/ Electronic or Facsimile Signatures. This Agreement may be
executed in several counterparts, each of which shall be deemed to be an original and which
together shall constitute one and the same instrument. The electronic signature of any party hereto
shall be as binding as the original signature of such party for all purposes; and the copy of any
parties' signature to this Agreement delivered by facsimile, e-mail, or such other electronic means
shall be as binding and enforceable as the parties' original signature to this Agreement.
(i) Governing Law/Venue. This Agreement shall be interpreted and construed
in accordance with and governed by the laws of the State of Florida. Any action arising out of,or in
connection to, this Agreement or between the parties hereto, to the extent not required to be
determined via arbitration pursuant to Section 28(j), shall be brought exclusively in the courts of
Palm Beach County,Florida.
(j) Dispute Resolution. The parties hereto agree that upon the written request of
either party, any dispute, controversy, or claim arising out of or relating to this Agreement, or any
breach or Event of Default hereof(a "Dispute"), shall be submitted to arbitration in Palm Beach
County, Florida, in accordance with the Commercial Arbitration Rules of the American Arbitration
Association then pertaining, and judgment upon the award rendered may be entered in any court
(00222427.1 306-9905263) 1 7
Parking License Agreement-
Boynton Town Square North
having jurisdiction. Each party shall select an arbitrator within thirty (30) days after receipt of
written notice from one party to the other party requesting arbitration. The two arbitrators shall
collectively select a third arbitrator. Any decision made by two of the three arbitrators shall be
binding upon the parties, and any decision may involve monetary damages or such form of
equitable relief as the arbitrators shall determine is necessary. If one party fails to select an
arbitrator within the thirty (30) day period provided above, the one arbitrator shall select a second
arbitrator and the two arbitrators shall collectively select a third arbitrator. The party prevailing at
arbitration shall be reimbursed by the losing party for all costs and expenses incurred by it in
connection with the arbitration.
(k) Relationship of Parties. Nothing contained in this Agreement shall be
deemed or construed in any manner or under any circumstances whatsoever as creating or
establishing the relationship of partners or co-venturers, or creating or establishing the relationship
of a joint venture between Owner and City. The provisions hereof are for the exclusive benefit of
the parties, and no other person or entity, including creditors of any party hereto, shall have any
right or claim against any party by reason of those provisions or be entitled to enforce any of those
provisions against any party.
(1) Agreement Subject to Covenants, Conditions, and Restrictions. City
acknowledges and agrees that its rights hereunder are subject to, and subordinate to the declarations,
covenants, conditions, restrictions, easements, and agreements of record as of the date of this
Agreement.
(m) Radon Gas Notification. Radon is a naturally occurring radioactive gas that,
when it has accumulated in a building in sufficient quantities, may present health risks to persons
who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit.
(n) Sovereign Immunity. The parties agree that the City is a political subdivision
of the State of Florida and therefore is entitled to sovereign immunity. Nothing in this Agreement
shall be construed to require the City to indemnify Owner, or insure Owner for its negligence or to
assume any liability for Owner. Further, any provision in this Agreement that requires the City to
indemnify, hold harmless or defend Owner from liability for any other reason shall not alter the
City's waiver of sovereign immunity or extend the City's liability beyond the limits established in
Section 768.28 of the Florida Statutes,as amended.
[SIGNATURES ON FOLLOWING PAGE(S)]
(00222427.1306-9905263) 18
Parking License Agreement-
Boynton Town Square North
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
CITY:
City of Boynton Beach
pe
Arf ,der, By: 40‘; ' g/..
City 4vr,rney Name:. '4 i11 NZ, L,it/7--
Title:
Title: /,/ '
OWNER:
JKM BTS North,LLC,
a Florida limited liability company
By: JKM BTS Capital,LLC,
a Florida limited liability company,
its Manager
John K. Markey,Manager
19
Parking License Agreement•
Boynton Town Square North
LEGEND:
•• •• ••. PROJECT BOUNDARY
I It PEDESTRIAN CIRCULATION
PHASE LINE
PHASE 3 PHASE I PHASE 2 u VEHICULAR ACCESS TO
nor INCLUDED NOT
INCLUDED PARKING GARAGE
NOT INCLUDED ZONING.CIA
NOT INCLUDED NOT INCLUDED NOT INCLUDED ZONING'. ZONING:R3 F --- —NOT INCLUDED FUTURE D LANG UNMADE i
ZONING:CI ZONING:. ZONM L.. ZONING.. FUTURE LAND USE:HOE
FUTURE LAND USE:INC FUTURE LAND USE:HDR FUTURE I.ANI)USE:HOE FUTURE LANE USE:INC USE.LR[
J .9
ITT
J — "�., ..»w. _- — ._.
, �I �''"'� _ .,.....• I R ON-STREET PARKINGG
• PROJECT DATA
f ..... • PARILIN iii 1 • NOTNOLUOID ■
ESRM■Igoe USENDII ' i r 1 $<Q AREA
■-• e 3 Site Area 15.04 Acres
l ■ / ■Eir`�R* F ■ ZONING (+/'655,481 SF)
I ■ • f' Court,. Existing: PU(Public Use)
. Courtyard ■ • ■ REC(Recreation)
• •2 • ■ Proposed: MU-3(Mixed Use-3
■
PHASE 3
MAIN
3 ■ L •- ■• SF I ■P': FUTURE LAND USE
r ^w 3 „R•I • r}• Existing: Public&Private
> c...•- : FIIOROEED ■ L I ye�K• ' I Govt/Instit (PPGI)
Q I I ENVF.= w ,V m•E r
m I cai ■ oFm R . RR /> s ■ Proposed: Mixed Use
- u I ASl>w(IEE71 I a'`�,L"a TP _ r Q Medlum(MXM)
■� m I I I QZQ PROPOSED
NO gi op
1 "� ul GARAAcGEKING ■ lss DENSITY
EM Ick 1€js€ _ O I• N oI I ■.. Q Maximum Density: 50 Units/Acre x 15.04
dd0 * Acres=752 Units
EC 1 g $F. I I 1 ( :I I ■'- , Z Proposed Density: 705 Units/15.04 Acres
X 1 �y I •
I ■- N =47 Units/Acre
W ail I I I I T EMF s lil
iRY '"E" 0I Ji USES
M •••• .. VHASE i.
\ ......."■ • Residential: 705 Units
•
>' ■ FHS 3 Hotel: 120 Rooms
I • Q'
W Flex: 54,749 SF
■ •ua I •� N; Courtyard t Fitness Club/Gym: 29,138 SF
�- W Civic Center/ 28,536 SF
named Head Q Multi-purpose
dDwndMs ■ 1= z x. : 1,N' d1., Historic High School)
• .131 nem - E $ City Hall/Library 110,000 SF
Z1:.
T T _A El Children's Museum 8,288 SF
SEACREST BLVD._ \
Na wauoEo
INCLUDES INZONINCLUDED
NOT INCLUDED 1
MEAN.. 1 NOT ZONING.a3
FUTURE LAND USE:HDR
1 / FUTURE A I I N
FUTURE LURE USE HOE I FUTURE ANG USE NOR NOTFUTIRE LANE USE:lM
1111
160031.00 01.09.18 BOYNTON BEACH TOWN SQUARE REDEVELOPMENT// Master Development Plan 0 �°a L111
I:n Ru,SN
2a-vy0
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into as of
the I I day of March, 2018 (the "Effective Date"), by and between JKM BTS Capital, LLC, a
Florida limited liability company(the"Developer"),and City of Boynton Beach(the"City").
RECITALS
WHEREAS, City is the owner of(i)the property located in Boynton Beach, Florida, which
consists of approximately +/-3.71 gross acres and is commonly known as Boynton Town Square
South, as depicted on Exhibit"A" and made a part hereof, together with the improvements located
thereon and all fixtures and personal property located on said property (the "South Property"), (ii)
the property located in Boynton Beach, Florida,which consists of approximately+/-2.60 gross acres
and is commonly known as Boynton Town Square North, as depicted on Exhibit"A" and made a
part hereof, together with the improvements located thereon and all fixtures and personal property
located on said property (the "North Property"), and (iii) the property located in Boynton Beach,
Florida, which consists of approximately +/-0.96 gross acres and is commonly known as Boynton
Town Square Central, as depicted on Exhibit "A" and made a part hereof, together with the
improvements located thereon and all fixtures and personal property located on said property (the
"Central Property") (the South Property, the North Property, and the Central Property are referred
to herein collectively as the"Properties"or singularly as a"Property"); and
WHEREAS, Developer desires to develop (i) upon the South Property, a rental apartment
project which is anticipated to consist of approximately 280 apartment units (the "South
Apartments"), as well as a parking structure intended to consist of approximately 918 parking
spaces (the "South Garage"), together with related improvements (the South Apartments, South
Garage, and related improvements are referred to herein as the "South Project"), (ii) upon the
North Property, a rental apartment project which is anticipated to consist of approximately 225
apartment units (the "North Apartments"), as well as a parking structure intended to consist of
approximately 991 parking spaces (the "North Garage"), together with related improvements (the
North Apartments, North Garage, and related improvements are referred to herein as the "North
Project"), and (iii) upon the Central Property, a rental apartment project which is anticipated to
consist of approximately 200 apartment units (the "Central Apartments"), together with related
improvements (the Central Apartments and related improvements are referred to herein as the
"Central Project") (the South Project, the North Project, and the Central Project are referred to
herein collectively as the"Projects"or singularly as a"Project"); and
WHEREAS, City desires to license from Developer (i) the right to use approximately 364
parking spaces in the South Garage (the "South Spaces") to provide parking for City's to-be-
constructed City Hall, and (ii) the right to use approximately 101 parking spaces in the North
Garage (the "North Spaces") to provide parking for City's to-be-constructed municipal
improvements.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements set
forth herein and other good and valuable consideration, the receipt and sufficiency of which are
Development Agreement- 1
Boynton Town Square
hereby acknowledged, the parties hereto hereby covenant and agree to the terms and conditions set
forth herein.
AGREEMENT:
1. Recitals. The recitals set forth above are incorporated herein by this reference,
and the parties agree that such recitals are true and correct.
2. Purchase Agreements. Simultaneously with the execution of this Agreement, City
shall have entered into separate Purchase and Sale Agreements with Developer (and/or an affiliate
of Developer) with respect to each of the Properties (the "Purchase Agreements") pursuant to
which Developer (and/or an affiliate of Developer) has agreed to purchase the applicable Property
from City, subject to the terms and conditions of each such Purchase Agreement.
3. Development Activities. Developer will undertake such actions as are necessary
with respect to the development of the proposed Projects, including, without limitation,
performing investigations, seeking approvals, developing site plans and architectural and
construction plans, and undertaking other development activities.
4. Consideration. As consideration for the activities to be undertaken pursuant to
this Agreement, City has agreed to sell the Properties to Developer at the discounted price set
forth in each Purchase Agreement, and in addition thereto, City shall pay to Developer the total
sum of$1,989,968.00 (the "License Deposit"),payable as follows:
(a) 20% upon expiration of the Due Diligence Period of the Purchase
Agreement for the South Property, but only if none of the Purchase Agreements has been
terminated; and
(b) 80% within thirty (30) days following receipt of site plan approval for the
Properties.
The License Deposit represents the entire amount payable with respect to the licenses to
be purchased with respect to each of the South Garage and the North Garage and shall serve as a
deposit against the licenses to be purchased with respect to each of the South Garage and the
North Garage until earned. Developer shall be entitled to use the License Deposit in any manner
it shall reasonably determine, including in connection with the performance of the obligations
under this Agreement and/or in connection with the construction of any of the Projects. Such
license fees shall only be deemed to be payable in full and to have been earned upon the
Commencement Date (as defined in the applicable Parking License) with respect to each
applicable Garage. Following any termination of this Agreement prior to commencement of
construction of both Garages, Developer shall return the License Deposit to the City, less any
third party out-of-pocket expenses incurred by Developer or its affiliates in connection with the
obligations under this Agreement and/or otherwise incurred in connection with any of the
Projects; for the avoidance of doubt, such expenses may include, by way of example and not
limitation, fees for traffic studies, environmental and geotechnical studies and reports,
architectural and engineering plans and studies, as well as other professional fees for any form of
architectural, engineering, planning, legal, and accounting services. Upon any such termination,
Development Agreement- 2
Boynton Town Square L
to the extent permitted, Developer shall assign to City any and all rights it has in any of the work
product paid for as part of such third-party expenses.
Notwithstanding the foregoing, if City (i) should request that Developer incorporate into
the construction of any of the Garages additional elements that are not necessary to the functions
served by the applicable Garage (e.g., bathrooms, electronic message boards, etc.) or elements
that are for the exclusive use of City (e.g., parking meter equipment with respect to the North
Spaces or the South Spaces), or (ii) pursuant to the terms of a Parking License, request that
Developer complete certain portions to a "shell" such that City can complete such additional
elements that are not necessary to the functions served by the applicable Garage (e.g., bathrooms,
electronic message boards, etc.) or elements that are for the exclusive use of City (e.g., parking
meter equipment with respect to the North Spaces or the South Spaces), then, as applicable, City
shall pay for and/or reimburse Developer (or the applicable affiliate of Developer that owns the
applicable Garage) for the total construction cost for such elements or exclusive use elements,
and City shall be responsible for all operating and maintenance costs with respect to such
elements or exclusive use elements. For the avoidance of doubt, the amount of the License
Deposit contemplates the construction of restrooms in the South Garage in accordance with the
plans and specifications to be developed by Developer and/or an affiliate of Developer.
5. Permits and Approvals. Developer shall be seeking to receive all
authorizations, including, without limitation, land-use change, re-zoning, plat and/or replat, and
site plan approvals necessary for Developer's intended use of, and the construction and
operations of the improvements upon, each Property (collectively, the "Approvals"). City shall,
upon request by Developer, execute any and all documentation in support of any application for
such Approvals and shall take any and all steps and actions required to agree to and approve the
site specific Site Plan/Master Plan Amendment for each Property as conceptually agreed by both
parties; provided, however, that Developer shall not be required, as a condition of receiving its
Approvals or otherwise, to construct or maintain any infrastructure, improvements, or other
structures or property other than the Project. If at any time, Developer (i) has not received any
such Approvals, (ii) is denied or refused any such Approvals, (iii) is uncertain that Developer's
intended use, construction and improvements to a Property will not be physically or financially
impaired, as determined in Developer's sole and absolute discretion, (iv) determines that the
necessary Approvals have been granted subject to any conditions that Developer deems
unacceptable because such conditions will either physically or financially impair Developer's
use and development of a Property, in its sole and absolute discretion, or which will cost with
respect to satisfying any one condition more than $10,000.00, or more than $50,000.00 in the
aggregate for satisfaction of all such conditions, or (v) determines that adequate utilities and
related facilities, including, without limitation, water, storm water and sanitary sewage disposal,
telephone service and energy sources to service the applicable Property and improvements
thereto for Developer's intended use and/or easements therefore are not available to the
reasonable satisfaction of Developer, then Developer may, by furnishing written notice to City
and Escrow Agent, terminate this Agreement without owing any liability to City (other than any
liability that expressly survives any termination hereunder).
6. Citv's Obligations.
Development Agreement-
Boynton Town Square 3
(a) Chilled Water - South. The City's chilled water utility plant (the "CEP")
must be completed and operating with sufficient capacity to supply the South Garage and the
South Apartments (as well as all other requirements of the CEP) no later than the later to occur
of(i) twelve (12) months after the effective date of this Agreement, and (ii) and the date when
the South Apartments have been "dried-in" (i.e., as determined by Developer's architect,
permanent or temporary roofing is complete, insulated, and weather tight; exterior walls are
insulated and weather tight; and substantially all openings are closed with permanent
construction or substantial temporary closures (the "South CEP Delivery Date").
(b) Chilled Water — North. The CEP must be operating with sufficient
capacity to supply the North Garage and the North Apartments (as well as all other requirements
of the CEP) no later than the later to occur of (i) twelve (12) months after the closing has
occurred under the North Purchase Agreement, and (ii) and the date when the North Apartments
have been "dried-in" (i.e., as determined by Developer's architect, permanent or temporary
roofing is complete, insulated, and weather tight; exterior walls are insulated and weather tight;
and substantially all openings are closed with permanent construction or substantial temporary
closures(the "North CEP Delivery Date").
(c) Chilled Water — Central. The CEP must be operating with sufficient
capacity to supply the Central Apartments (as well as all other requirements of the CEP) no later
than the later to occur of(i) twelve (12) months after the closing has occurred under the Central
Purchase Agreement, and (ii) and the date when the Central Apartments have been "dried-in"
(i.e., as determined by Developer's architect, permanent or temporary roofing is complete,
insulated, and weather tight; exterior walls are insulated and weather tight; and substantially all
openings are closed with permanent construction or substantial temporary closures (the "Central
CEP Delivery Date").
(d) Unavailability of Chilled Water. If CEP is not producing and delivering to
(i) the South Apartments and the South Garage sufficient chilled water by the South CEP
Delivery Date, or (ii) the North Apartments and the North Garage sufficient chilled water by the
North CEP Delivery Date, or (iii) the Central Apartments sufficient chilled water by the Central
CEP Delivery Date, then in any case, City shall coordinate with Developer and shall pay for
and/or reimburse Developer for all expenses incurred by Developer in obtaining temporary
solutions (e.g., renting portable/temporary chillers)to maintain the applicable Apartments and, if
applicable, the applicable Garage in a manner sufficient not to permit waste or damage thereto
(e.g, from mold).
(e) Updates. Each month, City shall provide to Developer(for which purpose
an email shall be sufficient) its current estimated completion date for City Hall and for delivery
of the chilled water to each of the applicable Properties, in order to coordinate with Developer
the completion times of their respective projects and to make alternative arrangements if
necessary with respect to their respective obligations under this Agreement.
7. Developer's Obligations.
(a) Applications for Site Plan Approval. With respect to each of the South
Project and the North Project, Developer (and/or an affiliate of Developer) shall file an
Development Agreement- A
Boynton Town Square 4
application for site plan approval with respect to such project within 120 days following the
closing on the real estate for such project.
(b) Completion of South Garage. Construction of the South Garage will have
been completed and/or the South Spaces will be available for use no later than the later to occur
of(i) eighteen (18) months after the Satisfaction Date (as defined in Section 8) for the South
Project, and (ii) the completion of City Hall, as evidenced by issuance of a final C.O. for all of
City Hall (the "South Space Delivery Date").
(c) Unavailability of South Spaces. If all of the South Spaces are not ready
for use on or before the South Space Delivery Date, Developer shall provide alternative parking
upon the South Property for use by the City and/or shall pay or reimburse the City for the cost to
obtain alternative off-site parking sufficient to meet the City's needs in lieu of the South Spaces
until such time as the South Spaces are ready for use. In connection with the foregoing, if
Developer seeks one or more Temporary Certificates of Occupancy (each, a "TCO") for the
South Garage, the City shall promptly and fully cooperate with and assist Developer in all
reasonable efforts to apply for and obtain such TCO or TCOs.
(d) Completion of North Garage. Construction of the North Garage will have
been completed and/or the North Spaces will be available for use no later than twenty-four (24)
months after the Satisfaction Date (as defined in Section 8) for the North Project (the "North
Space Delivery Date").
(e) Unavailability of North Spaces. If all of the North Spaces are not ready
for use on or before the North Space Delivery Date, Developer shall provide alternative parking
upon the North Property for use by the City and/or shall pay or reimburse the City for the cost to
obtain alternative off-site parking sufficient to meet the City's needs in lieu of the North Spaces
until such time as the North Spaces are ready for use. In connection with the foregoing, if
Developer seeks one or more TCOs for the North Garage, the City shall promptly and fully
cooperate with and assist Developer in all reasonable efforts to apply for and obtain such TCO or
TCOs.
(f) Updates. Each month, Developer shall provide to City(for which purpose
an email shall be sufficient) its current estimated completion date for each of the North
Apartments, North Garage, South Apartments, the South Garage, and the Central Apartments in
order to coordinate with City the completion times of their respective projects and to make
alternative arrangements if necessary with respect to their respective obligations under this
Agreement.
8. Conditions to Developer's Obligations. It shall be a condition precedent to
Developer's Obligations with respect to each Project under this Agreement that the following
conditions be satisfied (the date all such conditions have been satisfied with respect to each
Project, such Project's"Satisfaction Date"):
(a) With respect to each Project, Developer shall have received approval of
Developer's site specific Site Plan/Master Plan Amendment as conceptually agreed by both
parties.
Development Agreement- 5
Boynton Town Square J
(b) Developer shall have received the Approvals in such form and upon such
terms and conditions as Developer shall have determined are necessary in its sole and absolute
discretion, and such Approvals shall have become final and unappealable.
(c) The plat shall have been approved and recorded in such form and upon
such terms and conditions as Developer shall have determined are necessary in its sole and
absolute discretion.
(d) Developer shall have received final and unappealable site plan approval
with respect to each Project in such form and upon such terms and conditions as Developer shall
have determined are necessary in its sole and absolute discretion.
(e) Developer's site plan with respect to each Project, as approved by the City
Commission of the City of Boynton Beach, has become final and all appeal periods with respect
thereto have expired;
(f) each Property has been rezoned to "MU-3" or to such other designation as
the City's municipal code (as currently exists or as may hereafter be amended) shall designate as
the zoning designation which will permit the Developer's development of each Property
substantially in accordance with the conceptual plan and any modifications thereto, and the
determination of such rezoning shall have become final and all appeal periods with respect
thereto shall have expired;
(g) all utilities shall have been "stubbed out" by City (or by contractors
engaged by City) to within five (5) feet of the proposed location of the applicable parts of each
Project and of each Property;
(h) the areas of each Property for the construction of each Project shall have
been cleared and shall have been certified by the applicable geotechnical engineers as suitable
for construction of each Project;
(i) 'City shall have removed all tenants and other persons in possession from
each Property, such that, upon closing under each Purchase Agreement, Developer shall have
exclusive possession of the applicable Property.
(j) City(or contractors engaged by City) shall have performed each and every
obligation of City under the terms and provisions of this Agreement.
(k) City shall have satisfied any condition waived by Developer under any
Purchase Agreement.
9. Default.
(a) In the event of a default by Developer under this Agreement which is not
cured within thirty (30) days after written notice to Developer,then at any time thereafter prior to
the cure of such default by Developer, City shall have the right to proceed against Developer in
an action for specific performance of this Agreement and/or for damages based upon such
default.
Development Agreement- 6
Boynton Town Square V
(b) In the event of a default by City hereunder which is not cured within thirty
(30) after written notice to City, then at any time thereafter prior to the cure of such default by
City, Developer shall have the right to proceed against City in an action for specific performance
of this Agreement and/or for damages based upon such default.
10. Indemnification.
(a) By Developer. Developer agrees to indemnify, defend and hold harmless
City and each of its affiliates, lenders, employees, representatives, attorneys, and agents from any
loss, injury, damage, claim, lien, cost or expense, including reasonable attorneys' fees,
paraprofessional fees and costs pretrial, at trial and at all levels of proceedings, including
appeals, arising out of or resulting from the performance by Developer or its employees,
consultants, agents or representatives of any of Developer's obligations pursuant to this
Agreement or as a result of any breach or default of this Agreement by Developer or its
employees, consultants, agents or representatives.
(b) By City. Subject to applicable law, City agrees to indemnify, defend and
hold harmless Developer and each of the applicable affiliates of Developer and their affiliates,
managers, members, partners, subsidiaries, shareholders, officers, directors, lenders, employees,
attorneys, and agents from any loss, injury, damage, claim, lien, cost or expense, including
reasonable attorneys' fees, paraprofessional fees and costs pretrial, at trial and at all levels of
proceedings, including appeals, arising out of or resulting from the performance by City or its
employees, consultants, agents or representatives of any of City's obligations pursuant to this
Agreement or as a result of any breach or default of this Agreement by City or its employees,
consultants, agents or representatives.
11. Termination. If, despite City's best efforts, City is unable to obtain bond financing
or such other financing as is necessary for City to complete the new City Hall and/or the other
construction projects contemplated to be completed in connection with the new City Hall as part of
the Boynton Beach Town Square project within 180 days of the Effective Date, then either party
may terminate this Agreement immediately upon the delivery of written notice to the other party.
12. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to the transaction contemplated herein, and it supersedes all prior
understandings or agreements between the parties.
13. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
14. Survival of Provisions. All representations, warranties, and agreements contained
herein shall survive the Closing and delivery of the deed of conveyance contemplated by this
Agreement.
15. Waiver; Modification. The failure by Developer or City to insist upon or enforce
any of their rights shall not constitute a waiver thereof, and except to the extent conditions are
waived by the express terms of this Agreement, nothing shall constitute a waiver of Developer's
right to insist upon strict compliance with the terms of this Agreement. Either party may waive the
benefit of any provision or condition for its benefit which is contained in this Agreement. No oral
Development Agreement- 7
Boynton Town Square
modification of this Agreement shall be binding upon the parties and any modification must be in
writing and signed by the parties.
16. Governing Law; Venue. This Agreement shall be governed by and construed
under the laws of the State of Florida. The venue of any legal proceeding between the parties shall
be the state or Federal courts having jurisdiction in or over Palm Beach County, Florida.
17. Headings. The section headings as set forth in this Agreement are for convenience
or reference only and shall not be deemed to alter the content of this Agreement or limit the
provisions or scope of any section herein.
18. Notices. All notices, demands and other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given:
(a) when personally delivered; or
(b) the next Business Day after being sent by reputable overnight express
courier(charges prepaid); or
(c) when received if by facsimile or e-mail transmission, so long as notice is
concurrently provided to the parties to this Agreement by a method set forth in Section 18(a) or
Section 18(b).
Unless another address is specified in writing, notices, demands and communications to the
parties shall be sent to the addresses indicated below:
If to City: City of Boynton Beach
100 E.Boynton Beach Blvd.
Boynton Beach,Florida 33435
Attn: Lori LaVerriere, City Manager
With a copy to: Goren, Cherof, Doody&Ezrol,P.A.
Attn: James Cherof,Esq.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale,Florida 33308
If to Developer:
2300 Glades Road
Suite 202 East
Boca Raton,Florida 33431
Attention: James S. Gielda,John K. Markey and Adam P. Freedman
With a copy to:
Stephen J. Grave de Peralta,Esq.
5030 Champion Blvd., Suite GI1-281
Boca Raton,Florida 33496
Development Agreement- 8
Boynton Town Square
If any party refuses to accept any attempted delivery of notice in any of the foregoing manners,then
notice shall be deemed to have been delivered upon such refusal. Any party hereto shall have the
right to change its address for notice if written notice is given to all other parties in accordance with
the notice provisions hereof.
19. Attorneys' Fees. In the event that it becomes necessary for either party to bring
suit to enforce the terms of this Agreement, then the prevailing party shall be entitled to recover all
fees and costs, including attorneys' fees and paralegal charges incurred in connection with such
proceedings(including appellate proceedings)against the nonprevailing party.
20. Time of the Essence. Time is of the essence with respect to each provision of this
Agreement which requires that action be taken by either party within a stated time period, or upon a
specified date; provided however, if the date for performance is on a Saturday, Sunday, or federal
holiday,the date for performance shall be extended to the next business day.
21. Construction. Each party hereto hereby acknowledges that all parties hereto
participated equally in the drafting of this Agreement and that, accordingly,no court construing this
Agreement shall construe it more stringently against one party than the other.
22. Counterparts. To facilitate execution, this Agreement may be executed in
counterparts (including by facsimile or other electronic transmission); and it shall not be necessary
that the signature of, or on behalf of, each party, or that the signatures of all persons required to bind
any party, appear on each counterpart; but it shall be sufficient that the signature of, or on behalf of,
each party, or that the signature of the persons required to bind the party appear on one or more of
such counterparts. All counterparts shall collectively constitute a single agreement. Facsimile
copies or other electronically transmitted copies of this executed Agreement shall be deemed an
original agreement.
23. Waiver of Jury Trial. Each party to this Agreement hereby willingly,
knowingly, and voluntarily waives any right to a jury trial in connection with any dispute
between the parties arising from this Agreement, from any claim arising hereunder, or any course
of conduct related hereto.
24. Assignment. Developer shall be permitted to assign all or any portion of its
interest in this Agreement or in any of its rights pursuant to this Agreement to one or more
entities affiliated with Purchaser or its principals. Seller shall not assign this Agreement without
the prior written approval of Purchaser, which may be withheld in Purchaser's sole and absolute
discretion.
25. Relationship of Parties. Nothing contained in this Agreement shall be deemed
or construed in any manner or under any circumstances whatsoever as creating or establishing
the relationship of partners or co-venturers, or creating or establishing the relationship of a joint
venture between Developer and City. The provisions hereof are for the exclusive benefit of the
parties, and no other person or entity, including creditors of any party hereto, shall have any right
or claim against any party by reason of those provisions or be entitled to enforce any of those
provisions against any party.
Development Agreement- 9
Boynton Town Square 7
26. Sovereign Immunity. The parties agree that the City is a political subdivision of
the State of Florida and therefore is entitled to sovereign immunity. Nothing in this Agreement
shall be construed to require the City to indemnify Developer, or insure Developer for its
negligence or to assume any liability for Developer. Further, any provision in this Agreement
that requires the City to indemnify, hold harmless or defend Developer from liability for any
other reason shall not alter the City's waiver of sovereign immunity or extend the City's liability
beyond the limits established in Section 768.28 of the Florida Statutes, as amended.
(SIGNATURES APPEAR ON THE FOLLOWING PAGE)
Development Agreement- 1 1 0
Boynton Town Square
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have
executed this Agreement as of the latest day and year set forth below.
CITY:
City of ; r y, o i Be' h //
APPRO * "ORM
, By: I - AO
.tAa•/v Name i fJt 6, GtgijT
City Attorney prTitle: 717/41 d
DEVELOPER:
JKM BTS Capital,LLC,
a Florida limited liability company
By:
ohn K. Markey, Manager
I
Development Agreement- 1
1 1 1
Boynton Town Square
LEGEND:
.. ..m.... PROJECT BOUNDARY
4 I PEDESTRIAN CIRCULATION
PHASE LINE
PHASE 3 PHASE I PHASE 2 VEHICULAR ACCESS TO
NOT INCLUDED PARKING GARAGE
NOT INCLUUIIi NOT INCLUDED ZONING:RIA
NOT INCLUDED NOT INCLUDED NOT INCLUDED ZONING Ill ZONING:RI FUTURE LAND USE.LDR
i ZONING CI NOT INCLUDED
ZONING ID ZONING 0.1 NiIMLAM JEIAFUTURE LAND USE.NOR
ZOTING.RI FUTURE LAND USE:HDR FUTURE LAND USE:LM U...-RC
RE AND USE:LRE RUTURE LAND DRE HDR J
J S
N.E.-IST- T. -
�,^ OKSTREET PARKING - / r
—"' „'�'"'. �`" ow_' '� PROJECT DATA
IR
.'� OADING
NOT INCLUDED • I
■ + FU L EM USE:NDII I 9
.e''l `4 AREA
�>z•N�CN•l.. a ■_. '•
Sd S Site Area 15.04 Acres
> am Dw 1,1 / F I L 1• (+/-655,481 SF)
I
_ .■■. ■■■■'•�•L'Y� 5 g; ZONING
_ Courtyard Existing: PU(Public Use)
_ -. . Courtyard • Av.j' REC(Recreation)
• 6 Proposed: MU-3(Mixed Use-3
, ■ f'S MASE 1
MAIM ■ °y. NOM • FUTURE LAND USE
Q > WI ' I • Existing: Public&Private
2.=z;;,,. Govt/Instit (PPGI)
• '> I cRIR.p,a •,,•sEn I I to I n.a.N.m�..a ■
■ pp I; `� 0> • Proposed: Mixed Use
_c -(loo') II,...,"`.ea - Q • Medium(MXM)
i_r D A I (t
E _ G ED •
1 ARI ; w DENSITY
W^4 e I V GARAGE � Q Maximum Density: 50 Units/Acre x 15.04
S ° 9 .+4 I. ''. e Q • . 0 Acres=752 Units
S .I 55 n • Proposed Density: 705 Units/15.04 Acres
ID
X 3 I I, I i • :N =47 Units/Acre
3
•
W II' Etl.tln.HYta,1c • W
W I i r HI.ASIII I • L/) USES
• R
%
l Residential: 705 Units
- j •
• a PHASEa . Hotel: 120 Rooms
' a iI„H,R I un�,.y QI-,ataneS • `o Flex: 54,749 SF
/ ..............' • o9I I—: • l c Fitness Club/Gym: 29,138 SF
/ ■ w I ,./pc �; • 5 Civic Center/ 28,536 SF
�_ �Q o uu L.L. ■ 69,2 Multi-purpose
Hotel Z v9
' �M1 Eroune flew Z - • •
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l — City Hall/Library 110,000 SF
Z § u.
t Z N 5 Children's Museum 8,288 SF
A
., _. i.
I SEACREST BLVD. _ - - •
NOT INCLUDED NOT INCLUDED
" MG LyUDED
NOT IINCCLUDED ZONING:RI II/ ONING:RI 1 II(/ = I 1
1/ 'CI 111/ TYRE LAND USE.HOP I I FUTURE LAND USE:NOR I I FUTURE lANO USE HDR
1 I
ZONING
LANG USE LRC
I
160031 00- BOYNTON BEACH TOWN SQUARE REDEVELOPMENT!/ Master Development Plan SCALE =so
® �.
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-200 DUs W W . I •
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•
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PHASE 3 • • O •44 •
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PHASE I I •
• Open space - • •
• •
Final design to •• •
Existing 'a • W I • be determined • •
>en space - open space > : ' • •
ial design to i 1 to remain Q • + •
• I •• •
determined • •
•
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•• •• • • . • • • • • • • •• •
• •
Existing Historic • • • • #'31.'',,,,...'..'" ,..--4,i;;, • •
High School • • � •
•
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• • • • • •L----1 •
-4 stories (79') • �, .=
• • • E • • • 1
s
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O
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